FEDERAL COURT OF AUSTRALIA
Ponraj v Wycombe Services Pty Ltd [2023] FCA 118
File number(s): VID 727 of 2020 Judgment of: MCELWAINE J Date of judgment: 22 February 2023 Catchwords: HUMAN RIGHTS – disability discrimination – direct and/or indirect discrimination in employment by reason of temporary disability – where applicant contends direct discrimination by reason of respondent’s refusal of his request to provide remote access to work from home – whether applicant was treated less favourably than relevant comparator – whether disability was the basis or reason for refusal of his request – where applicant contends indirect discrimination by reason of a requirement to attend premises to work in circumstances where remote access was refused – whether any such requirement found – application dismissed
CONTRACTS – Cross-claim for breach of Services to Practitioner Agreement – where cross-respondent alleges breach of agreement due to unexplained absences and breach of exclusivity clause – cross-claim allowed
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46O, 46PH(1B)(b)
Disability Discrimination Act 1992 (Cth) ss 3, 4, 5(2), 6(1), 11, 15
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 51A
Federal Court Rules 2011 (Cth) r 30.01
Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) Cases cited: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Hurst v State of Queensland (2006) 151 FCR 562; [2006] FCAFC 100
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
Munday v Commonwealth (No 2) (2014) 226 FCR 199; [2014] FCA 1123
New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14
Nojin v Commonwealth (2012) 283 ALR 800; [2011] FCA 1066
Nojin v Commonwealth (2012) 208 FCR 1; [2012] FCAFC 192
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69
Sklavos v Australian College of Dermatologists [2016] FCA 179
Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247; [2017] FCAFC 128
Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561; [2002] FCA 987
State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581
Tropoulos v Journey Lawyers Pty Ltd (2019) 87 IR 363; [2019] FCA 436
Walker v State of Victoria [2012] FCAFC 38
Waters v Public Transport Corporation (1991) 173 CLR 349
Watts v Australian Postal Corporation (2014) 222 FCR 220; [2014] FCA 370
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 179 Date of hearing: 12-14 September 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Ms J Alderson
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Details
- Case
- [2023] FCA 118
- Decision Date
CaseChat Overview and Summary
In the case of Ponraj v Wycombe Services Pty Ltd, the applicant, Dr Ponraj, sought relief against the respondent for alleged disability discrimination under the Disability Discrimination Act 1992 (Cth). Dr Ponraj claimed that he was treated less favourably than a relevant comparator due to the respondent's refusal to allow him to work from home following an ankle injury, and that this refusal was based on his disability. The respondent, Wycombe Services, cross-claimed against Dr Ponraj for breach of an agreement to provide medical services from its practice, alleging that Dr Ponraj had been absent without notice and had provided services at a competing practice.
The primary legal issue before the court was whether Dr Ponraj's treatment by the respondent constituted disability discrimination. The court considered whether Dr Ponraj had been treated less favourably than a relevant comparator, and whether his disability was the basis or reason for the refusal to allow him to work from home. The court also had to determine whether the requirement to attend the practice to work was an indirect discriminatory measure. Additionally, the court assessed the merits of the respondent's cross-claim for breach of agreement by Dr Ponraj.
The court found that the respondent's refusal to allow Dr Ponraj to work from home was reasonable given the information available at the time, and that the refusal was not based on his disability. The court held that there was no indirect discrimination as the requirement to attend the practice was not found to be discriminatory. Therefore, Dr Ponraj's claim for disability discrimination was dismissed. On the cross-claim, the court found that Dr Ponraj had breached the agreement by being absent without notice and by providing services at a competing practice, and thus the respondent was entitled to judgment on the cross-claim.
The court ordered that Dr Ponraj's claim be dismissed, and that the respondent was entitled to judgment on the cross-claim in the sum of $574,248.58 plus interest up to judgment. The assessment of interest and all consequential orders, including costs, were adjourned for further determination. The parties were required to file and serve submissions on all consequential orders within 14 days of the making of these orders.
The primary legal issue before the court was whether Dr Ponraj's treatment by the respondent constituted disability discrimination. The court considered whether Dr Ponraj had been treated less favourably than a relevant comparator, and whether his disability was the basis or reason for the refusal to allow him to work from home. The court also had to determine whether the requirement to attend the practice to work was an indirect discriminatory measure. Additionally, the court assessed the merits of the respondent's cross-claim for breach of agreement by Dr Ponraj.
The court found that the respondent's refusal to allow Dr Ponraj to work from home was reasonable given the information available at the time, and that the refusal was not based on his disability. The court held that there was no indirect discrimination as the requirement to attend the practice was not found to be discriminatory. Therefore, Dr Ponraj's claim for disability discrimination was dismissed. On the cross-claim, the court found that Dr Ponraj had breached the agreement by being absent without notice and by providing services at a competing practice, and thus the respondent was entitled to judgment on the cross-claim.
The court ordered that Dr Ponraj's claim be dismissed, and that the respondent was entitled to judgment on the cross-claim in the sum of $574,248.58 plus interest up to judgment. The assessment of interest and all consequential orders, including costs, were adjourned for further determination. The parties were required to file and serve submissions on all consequential orders within 14 days of the making of these orders.
Orders
Orders of the court
1. The applicant’s claim is dismissed.
2. The respondent is entitled to judgment on the cross-claim in the sum of $574,248.58 plus interest up to judgment pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) in an amount to be assessed.
3. The assessment of interest and all consequential orders, including as to costs, is adjourned for further determination.
4. The parties must file and serve submissions as to all consequential orders including interest and costs within 14 days of the making of these orders, limited to 3 pages, minimum 12 point typeface with one and one half line spacing.
5. Subject to any further order of the Court, all applications for consequential orders will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the detailed reasons that follow, I have concluded that Dr Ponraj’s claim fails and the respondent’s cross-claim succeeds. I adjourn for further submissions, or hearing if necessary, the quantification of interest on the cross-claim and all consequential orders, including as to costs.THE FACTS There is little dispute between the parties as to the facts, save as to two telephone conversations between Dr Ponraj and representatives of the respondent. Pursuant to various case management orders, the parties rely on affidavits that set out the evidence-in-chief to be relied upon together with a court book of agreed documents that became an exhibit. The affidavits relied upon by Dr Ponraj were made on 3 December 2021 and 9 March 2022 respectively. The respondent relies on affidavits from Ms June Wong made on 9 February 2022 and 5 April 2022, Ms Julia Agius made on 9 February 2022, Dr John Crimmins made on 9 February 2022 and 6 April 2022 and Mr Oliver Young made on 9 February 2022 and 6 April 2022. The affidavits set out a comprehensive history of the interactions of the parties. The affidavits were adopted as the evidence-in-chief of each witness, with limited evidentiary objection from Ms Alderson. Dr Ponraj read his affidavits and was cross-examined. Dr Crimmins, Ms Wong (appearing remotely), Ms Agius and Mr Young appeared and were cross-examined by Dr Ponraj. On 20 December 2018, Dr Ponraj entered into the Agreement, later amended by a deed dated 11 June 2019, pursuant to which he agreed to provide medical services from the Practice for a period of 6 years. Under the Agreement, Dr Ponraj agreed, inter alia, to provide medical services exclusively from the Practice; not to be absent for more than five weeks of each calendar year and to give advance notice of intended absence. In consideration for the provision of services, Dr Ponraj was entitled to receive a lump sum amount, payable by instalments. The total amount payable was $800,000 of which $50,000 was payable on execution and $750,000 was payable within 7 days of 1 July 2019. These amounts were paid and, for ease of reference, I have excluded the GST. Further, and also on 20 December 2018, the respondent and Dr Ponraj entered into a loan agreement whereby the respondent lent $300,000 to Dr Ponraj, conditional upon execution of the Agreement and which required repayment upon receipt of the $750,000 payment. The loan was advanced and the repayment was made by way of deduction from the $750,000 payment. When allowance is made for GST and interest on the loan, the ultimate amount that was paid pursuant to the Agreement was $517,500. Dr Ponraj does not dispute this calculation. In April 2020, the ankle issue first manifested. It caused Dr Ponraj discomfort. It is the genesis of the discrimination claims and it is important to understand the sequence of events that followed. On 28 April 2020 at 12.53 pm, Dr Ponraj emailed Ms Wong as follows:Hi JuneI have some issues with ankle that I might have to rest for 6 to 8 weeks to start with and review in 8 weeks. I would like to know the options of remote consult from home or try 1 or 2 days a week after 1 week has been advised complete non-weight bearing boot.It will be helpful if I know the possibility of remote consult.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Dr Ponraj did not constructively engage with Dr Crimmins. On the information available to the respondent at the time, Dr Ponraj suffered from a disability serious enough to prevent him from attending the Practice for a minimum of four weeks. The response that he should remain at home and rest in order to recover so that he could resume his contractual obligations was understandable and perfectly reasonable.Conclusion as to the discrimination claims I am in no doubt that Dr Ponraj feels genuinely aggrieved by the decisions of the respondent that lay at the heart of his complaint. However, as I have demonstrated, that does not establish discrimination within the meaning of the Act. His claim must be dismissed. THE CROSS-CLAIM By its cross-claim, the respondent alleges Dr Ponraj breached the Agreement by, in summary:(1)absenting himself from the Practice for 114 days during the period 1 January 2020 and 20 December 2020 of which absences only 35 days were planned or notified; and(2)providing medical services at another, competing, medical practice during the term of the Agreement. These breaches found two notices of breach dated 2 and 20 November 2020 and, following the failure of Dr Ponraj to remedy these breaches, a notice of termination dated 3 February 2020. Contending lawful termination of the Agreement, the respondent claims an amount calculated as the termination amount in accordance with cl 15.4 of the Agreement. The total amount claimed is $574,246.58 plus interest. An additional claim for loss of service fee revenue was abandoned by Ms Alderson in her closing address. Dr Ponraj, in his amended defence which he authored, apart from denying components of the cross-claim, contends that he complied with his obligation to give notice of absence and relies on a claim that he lawfully terminated the Agreement in accordance with his notice to remedy various breaches of 17 September 2020, and the subsequent failure of the respondent to remedy the breaches. He also denies that he provided medical services at another practice contrary to the Agreement terms. A logical resolution of these competing claims requires that attention first be directed to the termination claim of Dr Ponraj because if he effectively terminated the Agreement in September 2020, the later notices of breach of agreement given by the respondent may not have been effective. To understand the competing contentions, it is necessary to examine the Agreement provisions in detail. Relevantly it provides:3 Services and facilities to be supplied3.1We agree, at our cost and expense, to provide the Services to you during the Term.3.2The Services are to assist you to provide quality comprehensive healthcare to patients from the Practice at the Medical Centre.3.3You agree to not use the Services for private or other purposes.3.4You acknowledge that Wycombe does not provide any medical services to any person, and we do not hold ourselves out as doing so.3.5Wycombe will during the Term as your agent collect all Collected Monies on your behalf. Wycombe is appointed your agent for this purpose. 4 Clinical Independence4.1We agree not to specify or direct you as to how the medical services are to be performed as you must exercise your independent clinical judgment in accordance with the Standards and the Law as to the manner in which the medical services are performed. 5 Quality comprehensive healthcare services 5.1 You agree that you will:(a)attend the Premises and provide medical services to patients during the Hours each Practice Week;(b)attend the Premises and provide medical services to patients exclusively from the Premises during the Term except:(i) with our written consent or (ii)in circumstances where emergency or urgent treatment is required and the failure to provide such treatment would be considered to be unprofessional conduct and in breach of the Standards;(c)agree a roster that enables patients to access quality health care services during Opening Hours. To that end you also agree to being available to render healthcare services on evenings, weekends, public holidays and over the Christmas, New Year, Ramadan and Eid periods as agreed;…(e)provide comprehensive, quality medical services to patients in accordance with the Standards, the Law the customs and standards of conduct becoming practitioner and acceptable to the general body of general practitioners in Australia.…(g)agree to conduct yourself and perform your obligations under this Agreement in a manner which is consistent with the Standards and promotes cooperation, collegiality and harmony amongst practitioners and other staff at the Premises.…6 Access to quality comprehensive healthcare services 6.1You agree to use your best endeavours to promote the healthcare services available at the Practice and Medical Centre and to ensure that patients have access to quality comprehensive primary healthcare services during the Opening Hours at the Practice and Medical Centre.6.2 You acknowledge and agree that by attending the Practice and Medical Centre in accordance with your Hours and meeting your roster each Practice Week that you will contribute to ensuring that patients have access to quality comprehensive healthcare services during the Opening Hours of the Medical Centre.6.3You agree to consider the needs, interests and welfare of the Practice and patients' ability to access quality healthcare services when taking absence from the Practice.6.4You acknowledge and agree that excessive absence from the Practice (including unexplained absence) will adversely impact the ability of patients to access comprehensive healthcare services at the Medical Centre.6.5You are entitled to be absent from and not render medical services at the Medical Centre for up to 5 weeks of each calendar year of the Term of this Agreement and the balance of which cannot be "rolled over" into or taken in the next calendar year of the Term. For the calendar year in which this Agreement commences, the 47 weeks and 5 weeks of absence from the Premises is. pro rated.6.6You agree that in order to ensure that patients continue to have access to comprehensive healthcare services of the Medical Centre, when planning your absence from the Practice you agree to: •(a)work with us to ensure that there are enough medical practitioners available to cover the Practice during the Opening Hours of the Medical Centre during your absence ensuring minimal waiting times for patients;(b)wherever possible work with your colleagues in the Practice to avoid being absent from the Practice during the flu season each year between May and August so that there is at least 85% of the total medical practitioners conducting their medical practices at the Medical Centre are available to be rostered during this period;(c)provide us with at least 8 weeks' notice in advance of your planned absence; and (d)ensure that you have appointed a "buddy" in the Practice in your absence to ensure continuity of care of patients in accordance with the Standards. 15 Ending this Agreement15.1This Agreement commences on the Commencement Date and continues until expiry of the Term or terminated in accordance with this clause.15.2You may end this Agreement immediately by notice in writing to us if Wycombe commits any serious breach of this Agreement and has failed to remedy that breach within 14 days of receiving a notice from you calling for that breach to be remedied.15.3Wycombe may end this Agreement immediately on the happening of any of the following events:(a)(serious breach) you commit any serious breach of any provision of this agreement and you have failed to remedy that breach within 14 days of receiving a notice from us;(b)(reputational damage) in our reasonable opinion, you have committed an act which if true would, in our opinion, adversely affect our reputation or business conducted from the Medical Centre;(c)(misconduct) you are guilty of any willful neglect or misconduct;(d)(disqualification) you are partly disqualified or fully disqualified under the Health Insurance Act;(e)(registration ceases) your registration under the Act expires (without being renewed), is surrendered, is cancelled or is suspended;(f)(registration conditions) conditions, notations, undertakings, reprimands or endorsements on your registration under the Act are imposed under the Act, other than those that exist as at the date of this agreement;(g)(confidentiality) you breach your obligations under clause 13; or (h)(warranties) you breach your obligations under clause 14.1 (a) to (h).15.4If this Agreement is terminated as a result of your breach, without limiting any other right that Wycombe may have under this Agreement, you must within 7 days pay by way of assessed and agreed damages the Termination Amount to Wycombe. The parties acknowledge that the Repayment Amount is a reasonable pre-estimate of Wycombe's losses as a result of the early termination of this Agreement.15.5If you are temporarily unable to perform your obligations under this Agreement (including rendering medical services from the Premises) due to you suffering a serious injury or illness:(a)at our election we may extend the Term of this Agreement by a period equivalent to the period in which you are unable to render medical services.(b)you must provide to us all relevant information concerning your temporary illness within 14 days of becoming aware of the temporary illness.16 Protection of Wycombe’s interests16.1Your entry into this Agreement and the Payment received at clause 1 is valuable consideration for your agreement to abide by the obligations under clause 5.1 and for the protection of our business interests under this clause. 16.2You agree that for the purpose of reasonably protecting our business at the Medical Centre that during the Restraint Period you will not provide medical services or be employed by or be directly or indirectly engaged with or interested in a Competing Business located in the Restraint Area.16.3Without limitation, the parties agree and acknowledge that the Service Fee payable by you under this Agreement is lower than the same fee that Wycombe would typically charge other medical practitioners who provide medical services at the Medical Centre and that this material and on-going benefit is valuable consideration for the obligations under this Agreement including the restraint in clause 16.2.16.4You agree that the obligations in this clause are reasonable and are required for the protection of:(a)the Practice and our business conducted from the Premises including any goodwill in that business at the Commencement Date and the goodwill which will be generated by the ongoing development of that business and the Practice at the Medical Centre; and (b)the practices of other healthcare practitioners rendering medical services from the Premises and who might not agree to render medical services from the Premises were their practices not protected.16.5You acknowledge that damages alone may not be an adequate remedy for a breach by you of this clause 16 and you consent to Wycombe obtaining injunctive relief in relation to any breach or reasonably apprehended breach of this clause.16.6For each time you provide a medical service in breach of clause 16.2, you agree to pay us, as agreed and assessed damages of 30% of the gross fee payable to you in respect of that medical service.16.7Without limiting clause 21.1 if any provision of clause 16 is unenforceable or illegal or void, but would in the circumstances be valid and enforceable if read down to an extent, then it is to be read down only to the extent required to be valid and enforceable.16.8Despite anything else in this Agreement you are entitled to render medical services:(a)in circumstances where urgent medical treatment is required where the failure.to do so might be regarded as unprofessional or unsatisfactory professional conduct in breach of the Standards and (b)at an alternative location with our written consent.
Ratio Decidendi
Legal Principle Established
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