Pelley v Director General, Department of Education and Communications
[2013] NSWADT 229
•17 October 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Pelley v Director General, Department of Education and Communications [2013] NSWADT 229 Hearing dates: 12 June 2012 Decision date: 17 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The respondent's application for summary dismissal is refused.
2. The applicant's application for costs is refused.
3. The matter is listed for case conference on 6 November 2013 at 11.45am.
Catchwords: ANTI-DISCRIMINATION - application for summary dismissal - whether complaint relating to compliance with Workplace Injury Management and Workers Compensation Act 1998 can constitute breach of Anti-Discrimination Act 1977 - COSTS - whether respondent's delay in applying for summary dismissal makes if fair to award costs Legislation Cited: Anti-Discrimination Act 1977
Workplace Injury Management and Workers Compensation Act 1998
Administrative Decisions Tribunal Act 1997
Disability Discrimination Act 1992 (Cth)Cases Cited: Harding v Vice Chancellor, University of NSW (2003) NSWADT 74
Commissioner of Police v Orr [2001] NSWADTAP 16
Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47
Purvis v State of New South Wales (2003) 217 CLR 92
Cosma v Qantas Airways Ltd (2002) 124 FCR 504
Smith v Director General, Department of Education and Training [2010] NSWADT 282
Smith v Department of Education and Communities [2013] NSWADT 162
Star City Pty Ltd v Hurst [2009] NSWADTAP 35
Ella and Ors v State of New South Wales [2005] NSWADT 145Category: Interlocutory applications Parties: Geoffrey Pelley (Applicant)
Department of Education and Communities (Respondent)Representation: Counsel
P Lowson (Applicant)
P Griffin (Respondent)
Federation Law (Applicant)
Department of Education and Communities
(Respondent)
File Number(s): 121088
reasons for decision
Introduction
I have refused the Department's application to summarily dismiss Mr Pelley's complaint of disability discrimination. That complaint is not "lacking in substance" and there is no other reason for dismissing it.
Mr Pelley commenced working at Orange High School in April 1992. In January 2001 he was promoted to the position of Head Teacher, Creative and Performing Arts. In August 2008 he went on sick leave because of a major depressive illness and an anxiety disorder. He received workers compensation payments for 2 ½ years after that time and made numerous attempts to return to work.
Mr Pelley claims that the Department has discriminated against him on the ground of his disability. The alleged discrimination relates to the way the Department's employees treated him and the decisions that they made under various 'return to work' (RTW) plans.
Dismissal application
The Department has applied for Mr Pelley's complaint of disability discrimination in employment to be summarily dismissed. Section 102 of the Anti-Discrimination Act 1977 (AD Act) gives the Tribunal power to dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b). The Department relies on each of the three possible grounds for summary dismissal, namely:
(1) that the complaint is misconceived and lacking in substance: AD Act, s 92(1)(a)(i)
(2) that the complaint does not disclose a contravention of the AD Act: AD Act, s 92(1)(a)(ii)
(3) that there is "another reason" that no further action should be taken in relation to the complaint: AD Act, s 92(1)(b).
The Department explains the two main arguments in support of its application as follows:
(1) Return to Work plans are designed for people with disabilities. The purpose of those programs is to treat people with disabilities more favourably than people without a disability. There is no way of applying the differential treatment test for direct discrimination to a return to work program because a comparison cannot be made between the way a person with a disability was treated and the way in which a person without that disability would have been treated in the same or similar circumstances.
(2) The Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) includes a scheme for resolving disputes about return to work plans which does not involve paying compensation.
Law about summary dismissal
The onus is on the Department to establish that the complaint should be dismissed: Harding v Vice Chancellor, University of NSW (2003) NSWADT 74 at [24]. A complaint should only be summarily dismissed with exceptional caution and giving the applicant every reasonable opportunity to set out the basis of the complaint and to tender the evidence that supports that complaint: Commissioner of Police v Orr [2001] NSWADTAP 16 at [34] to [36]. The Tribunal must accept the applicant's evidence at its highest before determining whether the complaint should be dismissed.
Allegations of discrimination
In summary, the applicant claims that the respondent's discriminatory treatment involved:
(1) not implementing RTW plans from 2010 onward;
(2) not continuing RTW plans after they had been implemented;
(3) undermining the applicant when he attempted to work in accordance with RTW plans;
(4) not providing support to the applicant in the performance of his duties when he was attempting to work in accordance with the RTW plans;
(5) using the RTW process to measure the applicant's performance as a teacher, instead of using the RTW process to monitor the applicant's health-related capacity to perform his duties;
(6) engaging in conduct that worsened the applicant's disability; and
(7) in 2012, implementing the RTW plan at a location (Kelso) remote from the applicant's home and not in his substantive position as head teacher.
The law about disability discrimination in employment
In order to decide whether the complaint of disability discrimination is lacking in substance and should be dismissed, the merits of the complaint need to be assessed.
Section 49D(2) of the AD Act makes it unlawful for an employer to discriminate against an employee on the ground of disability in relation to the terms or conditions of employment, by denying the employee access or limiting the employee's access to any benefit or by subjecting the employee to any other detriment:
(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
Direct discrimination on the ground of disability is defined in s 49B as follows:
(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator:
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability
A "disability" includes a disability that a person has, that a person is thought to have and that a person had in the past: AD Act, s 49A. It is sufficient if disability is one of the reasons for the employer's treatment even if it is not the dominant or a substantial reason: AD Act, s 4A.
The general rule is that an employer is liable for an act of an employee unless the employer did not expressly or impliedly authorise that act: AD Act, s 53.
Based on these provisions, in order to substantiate his complaint of discrimination, Mr Pelley would have to prove that:
(1) he has an actual, past or presumed disability;
(2) the Department, through its employees, subjected him to certain treatment in relation to the terms and conditions of his employment, the benefits associated with employment or by subjecting him to any other detriment: AD Act, s 49D(2)(a)-(d);
(3) that treatment was less favourable than the treatment that was or would have been afforded to a person without Mr Pelley's disability in the same circumstances or in circumstances which are not materially different; (differential treatment)
(4) at least one of the reasons for that treatment was Mr Pelley's disability (causation).
Application of law to the facts
Disability and terms and conditions of employment
The Department did not rely on any submission in relation to Mr Pelley's disability in support of its application for summary dismissal. Nor did the Department submit that the treatment did not relate to the terms and conditions of employment, the provision of a benefit or being subjected to a detriment: s 49D(2)(a)-(d).
I accept that the AD Act cannot be read in isolation from the body of law which governs relations between employers and employees including the WIM Act: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [44]. The AD Act adds to the obligations the Department has at common law and under statutes including the WIM Act. As the tribunal said in Laycock the meaning of words in the AD Act such as "terms or conditions of employment", "promotion" and "benefits associated with employment", can only be properly understood when interpreted in the light of the entire body of law which governs the employment relationship.
It is irrelevant in this case that neither the common law nor the AD Act requires an employer to alter the duties of a job in order to accommodate a person with a disability: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47 at [16]. Mr Pelley was not requesting that his duties be altered. He was relying on his entitlements under the WIM Act.
Differential treatment
The first basis for the Department's application for summary dismissal was that Mr Pelley will not be able to prove the "differential treatment" element of direct disability discrimination. This was said to be the case for four reasons.
Firstly, because the WIM Act provides benefits to certain people with workplace injuries, the way a person is treated pursuant to that Act cannot be "less favourable treatment" under the AD Act. The RTW plans implemented for the applicant constitute more favourable treatment. Issues about whether the duties are suitable are essentially issues about the extent of favourable treatment that he is seeking to benefit from.
Contrary to the suggestion that this submission implies, there is no requirement in the AD Act that an applicant be treated "unfavourably". The differential treatment element of direct discrimination requires the applicant to prove that he or she has been treated "less favourably" than an actual or hypothetical comparable employee.
In Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261, the Tribunal held that an employee cannot demand that an employer, in providing suitable employment, 'create a special position' for him. The Tribunal referred to the Federal Court's refusal in Cosma v Qantas Airways Ltd (2002) 124 FCR 504 to allow an injured employee "to create his own classification for employment" when undertaking suitable employment under the Commonwealth rehabilitation scheme.
But these cases can be distinguished from the present case because Mr Pelley is not demanding that a special position be created. He wanted his old job back. He denies needing any accommodation or special treatment on account of his disability. For example, he denies the need for a person to support him. His complaint is that he has been treated disadvantageously due to his disability, not that he has been denied benefits that he should have been given.
Secondly, the Department submitted that the differential treatment element of disability discrimination cannot apply because Mr Pelley will be unable to identify an actual or hypothetical comparator. As the return to work program is designed for people with disabilities, conduct pursuant to such a plan cannot apply in a disability discrimination context because discrimination is about the differential treatment of persons with a disability compared to persons without a disability.
The flaw in this submission is that the comparison is between the applicant and a person who "does not have that disability", not a disability: AD Act, s 49B(1)(a). Mr Pelley's disability is depression and an anxiety disorder. In his Points of Claim, he identifies the comparator as a "teacher on a return to work plan who did not have 'that' disability." The actual or hypothetical person with whom Mr Pelley is compared could have a different kind of workplace injury, for example a physical disability.
Thirdly, the Department also said that Mr Pelley would have difficulty identifying the circumstances when making the comparison. The Department quoted the Tribunal in another case as saying that "[I]t is difficult to identify circumstances which are the same or not materially different from the circumstances that apply to workers under Chapter 3 of the Compensation Act": Smith v Director General, Department of Education and Training [2010] NSWADT 282 at [12].
It is difficult, but not impossible to identify the surrounding circumstances when making the comparison. The Tribunal undertook that task in Smith v Department of Education and Communities [2013] NSWADT 162 at [149]. Although the factual circumstances in that case were different, the principles are the same. The circumstances that must be taken into account were considered by the High Court in Purvis v State of New South Wales (2003) 217 CLR 92 in relation to a similar provision in the Disability Discrimination Act 1992 (Cth), s 5(1).
The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". . . .
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.
When making the comparison, Mr Pelley will have to identify all the objective features that surround his treatment by the Department. There is no reason why this cannot be done when the complaint relates to benefits provided under the WIM Act.
Finally, the Department submitted that Mr Pelley has provided no information capable of identifying an actual or hypothetical comparator or the objective circumstances that should be taken into account when making the comparison. According to the Department, the Tribunal is entitled to limit its consideration of this matter to the Points of Claim and the evidence filed: Star City Pty Ltd v Hurst [2009] NSWADTAP 35 at [44].
In the Points of Claim Mr Pelley identifies the hypothetical comparator as a teacher on a return to work plan who does not have 'that' disability, that is depression and anxiety. That is the information he has provided in relation to the hypothetical comparator and the objective circumstances that should be taken into account when making the comparison. If the Department does not accept that characterisation of Mr Pelley's complaint, it may make submissions on that point at the hearing.
Alternative ground for dismissal
The Department's alternative ground for dismissal was that the Tribunal should be satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint: AD Act, s 102 and s 92(b). The Department listed several "other" matters which it said justified dismissal:
(1) the fact that all the allegations apply entirely to the implementation of a return to work plan under the WIM Act;
(2) the return to work plan and associated obligations are part of a comprehensive statutory scheme
(3) all return to work plans were implemented with the consent of Mr Pelley
(4) to the extent that Mr Pelley was dissatisfied with the suitable duties provided or the manner they were implemented (eg delay), Mr Pelley could have sought a remedy for such matters under the provisions of the scheme;
(5) the effect of determining this complaint would be problematic as the Tribunal could not because of lack of jurisdiction (but should) take into account implications of such a determination on the administration of the scheme in respect of Mr Pelley;
(6) the return to work program is designed to provide means to help rehabilitate injured workers in a practical way. The effectiveness of such a scheme is undermined if these steps are not taken and damages (under this jurisdiction) are pursued instead; and
(7) the authority discussed above indicating that the return to work program is essentially a 'more favourable' scheme.
Points 1, 2 and 7 have been addressed earlier in these reasons.
In relation to point 2, if the return to work plans were implemented with the consent of Mr Pelley, that does not, either alone or in combination with any other reason, justify summarily dismissing the complaint.
Points 5 and 6 are related. Whether or not the determination of the complaint will be "problematic" or whether the workers compensation scheme will be 'undermined if the complaint proceeds are matters for the legislature.
In relation to point 4, the fact that Mr Pelley may have an alternative remedy under the WIM scheme is a matter listed in s 92(1)(a)(iv) and (v):
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
Section 92 provides that:
(1) If at any stage of the President's investigation of a complaint:
(a) the President is satisfied that:
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
Section 102 gives the Tribunal power to dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
Section 102 does not give the Tribunal power to dismiss a complaint on either of the grounds in s 92(1)(a)(iv) or (v). Section s 102 does give the Tribunal power to dismiss a complaint if it is satisfied that "for any other reason no further action should be taken in respect of the complaint, or part of the complaint." "Any other reason" means any reason other than those listed in s 92(a)(iii)(iv)(v)(vi) and (vii).
The Department quotes Ella and Ors v State of New South Wales [2005] NSWADT 145 as authority for the proposition that the phrase "for any other reason" is not limited in any way to the preceding reasons for dismissal. In that case the Tribunal quoted various decisions interpreting the now repealed s 111 of the AD Act. Because s 111 and s 102 use different language, those decisions are not relevant to the issue that arises under s 102, that is whether "for any other reason' must be a reason that is not listed in s 92(1)(a)(iii)(iv)(v)(vi) or (vii).
In my view, the Department cannot rely on point 4 as a reason for summary dismissal.
Even if that interpretation is not correct, I would not dismiss the complaint because of the remedies available under the WIM Act. While I accept that the remedies for failure to comply with s 49 of the WIM Act lie within that Act alone, Mr Pelley is not seeking a remedy for a failure to comply with s 49. The remedy he seeks is for an alleged breach of the AD Act.
Costs
Mr Pelley applied for costs on the basis that the Department was responsible for prolonging unreasonably the time taken to complete the proceedings: Administrative Decisions Tribunal Act 1997 (ADT Act), s 88(1)(b).
The Tribunal has power to award costs in these proceedings: AD Act, s 110. The general rule is that each party pays their own costs. The Tribunal may award costs only if it is satisfied that it is fair to do so having regard to several matters including "whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings."
According to Mr Pelley the summary dismissal application was made without notice. The Department says their solicitor flagged the application at a case conference on 27 February 2013. Mr Pelley's response is to ask why directions were made on that day for the Department to file its Points of Defence if it had decided to apply for the complaint to be summarily dismissed.
As well as the lack of notice, Mr Pelley points out that the Department did not attend the last case conference on 8 May 2013 which led to a further delay of more than a month before the matter could be set down for hearing.
The President of the Anti-Discrimination Board referred this matter to the Tribunal on 2 July 2012. After the initial case conference it was referred to mediation on 29 August 2012. The mediation was not successful and a further case conference was set down for 12 September 2012. That case conference was adjourned by consent so that the parties could pursue settlement discussions. The parties were still hopeful of a settlement at the next case conference on 24 October 2012. On 31 October 2012 directions were made for the applicant to file Points of Claim and evidence by 12 December 2012 and for the respondent to file Points of Defence and evidence by 8 February 2013. A further case conference listed for 27 February 2013 for the matter to be set down for hearing.
Mr Pelley filed his Points of Claim and evidence on 11 February 2013, two months late. The Department says it did not receive those documents until just before the case conference on 27 February 2013. At that conference, the Department asked for 10 wees to file and serve its Points of Defence and its evidence. The Tribunal gave the Department a further six weeks, until 10 April and noted its concern about the delays. The Department says that at this case conference the solicitor representing the Department foreshadowed the possibility that an application for summary dismissal would be made. Mr Pelley's representative denies that that was the case.
On 19 March 2013 the Department applied for summary dismissal saying that their submissions in support of that application would be made within two weeks. The submissions were filed on 12 April 2013. Mr Pelley filed submissions in reply on 7 May.
At the case conference on 8 May 2013, which the Department did not attend, the Tribunal set down the summary dismissal application for hearing on 12 June 2013. By way of explanation for the non-attendance Mr Griffin, counsel for the Department, said that the Department's solicitor was "preoccupied with a family situation" on that day. The application was heard on 12 June 2013.
I agree with the Department that the usual time for making an application for summary dismissal is after receiving the applicant's evidence. That evidence was not received until shortly before the case conference on 27 February 2013. Whether or not the Department's solicitor foreshadowed the making of the application at that conference, the application was made about 3 weeks later. While the submissions supporting that application should have accompanied it, the delay of a further 3 weeks does not make it fair to order that the Department pay Mr Pelley's costs. Both parties are responsible to various extents for the delay in this matter being resolved.
Order
1. The respondent's application for summary dismissal is refused.
2. The applicant's application for costs is refused.
3. The matter is listed for case conference on 6 November 2013 at 11.45am.
**********
Decision last updated: 17 October 2013
0
9
4