Power v Aboriginal Hostels Limited - [2004] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POWER v ABORIGINAL HOSTELS LIMITED

[2004] FMCA 452

HUMAN RIGHTS – Discrimination in employment on the basis of disability – imputed disability – inherent requirements of position – assessment of damages.

Disability Discrimination Act 1992 (Cth) ss. 5; 15(2); 15(4)

Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR.
X v The Commonwealth (2000) CLR 177
X v McHugh, Auditor General for the State of Tasmania (1994) EOC 92-623
Randell v Consolidated Bearing Company SA Pty Ltd [2002] FMCA 44
Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31

Applicant:

DARCY POWER JUNIOR

Respondent:

ABORIGINAL HOSTELS LIMITED

File No:

AZ 180 of 2002

Delivered on:

6 August 2004

Delivered at:

Adelaide

Hearing date:

15 & 16 April 2004

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Eaton

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondent:

Ms Henderson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Declaration that the respondent has unlawfully discriminated against the applicant contrary to section 5(1) and section 15(2)(c) of the Disability Discrimination Act 1992 (Cth).
That the respondent pay to the applicant the sum of $15,000.00 by way of damages.
That the respondent pay the applicant’s costs pursuant to part 21.10 of the Federal Magistrates’ Court Rules and certify that it is appropriate for the applicant to employ an advocate pursuant to Part 21.15.
That the respondent pay the applicant’s costs for the appeal proceedings before His Honour Justice Selway with such costs to be agreed between the parties and failing agreement to be taxed pursuant to the Federal Court Rules.

FEDERAL MAGISTRATE
COURT OF AUSTRALIA AT
ADELAIDE

AZ 180 of 2002

DARCY POWER JUNIOR

Applicant

And

ABORIGINAL HOSTELS LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the application of section 15(4) of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Mr Power was employed by Aboriginal Hostels Limited on a probationary basis. His employment was terminated on 19 June 2001. As a result, Mr Power commenced proceedings in the Federal Magistrate Court alleging that his dismissal by Aboriginal Hostels constituted discrimination and so was unlawful by virtue of section 15(2) of the DDA. I dealt with the application on 9 and 10 December 2002 and delivered judgment in the matter on 3 March 2003.[1]
[1] See Power v Aboriginal Hostels Limited [2003] FMCA 42.
I determined that Mr Power was dismissed from his employment because officers of Aboriginal Hostels imputed to him a disability he did not have, namely depression. However, I dismissed Mr Power’s application on the basis “that whatever discrimination the respondent committed against the applicant was excused by the operation of section 15(4) of the DDA, in that, notwithstanding the disability that was imputed to him or because of an actual disability suffered by him, the applicant was incapable of carrying out the inherent requirements of the position…”.[2]
[2] See Power v Aboriginal Hostels Limited (supra) at paragraph 1-3.
In essence, I found that Aboriginal Hostels had breached section 15(2) of the DDA in it’s dismissal of Mr Power from his employment because of the disability imputed to him but that this treatment was not rendered unlawful because of the application of the provisions of section 15(4) of the Act. The relevant provisions of section 15 of the DDA read as follows:
“(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
a)in the terms or conditions of employment that the employer affords the employee; or
b)by denying the employee access, or limiting the employee’s access, to opportunities to promotion, transfer or training, or to any other benefits associated with employment; or
c) by dismissing the employee; or
d) by subjecting the employee to any other detriment.
(4)Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the grounds of the persons disability, if taking into account the persons past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the persons performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
a)would be unable to carry out the inherent requirements of the particular employment; or
b)would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provisions of which would impose an unjustifiable hardship on the employer.
Mr Power appealed this decision to the Federal Court. His appeal was dealt with by His Honour Justice Selway on 12 December 2003.[3] His Honour held that I had incorrectly interpreted the provision of section 15(4) of the DDA, particularly the question of whether or not Mr Power was unable to perform the duties required of him by Aboriginal Hostels “because of his disability”.
[3] Power v Aboriginal Hostels Limited [2003] FCA 1475.
His Honour also held that I had fallen into error by failing to make a factual comparison between the treatment that Aboriginal Hostels had accorded to Mr Power, a person with a disability, albeit one imputed to him and the treatment it would have accorded to a person without a disability in the same circumstances as those surrounding Mr Power. In so doing, I had failed to apply the law as recently stated by the High Court in Purvis v State of New South Wales (Department of Education and Training).[4]
[4] Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR.
In particular, His Honour found that I had made my own subjective analysis of the circumstances surrounding Aboriginal Hostels’ dismissal of Mr Power and whether those circumstances justified the termination rather than by making a proper reference of those circumstances to the provisions of section 15(4) of the DDA. In so doing, I fell into error. His Honour pointed out to me that the DDA was directed to prohibiting discrimination against people suffering a disability not achieving a “fair outcome” per se. The essential exercise for the court to carry out was to determine whether a person without a disability would have been dismissed in the same circumstances as those surrounding Mr Power, a disabled person, albeit that his disability was one imputed to him, not whether his dismissal could be justified on other grounds.[5]
[5] Power v Aboriginal Hostels Limited – Federal Court (supra) at paragraph 18.
Because of these errors, His Honour set aside the decision I had made on 3 March 2003 and remitted the matter to me “for such further consideration and determination consistent with these reasons as he should think fit.” The major issues, which seem to me to arise from His Honour’s reasons are as follows:
·Would Aboriginal Hostels have treated a person without a disability in the same way as it treated Mr Power if the same circumstances surrounding Mr Power had also applied to that person?
·Was Mr Power unable to perform the inherent requirements of his employment with Aboriginal Hostels because of his disability?

The first issue

My findings in respect of the circumstances surrounding Mr Power’s dismissal from his position at Aboriginal Hostels were not challenged on appeal and are summarised in His Honour Justice Selway’s judgment.[6] Mr Power was unhappy with various aspects of his employment, particularly that he be on call at nights. This led him to have an uneasy relationship with his work superiors and he was off work due to ill health for about 8 weeks, returning on 17 May 2001. His general practitioner referred him to a psychiatrist, Dr Cotton, who diagnosed him as suffering from “an adjustment disorder with anxiety and depression”.
[6] See Power v Aboriginal Hostels Limited – Federal Court (supra) at paragraph 2.
Mr Power’s work performance was also subject to review on a number of occasions and he was told that his performance needed to improve. As a result, his period of probation was extended to 23 June 2001.
Whilst Mr Power was absent from work, Aboriginal Hostels referred him to a routine medical examination, which was conducted by Dr Ducrou. Initially, Dr Ducrou reported that Mr Power was medically capable of performing all the duties of the job that had been specified to him.
After this medical examination, an employee of Aboriginal Hostels unwittingly informed Dr Ducrou that Mr Power had recently been diagnosed as suffering from clinical depression. In the light of this eroneous information, Dr Ducrou was asked to revise his opinion about Mr Power. This led him to reach the view that Mr Power’s depression was likely to re-occur, especially if he was working “on call” hours. Mr Power did not suffer from depression. A disability had been imputed to him.
On 19 June 2001, Mr Power’s employment was terminated. The reason given to Mr Power for his dismissal by the regional manager of Aboriginal Hostels was that Dr Ducrou’s health assessment report had indicated that he was unfit for fulltime work involving on call. Accordingly, there can be no doubt that the ostensible reason for Mr Power’s dismissal was that he was suffering from depression. Clearly, depression is a disability as defined by section of the DDA and includes a disability, which is imputed to a person.[7]
[7] See DDA section 4(k).
“Discrimination” is defined in section 5 of the DDA as follows:
“A person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disabilities.”
Following Purvis, it is necessary for a Court, when considering whether or not there has been any discrimination against a person with a disability, within the meaning of section 5 of the DDA, to conduct a factual comparison between the actual treatment accorded to the person with the relevant disability to the treatment that would have been given to a person, without such a disability, in circumstances which are the same or not materially different from those of the disabled person.
The evidence before me and my findings in respect of it indicate that the management of Aboriginal Hostels had some misgivings about the personal suitability of Mr Power to fulfil the conditions of his employment and, as a result, there was a possibility that he would have been dismissed anyway regardless of the report from Dr Ducrou.[8] However, the sole reason provided for Mr Power’s dismissal was that his disability rendered him unfit for the work. On appeal, counsel for Aboriginal Hostels informed His Honour Justice Selway that Mr Power had been dismissed because of the relevant management of Aboriginal Hostel’s understanding that Mr Power had a disability, which meant he could not perform the necessary duties required of his position. She indicated that Aboriginal Hostels would not have dismissed him merely because of his absences from work and presumably for the other problems, which had been identified in respect of the performance of his duties.[9]
[8] See Power-v- Aboriginal Hostels Limited – Federal Magistrates Court (supra) at paragraph 65.
[9] Power-v- Aboriginal Hostels Limited – Federal Magistrates Court (supra) at paragraph 9.
Given this concession, it is clear that Mr Power was treated less favourably by Aboriginal Hostels than it would have treated a person who was not suffering depression, albeit that such a person took an extended period of sick leave, during his probationary employment and exhibited other difficulties in respect of the performance of his duties during such probation. Accordingly, there can be no doubt that Aboriginal Hostels discriminated against Mr Power within the terms envisaged by section 15(2) of the DDA.

The second issue

I turn now to the substantive issue in this matter. Was Mr Power unable to carry out the inherent requirements of his position with Aboriginal Hostels because of his disability? Because of the unusual and somewhat artificial circumstances surrounding Mr Power’s dismissal, the consideration of this issue creates some conceptual difficulties. Mr Power was dismissed on the basis of a disability, which he did not in fact have. He was dismissed by Aboriginal Hostels because of concerns raised by it with Dr Ducrou regarding the implications of Mr Power suffering from “depression”.
This was a disability that was innocently but eroneously imputed to Mr Power. In fact, he had been diagnosed as suffering from “an adjustment disorder with anxiety and depression”. This raises a question. In conducting the necessary investigation for the purposes of section 15(4) of the DDA, should the Court consider the imputed disability or the actual condition or disability the disabled person was suffering at the time of the discrimination complained of?
Logic would seem to dictate that, for the purposes of section 15(4), the court should consider the actual rather than the imputed disability, which the person discriminated against suffered at the time of the discrimination. To do otherwise would have the potential to lead to absurd outcomes in some situations.
In this regard, I am indebted to Ms Henderson, counsel for Aboriginal Hostels, for an example she provided. Say a member of the Royal Australian Navy wished to apply to become a submariner but, following the application of a battery of tests was, through clerical or some other error, imputed to be suffering from claustrophobia. Clearly, such a condition would appear to preclude the sufferer from serving in submarines. On that basis, the person’s application is rejected. Obviously, the person has been discriminated against on the basis of an imputed disability.
Suppose, again, that a true interpretation of the tests performed on the person concerned indicate that he or she had a personality disorder, which rendered him or her likely to react adversely, if confined in a small space for any extended period of time with a number of other people. This latter condition may also have implications for the performance by the person concerned of the requirements of being a submariner. In such a case, there may well be medical distinctions between claustrophobia on the one hand and the personality disorder on the other. However, in conducting the required enq uiries for the purpose of section 15(4) it would appear most logical to confine those enquiries to the actual disability suffered by the person concerned rather than the imputed one, although both conditions are likely to preclude the person from carrying out the inherent requirements of being a submariner.
In this particular case, clearly Mr Power had suffered from a disability prior to his dismissal. The actual disability he suffered was the adjustment disorder, rather than the depression that was imputed to him. Accordingly, it is necessary for me to evaluate the evidence currently to hand to determine whether or not it is sufficient for me to conclude that, in suffering from this disability – the adjustment disorder - Mr Power was incapable of carrying out the inherent requirements of his employment at the Aboriginal Hostel concerned. It does not appeal to my sense of logic to apply the necessary comparison to a hypothetical person suffering the imputed disability. It seems clear to me that comparison for the purposes of section 15(4) must be made in regards to the “real” situation prevailing to the disabled person concerned. To do otherwise would potentially allow disciminators to “label” people with an imputed disability and then escape liability with impunity.
In carrying out this inquiry, I must bear a number of matters in mind. Firstly, I must not confuse “inability” with “difficulty” exhibited by the person concerned, in the performance of the inherent requirements of the employment under question. In X v The Commonwealth,[10] Their Honour Justices Gummow and Hayne said as follows:
“Section 15(4)(a) contains a number of elements that must be taken into account in seeking to apply it. First, the inquiry is whether “because of [the person’s] disability” he or she would be unable to carry out the inherent requirements of the particular employment. That is, the search is for a causal relationship between disability and being unable to carry out the inherent requirements of that employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated. Thirdly, the requirements to which reference must be made are the “inherent requirements of the particular employment.”
[10] See X v The Commonwealth (2000) CLR 177 at 208.
Secondly, I must remember that the DDA is not directed at achieving a fair outcome but rather is addressed at prohibiting discriminatory conduct on the basis of disability. As His Honour Justice Selway said:
“The DDA is principally directed to the elimination as far as possible of ‘discrimination against persons on the ground of disability’ in relevant areas (s 3 DDA). It is not directed at achieving ‘fair outcomes’ as such. Consequently what is prohibited is discriminatory behaviour based upon disability. ‘Imputed’ disability is sufficient for this purpose. What the DDA prohibited in this case was not the dismissal of the appellant for a reason which was wrong, but the dismissal of the appellant who had a disability (albeit an imputed one) in circumstances where a person without a disability would not have been dismissed. When it is understood that the DDA is directed at the ground of discrimination (which includes imputed disability) and not ‘fair outcomes’ then there seems no reason to imply that ‘disability’ appearing in s 15(4) of the DDA does not include imputed disability.”[11]
[11] Power v Aboriginal Hostels Limited – Federal Court (supra) at paragraph 18.
In my original reasons for judgment, I indicated some disquiet at the limited nature of the medical evidence led before me regarding Mr Power’s ability or otherwise to perform the required duties of his employment with Aboriginal Hostels in future.[12] His Honour Justice Selway was also concerned at the limited nature of the medical evidence originally led at hearing, which was largely defined to Dr Ducrou’s testimony.[13] Accordingly, His Honour left it open to me to allow either of the parties to call additional medical evidence on the further hearing of the matter. Mr Power elected to call evidence from his treating psychiatrist, Dr Cotton. Aboriginal Hostels elected not to call any additional medical evidence.
[12] Power v Aboriginal Hostels Limited – Federal Court (supra) at paragraph 95.
[13] See Power v Aboriginal Hostels Limited – Federal Magistrates Court (supra) at paragraph 19.

Dr Cotton’s evidence

Dr Cotton is a very experienced and well qualified psychiatrist with over 30 years experience in practice. He saw Mr Power first on 3 April 2001 and described an “angry, frustrated, upset [patient, who was] distressed, largely in relationship to an industrial argument or dispute with his employers who was feeling that he was being victimised and unfairly treated and taken advantage of”. Dr Cotton diagnosed an adjustment disorder and provided Mr Power with a medical certificate for one month’s absence from work. At that stage, Dr Cotton came to a firm conclusion that Mr Power was not suffering from a depressive illness but was reacting more to his frustration and anger at his then working conditions.

Dr Cotton saw Mr Power on a number of other occasions during 2001 both before and after his dismissal by Aboriginal Hostels. Dr Power saw Mr Cotton on 4 and 19 April, 19 June, 4 July and 28 November 2001. These subsequent consultations confirmed his initial diagnosis that Mr Power had been suffering a “transient adjustment disorder”, rather than a long term disabling illness, such as depression.
Dr Cotton understood that Mr Power had returned to work at Aboriginal Hostels on 18 May 2001 and had remained there without further recourse to sick leave until his termination on 17 June 2001. This fact also confirmed Dr Cotton’s view that Mr Power had been suffering from a transient condition, which had resolved by 17 June 2001, despite the fact that there had been no major administrative readjustments at the Hostel concerned regarding on call duties for Mr Power or the after hours telephone. In Dr Cotton’s view, Mr Power had returned to work perfectly well and had been functioning normally in the same job under the same conditions for about 3 or 4 weeks, when he was terminated. Certainly, at that time, Dr Cotton did not believe that Mr Power was suffering from any disability or other illness.
Dr Cotton could not rule out the possibility of Mr Power suffering a recurrence of the adjustment disorder in future. It would be extraordinary if he could. However, in cross-examination from Ms Henderson, he was asked to prognosticate as to the likelihood of such an occurrence. In particular, Dr Cotton was asked as follows:
“Can the same circumstance, [which led to the adjustment disorder in the first place] if it recurs, upset you again enough to cause adjustment disorder?---Well, it depends whether you’ve learnt to deal with that circumstance. Now, often I see people who are upset and distressed and are blaming their job for some difficulty, and after several sessions, when one talks that through, they develop a better perspective on dealing with adverse circumstances in their job, and when a similar circumstance arises again they deal with it perfectly well. That was my thought with Mr Power; namely, he returned – after we discussed the matter on several occasions, the things that made him angry about his job, he went back there and my understanding is for the next four weeks coped with that work without becoming upset and distressed with a similar circumstance. I mean, nobody acquiesced to his requests or demands about the additional rate of pay, et cetera, et cetera. They still didn’t put the telephone on the answerphone in the office – I suggested they did, but they didn’t – and when I saw him after four weeks’ work in that circumstance, he wasn’t suffering from an adjustment disorder.”
In essence, what Dr Cotton said in his evidence was that it was his view that Mr Power, following his return to work on 17 May 2001, was still aggrieved about the circumstances of his employment and, as a result, was in conflict with the management of Aboriginal Hostels, but was capable of managing his feelings so that he would not become excessively upset about them to such an extent that he would suffer a further episode of adjustment disorder.

The inherent requirements of the position

Pursuant to section 15(4) of the DDA, the court is required to determine whether, because of his disability, Mr Power was unable to perform “the inherent requirements” of his position as an assistant manager at the Lupina Hostel. There is no dispute between the parties, and I so found, that one of the inherent requirements of Mr Power’s position was that he be “on call” several times at night each week and be available to answer the telephone enquiries about accommodation at the hostel.
In his evidence, Mr Power conceded that he found it troubling being on call because, once woken, he found it difficult to get back to sleep and that, once having started his employment with Aboriginal Hostels, the on call requirements were more significant than he had anticipated.
Accordingly, it is necessary for me to determine, on the evidence before me, whether, because of his disability, Mr Power was capable of performing the on call aspects of his employment with Aboriginal Hostels.

The respondent’s submissions

It is the respondent’s position that, as the evidence in this case indicates:
·that Mr Power had suffered two episodes of depression, whilst employed by the Salvation Army;
·that Mr Power had become ill with the adjustment disorder a short time after commencing his probationary period with Aboriginal Hostels and was away from work for seven weeks, which in the context of his probation was a significant period;
·that upon his return to work in May of 2001 none of Mr Power’s grievances in respect to his workplace: - namely his wish to be upgraded to a fulltime position; or, alternatively, to be transferred to another hostel; and, above all, that an answering machine be installed at Luperina to relieve him of the requirement to answer telephone calls at night; had been resolved in Mr Power’s favour;
·that these factors, particularly the necessity to be on call to answer the telephone, had been significant factors in precipitating his anxiety and upset in the first place;
·that the apparently, uneventful period of Mr Power’s return to work from May of 2001 onwards is a short one;
it is open to the court to conclude that the exposure of Mr Power to the work environment at Luperina was likely to cause Mr Power to develop a further adjustment disorder in the future – an occurrence that Dr Cotton could not positively rule out.
Following the initial hearing, I found that it was against the weight of evidence that Mr Power had had a “Road to Damascus” experience in the four weeks prior to the termination of his employment and had so reached, as counsel for the respondent described, a “state of serenity with his job”, which made it unlikely that he would not, in future, have such an adverse reaction to his workplace sufficient to cause a reappearance of the adjustment disorder.
Counsel for the respondent submitted that this conclusion was correct when I made it and continued to be correct, notwithstanding the additional evidence of Dr Cotton. She described Mr Power as being a person of “very passionate reactions”, who, if he believed that his work conditions were unfair, was likely to suffer a level of distress in future that he would be unable to carry out his work duties properly.
In summary, it is the respondent’s position that it is open to the court to infer that an inherent requirement of Mr Power’s position with Aboriginal Hostels, namely the requirement that he be available on call, caused him to develop an adjustment disorder. As a result, Mr Power was absent from work for seven weeks. Further, the respondent submits that it is open to the court to infer from that evidence and, from its observations of the applicant himself, that ongoing exposure to that inherent requirement would cause him to develop adjustment disorder in future, and thus render him unable to carry out one of the inherent requirements of the position, namely that he be on call to answer the telephone.
In support of this submission, the respondent points to Dr Ducro’s second report, in which he was asked to provide his opinion as the susceptibility of Mr Power to developing psychological problems if he was on call for extended periods of time.

The applicant’s submissions

Firstly, it is submitted on behalf of Mr Power that, as he was discriminated against by Aboriginal Hostels on the basis of a disability he did not have, it must follow logically that section 15(4) of the DDA has no application in the present case. Mr Power did not have depression at the time of his termination, rather it was a condition that was erroneously imputed to him. Accordingly, it cannot be said that he was actually disabled in any real sense and, therefore, it must follow that there was nothing physically preventing him from carrying out the inherent requirements of his position with Aboriginal Hostels.
Section 15(4) makes a causative connection between a person’s disability and his or her inability to carry out the inherent requirements of the particular employment. Ms Eaton, counsel for Mr Power, argues that, as her client was not disabled, in the commonly understood meaning of the word, it must follow that he was able to carry out the inherent requirements of his position as the assistant manager at the Luperina Hostel. Therefore, section 15(4) has no relevance to excuse Aboriginal Hostels discriminatory behaviour towards Mr Power.
Secondly, if that argument is not accepted, the applicant submits that, in the event that an employer is considering a course of conduct, which is likely to amount to unlawful discrimination pursuant to section 15(1) of the DDA, but believes its actions may be excused from illegality by virtue of the application of section 15(4), such an employer bears an onus to make due enquiry in relation to the disability it believes that its employee is suffering before taking such potentially discriminatory action.
Such a case may arise, as in the submariner case, where an incorrect diagnosis is given to a set of symptoms. In such a case, an employer, Mr Eaton argues, is required to make due enquiry in relation to the actual condition from which the employee is suffering and the effect such a condition would have on the person’s capacity to perform his or her employment.
In this case, it is Ms Eaton’s submission that Aboriginal Hostels failed to make such an enquiry. Once having falsely labelled Mr Power with a disability, it is her case that Aboriginal Hostels then failed to make proper enquiry about the nature of that disability and, particularly, the aetiology of the symptoms or behaviour, which caused it to believe that Mr Power could not perform the inherent requirements of the position in which he was then employed.
Essentially, what Ms Eaton argues is that Aboriginal Hostels, once it decided to discriminate against Mr Power on the basis of disability, was under a duty to make proper enquiries to ensure that all of the elements of section 15(4) did indeed apply to Mr Power’s situation - he being the person with the disability. This duty included making enquiry of Mr Power himself and his view as to his capability of performing the inherent requirements of the position, as well as making enquiry with Mr Power’s medical advisors, particularly Dr Cotton. It is her position that, once having wrongly reached the conclusion that Mr Power suffered from depression, notwithstanding its concerns about Mr Power’s ability to perform the required duties of the position, Aboriginal Hostels was required to put Mr Power on notice of its concerns.
In this regard, Ms Eaton referred me to the passage in X v The Commonwealth where their Honours Justices Gummow and Hayne spoke of a “causal relationship between disability and being unable to carry out the inherent requirements of that employment”. It is Ms Eaton’s position that Aboriginal Hostels bore the onus of searching for that causal relationship in this case and had not discharged the onus on it by failing to make enquiry of both Mr Power himself, and Dr Cotton.
In addition, Ms Eaton referred to X v McHugh, Auditor General for the State of Tasmania.[14]This was a decision of Sir Ronald Wilson, in his capacity as President of the Human Rights and Equal Opportunity Commission. The case concerned a person, who was suffering from paranoid schizophrenia, who was employed by the respondent as an auditor on a probationary basis. During his period of probation, he was admitted to hospital as a compulsory patient and was diagnosed as suffering from paranoid schizophrenia. He returned to work and provided a medical certificate indicating that he was suffering from a “medical condition”, but was unwilling to provide details of his condition to his employers. It was later found that he had failed to improve his work performance, as required in his probationary report. Ultimately, his employment was terminated. Complaints had been made about his performance at work prior to his hospitalisation.
[14] X v McHugh, Auditor General for the State of Tasmania (1994) EOC 92-623
In his decision, Sir Ronald Wilson found that:
“Section 15(4) excuses an employer from liability for discrimination against a person on the grounds of the person’s disability if, taking into account the person’s past training, qualifications and experience and their performance as an employee, the person would be unable to carry out the inherent requirements of the particular employment. The onus of proof rested on the employer to prove the employer’s inability... While it may be said that the complainant’s capacity to carry out the inherent requirements of the employment was not fully tested, the fact remains that during the time that he was back at work with his medical condition controlled by medication, nothing happened to suggest that he was incapable of satisfying those requirements…I found that following his return from sick leave, the complainant was not given a fair chance to prove his capacity to carry out the inherent requirements of the job, and there is no substantial evidence to prove that he could not do so. On the contrary, there is medical evidence to say that he could do so.”
Ms Eaton submits that this case is on all squares with the present one. She argues, firstly, that Mr Power was not given a fair chance to prove that he could perform the position properly for an extended period of time, once he had returned from his sick leave and, secondly, that, having failed to make enquiries of Dr Cotton, Aboriginal Hostels had no proper medical evidence on which to base its decision that Mr Power could not perform the inherent requirements of the position, particularly when Mr Power had returned to work in May of 2001 and worked without incident until his termination.

Conclusions

As I indicated in the initial reasons for judgment, it seems clear that Mr Power is physically capable of carrying out the requirements of the position of being assistant manager of the Luperina Hostel. Essentially, all that is required of the assistant manager is to be physically present on the premises to answer the telephone. The role is a passive one.[15]
[15] See Power v Aboriginal Hostels Federal Magistrates Court (supra) at paragraph 98
Obviously, Mr Power has no actual disability, which prevented him from getting to the telephone and answering it. Although, it seems that, once having been woken, he may, from time to time, have experienced difficulty in falling asleep again. Because of what he had wrongly told about the diagnosis of a recent episode of “depression”, Dr Ducrou was concerned about the exposure of Mr Power to sleep disturbance. However, Dr Ducrou’s opinion was based on a false premiss. Mr Power had an “adjustment disorder” not “depression”.
I accept and initially found that Mr Power resented his terms of employment and thought it unnecessary that it be part of his job to answer the telephone at night. His resentment made him angry and frustrated and this was one, if not the only, precipitating factor in bringing about the adjustment disorder, which required him to take extended sick leave during the period of his probation.
My impression of Mr Power is that he is indeed a passionate person, who is likely to react strongly to any situation, which he believes is unfair or unjust to him. I continue to believe that, in the comparatively brief period of time during which he had returned to work following his sick leave, it is unlikely that he had reached a state of equanimity with his lot at Aboriginal Hostels. In my view, given that nothing had changed in the workplace upon his return, it is unlikely that it would have been ”smooth sailing” between Mr Power and Aboriginal Hostels, if his employment had continued after the 19^th of June 2001. However, whether it is likely that his continuing presence in the unchanged workplace at Luperina Hostel would have precipitated a further episode of “adjustment disorder” or indeed any other psychiatric or psychological condition must be primarily a medical issue, rather than conjecture about Mr Power’s personality and his reaction to a situation he had previously found adverse to him.
The respondent has indicated that it would not have terminated Mr Power’s employment merely because of the extent of the sick leave taken by him during his probationary period of employment. In addition, although there is evidence to indicate that Aboriginal Hostels was dissatisfied with many aspects of Mr Power’s employment, during his probation, a further concession was made that the sole reason for Mr Power’s dismissal was concerns held by the management of Aboriginal Hostels that being on call might be injurious to Mr Power’s mental health in future.
His Honour Justice Selway was critical of my analysis of the evidence in the case, which initially I believe indicated that Mr Power was incapable of carrying out the inherent requirements of the position of assistant manager at the Luperina Hostel. The matter, which led me to this conclusion included my finding that Mr Power was likely to continue to be dissatisfied with the conditions pertaining to his employment at the Hostel and the amount of sick leave he had previously taken. These factors led me to the conclusion that:
“In all these circumstances, particularly the difficult of removing the on call aspect of the position, the fact that the applicant had seven weeks sick leave for reasons related to his emotional reaction to the job and the fact that the applicant made no secret that he did not relish having his sleep disturbed, it does not seem to me to be unreasonable for the respondent to have reached the conclusion that Mr Power was more suited to a position involving standard working hours and not one involving “on call”. It does not seem unreasonable that it would have formed an assessment that there was a significant risk of Mr Power taking more sick leave in future because of the on call duties and so, by necessary implication, putting his health in jeopardy in future.”[16]
This led me to the conclusion that, in all the circumstances, Mr Power was not capable in carrying out the inherent requirements of the position.
[16] See Power v Aboriginal Hostels Federal Magistrates Court (supra) at paragraph 119
In reaching this conclusion, I concede that, in the absence of the additional evidence from Dr Cotton, I initially placed too much emphasis on Mr Power’s past performance as an employee and failed to conduct the appropriate enquiry to determine whether there was a causal connection between Mr Power’s disability as such and any inability to perform the inherent requirements of the employment. Although the assessment must be conducted in a “practical” way, which takes into account the business environment of the potential discriminator, difficulty in performing the requirements of a particular job or indeed a lack of suitability for that job must not be confused with a physical inability to perform the inherent requirements of the job because of disability.
As His Honour Justice Selway points out, the purpose of the DDA is to outlaw discrimination on the basis of disability, which discrimination included that occurring on the basis of an imputed disability. It is not to achieve the “a fair outcome” as such between the discriminator and the object of the discrimination – in this case Aboriginal Hostels and Mr Power. This is particularly so, given the concessions that Aboriginal Hostels have already made in the case that it would not have terminated Mr Power’s employment because of its earlier perception about his failings as an employee.
It seems clear that, because of Mr Power’s particular emotional make up and the difficulty he had in respect to being woken from his sleep, he may have found it difficult to perform the tasks of being the assistant manager at Luperina. However, difficulty in performing the inherent requirements of a particular position is not sufficient to justify discriminatory behaviour pursuant to section 15(4) of the DDA. Rather, it must be shown that the person’s disability renders him or her incapable of performing the tasks required of the position.

As Justices Gummow and Hayne pointed out in X v The Commonwealth such inability must be assessed in a practical way. Given the comparatively passive requirements of the position of being an assistant manager at Luperina Hostel, it seems to me that the only practical way of assessing whether or not Mr Power was capable of performing the required tasks of assistant manager at the Hostel, because of his propensity to suffer emotional upset in the position, is on a medical basis. Clearly, this requires a comparison of the opinion of Dr Ducrou on the one hand and Dr Cotton on the other. This being the only cogent medical evidence before me.
Initially, when undertaking the routine medical examination, Dr Ducrou was of the view that Mr Power could carry out the requirements of the position. He changed his opinion because of incorrect information, which had been provided to him, namely that Mr Power had recently suffered a recurrence of a depressive illness. He did not consult directly with Mr Power about his revised opinion or seek to obtain any further information from any of Mr Power’s treating doctors, particularly Dr Cotton.
On the other hand, Dr Cotton treated Mr Power both before and after his period of sick leave and the termination of his employment. Dr Cotton was the author of the diagnosis, which was misconstrued by the management of Aboriginal Hostels and then erroneously conveyed to Dr Ducrou.
I accept Dr Cotton’s evidence, which is essentially uncahllenged, that Mr Power’s condition in the first half of 2001 was transient and had resolved by June of that year. It could not be ruled out entirely that Mr Power would not suffer a similar adjustment disorder in future. However, it was Dr Cotton’s view that, in the period prior to his termination by Aboriginal Hostels, Mr Power was coping with the unchanged circumstances of his workplace without becoming distressed and angry. This led Dr Cotton to the view that Mr Power had reached a position where he was able to manage his feelings regarding his perception that Aboriginal Hostels were being unfair to him in failing to accede to his requests to change its workplace practices without him becoming unduly upset to such an extent that it was likely that he would suffer a further episode of adjustment disorder.
Dr Ducrou was unable to give any cogent evidence in this regard and lacks the specialist expertise of Dr Cotton, who was also Mr Power’s treating psychiatrist. Accordingly, I prefer Dr Cotton’s evidence to that of Dr Ducrou. Clearly, Dr Cotton was of the view that, in June of 2001, Mr Power was not suffering from any condition or disability that would have prevented him continuing as the assistant manager of the Luperina Hostel.
Mr Power was discriminated against by Aboriginal Hostels on the basis of a disability that he did not have. This disability was wrongly imputed to him. However, the imputation of such a disability is sufficient to attract the application of the DDA. The principal purpose of the Act is to eliminate discrimination on the basis of disability. Clearly, Mr Power was the subject of such unlawful discrimination.
The lawful justification for any such discrimination in employment is set out in section 15(4) of the DDA. There must be a causal relationship between a person’s disability and his or her inability to perform the inherent requirements of the particular employment involved. The conceptual difficulty in this case is that Mr Power was discriminated against on the basis of a disability he did not have. However, the legislation does not differentiate between the illegality of discrimination based on an imputed disability and that based on an actual disability.
In my view, it would be absurd if the exculpatory provisions of section 15(4) were to be applied to the imputed disability per se. During at least a portion of his probationary employment with Aboriginal Hostels, Mr Power suffered from an adjustment disorder. This is undoubtedly a disability for the purposes of the DDA. However, on the basis of Dr Cotton’s evidence, I accept that, in Mr Power’s case, this disability had resolved by the time his employment was terminated. I also accept that Mr Power was not incapable of performing the inherent requirements of his position as assistant manager at Luperina Hostel because of his disability.
Because of his particular emotional make up and his likely resentment of his lot at Aboriginal Hostels if no changes were made there, particularly in relation to the on call aspect of the position, Mr Power may have found it difficult to continue working at night on call at Luperina. However, difficulty must not be confused with inability. When he was terminated from his employment in June of 2001, Mr Power was not incapable of performing the inherent requirements of the position of being assistant manager at the Hostel, although he may have found these requirements frustrating and unnecessary.
In future, if he had remained at Luperina, it is highly likely that Aboriginal Hostels would have found fault with Mr Power. But the DDA is not directed to achieving a “fair” outcome, rather it is directed at eliminating discrimination on the basis of disability. For this purpose, an imputed disability is sufficient. Aboriginal Hostels has conceded that it would not have dismissed Mr Power in June of 2001 for any other reason other than the concerns it held for him vis a vis its perception of his disability and the ramifications of it for him in its workplace. He was not dismissed for poor performance or because of extended sick leave. That at sometime in the future Aboriginal Hostels may have changed its view in this regard is not relevant.
The connection between a disability and the ability or lack thereof to perform the inherent requirements of a particular position must be assessed practically. In my view, in this case, the most practical way to assess whether such a causal connection exists is by examination of the medical evidence available. Dr Cotton’s evidence was not available to me during the first hearing. His was clearly the most cogent medical evidence available. He believes Mr Power was physically capable of being the assistant manager of Luperina Hostel, regardless of the continuing workplace environment there.
Due to my acceptance of this evidence, I have reached the view that section 15(4) of the DDA has no application in this case. Accordingly, it must follow that Aboriginal Hostels has unlawfully discriminated against Mr Power contrary to section 15(2) of the DDA.

Damages

Mr Power sought an award of damages made up as follows:
i)$20,000.00 for hurt, humiliation and distress;
ii)$14,788.00 for economic loss;
iii)interest.
However, in written submissions filed on his behalf, Counsel for Mr Power indicated that her client now seeks the sum of $10,000 by way of damages for non economic loss.

(a) non economic loss

In his evidence, Mr Power deposed that following the termination of his employment by Aboriginal Hostels:
“….I became quite upset. I lost trust in Aboriginal organisations. I felt humiliated and abused. My self esteem took a bad blow. I saw Dr Cotton a couple more times after my dismissal.”
However, counsel for Mr Power at the first hearing conceded that his client had not suffered a specific psychiatric or psychological illness following his dismissal. Dr Cotton was not of the view that Mr Power had suffered either a relapse into his earlier depression or adjustment disorder on the occasions when Mr Power consulted him (following his termination). In the words of his counsel, Mr Power did not “collapse” when he was “sacked” by Aboriginal Hostels. Rather, he took his dismissal as an opportunity to reassess his employment history and chose to embark upon a course of study.
Counsel for the parties referred me to two decisions of Federal Magistrate Raphael, namel Randell v Consolidated Bearing Company SA Pty Ltd[17] and Song v Ainsworth Game Technology Pty Ltd[18] for my assistance in assessing the damages to which Mr Power is entitled for injury to his feelings resulting from his dismissal by Aboriginal Hostels.
[17] Randell v Consolidated Bearing Company SA Pty Ltd [2002] FMCA 44
[18] Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31
Song concerned an employee who was found to have been constructively dismissed from her employment when her employer reduced her hours from fulltime to part-time because she was required to take time off to attend to family responsibilities. Randell concerned an employee whose employment was terminated because his dyslexia caused him to have difficulty in reading reference numbers and letters on his employer’s stock. In both cases, Raphael FM awarded the sum of $10,000.00 on damages for injury to feelings. This was the same amount as was awarded by Sir Ronald Wilson in X v McHugh.[19]
[19] X v McHugh
In my view, these are all comparable cases to the present one and I have determined that an award of $10,000.00 is a proper one for the injury to his feelings, which Mr Power has suffered.

(b) economic loss

The applicant seeks an award of damages for economic loss in the sum of $14,788.00. This sum is calculated by subtracting the amount Mr Power received by way of Abstudy, for a period of approximately eighteen months from June 2001 until December 2002, from the amount Mr Power would have earned if he had remained employed by Aboriginal Hostels for that period at his commencement salary.
It is Mr Power’s position that it was perfectly reasonable for him to elect to pursue a course of study to equip him better for the workforce following his termination, particularly given his lack of specific skills and the breaks in his employment history. During the eighteen month period following his dismissal, Mr Power enrolled at Tauandi College and completed a certificate 1 course in hospitality. During 2002, he changed his course to a certificate 1 course in cultural tourism.
In his evidence, the applicant indicated that he had obtained some part-time work during 2001 as a drug counsellor for an organisation known as Drugbeat. His evidence was that in the latter part of 2001, whilst he continued to attend TAFE College, he worked as a drug and alcohol counsellor for one day a week.
It is Aboriginal Hostel’s position that, following the evidence of Dr Cotton, it is clear that Mr Power was not suffering from any disability or psychiatric illness that prevented him from seeking fulltime employment in the workforce. Rather, it was his personal choice to pursue educational opportunities and, therefore, the applicant’s loss of income does not directly result from the termination of his employment but rather Mr Power’s election not to seek alternative employment. If this argument is unsuccessful, Ms Henderson, counsel for Aboriginal Hostels contends that Mr Power was under a duty to mitigate his damages, which he has failed to do by not actively seeking employment. In all these circumstances, it is her position that no award of damages for economic loss should be made.
In my view, according to the usual principles that apply in assessing damages in cases of Tort, Mr Power was under an obligation to mitigate his damages which followed from the unlawful act of Aboriginal Hostels in dismissing him in June of 2001. Mr Power’s employment prospects were not materially altered by his dismissal. In particular, the period during which he was actually employed by Aboriginal Hostels was brief. I accept that he felt disillusioned with the workplace following his termination, particularly those workplaces, which had a degree of Indigenous control. However, the fact remains that he did not attempt to find any form of work following his dismissal, but rather chose to pursue educational opportunities.
In these circumstances, I believe that it is not reasonable to make the award of damages on the basis of a period of eighteen months, which Mr Power seeks. In my view, a period of six months is a more reasonable one, which coincides with the time when he was able to obtain employment at Drugbeat. Accordingly, I propose making an award of damages for economic loss in Mr Power’s favour in the sum of $5,000.00.
I do not propose to make an order as to interest on the award of damages.

Costs

These proceedings occupied three days before this Court. His Honour Justice Selway ordered that the costs of the appeal proceedings before him be costs in the cause to be determined by me. In these circumstances, if no award for costs was to be made in Mr Power’s favour, the award of damages would be totally extinguished. Accordingly, it is appropriate that an order for costs be made in favour of Mr Power. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding Eighty Four (84) paragraphs are a true copy of the reasons for judgment of Brown FM

Deputy Associate: M Neylan

Date: 6 August 2004