Randell v Consolidated Bearing Company (SA) Pty Ltd - [2002] FMCA 44

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JORDAN LINLEY MICHAEL RANDELL v CONSOLIDATED BEARING COMPANY (SA) PTY LTD

[2002] FMCA 44

HUMAN RIGHTS – disability discrimination – failure to advise employer of disability before employment – unsatisfactory work during traineeship – advice of disability before dismissal – dismissal because of manifestation of disability – refusal to consider alternative employment because of disability – no reference to available resources for handling problems of this nature – unlawful discrimination found – damages – where 1 year’s loss of earnings awarded to trainee no requirement for further damages for future economic loss

Human Rights & Equal Opportunity Commission Act s 46 PO (1)
Disability Discrimination Act ss 5, 15(2)(b), (c)

X v McHugh, Auditor General for the State of Tasmania (1994) EOC 92-623
Tait v Raffin [2000] FCA 1582
Song v Ainsworth Game Technology Pty Ltd (2002) FMCA 31
State of NSW v HREOC [2001] FCA 1199

Applicant:

JORDAN LINLEY MICHAEL RANDELL

Respondent:

CONSOLIDATED BEARING COMPANY (SA) PTY LTD

File No:

AZ 257 of 2001

Delivered on:

3 April 2002

Delivered at:

Adelaide

Hearing Date:

20 & 21 March 2002

Judgment of:

Raphael FM

REPRESENTATION

Solicitor for the Applicant:

Mr Graham Harbord of Johnston Withers

Solicitor for the Respondent:

Mr Michael Hegarty of Michael Hegarty & Associates

ORDERS

(1)I declare that the respondent has unlawfully discriminated against the applicant contrary to s.5(1) and s.15(2)(b) and (c) of the Disability Discrimination Act 1992 (Cth).
(2)I order that the respondent pay to the applicant the sum of $14,701.00 by way of damages.
(3)I order that the respondent pay the applicant’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules and I certify that it was appropriate for the applicant to employ an advocate pursuant to Part 21.15.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 257 of 2001

JORDAN LINLEY MICHAEL RANDELL

Applicant

And

CONSOLIDATED BEARING COMPANY (SA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

This application is brought to the court pursuant to s.46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 by the applicant Jordan Randell (“Mr Randell”). He seeks relief pursuant to s.5 and s.15(2)(b) and (c) of the Disability Discrimination Act for alleged acts of discrimination by his employer Consolidated Bearing Company (SA) Pty Ltd (“CBC”).
Mr Randell was employed by CBC for approximately seven weeks between October and November 2000 when he was dismissed. It his claim that prior to his dismissal his employer treated him less favourably than, in circumstances that are the same or are not materially different, the employer treated or would treat a person without a disability. He also claims denial of access to benefits associated with his employment in breach of s.15(2)(b) and that he was dismissed by his employer on the grounds of his disability contrary to s.15(2)(c).
Mr Randell’s alleged disability is mild dyslexia.

History

Jordan Randell was born on 24 August 1983 and is currently eighteen years of age. In 1994 and 1998 he was assessed by a psychologist (who later gave evidence) as having a mild dyslexic learning difficulty. He left his high school at the end of year 11 in 1998. In 1997 Mr Randell commenced part time work at Hungry Jacks and worked for them on that basis until October 2000. He had in the meantime enrolled with Eastside SA, an organisation which assisted school leavers with preparing for employment and in obtaining employment or traineeships for them.
On 21 July 2000 Mr Randell had an interview with a Ms Walden who in evidence described herself as the co-ordinator of Jobs Pathway Program. They completed a form together which later became Exhibit 5 in the proceedings. The form asked a number of questions including some intended to indicate any difficulties which the applicant might have because of his cultural background or because of any disabilities. On that form a box in which has the words “LIT/NUM” has been ticked and underneath is written in Ms Walden’s handwriting “slight dyslexia”. On the other side of the form questions were asked about the type of work Mr Randell wanted to do and he lists that as follows:
i)Receptionist/clerical;
ii)Retail worker;
iii)Customer Service.
He also listed his further education or training interests are as “to finish year 12 and eventually go to University.”
According to Ms Walden after she sees her applicants she forwards her details to another part of the organisation called the “job matching section”. She told me that she did not give Exhibit 5 to the job matching section. She also gave evidence that she had quite a detailed discussion with Mr Randell about his dyslexia and she told him that he was not required to put any details about it in his CV. She also told him that he had to be honest with any prospective employer and answer its questions, but to concentrate on what he could do rather than upon his disability.
Shortly thereafter Mr Randell was telephoned by Vince Gregory of CBC who told him that Mr Randell had been referred to him by Eastside SA. Mr Randell attended at the offices, met Mr Gregory and was told that there was an immediate job available in the warehouse sorting stock and arranging stock for delivery. At that time he was given a number of documents and also a mechanical test. Mr Randell completed the test and advised Mr Gregory that he would be available for employment in two weeks. He did not hear for about four weeks and then received a letter advising him that he was unsuccessful.
Mr Randell’s score in the mechanical test was 13/26 which might have indicated a weakness in that area to CBC.
In September 2000 Mr Randell received another call from Mr Gregory asking if he could start in a position the following week. Mr Randell agreed to do so and handed in his notice to Hungry Jacks. He commenced as a trainee on 3 October 2001. His employment arrangements were a traineeship organised through the Accreditation and Registration Council and an employment contract directly with CBC as a storeworker Level 2. He was training for a Certificate 2 in transport and distribution (warehousing). The traineeship was to last for a period of twelve months but there was contained in the employment agreement a probation period of three months. The probation clause was as follows:
5. PROBATION
5.1During the first three months of this agreement, the employee will be a probationary employee.
5.2During the probationary period, the employee’s employment may be terminated for any reason (not limited to the matters specified in this agreement) by the provision of one weeks notice (or payment in lieu).
CBC in South Australia is a branch of a larger company which deals with bearings and other parts. It has a large warehouse approximately sixty metres in length in which parts are kept in bins and numbered. The guiding light of the system is that each different part has a different bin but parts of the same genus are all distributed in the same area. Thus, as I understand the evidence, there may be many bins containing clutch bearings of different sizes but all those bins will be in the same general area.
CBC has a well organised trainee system. Upon his induction Mr Randell was introduced to a supervisor, Jason Tyler. It was Mr Tyler’s job to train Mr Randell in the warehouse procedures. There was also a trainer from Transport Training Centre (SA) Inc who appeared every week and took Mr Randell through his traineeship modules. The company organised lectures and other staff who worked in the warehouse were on hand to give advice and assistance. The traineeship is organised so that the trainee gets experience throughout the organisation and can eventually graduate to sales. This is what Mr Randell wanted to do. Understandably, the company believes it is important that all new employees start in the warehouse so they have knowledge of the goods with which the company deals and their methods of dispatch. The warehouse is obviously the engine room of the organisation and importance is placed on ensuring the parts are in the right bins either for storage purposes or for delivery out to sub-branches.
All the relevant witnesses called by the respondent gave evidence that the numbering system in the warehouse was reasonably complex but had generally been learned to a degree of competence by new trainees within two to three weeks. I have no reason to doubt this evidence. In order to assist in finding the position of stock a computer was placed in the warehouse and it appears that one could look up the part number on the computer and be given the bin number in which it was to be deposited. Mr Randell used this computer but was discouraged from doing so by Mr Tyler. Mr Tyler felt that it was important that trainees obtained as soon as possible a mental “map” of the warehouse so that they would know almost intuitively the general area in which a particular part could be found.
When Mr Randell completed his induction program he was given certain forms, one of which was entitled “A Contract of Training”. That document is administered by the Accreditation and Registration Council. Mr Peake from Employment National was responsible for ensuring that that document was completed. His organisation also gave support services and Mr Peake advised the court that it could arrange supplementary support if required by persons with a disability. In cross-examination Mr Peake advised that employers would contact him if they were having trouble with a trainee. He informed the court that CBC had contacted him before. He had gone in and spoken to the trainees. He said that CBC did not contact him about Mr Randell nor did they tell him that his performance was poor. They did not contact him and tell him they were about to dismiss Mr Randell which, he said, they would normally do.
The contract of training has a questionnaire which Mr Peake filled in on the basis of answers he says were given to him by Mr Randell. One of the questions was “Do you consider yourself to have a permanent and significant disability?”. The response to this question was “No.”. Another question was “Will you be requesting special assistance owing to the disabilities?” and the answer to that question was also “No”, (Exhibit 4). Another form which Mr Randell filled in was entitled “Employment Application Form”. That form had a question “Do you have any physical disability or medical condition which would affect your ability to do the job? if yes, give details.” The answer to that question was “No” (Exhibit 1).
At the commencement of his employment, CBC would not have been aware from any information provided by Mr Randell that he had slight dyslexia.
Mr Randell had difficulties with the stock numbering system. Ms Hannell, his psychologist, gave evidence that his speed of acquisition of learning numeral sequences was affected by his dyslexia. There is a dispute on the evidence as to the extent of those difficulties. Mr Randell’s evidence was to the effect that he improved over time and he believed that he was well on track. He claims that he was seldom corrected by Mr Tyler and that he was never given any formal warnings or formal counselling nor was it ever indicated to him that his performance was so poor that his job was at risk.
The evidence from Mr Tyler, Mr Gregory and Mr Brewin tends to contradict this. Mr Tyler says he was constantly having to assist Mr Randell with his duties, Mr Brewin who was in a managerial position at another part of the warehouse but who came across Mr Randell frequently, said that he was always trying to help Mr Randell but eventually gave up because he thought he was just too hopeless. Mr Gregory, the manager responsible for Mr Randell, says that he did tell him that his performance was poor and that he needed to lift his game on a number of occasions. He also spoke to him very frequently and provided him with assistance. On one occasion he said that he said to Mr Randell words to the effect “that his performance was so poor that his job was in jeopardy.”
I saw all these witnesses in the witness box. I noted that each of the respondent’s witnesses were questioned as to whether there had been any co-ordination of their statement with any others, which they all denied. Mr Randell’s advocate has, albeit in another context, urged me to find that certain parts of these witness’ evidence was manufactured after the event. This is a finding I am not prepared to make and will deal with later in this judgment. In my view Mr Randell was performing beneath the standard usually expected of trainees and was responding only slowly to the assistance being given to him.
One of the reasons why I come to this finding is the admission by Mr Randell that about a week or so before his dismissal he told Mr Tyler he had dyslexia. Mr Tyler in his affidavit states that Mr Randell said words to the effect “My mum has been getting at me to tell you this for some time.” I do not recall much cross-examination on this issue either of Ms Lovejoy who gave evidence or Mr Tyler but I think there is a very reasonable probability that it was said. I accept the general evidence of Mr Brewin, Mr Gregory and Mr Tyler that a lot of effort was concentrated on Mr Randell and that he had considerable difficulties in the job. Even though he was not formally warned about it he would have understood, from being constantly told that things were being placed in the wrong basket or helped to find the right place, that matters were not going as smoothly as he might have hoped. It is not unreasonable to surmise that he would have spoken to his mother about this and it is equally reasonable to surmise that his mother, knowing of his problems, would have said words to that effect to him.
In any event, whether or not these words were said, Mr Tyler agrees he was told by Mr Randell that he had dyslexia.
There is then a dispute on the evidence. Mr Randell says that Mr Tyler told him to tell Mr Gregory. That is agreed to by Mr Tyler. Mr Randell then says that a couple of days later Mr Tyler asked him if he had told Mr Gregory and Mr Randell admitted that he had not. Mr Tyler then said words to the effect “Don’t worry I have.” Mr Tyler says that this did not occur and he fully expected Mr Randell to tell Mr Gregory. Mr Randell’s advocate wishes me to find that Mr Tyler did tell Mr Gregory and that it was armed with this knowledge that the dismissal took place a few days later.
Mr Tyler’s evidence is that he told Mr Gregory on the day and very shortly before the dismissal. This is confirmed by Mr Gregory. The evidence of the two witnesses is clear. There is not any evidence to contradict it (documentary or otherwise). The applicant says that I should make this finding on the basis that Mr Gregory’s and Mr Tyler’s evidence is at odds on a crucial issue relating to a discussion which took place shortly before the final interview. This is not sufficient for me to make a finding that two witnesses have lied and colluded about a vital issue.

The Dismissal

The events surrounding the dismissal of Mr Randell are crucial to his claim. It is Mr Gregory’s evidence that on the morning of 17 November he received a series of telephone calls from branches indicating that there was a serious problem of mis-delivery. It is my understanding from questions which I asked that this was caused by the wrong stock being put into bins which were then sent out to the sub-branches. Mr Gregory gave evidence that he had received calls in the past about problems with mis-deliveries from customers and sub-branches but obviously this series of calls was the last straw so far as he was concerned. This evidence was not corroborated. In my view this was understandable. The respondent was already calling a large number of witnesses and if it had attempted to corroborate every piece of evidence the case would have lasted many more days than it actually did. The respondent presumably felt that it could rely upon my believing the evidence of Mr Gregory. I do accept the evidence of Mr Gregory on this point, there is nothing in the manner in which he gave that evidence or arising out of his cross-examination that would indicate anything to the contrary.
At midday Mr Gregory called in Mr Tyler. According to Mr Tyler’s evidence Mr Gregory told him he intended to dismiss Mr Randell and requested him to bring Mr Randell in. At this stage Mr Tyler told Mr Gregory that Mr Randell was dyslexic. According to Mr Gregory he called Mr Tyler in, they discussed Mr Randell’s performance for some ten minutes and mutually decided that Mr Randell should be let go. Mr Gregory admits that at that stage Mr Tyler told him that Mr Randell was dyslexic.
I do not think very much turns upon this. I think Mr Gregory probably wished the court to believe that the decision taken was a joint one and that Mr Randell was to be given some sort of procedural fairness by being called in and told about the problem. Sitting in court and hearing the evidence I preferred that of Mr Tyler on this point.
Mr Randell was taken off the warehouse floor by Mr Tyler and asked to come and see Mr Gregory with him. Mr Gregory told him that there were serious problems in the warehouse and stock had been put in the wrong place. Mr Randell’s evidence is that:
“He said that this was a very bad thing, so soon after stocktake. Vince Gregory then looked at his papers and said “maybe that thing I had, that dyslexia, was the reason I was doing so badly.”
Mr Randell’s evidence is that Mr Gregory went on to say that:
“With dyslexia he was not as good an employee and that his mistakes were an expense that the company did not want to deal with. The company did not want to be running after him all the time fixing up his mistakes.”
Mr Randell then asked whether he could move to another department or branch to which Mr Gregory responded:
“That that wouldn’t be possible because his problem would still be there and all the jobs that they had involved working with numbers.”
In his evidence Mr Gregory said that when he was told by Mr Tyler that Mr Randell had dyslexia he didn’t reconsider the decision that had already been taken. He said that he had made the decision because Mr Randell could not handle the work and it was nothing to do with his dyslexia. He said that he had never considered calling in Mr Peake. He denied saying that the dyslexia was a reason for the dismissal and denied saying that it was an expense that the company did not want to deal with. He confirmed that Mr Randell asked to go to another part of the organisation and he did say that would not work because his problems would still be there as it would still involve him working with numbers. Mr Gregory said that he did not know very much about the problem of dyslexia or “how it would affect this lad.” In his affidavit at paragraph 42 Mr Gregory says:
“I explained to Jordan that his employment was being terminated due to his inability to remember part numbers and that his error rate was not improving. I said that I believed he was not suitable for this type of work.”
He went on to say at paragraph 46:
“The only time I referred to dyslexia was after Mr Randell had raised the issue at which time I made a comment that him being dyslexic could be the reason for him getting the part numbers confused.”
At the hearing the respondents made much of the fact that Mr Randell had not informed the company that he had dyslexia in any of the forms which he completed or in any interview which he had with them. There was considerable emphasis on this as if the provision by Mr Randell of misleading information justified the dismissal. This is mentioned in paragraphs 47 and 48 of Mr Gregory’s affidavit. It is not mentioned by Mr Tyler or Mr Randell.

On 17 November at approximately 12.30p.m. Mr Gregory completed a form entitled “Terminate Advise” (sic). It contains the following information:
Reasons for Leaving (Please attach letter of resignation)
“Had to terminate employment due to not able to handle this ? type of work. Did not stipulate on application form that he was dyslexic.”

Work Performance
“Very poor due to not able to differentiate between numbers. Stock going into incorrect bin location.”
After the interview Mr Gregory told Mr Tyler to take Mr Randell home in his car, which he did.
Later that day Ms Lovejoy, Mr Randell’s mother, telephoned Mr Gregory. She says that she asked Mr Gregory why her son had been sacked and Mr Gregory replied with words to the effect:
“If he has got this…dysal…, I completed the sentence for him, “you mean dyslexia”. He said “Yeah, that, well he can’t do the job. It is no good because everything here involves numbers.”
Ms Lovejoy deposes to making contemporaneous notes of this conversation which were typed out and exhibited to her affidavit. These notes repeat the conversation previously referred to. Mr Gregory says that the call from Ms Lovejoy was abusive, lasted about 35 minutes and he was accused of sacking Mr Randell because he was dyslexic to which he responded that Mr Randell was dismissed because he was unsuitable for the job, he had placed stock in the wrong place on many occasions and things had been despatched in error. In cross-examination he denied the conversation deposed to by Ms Lovejoy. In cross-examination of Ms Lovejoy it was put to her that Mr Gregory never said words to the effect “I have sacked Jordan because he had dyslexia” to which Ms Lovejoy responded “Because of his dyslexia he couldn’t do the job. He said that Jordan had put the wrong thing in the wrong place but he also said he couldn’t work with numbers and there were no jobs not involving numbers. He related the failure to put parts in the right place to the dyslexia – he may not have meant that but he said it.”
In weighing up the evidence of these witnesses I note that I found no reason to disbelieve either of them although I was prepared to accept that in each of them their recollection might not be 100% accurate. Ms Lovejoy had the benefit of her contemporaneous notes. There was no serious challenge to the suggestion that she had taken these notes on the day and in those circumstances I must find that the stronger evidence is that of Ms Lovejoy and that the words she alleges were said were indeed said. I do not think Ms Lovejoy ever suggested that Mr Gregory said to her words to the effect “I have sacked Jordan because he was dyslexic.”

The Subsequent History

To the extent that it is relevant, the subsequent history of this matter is that Ms Lovejoy on behalf of her son tried to pursue an unfair dismissal claim. She pointed out that her son had received no written warnings, that the dismissal was pre-emptory , that he was not provided with any opportunity to bring a union representative in or anyone else to assist him at the termination interview, that no assistance was sought from ARC or Eastside SA or any other organisation and that her son’s dyslexic condition had not been taken into account. The nature of these contracts of traineeship is that they are excluded from the provisions of unfair dismissal both in state and federal law. So this type of claim was not able to be made. Ms Lovejoy had a lengthy conversation with Mr Houston the state manager. Mr Houston was not in the country when the dismissal took place. He gave evidence to the effect that he was aware that there were problems with Mr Randell’s work performance prior to his leaving the country. He had not instigated the dismissal. Ms Lovejoy took contemporaneous notes of her conversation with Mr Houston and attempted to use those to indicate that he also agreed that Mr Randell was dismissed because of his dyslexia.
I find that this dismissal was something which Mr Gregory did himself based mainly on the problems that occurred on 17 November. There is no dispute that Mr Gregory had this authority and I do not think that any ex post facto statements by Mr Houston will assist in deciding whether or not a breach of the Disability Discrimination Act took place. In the same way I do not think that Mr Houston’s claimed reasons for the dismissal, namely Mr Randell’s failure to tell the company that he had dyslexia in the forms that he completed, necessarily assists the company. I do not believe that this was a reason for the dismissal.
When it became clear to Ms Lovejoy that she could not proceed with an unfair dismissal claim she decided to bring a complaint to HREOC. This was done and as the attempt of the Commission to bring the parties together failed, the matter has consequently been referred to this court. In the meanwhile Mr Randell, after a period of unemployment, went back to work at Hungry Jacks where he has recently been promoted to junior manager.

Findings and Discussion

In many cases a plethora of matters are debated over days of hearings. Many witnesses are called and much cross-examination is conducted. Lengthy submissions are put. Frequently all this activity bests serve to point up the very narrowness of the issues dividing the parties. It is so in this case. It is my view that the following matters are those germane to a proper decision.
I find that Mr Randell had mild dyslexia and that this condition caused him to have difficulty in processing the most important of the tasks assigned to him in his employment. That task related to the reading of numbers on stock parts and bins which were in an alpha numerical order. This condition contributed to his taking longer than a person without this condition to learn and become proficient in the tasks which he was set.
I find that the condition of dyslexia constitutes a disability as defined in s.4 DDA in the following terms:
“4. A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction.”
I find that Mr Randell did not identify this disability to his employers on either of the two forms which he completed. But I also find that the wording of the forms was such as to allow a person with his disability who genuinely believed (as he did) that he would not have difficulty with the job that he was told he was to do, could have completed in the way in which he did complete it. In saying this I take into account Mr Randell’s age and inexperience and the advice given to him by Ms Walden of Eastside SA. In case it should be thought otherwise, these last remarks are not a criticism of Ms Walden. I fully accept her evidence that she told Mr Randell to be honest with his potential employers and to respond appropriately to appropriate questions. If the questions on the form had been slightly differently worded I have no reason to believe Mr Randell would not have responded appropriately.
I find that the systems set up for training young persons such as Mr Randell in South Australia includes the provision of assistance to employers who are encountering difficulties with trainees. These can be difficulties of a disciplinary nature or in relation to their capabilities and their disabilities. I find that Mr Peake had been called in to CBC on previous occasions to deal with problems with employees.
I find that Mr Randell told his immediate superior and trainer, Mr Tyler, that he was dyslexic at least some days before his dismissal. I find that on the balance of probabilities Mr Tyler did not tell Mr Gregory about Mr Randell’s disability until prior to the dismissal taking place. I find that when Mr Gregory dismissed Mr Randell he knew that he suffered from a disability.
I find that Mr Gregory when considering the request from Mr Randell for a transfer to another trainee position declined that request on the basis that Mr Randell’s disability would make it difficult for him to carry out the work.
I find that the manifestations of Mr Randell’s disability were a primary cause of his dismissal and that the known existence of that disability was a primary cause of him not being offered alternative employment.
In X v McHugh, Auditor General for the State of Tasmania (1994) EOC 92-623 the Human Rights and Equal Opportunity Commission who heard the case made two important points as found in the extract below:
“The respondent may well feel aggrieved that there should not be an attempt to hold him accountable for conduct which lacked deliberate intention on his part at the time. But that is not the test. Intention or motive is not required, as the High Court has said. The objective of the Act is to eliminate, as far as possible, discrimination against persons on the ground of disability in areas of public life; and therefore proscribes, not merely deliberate discrimination, but thoughtless discrimination as well. Employers are required to be vigilant in their regard for circumstances affecting the interests of their employees. I agree, at least in the circumstances of this case, with the interpretation of the Act advanced by Counsel for the respondent, namely, that s.5 is about objective discrimination. It is not necessary that an employer know the existence of the disability. It is enough if an employer is shown to have discriminated because of a manifestation of a disability.”
The respondent in this case cites Tait v Raffin [2000] FCA 1582 as authority for the proposition that if the alleged discriminator does not know of the discriminatee’s disability he cannot be guilty of discrimination. I would not cavill with the decision of Wilcox J upon the facts of that particular case which was considered by Emmett J in State of NSW v HREOC [2001] FCA 1199. That case raises some doubts about the extent to which one can “treat behaviour as necessarily being a manifestation of [a] disability.” (para 45). But this case before me is different. One responsible member of the respondent’s staff did know that Mr Randell was dyslexic some days before he was dismissed. Mr Gregory knew before the dismissal and used that knowledge to indicate why the applicant could not be employed in any other capacity.
The respondent argues that if it had known that Mr Randell was dyslexic, appropriate arrangements would have been made for him in his training. I was not told what those arrangements might be but I am satisfied from the evidence that I heard from Mr Peake and to a lesser extent from Ms Walden that such assistance is available. Mr Randell had only been working seven weeks when he was dismissed. The normal probation period is three months. There was some evidence from Mr Gregory that it is at the end of this period that most trainees are assessed. It is not unreasonable to surmise that if Mr Randell had received assistance and that at the end of the period of three months had still not learnt the workings of the warehouse then he might have been let go without fault on the part of his employers. They could have argued, as they chose not to argue in this case, that Mr Randell’s disability rendered him unable to carry out the inherent requirements of the job (s.5(4) DDA).
I would also find that Mr Randell was discriminated against in breach of s.5(1) DDA in that he received less favourable treatment than a person without his disability would have received. In this regard I refer to the evidence that in the past CBC sought assistance in relation to difficult trainees from Mr Peake and his organisation. These persons are the comparitor (see State of NSW supra paras 49-52).
Mr Randell did not receive the benefit of this treatment. The company knew of his disability and as it was the manifestation of that disability as evidenced by the problems which occurred on 17 November that really caused the dismissal I would find that it was because of the disability that it was decided not to call in Mr Peake. In my view there is no distinction between this applicant’s “disability” and its “manifestation”. His “disorder” resulted in his “learning differently”. He learned more slowly. He was dismissed because he was learning too slowly. Nor did the respondent offer Mr Randell the forms of assistance, which it claims it would have offered him had he properly filled in the form. The failure of the company, once it knew of Mr Randell’s dyslexia to provide him with the extra training or other benefit associated with employment which it claims was readily available is a breach of s.15(2)(b) of the DDA. The dismissal of Mr Randell is a breach of paragraph 15(2)(c).
Because of the findings which I have made it is not really necessary for me to deal with a number of the submissions, which were made by the advocate for Mr Randell. However, I think in cases such as this where the public reputation of an organisation is very much on the line, some submissions which involve suggestions of almost criminal activity should be dealt with.
The applicant has submitted through his advocate that the allegations of poor performance by Mr Randell were made up after his dismissal and that the evidence was concocted by the witnesses in collusion. I emphatically refute this allegation. There is no evidence whatsoever to support it and indeed I have found that the evidence is quite the other way. If Mr Randell had not been a poor performer why would he have been dismissed? The applicant would have it that he was dismissed because Mr Tyler told Mr Gregory he was dyslexic and Mr Gregory was concerned. But I have seen Mr Gregory in the witness box. I have also found that he didn’t know about the dyslexia until just before the dismissal when that course of action had already been decided upon. I do not believe that in the absence of poor performance Mr Gregory would have been concerned at all. Why should he? If Mr Randell was performing adequately then dyslexia would not be a problem.
The second submission made against the respondent was that the entries in various post separation documents that were exhibited in the case indicated that the applicant was unsuited to the employment and that was the reason for his dismissal. This submission was coupled with one that the applicant received no written warnings from the respondent because there was nothing wrong with his work. The respondents countered this argument with evidence that it was their company policy to protect trainees who had proved unsatisfactory from being permanently damaged by an unsatisfactory reference. The company believed that everybody was entitled to one chance and that an employee who might not be suited to their organisation may be very suited to another. It was for this reason that they did not give written warnings so that if they were asked whether they had ever had occasion to do so they could truthfully answer “no”. It was also with this in mind that Mr Slaughter, the person responsible, completed the form which became Exhibit “F” to his affidavit. I accept this explanation from the respondents. It was made by Mr Gregory, Mr Slaughter and Mr Houston, and I believe it is genuine.

Damages

The applicant in his application seeks damages as follows:
i)Past economic loss representing eight weeks at $250.00 per week and thirty-seven weeks of $150.00 per week representing the difference between his wage as a trainee and his wage at Hungry Jacks. Because of his promotion at Hungry Jacks this total figure has now been reduced to $4,701.00.
ii)The applicant claims $50,000.00 for future economic loss. He says that he has not only lost his employment but also an opportunity to be trained and to further his career.
iii)$10,000.00 for hurt, humiliation and distress.
I believe the claim set out in (i) above is reasonable and accommodates the second claim as set out below.
There are a number of difficulties with the second claim. Firstly, the sum of $50,000.00 is not broken down into any comprehensible constituents. Secondly, from the submissions I heard from the applicant’s advocate it is based on the assumption that the employment at Hungry Jacks is not proper employment. This I do not accept. The applicant is now a junior manager at Hungry Jacks. He is only eighteen years of age. If he remains with that company he may well move up the ladder quite considerably. He is personable and articulate. He obviously has good interpersonal skills. These were noted by the respondent. The applicant had also stated to Eastside SA that he wished to complete his studies and go to university. He may later choose to go to university as a mature age student, in which case it would not be necessary for him to matriculate. There are many reasons totally non-associated with the applicant’s dyslexia which may have made his employment at CBC unsatisfactory either to him or to his employer. At the end of his one year traineeship he could have been let go because of a downturn in the market or for many other reasons which would not entitle him to any recourse against the respondent. It would also be wrong, in my view, to say that he has lost the opportunity to be trained. Another employer may take him on and train him. This time the employer may be made aware of Mr Randell’s disability and accommodate it. In the circumstances, having given Mr Randell a full year’s loss of wages, I do not think it is appropriate to provide him with any more damages in respect of future economic loss.
The sum of $10,000.00 for hurt, humiliation and distress is sought. This sum appears to be based on an amount ordered by me in the case of Song v Ainsworth Game Technology Pty Ltd (2002) FMCA 31. Ms Song was also dismissed from her employment. I believe that the hurt, humiliation and distress caused by the actions of the respondent in this case are similar to those in that, and I am prepared to make a similar award.

Orders

(1)I declare that the respondent has unlawfully discriminated against the applicant contrary to s.5(1) and s.15(2)(b) and (c) of the Disability Discrimination Act 1992 (Cth).
(2)I order that the respondent pay to the applicant the sum of $14,701.00 by way of damages.
(3)I order that the respondent pay the applicant’s costs pursuant to Part 21.10 of the Federal Magistrates Court Rules and I certify that it was appropriate for the applicant to employ an advocate pursuant to Part 21.15

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: