Panazzolo v Don's Mechanical and Diesel Service Pty Ltd
[2023] FedCFamC2G 665
•2 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FedCFamC2G 665
File number: ADG 289 of 2021 Judgment of: JUDGE BROWN Date of judgment: 2 August 2023 Catchwords: HUMAN RIGHTS – Disability discrimination – whether the respondent engaged in direct discrimination – where the applicant sustained injuries outside of work – whether the respondent made reasonable adjustments for the applicant – whether such reasonable adjustments would have resulted in unjustifiable hardship for the respondent – inherent requirements – matters to be considered Legislation: Australian Human Rights Commission Act 1986 (Cth)
ss 46PH, 46PODisability Discrimination Act 1992 (Cth) ss 3, 4, 5, 5(5), 6, 11, 15(2), 21A, 21B
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Evidence Act (1995) (Cth) s 140
Federal Circuit and Family Court of Australia Act 2021
s 211Cases cited: Alexander v Home Office [1988] 1 WLR 968
Cosma v Qantas Airways Limited [2002] FCA 640
Fox v Percy (2003) 214 CLR 118
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658
O’Brien v Dunsdon (1965) 39 ALJR 78
Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92
Qantas Airways Limited v Christie (1998) 193 CLR 280
Qantas Airways Ltd v Gama [2008] FCAFC 69
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128
Watts v Australian Postal Corporation [2014] FCA 370
X v Commonwealth of Australia & Anor (1999) 200 CLR 177
Division: Division 2 General Federal Law Number of paragraphs: 298 Date of hearing: 14 & 15 March 2023 Place: Adelaide Counsel for the Applicant: Ms Sibree Solicitor for the Applicant: Bourne Lawyers Counsel for the Respondent: Mr Belperio Solicitor for the Respondent: Welden & Coluccio Lawyers ORDERS
ADG 289 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK DOMENIC PANAZZOLO
Applicant
AND: DON'S MECHANICAL AND DIESEL SERVICE PTY LTD
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
2 August 2023
THE COURT DECLARES THAT:
A.The respondent unlawfully discriminated against the applicant contrary to the provisions of section 5(2) and section 15(2) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
1.The respondent pay the applicant the sum of FORTY FOUR THOUSAND DOLLARS ($44,000.00) comprising general damages in the sum of TEN THOUSAND DOLLARS ($10,000.00) together with special damages in the sum of THIRTY THOUSAND DOLLARS ($30,000.00) on both of which interest of FOUR THOUSAND DOLLARS ($4,000.00) is calculated.
2.In the event there is no agreement on the issue of costs the applicant is directed to make such application within 28 days of the date of these orders and serve same on the respondent.
3.The respondent file and serve a response and supporting affidavit to such application within a further 28 days thereafter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
The parties to these proceedings are Mark Panazzolo[1] and Don’s Mechanical and Diesel Services Pty Ltd.[2] They arise pursuant to the provisions of the Disability Discrimination Act 1992 (Cth).[3] The former was employed by the latter.
[1] Hereinafter referred to as ‘Mr Panazzolo’ or ‘the applicant’.
[2] Hereinafter referred to as ‘Don’s Auto’ or ‘the respondent’.
[3] Hereinafter referred to as ‘the Act’ or ‘the DDA’.
The applicant claims to have suffered discrimination in his employment with the respondent because of a disability to his wrist, which he suffered following being assaulted outside of working hours. He did not return to work following this assault. He claims he recovered sufficiently from the sequelae of his injuries to be able to resume his work.
The respondent asserts that it could not accommodate Mr Panazzolo’s return to work as he could not discharge the inherent requirements of his former position and it would have caused it hardship, if it had had to change its workplace to accommodate Mr Panazzolo’s disability.
In specific terms, the case turns on whether the respondent concerned failed to make reasonable adjustments to accommodate Mr Panazzolo’s return to work following his injury and further if the implementation of such adjustments could have been made would they have resulted in the imposition of unjustifiable hardship on Don’s Auto.
As will become apparent, it seems clear that Mr Panazzolo suffered a disability at relevant times. This disability had evident ramifications for his employment at Don’s Auto. The task set for the court is to balance the interests of Mr Panazzolo, as a disabled person, with those of Don’s Auto as his employer, within the matrix of the applicable provisions of the DDA.
BACKGROUND
Mr Panazzolo was born on 29 January 1965. After completing an apprenticeship, he qualified as a heavy vehicle diesel mechanic approximately 30 years ago. He has experience in servicing passenger buses. However, he left the industry for some years to care for his elderly parents.
The proprietors of Don’s Auto are a husband and wife – Donato Disciscio and Patricia Disciscio. Don’s Auto began to trade in 2003. It provides mechanical, automotive, electrical and diesel repairs on a variety of motor vehicles, including passenger vehicles as well as light and heavy vehicles.
Mr Disciscio has extensive trade qualifications in automotive electrical technology; light vehicle mechanical technology; and heavy vehicle mechanical technology. He has been an auto electrician for approximately 32 years and a diesel and light vehicle mechanic for 16 years. He has been in business, as a self-employed mechanic, for over 22 years.
Mrs Disciscio is also extensively involved in the business. However, she does not have trade qualifications and is engaged in providing administrative support for the business, including dealing with personnel issues. At the present time, Don’s Auto employs 9 mechanics, who work under the oversight of Mr Disciscio.
In mid-2019, Don’s Auto placed an advertisement on an internet job site seeking to employ a diesel mechanic. The requirements of the position were described as follows:
Candidate must have experience in repairs and maintenance of heavy, light and passenger vehicles and buses.
Candidates must have HR & forklift licence, sound knowledge & experience in diagnostic skills and able to operate various scan tools. Auto Electrical trade and experience would be preferred but not essential.[4]
[4] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-1.
It is common ground between the parties that when the advertisement was placed there was a significant shortage of qualified diesel mechanics in the Adelaide area and their skills were at a premium in the industry. It is also agreed that, at the time, Mr Panazzolo did not have either a HR (heavy vehicle) licence or indeed any other kind of driver’s licence.
In July of 2019, an intermediary from a recruitment consultancy introduced Mr Panazzolo to Mr and Mrs Disciscio, who were desperate to recruit a diesel mechanic, given no other applicants had responded to their advertisement and their business was flourishing.
As a consequence, Mr and Mrs Disciscio interviewed Mr Panazzolo in respect of the position. He confirmed that he had not formally worked as a diesel mechanic for the last 10 years or so and did not own his own tools of trade. In addition, he confirmed that he did not hold a South Australian driver’s licence.
Notwithstanding these deficiencies, Mr and Mrs Disciscio elected to offer Mr Panazzolo the position. In a letter dated 15 July 2019, he was offered a position as a diesel mechanic, with Don’s Auto, subject to a probation period of 3 months, which was subject to a further extension period of 6 months. Mr Panazzolo accepted the offer and began working at Don’s Auto a short time later.
His base hourly rate was $28.00. From time to time, he worked overtime at time and a half. He was paid fortnightly earning between $1,500.00 and $2,500.00 per fortnight. It is Mr Panazzolo’s position that he successfully completed his probation, which was not extended.
On the other hand, it is Mr and Mrs Disciscio’s position that the probation was extended for a further period of three months on 15 October 2019. In addition, Mr Panazzolo was subject to a performance review, which took place on 2 June 2020, at which the desirability of him obtaining an HR licence was raised.
At this review, Mr and Mrs Disciscio also raised their concerns with Mr Panazzolo regarding his overall level of efficiency in applying himself to the various mechanical tasks conferred upon him in the workshop. In this context, on 17 September 2020, Mr Disciscio sent Mr Panazzolo a formal letter in the following terms:
On the 2nd June 2020 you met with Patricia where an annual staff performance was conducted. On the 4th June you met both with Patricia and myself to discuss your poor efficiency and productivity. You were advised that your performance must improve as the business is not able to continue to maintain your excess hour on each job as it has been for past 12 months. During our discussion a plan was implemented to support your improvement and a review date was scheduled for the 30th June 2020. We extended your review to provide further support for you to improve your productivity.
We believe that you have been provided with ample time and support to assist you in meeting our workshop standards. However, it must also be stated that you are meant to be a qualified Diesel Mechanic with sufficient experience and should be able to work independently with minimal supervision and able to be meet reasonable Company standards and deadlines consistently.[5]
[5] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-17.
Mr Disciscio has provided the pro forma document, which was completed by Mr Panazzolo on the one hand and the employer representative on the other (Mrs Disciscio) to complete the periodic performance review. In terms of setting agreed performance goals for the next 12 months, the emphasis is on improving Mr Panazzolo’s efficiency and skills. There is no specific indication that his level of strength, particularly in respect of tightening bolts had been ventilated.
On 15 October 2020, Mr Panazzolo was assaulted, by two men, whilst walking his dog, on a public pathway close to his home. It is the effect of Mr Panazzolo’s evidence, which is unchallenged, that he was blameless in the incident and his two assailants were subsequently apprehended, charged and ultimately gaoled for the crime committed upon him.
The assault had no connection to his employment at Don’s Auto and occurred outside of working hours. However, the assault resulted in Mr Panazzolo suffering a fracture to his left ulna – one of the two bones of the forearm. The fracture required surgical repair involving the insertion of a metal plate and screws to fix the fracture.
Following the surgery, Mr Panazzolo was advised by his surgeon that he would be unable to engage in heavy lifting or loading involving his injured arm for a period of around 3 months following the operation, which occurred on 21 October 2020. The injury was to his left arm. His dominant hand is his right.
Following the injury, Mr Panazzolo advised Mrs Disciscio that he would be unable to attend work. He provided a sick certificate which was current until 23 October 2020. On 21 October 2020, he was provided with a further medical certificate, which indicated that he was unfit for work until 2 December 2020, due to arm surgery.[6]
[6] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-18 – DD-19.
On 30 November 2020, Mr Panazzolo attended at the orthopaedic out patients’ clinic at the Royal Adelaide Hospital, where his surgery had been performed. He consulted an orthopaedic registrar, Dr Fidock, who indicated that he had full pronation and supination in the limb. Under the heading plan, Dr Fidock wrote NO heavy lifting or loading for 3 months.[7]
[7] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-21.
On 9 December 2020, Mr Panazzolo consulted his general medical practitioner, Dr Paul Dalrymple. Dr Dalrymple provided him with a medical certificate, dated 9 December 2020, which indicated that Mr Panazzolo would be unable to return to work until 21 December 2020.[8]
[8] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-01.
Mr Panazzolo’s medical treatment was provided in the public health system. Given the context in which his injury occurred, the cost of his treatment was not defrayed by any worker’s compensation insurer. As indicated above, he was able to obtain only generic medical certificates from, firstly his surgeon and secondly others involved in the public health system and then his general medical practitioner.
As a consequence, as will be outlined in greater detail in due course, it was difficult for Mr Panazzolo (and indeed Mrs Disciscio) to obtain a medical opinion, which correlated with the extent of his injury to his left forearm with his capacity to return to his previous employment as a diesel mechanic. It is the effect of Mr Disciscio’s evidence that Dr Dalrymple’s certificate was unacceptable to Don’s Auto because it did not definitively state that Mr Panazzolo was cleared to return to work at full capacity.[9]
[9] See affidavit of Mr Disciscio filed 30 January 2023 at [52].
This is the major factual issue in the case. Necessarily, Mr Panazzolo utilised both his hands and arms in carrying out his duties as a diesel mechanic. In addition, from time to time, he was required to use a variety of tools, either pneumatically or battery powered, to loosen/tighten bolts and so on and so forth. In so doing, he was required to operate the tool control with his dominant hand, whilst bracing it with his other.
He was also required to carry dissembled parts of engines and transmission systems – such as clutches – from the vehicle on which he was working to other parts of the workshop. In addition, he needed to use both his arms to remove tyres and wheels from vehicles, using a crow bar, as well as other tools. Necessarily, given the size and weight of tyres and wheels, two arms are required to acquit such a task.
It is agreed between the parties that the various tasks required to be performed, by Mr Panazzolo, in his role as a diesel mechanic, are set out in a document entitled Heavy Motor Mechanic Job Dictionary which was compiled by the Motor Trade Association.[10] The document is headed: Task Breakdown & Risk Assessment – For workers and employers in the automotive industry and their medical / other providers.
[10] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-6, page 158. Hereinafter referred to as ‘the MTA Job Dictionary’.
In the body of the document, under the heading Purpose of this document is the following statement:
This tool is a detailed job/task breakdown designed to identify those tasks, their duration and what other supports might be needed to match an injured employee's work capabilities. This activity is designed to align with any remaining duties to help maintain productivity in the workplace.
This tool is to be used by Medical Specialists, General Practitioners and other providers to help in workplace assessment and is designed to be used in consultation with the injured worker, employer and case manager.
This tool if used early in the injury will help with planning namely - when, how and under what circumstances an employee will return to work. It should also help fellow employees, line managers, employers, family/household persons to understand the injured workers' capacity and assist counsellors to provide appropriate advice and support.[11]
[11] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-6, page 159.
The various physical tasks, required to be undertaken by Mr Panazzolo, whilst employed at Don’s Auto, included the following:
·Changing brake shoes;
·Draining oil;
·Lubricating steering;
·Replacing clutches;
·Replacing oil filters;
·Rotating tyres;
·Unbolting gearboxes.
In the MTA Job Dictionary is a detailed description of each of these tasks and the skills required to complete them. Under the heading Task Analysis is delineated what a worker is required to do to accomplish the job in question and the tools required to do so. Under the heading Critical Work Demands is delineated the physical aspects of the task such as the need to crouch/kneel or flex the knee and pronate and supinate the forearm and the degree of each such aspect – i.e. frequent or constant. In addition, these requirements are delineated in a diagrammatic form in respect of each such tasks. Photographs are also provided of a worker engaged in each such task.
By way of example, Changing Brake Shoes is described as follows in the MTA Job Dictionary:
TASK ANALYSIS Description:
This task requires the worker to unbolt the current brake apparatus on the heavy vehicle, using hammers, spanners and various other tools requiring palmar and pincer grasping unilateral and bilateral grasping. The brake shoes are checked and replaced with new shoes, which are assembled on site using gross and fine bilateral motor eye hand coordination.Critical Work Demands:
· Constant crouching / kneeling / stooping.
· Constant bilateral gross motor eye hand coordination.
· Frequent precise bilateral fine motor control.
· Constant bilateral palmar/pincer grasping.
· Frequent elbow flexion (0˚ - 140˚).
· Frequent forearm pronation/supination.
· Occasional neck flection (0˚ - 70˚) and extension (0˚ - 45˚).
· Occasional squatting postures involving hip flexion (0˚ -120˚) and knee flexion (0˚ -120˚).
· Constant shoulder flexion (0˚-175˚), extension (0˚-175˚), extension (0˚-40˚) and abduction (0˚-175˚).
Necessarily, as the purpose of the Dictionary indicates, a suitably qualified professional, in conjunction with the worker and employer concerned, can utilise the guide to make appropriate plans for an injured worker to return to the workplace in a safe and cost effective manner.
Both Mr Panazzolo and Mr Disciscio provided extensive evidence regarding their respective perception as to the degree of physical difficulty implicit in the tasks entailed in each of these duties set out in the MTA Job Dictionary and Mr Panazzolo’s capacity to discharge them following his injury. Necessarily each brought their own subjective perceptions to the issue.
On the one hand, it is Mr Panazzolo’s view, from his experience of how he had coped with tasks, at the workshop, prior to his injury, where he had assistance from other workers, if necessary, to assist with heavier jobs, that he was fully able to return to work from early 2021 onwards and this was a view clearly endorsed by his various treating medical practitioners, most recently by Dr Dalrymple and another orthopaedic registrar, Dr Wong.
On the other hand, it is Mr Disciscio’s view that the nature of the duties required to be undertaken by Mr Panazzolo, particularly the operation of pneumatically powered rattle guns; the removal of wheel hubs; and the replacement of clutches; was likely to be physically beyond Mr Panazzolo, given the injury to his left wrist.
Mr Disciscio reached this opinion on the basis of his prior observation of Mr Panazzolo’s performance in the workshop, which as previously indicated, he had assessed as being not up to standard, in terms of speed and efficiency. In this context, he points to his extensive experience in the automotive industry and his knowledge, based on this experience, of what is physically involved in working on heavy diesel vehicles.
In addition, Mr Disciscio points to the duty of care, which his business owes to all its customers, which include public bus operators, to ensure that repairs to vehicles are conducted properly, so that the vehicles concerned are safe, when they leave his workshop.
In this context, Mr Disciscio, in his evidence, indicated that, as a combination of these various factors, he came to the conclusion, in respect of the period around the start of the New Year in 2021, that it was not likely to be the case that Mr Panazzolo could resume his previous duties at Don’s Auto, notwithstanding the medical certificates which had been provided by Mr Panazzolo. In this context, it is the effect of Mr Disciscio’s evidence that the business was not in a position to offer him light duties, particularly given he (Mr Panazzolo) did not have a current driver’s licence.
Due to comparative brevity of his employment with Don’s Auto, Mr Panazzolo did not have a great deal of accrued sick leave. It is his evidence that he exhausted his sick leave payments within about three weeks of sustaining his injury. Thereafter, he borrowed money from family and friends to support himself financially. In these circumstances, he was keen to return to work at Don’s Auto as soon as possible. He and Mrs Disciscio corresponded via text message in respect of the issue.
It is the effect of Mr Disciscio’s evidence that he and his wife were supportive of Mr Panazzolo following his injury and remained in contact with him with a view to assisting him return to work, when, from their perspective, it was both safe and he was physiologically able to cope with the inherent requirements of his position. In this context, Mr Panazzolo took part in the Don’s Auto Christmas party in late 2020 and a team building event.
Mr Panazzolo does not necessarily agree that the management of Don’s Auto were supportive of him returning to the workplace. Rather he asserts that Mr and Mrs Disciscio raised issues to do with his lack of a driver’s licence as a pretext to frustrate his return to work.
More significantly, he asserts that Don’s Auto were intent on making it impossible for him to return to work because of other issues to do with employment and in so doing ignored their obligation to make reasonable and temporary adjustments to its workplace to accommodate the sequelae of his wrist injury, which was its legal obligation under the DDA.
It is Mr Panazzolo’s evidence that he did everything in his power to obtain a medical clearance to enable him to return to work but the only certificates which the Royal Adelaide Hospital were prepared to provide to him were sick certificates which, from his perspective he did not need, and from Mrs Disciscio’s perspective did not address the concerns of Don’s Auto.
Dr Fidock’s letter of 30 November 2020 was provided to Mrs Disciscio by Ian Bushell, who is described as the Nurse Unit Manager of the out patients’ orthopaedic unit at the Royal Adelaide Hospital. Mrs Disciscio contacted him in an effort to seek clarification as to what was meant by the expression no heavy lifting.
In this context, she provided Mr Bushell with the MTA Job Dictionary, which consists of some 41 pages and wrote to him as follows:
As an employer we have a chain of responsibility to both Mark, other staff members and our customer. I have spoken [with] Safe Work SA, MTA and Fair Work and they are informing that with the document that you have provided me with Mark cannot return to work as his work consists of a lot of heavy lifting and loading.
I have enclosed a document detailing the duties of a Diesel Mechanic we ask if possible for the document to be completed correctly so we can determine if Mark is able to return to work job role after surgery etc.[12]
[12] See affidavit of Mr Disciscio filed 30 January 2023 at Annexure DD-22.
Mr Bushell replied in the following terms:
I showed the medical staff the Heavy Vehicle Job Dictionary and they randomly opened to page 3 and then flicked through to page 29 to see some photos requiring heavy lifting up to a capacity of approx. 25kgs, the medical staff reconfirmed no heavy lifting for 3 months from date of operation.
I accept that this does not seem to be a particularly considered response. If it is taken literally, the period of exclusion was scheduled to end on or about 20 January 2021.
From the perspective of Mr and Mrs Disciscio, who were relying on advice provided to them by their trade association, the information did not clarify the issue of whether Mr Panazzolo could or could not satisfy the physical requirements of the position of diesel mechanic as outlined in the MTA Job dictionary.
As previously indicated, it was Mr Disciscio’s personal view that it was likely to be the case that Mr Panazzolo lacked the prerequisite strength in his injured arm to acquit several aspects of the job. However, axiomatically, Mr Disciscio is not medically qualified and more significantly he had not had the opportunity to observe Mr Panazzolo perform any tasks, in the workshop setting post his injury.
In late December of 2020, Mr Panazzolo sent a text message to Mr Disciscio inquiring if he still had a job at Don’s Auto and indicating his view that his orthopaedic surgeon had cleared him to return to work. In this context he inquired whether he had a job or not. He further indicated that he was cashing in cans so [he] can eat.
In my assessment, the tone of the text correspondence is not particularly cordial with Mrs Disciscio indicating the dissatisfaction of Don’s Auto at the fact that, notwithstanding he had been absent from the workforce for three months, Mr Panazzolo still did not have a driver’s licence. Mrs Disciscio further indicated her intention to place the matter in the hands of the relevant trade association, whilst Mr Panazzolo indicated he would approach lawyers and legal aid.[13]
[13] See affidavit of Mr Panazzolo’s filed 29 November 2022 at MDP-03.
In this context, sometime in January of 2021,[14] Don’s Auto wrote to Mr Panazzolo, in reference to a meeting which had occurred on 11 January 2021, at which a discussion had taken place between Mrs Disciscio and Mr Panazzolo regarding a plan to return to work after three months away due to a personal matter that [took] place on 15 October 2020. In my view, it is a clear import of that letter that Don’s Auto did not necessarily consider that it was under any particular obligation towards Mr Panazzolo given the reason it attributes to his absence from work.
[14] The relevant letter is dated 1 January 2021 but all agree it was sent on or around 29 January 2021.
Given the circumstances, I can readily understand why this was so. The letter also indicated that Don’s Auto required one of Mr Panazzolo’s medical advisors to clear him for all duties and allowing you to return to normal job duties as a diesel mechanic. Necessarily, this proposal did not envisage any temporary or other adjustments being made to the position being made in association with any return to the workplace.
It was at this stage that the prospect of Mr Panazzolo being assessed, by one of his treating doctors, in terms of his capacity to discharge the various tasks of a diesel mechanic as set out in the MTA Job Dictionary, was raised with him by Don’s Auto.
Mr Panazzolo did indeed take the MTA Job Dictionary to Dr Dalrymple, in mid-January, who advised him that he would be only able to make an assessment in respect of its terms as applicable to Mr Panazzolo, if he attended at the relevant workplace. Mr Panazzolo could not afford to pay Dr Dalrymple the fee involved. Mr Panazzolo deposes that he sent a text message to Mrs Disciscio indicating that his surgeon had assessed him as fit to return to work.
Regrettably, it is my perception that during this period the parties became increasingly frustrated with the situation and this led to a hardening of attitudes. Mr and Mrs Disciscio were advised by the MTA that they were entitled to demand some form of positive functional assessment of Mr Panazzolo, involving a reference to the Job Dictionary and the tasks delineated therein, before they were obliged to accept Mr Panazzolo back in the workshop. From Mr Panazzolo’s perspective, he had done his best to obtain the all clear from his medical practitioners, each of whom had said he was fit to return to work, which accorded with his own impression of himself.
As a consequence, the parties exchanged more formal written correspondence with one another. On 29 January 2021, Mr Disciscio wrote to Mr Panazzolo requesting that he have his doctor, surgeon or physio complete a job dictionary in order to clear [him] to return to normal job duties as a diesel mechanic.
In the letter, Mr Disciscio raised his longstanding complaint that Mr Panazzolo still had not made any clear commitment to obtaining a driver’s licence, notwithstanding the fact that he had been away from work for the preceding three months. The import of the letter is that the onus was on Mr Panazzolo to obtain a clearance for him to return to work.[15]
[15] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-04.
Mr Panazzolo replied on 8 February 2021.[16] He advised that, in his view, he had been fit to return to work on 14 December 2020, when his last medical certificate had expired. In respect of the provision to him of the MTA Job Dictionary, he indicated his view that he was not legally obliged personally to provide such a detailed medical report. In this context, he indicated a willingness to attend any medical assessment which was arranged, for him, by Don’s Auto.
[16] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-06.
On 5 February 2021, Mr Panazzolo was able to arrange an appointment with an orthopaedic registrar at the Royal Adelaide Hospital, Dr Marcus Wong, who provided a brief report in the following terms:
Mr Panazzolo is three months post forearm surgery. He would be able to return to work at full capacity.[17]
[17] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-05.
The next thing of moment which occurred was that Mr and Mrs Disciscio, on the advice of the MTA, decided to engage a physiotherapist to undertake a functional capacity evaluation test of Mr Panazzolo. The evaluation was undertaken by Dierdre Leopardas and was completed on 23 February 2021. She examined Mr Panazzolo at her rooms but did not attend with him at the workshop of Don’s Auto. She was provided with a copy of the MTA Job Dictionary.
Ms Leopardas summarised the various physical tasks, required of Mr Panazzolo, in his role of a diesel mechanic at Don’s Auto in the following terms:
·Using a torque wrench, bilaterally for wheel nuts;
·Lifting rims with tyres, off the ground;
·Lifting brake drums (heaviest object) between ground and bench height;
·Using a sledgehammer to loosen suspension.
In conducting her assessment of Mr Panazzolo, Ms Leopardas subjected him to a number of tests, which included the following:
·A clinical evaluation involving an observation of the range of movements of his joints;
·Assessment of his cardiovascular fitness;
·Grip strength measured on a dynamometer;
·Static strength capacity;
·Dynamic lifting capacity;
·Functional range of movement.
Ms Leopardas also took a history from Mr Panazzolo, who reported to her that he had undertaken a home exercise program following his injury and resumed boxing training. Following the assessment process, he reported feeling fine with no soreness in the area of his injured wrist. However, 72 hours post assessment, he reported feeling tight and sore at the site of his surgical scar and his pronation of the limb to be greater than 90˚ in circumstances in which the normal range is 80˚.
No concerns were noted in respect of Mr Panazzolo’s cardiovascular fitness; his grip strength was reported as being asymptomatic and achieving a medium to heavy work level; functional posture tests were also within range, other than he reported mild pain at the extensor aspect of both wrists. Other muscle strength/endurance tests were within normal capacity, with no symptoms reported.
In respect of Mr Panazzolo’s grip strength, as indicated above, it was found to be in the medium heavy range in respect of both of his hands. The average of three dynamometer tests demonstrating a grip strength pre/post-test of 56.7/51 kg for the left hand and 48.6/52.5 kg for the right. It is a matter of controversy between the parties was tasks, in the MTA Job Dictionary require a heavy grip strength.
In respect of the various static strength tests conducted on Mr Panazzolo, Ms Leopardas found these to be at a higher range of capacity other than in respect of the dynamic lift and dynamic carry. In respect of the latter, Mr Panazzolo reported a tingling sensation in his injured wrist. As a consequence of these observations, she assessed Mr Panazzolo’s safe carrying capacity to be 22.7 kg on occasional basis – limited by symptoms at his left forearm.
In her report, in respect of the results of her assessment of Mr Panazzolo’s level of strength, Ms Leopardas reported of him as follows:
Demonstrated static strength to push, pull and lift was demonstrated between a heavy and very heavy work level, while bilateral hand strength (grip and key pinch) was demonstrated at a medium-heavy work level, with no loss in grip strength at post-test.
As a consequence of her assessment of him, Ms Leopardas opined as follows:
Based on clinical presentation and assessment results, there is a risk of aggravation. Mr Panazzolo is considered suitable to return to the role, in a restricted manner, and should:
•Avoid heavy sustained or repetitive gripping tasks, and only perform tasks requiring up to a medium-heavy hand strength.
•Have a carrying restriction of 22.7 kg on an occasional basis.
In addition, Ms Leopardas recommended that Mr Panazzolo attend physiotherapy for a further clinical assessment of the symptoms which he had reported in his wrists and, in this context, she made the following recommendation:
•He attend a further review of his functional capacity within a period of six to eight weeks or on the resolution of these symptoms and on the recommendation of his treating physiotherapist to determine his suitability to return to unrestricted duties at work.
In the context of Ms Leopardas’ recommendation, it is a significant issue between the parties that only one task, in the MTA Job Dictionary relevant to a diesel mechanic, requiring a carrying capacity of up to 25 kg, is that of replacing a clutch. It is the effect of Mr Panazzolo’s evidence that he would have been able to perform this aspect of the job either with the assistance of a staff member or by utilising a sack truck.
The parties have different views regarding the implications of Ms Leopardas’ report. From Mr Disciscio’s perspective, it precluded Mr Panazzolo’s return to the workshop because of the risk of aggravation of his injury given the recommendation that he (Mr Panazzolo) needed to avoid heavy and sustained or repetitive gripping tasks and should have a carrying restriction of 22.7kg, on an occasional basis.
In his trial affidavit, Mr Disciscio deposed as follows:
Upon reading the functional capacity evaluation test, I noted … under the heading titled conclusions and recommendations, there was a risk of aggravation to Mark upon his return to work. Further, Mark was only cleared to return to work in a restricted manner and it was advised that he should avoid heavy sustained or repetitive gripping tasks and only perform tasks requiring up to a medium-heavy hand strength and further, should have a carrying restriction of 22.7kg on an occasional basis.
Clearly the 22.7kg restriction is significantly less than the weight of the tools and equipment he was required to carry in his role as a diesel mechanic … Further… most of his tasks required sustained and repetitive gripping tasks and required medium-heavy hand strength.
Further, the functional capacity evaluation test recommended that Mark attend physiotherapy to assess and treat symptoms reported with his wrists and attend a further functional capacity assessment in 6 to 8 weeks to determine his suitability to return to work unrestricted.
Unfortunately, Mark was unable to be offered a role whereby he could be employed on a restricted basis or a light duties basis. There was no position available for him to attend to office duties, nor did Mark possess the skills for an office-based position.
The only light or restricted duties role we could have offered to Mark was to transport customers when their vehicle was being serviced or to pick up parts from sellers; however as Mark did not have his driver’s licence, despite having well over a year to obtain same and it being a condition of employment, we were unable to offer him this role.[18]
[18] See affidavit of Mr Disciscio filed 30 January 2023 at [69] – [73].
On the other hand, Mr Panazzolo took it that the report indicated that he could return to work and Ms Leopardas had made some modest recommendation to ensure his full recovery. In this context, in his trial affidavit, Mr Panazzolo deposed as follows:
Ms Leopardas identified some activities which she stated might aggravate my current injuries if I was required to perform them in my role but also stated that I was considered suitable to return to my role with some restrictions.
Ms Leopardas also made a few recommendations by way of follow-up treatment to ensure my recovery. This was mainly because I had not seen a physio since I was discharge from the care of the RAH back in November 2020.
I do not consider that the restrictions suggested by Ms Leopardas would have actually restricted me in any way at work, certainly not in any meaningful way because … those restrictions only applied to my left hand and I am right hand dominant.
I did not really require the use of both hands simultaneously to perform any of the duties I was required to perform at Don’s, nor did I need to do any left handed tasks that required repetitive or sustained gripping or significant left hand strength.[19]
[19] See affidavit of Mr Panazzolo filed 29 November 2022 at [74] – [77].
Axiomatically, the views expressed by Mr Panazzolo (and indeed those expressed by Mr Disciscio) are both subjective and predictive in nature given it is common ground between the parties that Mr Panazzolo never returned to workshop and so his level of incapacity or otherwise was not examined in situ.
As a consequence, Mr Panazzolo’s view that what he regarded as a largely resolved weakness in his left non-dominant hand was unlikely to impede his performance of the various tasks required of him, was never put to the test. Similarly, Mr Disciscio’s countervailing view that this level of weakness would impact upon his capacity to do the job in question was also not subject to any level of workplace scrutiny. It is this issue which must be unpacked within the parameter provided by the Disability Discrimination Act.
Regrettably, it is the case that the parties themselves lacked any facility to resolve the controversies arising between them in respect of their differing interpretations of what Ms Leopardas had recommended. Once again they engaged in formal correspondence.
On 5 March 2021, Mr Disciscio wrote to Mr Panazzolo in reference to Ms Leopardas indicating his view that it was best that Mr Panazzolo continue with physiotherapy and return for another test at your cost.[20]It would seem to me that this would have been an appropriate time for any offer, by Don’s Auto, to pay for physiotherapy to have been made.
[20] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-08.
On 9 March 2021, Mr Disciscio wrote to Mr Panazzolo in the following terms:
[Ms Leopardas], had outlined that there is a risk of aggravation to your current injuries. Based on this, Mr Leopardas has further outlined and recommended in the Function Capacity Evaluation Report (the Report) that you are considered suitable to return to the role in a restricted manner. The Report further outlines that it is recommended that you follow up with your GP and to continue with Physiotherapy to treat and assess the injuries.
Based on what is outlined in [the Report] and the risk of further aggravation occurring to your non-work related injuries, Don’s is still unable to have you return to work in your current restricted capacity with the injuries in which you presented to the Physiotherapist on 23 February 2021.
For Don’s to consider and approve your return to work as a Mechanic at Don’s Auto and Diesel Centre it is requested that you attend and comply with the Registered Physiotherapist Recommendations … outlined below for your convenience.
•Follow up with your GP (doctor) for a management plan;
•Attend physiotherapy to assess and treat the symptoms in your wrists;
•Attend upon [Ms Leopardas] for a review of your functional capacity in 6-8 weeks to determine suitability to return to unrestricted duties at work.[21]
[21] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-09.
In this context, Mr Disciscio further advised that, as Mr Panazzolo’s injury had occurred outside of working hours, Don’s Auto would not assist him with the expense involved in him (Mr Panazzolo) firstly consulting his doctor for referral to a physiotherapy and secondly the cost of the costs of any such physiotherapy.[22] This statement is strikingly at odds with more recent aspects of Mr Disciscio’s oral evidence.
[22] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-09.
It is the effect of Mr Panazzolo’s evidence that he did not have the financial resources to do what Mr Disciscio requested, even if he had agreed with his interpretation of Ms Leopardas’ report. From his perspective, he was caught in a Catch 22 – the only way he could afford to pay for physiotherapy treatment was if he returned to work and he could not return to work without physiotherapy.
In these circumstances, Mr Panazzolo elected to consult his current solicitor, Mr Bourne, who wrote to Don’s Auto, on 1 April 2021, advising the firm that it was his opinion that Don’s Auto were under a legal obligation to accommodate Mr Panazzolo’s disabilities pursuant to the provisions of the DDA.[23]
[23] See affidavit of Mr Panazzolo filed 29 November 2022 at Annexure MDP-10.
In this context, Mr Bourne made reference to the MTA Job Dictionary and Ms Leopardas’ report and indicated his view that the only one of Mr Panazzolo’s duties, which appeared to be impacted by Ms Leopardas’ assessment of his disability, was the carrying inherent in replacing a clutch. Mr Bourne further indicated his view that the Job Dictionary did not detail any task requiring heavy sustained or repetitive gripping. Rather the relevant tasks entailed medium heavy hand strength, which Mr Panazzolo retained.
In these circumstances, Mr Bourne requested Don’s Auto consider a return to work for Mr Panazzolo on the basis that Dr Wong had assessed him as being able to return to work at full capacity from 5 February 2021. However, this was unacceptable to the respondent, who responded to Mr Bourne’s letter, via a representative of the MTA, on 12 April 2021.
In this letter, it was asserted that Dr Wong’s opinion could be reconciled with that of Ms Leopardas and given her expertise the latter’s view should be preferred. The letter reiterated the respondent’s insistence that Mr Panazzolo provide it with a full medical clearance before returning to work.
The letter, in question, asserted as follows:
As your client’s injury was not one in connection with work, there is no obligation on the employer to provide suitable light duties and as such, it is entirely within their rights to require a full clearance before they return to work. In addition, as your client’s role is that of a heavy vehicle mechanic, we strongly disagree with any claim that the need to avoid heavy or repetitive gripping tasks is not a major issue. Your client’s role necessitates frequent gripping of heavy items and tools and any inability to do so would have a substantial impact on his role. Your client’s role also necessitates the occasional carrying of heavy objects so any carrying restrictions would also have to be carefully observed.
Our member maintains that prior to your client’s absences from work there were numerous instances where your client had failed to appropriately tighten bolts and items in customer vehicles resulting in numerous significant safety issues. Your client was well aware of these issues and was being performance managed on this.
These repeated issues were subsequently determined to be as a result of your clients issues with gripping and this is clear evidence that your client’s inability to undertake heavy or repetitive gripping tasks is not merely a minor restriction but a significant safety issue.[24]
[24] See Exhibit A.
Again, in my view, this was an appropriate point at which it may conceivably have been possible for the parties to have engaged in some calm discussions about the import of Ms Leopardas’ report and what it meant in the context of a potential action pursuant to the DDA. In particular, if there had been any formal offer forthcoming from Don’s Auto to break the impasse between the parties, in the form of an offer to pay for the costs of Mr Panazzolo attending on a physiotherapist as envisaged by Ms Leopardas, this would have been an opportune time to either make such an offer or recapitulate it.
In response, Mr Bourne asserted that the respondent had misconceived its responsibilities under the DDA and any issue regarding pre-injury performance did not abrogate its obligation to make reasonable adjustments to accommodate Mr Panazzolo’s return to work. In addition, Mr Bourne took issue with the assertion that Ms Leopardas’ assessment had identified tasks within the MTA Job Dictionary which exceeded Mr Panazzolo’s grip strength as she had assess it.
It is Mr Panazzolo’s case that he had done all that he could think of to satisfy the demands of Don’s Auto regarding the provision of a full medical clearance and personally had no funds to secure such a thing. As a consequence of what he characterises as a stalemate, on 4 August 2021 he formally resigned from Don’s Auto on the basis that he had no alternative given his financial situation, which necessitated him applying for social security benefits, which were not available to him because of the notional availability of employment at Don’s Auto.
It was in this context that Mr Panazzolo made a complaint of disability discrimination to the Australian Human Rights Commission on 17 June 2021. This complaint was terminated by the Commissioner, on 12 August 2021, pursuant to the provisions of section 46PH(1B)(b) of the Australian Human Rights Commission Act 1986 (Cth)[25] on the basis that it could not reasonably be conciliated. In these circumstances, Mr Panazzolo commenced the current proceedings on 24 September 2021.
[25] Hereinafter referred to as the AHRCA.
Mr Panazzolo remains unemployed and in receipt of social security payments in an amount of $624.43 per fortnight. It is his position that he faces a problematic economic future and has been significantly impacted both financially and psychologically by what he would characterise as the illegal discrimination of Don’s Auto against him on account of his disability.
THE APPLICANT’S CLAIM
In his application, supported by the written submissions of his counsel, Ms Sibree, Mr Panazzolo claims to have suffered direct discrimination, on account of a disability, at the hands of Don’s Auto, in contravention of section 5 of the DDA. The disability in question was the injury to his left wrist, from which he asserts he had subsequently recovered to such a degree that he was able to return to work.
Essentially, the discrimination to which Mr Panazzolo was subjected to was the effective refusal by Don’s Auto to allow him to return to the workplace on the basis of an injury which had been imputed to him.[26] The applicant claims he formally requested to return to work on 1 April 2021, when Mr Bourne wrote to Don’s Auto.
[26] See Application filed 24 September 2021 at [17.1] – [18].
It is his position that Ms Leopardas’ report, particularly in respect of issues to do with his grip strength, did not preclude his return to work, given the manner in which his duties were defined in the MTA Job Dictionary and how he had previously performed them in the workplace.
In tandem with this claim, Mr Panazzolo claims that Don’s Auto refused to make a number of reasonable adjustments, to the workplace and duties, which could have accommodated any restrictions arising from his wrist injury. The failure to provide him with these accommodations resulted in him being treated less favourably than an employer similar to him, without any such disability and constituted a further infringement of the DDA.
The various adjustments pleaded by Mr Panazzolo, in this context, are as follows:
·Enabling him to use mechanical aids already used in the workplace, such as sack trucks, which existed irrespective of Mr Panazzolo’s disability;
·He being able to call upon the assistance of other members of the mechanical team to help with any physical task, which would have been otherwise beyond him.[27]
[27] See Application filed 24 September 2021 at [19] – [20].
As a consequence of this alleged discrimination, Mr Panazzolo seeks an apology from Don’s Auto; compensation for the economic loss sustained by him in respect of lost wages for a period of approximately 12 months at the rate of $2,000.00 per week; non-economic loss stemming from being deprived of the sense of purpose entailed in having employment; damages for hurt, distress and humiliation.
The legislative basis for this aspect of his claim arises from section 46PO(4) of the AHRCA, which provides as follows:
(4)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;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
THE RESPONDENT’S REPLY
In its response filed on 1 December 2021, Don’s Auto seeks the dismissal of the claim on the basis that it has not breached any provisions, as pleaded, of the DDA. It asserts that, given the nature of his injury, Mr Panazzolo was unable to carry out the inherent requirements of his position in a safe manner.
In this context, it is Don Auto’s case that Ms Leopardas’ report does indicate that Mr Panazzolo had the capacity to undertake some aspects of his position, such capacity remained subject to significant restrictions and there remained a risk of his injury being aggravated in the workplace.[28]
[28] See Response filed 1 December 2021 at [3].
Accordingly the respondent contends that it was under a statutory obligation to take all reasonable steps to minimise/avoid such a risk of injury. Essentially, it is Don’s Auto view that it was an inherent requirement of Mr Panazzolo’s position that it be able to be undertaken in a safe manner and without risk of injury. In the circumstances of the case, it asserts that Mr Panazzolo could not satisfy this requirement, when he sought to return to work.
In these circumstances, Don’s Auto submits that it reasonably directed Mr Panazzolo to seek the further medical treatment, specified in Ms Leopardas’ report – namely physiotherapy on his wrist and a further functional assessment. Given Mr Panazzolo did not undertake such treatment, Don’s Auto was entitled to prohibit his return to the workplace.
In addition, the respondent asserts that there were no reasonable adjustments it could have made to allow Mr Panazzolo to carry out safely the inherent requirements of his role. Although it is not formally pleaded in the response, I take it that it is also the respondent’s position that it would represent an unjustifiable hardship for it to have to accommodate Mr Panazzolo’s return to its workshop in all the relevant circumstances [DDA section 21B].
In association with this position, in his closing submissions, Mr Belperio, counsel for Don’s Auto, submitted that the evidence led at hearing indicated that it was not reasonable or practicable for his client to offer Mr Panazzolo some form of alternative duties in the workplace given his lack of a driver’s licence and the absence of light duties. Essentially, there were no reasonable adjustments to be made or which could be made in the workshop.
LEGAL PROVISIONS RELATED TO DISABILITY DISCRIMINATION
Section 3 of the DDA sets out the objects of the Act, which include to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of work… The DDA is to be characterised as beneficial legislation. Elimination is a strong word.
As indicated above, the position of the respondent is that although Mr Panazzolo suffered a disability, it did not discriminate against him because of his disability as there was nothing it could have done reasonably to accommodate his disability given the nature of his disability, when the circumstances of its workshop is considered.
It further asserts that it would have resulted in it suffering a level of unjustifiable hardship if it was compelled to accommodate Mr Panazzolo’s disability chiefly because it asserts that he was unable to fulfil the inherent requirements of his job as a diesel mechanic because of the issues identified by Ms Leopardas with his wrist.
For his part, Mr Panazzolo has it otherwise. He contends that reasonable accommodation could have been made for him by Don’s Auto in its workshop, after his fractured wrist had been surgically repaired. As such, the thrust of his case is that Don’s Auto were subject to a positive duty to make some allowance, by reference to his disability, to allow him to return to the workshop, which it did not do. Rather casting the onus on him to seek out further medical treatment to satisfy its concerns.
As will be detailed further, this controversy focuses primarily on the operation of section 5(2) of the Act and the definition of inherent requirements contained in section 21A and the definition of reasonable adjustment in section 4.
Accordingly, the task for the court is to balance competing considerations and rights – those of the disabled and those who engage with them in many fields of human endeavour, including employment – within the context of a beneficial legislative matrix. Justice Mortimer (as her Honour then was) expressed the balance in the following terms:
The DDA, like other anti-discrimination legislation (whether state or federal), represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.[29]
[29] See Watts v Australian Postal Corporation [2014] FCA 370 at [12].
The court’s responsibility, in the current matter, is to determine where this balance falls given the evidence in the case namely whether Mr Panazzolo has suffered discrimination as a consequence of his treatment by Don’s Auto or on the other hand the fact that he was not permitted to return to the workshop is legislatively justifiable. In this context, section 15(2) of the Act renders it:
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:
(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.
Mr Panazzolo submits that he has suffered discrimination in accordance with the provisions of this section. Essentially, he contends that the refusal of Don’s Auto to allow him to return to the workshop denied him the benefits associated with his employment (placita (b)) and subjected him to a detriment (placita (d)). By necessary implication it would also appear to be his case that he was constructively dismissed and therefore placita (c) is also engaged.
Benefits in the context of the section includes not purely financial matter but issues which enhance and develop a person’s capacity and opportunity at work and which inculcate a sense of personal achievement and satisfaction for the individual concerned. This is the gist of Mr Panazzolo’s case. The effect of his evidence was that he felt a great sense of personal achievement when he was able to return to work as a diesel mechanic, after years out of the workforce and this was dashed when he was unable to return to work following the assault on his person.
In response, Don’s Auto submit that it is exempted from compliance with the DDA’s prohibition on discrimination in employment because any adjustment it could make would result in it suffering an unjustifiable hardship as defined by section 11 of the DDA.
The concept of discrimination pursuant to the DDA can take two forms – direct and indirect discrimination. Both are exhaustively defined by section 5 and section 6 of the Act respectively. This is a case concerned with direct discrimination only and the provisions of section 5.
Section 4 defines the concept of disability. It includes the following:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person’s body; or
(f)a disorder or malfunction that results in the person learning differently from a person without the disorder of malfunction; or
(g)a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
This definition is subject to a relevant proviso, namely:
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
This proviso was inserted into the Act by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)[30] and the rationale for its insertion, along with other significant amendments to the DDA, will be explained in more detail in due course.
[30] It is convenient to refer to this Act as the 2009 Disability Amendment Act.
It does not appear to be controversial that Mr Panazzolo suffered a disability following his assault in October of 2020. It resulted in him sustaining some loss of bodily function. The fact that he asserts that this loss of function largely resolved by early 2021 – a fact disputed by Don’s Auto – is not material given that the disability can have previously existed or be imputed.
Section 4 also provides a definition of employment. It includes part-time and temporary employment and relevantly in the current matter, work under a contract for services. There is no controversy that Mr Panazzolo was employed by Don’s Auto for the purpose of these proceedings.
As previously indicated, the claim in the current matter is one of direct discrimination based on section 5 of the DDA. The provision reads as follows:
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2)For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3)For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments
Firstly, as a consequence of the use of the word because in sub-section (1) there must be a causal connection between the disability asserted by the aggrieved person and the conduct complained of. Under section 5, the disability (less favourable treatment) must be a basis or reason for the conduct of the discriminator.[31]
[31] See Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [23].
Secondly, the basis of the definition of direct discrimination must rest on a notional comparison between the way in which the person with a disability has been treated (the aggrieved person) and the way in which another person without the disability would have been treated in in circumstances that are the same or not materially different.
In Sklavos v Australasian College of Dermatologists Bromberg J characterised the two issues raised by sections 5(1) as being the causation question and the comparator question. In respect of the second question, the issue arising is what form should the comparator take – who should it be?
The initial authority, in respect of how a court such as this one, is to formulate a comparator, without the disability to weigh against the treatment accorded to the person bringing a complaint of direct discrimination, in the same circumstances, pursuant to the provisions of section 5 of the DDA is Purvis v New South Wales (Department of Education & Training) (‘Purvis’).[32]
[32] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92.
In Purvis Gummow, Hayne and Heydon JJ (the majority) said as follows:
Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability "in circumstances that are the same or are not materially different". If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability. Section 5(1), therefore, requires equality of treatment between the disabled and those who are not. Attention is invited to how the discriminator "treats or would treat a person without the disability" (emphasis added). The "comparator" identified by s 5(1) is "a person without the disability".[33]
[33] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [213].
In Purvis the majority said as follows in respect of how courts are to approach the issue of causality:
… it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".[34]
[34] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [236].
The aggrieved person in Purvis was a secondary school student with brain damage. His disability manifested itself in violent and disruptive behaviour towards teachers and other students at the school which he attended. Ultimately his behaviour, stemming from his disability, resulted in him being excluded from the high school, operated by the New South Wales Department of Education, which he attended.
The question for the High Court in Purvis was, in dealing with the second aspect of section 5(1), what attributes should be ascribed to the required comparator for the purposes of determining whether direct discrimination had occurred. Was the comparator a person without the disability simpliciter or a person without the disability but who nonetheless was deemed to have behaved in a similar violent and disruptive fashion to the complainant?
The High Court determined that comparison required by section 5 of the DDA is not purely a formal one between a person with the disability and one without it. Section 5 requires a comparison between a person with the disability and one without it but the comparator must be taken to display the same behaviour and conduct as that exhibited by the disabled person.
Accordingly, how the comparator required for any given case is to be constructed must depend on the particular facts and circumstances of the case concerned. In Purvis, the comparison required by section 5(1) of the DAA was with a non-disabled student, who exhibited violent behaviour. The statute required a comparison with a student without the disability, but not a student without the disruptive behaviour, which had been part of the circumstances leading to the expulsion of the student in question.
In Purvis the majority indicated that the circumstances, referred to in section 5(1) are all of the objective circumstances surrounding how the disabled person has been or is intended to be treated. If there is less favourable treatment demonstrated the next issue is why that has occurred. The majority said as follows:
…where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.[35]
[35] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 at [224].
In summary, direct discrimination occurs where, because of a person’s disability, the discriminator treats that person less favourably than the discriminator would have treated a person without the disability, in circumstances that are the same or are not materially different. The comparison arising is not simply between the complainant and someone who does not have the disability concerned.
Rather, this comparison must be drawn between what the discriminator would have done in the same circumstances to a person without the disability, but whose circumstances are taken to include salient aspects of the aggrieved person’s conduct and situation. In Watts v Australian Postal Corporation (‘Watts’) Mortimer J provides a concise summary why it is necessary to engage a comparator in discrimination matters.
Its purpose is to facilitate the isolation of the reason why the person was treated as he or she was.[36]In this way, the court will be assisted to determine what is the real reason the aggrieved person was treated in the way he or she was and what was the effect of such treatment. This will facilitate the determination of whether such treatment was unlawfully discriminatory.
[36] See Watts v Australian Postal Corporation [2014] FCA 370 at [242].
It is to be noted that Purvis was decided prior to the amendments of the DDA occasioned by the 2009 Disability Amendment Act and in part as a response to it. This is significant as this amending legislation significantly recast the legislation creating section 5(2), which is the focus of the current matter before the court, along with providing added definitions.
In general terms, the current section 5(2) creates a positive obligation to accommodate a person with a disability, which was not apparent in its legislative precursor as interpreted in Purvis. In Sklavos v Australasian College of Dermatologists Bromberg J summarised the legislative rationale for the amendments in the following terms:
·It implemented a recommendation of the Productivity Commission that the DDA should be amended to clarify that there is a general duty to make reasonable adjustments, with the exception of adjustments that would cause unjustifiable hardship;
·Prior to the amendment, it had been thought that such a duty if adjustments were necessary to avoid discrimination subject to the defence of unjustifiable hardship;
·The proposed amendment removes this doubt by making explicit the duty to make reasonable adjustments, which are defined to exclude adjustments that would impose unjustifiable hardship. This will return the status of the law to the original intention when the DDA was introduced.[37]
[37] See Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 at [34].
In Sklavos it was also held, as with section 5(1), section 5(2) requires causation between the discriminatory act and the person’s disability as well as a comparison. Would the failure to make reasonable adjustments result in the comparative person being treated less favourably than the person with the disability.
The expression reasonable adjustment is defined in section 4 of the DDA. It means an adjustment made by a person, is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. In my view, this definition has a wide breadth. It includes all adjustments other than those which impose a hardship which is unjustifiable on the person required to implement it.
As Mortimer J observed in Watts the word adjustment is not defined in the DDA. Accordingly, it must be given its ordinary meaning as an alteration or modification. It is qualified only by the application of section 11, which defines unjustifiable hardship in the following terms:
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c)the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d) the availability of financial and other assistance to the first person;
(e) any relevant action plans given to the Commission under section 64.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
In Watts, Mortimer J went on to closely consider what was meant by the expression adjustment for the person. In this context, the crucial word is for. The required adjustment is not made to the position which the person seeking the benefit of the section occupies. Nor is made to the equipment, which that person operates.
Rather, it is an alteration or modification ‘for’ the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. Any such adjustment is to be enabling or facultative. In these circumstances, there is no call to construe adjustment in a way which might arbitrarily limit the types of alterations or modifications necessary to enable the disabled worker to perform his or her work.[38]
[38] See Watts v Australian Postal Corporation [2014] FCA 370 at [23].
In my view, this is a key passage, which I must apply to the evidence available in the current matter. Given Mr Panazzolo’s disability, it was for Don’s Auto to facilitate the necessary adjustments to enable him to return to his employment (provided such adjustments did not constitute an unjustifiable hardship for it).
The required adjustment is to be made for Mr Panazzolo. In this context, it is a theme of Mr Panazzolo’s case that no adjustments whatsoever were made for him by Don’s Auto. Rather the expectation was that he personally would adapt to his disability by seeking the physiotherapy recommended by Ms Leopardas, at his expense and, in effect, justify his return to the workforce, without any adjustments having been made.
As such both limbs of section 5(2)(a) are engaged – Don’s Auto neither made nor proposed to be made any adjustment to accommodate Mr Panazzolo’s return to work. In respect of the second limb, Mortimer J indicated that whether there was or was not a proposal to make an adjustment by the alleged discriminator was to be determined by reference to an objective judgement about the position taken by him or her.
Justice Mortimer also considered that the wording of section 5(2), when read with section 4 and the Act as a whole, did not necessitate the construction of the word adjustment in way which limited the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Rather:
[The] Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.[39]
[39] See Watts v Australian Postal Corporation [2014] FCA 370 at [24].
Given the breadth and flexibility inherent in how the issue of adjustment was to be considered in the context of varying circumstances of workplaces and disabilities, the key to the application of section 5(2) was practicality. Her Honour said as follows:
Section 5(2) as a whole must be construed in a way that allows it to operate in a practical way in the workplace, and in the educational and other settings with which the Act deals. Adjustments may be simple, but also complex. Not only complex because of technical or technological requirements, but also perhaps because of personnel and workplace requirements. Time may be needed to implement them. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but the implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator “proposes not to make” reasonable adjustments. The period of time during which it might be said, in a given factual situation, that a discriminator has acknowledged her or his legal obligation and is pursuing implementation cannot be fixed in advance. Invariably it will be fact dependent. Delay may, after a period, indicate lack of genuine recognition of the legal obligation and make available the inference that the discriminator’s position is that it “proposes not to make” the adjustment. On the other hand, delay may be accounted for by the unavailability, for example, of an adjustment where the adjustment is a practical, technological adjustment.[40]
[40] See Watts v Australian Postal Corporation [2014] FCA 370 at [32].
Again, this is at the heart of the submissions of Mr Panazzolo’s counsel, Ms Sibree, as I understand them. She submits that there were many practical ways in which the disability to Mr Panazzolo’s wrist could have been accommodated, namely he could have used a sack track to move heavy items or he could have sought assistance from other staff members.
Most significantly, he could have been given a go to come back to the workshop to see how he coped with the requirements of his position, given the certifications provided by his treating doctor. His complaint is that, from his perspective, nothing was done for him. Rather he was told what he had to do for himself.
In this context, he disputes any suggestion that he could not manage a power-operated hand tool to loosen or tighten bolts. It is his position that neither Ms Leopardas nor Mr Disciscio are in a position to ascertain what was the actual situation, in this regard, without making the accommodation of allowing him to return to the workshop to see how he coped, possibly under the direct supervision of Mr Disciscio. Such a trial, it is submitted would have been a reasonable adjustment.
That is not an end to the applicable legislative principles which are engaged in the case. The DDA does excuse discriminatory conduct, in the workplace, on the basis of discrimination, in a number of specified circumstances.
As previously indicated, these principles are a legislative response to the balance between the objects of the DDA to eliminate discrimination on the basis of disability and ensure disabled individuals have the same rights to equality as members of the community generally with other public interests, including those of employers.
It is the submission of Mr Belperio, counsel for Don’s Auto, that these circumstances are engaged in the current matter and thus excuse the actions of Don’s Auto in not permitting Mr Panazzolo to return to work. In the present matter, the relevant consideration were introduced by the provisions of the 2009 Disability Amendment Act, which introduced not only the concept of reasonable adjustments but redefined and sought to clarify exceptions relating to unjustifiable hardship and the inherent requirements of work. This was done by the creation of section 21B and section 21A(1) and (2) of the DDA.
In my view, Mr Disciscio interpreted Ms Leopardas somewhat opaque report in black and white terms, which to a large extent suited him, particularly given Mr Panazzolo’s continuing lack of a driver’s licence. In his evidence he confirmed his view that he was only obliged to accommodate Mr Panazzolo in the workshop, if he was 100 per cent fit.
In the absence of an unequivocal approval from Ms Leopardas vis-à-vis Mr Panazzolo being able to return to work, Mr Disciscio did not make any clear proposals to him as to what should happen in order that these restrictions could be met, in the workshop situation. As a consequence, it seems to me that Don’s Auto placed the burden upon Mr Panazzolo to establish, to its satisfaction, that he was no longer disabled. An outcome, in my view, which defeats the central objects of the DDA.
In this context, it seems to be that, obliquely at least, in his conduct and subsequent evidence, Mr Disciscio sought to rely upon the unjustifiable hardship provisions of the Act and his view that Mr Panazzolo could not acquit the inherent requirements of the position of diesel mechanic. Ms Sibree asked Mr Disciscio the following questions:
So there’s two parts to that question. The first is whether you could or you couldn’t accommodate them, and I think you’ve given some evidence about that, saying, “No, I couldn’t accommodate these,” but the second part of the question is was it your understanding that you were required to accommodate Mr Panazzolo’s restrictions?---Okay. When you say “accommodate”, are you meaning accommodate his work? Because with this whole build-up of what’s happening here, the last time that we sat with Mr Panazzolo, he collected his toolbox. As far as I’m aware, he had a meeting with Patricia and they exchanged – when I say “exchanged words”, they talk. They spoke about the licensing and – and, “You need to get physio,” and so forth, and at – he was obviously struggling for money and stuff like that, and it was spoken of that we could assist him in getting physio, so he could come back to work. So in accommodating him to get – to come back to work – yes, we did. Okay. With the structure of the business, it put a hole in my business, so I restructured my business so I could carry on doing the work that I had coming through.
Okay. So can I just confirm, at the time that you got Ms Leopardas’ report – we’re talking February [2021]. That’s the physio report?---That’s the physio’s report. Yes.
The time you got that, it was your understanding that you weren’t required to have Mr Panazzolo back until he was cleared as being totally unrestricted. In fact, that’s what you said to him, “You can’t come back until you’re totally unrestricted”?---In – in the – in the affidavits, yes.[55]
[55] See Transcript at pages 101 – 102.
In the context of the definition contained in section 21A, the apparent offer to pay for Mr Panazzolo to attend physiotherapy was a significant matter. It could be potentially construed as some form of adjustment to accommodate Mr Panazzolo’s ultimate return to the workplace. As previously noted, the offer does not appear in any of the formal correspondence passing between the parties and neither Mr Panazzolo nor Mr Disciscio alludes to it in their respective affidavits.
In my mind the issue was relevant to how the controversy surrounding Ms Leopardas’ opinion and recommendations could be resolved by some form of compromise between the parties – that is a more delayed return to the workplace than would have been preferable to Mr Panazzolo in the context of him allaying some of the apparent concerns of Mr Disciscio regarding the intensity of the work involved by engaging in physiotherapy.
In her cross-examination of him, Ms Sibree further explored this issue, particularly whether there had or had not been an offer to pay for physiotherapy and what other options existed to clarify how Ms Leopardas’ report could be implemented. The exchange is a lengthy one and is as follows:
MS SIBREE: You accept that at no time have you offered to pay for any physiotherapy treatment for Mr Panazzolo?---The last time we had a meeting, Patricia and Mark sat down and spoke. This is when he came and picked his toolbox up, because he had to do some work at home. We offered him, “If you need help with payment, okay, we can pay for it, and then we can work it off when you come back to work,” with paying back the – the physios and stuff like that. That was the last meeting that I was informed of.
Okay. You don’t mention anything about that in your affidavit, do you?---I don’t think so.
Okay. So the first time you’re telling us about that is here in your evidence today?---Probably, yes.
Yes?---And I – and I did actually – I – it was mentioned this morning when I spoke to my wife and so forth.
Okay?---Yes.
And you agree that you didn’t offer to pay for a further functional capacity report from Ms Leopardas. It was your position that Mr Panazzolo had to pay for that himself?---No. We paid for that.
The first one, yes?---Mmm.
But the second one that she had recommended for six to eight weeks – you said, “That’s a matter for you”?---If that’s what has been stipulated in the affidavit, then that’s what has been said.
Yes. Okay. And you didn’t, for example, arrange a worksite assessment for someone like Ms Leopardas to come to the worksite and actually look at what tasks Mr Panazzolo was required to do?---Well, that’s what I thought that the physiotherapist was going to do, and come to the workshop. I mean, in the past, when we’ve had issues, we’ve had WorkCover come out and they’ve had the – my employee carry out tasks. They would take photos and say, “Yes, he’s right to go. He’s good.”
Yes?---And that’s it, as opposed to this.
But you agree that that was one of the options that was available to you. You could have got her to come out and do something like that?---I didn’t – no. I did not know any of that option. I – I didn’t – this is the first time that a medical – I’ve had to do a medical assessment and so forth. So I – I don’t know the practice or – or the – the criteria or the formalities of what they do with – with a medical – what we call medical. It’s a physio assessment and so forth.
Okay. Because it would have been helpful to have that done, wouldn’t it? We would all be in a much clearer position today - - -?---Absolutely.
- - - if we knew exactly what she meant by these restrictions and exactly what tasks engaged them; do you agree with that?---Yes.
Yes.
HIS HONOUR: And how Mark would have gone with it?---Well, I think, somewhere in here – I’m not – your Honour, somewhere in here, I think, it states the 72 hours after he had done his assessment, he was having tingling up problems and so forth and, look, you know - - -
Anyway - - -?---How would he have gone? I don’t know.
That’s the thing, isn’t it?---Yes. You know, that’s – so, you know, all – I get a report. He has done it. There were a couple of issues that we were told that – late, and then he was going to go back the next day and never went back the next day – whatever the case may be. There’s a mention that he has got, you know, six to eight weeks of physio. I believe if he did the six to eight weeks, yes, physio, okay, he still would be in the job today, okay, without all this costs and so forth. I mean, yes.
MS SIBREE: Okay?---That’s my point of view.
And the other thing that you didn’t do, that I suggest you could have done, was just to have Mark come back to the worksite and just see how he went with the jobs?---There’s too much of a risk to do that. There’s a risk of him hurting himself. There’s a risk of his helper getting hurt. There’s a risk that the buses that carry children to and from – if things weren’t getting done properly. I can’t – I’m – I don’t want to liable for – for – for lives.
Sure?---Okay.
You - - -?---That’s – you know, we – we’ve brought somebody back prematurely without carrying out physios, you know, and is that negligent on my behalf? I don’t want to be – I don’t want to be responsible for that.
Of course. You accept, though, that that’s pretty much what you did with your own injury? You came back, possibly, before you should have?---I’m not going to sue – I’m not going to sue myself.
But your position was certainly that Mr Panazzolo had to be fully recovered and fully unrestricted before he was able to come back to work?---He needed to be fit to do his job.
So in other words, you weren’t prepared to allow him back until he no longer had any type of disability?---I wasn’t prepared to bring him back unless I had a report stating that he was fit to come back from a medical physician.
Okay. Thank you. I have no other questions.[56]
[56] See Transcript at pages 102 – 104.
On balance, it seems to me to be improbable that any such offer was made to Mr Panazzolo in respect of physiotherapy. In my view, the statement that, if Mr Panazzolo had undertaken the physiotherapy, he would still be in a job today, has the flavour of a recent self-serving rationalisation made by Mr Disciscio. I doubt that any such offer was ever made.
In these circumstances, it seems more likely that the import of all the discussions, which occurred between the parties, was that Mr Panazzolo would not be returning to the workshop until he produced a medical report which satisfied Mr Disciscio. His return was never formally posited on the basis of him undergoing physiotherapy at the expense of Don’s Auto.
If such an offer had been made, the obvious point to make it would have been in the formal correspondence, which passed between the parties after the release of the report, particularly in the context of the formal exchanges regarding the application of the DDA. In addition, any prospect of an occupational therapist assessing Mr Panazzolo, in situ, whilst at work, which apparently was something which occurred in respect of worker’s compensation claims was not proposed presumably because of the expense.
As such, following the release of Ms Leopardas’ report, it seems clear that Don’s Auto had no proposals as to how the workplace could be adjusted to accommodate Mr Panazzolo’s return to it, whilst its perception was that he suffered any degree of disability whatsoever, notwithstanding what had been asserted in his treating medical reports.
As with other aspects of the DDA as a whole, section 11 envisages a process of balancing the interests of disabled individuals, on the one hand, with the interests of the community which must engage with such individuals. As indicated above it is very much to be regarded as a process of cost/benefit analysis.
In this context, I accept that the loss of his on-going employment, from January 2021 onwards, was a very significant detriment, in both financial and psychological terms for Mr Panazzolo. In his evidence, Mr Disciscio indicated that the absence of Mr Panazzolo from the business had resulted in him having to restructure to work around his absence.
I have not been provided with any evidence regarding what this cost Don’s Auto in actual terms. Accordingly, it is difficult to quantify the nature of any detriment, which would have been incurred by Don’s Auto. I accept, as is obvious from the evidence available, that Don’s Auto is a small operation and given its limited payroll any process of adjustment must have some level of financial implications for it. I also accept that no relevant financial assistance was available to it.
Most significantly of all, in this context, it is apparent from Ms Leopardas’ report that she regarded the disability suffered by Mr Panazzolo as being temporary in nature and not of such a degree as to bar him from returning to the workplace on any indefinite basis. Essentially, her report envisages the making of adjustments, for Mr Panazzolo to enable his return to the workplace. Indeed she suggested some adjustments, which would be subject to a later review.
In these circumstances, the central issue turns on Mr Disciscio’s assertion, summarised in the above quoted passage of his oral evidence that he was of the view that Mr Panazzolo was incapable of carrying out the inherent requirements of his former job safely. This arises particularly in the context of the safety of school buses.
I am concerned that Mr Disciscio’s anxieties in this regard are largely subjective in nature. He is unable to elucidate upon them from any personal exposure to Mr Panazzolo’s post injury capacity in the workshop in the context of him (Mr Panazzolo) tightening or failing to tighten bolts. It is conjecture, on his part, that Mr Panazzolo would do so defectively or would fail to ask for assistance, if necessary.
In addition, it is not asserted that in any incident of Mr Panazzolo’s past work at Don’s Auto, the quality of Mr Panazzolo’s work had put any clients of the business at actual risk. In my view, the same considerations apply to the assertion that Mr Panazzolo could have posed a risk to the safety of other employees of the business, if he had returned to it in 2021.
In addition, it is unclear to me from Mr Disciscio’s evidence how much of Mr Panazzolo’s job was taken up with activities that had a heavy lifting and a strong grip component. In this context, it is far from clear to me what would be the actual implications of Mr Panazzolo having to ask for help or indeed whether he would actually need help in this regard given his own assessment of his capacity, which I concede may also be influenced by his own subjective biases.
Again, in my view, Mr Disciscio’s assertion that he did not believe Mr Panazzolo could acquit these tasks safely is a matter of conjecture on his part and was not subject to any empirical test in the actual workplace, after the release of Ms Leopardas’ report or in the six months, which ensued until Mr Panazzolo resigned from the business, in what he would describe as a vacuum in communications from Don’s Auto, who essentially ignored him.
Prior to his injury, although he had been subject to performance review and there was a growing level of disquiet regarding his continued lack of a driver’s licence, it is self-apparent, in my view, that Mr Panazzolo could discharge the inherent requirements of the position of diesel mechanic at Don’s Auto.
This must follow given that his employment had not been terminated and prior to Christmas 2020 he had been invited to both the staff party and a team building event. Both of these are indicative of a view that it was envisaged that he had some capacity to return to the workshop at some stage in the future.
In all these circumstances, in the absence of any actual evidence regarding the tangibility of the risk to children and other members of the workplace, I do not believe that there is sufficient evidence for me to make a finding that Mr Panazzolo was incapable of carrying out the inherent requirements of his previous job in early 2021.
Accordingly, in my view, the gravamen of the claim turns on the application of section 5(2) of the Act and whether the failure of Don’s Auto to make reasonable adjustments has resulted in Mr Panazzolo being treated less favourably than a person without his disability, in the relevant period commencing in the early part of 2021.
CONSIDERATION
As Bromberg J pointed out in Sklavos (supra) the purpose of the 2009 amendments to the DDA was to create a general duty to make reasonable adjustments to avoid discrimination on the basis of disability, save and except for adjustments which would cause unjustifiable hardship.
In my view, this must be the starting point in the current matter. There can be no doubt that following the assault on him, in October of 2020, Mr Panazzolo was suffering a disability falling within the exhaustive definition provided by section 4 of the Act.
Accordingly, notwithstanding the fact that this injury occurred in a situation unrelated to his employment, as a consequence of the then existing employment relationship between Mr Panazzolo and Don’s Auto, the latter was subject to the legal obligation not to discriminate against the former on the basis of such disability and, as a corollary of such obligation was required to make or propose to make reasonable adjustments to its workplace to prevent any discrimination occurring.
At this point, it is necessary to undertake a theoretical comparison to ascertain whether Mr Panazzolo was less favourably treated, by Don’s Auto, on account of his disability, by reference to another person, who did not have Mr Panazzolo’s disability, in circumstances that are not materially different.
In my view, the less favourable treatment to which Mr Panazzolo was treated can be summarised in the following way. For reasons which are not attributable to him directly, he suffered an injury requiring wrist surgery, which prevented him from working due to unforeseen sickness. This injury was not compensable under worker’s compensation insurer and due to his lack of accrued sick leave resulted in him being unremunerated for periods covered by sickness certificate.
On submitting a certificate indicating a recovery, Mr Panazzolo was not permitted to return to the workplace and could not resume his employment. He asserts that this was his less favourable treatment. In these circumstances, in my view, it is both difficult and somewhat artificial to assemble a theoretical comparator, without the disability, in circumstances which are not materially difficult.
As Mortimer J pointed out in Watts (supra) the legislative rationale for such a comparison, is to assist in the court being able to determine the real reason the complainant concerned was treated in the way in which he or she was and ascertain its degree of connection to the relevant disability. Essentially, was a person treated in less advantageous manner than a similar person because of the disability?
In hypothetical terms, it seems to me, a suitable comparator can be constructed as follows:
·a person with similar employment attributes to Mr Panazzolo, such as not being regarded as the most ideal employee and one who had not lived up to expectations in terms of obtaining a driver’s licence, but who was a qualified diesel mechanic, in an economic situation in which such individuals were at a premium in the industry;
·who had been forced to take unscheduled leave for an extended period due to a reason unrelated to employment – such as carer’s leave;
·who did however indicate an on-going commitment to the relevant position by attending the staff Christmas party and the team building event, whilst absent from the workplace;
·who, at the conclusion of the extended leave, indicated an ability to return to the workplace and a willingness and desire to do so.
I concede that such a comparison is simplistic but, in my view, such a person is likely to have been welcomed back to the workplace, particularly given the issues relating to short supply of diesel mechanics in the industry in Adelaide, notwithstanding the employer’s perception regarding such an individual’s shortcomings as an employee. In these circumstances, in my view, in the current matter, it is the case that the fact Mr Panazzolo was not so welcomed back, must be attributable to the perception of Don’s Auto regarding to his disability.
In addition, in my view, it is possible to tweak the theoretical comparator, in an attempt to throw further illumination on to the operative reason why Mr Panazzolo was less favourably treated by positing a person who was absent from the workforce for three months due to contracting an illness such as glandular fever but who, after this period, submitted a medical certificate, from a treating doctor, indicating full recovery.
Again, in my view, such a person is likely to have been welcomed back to the workplace promptly following the provision of the certificate in question. In the present case, Mr Panazzolo did present a number of medical certificates, which indicated a prima facie capacity to reengage in the workplace. These were not accepted by Don’s Auto and were, in effect, ignored by it.
Another comparator, which in my view, is also illustrative, is a person who injured his wrist at work to a similar degree to that suffered by Mr Panazzolo. Clearly, given the provenance of the injury, the legal context is quite different to the current matter. However, in my view, such an individual would not have been subject to the same impediments in respect of returning to work as were placed on Mr Panazzolo, who, from his perspective, was compelled to establish a fitness to return to work, whilst not being in receipt of an income.
The essential difference being that in the worker’s compensation scenario, the employer concerned had obligations to facilitate a return to work. As such, the employer would have taken a proactive role in respect of assisting such an employer to return to work. In the present matter, the employer concerned cannot be regarded as being proactive but rather was passively resistant to Mr Panazzolo resuming his employment. Again, in my assessment, this approach must be connected to its view of his disability.
In all these circumstances, I find that Mr Panazzolo was subject to less favourable treatment on account of his disability in the sense that he was not able to return to his work. As a consequence of this finding, it is now necessary to turn to the issue of reasonable adjustments and whether any such adjustments were either made or proposed to be made.
As indicated above, I accept that the commissioning of Ms Leopardas to prepare a functional capacity test, can be regarded as a form of reasonable adjustment. Certainly, at the very least, it is to be regarded as a precursor to the making of any such adjustments. In this context, it is noteworthy that Ms Leopardas did indicate that Mr Panazzolo was able to return to the workplace subject to some restrictions and then a further evaluation.
Accordingly, in my view, what is striking is that the report itself proposed some form of adjustments being made to the workplace in order to accommodate Mr Panazzolo’s disability. In addition, in my view, the fact that a further evaluation was thought to be warranted, in six to eight weeks’ time, is indicative of the fact that the disability in question was to be regarded as temporary in nature and resolving. It is also significant that Ms Leopardas did not indicate that Mr Panazzolo had no carrying capacity or grip strength, rather her tests revealed these functions to be somewhat reduced.
In this context, it now necessary to consider what kinds of modifications or alterations might have been utilised to enable Mr Panazzolo to return to perform his work. As Mortimer J observed in Watts (supra) these word must be accorded breadth and flexibility in their application to the DDA, given the legislative intention of the Act. Significantly they also have a temporal aspect. Essentially proposal to make adjustments need to be made and sufficient time assigned to allow them to have the desired effect, namely the equal treatment of disabled individuals with others.
In this context, it is necessary to consider the nature of Mr Panazzolo’s disability. The medical material available to him, albeit not accepted by Mr Disciscio, indicated that he could return to work. This was consistent with Ms Leopardas’ assessment. In these circumstances, it seems to me fairly modest modifications and alterations were needed to facilitate Mr Panazzolo’s return to the workplace, which can be summarised as follows:
·Most significantly, a staged return to the workplace to see how he coped with it and some of the tasks which required particularly heavy carrying and more the moderate gripping strength;
·This was important given Mr Panazzolo’s view that he was back to where he had been physically prior to his injury and this view was not specifically rebutted by his treating doctors;
·In this context, obvious adjustments included allowing him to use sack trucks and call for assistance;
·In tandem with such a return to work, it would have been open to arrange a functional capacity assessment based on how Mr Panazzolo actually engaged with his duties in the workplace itself;
·Formally make available physiotherapy to Mr Panazzolo.
In my view, these would have been reasonable adjustments given the circumstances arising in this case. They would have involved a greater degree of proactivity, on the part of Don’s Auto, than actually occurred. Rather, in early 2021, the attitude adopted by Don’s Auto was that Mr Panazzolo had to establish to its complete satisfaction that he had no discernible disability whatsoever before it would permit him to return to work.
Having established that Don’s Auto failed to make any necessary alterations to the workplace or make appropriate proposals in this regard, it falls to consider whether the imposition of such adjustments constitutes the imposition of an unjustifiable hardship on the employer. The onus being on Don’s Auto to establish such a level of hardship.
As previously indicated, how the court determines the application of the concept of unjustifiable hardship, in the context of disability, is by reference to the definition contained in section 11 of the Act. It is an exercise requiring the balance of competing interests – the concerns of a disabled person, with those of an employer.
In this context, the size of the business concerned is a relevant consideration. What is feasible for a large corporation – Toll Group say, a multinational trucking company, operating a fleet of truck throughout Australia – may not be feasible for a mum and dad automotive repair shop, operating out of a single rented outlet in an Australian suburb. I accept that Don’s Auto is a small business, although I have not been provided with details of its turnover or payroll.
I also accept that, from Mr Panazzolo’s perspective, the loss of the ability to work and support himself financially, particularly after being out of the workforce for a lengthy period of time by reason of a disability which was unforeseen on his part and which he asserts had largely resolved, was a significant detriment indeed.
More relevantly, I accept that the adjustments proposed above cannot be considered to be cost free and the absence of Mr Panazzolo from the workshop had put a hole in Don’s Auto business. Necessarily, the return of Mr Panazzolo to work would constitute some form of hardship for Don’s Auto. The issue is whether, given the overall objectives of the DDA, such a hardship can be characterised as unjustifiable.
In my view, given the contents of Ms Leopardas’ report; the fact that Mr Panazzolo had prior experience in the workplace and retained a significant level of capacity; and the fact that his level of disability, if it still existed, was resolving or capable of resolving within the relative short term; the adjustments proposed cannot be characterised as ones of such moment as to be unjustifiable, notwithstanding the limited nature of the business of Don’s Auto.
Accordingly, I find that Don’s Auto has not discharged the onus upon it of establishing that the necessary alterations and modifications, which were available to it, to accommodate Mr Panazzolo’s return to work, constituted an unjustifiable hardship for it in their implementation. Essentially, they were limited in nature and not likely to be hugely expensive over a protracted period of time.
The next issue arising has to some extent already been addressed, namely whether in early 2021 the evidence supports Mr Disciscio’s assertion that Mr Panazzolo was incapable of carrying out the inherent requirements of the position of a diesel mechanic. As I have already alluded, each of the parties has taken a subjective approach to the issue.
In my view, the only definitive way to determine whose view is the more valid would have been to allow Mr Panazzolo to return to the workplace to see how he coped, which is essentially what Ms Leopardas suggested. Certainly, it would seem to me to be the case that Mr Panazzolo could effectively manage the majority of the tasks delineated in the MTA Job Dictionary.
In this context, the final issue to be addressed concerns the issue of safety, it being Mr Disciscio’s position that Mr Panazzolo could not perform his duties, as a diesel mechanic, in a way which was safe to him (Mr Panazzolo); his work mates; and members of the public who utilised vehicles on which he had worked. This involves an assessment of the degree of risk and whether it is of such a level that it cannot be countenanced, notwithstanding the fact that other alterations have been made to the workplace concerned.
In her report, Ms Leopardas conceded that there was a risk of Mr Panazzolo aggravating the injury to his wrist. In this regard she proposed some restrictions to manage this risk. She did not indicate that he could not return to the workplace. In addition, I do not consider that the degree of risk to the community and to other workers, which is based on Mr Disciscio’s subjective view, is such that it can be said that Mr Panazzolo, given his past experience and qualifications, could not carry out the inherent requirements of his job as a diesel mechanic in the early part of 2021.
It must follow from this analysis that the finding of the court is that Don’s Auto has illegally discriminated against Mr Panazzolo on the basis of his disability. The next issue is to assess the compensation to which he is entitled to as a consequence of this discrimination pursuant to the provision of 46PO(4) of the AHRCA.
DAMAGES
Pursuant to section 46PO(4)(d) of the AHRC Act the court is authorised to order Don’s Auto to pay Mr Panazzolo an amount of compensation “for any loss or damage suffered” suffered by him because of Don’s Auto’s conduct. It is clearly not the role of compensation to punish any one, associated with Don’s Auto, in any way, for their conduct. The purpose of damages is restorative.
In Qantas Airways Ltd v Gama, the Full Court of the Federal Court (French and Jacobson JJ) said as follows of the statutory task contained in the section:
The damages which can be awarded under s 46PO(4) ... are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory.[57]
[57] See Qantas Airways Ltd v Gama [2008] FCAFC 69 at [94].
As I have already observed, the principles contained in the DDA are not without their legal complexities and their interpretation and application may prove challenging to a lay person. In the current matter, Mr Panazzolo became injured, outside of working hours, in circumstances for which Don’s Auto can have no responsibility.
However, for the reasons I have provided, I am satisfied that he did become disabled, within the definition provided by the DDA and thus its beneficial provisions had application in respect of the employer/employee relationship between Mr Panazzolo and Don’s Auto, which existed at the time his disability occurred. It is regrettable that the case could not have been resolved without litigation. However, I can understand why this was so. Clearly, in my view, this is not a case requiring any exemplary imposition of damages.
Accordingly, in my view, two heads of damages arise – special damages, covering economic loss and general damages for the hurt, distress and injury to feelings. The process of assessing damages, in a discrimination case, is a difficult one. Damages for such things as hurt, distress and humiliation are not susceptible to mathematical calculation.[58]However, such matters cannot be ignored by the court because of such difficulty.
[58] See Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256.
Mr Panazzolo has deposed that he has been consulting a psychologist but has not provided any expert evidence in this regard. His evidence is that feels less happy than [he] used to do and feels a loss of motivation in his life as a consequence of not being a diesel mechanic at Don’s Auto. In this regard, he deposed that he loved his job as it gave [him] purpose. He further deposed that he enjoyed being in a work team with colleagues.
It is not possible to calculate general damages by reference to some mathematical formulation and it would be extremely artificial to do so. In addition, reference to previous cases, is not always helpful. Rather, regard must be had to the general standards prevailing in the community whilst bearing in mind that it is impossible precisely to translate pain and suffering and loss of enjoyment of life into money values.[59]
[59] See O’Brien v Dunsdon (1965) 39 ALJR 78 referred to by Kenny J in Richardson [2014] FCAFC 82 at [90].
In Richardson v Oracle Corporation Australia Pty Ltd[60] Kenny J referred to comments made by May LJ in Alexander v Home Office[61] as follows:
For the injury to feelings however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge…Further, injury to feelings, which is likely to be of relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life.
[60] See Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82.
[61] See Alexander v Home Office [1988] 1 WLR 968.
In the present matter, there is no expert medical evidence to support a finding that Mr Panazzolo has suffered a diagnosed psychological injury. In addition, one of the reasons he gave for providing his resignation to Don’s Auto in August of 2021 was his desire to seek work in the mines.
In my view, the idiosyncratic circumstances surrounding this case must be regarded as a factor which limits the extent of any damages awarded for Mr Panazzolo’s distress arising from how his employment at Don’s Auto ended. Following his injury, he was invited to attend the staff Christmas party and a team building event. He was not cold shouldered by Mr and Mrs Disciscio.
In addition, attempts were made, through the involvement of Ms Leopardas, to re-engage Mr Panazzolo in the workplace. As I have found, the parties had different views regarding how this could be done. In my assessment, the approach of Don’s Auto, in this regard, can be regarded as clumsy rather than malicious; ill-informed rather than calculated. In these circumstances I propose to make a modest award for hurt, distress and injury to feelings in an amount of $10,000.00.
The final issue is the extent of special damages to be awarded to Mr Panazzolo. He retains his qualifications as a diesel mechanic, in what remains a job seekers market. It has always been his case that he could have returned to Don’s Auto in early 2021 and resumed his employment there on his full wage of about $2,000.00 per week.
He asserts that he was denied this wage, whilst he waited for Don’s Auto to either allow him to return or make an appropriate adjustment, until he became frustrated in August of that year and decided to try and get a job in the mines. For a variety of reasons, related to his personal circumstances, this did not eventuate and he remains unemployed. I do not think this can be attributed to Don’s Auto.
In these circumstances, I propose to make an award of special damages, attributable to economic loss, in an amount of $30,000.00. Accordingly, the total amount of damages is $40,000.00. I assess interest on this sum, pursuant to section 211 of the Federal Circuit and Family Court of Australia Act 2021 in an amount of $4,000.00.
The applicant seeks costs. I will direct that each party file any material on which they seek to rely in respect of this issue, in the event that agreement cannot be reached, within 28 days of the date of this judgment.
I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 2 August 2023
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