Phillips v Australian Capital Territory

[2021] ACAT 22

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PHILLIPS v AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE) (Discrimination) [2021] ACAT 22

DT 21/2020

Catchwords:               DISCRIMINATION – referral of discrimination complaint to ACAT by Human Rights Commission – where complainant receiving workers compensation from respondent or its agent ‒ protected attributes – where indirect discrimination asserted – whether workers’ compensation is sufficiently closely associated with employment – whether respondent imposed a condition or requirement – whether condition or requirement had the effect of disadvantaging the complainant – whether disadvantage caused by the complainant’s protected attribute – whether condition or requirement was reasonable – whether respondent committed unlawful act – orders – costs

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 48

Discrimination Act 1991 ss 4, 4AA, 4A, 5AA, 7, 8, 10, 30, 67A, 68, 121A
Human Rights Commission Act 2005 ss 42, 51, 53A, 53CA, 53E, 82, 88
Public Sector Workers Compensation Fund Act 2018 ss 2, 18, 19, 21, 22, 23
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4A, 5, 5A, 5B, 8, 11, 14, 16, 19, 23A, 54, 99, 102, 103
Workers Compensation Act 1951 s 31

Cases cited:ACT v Wang [2019] ACAT 65

Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2
Bureau of Meteorology and Comcare [2015] AATA 267
Butcher v The Key King Pty Ltd [2000] ACTDT 2
Catholic Education Office v Clarke [2004] FCAFC 197
CIC Ltd v ACT Planning and Land Authority [2013] ACTSC 96
Cook and Comcare [2017] AATA 227
Daff and Comcare [2010] AATA 732
Fleming and Comcare, [2004] AATA 1016
JQWK and Comcare [2013] AATA 830
Kovac v the Canberra Croatian Club Ltd [2014] ACAT 41
Kovac v the Australian Croatian Club Ltd (No 2) [2016] ACAT 4
Lees v Comcare [1999] FCA 753
Nicholls and Nicholls v Director-General, Department of Education and Training (No. 2) [2009] NSWADTAP 20
Purvis v New South Wales [2003] HCA 62
Richardson v Oracle Corporation [2014] FCAFC 82
Steins and Comcare [2019] AATA 803
Tyrell v Coles Supermarkets Pty Ltd [2020] NSWCATAD 57
Walker v State of Victoria [2011] FCA 258
Waters v Public Transport Corporation [1991] HCA 49

List of

Texts/Papers cited:     American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th edition, 2013)

Kellie Edwards, General Damages in Discrimination/Adverse Action Claims, CPE Conferences, 2017

Tribunal:  Senior Member M Hyman

Date of Orders:  23 March 2021

Date of Reasons for Decision:         23 March 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 21/2020

BETWEEN:

VICKI PHILLIPS

Applicant

AND:

AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE)

Respondent

TRIBUNAL:     Senior Member M Hyman

DATE:23 March 2021

ORDER

The Tribunal orders that:

1. The ACT, in its role as insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and through its contracted claims manager and rehabilitation provider, must:

   (a)on the basis of the expert advice of a psychiatrist or clinical psychologist, provide training to those staff dealing with injured workers with a mental injury, so as to minimise the risk of triggering symptoms or otherwise exacerbating the injury; and

   (b)institute improved procedures for dealing with mental injuries aiming to:

   (i)      avoid delays in processing of claims;

   (ii)     provide timely responses to enquiries by injured workers;

   (iii)   keep injured workers informed of progress on their claims; and

   (iv)   provide timely advice to injured workers regarding any impediments to claims being processed.

2. Complete the introduction of the changes set out in (a) and (b) above by 31 March 2022.

3. By 5:00pm on 30 April 2021, the respondent must pay to the applicant an amount of $9,000 by way of general damages.

4. There is no order as to costs or interest.

………………………………..

Senior Member M Hyman

REASONS FOR DECISION

Introduction

1. This decision is about whether Ms Vicki Phillips, the complainant, was discriminated against by the Treasury and Economic Development Directorate of the ACT Government (the Directorate) and its Chief Minister.

2. Ms Phillips was employed in the Community Services Directorate of the ACT Government (CSD). In 2017 she was bullied at work and suffered a mental injury, later diagnosed as post-traumatic stress disorder (PTSD). She took leave of various kinds while attempting to recover, and spent some periods working part-time. In October 2018 Ms Phillips claimed workers’ compensation, and Comcare, the ACT’s workers’ compensation insurer at the time, granted that claim in December 2018. Shortly afterwards the ACT became a self-insurer and the Directorate took responsibility for the ACT’s participation in the Comcare scheme.

3. Ms Phillips made a discrimination complaint to the ACT Human Rights Commission on 11 December 2019, asserting that the management of her workers’ compensation claim by the Directorate had had the effect of delaying her entitlements and worsening her PTSD. The Directorate and Ms Phillips were unable to settle the complaint by conciliation, and the Commission closed the complaint under section 78(1)(f) of the Human Rights Commission Act 2005 (HRC Act). At Ms Phillips’ request, the Commission referred the complaint to this tribunal under section 53A of the HRC Act. That referral confers on this tribunal jurisdiction to hear and decide the complaint, and if the tribunal finds unlawful discrimination, to make remedial orders under section 53E of the HRC Act.

4. For the reasons set out below I have found that one of the asserted forms of discrimination did occur and was unlawful under the Discrimination Act 1991 (the Discrimination Act). I have made orders accordingly.

The hearing

1. The Tribunal held an in-person hearing for two days on 9 and 10 November 2020. Ms Phillips was represented by Mr Thomas Maling of Elringtons Lawyers. The respondent was represented by Mr Seyi Onitiri of Counsel, instructed by Ms Rebecca Piesse, ACT Government Solicitor.

2. Ms Phillips gave evidence on her own behalf and called one additional witness, her husband, Mr Glenn Phillips. The respondent called two witnesses from the Workplace Safety and Industrial Relations in the Directorate, namely Ms Rachel Hughes, Senior Manager, Injury Management, and Mr Michael Young, Executive Group Manager. All witnesses appeared in person.

3. The Tribunal had before it witness statements by the four witnesses and additional documents tendered by the parties and assigned exhibit numbers as set out in the following table:

Document	Date	Exhibit number
Witness statement of Ms Vicki Phillips	24 August 2020	A1
Complaint to Human Rights Commission	11 December 2019	A2
Witness statement of Mr Glenn Phillips	23August 2020	A3
Comcare Service Charter	None	A4
Compilation of applicant’s documents, 242 pages	Various	A5
Witness statement of Mr Michael Young	22 September 2020	R1
Witness statement of Ms Rachel Hughes	22 September 2020	R2
Compilation of respondent’s documents, 187 pages	Various	R3

1. Several of the witness statements included attachments, some at considerable length.

2. The parties provided several submissions: an outline of Ms Phillips’ case made in accordance with the tribunal’s direction, dated 23 June 2020 (the applicant’s pleading); a response to that case, also in accordance with the tribunal’s direction, dated 14 July 2020 (the respondent’s pleading); a written submission by the applicant dated 6 October 2020 (the applicant’s submission); a submission by the respondent dated 21 October 2020 the respondent’s outline of written submissions); and a written submission provided on the second day of the hearing (10 November 2020) by the respondent (the respondent’s outline of submissions).

Issues

1. Discrimination actions are brought under the Discrimination Act and the HRC Act. Under those two Acts a complainant must meet a series of tests and may make some choices about how to advance their complaint. The issues to be decided by this Tribunal in a discrimination matter flow from those tests and the choices by the complainant.

2. One of the issues that must be determined under the Discrimination Act concerns the protected attribute or attributes in respect of which the complainant claims to have been discriminated against. In the present matter, the complaint is in respect of a disability. It is common ground that the complainant has PTSD, a disability under sections 7(1)(e) and 5AA(1)(g) of the Discrimination Act.

3. The complainant has made a complaint of indirect discrimination, and makes no claim for direct discrimination. Although it is possible that a set of facts will support either or both forms of complaint, no argument in respect of direct discrimination has been pressed. Nor does it appear that the facts of the matter provide a satisfactory ground for a direct discrimination claim.

4. Ms Phillips’ original complaint to the Human Rights Commission includes statements that she was subject to vilification and victimisation. Section 67A of the Discrimination Act (headed “unlawful vilification”) makes it unlawful for a person to incite hatred, revulsion, serious contempt or severe ridicule of a person on the grounds of some particular protected attributes, including disability (subject to some exceptions). Section 68 of the same Act (headed “victimisation”), makes it unlawful for a person to subject another person to any detriment because they have taken, or propose to take, or are thought to have taken or propose to take, discrimination action (such as making a discrimination complaint). These points were not pressed in the context of the hearing, in written submissions or in oral argument, nor am I aware of evidence in support of them. I have not considered further these aspects of the complaint.

5. With those issues to one side, the issues to be decided are:

   (a)Does the behaviour asserted to be discriminatory fall within one of the areas of public life in which discrimination is unlawful?

   (b)Was a condition or requirement imposed on the complainant by the Directorate?

   (c)If so, did that condition or requirement have the effect of disadvantaging the complainant?

   (d)If so, was the effect of the disadvantage caused by the complainant’s disability?

   (e)Was any imposed condition or requirement reasonable?

   (f)Did the Directorate engage in an unlawful action?

   (g)If so, what orders should the tribunal make in response?

Legislative framework

1. All discrimination matters in the ACT are managed under the intersection of the Discrimination and HRC Acts. The alleged discrimination in this matter concerns the complainant’s workers’ compensation status. The complainant has a compensable injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act); that Act and the Public Sector Workers Compensation Fund Act 2018 (the Fund Act) both have a bearing on the case.

2. Several different arms of the ACT Government are referenced in this case. Ms Phillips’ workers’ compensation claim was lodged with and accepted by Comcare, but on 1 March 2019 the ACT became a self-insurer, and the Directorate took responsibility for administering the licence granted under the SRC Act. Thus, while CSD is Ms Phillips’ employer, the Directorate became her insurer. Neither is a legal person, able to sue and be sued; the respondent in this case is the ACT. But Ms Phillips’ complaint was aimed at the Directorate, as her insurer, and in this decision, in recognition, I have referred to the Directorate and other business units of the ACT Government, and sometimes to their contractors, as the relevant actors in the matter, rather than group them all under the more amorphous heading of the ACT.

   The Discrimination Act and the HRC Act

3. Discrimination matters in the ACT are governed by the Discrimination Act, and complaints are made and responses determined under the HRC Act. The Discrimination Act defines discrimination, lists the kinds of attributes a person can have that can form the basis for discrimination against them by another person, and specifies various areas of public life where discrimination is unlawful. Central to its scheme is section 7(1), which lists 24 protected attributes, including disability at paragraph 7(1)(e). Section 7(2) provides that each attribute extends not only to a person who has that attribute, but to characteristics that people with the attribute generally have, or are presumed to have, or that the person has had in the past, or is thought to have, or is thought to have had in the past. Section 5AA defines “disability” to include, at section 5AA(1)(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”.

4. Section 8 of the Discrimination Act defines discrimination. The definition creates two categories, direct discrimination and indirect discrimination. Direct discrimination occurs when a person “treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes”;[1] indirect discrimination occurs when a person “imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes”.[2] Indirect discrimination does not occur, however, if the imposed condition or requirement is reasonable in the circumstances.[3] Section 4A(1) provides that “doing an act includes failing to do the act” and section 4A(2) states that an action can have more than one cause, and that a cause remains a cause of that action whether or not it is the dominant or substantial cause. Section 121A says that where a person represents another (as agent or employee), that person’s acts are taken to be the principal’s acts if the agent or employee was acting within the scope of actual or apparent authority (unless the principal took all reasonable steps to prevent the agent or employee engaging in the relevant behaviour).

   [1] Discrimination Act 1991 section 8(2)

   [2] Discrimination Act 1991 section 8(3)

   [3] Discrimination Act 1991 section 8(4)

5. Part 3 of the Discrimination Act sets out forms of behaviour that constitute unlawful discrimination in particular areas of public life. Section 10 makes it unlawful for an employer to discriminate against an employee in a number of areas; relevantly, these include in section 10(2)(b), “by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment” and in section 10(2)(d) “by subjecting the employee to any other detriment”.

6. The following sections extend the above protection to related occupational situations such as partnerships, commission agents and qualifying bodies. Division 3.2 of the Discrimination Act makes discrimination unlawful in a number of other areas, such as the provision of goods and services, clubs, education and accommodation.

7. The Discrimination Act provides a number of exceptions and exemptions of varying generality, so that actions covered by the exceptions and exemptions are not unlawful. A relevant example in the present matter is section 30 which provides that an action done “necessarily for the purpose of complying with a requirement” of a Territory law is not unlawful.

8. The HRC Act provides the mechanism by which a person can take action if the person thinks they have been discriminated against. Part 4 of the HRC Act deals with complaints. Section 42 sets out a number of different complaints that can be made, including in section 42(1)(c) the making of a complaint about an unlawful act under the Discrimination Act (and section 42(2) makes it clear that such a complaint may relate to events occurring on two or more occasions). Under Division 4.2, the HRC has discretion to deal with complaints in various ways, including conciliation.[4] Where the Commission comes to the point where it cannot take a complaint further, it can close the matter, and advise the complainant of the option to require the Commission to refer the complaint to this tribunal within 60 days.[5]

   [4] Human Rights Commission Act 2005 section 51

   [5] Human Rights Commission Act 2005 sections 53A, 82, 88

9. Where a complaint is referred to ACAT, the parties are the complainant and the person complained of.[6] Section 53CA specifies how a discrimination complaint is to be decided and subsections 53CA(2), (3) and (4) read as follows:

   [6] Human Rights Commission Act 2005 section 53C

   (2)     It is a rebuttable presumption that discrimination has occurred if the complainant—

   (a)establishes that—

   (i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and

   (ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and

   (b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—

   (i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or

   (ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.

   (3)     The presumption under subsection (2) is rebutted if the person complained about establishes that—

   (a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or

   (b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.

   Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).

   (4)     In this section:

   “protected attribute” means a protected attribute under the Discrimination Act 1991.

10. Where ACAT is satisfied that unlawful discrimination has occurred, section 53E requires the Tribunal to make one or more orders directing that the discriminatory behaviour end, and/or that action or actions by way of redress are taken, and/or that an amount of compensation be paid. The considerations that ACAT must take into account in determining the amount of compensation are listed in subsection 53E(3).

11. It is apparent that the scheme of the two Acts is to make discrimination unlawful only in certain specified contexts and between persons in specified roles. Where such discrimination occurs, the Tribunal’s remedial powers are extensive.

    The SRC Act and the Fund Act

12. The SRC Act sets out the Commonwealth’s workers’ compensation scheme. The scheme extends its coverage to an ‘employee’, defined in section 5 as a person who is employed by the Commonwealth or a Commonwealth authority or by a licensed corporation. Section 5 includes further provisions significantly defining and extending the coverage of the scheme, including in section 5(11) to employees of the Australian Capital Territory (ACT), although section 4A empowers the Commonwealth Minister responsible for the SRC Act to declare the ACT to be a Commonwealth authority for the purposes of the Act, and also to revoke such a declaration. Section 5(9) states that a reference to an employee extends to a person for whom liability has been accepted under the scheme but who has ceased to be an employee, unless the contrary intention appears.

13. Part VII of the Act establishes Comcare and assigns functions to it additional to those otherwise conferred under the Act (Division 1); it also establishes (Division 3) the Safety, Rehabilitation and Compensation Commission (the Commission) with a role of ensuring equity of outcomes in the procedures followed by Comcare and licensees and advising the Minister on relevant matters.

1. As implied above, an organisation can seek to assume liability and manage claims itself rather than leave those roles to Comcare. This is provided for in Part VIII of the SRC Act, which enables the Commission to grant licences to organisations to assume all or part of the liability under the SRC Act and to manage claims.

2. Sections 5A and 5B of the SRC Act establish a definition of ‘injury’ and the nexus with employment that is required for an employee to have a compensable injury. Comcare or a licensed corporation is then liable under section 14 to pay compensation to an employee who has an injury under the Act if the injury results in death, incapacity for work or impairment. Compensation can take several forms: relevant examples are section 16, which provides for payment for medical expenses, and section 19, for incapacity payments.

3. The structure of section 19 assumes some importance because the complainant’s interactions with the Directorate were closely focused on her entitlements under that section. Subsection 19(2) is the critical provision, establishing a Comcare liability to pay an injured employee a weekly amount represented by the formula NWE – AE, where NWE is the amount of the employee’s normal weekly earnings (defined by a separate formula in section 8) and AE is the greater of the amount an employee is able to earn and the amount actually earned in that week. That payment is the entitlement for the first 45 weeks and then other formulae begin to apply. Section 19(3) establishes an adjustment percentage that has the effect of reducing the amount of compensation paid, through the formula (adjustment percentage x NWE) – AE with the adjustment percentage varying according to whether the employee is employed for the same hours as the employee’s previous normal weekly hours or some lower number of hours. Another subsection provides detailed guidance on how AE is to be determined, depending on whether the injured worker is employed, has sought employment, has been offered but has refused employment, has accepted but not taken up employment, and various other relevant circumstances.

4. Section 23A of the SRC Act provides for adjustments of payments and other benefits where there is a gap between the occurrence of the injury and the determination by the insurer that compensation is to be paid; in general, the insurer bears the costs from the date of injury, with other payments repaid or set off. Under section 23A(9), if an employee has been on paid leave, the employer must restore the employee’s leave credit.

5. Part V provides for injured workers to make claims under the Act. Subsection 54(1) states that liability to pay compensation under the Act only arises where a person makes a claim; subsection 54(2) states that a written claim must be lodged with Comcare or a licensed corporation, accompanied (in general) by a medical certificate, and using the prescribed form; but subsection 54(5) says that strict compliance with an approved form is not required and that substantial compliance is sufficient.

6. The Fund Act provides a statutory foundation for the ACT taking on the role of self-insurer under the SRC Act. Part 2 of the Fund Act establishes the fund to be used for paying compensation to those covered by the SRC scheme; Part 3 establishes the office of commissioner (section 18) and identifies the commissioner’s functions (section 19) which include managing the fund, advising the Minister, managing the Territory’s liability under the SRC Act and managing claims under that Act. The commissioner may delegate functions (section 2), engage staff (section 21) and contractors and consultants (section 22). If the commissioner engages a claims manager, that manager has the functions listed in section 23.

Evidence - the ACT as self-insurer and Ms Phillips’ claim

1. It is not at issue that on 1 March 2019 the ACT became a self-insured licensed corporation under the SRC Act, and that Ms Phillips is an injured worker under that Act. The facts, while not a matter of dispute, are helpful in providing context for the issues that do stand to be resolved in the present matter. The terms ‘injury’ and ‘injured worker’ used in this decision draw their meaning from sections 5A and 5B of the SRC Act, where injury is defined. The definition extends beyond the usual meaning of the English word ‘injury’ (such as a broken bone or wound or laceration) and includes a disease, where the prescribed nexus with employment is established. Thus ‘injury’ means “injury under the SRC Act” with ‘injured worker’ having a corresponding meaning.

2. The ACT is a Commonwealth authority under the SRC Act by virtue of a declaration by the relevant Commonwealth Minister under section 4A of that Act. As a Commonwealth authority the ACT is an “eligible applicant” under section 99 of the same Act, able to apply for a licence under section 102, and the Commission has power under section 103 to grant such a licence. In 2018 the ACT applied for such a licence, and it was granted on 5 December 2018, with effect from 1 March 2019.[7] Under clause 6 of the licence the ACT accepts liability for relevant injuries occurring during the period of the licence or after 1 July 1989 up until the date the licence came into force. Clause 7 of the licence authorises Employers Mutual Ltd (EML) as claims manager under the licence.

   [7] Exhibit R1, Attachment A

3. In the course of 2017 Ms Phillips, a full-time employee of the CSD, suffered a mental injury. She informed the Directorate of this injury on 10 April 2017 and lodged a claim for compensation under section 54 of the SRC Act on 19 October 2018.[8] Comcare accepted liability for the claim on 13 December 2018.[9] On 1 March 2019, when the licence came into force, the ACT assumed liability for Ms Phillips’ claim.

   [8] Exhibit A1 Attachment A

   [9] Exhibit A5 page 1

4. The mental injury suffered by Ms Phillips has been diagnosed as PTSD, brought on by bullying and harassment in the workplace.[10] The symptoms Ms Phillips reported at the hearing include depression, anxiety, stress, hypervigilance and intrusive thoughts; Ms Phillips said that the unsatisfactory course of establishing her compensation entitlements acted as a trigger for her hypervigilance and intrusive thoughts.

   [10] Exhibit R3 page 22

5. The medical evidence supports the symptoms Ms Phillips describes. A Certificate of Capacity for work, dated 15 October 2018, is identified as an “initial certificate”, and apparently supplied to Comcare by Dr Anthony Meyer.[11] It refers to “Severe depression, anxiety, distress. Flashbacks to abuses, nightmares, hypervigilance”; “Several years’ systematic bullying by an individual in the workplace”; “Major Depressive Illness with Severe Anxiety and Features otherwise consistent with PTSD (DSM 5)”. The doctor notes “Poor concentration due to severe distress, memory and cognitive difficulties” and stipulates that Ms Phillips was not to return to work in the current workplace or with her current colleagues; that she have no contact with her abuser; that she not be directly contacted by Comcare or the Department (presumably intending the Directorate); and that she not attend mediation or sign any documents relating to her compensation unless she obtained independent advice.

   [11] Exhibit A5 pages 154-155; the signature is indecipherable and the doctor’s name and stamp are not given, but the date coincides with a consultation with Dr Meyer, recorded at Exhibit A5, page 138, and later certificates with the same instructions are signed by Dr Meyer

6. Later certificates of the same kind suggest worsening of Ms Phillips’ condition. From January 2019 Dr Meyer sent certificates that retained the diagnosis of PTSD but added additional warnings and comments against, respectively, headings relating to mental capacity and other issues affecting recovery or return to work:

   Cognitive abilities affected in workplace and with staff in the abusive workplace. Memory, insight and decision making affected in above workplace and with above staff. Extreme sensitivity to triggering of anxiety by ACT Govt staff and premises. Extreme triggering of symptoms with any work in the ACT. Depressed mood, severe anxiety symptoms, hypervigilance.

   …

   Unfit for work only in the ACT and in particular in any employment with the ACT Government. Not to have direct contact with ACT Government representatives or Comcare representatives.[12]

   [12] Exhibit A5 page 160

7. In later reports, from March 2019, Dr Meyer repeats these comments (with the amendment of “Comcare” to “EML”, but adds: “ACT Government delays and obstruction of process of Ms Phillips’ enquiries into the matter are exacerbating her condition and could be regarded as continuing abuse”.[13] There is a certificate signed by another general practitioner, Dr Pahn, dated 13 August 2019,[14] and then the general practitioner who deals with Ms Phillips’ case is Dr Venkatarama Vepuri,[15] whose comments are similar to those of Dr Meyer. From 25 November 2019 he notes that “resolving time of works & long service leave, claim of work forms processed but finaces nt received, recredit of long service leave are affecting Vicki’s rehab programme [errors in original]”.[16] In a letter dated 28 November 2019[17] Ms Phillips’ clinical psychologist, Ms Vickie Walmsley, noted that Ms Phillips had reported increased anxiety and stress in relation to the administration of her workers’ compensation claim.

   [13] Exhibit A5 page 171

   [14] Exhibit A5 pages 175-6

   [15] Exhibit A5, page 177

   [16] Exhibit A5 page 184

   [17] Exhibit A5 page 202

8. Ms Phillips attempted to return to work after her injury, and spent a period working for three days each week. She made another attempt in January 2019. Neither attempt effected a more complete rehabilitation, however, and she is now unable to work in CSD, elsewhere in the ACT Public Service, or indeed in the ACT. She lives in Cootamundra, where she operates an antique shop as a sole trader for four days each week (Wednesday to Saturday).

Evidence – Ms Phillips’ claim and establishing her entitlements

1. As noted above, Ms Phillips first alerted her employer to her symptoms of mental illness on 10 April 2017, and first sought medical attention on 12 May 2017, but she did not lodge a claim for workers’ compensation until 18 months later, on October 2018.[18] According to the respondent, the retrospective aspect of the claim made it more complex and difficult to administer. Ms Phillips has provided an explanation for the lateness, but it appears that nothing turns on there being an explanation or justification for the timing of lodgement.

   The documentary record

   [18] Exhibit A1 Attachment A

2. Following acceptance of Ms Phillips’ claim by Comcare, there was a series of exchanges over a protracted period between Ms Phillips on the one hand, and the Directorate, EML and APM, Ms Phillips’ rehabilitation provider, on the other. It is this exchange that is at the heart of Ms Phillips’ discrimination complaint. Her assertion is that the way in which she was treated, the lack of responsiveness, the delays and errors in dealing with her entitlements and the prescriptiveness of some of the processes led to delays in meeting her entitlements and a worsening in her mental injury, and that these interactions meet the tests set in the Discrimination and HRC Acts, and constitute indirect discrimination against her on the grounds of her disability. The respondent contests those assertions, both in the factual detail of the interactions and exchanges, and in how the various tests ought to be applied to those exchanges and interactions. It is important therefore to establish the facts of these exchanges before considering how the statutory tests ought to be applied.

3. On a good deal of the facts the parties are not at issue. It is not contested, for example, that Ms Phillips’ entitlements under the SRC Act have now been settled and she is not seeking any further payments relating to the period leading up to her claim; nor is she claiming a new injury under the SRC Act (and were she to do so ACAT would have no jurisdiction to decide the matter). The ambit of the present claim is limited to Ms Phillips’ experience during the period between making the claim under the SRC Act in October 2018 and receiving the last of her full entitlements in March 2020. She asserts that she was discriminated against in the period from 29 January 2019 to 29 July 2019, but that the effects of that discrimination continued beyond the latter date, up to March 2020.

4. Ms Phillips made her compensation claim in October 2018 and Comcare accepted liability in December 2018. The SRC Act provides for a number of different kinds of compensation payments – damage to property under section 15, medical expenses under section 16, incapacity under sections 19, 20, 21, 22, 23, permanent impairment and non-economic loss under sections 24 and 27, household services and attendant care under sections 29 and 29A. Other provisions of the SRC Act relate to such matters as the development of rehabilitation programs for injured workers. It is clear from the papers that Ms Phillips had other difficulties in making her way through the compensation system, in particular over whether she should be assessed for her prospects of rehabilitation and whether she would be allowed to work in her shop in Cootamundra; but these issues have not been pressed by either party and appear not to bear relevantly on the issues before me. The present matter is closely focused on incapacity payments and the re-crediting of leave under section 19 of the SRC Act.

5. On 11 January 2019 Ms Kim Frakes, Acting Senior Manager of the Safety and Wellbeing Team in CSD, sent an email to Ms Phillips.[19] This email made several points: despite the notes from Ms Phillips’ doctors asking that Directorate staff not contact her directly, Ms Frakes noted that some contact would be required and nominated her team as the channel of contact, with Ms Nicole Sillis as the person responsible. Ms Frakes also noted that paperwork would need to be completed so that compensation payments could be determined; in particular, Claim for Time off Work (CTOW) forms would need to be submitted with medical certificates to confirm incapacity before payments could be made or leave re-credited. This last point was made with considerable elaboration and emphasis.

   [19] Exhibit R3 pages 51-2

6. In response, it appears, to Ms Frakes’ letter, Ms Phillips sent two emails on 14 January 2019, each attaching completed CTOW forms, the first at 7:56pm[20] and the second at 10:12pm.[21] In each case Ms Phillips nominated the dates of the medical certificates that she said she had already provided. These emails were sent to Ms Sillis. A third email to Ms Sillis,[22] on 15 January, referred to three CTOW forms for three medical certificates of identified dates, as before, but there is no record of any attachment to the email (the earlier two emails record the existence of attachments in the usual way), and it is common ground between the parties that Ms Phillips had omitted to attach the three completed forms. Her email of 15 January is distinguished from those sent earlier in that it asks for acknowledgement of receipt, and on 16 January Ms Sillis sent responses[23] recording that three emails had been received and sent for processing; the three emails responded to are those of 14 January, including one at 2:43pm not otherwise in evidence. There is no confirmation of receipt of the 15 January email. On 29 January Ms Phillips sent four more CTOW forms, saying in the covering email that she understood this to complete the period from the date of injury up to the present; noting one day for which she did not have a medical certificate; and explaining the basis on which various of the periods covered by the forms had been taken as different kinds of leave. The email asks for confirmation of receipt, but none appears to have been sent until Ms Phillips sent the same email a second time on 1 February 2019, and received a response from Ms Sillis on the same day.[24] Ms Sillis acknowledged receipt of four CTOW forms (those of 29 January) but made no mention of the missing forms from the 15 January email.

   [20] Exhibit A5 pages 5-7

   [21] Exhibit A5 pages 8-11

   [22] Exhibit A5 page 12

   [23] Exhibit A5 page 1

   [24] Exhibit R3 pages 179-180

7. The periods for which Ms Phillips had submitted completed forms were from 20 June 2017 to 12 October 2018, the latter being the date of her compensation claim. The missing forms not attached to the email of 15 January 2019 appear to be from the period immediately following the date of injury, as the medical certificates were dated 12 May, 19 May and 30 May 2017.

8. Ms Phillips emailed Comcare on 18 February 2019[25] enquiring after progress on assessment of the submitted forms, in light of the ACT transitioning to being a self-insurer. Believing that she had submitted leave forms for her entire period of absence, but that her remuneration and leave were yet to be adjusted, Ms Phillips was no doubt surprised to receive an email from her claims manager at Comcare, Ms Breanna Gillespie, on 18 February 2019, saying that Comcare’s system recorded that all periods off work had been paid to her.[26] The email also states that Comcare had received all the CTOW forms, and that Ms Phillips’ incapacity had been assessed and verified from 17 July 2017 to 11 February 2019.

   [25] Exhibit A5 page 22

   [26] Exhibit A5 page 22

9. On 26 March 2019 Ms Phillips wrote to her rehabilitation provider,[27] Ms Chantelle Wood of APM, asking that Ms Wood investigate whether CTOW forms had been submitted but not processed, and whether her long service leave had been re-credited, noting that expected adjustments to her remuneration had not occurred. Ms Phillips attached a list of dates and leave taken during the injury period. Ms Wood undertook to follow the matter up, but Ms Phillips received no response; she re-sent the email and inquired about progress on 11 April 2019.[28] Ms Wood responded that she had taken the matter up but that she had heard nothing.[29]

   [27] Exhibit A5 page 30

   [28] Exhibit A5 pages 37-38

   [29] Exhibit A5 page 37

10. It appears that no resolution was forthcoming to the question of Ms Phillips’ leave entitlements, as on 10 July, three months later, Ms Gaye Worthy, rehabilitation case manager in the Directorate, asked Ms Sillis to take up the issue for Ms Phillips.[30] Ms Sillis wrote on 12 July to Ms Phillips saying she would make inquiries of “EML and Payroll”.[31] About two weeks later, on 29 July 2019, a case conference was held with Mr Phillips, Ms Worthy, Ms Wood and Ms Nurul Edgerley of EML as attendees[32] (Ms Phillips was advised by Dr Meyer not to attend[33]). Several matters were covered in the conference, including the re-crediting of long service leave.[34] The instructions of what to do to resolve the issue were that Ms Phillips was to begin anew with a record of the dates of her leave, obtained from Shared Services, and to supply medical certificates covering the entire period of leave. EML would supplement the medical certificates with Dr Meyer’s clinical notes.

    [30] Exhibit A5 page 40

    [31] Exhibit A5 page 41

    [32] The minutes of the conference are at Exhibit A5 pages 44-45. They were forwarded in an email dated 1 August 2019

    [33] Exhibit A5 page 43; Exhibit R3 page 111

    [34] Exhibit A5 page 45

11. On 1 August 2019 Ms Phillips emailed Ms Wood[35] advising that her then GP, Dr Meyer, was ill, and that she would once again be seeing Dr Pahn. She hoped he would issue a certificate for workers’ compensation purposes, but asked if an ordinary medical certificate would do, given Dr Pahn’s unwillingness to be involved in compensation matters. Ms Wood responded on the same day[36] saying that a Certificate of Capacity – i.e. a workers’ compensation form rather than a normal medical certificate – would be needed. A protracted series of exchanges followed: the record of leave taken was provided by Shared Services on 21 August 2019,[37] but Ms Phillips was dissatisfied with the level of detail provided and on 16 September sought additional information,[38] some of which was provided.[39] On 17 October 2019 Ms Phillips submitted CTOW forms and a Certificate of Capacity covering the period from 23 July 2018 to 23 November 2018 when she had taken long service leave.[40]

    [35] Exhibit R3 page 112

    [36] Exhibit R3 page 112

    [37] Exhibit A5 pages 51-54

    [38] Exhibit A5 page 55

    [39] Exhibit A5 page 56

    [40] Exhibit A5 page 57

1. Mr Phillips now took up two issues with the Directorate and EML on his wife’s behalf, namely the re-crediting of the long service leave and what he had identified as the underpayment of compensation. An audit was conducted and it ultimately showed that Mr Phillips was right, but the process was extremely protracted, and the matter was settled only on 24 March 2020, three and a half months after Mr Phillips had detailed the underpayment on 6 November 2019.[41]

   Ms Phillips and Mr Glenn Phillips

   [41] Exhibit A5 pages 63-132

2. In her statement Ms Phillips described her PTSD as having made it difficult for her to manage the kind of oral communication that would have been straightforward for her before her injury. It was for that reason that she had asked that communication be by email rather than by telephone. Ms Phillips found that even communication by email presented challenges for her, and that staff of the Directorate and EML showed no awareness of her condition, its symptoms, and the way in which it affected her ability to manage the interchange she was expected to be part of. Every email she received heightened her anxiety; the absence of resolution to ongoing issues affected her sleep and mental state; and her feelings of lacking self-worth were reinforced.[42] In his statement Mr Phillips stated that his wife found requests for information confusing, and that he believed the Directorate and EML did not understand her condition and why communication was so difficult for her. Dealing with them created heightened levels of anxiety and mistrust.[43]

   [42] Exhibit A1 paragraphs 33-44

   [43] Exhibit A3 paragraphs 10, 12, 14

3. In evidence at the hearing, Ms Phillips repeated and elaborated on the way in which her exchanges with the Directorate and EML triggered her PTSD symptoms, including confusion and especially intrusive thoughts.[44] She said that the lack of responsiveness and the briskness and impersonality (“formality”) of the exchange were among the things that troubled her. Ms Phillips made an electronic diary record of some of her feelings or symptoms, and one of these diary notes, appearing as an email to herself, is an attachment to her statement, dated 15 August 2019; it complains of being ignored, of the absence of a response to a recent email and about the poor standard of efficiency and punctuality more generally. In his oral evidence Mr Phillips noted that promises were made and expectations raised, but that in practice, time after time, the promises were not kept and the expectations not met.[45]

   [44] Transcript of proceedings 9 November 2020 pages 25-30

   [45] Transcript of proceedings 9 November 2020 page 64

4. Under cross-examination Ms Phillips maintained that although the triggers from her PTSD arose initially from bullying in the workplace, during 2019 the triggers arose from the compensation process. She acknowledged that her husband had been strongly supportive and had provided extensive assistance to her, especially at and after the case conference. Mr Onitiri also established that neither the Certificates of Capacity completed by her doctors (Dr Meyer and Dr Vepuri, with one done by Dr Pahn), nor the CTOW forms that she filled out herself, presented any difficulties: both she and her doctors were able to complete these forms without difficulty. Ms Phillips acknowledged that in the process of assembling a complete table of the leave she had taken over 2017 and 2018, only she would have been able to inform the Directorate or Shared Services of the basis for some periods of leave – for example when she had taken leave for workers’ compensation purposes for a separate physical injury to an elbow in early 2017 – and only she would have been able to provide information regarding the operation of her antique shop in Cootamundra. She also conceded that some of the Directorate, EML and APM staff with whom she dealt were helpful and responsive to her.

5. In oral evidence Mr Phillips emphasised the enormous change in his wife’s personality that had been caused by her mental injury. Under cross examination he acknowledged that the Directorate and EML had largely adhered to the request that communication on compensation matters occur by email. Similarly, his role as his wife’s agent in compensation matters, at and after the case conference, had been accepted without problem.

   Mr Michael Young

6. Mr Young is Executive Group Manager, Workplace Safety and Industrial Relations Group in the Directorate, and also Public Sector Workers Compensation Commissioner appointed under the Fund Act. Mr Young’s witness statement[46] outlines the ACT’s participation in the Comcare scheme and identifies the roles played by the Directorate and EML. A copy of the self-insurance licence issued to the ACT is attached to the statement. The statement makes the point that the responsibility of providing the information needed for the determination of benefits to be paid or provided under an accepted claim lies with the injured worker.[47] The CTOW and Certificate of Capacity forms reflect the information requirements set out in the SRC Act.[48] Mr Young states that the needs of individual injured workers are taken into account “where reasonably practicable” and that staff will adjust processes to suit the particular circumstances of an injured worker.[49] He also sets out some of the features that made Ms Phillips’ claim more complex and administratively demanding than most.[50]

   [46] Exhibit R1

   [47] Exhibit R1 paragraph 16

   [48] Exhibit R1 paragraph 17

   [49] Exhibit R1 paragraphs 18, 26

   [50] Exhibit R1 paragraphs 22-24, 27-32

7. In oral examination and under cross-examination Mr Young elaborated on the above points. He explained in more detail the challenges involved for the claims administration function in dealing with retrospective claims – those made well after the date of injury – especially where, as here, the period of retrospectivity extended for more than 45 weeks (incapacity benefits under section 19 of the SRC Act are calculated on a basis that changes at 45 weeks after the injury). He accepted that aspects of the Comcare Service Charter,[51] which sets out the standards of service to which Comcare holds itself, captured the sort of standard of service he expected EML to provide in the ACT, in areas such as helping injured workers understand their rights, entitlements and obligations, and in making timely decisions.

   Ms Rachel Hughes

   [51] Exhibit A4

8. Ms Hughes is Senior Manager, Injury Management, Workplace Safety and Industrial Relations in the Directorate. In her witness statement[52] Ms Hughes sets out the roles of the Directorate and EML once the ACT had become a self-insurer under the SRC Act and outlines how Ms Phillips’ claim had been managed. She notes that all outstanding matters had been resolved, and all payments made, by 24 March 2020. She also notes a number of factors that made the claim complex and administratively demanding and may have contributed to delay in processing aspects of it. Ms Hughes asserts that the way in which Ms Phillips’ claim was managed, and the responses of EML as issues arose, was appropriate and within normal parameters, given the challenges it presented and the various obstacles that created particular difficulties for those involved.

   [52] Exhibit R2

9. At the hearing Ms Hughes said that determining Ms Phillips’ compensation entitlements had coincided with a large payroll exercise in which about 60 payroll staff had processed a pay rise for about 16,000 ACT public servants. She also reiterated other factors which had contributed to the complexity of the task of determining Ms Phillips’ entitlements with the required accuracy. Ms Hughes also acknowledged that the record suggested a long gap between March and October 2019 in which the ACT had not taken Ms Phillips’ matters forward, although she also suggested that work was occurring on Ms Phillips’ matter before and during that period.

Consideration

Is Ms Phillips’ workers’ compensation arrangement covered by the employment related provisions of the Discrimination Act?

1. As noted above, the Discrimination Act makes certain kinds of behaviour in certain areas of public life unlawful. If the behaviour that is the subject of Ms Phillips’ complaint does not fall within one of the specified areas of public life, her complaint cannot succeed. Ms Phillips nominates the area of public life in which she experienced discrimination as that covered by section 10 of the Discrimination Act, relating to employees and applicants for employment. In particular, Ms Phillips asserts that she has been discriminated against because the behaviour of her employer, the ACT, had the effect of denying her a benefit associated with employment, namely her workers compensation entitlements; and that the behaviour also subjected her to other detriment. If accepted, that would bring the behaviour within sections 10(2)(b) and (d) of the Discrimination Act.

2. As well as contesting that the evidence supports Ms Phillips’ claim regarding the ACT’s behaviour, the respondent also challenges the contention that the impugned behaviour properly falls within section 10 of the Discrimination Act. The respondent argues that the behaviour is not sufficiently associated with employment; and the acts and omissions did not relate to “benefits associated with employment”, as specified in section 10(2)(b) of the Discrimination Act. Further, the acts and omissions of the Directorate, or of EML as its agent, were all taken in the context of making determinations of liability under the SRC Act; those determinations were done necessarily under statute (the Fund Act) and therefore fall within the general exception in section 30 of the Discrimination Act.

3. It was accepted by the respondent at the hearing that the protections afforded by workers’ compensation arrangements are one of the benefits that accompany employment: those arrangements provide security that if an accident were to happen the injured worker would be appropriately rehabilitated and/or compensated, depending on circumstances (see for example section 31 of the Workers Compensation Act 1951). The respondent did not contest that general proposition, but argued that once the injured worker is receiving compensation, those benefits are delivered by an insurer or claims manager and the connection with the employer begins to attenuate. After a sufficient period of time it would be artificial to consider that the compensation arrangement retains the connection with employment that it once had; at that time it no longer has the necessary directness or continuity of connection to be regarded as an aspect of, or benefit of, employment.

4. That argument is plainly not without force; a recipient of workers’ compensation entitlements will be dealing with the insurer and claims manager in virtually every transaction undertaken in relation to the claim. Even in the present matter, where employer and insurer (the ACT Government) are the same entity, it is in the capacity of the insurer that a body such as the Directorate will usually interact with the complainant and that is even more so for EML as claims manager; the business unit employing Ms Phillips, CSD, recedes into the background.

5. But that does not, in my view, rob the interaction of its connection with employment. It would be an odd and indeed illogical outcome if workers’ compensation were to be considered a benefit associated with employment when it was prospective but not when it was actually being delivered as a result of an injury in the workplace. It is worth noting, too, that many injured workers return to work after an injury, either immediately or after a period of recovery, often at reduced hours, and receive benefits such as medical expenses and incapacity payments while working. It does not seem any kind of a stretch to regard compensation payments in such circumstances as a benefit of the injured worker’s employment; and the difference of those from Ms Phillips’ circumstances is a difference of degree rather than of kind. The calculation of an injured worker’s incapacity payments under section 19 of the SRC Act is calculated using the worker’s “normal weekly earnings” and “ability to earn”, which also suggest a continuing link to employment – and reasonably so in that the incapacity payment is a replacement for the remuneration that the worker would otherwise have received in employment. Indeed in the present case the particular benefits that Ms Phillips was seeking were re-crediting of her long service leave and reimbursement for the periods in which she had taken long service leave at half pay. It would surely seem somewhat odd to regard the re-crediting of long service leave as something other than a benefit associated with employment; and if so, equally odd to regard the adjustment of remuneration associated with the re-crediting as different from the re-crediting itself in that respect. And although I understand that over a protracted period the relationship between the injured worker and an employer may weaken, it would seem to me that it never loses its essential character as an aspect of employment. That is more clearly the case here because a limited time had elapsed between Ms Phillips’ time in active employment and the period in which the impugned behaviour by the Directorate occurred.

6. Reinforcement of that perspective comes from other parts of the SRC Act. Subsection 5(9) extends the meaning of “employee” to embrace a former employee. Further, the SRC Act places significant emphasis on rehabilitation. Part III of the SRC Act sets out provisions governing the assessment of an injured worker’s suitability for rehabilitation,[53] the formulation of a rehabilitation program,[54] and the provision of aids (such as modifications to a home or vehicle) to assist a worker’s rehabilitation.[55] The body responsible for this rehabilitation program is the “rehabilitation authority”, defined in section 4 as the principal officer of the employer (with exceptions presently not relevant). This gives the employer a continuing relationship with the injured worker where the worker is unable to return to employment, a relationship that continues even after the employment relationship has come to an end: see for example Fleming and Comcare,[56] Daff and Comcare,[57] Cook and Comcare,[58] and especially Steins and Comcare.[59]

   [53] Safety, Rehabilitation and Compensation Act 1988 (Cth) section 36

   [54] Safety, Rehabilitation and Compensation Act 1988 (Cth) section 37

   [55] Safety, Rehabilitation and Compensation Act 1988 (Cth) section 39

   [56] [2004] AATA 1016

   [57] [2010] AATA 732

   [58] [2017] AATA 227

   [59] [2019] AATA 803 at [17]-[22]

7. The respondent also relies on the exception in section 30(1)(a) of the Discrimination Act for action necessarily taken in order to comply with a Territory statute, pointing to section 11 of the SRC Act (which identifies the liability of the insurer with the amounts determined under the SRC Act), the assumption of liability by the Territory under the Fund Act, and the licence granted by the Commission. I do not agree with that contention. The complainant is asserting that her efforts to sort out her entitlements were met by inaction and delay. It would be verging on the bizarre if the complained of inaction and delay were to be described as action “necessarily taken”; nor does that description seem to fit the complaint of the insistence on use of a particular form – a form which Mr Young stated was not prescriptively required. In any case, the use of “necessarily” surely indicates an intent on the part of the legislature to limit the ambit of the exception to those cases where a decision-maker is obligated to take particular actions in order to comply with a statute, rather than to encompass the administrative detail under a legislative scheme; and that perspective is confirmed by the case law – see Waters v Public Transport Corporation;[60] Butcher v The Key King Pty Ltd.[61]

   [60] [1991] HCA 49 at [49]-[56] (Mason CJ and Gaudron J, Deane J agreeing); [20]-[22] (Brennan J); [10]-[17] (Dawson and Toohey JJ); [34]-[41] (McHugh J)

   [61] [2000] ACTDT 2 at [32]

8. Section 4AA of the Discrimination Act obliges anyone interpreting the Act to do so in a way that is beneficial to a person with a protected attribute, consistent with the objects of the Act and the Human Rights Act 2004. Even without that provision, taking all of the above into account, I am satisfied that Ms Phillips’ workers’ compensation relationship with the Directorate brings her complaint, if substantiated, within the ambit of section 10 of the Discrimination Act; nor does it escape that Act under the exception in section 30.

   Did the treatment of Ms Phillips by the Directorate amount to indirect discrimination?

9. In ACT v Wang[62] the Appeal Tribunal identified the tests that must be met by a complainant in order to establish indirect discrimination. These tests are:[63]

   (a)The existence of a condition or requirement.

   (b)That the condition or requirement was imposed by a person (the respondent).

   (c)That the imposed condition or requirement had the effect of disadvantaging people with the attribute of the complainant.

   (d)That the effect of the disadvantage was caused by the attribute.

   (e)Whether the condition or requirement was reasonable in the circumstances.

   Was a condition or requirement imposed, and if so, what?

   [62] [2019] ACAT 65

   [63] ACT v Wang [2019] ACAT 65 at [162]-[163]

10. My understanding of Ms Phillips’ case is that she contends[64] that two requirements or conditions were imposed on her:

    (a)The first is that by its inaction and failure to respond to her enquiries the Directorate required her to respond independently, to manage her compensation matters by herself, to chase up matters with the Directorate, EML and Shared Services, and generally to take on the responsibilities that should have been discharged at least in part by those organisations.

    (b)The second is that the Directorate repeatedly insisted on her completing a particular form, the Claim for Time off Work form, if she wished to receive her incapacity payments and have her long service leave re-credited.

    [64] Applicant’s submission paragraph 11, as qualified by Mr Maling at the hearing; see transcript of proceedings 9 November 2020 page 17

11. The respondent understands Ms Phillips’ case to extend to a third condition or requirement, namely the insistence on the use of a second and separate form, namely the Certificate of Capacity, signed by an injured worker’s general practitioner. It is my understanding that this was not pursued as part of Ms Phillips’ case, but for the sake of completeness I will proceed as if it had been.

12. The respondent’s argument is that no requirement or condition is imposed in either case. In respect of the two forms that Ms Phillips contends she was compelled to use, the respondent relies on the evidence of Mr Young that the information could be provided in other ways, and no compulsion attached to the particular forms. In respect of the requirement to pursue her compensation case independently, the respondent says that it was not the case that no assistance was provided to Ms Phillips: she had the help of her husband, and staff from the Directorate, EML and APM, such as Ms Wood and occasionally others, provided support and assistance from time to time. The respondent also argued that the degree of compulsion required by the statute was absent: to establish a condition or requirement Ms Phillips would have needed to have explicitly sought and been denied assistance; only then would she have been thrown back on her own resources in the way contended.

13. The respondent has pointed to authority that in an indirect discrimination action the complainant must specify, with a degree of precision, the condition or requirement that is asserted to have occasioned the discrimination, especially where the condition or requirement is alleged to have arisen from inaction.[65] The courts have been clear on this point, but have also been clear that a phrase such as “condition or requirement” is to be construed broadly,[66] and that a requirement or condition may be implicit or result from inaction. They have also made plain that the compulsion is contingent rather than absolute: a person must meet the requirement or condition in order to obtain a benefit or avoid a detriment.

    [65] Walker v State of Victoria [2011] FCA 258 at [194]

    [66] Catholic Education Office v Clarke [2004] FCAFC 197 at [103]; Tyrell v Coles Supermarkets Pty Ltd [2020] NSWCATAD 57 at [33]

1. In this instance it seems to me that Ms Phillips has identified the requirements or conditions with regard to the use of the two forms with the necessary degree of specificity. The requirement to use the CTOW form appears for example on multiple occasions in the email of 11 January 2019 from Ms Frakes:

   The requirement of a CTOW form for each medical certificate provided is required for the appropriate period… the ACT Government is unable to pay Workers Compensation to an employee without Comcare approving a period of incapacity from the submitted CTOW form … The reaccrediting of any leave that is determined by Comcare to be covered under Workers Compensation cannot be completed until Comcare have made a determination from the CTOW form … that is required to be submitted.[67]

   [67] Exhibit R3 pages 51-2

2. After Ms Phillips had submitted a medical certificate on 15 January 2019[68] Ms Frakes responded once again stating that the CTOW form was needed: “We are unable to process payments of workers compensation without this form”.[69] Again on 14 February 2019 Ms Sillis sent an email[70] that, among other things, insisted on the use of the form: “in order for this period of incapacity to be considered for approval as compensation by the insurer we require a claim for time off work form to be submitted”.

   [68] Exhibit R3 page 79; this email bears the timestamp 3:38pm and is distinct from the email sent later that day, at 4:27pm, supposedly but not in fact attaching three Claim for Time off Work forms, at Exhibit A5 page 12

   [69] Exhibit R3 page 78

   [70] Exhibit R3 page 99

3. In my view it is inescapable that each of these emails imposed a requirement on Ms Phillips. If she wanted to receive the incapacity payments and have her leave re-credited, in line with her entitlements, completion of the form was required. Mr Young said in evidence that the information could be provided in other ways, but that is not the message that the passages quoted above convey. I find that Ms Phillips was subject to a requirement to complete the CTOW form if she wished to receive her entitlements.

4. A similar conclusion flows readily in respect of the Certificate of Capacity. On 1 August 2019 Ms Phillips advised Ms Worthy and Ms Wood in an email that her usual general practitioner, Dr Meyer, was ill. She asked if an ordinary medical certificate could be provided by Dr Pahn instead of a Certificate of Capacity, until Dr Meyer recovered. This was in respect of her claim to have her long service leave re-credited. Ms Wood replied the same day advising that the Certificate of Capacity was needed (and offering Ms Worthy’s assistance to persuade Dr Pahn, if necessary).[71] Once again, it is difficult to read this message as anything other than the imposition of a requirement. Even if Mr Young said that alternative ways of obtaining information were available, none were offered to Ms Phillips. I find that a requirement to use the Certificate of Capacity form was imposed on Ms Phillips.

   [71] Exhibit R3 page 112

5. Whether a condition or requirement to manage her compensation matters independently was imposed is more problematic. Section 8(3) of the Discrimination Act uses the verb ‘impose’ – indirect discrimination arises where a person “imposes, or proposes to impose” a condition or requirement that has certain properties. The use of ‘impose’ is different from the equivalent provisions in the discrimination legislation of some other jurisdictions. Any interpretation that “impose” might imply some deliberate decision is in tension with section 4A of the Discrimination Act, which provides that doing an act includes failing to do an act. That plainly leaves open the possibility that in certain circumstances a failure or refusal to act can impose a condition or requirement on a person who might otherwise derive a benefit from the act. Nevertheless the drafting – “impose”, “requirement or condition” – implies through the forcefulness of those terms that any failure or refusal to act must be definite and clear, and it will more clearly impose a condition or requirement if repeated or prolonged.

6. It seems to me that the present circumstances meet that test. On 29 January 2019 Ms Phillips sought confirmation of receipt of the material she had submitted, and an assurance that she had now done what was required of her, and, receiving no reply, resent the email on 1 February. She received confirmation of receipt but no response on the question of whether she had submitted all the relevant material. On 26 March 2019 Ms Phillips enquired of Ms Wood (who is employed by the rehabilitation provider, APM) whether all her material had been processed and also whether her long service leave had been re-credited. It appears that Ms Wood forwarded those enquiries but no response was forthcoming, and Ms Phillips asked again on 11 April, again with no response. After that date, no further action seems to have occurred until on 10 July – three months later ‒ Ms Worthy asked Ms Sillis to investigate progress on the long service leave issue; Ms Sillis apparently made enquiries, but it appears no response was ever provided to Ms Phillips. The way forward only seems to have been identified at the case conference held on 29 July 2019, attended by Mr Phillips, with Ms Phillips herself absent. The solution arrived at was that Ms Phillips would obtain a full tabulation of her leave, identify what leave was taken for compensation reasons and what was not, and supply CTOW forms and Certificates of Capacity to cover all the leave taken for compensation reasons. Once again, responsibility was left with Ms Phillips.

7. It is worth recalling the purpose of Ms Phillips’ repeated enquiries. She had undisputed entitlements under the SRC Act, entitlements that arrived either as payments or as the restoration of her leave. In late 2018 she had taken long service leave at half pay. It was now accepted that she had been incapacitated for work during the period because of her compensable injury. She was therefore owed the difference between half her salary and the appropriate incapacity payments; she was also due to have restored to her account the long service leave she had taken in the second half of 2018. These entitlements are not at issue, and all were ultimately paid or re-credited. Ms Phillips had by the end of January 2019 submitted information regarding her periods of incapacity, with Certificates of Capacity, and the Directorate or Shared Services held all the information regarding her leave; thus it was entirely feasible that the Directorate and Shared Services, between them, could have resolved Ms Phillips’ entitlements with minimal further input from her (I am leaving aside the three missing CTOW forms that were not attached to the email of 15 January 2019, because it is not apparent to me that any consequences flowed from that omission, and because the period covered by those forms did not involve any long service leave, so far as the evidence discloses). Given the prolonged period over which the Directorate and its agents made no substantive response despite several enquiries, it seems entirely reasonable to me that Ms Phillips should have concluded that if she were to receive her entitlements she would have to pursue them independently and on her own account.

8. The respondent disputes this, arguing both that no compulsion was applied and that Ms Phillips was not required to act independently because assistance was always available, from various staff and from her husband. I am unpersuaded by these arguments. The compulsion was, as it always is, contingent: effectively, Ms Phillips was faced with the need to take the matter forward herself if she wished to receive what she was owed; in the words used by Mr Onitiri in his Outline of Submissions (quoting the Macquarie Dictionary definition of ‘condition’), this was “a circumstance indispensable to some result”, that result being payment of what was owed and re-crediting of leave; it was “that on which something else is contingent”, in that the payment and re-crediting was contingent on Ms Phillips herself taking charge. Of course an argument could be made that the degree of compulsion was insufficient; that if she had been patient a resolution would have been provided by the ACT through one or more of the agencies involved. But there was a six-month period (from 29 January to 29 July 2019) in which, so far as I can see, absolutely no forward movement occurred; and when movement occurred, it was to thrust responsibility back upon Ms Phillips so far as these matters were concerned.

9. As for the respondent’s other argument, I do not take Ms Phillips’ statement that she was forced to act independently to mean that she was compelled to act entirely without any form of support from any quarter; such an interpretation would be absurd. On a fair reading, I understand Ms Phillips to be putting the contention that she was compelled to act independently without substantial assistance from the respondent – i.e. from the Directorate, EML, APM and Shared Services. Her claim is certainly not negated by the help she had from her husband; as for the assistance that she may have had occasionally from the Directorate or EML, I cannot see that any substantial assistance was provided from about the end of January 2019 to the end of July 2019 on the issues that are at stake here, namely the restored incapacity payments and the re-crediting of leave. People may have sometimes asked questions on her behalf, but they never obtained answers; and they may have helped her on other issues, but not on those at issue here.

10. Taking all the above into consideration, I find that the Directorate, by its failure to respond to Ms Phillips’ enquiries and requests, imposed a requirement that she advance her repayment and re-crediting matters without substantial assistance from the respondent.

    Were the conditions or requirements imposed by a person?

11. It is not at issue that the ACT imposed the conditions or requirements; the respondent conceded that if a condition or requirement were found to have been imposed, then the ACT would have imposed it. At an earlier stage there was a question whether EML or APM might in some circumstances be the responsible actor, but that argument has not been pressed. I am satisfied that the ACT, as insurer, is the party that must take responsibility; EML and APM, as claims manager and rehabilitation provider respectively, act as the ACT’s agents or delegates, and under section 121A of the Discrimination Act the ACT is responsible for the actions of its representatives (except in certain circumstances that have not been argued for). I find that the ACT imposed the requirements identified earlier.

    Did the requirements have the effect of disadvantaging people with Ms Phillips’ disability?

12. It is Ms Phillips’ case that she suffered more than one form of disadvantage, although the identification of those forms of disadvantage varies somewhat. One is a constant element in every appearance of the argument, namely delay; another appears rather less centrally and can be identified as mental distress; and a third is named as time, although to my mind characterised rather nebulously. The separateness of these forms of disadvantage is not always emphasised. Ms Phillips’ original complaint to the Human Rights Commission references “failure to address reimbursement of leave eand compensation entitlements [sic]” and “Ongoing delays have significantly impacted my recovery through increased anxiety, trust issues, triggers associated with PTSD”.[72] Ms Phillips’ pleading states that the requirement to complete the section 19 claim independently and without assistance “had the effect of delaying access to entitlements in a reasonable timeframe” and that “The detriment suffered by the Applicant has been financial loss, grief, pain, loss of enjoyment of life and suffering”.[73] Her written submission, under the heading “What disadvantage did the applicant suffer?” devotes one paragraph to delay[74] and another to mental distress.[75] And in dealing with whether or not the identified requirements were reasonable, under section 8(4) of the Discrimination Act, Mr Maling in his oral submission on behalf of Ms Phillips referred to “the delayed payment of wages and entitlements” and shortly afterwards to “mental distress” as “a consequence of what the disadvantage was, the loss or damage”.[76] But when he came to deal explicitly with what he said was the disadvantage arising from the imposition of the requirements on Ms Phillips, he said it was first the delay in payment and re-crediting of leave; and the second form of disadvantage he identified as “time … in terms of prejudice she experienced in being able to rectify the issue that she had”[77] (it is this characterisation that I described above as nebulous; in my understanding Mr Maling was saying that besides the delay in receiving remuneration and re-credited leave Ms Phillips was also compelled to invest her own personal time in resolving her issues).

    [72] Exhibit A2 page 3

    [73] Applicant’s pleading at [52]

    [74] Applicant’s submission at [22]

    [75] Applicant’s submission at [23]

    [76] Transcript of proceedings 10 November 2020 page 133

    [77] Transcript of proceedings 10 November 2020 page 138

13. In summary, Ms Phillips contends that the lack of action by the Directorate and EML, and the resulting requirement to manage independently the restoration of her incapacity payments and the re-crediting of her long service leave, led to a payment and re-crediting decision that might have been finalised in perhaps March or April 2019, being finalised a year later, in late March 2020. Ms Phillips also contends that she found the need to continue interacting with the Directorate and EML to resolve her underpayment and re-crediting of leave very distressing.[78] The mental distress flowed from the nature of the interaction with the ACT and its agents – an interaction very much extended and made more complex and demanding by the ACT’s unresponsiveness and, in respect of matters like the use of particular forms, its prescriptiveness.

    [78] Exhibit A1 at [33]-[42]; applicant’s pleading at [52]; applicant’s submissions at [23]

14. The respondent has put a variety of arguments forward opposing any disadvantage accruing to Ms Phillips from her exchanges with the Directorate and EML. The respondent contends that Ms Phillips was not disadvantaged by the obligation to use the CTOW and Certificate of Capacity forms, as she acknowledged under cross-examination that use of the forms was a straightforward task for herself and for her doctors.[79] The respondent conceded that there had been delay but argued that “delay was an effect and not a condition in its own right”.[80] The respondent also suggested that the problem amounted to an expectation by Ms Phillips about the level of service she should receive from the Directorate and its agents. If the service was not at the standard she expected, this might not mean she was disadvantaged, merely that her expectations were too high.[81]

    [79] Respondent’s outline of submissions paragraphs 28-30

    [80] Respondent’s outline of submissions at [27]

    [81] Transcript of proceedings, 10 November 2020, page 153

15. With regard to the impact of the requirement on Ms Phillips’ PTSD, the respondent contends that the evidence of increased symptoms is self-reported and untested, and should only be accepted if confirmed by an independent medical expert.[82] The respondent further argues that the medical evidence does not establish that Ms Phillips sustained any injury beyond that for which she was receiving compensation; that the evidence does not allow a conclusion to be drawn regarding the contribution of the pre-existing injury to any exacerbation or the causation of any exacerbation; and that any worsening of the condition should have been addressed through the workers’ compensation scheme.[83]

    [82] Respondent’s pleadings at [58]–[60]

    [83] Respondent’s outline of written submissions at [72]-[73]

16. Taking the respondent’s arguments in succession, it is indeed the case that any delay was not itself an imposed condition or requirement, but that argument misrepresents Ms Phillips’ position, which is that delay was one of the disadvantages flowing from the requirement that Ms Phillips manage her claim independently; it was not put forward as an imposed condition or requirement. I do not accept the contention that this was all a matter of the level of service provided; the inaction by the respondent threw her on her own resources and led to something like a year’s delay in providing her undisputed entitlements. That is plainly a disadvantage. I have no difficulty in finding that the requirement led to delay, which was itself a disadvantage; and equally to the demand on Ms Phillips’ time that Mr Maling identified as a further form of disadvantage.

17. It is, however, difficult to discern specific disadvantage flowing from the use of the two forms: Ms Phillips conceded that the forms were difficult neither for herself nor her doctors; their use does not appear to have contributed in any material way to the delay in dealing with her compensation entitlements; and there is little evidence of any particular disturbance to her mental state arising from their use. At the hearing Ms Phillips said that the manner in which the requirement to use the form was imposed caused her problems, because of its peremptory tone and lack of empathy, but that relates less to the use of the CTOW form itself than to the way in which the requirement to use it was imposed. In one exchange Ms Phillips asked if Dr Pahn could sign a normal medical certificate rather than a Certificate of Capacity, and was told he could not; but there is no evidence that this led to any significant disadvantage, including any increase in PTSD symptoms. It appears to me that if an increase in symptoms did occur because of the requirement to use a particular form, it is best understood as part of a larger pattern of increased symptoms arising out of the protracted and unsatisfactory exchange relating to the underpayment for incapacity and the re-crediting of leave.

18. Because there is such a pattern. There is the evidence of Ms Phillips herself, of her husband, of Drs Meyer and Vepuri and of Ms Walmsley. I am leaving aside Dr Pahn, as he signed only one relevant certificate, and when doing so he simply adopted Dr Meyer’s comments, so I cannot be sure that he truly turned his mind in sufficient detail to the progress of Ms Phillips’ injury. But all the evidence, including that of Ms Walmsley, and the diary entry attached to Ms Phillips’ statement, is consistent with the thesis that the business of dealing with the unsatisfactory aspects of her compensation had the effect of worsening Ms Phillips’ PTSD symptoms. The respondent’s argument that any worsening of her symptoms was, or should be, covered by her compensation payments is specious. The question I am considering is whether Ms Phillips suffered discrimination in her experience as an injured worker receiving compensation; whether or not she had claims she might have made under the SRC Act is irrelevant to that question, and I cannot see how compensation potentially paid under the SRC Act somehow makes up for or cancels out Ms Phillips’ entitlements under ACT discrimination legislation. Nor am I willing to dismiss the evidence as mere self-report: mental illnesses are mostly known to others through self-report, and doctors are trained and experienced in recognising factitious reports. There is no suggestion that Ms Phillips is in some way unreliable as a witness, and her reported symptoms were not a focus for Mr Onitiri’s cross-examination.

19. Ms Phillips’ mental distress as a form of disadvantage flowing from the requirement imposed on her to take forward her underpayment and leave re-crediting issues independently is plainly put forward in Ms Phillips’ complaint to the HRC, in her witness statement, in her evidence at the hearing,[84] in her pleading, and in the written submissions. The evidence, which is uncontested, is enough for me to conclude that on the balance of probabilities Ms Phillips suffered disadvantage, namely an increase in the severity of her PTSD symptoms, flowing from the requirement that she manage independently her compensation underpayment and leave re-crediting.

    [84] Transcript of proceedings 9 November 2020 pages 25-30

1. What is needed here, for Ms Phillips to succeed, however, is not that she, as an individual, suffered disadvantage, but that the imposed requirement is likely to disadvantage people sharing her protected attribute.[85] Little evidence was advanced regarding the class of people with PTSD and whether Ms Phillips’ response to her circumstances was one that would have been shared by others with PTSD. In evidence Ms Phillips said at one point that her reactions were typical of PTSD sufferers, and that any of the staff at the Directorate could have known what she was going through by consulting Google;[86] that is a course that a tribunal is unlikely to find a satisfactory basis for a finding, and Ms Phillips is not a medical expert. But the diagnoses by Dr Meyer and Dr Vepuri are quoted as being in accordance with DSM 5,[87] meaning, as I understand it, that those diagnoses were arrived at through and supported by the commonly used Diagnostic and Statistical Manual of Mental Disorders, 5^th edition, which is generally known by that acronym. The first page of the section on PTSD in DSM 5[88] lists the diagnostic criteria for the condition as including “recurrent, involuntary and intrusive distressing memories of the traumatic event(s)”; “intense or prolonged psychological distress at exposure to … cues that … resemble an aspect of the traumatic event”; “persistent avoidance of stimuli associated with the traumatic event(s)”; “negative alterations in cognitions or moods”.[89]

   [85] Australian Capital Territory v Wang [2019] ACAT 65 at [168]

   [86] Transcript of proceedings 9 November 2020 page 30

   [87] See, eg, Exhibit A5 pages 59, 61, 188

   [88] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th edition, 2013) page 271

   [89] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5^th edition, 2013) page 271

2. The ACT remained Ms Phillips’ employer, and the continued interaction she had with the Directorate was, in my view, sufficiently closely connected with her employment, and the source of her mental injury, to meet the DSM 5 descriptors quoted above. On the basis of the evidence, taken as a whole, I am satisfied that the imposed condition had the effect of disadvantaging Ms Phillips and that it was likely to have had that effect on anyone with PTSD caused by their employment by the ACT, and I so find.

   Was the disadvantage caused by Ms Phillips’ protected attribute?

3. Ms Phillips contended[90] that the test for causation should be that set out in Kovac v the Canberra Croatian Club Ltd[91] (Kovac), that her PTSD, alone or with other factors, must be “a real, genuine and not insubstantial” reason for the disadvantage people like her, with the same attribute, would suffer or be likely to suffer. The requirement that she navigate the process largely under her own steam, for a large part of 2019 – 2020, caused her disadvantage; by treating all injured workers the same; the respondent inflicted disadvantage on those who, like her, were more than normally susceptible to the acknowledged stresses of the compensation process.

   [90] Applicant’s submissions at [25]-[30]

   [91] [2014] ACAT 41 at [90]

4. The respondent stated that there is a complete absence of evidence linking the delay in processing Ms Phillips’ entitlements to her protected attribute. Many factors may have contributed to that delay, including the complexity of the claim (arising from its late lodgement, well after the date of injury, and the numerous types of leave taken), the shift of the ACT to self-insurer status under the SRC Act in March 2019, the preoccupation of Shared Services staff with a large payroll task at the same time, as well as the 2019 Christmas break and possible admitted errors and miscommunication over the period. None of those explanations, according to the respondent, display the kind of causal link needed to establish the rebuttable presumption set out in the HRC Act at section 53CA.

5. There has been extensive treatment in the case law of the tests for causation in discrimination legislation. Both parties in the present matter have been happy to rely on the test set out in Kovac, which in turn draws on a number of other cases, notably Purvis v New South Wales[92] (Purvis), Nicholls and Nicholls v Director-General, Department of Education and Training (No. 2)[93] and Almassey and Omari and ACT Multicultural Council Inc.[94] The test identified in Kovac, which takes into account the particular drafting of the ACT Discrimination Act, is that the protected attribute must be a “real, genuine and not insubstantial” cause; but the application of the case in the present matter must be undertaken with some care because Kovac deals with direct rather than indirect discrimination, as do all the cases listed above on which it draws. In the ACT, in direct discrimination, the causal link that must be established, for discrimination to have occurred, is between the applicant’s protected attribute and the unfavourable treatment to which the applicant has been subjected. In indirect discrimination, on the other hand, the causal link that must be established is between the protected attribute and the disadvantage brought about by the imposed requirement or condition, or the effect of that disadvantage.

   [92] [2003] HCA 62

   [93] [2009] NSWADTAP 20

   [94] [2008] ACTDT 2

6. The respondent has argued, in my view persuasively, that the delay that Ms Phillips has suffered cannot be attributed to her disability. It was not PTSD that caused the delay: Ms Phillips was able to complete her CTOW forms, and to have her doctors sign the Certificates of Capacity without undue difficulty or the expenditure of significant time, even if she found the use of the prescribed forms upsetting and unduly bureaucratic. The delay happened at the other end of the communication chain, in the offices of the Directorate, of EML, or of Shared Services. The respondent has listed a number of potentially contributing factors, none of them, so far as the evidence discloses, is linked causally to Ms Phillips’ protected attribute, her PTSD.

7. In his closing submission, Mr Maling attempted to tie Ms Phillips’ PTSD to the delay, arguing, for example, that her failure to attach three CTOW forms to her email of 15 January 2019 was an illustration of her difficulty in coming to grips with the compensation process. But apart from the sheer normality of a failure to attach a document to an email, the evidence simply does not disclose any disadvantage that Ms Phillips suffered from that particular failure. The forms related to an early period, immediately after her date of injury in the middle of 2017, and have no or very little connection to the period in the second half of 2018 relating to her attempt to have her compensation payments adjusted and her long service leave re-credited. There may have been consequences from the failure, but no evidence relating specifically to the three missing forms has been brought to my attention. I can detect no causal link between Ms Phillips’ PTSD and the delay in re-crediting her leave and paying her remuneration.

8. Just as I am unpersuaded that the delay is causally linked to Ms Phillips’ PTSD, I am unpersuaded equally that time and the prejudice arising from the time taken for the process is so causally linked. Mr Maling was somewhat unclear in identifying the relevant disadvantage in his final submission, but to my mind if the delay itself was not caused by PTSD, neither was the time required of Ms Phillips or anything flowing from it.

9. Delay and time are two of the areas of disadvantage arising from the imposition of the requirement on Ms Phillips to pursue her compensation claim independently and to use the prescribed forms. The third is the pain, loss, suffering and mental distress that the process caused her. I have no hesitation in drawing the conclusion that the cause of this form of disadvantage was Ms Phillips’ PTSD. The medical evidence is limited, but it predates the present tribunal process and is therefore to be regarded as contemporaneous; and the respondent has not led any evidence contesting it. What evidence there is plainly links Ms Phillips’ requirement to pursue her compensation claim to her worsening PTSD symptoms. This connection is drawn in the HRC complaint and is especially apparent in Ms Phillips’ witness statement and in her evidence at the hearing.

10. Section 53CA of the HRC Act creates a rebuttable presumption that indirect discrimination has occurred if a complainant establishes that an imposed condition or requirement has disadvantaged the complainant, and presents evidence that would allow me to decide, in the absence of another explanation, that the disadvantage was caused by the person’s protected attribute. The respondent then has the onus of persuading me that any disadvantage was not caused by the protected attribute. It is my conclusion that Ms Phillips has suffered disadvantage from the conditions or requirements imposed on her, in the form of delay, loss of time, and mental distress; but that the evidence with regard to the delay and loss of time is either insufficient to persuade me that Ms Phillips’ PTSD is the cause, or else what evidence there is has been successfully rebutted. I am, however, persuaded that Ms Phillips’ worsened mental distress was caused by her PTSD, and accordingly, I so find.

    Were the imposed requirements reasonable?

11. Subsection 8(4) of the Discrimination Act provides that a condition or requirement does not give rise to indirect discrimination if it is “reasonable in the circumstances”. Subsection 8(5) lists (not exhaustively), as matters to be taken into account, the nature of the resulting disadvantage, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is disproportionate to the result sought by the person imposing the requirement or condition.

12. This is an area of discrimination law where the statutes from different Australian jurisdictions are closely similar. The factors governing decisions about reasonableness derive from the relevant statute or have been advanced in leading cases. In Waters v Public Transport Corporation the High Court concluded that ‘reasonable’ conditions or requirements meant that such conditions or requirements were reasonable in all the circumstances.[95]

    [95] Waters v Public Transport Corporation [1991] HCA 49 at [16]-[17] (Brennan J); [2]-[5] (Deane J); [29] (Dawson and Toohey JJ); [24]-[30] (McHugh J)

13. The reasonableness or otherwise of one of the two requirements in the present matter can be resolved fairly quickly. The requirement to use the CTOW and Certificate of Capacity forms was contended to be unreasonable by Ms Phillips on the basis that the SRC Act does not prescribe the use of the form, and Mr Young conceded in his evidence that provided the information is made available to determine the matters relevant to the applicable provisions of the SRC Act, the prescribed form is not essential. In his argument on this issue, Mr Maling relied heavily on section 54 of the SRC Act. This provision states at subsection 54(2) that a person making a claim must use the prescribed form and must provide a medical certificate; subsection 54(5) then qualifies that provision by stating that substantial compliance with section 54(2) is sufficient. There was some discussion of the section at the hearing; section 4 of the SRC Act defines ‘claim’ as a claim made under Part V of the SRC Act, in which section 54 is found. The word ‘claim’ is not used in the other parts of the SRC Act in which the governing provisions for different types of compensation – medical expenses, death, incapacity, permanent impairment and so on – are set out. It appeared therefore open to question whether a ‘claim’ for incapacity, for example, is a ‘claim’ under Part V, and is covered by the ‘substantial compliance’ flexibility given in subsection 54(5).

14. This issue was canvassed in a decision of the Commonwealth tribunal (the Administrative Appeals Tribunal (AAT)) by Deputy President (DP) Forgie. In Bureau of Meteorology and Comcare[96] (Bureau of Meteorology) DP Forgie looked at whether a claim is required for each type of compensation under the SRC Act, and concluded that it is so required,[97] citing Lees v Comcare[98] in support. It follows from that conclusion that each claim Ms Phillips submitted for incapacity was a “claim” under Part V of the SRC Act and was indeed covered by subsection 54(5) of that Act.

    [96] [2015] AATA 267

    [97] Bureau of Meteorology and Comcare [2015] AATA 267 at [63]

    [98] [1999] FCA 753

15. DP Forgie also undertook a survey of the case law relating to the concept of ‘substantial compliance’, concluding that what constitutes ‘substantial compliance’ will depend on the statutory context, but among the principles she distils is that a departure from the statutory requirement cannot be regarded as substantial compliance if it involves a departure from the essence of what the Parliament has required.[99] In the present context, then, a critical question will be whether submission of a claim for incapacity payments by Ms Phillips other than by the specified form would involve a departure from the essence of the decision-making criteria set by the SRC Act. Clearly, that depends entirely on what information was submitted and whether it met the information requirements of the relevant provision of the SRC Act, here section 19.

    [99] Bureau of Meteorology and Comcare [2015] AATA 267 at [37]

16. That throws into stark relief the very different nature of the enquiry in Bureau of Meteorology and the cases cited therein and the present matter. There the enquiry is usually whether, after some departure from the usual form and procedure, a valid claim has still been made under the SRC Act; the enquiry here is whether it was reasonable for the Directorate and EML to press Ms Phillips to use the particular forms. We do not know, generally, how information might have come forward if Ms Phillips had ignored the advice and instruction she was given. There is one instance, however, in which we can form a view on that point. On 14 August 2019 Ms Phillips, knowing that Dr Meyer was sick, wished to see Dr Pahn and have him sign the certificate. She asked EML if he could sign a normal sick leave certificate rather than the Comcare Certificate of Capacity, and was advised strongly to use the Comcare form. The usual sick leave certificate, of the kind issued to patients to attest to their inability to attend work, does not provide for the attribution of the illness or injury to employment; and without that attribution the certificate will not meet the requirements of the insurer that the injury in question has the relevant nexus to the workplace.

17. The same point arises in the context of the CTOW form. Section 19 of the SRC Act is a complex and demanding provision, providing for a wide range of possible post-injury scenarios – whether the injured worker is able to work or not; if able, whether the worker undertook any work, or sought any work; and if offered any work, took up that offer, or did not; and so on. The Comcare form has been carefully designed to collect the relevant information in the simplest way; if the form were not used relevant information allowing a decision under section 19 might be omitted, necessitating the chasing up of the information, which would be annoying both for the injured worker and for staff of the insurer.

18. Turning then to the considerations enumerated in subsection 8(5), first, it is not clear that any significant disadvantage was caused by the imposition of the requirement. None of the documentation suggests that there was; in the hearing Ms Phillips complained not of having to use the forms, but rather about the peremptory tone in which she was told that if she did not, her entitlements might not be paid. And while mitigation might be straightforward (e.g. providing injured workers with more options for how to submit information), the inconvenience would, in my view, completely outweigh any disadvantage.

19. In light of all the above considerations it seems to me that it was entirely reasonable for the Directorate and EML to encourage use of the CTOW form. The statement that Ms Phillips might not receive her entitlements if she did not do so was worded perhaps somewhat astringently, but that was a problem not in requiring use of the form, but in the detail of the way that requirement was expressed. I note too that on only one occasion did Ms Phillips object to using one of the specified forms, and that was when Dr Pahn was the doctor that would have to sign. Staff of the Directorate and EML therefore had little occasion to consider at greater length whether any alternative path might be identified.

20. My conclusion is that Ms Phillips has not met her obligation to demonstrate the unreasonableness of the requirement to use the Claim for Time off Work and Certificate of Capacity forms.

21. With regard to the requirement that Ms Phillips pursue her entitlements without assistance from the Directorate and EML, the disadvantage that I have accepted as having resulted from that requirement, and having been caused by Ms Phillips’ disability, is the increase in her symptoms of PTSD (I have not accepted delay because I did not find the causation test to be satisfied). Ms Phillips points to both severity and duration aspects of this disadvantage.[100] During the period in question Ms Phillips argues that it would always have been feasible for the respondent to mitigate the disadvantage by responding to her and assisting her with aspects of her claim; and that the respondent’s failure to take these actions, far from assisting in the respondent’s responsibilities under the SRC Act, in fact must have impeded them.[101] Ms Phillips contends that, on that basis, the imposed requirement was not reasonable.

    [100] Applicant’s submission at [32]

    [101] Applicant’s submission at [33]-[34]

22. The respondent contends that any requirement that might have been imposed was reasonable in the light of the complexity of the task, the limited resources available and the competing demands on those resources, pointing to the transition to self-insurer status by the ACT, to the late lodgement by Ms Phillips of her workers’ compensation claim, to the considerable variety of types of leave taken by Ms Phillips before lodging her claim, and to the exercise in updating the payroll for the entirety of the ACT Public Service.[102] The respondent also pointed to the accommodations that the Directorate and EML made in interacting with Ms Phillips, by avoiding telephone contact and by switching to Mr Phillips as the main contact when asked to do so.

    [102] Respondent’s outline of submissions at [36(f)]; respondent’s pleading at [62]; respondent’s outline of written submissions at [66]-[68]; transcript of proceedings 10 November 2020 pages 166-8

23. At the hearing Mr Maling narrowed the scope of the discrimination complaint, saying that Ms Phillips’ case was that the unlawful behaviour of the respondent extended from January 2019 to the case conference held on 29 July of that year; and that the disadvantage suffered by Ms Phillips continued after that time but that no assertion of unlawful behaviour extended after the end of July 2019. There are, consistently over that period, comments by Ms Phillips’ general practitioners noting the way in which management of the compensation process was worsening her PTSD. It could not be said that there is a great deal of detail, but there is enough for me to understand the broad outlines of the “nature and extent” of the disadvantage caused her. As for the potential for mitigation, I take Ms Phillips’ point that mitigation at the time would surely have been straightforward. And I note that in fact no detailed explanation has been offered as to why there was no progress on Ms Phillips’ enquiries about her entitlements between 29 January and 29 July 2019; Ms Wood asked questions of various people, perhaps, but no answers were forthcoming, and no account of what happened or why there was no forward movement has ever appeared. Making an injured worker’s mental illness worse seems to me a serious and worrying circumstance for an insurer, and I cannot see that that harm is outweighed by any benefit from the failure of the Directorate and EML to take appropriate action (indeed it is not clear that there was any substantive benefit). I find that the requirement imposed on Ms Phillips to pursue her claim independently was not reasonable.

Did the ACT take action with regards to Ms Phillips that amounts to unlawful discrimination?

1. I have concluded that the requirement to use the CTOW and Certificate of Capacity forms was not discriminatory because no disadvantage was demonstrated and in any case the requirement was reasonable. The delay occasioned by the requirement that Ms Phillips take charge of her compensation entitlements was not discriminatory because it was not caused by her protected attribute. But it follows from the preceding considerations that the ACT has discriminated against Ms Phillips in one respect. The sequence of considerations leading to that conclusion is as follows.

   (a)It is not at issue that Ms Phillips has a disability, namely PTSD, that satisfies paragraphs 7(1)(e) and 5AA(1)(g) of the Discrimination Act.

   (b)The ACT imposed on Ms Phillips a requirement that she conduct her workers’ compensation claim without substantial assistance from the Directorate and EML.

   (c)That requirement had the effect of disadvantage to Ms Phillips, by triggering or exacerbating symptoms such as anxiety and intrusive thoughts.

   (d)These symptoms were caused by her PTSD, which is her accepted disability, and a protected attribute under the Discrimination Act.

   (e)The requirement imposed on Ms Phillips was not reasonable in all the circumstances.

   (f)The imposition of the requirement involves the subjection of Ms Phillips to treatment which falls within “any other detriment” associated with employment, under section 10(2)(d) of the Discrimination Act and is therefore unlawful discrimination under that Act. (Earlier in this decision the application of section 10(2)(b) – “denial of a benefit” associated with employment was considered as an area of public life potentially applicable, but as none of the disadvantage suffered by Ms Phillips as a result of discrimination was associated with the delay in providing the benefits associated with her compensation, that provision no longer has application).

2. In this regard I note the statement by Mason CJ and Gaudron J in Waters v Public Transport Corporation[103] that particular attention should be given to the objects of legislation that enforces human rights. The objects of the Discrimination Act are set out in section 4; they generally encourage the elimination of discrimination, and support equal treatment, and in paragraph 4(d) set out in particular the need for encouragement of the recognition that:

   (ii) equal application of a rule to different groups can have unequal results or outcomes; and

   (iii) the achievement of substantial equality may require the making of reasonable adjustments, reasonable accommodation and the taking of special measures.

   [103] [1991] HCA 49 at [21]

3. Mr Young and Ms Hughes both commented that Ms Phillips had been treated just like every other injured worker under the SRC scheme.[104] That is also a point made in submissions by the respondent.[105] Ms Phillips’ point is that treating people with her condition the same as every other injured worker has, in her case and potentially in those of others with similar conditions, significantly deleterious, and unequal, effects.

Orders

[104] Exhibit R1 at [33]; Exhibit R2 at [39]

[105] Respondent’s outline of written submissions at [63(c)]

1. Section 53E of the HRC Act provides that the Tribunal must make orders in response to a finding that a person complained about has committed an unlawful act. Possible orders are enumerated in subsection 53E(2) and may be of three kinds: directions that discriminatory conduct should stop; directions for action in redress by the person who committed the unlawful act; and financial compensation. The principles underpinning orders made under section 53E of the HRC Act are explored in some detail in Kovac v the Australian Croatian Club Ltd (No 2)[106] (Kovac No 2), and I have drawn on that case in arriving at the conclusions that follow.

   [106] [2016] ACAT 4

2. Subsection 53E(1) applies section 53E where the Commission refers a complaint to ACAT and ACAT finds that the person complained about committed an unlawful act. It is the provision that opens the way for orders to be made. The Commission referred Ms Phillips’ complaint to this tribunal, and, for the reasons set out above, I have found that the ACT – the person about whom Ms Phillips complained – committed an unlawful act. It follows that I have an obligation to make one or more orders in response.

3. I cannot see that I can sensibly make an order to redress any loss or damage that Ms Phillips has suffered, under the redress provision in section 53E(2)(b). I cannot make an order to heal any past or remaining symptoms of PTSD, and her entitlements under the SRC Act have now been provided to her (and in any case I did not find that the delay in provision of the entitlements was unlawful). But I can make orders for reform and compensation under paragraphs (a) and (c) respectively of the subsection.

4. That said, the orders I can sensibly make are limited. First, under paragraph 53E(2)(a) I can make an order that the ACT “not repeat or continue” the unlawful act. That is limited by the drafting of the paragraph to behaviour that falls within the discrimination I have found to have occurred. There are two particular aspects of the unlawful act that act as constraints here: first, the ACT’s actions imposed a requirement on Ms Phillips through an extended period of unresponsiveness that may be particular to her case; and second, Ms Phillips has a disability that made her especially vulnerable to that kind of unresponsiveness. An order for the ACT to “not repeat or continue” its unlawful act must be limited to action aimed at avoiding similar periods of unresponsiveness in respect of injured workers with similar conditions, or some equivalent. Further, in the absence of expert evidence about Ms Phillips’ mental illness, I do not have evidence I can rely on about the typicality of her symptoms, their severity, their likely duration, and whether similar symptoms are likely in other mental illnesses (such as, for example, adjustment disorders or obsessive-compulsive disorder). But I acknowledge that Ms Phillips has specifically sought, in her witness statement, that I should make an order to prevent others in similar positions from suffering as she did.

5. Any order that the law will allow me to make in these circumstances may be narrow for the reasons given above. But it is still worth doing: it seems to me that an insurer that allows staff in their normal interactions to exacerbate the injuries of injured workers should give some thought to the need for training of staff and improvement of work practices. Accordingly I have made an order that the Directorate and its agents (presently EML and APM) must institute a training program for relevant staff and improve procedures in respect of timeliness and responsiveness to injured workers with mental injuries.

6. Both parties put argument in regard to a quantum for payment of compensation under paragraph 53E(2)(c): Ms Phillips is asking for an award in the range of $20,000 – 40,000, with a recommendation of $35,000; the respondent cites an alternative line of authorities and suggests that if compensation is to be paid, I should not go beyond a “nominal” amount of $2,500 – 5,000. Ms Phillips relies on a survey of awards in discrimination cases[107] undertaken by a barrister, Ms Kellie Edwards, and especially on Richardson v Oracle Corporation,[108] noting that since the latter case the level of compensation typically awarded has increased. She suggests that this reflects a rise in community expectations. The respondent points out that the evidence relating to the worsening of Ms Phillips’ PTSD because of her treatment by the Directorate is limited, and suggests that any compensation payment must be limited accordingly. Ms Phillips argues that the respondent is relying on cases considerably older and not in line with current patterns.

   [107] Kellie Edwards, General Damages in Discrimination/Adverse Action Claims, CPE Conferences, 2017

   [108] [2014] FCAFC 82

7. Subsection 53E(3) sets out considerations to be taken into account in making an order for compensation. These comprise: the impact of the discrimination on the person’s right to equality before the law; the impact of discrimination on the person’s dignity; the balance between the complainant’s right to equality before the law and competing rights; the nature of the discrimination; and any mitigating factors.

8. I have already commented on the impact of the treatment afforded Ms Phillips on her mental injury. Her treatment was not public, and so humiliation may not have been the kind of factor it might be in other cases, but it cannot be conducive to a person’s dignity, nevertheless, to undergo the kind of protracted process considered here. I cannot see that any other human rights, of Ms Phillips or of anyone else, are likely to be significantly compromised if I make an award of compensation. The discrimination I have identified was not malicious or intentional; rather it seems to have been the product of inattention, thoughtlessness and perhaps overstretched resources. And I should take into account that the ACT has sent a letter of apology to Ms Phillips.

9. In terms of quantum, the absence of expert evidence regarding the severity of Ms Phillips’ worsened symptoms, and of the persistence of those worsened symptoms, tells against her case, as noted in Kovac No 2.[109] I have evidence that there was a worsening in Ms Phillips’ symptoms, enough for me to conclude that she had indeed suffered disadvantage, which was a necessary step in arriving at the conclusion that discrimination had occurred. But I have nothing persuasive on how severe the worsening of symptoms, the contribution of the compensation process at its best (compensation processes are known for the stress they create – see for example JQWK and Comcare[110]), nor on the completeness of the recovery Ms Phillips made once her compensation matters were resolved. Dr Meyer remarked on the worsening of symptoms in his clinical notes, and in Certificates of Capacity, noting a worsening during the early months of 2019. Dr Vepuri similarly included a sentence in each Certificate of Capacity. There is also a letter from Ms Phillips’ psychologist. None of these goes into any detail, and there is limited comment on change over time. None of those who wrote these notes gave evidence and was tested in cross-examination. Ms Phillips and her husband gave evidence, but their evidence, on this issue, is not from experts and needs to be treated with caution, for obvious reasons.

   [109] Kovac v The Australian Croatian Club Ltd (No 2) [2016] ACAT 4 at [59]-[82]

   [110] [2013] AATA 830

10. Ms Phillips has suffered no financial loss from the discrimination (the late payment of her entitlements resulted not from exacerbation of her PTSD but from the delay), so the compensation she is seeking is for non-economic loss. Arriving at an appropriate figure is notoriously difficult, especially because the loss suffered by an applicant is normally highly subjective. Ms Phillips has put forward a strong case for a higher figure, and she is right that in general the cases approvingly cited by the respondent are considerably older, coming from the period 2000-2008.

11. I am satisfied that Ms Phillips has suffered a worsening of her mental condition from the discriminatory behaviour of the ACT, but I do not have the evidence I would need to reach a conclusion that would warrant the kind of award she is seeking. The discrimination did occur, as the respondent points out, over a closed period of limited duration. The impact of the discrimination is significant, but the respondent has apologised and there was no malice or intention involved. Finally, Ms Phillips herself gives the impression that she is more concerned to see the practices of her insurer and claims manager reformed than she is in receiving monetary compensation.[111]

    [111] Exhibit A1 at [45]-[48]

12. In the circumstances, I believe an award of the level sought by Ms Phillips is not one I can make, but she did suffer harm at the hands of the respondent, and accordingly a more than ‘nominal’ quantum is more in line with recent cases. In the circumstances, and taking into account on the one hand the evidence that the discrimination did worsen her mental injury, at least for a period, and on the other that the extent of the worsening and its duration is something I can have only an approximate knowledge of, I award her compensation of $9,000.

13. Ms Phillips has also sought interest on the amounts paid to her under the SRC Act once the underpayment issue relating to her long service leave had been resolved, in recognition of the delay in those payments. The interest is sought in the context of a costs order. For the reasons explained below, the costs orders this Tribunal can make are limited; in any case, the delay in payment is not something occasioned by the hearing of the matter by this Tribunal, and interest is therefore not sensibly considered as a component of costs. I have therefore considered the possibility of paying interest as an element of a compensation amount under section 53E of the HRC Act. In Kovac No 2 the tribunal recognised that there was no impediment to the payment of interest in appropriate cases. In this instance, however, I have found that the delay was not itself discriminatory, and accordingly, I make no order for the payment of interest by way of compensation.

Costs

1. Ms Phillips has sought costs on a party-party basis, and interest on her compensation entitlements for the period they were unpaid. Section 48 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) allows this Tribunal, where a decision is made in favour of an applicant, to order that the respondent pay the filing fee for the application and other fees necessarily incurred; subsection 48(2) extends that power to costs occasioned by a party’s unreasonable delay or obstruction of a matter, or to occasions where a party has failed to comply with a direction by the tribunal. The respondent has taken me to CIC Ltd v ACT Planning and Land Authority[112] where Penfold J confirmed that the only basis for awarding legal costs in an ACAT matter are as set out in subsection 48(2) of the ACAT Act (the drafting of section 48 taken as a whole leaving other possibilities arguable).

   [112] [2013] ACTSC 96

2. The respondent put to me that there had been no delay or obstruction, and indeed no basis for the making of a costs order. I accept that argument, noting that Mr Maling has not pointed to any offending behaviour by the respondent. Accordingly, I make no costs order, and, for the reasons explained above, I also make no order for payment of interest.

   Orders

   1.The ACT, in its role as insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and through its contracted claims manager and rehabilitation provider, must:

   (a)on the basis of the expert advice of a psychiatrist or clinical psychologist, provide training to those staff dealing with injured workers with a mental injury, so as to minimise the risk of triggering symptoms or otherwise exacerbating the injury; and

   (b)institute improved procedures for dealing with mental injuries aiming to:

   (i)avoid delays in processing of claims;

   (ii)provide timely responses to enquiries by injured workers;

   (iii)keep injured workers informed of progress on their claims; and

   (iv)provide timely advice to injured workers regarding any impediments to claims being processed.

   2.Complete the introduction of the changes set out in (a) and (b) above by 31 March 2022.

   3.By 5:00pm on 30 April 2021, the respondent must pay to the applicant an amount of $9,000 by way of general damages.

   4.There is no order as to costs or interest.

   ………………………………..

   Senior Member M Hyman

Date(s) of hearing	9 November 2020, 10 November 2020
Solicitor for the Applicant:		Mr Maling, Elringtons
Counsel for the Respondent:		Mr S Onitiri
Solicitor for the Respondent		Ms R Pierce, ACT Government Solicitor