Power v Aboriginal Hostels Limited
[2003] FMCA 42
•3 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POWER v ABORIGINAL HOSTELS LIMITED | [2003] FMCA 42 |
| HUMAN RIGHTS – disability discrimination – alleged discrimination in employment through dismissal for either imputed or temporary disability – less favourable treatment – inherent requirements of employment – whether evidence indicated the applicant was capable of meeting inherent requirements of employment – whether dismissal justified or unlawful as a result of discrimination. Human Rights and Equal Opportunity Commission Act 1986 – s.46PO Qantas Airways Limited v Christie (1998) 193 CLR 280 |
| Applicant: | DARCY POWER JUNIOR |
| Respondent: | ABORIGINAL HOSTELS LIMITED |
| File No: | AZ180 of 2002 |
| Delivered on: | 3 March 2003 |
| Delivered at: | Darwin |
| Hearing date: | 9 & 10 December 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Lieschke |
| Solicitors for the Applicant: | Lieschke & Weatherill |
| Counsel for the Respondent: | Ms Bean |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application filed 23 July 2002 is hereby dismissed.
That pursuant to Part 21.10 of the Federal Magistrates Courts Rules, the applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
AZ180 of 2002
| DARCY POWER JUNIOR |
Applicant
And
| ABORIGINAL HOSTELS LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
This application is brought by DARCY POWER JNR (the “applicant”) pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The applicant alleges that he has been unlawfully discriminated against by his former employers, Aboriginal Hostels Limited (“the respondent”) in contravention of section 15(2)(c) & (d) of the Disability Discrimination Act (“the DDA”).
The applicant claims that the respondent discriminated against him on two bases. Firstly, that it imputed to him a medical condition that he did not have, namely recurrent depression and used this as the ground on which he was dismissed from his employment on the 19th of June, 2001. Secondly, that the respondent dismissed him on the basis of a temporary disability that he had previously had, namely an adjustment disorder, but as this disability had resolved at the time of his dismissal, his dismissal was unlawful. In essence, the applicant argues that he has received “less favourable treatment” from the respondent, within the meaning of section 5 of the DDA, because of either a disability imputed to him, namely recurrent depression, or because of a disability that he actually had previously suffered, but which had resolved, namely an adjustment disorder. As a result, pursuant to section 46PO(4) of the HREOC Act, he seeks an order that the respondent pay him compensation.
It is the respondent’s position that the applicant was, because of his performance in the job prior to his dismissal, unable to carry out the inherent requirements of his employment with it and, accordingly, pursuant to section 15(4) of the DDA, its decision to dismiss Mr Power was not unlawful.
The applicant began work with the respondent as an assistant hostel manager on the 23rd of November 2000, on a probationary basis for six months. He was absent from work from the 26th of March 2001 until the 17th of May 2001. Doctor’s certificates were provided for this period. On the 17th of May 2001, he was medically examined by Dr Ducrou, a doctor retained by the respondent to ascertain his health status, prior to him being considered for permanent employment. The purpose of the examination was to assess whether or not the applicant was medically fit to undergo the duties required of him and to satisfy the formalities of him joining the respondent’s superannuation scheme.
On the 19th of June 2001, Mr Warrior, the regional manager of the respondent, determined to annul the applicant’s employment with Aboriginal Hostels Limited on the basis that he was “unfit for full-time work involving on call (as per independent medical assessment)”.
There is no argument between the parties that, in a previous period of employment with the Salvation Army in the mid 1990’s, the applicant suffered a serious episode of depressive illness. This illness related to the applicant’s employment with the Salvation Army. As a result, he was in receipt of worker’s compensation payments, pursuant to the relevant South Australian legislation, for an extended period of time. This matter was disclosed by the applicant to Dr Ducrou during the examination of the 17th of May, 2001.
In order to ascertain whether or not the applicant’s dismissal from his employment with the respondent was unlawful, it will be necessary to examine the following matters:
·the nature of his employment with the respondent;
·the nature of the illness that resulted in him being absent from work between the 26th of March and the 17th of May 2001;
·the circumstances surrounding his examination by Dr Ducrou;
·the basis on which the respondent dismissed the applicant from his employment.
The applicant lodged a complaint with the Human Rights and Equal Opportunity Commission in respect of his dismissal. This complaint was terminated by the Commission on the 25th of June 2002. Thereafter, the applicant began proceedings in this Court on the 23rd of July 2002. His application was heard by me on the 9th and 10th of December 2002. Both parties were represented by Counsel at the hearing before me.
Background
The applicant is a person of Aboriginal heritage. He was born on the 13th of November 1953. He has had a disadvantaged background. He left school at an early age and during his early adulthood had considerable problems with alcohol. These problems resulted in him living essentially on the streets. He recognises that when he was homeless, he was an alcoholic. He has now been sober for many years.
As a result of his life experience, the applicant was able to obtain work with the Salvation Army in Adelaide, at its Sobering Up Unit. He was employed for a period of approximately five years, as a care worker and Aboriginal liaison officer at the Sobering Up Shelter. This employment ceased in about 1997. It is the applicant’s position that, during his employment with the Salvation Army, he was subjected to incidents of racial discrimination. As a result of these incidents, he became medically depressed and was absent from work for extended periods of time. He received worker’s compensation until the termination of his employment with the Salvation Army, when the various claims he had against the Salvation Army were settled. Thereafter, the applicant was not in the paid work force, until he commenced employment with the respondent on the 23rd of November 2000.
The respondent operates a number of hostels throughout South Australia, which are used to provide accommodation for Aboriginal people. In particular, it operates the Luprina Hostel at Dudley Park. The Luprina Hostel provides accommodation for approximately 22 people. It is categorised as a transient hostel. It is categorised as such, because one of its main functions, is to provide accommodation for Aboriginal people, who are visiting Adelaide from regional and outback centres to receive medical treatment, including surgery and kidney dialysis. They stay at Luprina before and after attending hospital and before they return home. The hostel also provides crisis accommodation. As a result, Aboriginal Hostels requires that it have staff available at the premises of Luprina Hostel on a 24 hour basis. This is so that telephone calls from the relatives of guests may be answered and queries in respect of emergency accommodation dealt with at all hours of the day.
On the 23rd of November 2000, the applicant commenced work with the respondent as the assistant manager of the Luprina Hostel. The applicant was employed on a part time basis, working 6.24 hours per day or 32 hours per 5 day week. It was a requirement of the job that the applicant sleep over at the Hostel at the end of some of his shifts and during these “sleep-overs”, answer the telephone at the hostel and attend to other after hours duties. As assistant manager of the hostel, he was on a 14 day roster consisting of 10 days on and 4 days off. It is apparent to all concerned in the case, that the nature of the roster and, in particular, the requirement that he sleep over at the hostel and be available after hours, was a source of some friction between the applicant and the relevant management of the respondent.
It is the applicant’s position that the on call duties and the sleep over obligations were more onerous than either he had anticipated or had been advised to him by the respondent. He was resentful that the assistant manger at the respondent’s hostel at Port Augusta had the same on call duties as he did, but was employed on a full time basis. He became frustrated with his conditions and raised his concerns with both his union, the Australian Liquor, Hospitality and Miscellaneous Workers Union and with the management of Luprina. It is also clear that the applicant did not have an easy relationship with the existing manager at Luprina, a Ms Lorna Francis, during the first months of his employment. Accordingly, it is clear to me, that from the outset, the applicant’s employment with the respondent cannot be described as having been harmonious.
As the applicant was on probation in the position, he underwent a formal appraisal process of his work performance at regular intervals during his period of probation. The first such review was on the 25th of January 2001. At that stage, the applicant raised his concerns regarding the roster system at Luprina. Following this review, on the 19th of February 2001, there was a further meeting involving the applicant, his union representative and members of management from the respondent. Again, the applicant raised concerns that he was being underpaid for his duties and the level of his responsibilities, particularly in respect of after hours calls and the requirement that he live in at the hostel. The same concerns were raised by the applicant at his next work performance appraisal on the 23rd of March 2001. It was noted on the appraisal that these concerns, on the part of the applicant, were affecting his performance.
This level of dissatisfaction of the applicant for certain aspects of the position, was the background to him being absent from work due to illness from the 26th of March 2001 until the 17th of May 2001. The nature of his illness during this period is the central issue in this case.
On the 26th of March 2001, the applicant attended his general practitioner, Dr Punitham. She provided him with a medical certificate from the 26th of March 2001 until the 4th of April 2001, certifying that due to a “medical condition” the applicant would be unfit for work for this period. Dr Punitham also referred the applicant to Dr Cotton, a psychiatrist.
The applicant saw Dr Cotton on the 2nd of April 2001. On that date, Dr Cotton certified that the applicant was suffering from “an adjustment disorder with anxiety and depression” and, as such, was unfit for work from the 2nd of April 2001 until the 2nd of May 2001. The diagnosis was hand written onto the certificate by Dr Cotton. His writing is not particularly legible and that aspect of the certificate is not easy to read.
On the 2nd of May 2001, the applicant saw another general practitioner, at his normal doctor’s surgery. This doctor, whose identity cannot now be ascertained, certified that the applicant was unfit for work from the 2nd of May until the 16th of May 2001 due to a “medical condition”. The respondent subpoenaed the applicant’s records from his general practitioner and tendered the doctor’s notes for 2 May, 2001. These included the following note:
“He has no intention of returning to work under any circumstances.”
Although the applicant was absent from work at the time, he did attend another meeting with management and his union representative on the 12th of April 2001, for a further performance appraisal. The purpose of this meeting was, in part, to ventilate concerns that each party had about the employment relationship between them. These issues included the applicant’s relationship with Ms Francis; who on the staff was responsible for putting out the rubbish bins at the hostel; and the after hours telephone service.
Present at the meeting were Brian Warrior, the regional manager for the respondent in South Australia and Elmer Weigold, who was the regional administrative officer for the respondent at the time. At this meeting was discussed the applicant’s proposal that an answering machine be installed to deal with nuisance calls and when it was anticipated that he would return to work.
It was a source of some dispute between the participants as to whether or not the applicant’s then working conditions were the direct cause of his medical condition and the reason why he was ill and unable to work at the time. This comment was noted in the minutes of the meeting:
“Brian and Elmer repudiate Darcy’s comments that current working conditions are the direct cause of his medical condition. For one, he has been with AHL (Aboriginal Hostels Limited) for only a short period of time for his medical condition to be directly attributed to his employment condition.”
Thus the scene was set for an ongoing dispute between the applicant and the management of the respondent, as to why Mr Power had been away from work from 26th March, 2001 onwards. The immediate management of the respondent clearly thought that the reason Mr Power had been absent from work was not attributable to any failings on its part, but rather was due to some inherent difficulty that Mr Power had. At least in the minutes of the meeting of 12 April, 2001 this difficulty was coyly described as a “medical condition”.
It is the applicant’s position that his dissatisfaction with his conditions of employment and the discord with management that followed, were the direct cause of him having to take sick leave from the 26th of March 2001. The assessment that was made of his work at this meeting was that it needed improvement. As a result, on the 3rd of May 2001, the applicant’s probation was extended to the 23rd of June 2001.
The applicant was examined by Dr Ducrou on the 17th of May 2001, for his health assessment check. Dr Ducrou’s report found that the applicant was medically capable of performing all duties of the job that had been specified to him. Thereafter, some further information was sent to Dr Ducrou by Mr Weigold and, as a result, Dr Ducrou revised his opinion in a letter dated the 14th of June 2001, which was sent to the respondent. In this letter, Dr Ducrou wrote as follows:
“Dear Aboriginal Hostels
I initially examined Darcy Power for a pre employment assessment on 17 May 2001. He initially indicated he had one episode of depression, due to racial abuse, which resolved with treatment.
His supervisor Elmer Weigold, has informed me that he has required 5 weeks sick leave in the last 6 months, due to recurrent depression, aggravated by his extended work hours – on call 24 hours.
I consider this depression will recur – especially if working on call. He would need excess sick leave if employed full time with extended call. He may be more suited to a job with office hours only – 9 – 5 – on work days.
His recurring depression would render him unfit for full time work involving on call work, due to excess sick leave entitlements.”
On the 19th of June 2001, the applicant’s probation was annulled as a result of a decision made by Mr Warrior. In the applicant’s probationer report, the overall assessment read as follows:
“Due to certain aspect of work conditions (on call and disturbances) the health assessment report has indicated that Darcy is unfit for full time work involving on call.”
It was on the basis of this assessment that the applicant’s probation was annulled. The applicant did not agree with this assessment and indicated as such on the report form.
The evidence
The applicant relied on the following affidavit of evidence:
i)Of himself sworn the 23rd of July 2002;
He gave some additional oral evidence and was cross examined by counsel for the respondent.
The respondent relied on the following affidavits of evidence:
ii)Two affidavits of Brian Ernest Warrior sworn on the 20th of November and 2nd of December 2002;
iii)An affidavit of Elmer Weigold sworn the 19th of November 2002;
iv)Two affidavits of William Raymond Ducrou sworn on the 15th of November and 6th of December 2002.
The applicant gave his evidence in a clear and assertive manner. His recollection of what had occurred at the various meetings between him and the Aboriginal Hostels management was precise. I accept that he enjoyed working at Luprina Hostel, because it gave him an opportunity to meet and work with traditionally orientated Aboriginal people. That is not to say that he was necessarily enamoured with all aspects of his employment with the respondent. He clearly was not, particularly about his rate of pay and hours of work. Nor was he an easy employee to have, from the respondent’s point of view. From the outset, the relationship between the parties was one that was full of conflict. The applicant is not the sort of person who is afraid of “ruffling feathers”, if he perceives that there is something wrong with a situation involving him. He was persistent in voicing his concerns with management, regarding what he perceived as the short comings of the conditions of his employment. I am satisfied that the applicant’s frustration with the difficulties with the position, as he perceived them, caused him to become frustrated and, as a result, to seek advise from Dr Punitham and then Dr Cotton. From the respondent’s point of view, the applicant was a difficult employee, not only because of the significant time he took off from his employment, but also because of the management time he took up, both with his complaints and with problems with his work performance.
It is the applicant’s position that the respondent’s have either, deliberately or unconsciously, misconstrued his previous medical history, as a pretext to dismiss him from his employment, because of its general dissatisfaction with him. It is also his position that the respondent has misunderstood the significance of the medical certificate written on his behalf by Dr Cotton and, as a result, has been remiss in failing to clarify, either with him, or Dr Cotton, the nature of the diagnosis that was made in May of 2001. The applicant is adamant that he did not suffer from depression at anytime during his period of probation with the respondent. Accordingly, he questions the basis on which his probation was annulled and asserts that it was unlawful pursuant to the provisions of the DDA.
After his dismissal, as he was not suffering from any illness or injury attributable to his employment, the applicant was not entitled to any payment of worker’s compensation. Following his dismissal, he elected to pursue further studies at Tauandi College. He has had some limited employment as a liaison officer with an organisation known as Drugbeat, which assists persons with heroin addiction. Other than this employment, he has been in receipt of Abstudy benefits of $396 per fortnight. I accept that the applicant felt distressed and humiliated when he was dismissed by Aboriginal Hostels.
Each of the witnesses called by the respondent gave their evidence in a forthright and honest manner. In the case of Mr Warrior and Mr Weigold, I formed the impression that they were each conscientious and capable administrators, who were devoted to promoting the interests of the organisation for which they worked. They were each however busy people at the relevant times and, as a result, their recollection of each meeting between them and Mr Power is not as comprehensive as the applicant’s was. In addition, Mr Weigold’s recollection of the exact information he conveyed to Dr Ducrou, following the 17th of May, 2001 is not complete and he did not make notes at the time. I am however satisfied that any misrepresentation of the applicant’s medical history to Dr Ducrou was as a result of inadvertence, rather than malice on the part of the Aboriginal Hostels management for Mr Power.
Dr Ducrou is an experienced doctor who has been qualified since 1964. He is not a psychiatrist, although he has worked as a medical practitioner in psychiatric hospitals in Adelaide, in the past. He is currently employed by Health Services Australia. It is a major component of his practice to complete health checks in respect of personnel referred by their employers. In this capacity he sees up to 30 patients per day. He has been completing medical assessments for pension applicants on behalf of the Commonwealth Government for over 5 years.
Health Services Australia do not keep any records of the examinations completed by medical staff employed by it. The only record of an examination is the actual form that the examinee and the medical practitioner complete and which is ultimately returned to the organisation seeking that particular health check.
It was Mr Weigold’s evidence that the health assessment check that was arranged for the applicant on the 17th of May 2001 was a matter of routine. It was a requirement of the applicant’s probation with the respondent that he undergo such a check. To this extent, no specific information was furnished by the respondent, to Dr Ducrou prior to the examination.
The Health Status Assessment from consists of seven sections. It is a long document of some fifteen pages. It contains sections to be completed by the employer concerned; the person being assessed and the medical practitioner completing the assessment. Printed advice to the person being examined is set out on the first page, from which it is clear that the examinee is to complete the section dealing with his or her occupational and medical history prior to the examination. The printed explanation given to examinees contains the following statement:
“This assessment form may be used for a variety of purposes including pre-employment, pre-placement, health monitoring, permanent appointment, or overseas service purposes. The health assessment assists the referring agency and examinees by ensuring that no person is placed in an environment or given tasks that will result in physical or mental harm. The purpose and procedures of the assessment are the same, whether the examination is carried out before employment, before placement in new work or environment, or periodically during employment. It is not the intention of a health assessment to deny a person employment solely because of disability or illness. The assessment serves as a baseline for future reference. In addition, health risk factors or early stages of some diseases can be detected so that possible effects can be minimised.”
The first section of the form, is to be completed by the referring agency and includes a section in which the agency is to complete a detailed description of any special requirements pertaining to the position, either held or proposed to be held, by the examinee. In Mr Power’s case, this section of the form was left blank, prior to his examination by Dr Ducrou.
The second and third section of the form are to be completed by the medical examinee and include sections which enable the examinee to indicate his previous employment; details of any previous work related injury or illness; and to answer specific yes/no questions, in respect of his medical history, particularly in respect of whether the person concerned has or has had any previous medical conditions. This part of the form also includes a declaration to be completed by the examinee as to the truth of the information contained in the form. Examinees are directed that this declaration is to be given in the presence of the medical examiner, no doubt to emphasise the requirement that all the information provided, is true.
The fourth, fifth and sixth section of the form are to be completed by the medical examiner concerned. These sections enable the medical examiner to comment on any of the “yes” answers made by the examinee, and also to record the specific results of the medical examination, such as urine tests and blood pressure.
The final section of the report enables the medical examiner to give his specific opinion in respect of the person being examined. As has already been indicated, Dr Ducrou gave as his opinion that Mr Power was medically capable of preforming all the duties of his specified job. However, as has also been indicated, at the outset of the examination, no specific details of Mr Power’s employment with Aboriginal Hostels were provided to Dr Ducrou.
I am satisfied that the applicant conscientiously and honestly answered all the questions that were posed of him in the Health Status Assessment form. In particular, he indicated in the form that he had suffered “major depression (work related)”. He also answered “yes” to the question as to whether he was at that time or had in the past, suffered from “anxiety or stress reaction or depression”.
As a result of this positive indication in the form, it fell to Dr Ducrou to obtain further information from the applicant, in respect of his answer and the fact that he had indicated that he had previously suffered a major work related depression.
In respect of the applicant’s indication that he had previously suffered depression, Dr Ducrou noted that Mr Power had “depression due to racial abuse at Salvation Army – has had treatment. Fully recovered.”. He also indicated that the applicant was also taking two 25mg tablets of Dothep at night, with “no side effects”. This is an antidepressant drug. One of the consequences of some anti-depressant medications is that they have a sedating effect. By implication, Dr Ducrou raised this consequence of the drug with the applicant. In his evidence, Dr Ducrou conceded that depression in the medical sense, could be well controlled by medication, with a patient displaying no symptoms of the disease.
In terms of his examination of the applicant, Dr Ducrou noted that he could find “no evidence of depression” and, as a result, concluded that the applicant’s depression was “under control”. His behaviour during the examination was noted as “normal”. The Health Status Assessment form was returned to the respondent. I accept that Dr Ducrou conducted the medical examination of the respondent properly and with due diligence. The conclusion he reached on the 17th of May, following the examination, was considered. The examination itself took about 20 minutes. However, it is clear that Dr Ducrou did not know that Mr Power had been away from his work due to illness for approximately seven weeks prior to the examination, or what was the nature of the illness. Mr Power was not specifically asked about his sick leave. The Health Status Assessment form did not require him to disclose this information nor did he specifically volunteer any information about the status of his sick leave to Dr Ducrou. I do not believe that there is anything necessarily sinister about this, as at the time, Mr Power was firmly of the view that he was not suffering from depression and, as such, he did not believe that the fact that he was on sick leave was of any particular relevance to the questions that Dr Ducrou asked him about his previous episode of depressive illness, whilst in the employ of the Salvation Army.
However, I think I would be naïve, if I did not think that the fact that Mr Power had recently consulted a psychiatrist and had been away from work for an extended period of time, was the sort of information that Dr Ducrou would have found at least partially useful in forming his opinion as to Mr Power’s fitness or otherwise for work.
Dr Ducrou has very little independent recollection of ever having examined the applicant. He did not recognise Mr Power when he gave his evidence at Court on the 9th of December 2002. Given the nature of his practice and the number of patients he sees each day, it is not surprising that he has little recollection of examining Mr Power. The only record he maintained of his examination of Mr Power was in the notes he wrote on the Health Status Assessment form and which was returned to the respondent. Dr Ducrou does recollect that the applicant told him that the fact that he was “working day and night” was “getting him down”. Obviously this information and the fact that the applicant was taking anti-depressant medication did not sway Dr Ducrou’s opinion that the applicant was medically capable of performing all the duties of his job. Again, by implication, Dr Ducrou must have asked something of the applicant about the nature of his work with the respondent and so have been aware, in general terms, of the fact that Mr Power worked on call and found this unsatisfactory.
It fell to Mr Weigold to deal with the completed Health Status Assessment form, when it was returned by Health Services Australia Limited. It was at this stage that I began to doubt that Mr Weigold regarded the applicant’s Health Status report as merely a matter of routine or formality for superannuation and payroll purposes. Dr Ducrou’s initial report clearly gave Mr Power the all clear, from a health perspective, to continue to work for the respondent. As a matter of procedure, from Mr Weigold’s point of view, there was nothing more required from either Mr Power or Dr Ducrou arising from the form. The formalities of the health check had been satisfied. However, it seems clear that Mr Weigold did not accept, at face value, Dr Ducrou’s opinion as to Mr Power being medically capable of performing the duties required of him by the respondent. In his affidavit of the 19th of November, 2002, Mr Weigold deposed as follows:
“When I received the 17 May report we noted the fact that the report indicated that Mr Power had previously suffered from a major depressive illness whilst working at the Salvation Army; however, the report indicated that he had completely recovered from this illness. We also noticed that the report contained no mention of the fact that Mr Power had been on extended sick leave. Whilst I have no clear recollection of my thoughts at that time, being aware that Mr Power had recently been absent for many weeks, and that one of the medical certificates that he had supplied indicated that he was suffering from a psychiatric condition, I believe that on receiving the report we were concerned that Dr Ducrou may not have been fully apprised of Mr Power’s recent medical history in making his assessment.”
In cross-examination, Mr Weigold indicated that he decided “to follow up” with Dr Ducrou, of his own volition, as a “double check”. He conceded that this was not routine and there was no formal procedure or protocol in respect of such matters. It was, in any event, the first such health check that he had had to deal with on an administrative basis in his career with the respondent. The “we” referred to in Mr Weigold’s affidavit, is presumably Mr Weigold himself and Mr Warrior, with whom Mr Weigold says he raised the issue of Dr Ducrou’s initial report and its conclusions.
However, it is clear that neither Mr Weigold nor Mr Warrior, raised any concerns they had, about the validity of Dr Ducrou’s report and its conclusions with Mr Power, nor sought any specific details from him regarding his previous episode of depression at the Salvation Army or in respect of his current medical treatment from Dr Cotton.
The information that past between Mr Weigold and Dr Ducrou at this juncture, prior to Dr Ducrou revising his opinion as to the applicant’s medical capability of performing the duties required of him, is critical to the applicant’s case. Mr Weigold did not keep notes as to what he said to Dr Ducrou or in respect of what documents passed between them.
In his affidavit, Mr Weigold deposed as follows:
“I do not have a clear recollection of the sequence of events. However, I now consider it likely that having received the report I advised Dr Ducrou in addition to the sick leave absences that Mr Power was currently carrying out duties which involved an ‘on call’ component, and briefly explained the implications of this, including the potential for Mr Power to be disturbed during the night whilst on call. I consider it likely that I would have mentioned that Mr Power had raised concerns about these duties and sought Dr Ducrou’s opinion on Mr Power’s fitness for the ‘on call’ component of his duties. I do have a vague recollection of speaking to Dr Ducrou on the telephone about these issues.”
In cross-examination, Mr Weigold conceded that his memory of what occurred between himself and Dr Ducrou is not accurate. Certainly, what transpired between them was not recorded by means of a fax or letter. He does not know if the medical certificates, which Mr Power had submitted to the respondent were provided to Dr Ducrou. Dr Ducrou himself, is not aware of any sickness certificates being sent to him and in fact, in cross-examination initially indicated that he had no recollection of ever having talked to Mr Weigold. However, he subsequently indicated in cross-examination that it was Mr Weigold who had told him that Mr Power was suffering from depression.
In his affidavit, Mr Weigold speaks of his recollection that one of Mr Power’s medical certificates indicated that he was suffering from a “psychiatric condition”. This can only be a reference to the medical certificate written by Dr Cotton. It is a little misleading to speak of this medical certificate as referring to a psychiatric condition per se. I think the evidence clearly indicates that Mr Weigold, at this stage at least, believed that the certificate was more specific in its diagnosis and referred to Mr Power suffering from depression.
As has already been indicated, Dr Cotton’s handwriting on the certificate in question is hard to decipher. Mr Weigold’s evidence is that he endeavoured to read the certificate as best he could. He deposed that the only word he could make out on the certificate was “depression”. I am satisfied that he conveyed to Dr Ducrou the information that another treating medical practitioner had diagnosed that Mr Power was suffering depression at the time he had been medically examined by Dr Ducrou and that as a result of this diagnosis Mr Power had been away from work for several week. I have no doubt that such information would have caused Dr Ducrou to question his initial opinion that Mr Power’s depression was “under control”.
However, it is also clear that the information that Mr Weigold conveyed to Dr Ducrou was materially incorrect. Mr Power had not been diagnosed by Dr Cotton with depression, but rather with an “adjustment disorder with anxiety and depression”. Mr Weigold only became aware of this discrepancy at a stage after Dr Ducrou had issued his revised opinion. On the 12th of September 2001, when it had become clear that the applicant intended to challenge the basis of his dismissal by the respondent, Mr Weigold considered it prudent to obtain what he described as “a translation” of Dr Cotton’s medical certificate. This was provided by Dr Cotton’s rooms by fax on the 12th of September, 2001.
Dr Ducrou was clear in his evidence given in cross-examination that in June of 2001, when he wrote his revised opinion, he understood that Mr Power had been diagnosed with depression and this had resulted in him requiring five weeks sick leave and that being on call was a factor in this recurrent depression.
The applicant did not call any medical evidence, either from Dr Cotton or some other medical practitioner, as to the difference between an adjustment disorder and recurrent depression. In this regard, the only evidence was provided by Dr Ducrou. He indicated that the two conditions are not the same thing. In his view, an adjustment disorder was likely to be a psychological reaction to a stressful situation and as such transitory, whereas depression was likely to be more entrenched and potentially episodic. However, in making a distinction between the two conditions, it was his position that he would need to know more about the circumstances of the patient concerned.
The applicant returned to his regular work with the respondent on the 18th of May, 2001, the day after his examination with Dr Ducrou. He remained at work, without any further absences due to illness, until his termination on the 17th of June, 2001. It is the applicant’s position that he fulfilled the requirements of the job satisfactorily during this period and remained hopeful that his proposal for an answering machine to be installed at Luprina to deal with some of the after hours calls and the possibility that his position would be upgraded to a full time one, would be favourably received by management. From his point of view, the implementation of these things, would have reduced his ongoing concerns about the position.
Mr Weigold confirmed that Mr Power had requested a reduction of his on call duties to reflect his part time status, as opposed to the other assistant managers at the other hostels, who were full time and had the same responsibility for on call as Mr Power did. This proposal was still under consideration when the applicant’s employment was terminated.
Dr Ducrou was not told by Mr Weigold or any other employee of the respondent that Mr Power had not been away from work following the medical examination and was, ostensibly at least, managing his duties. Dr Ducrou indicated that, hypothetically, it may have influenced his subsequent opinion, if he had understood that Mr Power was managing his work and had not been away from work again due to illness.
The use of the word “recurrent” in association with depression in Dr Ducrou’s second report appears to have been added by Dr Ducrou himself to the diagnosis Mr Weigold had conveyed to him mistakenly from Dr Cotton’s medical certificate. However, the fact of a recurrence of depression was clearly at odds with Dr Ducrou’s initial opinion of Mr Power, which had resulted from his own examination of the man. Again, it seems that the description in the second report of Mr Power being “on call 24 hours a day”, has come from Mr Weigold. It was not strictly true, being an exaggeration of the conditions. Certainly, Dr Ducrou was not appraised of any proposal to modify the hours Mr Power worked or some of his conditions. Mr Power was on call for ten days in each fortnight.
What Dr Ducrou knew directly from Mr Power himself, of his work conditions, was that working nights was “getting him down”. However, it was Dr Ducrou’s recollection that Mr Power told him that he was prepared to persevere with his work conditions for the moment.
Neither Mr Weigold nor any other employee of the respondent, raised the issue of Dr Cotton’s medical certificate with Mr Power himself or attempted to seek clarification from Dr Cotton as to the meaning of the certificate, until after Mr Power had been terminated. Clearly Mr Power had no input into the information that was put to Dr Ducrou prior to the request for a second opinion. Nor was Mr Power formally appraised that the extent of his sick leave was a matter of concern to the respondent. Indeed, Mr Power was given to believe the examination was related to his superannuation. At the employee meeting held on the 12th of April, 2001, at which Mr Power, Mr Warrior and Mr Weigold were present, the following entry appears in the minutes:
“Comsuper requires a medical report to assess Darcy’s benefit classification. Darcy agreed for a time to be set ASAP.”
The original health status form was tendered in the proceedings before me. As I have already indicated, the section detailing the description of the examinee’s duties was left blank. A photocopy of the report was annexed to Mr Power’s affidavit. This apparently was supplied to him as a result of his complaint to the Human Rights and Equal Opportunity Commission. This copy has been amended by the addition of the words “+ sick leave” in hand writing, after the printed heading “detailed description of all duties and any special requirement (eg driving, operation of hazardous machinery, exposure to hazardous substances etc) or attached duty statement”. As a result, there can be no doubt, that it was added after the original form was sent to Dr Ducrou and the appointment for Mr Power’s medical examination had been made. Mr Weigold could not remember writing the addition but concedes that it is in his hand writing. As a result of considering all of the evidence, I do not believe that Mr Weigold did send the applicant’s sickness certificates to Dr Ducrou. Dr Ducrou has no recollection of sighting the certificates. On balance, I find Mr Weigold conveyed to Dr Ducrou his mistaken impression that Dr Cotton’s certificate indicated that Mr Power was suffering from depression. Further, whether conscientiously or unconscientiously is unclear, Mr Weigold attempted to reconfigure the information on which Dr Ducrou had based his original report so that he (Dr Ducrou) would be compelled to reach a different conclusion about Mr Power. This was done without Mr Power having any further input into the process. In this sense, I find it difficult to accept that the medical examination was merely a routine one for superannuation purposes.
In his evidence, Mr Warrior deposed as follows:
“…prior to Dr Ducrou’s report of 14 June 2002 (sic) being brought to my attention, I had already formed the view that Mr Power’s probation should be annulled, in light of the performance and other issues identified in the annexures to my earlier affidavit. In particular, Mr Power had been unable to get on with the manager at Luprina, or to work effectively with other staff members, partly due to his constant complaints about various aspects of his duties. In my view it was an essential requirement of his position that he be able to work as a part of a team with the other staff at Luprina, in particular the manager. Despite improvements in other areas, Darcy had failed to convince me that he could do this and for that reason I did not propose to proceed with his employment, regardless of any medical issues.”
However, the final probation report and Mr Warrior’s letter to the applicant of the 22nd of June, 2001 indicate that the medical report of Dr Ducrou was, ostensibly at least, the instrumental reason for the applicant’s termination.
Since his termination with the respondent, the applicant has been engaged in full time study, apart from a period of employment as a part time liaison officer with an organisation known as Drug Beat between the 12th of October and the 20th of December, 2001. He earned $530.00 through this employment. Otherwise, his sole source of income has been an Abstudy allowance of $396.00 per fortnight.
I accept the applicant’s evidence that he felt upset when he was dismissed from his employment with the respondent. I also accept that he lost trust in the management of Aboriginal organisations due to what occurred to him. I also accept that he felt humiliated and his self esteem was reduced.
The relevant legislation
The objects of the DDA are set out in section 3 of the Act and include the following:
To eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of …work…and to ensure, as far as is practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community…
Section 5 of the DDA defines what is discrimination on the basis of disability 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.
“Disability” is defined in section 4 of the DDA and in relation to a person means as follows:
(a)total or partial loss of the person’s bodily or mental functions; or
(b)total or partial loss of a part of the body; or
(c)the presence in the body of organisms causing disease or illness; or
(d)the presence in the body of organisms capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the person’s body; or
(f)disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g)a disorder, illness or disease that effects a person’s thought processes, perception of reality, emotions or judgment that results in disturbed behaviour; and includes a disability that
(h)presently exists; or
(i)previously existed but no longer exist; or
(j)may exist in the future; or
(k)is imputed to a person;
Section 15 (2) of the DDA provides 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.
Section 15 (4) of the DDA provides as follows:
(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.
In relation to “unjustifiable hardship”, section 11 of the DDA provides that:
… all relevant circumstances of the particular case are to be taken into account including:
a)the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned;
b)the effect of the disability of a person concerned; and
c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
The applicant’s submissions
It is the applicant’s position that the respondent has unlawfully discriminated against him, within the meaning of section 15(2) of the DDA, by terminating his employment because of a disability suffered by him. The disability is either one within the definition contained within section 4(k), that is one that has been imputed to him, namely depression or, alternatively, is an adjustment disorder, which the applicant had previously suffered but which had resolved at the time of his dismissal.
It is the applicant’s position that he became angry and frustrated in respect of a number of issues pertaining to his employment around March of 2001. These issues included what he saw as a disproportionate share of on call duties, which were not reflected in his rate of pay; the conflict with his manager about putting out the rubbish bins and other issues to do with nuisance and after hours telephone calls. There is no dispute that his reaction to these issues resulted in him being absent on sick leave for a period of approximately seven weeks. Mr Power argues that this sick leave represented a past, but temporary disability suffered by him and, as such, is not evidence that he was inherently unfit to perform the job required of him by Aboriginal Hostels.
The applicant concedes that the respondent was entitled to inform Dr Ducrou of his absence away from work, due to illness, from the 26th of March until the 18th of May 2001, but not in a selective and misleading way that was designed to elicit the answer it required from Dr Ducrou, namely that Mr Power was not medically fit to perform the duties required of him. The bases on which the applicant submits that the respondent mislead Dr Ducrou are as follows:
·The relevant medical certificates were not provided to Dr Ducrou;
·Mr Weigold did not correctly read out Dr Cotton’s medical certificate and read out only the word “depression”;
·Dr Ducrou was mislead about the exact nature of the applicant’s on call duties and hours of work;
·The respondent did not attempt to clarify either with the applicant or his treating psychiatrist, Dr Cotton the nature of the illness he was suffering when he was away from work;
·Mr Weigold allowed Dr Ducrou to interpolate the word “recurrent” into his second opinion, without any proper basis for it.
In essence, the applicant argues that this misleading information should not have been passed on to Dr Ducrou, without the opportunity for the applicant to comment on it.
The net result of these actions is that the respondent has wrongfully delegated to Dr Ducrou its responsibility to make a decision about whether or not Mr Power was capable of doing the job required of him and, in delegating that responsibility, has discriminated against Mr Power by providing Dr Ducrou with misleading and inaccurate information about the level of his previous disability, either actual or imputed.
It is Mr Power’s position that it was incumbent upon the respondent to make its own analysis as to whether or not he was physically capable of performing the various tasks required of him and as to whether or not some of his difficulties could have been accommodated by changes at the work place. The applicant is critical of the respondent for failing to take into account the fact that he had apparently coped with his work in the month following his return to work. In this sense Mr Power argues that he has received less favourable treatment.
The respondent’s submissions
It is the respondent’s position that the requirement for the applicant to be on call and live in at the Luprina Hostel, as well as be available to answer after hours telephone calls, were inherent requirements of Mr Power’s employment with Aboriginal Hostels. As such, it is the respondent’s submission, that the evidence in this case, indicates that Mr Power was unable to carry out the inherent requirements of his position in respect of these on call duties and accordingly, although it has discriminated against Mr Power because of a disability suffered by him, its discrimination is excused by virtue of section 15(4) of the DDA.
The evidence on which the respondent relies to support its submissions is as follows:
·The applicant had in the past suffered a major episode of depression that was related to his work;
·The applicant had expressed frustration and dissatisfaction with the position, particularly in regards to its on call aspects and had repeatedly tried to change the conditions of his employment;
·Although there were proposals on foot to deal with some of the applicant’s concerns regarding his conditions of employment, there could be no guarantee that these would necessarily be implemented or would significantly alleviate the requirement that the applicant be on call after hours at the Luprina Hostel;
·Whether it was termed “an adjustment disorder” or as something else, the evidence clearly established the applicant’s general frustration and dissatisfaction with the position had resulted in him taking seven weeks sick leave and this had had logistical consequences for the operation of the respondent’s business;
·The applicant had indicated to one of his treating general practitioners on the 2nd of May 2001 that “he had no intention of returning to his current job under any circumstances”;
·The evidence of Dr Ducrou indicated that Mr Power was taking anti depression medication and this might interfere with his sleep patterns. It was inherent in the applicant’s position at Luprina that, due to on call duties and the requirement that the after hours telephone be answered, there would be further disturbances to his sleep.
The net result of all this evidence, in the respondent’s submission, is that it establishes the applicant was incapable of performing the required duties of an assistant manager at the Luprina Hostel, without significant risk of incurring harm to himself. In essence, the predisposition of the applicant to psychological injury, when coupled with the requirement that he be on call and inevitably suffer some sleep disturbance as a result, meant the he could not do the job with reasonable safety to himself. Further, to modify the position to remove the on call aspect, would impose an unjustifiable hardship on the employer and would significantly alter the nature of the position. In these circumstances, it was not justified for the respondent to restructure the after hours procedures at the hostel to accommodate the particular needs of the applicant. The particular clientele of the Luprina Hostel required that there be an on call manager at the hostel at all times. Accordingly, it was an inherent requirement of the position, that its holder be capable of fulfilling the on duty aspects of the job, without risk of incurring psychological harm to himself. The particular circumstances of staffing at the hostel in particular and throughout the respondent’s other hostels in general, were such that it was not practicable to significantly reduce the on call aspects of the position at Luprina for its assistant manager.
In making its assessment as to whether or not the applicant was capable or otherwise of performing the duties required of him, it is the respondent’s position that it was not required to accord to Mr Power any procedural fairness in regards to how it conducted that inquiry. Rather, the respondent was entitled to look at Mr Power’s performance as an employee in the position; his past work experience generally and his attitude to the position. In assessing these matters, the respondent reasonably reached the conclusion that Mr Power was inherently unsuitable for the position, the nature of which could not be changed without undue hardship to the respondent. This hardship would have been occasioned by the necessity to change its roster and personnel at Luprina to accommodate the particular difficulties of the applicant, a difficult thing for the respondent to do, given the small numbers of staff at its disposal. In conducting the assessment, the respondent was not required to seek comment from Mr Power himself or seek clarification from his medical advisors.
Counsel for the respondent conceded, quite properly, that the evidence disclosed that the applicant had demonstrated that he was capable of performing the required duties during the last four weeks of his employment, without the necessity to take any leave of absence.
Discussion and conclusions
As a matter of principle, remedial legislation that is designed to uphold equal opportunity in employment for those with disabilities, should be construed beneficially and not narrowly.[1]
[1] Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332
The definition of disability, as provided by section 4 of the DDA, is wide indeed. It includes an imputed disability. In this matter, I am satisfied that the actions of Mr Weigold, by reason of his communications with Dr Ducrou about the applicant, imputed to Mr Power a disability that he did not have at the relevant time. To suffer depression is a disability. Disability can affect a persons’ thought process, emotions and judgements. Mr Power was not suffering depression at the time of his medical examination by Dr Ducrou. This was the opinion of Dr Ducrou after he had conducted the required examination of the applicant and had been provided with honest answers by the applicant to the questions posed of him in respect of his previous medical history. In addition, it was the diagnosis of Dr Cotton that the applicant was suffering from “an adjustment disorder with anxiety and depression”. In misconstruing Dr Cotton’s medical certificate to Dr Ducrou and suggesting to him that Mr Power had been recently diagnosed with depression, I am satisfied that Mr Weigold did impute a disability to Mr Power that he did not have.
The evidence regarding the difference, in medical terms, between an adjustment disorder and depression is cursory indeed. However there is a distinction. The former is likely to be more transitory and less entrenched than the latter. This is an important distinction when the question of Mr Power’s suitability to meet the inherent requirements of the position is considered. It is the applicant’s position, as evidenced by his final four weeks of uninterrupted employment, that his adjustment disorder had resolved.
It is not open to an employer to discriminate against an employee on the basis of temporary medical conditions that would resolve with time or with reasonable changes being made to work processes. Examples of this are an employee who is absent from work, for some weeks, because of glandular fever or an employee who contracts a skin disorder by reason of exposure to a particular chemical in the work place, which can be readily substituted by the use of another substance, which does not have the same adverse consequences for the employee concerned. Clearly, it would be unlawful for the employee concerned in these examples to have his employment terminated because of the disability suffered.
The evidence of both Mr Weigold and Mr Warrior left me with a sense of disquiet. It is clear to me that Mr Weigold had little understanding of the condition, as diagnosed by Dr Cotton, that Mr Power was suffering when he was absent from work between March and May of 2001. Rather, Mr Weigold himself did some medical detective work and took the fact that, in the past, Mr Power had suffered an episode of work related depression and coupled it with his interpretation of Dr Cotton’s certificate, to reach the conclusion that Mr Power was suffering a recurrence of work related depression. He also assumed that the actual physical requirement to be on call had caused the depression, rather than that it might have been caused by a general sense of dissatisfaction at what Mr Power perceived to be the injustice of his situation. The distinction is a subtle one, but there is a distinction. Certainly, Mr Weigold gave the impression to Dr Ducrou that Mr Power was suffering a recurrence of depression and that there was a plausible connection between this depression and the nature of the work that Mr Power had been performing for the respondent.
Mr Power was a difficult employee from the respondent’s point of view. He complained about his conditions and his perception that being required to be on call, as well as being paid on a part time basis, were unfair to him. However, complaining about conditions and wanting vociferously to change them, do not necessarily amount to not being able to perform them. There were also other aspects of the applicant’s work performance with the respondent that were a cause of concern to the management of Aboriginal Hostels. These included his relationship with Ms Francis, his level of aptitude with computers and his general attitude to the job. However, these were not the grounds for his termination.
In his evidence, Mr Warrior indicated that, in all likelihood, the respondent would have terminated the applicant’s employment in the future due to his unsatisfactory performance. I am concerned that the respondent, through Mr Weigold’s misconstrual of the applicant’s medical condition, have used his disability, in this case the adjustment disorder that he was suffering, as a pretext to dismiss him. It being perceived by the respondent that it would be easier to dismiss the applicant on medical grounds rather than through other avenues. Given the definition of disability in section 4 of the DDA, I have no doubt that an adjustment disorder is a disability for the purposes of the Act.
Accordingly, I have reached the conclusion that the respondent did discriminate against the applicant by reason of his disability and that he did received less favourable treatment from the respondent than a person without a disability.
The next question which must be resolved is whether or not the respondent’s discrimination against Mr Power is excused by reason of section 15(4) of the DDA.
As I have already indicated, it is the respondent’s position that a reasonable interpretation of all the evidence concerned, leads to the conclusion that Mr Power was not capable of carrying out the inherent requirements of the position of assistant manager at Luprina Hostel, which included the on call duties, without significant risk of doing himself harm. In essence, the respondent argues that Dr Ducrou’s opinion, in his report of the 14th of June, 2001, the applicant would be more suited to a job involving standard hours, without on call duties because of the risk of him taking up excess sick days, is borne out by experience. It is the applicant’s position that the evidence is otherwise, in that the respondent has misconceived his (Mr Power’s) medical condition and the experience of at least the final four weeks of his employment clearly indicates his capability of performing the job.
I confess that I have experienced some difficulty in deciding which position is to be preferred because of the limited nature of the evidence lead before me, particularly medical evidence, and the requirement for me to make an assessment of the likely future performance of the applicant in the position. The distinction between the two cases is a fine one. The gist of the applicant’s case is that, just because he was unhappy with certain aspects of his employment and had required time off work as a result, it does not necessarily follow that he is inherently unsuitable for the job. However, undoubtedly, his absence must have been a matter of considerable inconvenience for the respondent, given the small size of its staff at both Luprina in particular and generally within the Adelaide area.
In determining the suitability or otherwise of the applicant for the position of assistant manager at Luprina, it is necessary to consider what are the inherent requirements of that position. In Qantas Airways Limited v Christie (supra), the High Court considered what amounted to the inherent requirements of a particular employment. Gaudron J considered:
“A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.”[2]
[2] Qantas Airways Limited v Christie (1998) 193 CLR 280 at 295
It seems to me that the evidence, particularly that of Mr Warrior, is clear, that one of the requirements of the assistant manager’s position at Luprina is to be available on call, after hours and at night-time. That requirement is related to the nature of the clientele who use the hostel. It is essential for the conduct of the respondent’s core business that telephone inquiries about both emergency accommodation and the health and welfare of the inmates of the hostel are answered. In some ways, this aspect of the position is a passive one, but the care-taking aspect of the position does seem to be to be integral to it. To take away this aspect of the position would be to make it a different position.
There can be little doubt that the applicant is physically capable of carrying out this aspect of the position. All that is required of him is to be physically present on the premises to answer the telephone and presumably to deal with emergency inquiries that cannot wait until business hours. This may at times be annoying, in that some inquiries made after hours may be trivial but nonetheless result in disturbance of sleep. As I say the role is largely a passive one and I have little doubt that the applicant has the necessary physical attributes to fulfil this requirement of the position.
However, apart from the physical aspects of the particular position, it is clear that I am entitled to look at all aspects of the position, including the potential impact on others, in determining what are the inherent requirements of a particular employment.
In X v The Commonwealth[3], Gummow and Hayne, JJ stressed the practical aspects involved in assessing whether a particular person could perform the employment duties required of him or her. Their Honours said as follows:
“As we have said, inability to perform must be assessed practically. In particular, we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment.”
[3] (1999) 200 CLR 177 at 210
McHugh J, in a separate judgment considered that the inherent requirements of a particular employment were not dependent on the mere physical ability to carry out the required tasks but required a more free ranging inquiry, including such matters as the employment’s social, legal and economic context. He said as follows:
“However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason – mental, physical or emotional – the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of section 15(4).
Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely ‘so obvious that it goes without saying’ – which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.
It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.”[4]
[4] X v The Commonwealth (1999) 200 CLR 177 at 187.
It also seems that whether or not a particular person can meet the inherent requirements of a particular position must be judged objectively and can include how a person will interact with other people, including other members of staff and members of the public. Thus in Y v Australia Post, where the complainant concerned suffered psychological problems resulting in disturbed behaviour it was held that the section 15(4) exception applied to him because:
“These jobs would require him to mix with members of the public or to operate in a team environment. His history of violence, harassment, and complaints would not enable him to undertake this employment. I am satisfied that there is no likelihood that Y’s behaviour would improve in the future to enable him to work with members of the public or other employees with whom he would necessarily have to come into contact with if employed by Australia Post.”[5]
[5] Y v Australia Post (1997) EOC at paragraph 92-865
In this particular case, the evidence indicates that between the 26th of March 2001 and the 17th of May 2001, the applicant was unable to work due to him suffering an adjustment disorder, which was in large part referable to his dissatisfaction with the nature and terms of his conditions of employment. In my view, the on call aspects of the employment are inherent to it. The consequences of the applicant’s absence for those seven weeks was to cause considerable logistical difficulties for the respondent in the sense that other staff had to be coopted to cover for the applicant. His absence had ramifications for the respondent’s staff rosters at other of its hostels.
The applicant sought some changes to the administration of the after hours aspect of his on call duties, in particular, he wished to be remunerated on a full time rather than a part time basis. In addition, he wished for an answering machine to be installed to deal with at least some of the after hours telephone calls. However, there can be no certainty that these measures would have been implemented or would have significantly ameliorated the general dissatisfaction that the applicant had for the position.
In my view, a general dissatisfaction that an employee has for a particular position may, in certain circumstances, render him or her unsuitable to perform the inherent requirements of that position. For example, the dissatisfaction that a person feels about his or her position may so infuse his or her demeanour that they are consistently rude to customers of the business or discourteous to fellow employees. Such behaviour would be unacceptable and in the social context of the business concerned would indicate an inability to meet the inherent requirements of the position.
In addition, the amount of sick leave a person takes may also be relevant in determining a person’s suitability to fulfil the inherent requirements of a particular position. However, such a determination must depend on an objective assessment of the circumstances surrounding the taking of that sick leave. For example, to use an illustration already used, a particular employee may contract glandular fever and as a result expend a considerable amount of sick leave at great inconvenience to the particular employer concerned. However, the expectation is that the employee will fully recover in time. The position may be different in the case of an office worker required to operate a keyboard, who contracts severe rheumatoid arthritis in his or her wrists and as a result is required to take frequent sick leave, but whose condition is not likely to alleviate. In such a case the extent of the employee’s sick leave has clear ramifications for the operational requirements of the employer concerned because of the endemic and recurrent nature of the condition.
In this case, I accept that the extent of Mr Power’s sick leave was a matter, quite properly, of concern for the management of the respondent. This was so for two major reasons. Firstly, as to whether or not the nature of the work itself and the applicant’s emotional response to it was such that he was likely to put himself at risk of illness if he continued to work in the position. Secondly, if in future, it was likely that the applicant would continue to take sick leave and put the operational requirements of Luprina and the respondent’s other hostels in jeopardy. An employer is entitled to expect that a particular employee will be more or less available to perform the duties required of him or her and not be regularly indisposed. It would not be reasonable to expect an employee to permanently modify its system of rostering staff to take into account such permanent absences due to sickness. As McHugh J said in X v The Commonwealth:
“… only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie.”[6]
[6] X v The Commonwealth (supra) at 190. In X, Mc Hugh J referred to Qantas Airways Ltd v Christie (supra) as being authority for the proposition that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of that employment and not merely the physical capacity of the employee to do it. In Christie, the Court was dealing with the case of the pilot who had turned 60 years of age and who merely, by reasons of his age, was disqualified from flying through the air space of certain countries, but who was otherwise physically capable of piloting planes and was legally entitled to pilot planes within Australia and some other countries. Qantas dismissed Mr Christie because of this restriction on his employment. The Court held that Qantas had not unlawfully discriminated against Mr Christie because he was incapable of meeting one of the inherent requirements of his employment, namely to pilot planes anywhere in the world and it would impose an unjustifiable hardship on Qantas for it to re-organise its work rosters to accommodate Mr Christie.
To a large extent, it behoves me to give some recognition to the judgment of the management of the respondent as to how great an impact the absence of the applicant from March to May 2001 had on the operational requirements of its business and its judgment of the likelihood of the applicant taking further sick leave in future. In McHugh J’s terms, I can have regard to the overall context of Mr Power’s employment at Luprina to determine whether or not Mr Power was capable of meeting the inherent requirements of his position there. These include his emotional response to the position and whether he was capable of meeting those requirements with reasonable safety to himself and to others. Implicit in this is the likelihood of and the future consequences for the respondent of any sick leave in future being taken by Mr Power. I am satisfied that these matters are part of the social, legal and economic context of the applicant’s employment with the respondent.
By any measure, given the period of time the applicant had been employed at Luprina, the period of sick leave that Mr Power took from March to May was a significant period. It also had serious implications for the on-going management of the hostel while Mr Power was away. Mr Power did not attempt to disguise from management, his dissatisfaction with the conditions at Luprina, particularly the on call aspect of his duties. In the circumstances, it does not seem to me to be unreasonable that the management of the respondent would believe that the applicant would have further recourse to sick leave in future. To use a colloquialism, it was not unreasonable for the respondent to believe that Mr Power was not “cut out” for the job, because of his particular emotional make-up.
The essence of the applicant’s case is that, to a large extent, his dissatisfaction with the job and his resultant adjustment disorder had resolved by the 17th of May 2001 and he was thus prepared to “stick out” the job, in the hope that the hoped for changes in the on call duties would come about. The difficulty is that this requires the Court to accept that in the last month of his employment, the applicant had had a “Road to Damascus” experience in respect of the position and also to accept that firstly the reforms Mr Power had lobbied for would come about and secondly these changes would be so significant for him that they would dramatically change his attitude to the job. I consider that the evidence indicates that both factors being achieved is against the weight of the evidence.
The assessment process of whether a person can perform the inherent requirements of the job must be conducted fairly and not on the basis of any perceived notions about the outcome or not conducted at all because of some view about the person, their disability and the impact it may have.[7]
[7] See Ronalds, Discrimination Law and Practice, 1st Ed (1998) at page 67 and X v McHugh, Auditor – General for Tasmania (1994) EOC 92-623
It is the applicant’s position that the evidence does not disclose whether or not the applicant did genuinely consider whether Mr Power was capable of performing the inherent requirements of the job, but if it does, the process was certainly not conducted fairly and without preconceived notions about the applicant and his personality.
As I say, I doubt that, at least once Dr Ducrou’s initial report was received by the respondent, Mr Weigold in particular treated the medical report as being simply a matter of routine. Clearly, he thought the report was flawed in some way, and indeed, it was. The applicant concedes that Dr Ducrou should have been informed about the extent of Mr Power’s sick leave. It would be nonsensical, if a doctor conducting a health check for employment purposes, was not informed of the relevant sick leave of an examinee.
As I have found, the respondent, through Mr Weigold, did not misrepresent the contents of Dr Cotton’s medical certificate out of any sense of malice towards Mr Power. Rather, it flowed from an overzealous assumption on Mr Weigold’s part, stemming from his medical detective work. The question which must be answered is, whether that mistake on Mr Weigold’s part and his failure to seek clarification from either Mr Power or Dr Cotton, renders the process by which the respondent considered Mr Power’s suitability for the job so unfair that it must be set aside. I do not believe that it does.
The question turns on whether the evidence indicates that the respondent, through Mr Weigold, channelled untrue information to Dr Ducrou, so that he would necessarily write a medical opinion that could be used as a pretext to dismiss Mr Power. In colloquial parlance, did Mr Weigold “word up” Dr Ducrou, so that disingenuously Mr Power could be dismissed by Aboriginal Hostels Limited for reasons related to his health, rather than because he was perceived as a difficult and querulous employee.
There can be no doubt that the respondent did eagerly seize upon Dr Ducrou’s second medical report. As Mr Warrior frankly deposed, the respondent had already formed the view that Mr Power’s probation should be annulled because of concerns about his performance at work.
I do not believe that the misrepresentation by Mr Weigold to Dr Ducrou, that the applicant was suffering depression, does render the process surrounding the second medical report so unfair that, as a result, the respondent should be prevented from using it as one of the planks on which it based its decision that the applicant was incapable of meeting one of the inherent requirements of the position of assistant manager at Luprina, namely that he be on call after hours.
In determining whether the applicant was suitable for the job, the respondent was entitled to look at the requirements and ethos of its business as a whole. It ran a hostel for Aboriginal people seeking emergency accommodation and which provided accommodation for Aboriginal people from remote areas, who had or were about to receive medical treatment. In those circumstances, it required a liaison person available at its premises 24 hours per day. This was an integral requirement of the job. The position itself did not have any particular physical requirements, other than that inevitably its holder would be subject to some interruptions to his or her sleep when on call and would be confined to the premises of the hostel when on call. Accordingly, no physical adjustments needed to be made at the respondent’s premises to accommodate the disability of the applicant. The applicant made no secret of the fact that he did not enjoy the on call aspects of the job. He did not relish having his sleep disturbed, as he perceived it, often unnecessarily. He sought changes to the position, chiefly that it would be upgraded in terms of pay and be full time, rather than part time. It is his evidence that he felt that he had been mislead about the position and as a result became angry and frustrated. I have no doubt that he was not a happy employee. The only accommodation possible by the respondent to cater for the dissatisfaction that Mr Power had for this aspect of the job was either to remove it entirely or provide other staff to do it. In my view, the former would be to significantly change the nature of the position and the latter would impose an unjustifiable hardship on Aboriginal Hostels Limited.
In all these circumstances, particularly the difficulty in 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 of the fact 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. In essence the respondent was entitled to consider that Mr Power was not cut out for the particular job of being assistant manager at its Luprina Hostel.
As a direct consequence of his emotional state, the applicant took approximately seven weeks sick leave. This had serious logistical consequences for the respondent and the management of Luprina. The respondent was entitled to consider the consequences for its business if the applicant took further sick leave in future. The respondent was also entitled to consider that there was a clausal connection between the applicant’s unhappiness and dissatisfaction with the job and the on call aspects of the position. Indeed, the evidence indicates as much. In those circumstances, there does not seem anything unduly sinister in Mr Weigold informing Dr Ducrou of the extent of the applicant’s sick leave and placing that in the general context of Mr Power’s dissatisfaction with being required to be on call. I am satisfied that the evidence does indicates that there was indeed a clausal connection between the two. The error that Mr Weigold did commit was to misdescribe Mr Power’s medical condition and impute to him a condition that he did not have. However, in all the circumstances of this case, I am of the view that this error does not vitiate the decision the respondent made that the applicant was not capable of meeting one of the inherent requirements of the position, namely that he be on call. From the respondent’s point of view, the issue was the probability of more sick leave being required in future by Mr Power and its connection to the ongoing dissatisfaction that Mr Power had with the job and the resultant uncertainty for its staffing arrangements. Connected to this issue was its assessment of the possibility of Mr Power becoming seriously unwell in the position in the future. In this regard the past period of sick leave taken by Mr Power was a relevant consideration.
The applicant is critical of the respondent in that Dr Ducrou was not informed by Mr Weigold that Mr Power had been satisfactorily meeting the requirements of the position in the month following his return to work and had not been further absent from work. This is a valid criticism. However, it was for the respondent to form its own judgment as to whether or not the applicant was capable of meeting the inherent requirements of the position. It was not the function of Dr Ducrou to complete this exercise for it. As McHugh J remarked in X v The Commonwealth, the Court should have regard to the “business judgment” of the particular employer concerned, and how it determines what is and what is not one of the inherent requirements of any particular position and whether or not the particular employee concerned can meet them.
In this regard, as has already been pointed out, there can be no guarantee that either the reforms hoped for by Mr Power would be implemented or that if implemented, they would significantly alleviate his dissatisfaction. I think it unlikely that Mr Power’s dissatisfaction had dissolved in the month after he returned to work. After all the nature of the work had not changed. The period is just to short to make a realistic assessment. Of more importance is to view the applicant’s work history as a whole from November of 2000, which includes a history of persistent dissatisfaction and a significant period of sick leave.
For all these reasons, I am satisfied 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 one of the inherent requirements of the position, namely that he be regularly available to be on call after hours as the assistant manager of the Luprina Hostel. To require the respondent to remove the necessity for the assistant manager to be on call would impose an unjustifiable hardship on Aboriginal Hostels Limited, which all the circumstances of the case when taken as a whole, would fundamentally change the nature of the position previously held by Mr Power. It would not be reasonable for the respondent to have to schedule other staff to provide the after hours and on call aspects of the assistant manager’s position at Luprina Hostel, to augment those supplied by the applicant, either when he was there or absent on sick leave. To remove the after hours aspect of the service provided to clientele at Luprina would be to significantly change the nature of the respondent’s business, which was providing emergency accommodation and enabling information to be given to the relatives of infirm inmates of the hostel, at all hours of the day and night. To have an assistant manager available to do this was essential to the position. From this analysis, it must follow that Mr Power’s application should be dismissed.
Costs
In its response to the application, the respondent indicated that it sought an order that the application be dismissed and that the applicant should pay its costs. Accordingly, it is appropriate that I should order pursuant to Part 21.10 of the Federal Magistrates Court Rules that the applicant pay the respondent’s costs.
I certify that the preceding one-hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 3 March 2003
2
0