Rawcliffe v Northern Sydney Central Coast Area Health Service
[2007] FMCA 931
•9 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAWCLIFFE v NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE & ORS | [2007] FMCA 931 |
| HUMAN RIGHTS – Disability discrimination – nurse with epilepsy and secondary sleep deprivation and paranoid ideation – rostered with night and day shifts – request for accommodation for disability refused – indirect discrimination found – compensation for distress awarded. |
| Disability Discrimination Act 1992 (Cth), ss.4, 5, 6, 10, 15, 24, 123(2) Federal Magistrates Act 1999 (Cth), s.76 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO |
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Catholic Education Office v Clarke (2004) 138 FCR 121
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
Forest v Queensland Health [2007] FCA 936
Grulke v K C Canvas Pty Ltd [2000] FCA 1415
Health Care Complaints Commission v Rawcliffe [2007] NSWSC 188
Holland v Jones (1917) 23 CLR 149
Hurst v Queensland (2006) 151 FCR 562
Jones v Toben (2002) 71 ALD 629
Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258
Purvis v State of New South Wales (2003) 217 CLR 92
QBE Travel Insurance v Bassanelli (2004) 137 FCR 88
Rankilor v Jerome Pty Ltd [2006] FMCA 922
Russo v Aillo (2003) 215 CLR 643
Waters v Public Transport Corporation (1991) 173 CLR 349
| Applicant: | CLIFFORD JOHN RAWCLIFFE |
| First Respondent: | NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE |
| Second Respondent: | JAYNE KULING |
| Third Respondent: | SEAN GRAHAM |
| Fourth Respondent: | PAULA JAMES |
| File Number: | SYG 1515 of 2006 |
| Judgment of: | Smith FM |
| Hearing dates: | 16 & 18 April 2007 |
| Date of Last Submission: | 28 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 9 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Ms Nomchong |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant is allowed such additional time as is required to permit the making of this application within the time limit provided in s.46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
The first and second respondents must pay to the applicant the amount of $15,000 as compensation assessed under s.46PO(4)(d) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1515 of 2006
| CLIFFORD JOHN RAWCLIFFE |
Applicant
And
| NORTHERN SYDNEY CENTRAL COAST AREA HEALTH SERVICE |
First Respondent
| JAYNE KULING |
Second Respondent
| SEAN GRAHAM |
Third Respondent
| PAULA JAMES |
Fourth Respondent
REASONS FOR JUDGMENT
This is an application filed on 25 May 2006 under s.46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), following the termination of the applicant’s complaint by a delegate of the President on 12 April 2006. The applicant complained to HREOC, by letter dated 5 August 2005 and in subsequent letters, that events in the course of his employment as a nurse at Manly Hospital by the Northern Sydney Central Coast Area Health Service during 2004 involved unlawful discrimination under ss.5, 6, 15 and 24 of the Disability Discrimination Act 1992 (Cth), (“The Disability Discrimination Act”). The respondents to the application are his employer, and three of its managers whose actions are the immediate subject of his complaints.
The applicant complained that unlawful discrimination on the ground of his disability of ‘static temporal lobe seizure disorder’ or ‘epilepsy’ occurred in relation to three events. The events can be summarised in chronological order, and will be addressed below in that order – although this is the reverse order of importance in which they were presented to HREOC and to the Court:
i)When the third respondent, Mr Graham, as deputy director of the first respondent, sent a letter dated 25 June 2004 to the Nurses Registration Board stating that he believed that the applicant had been remiss in notifying his supervisor of conditions imposed by the Board on his registration. The applicant complained that this contained a misrepresentation of facts.
ii)When the fourth respondent, Ms James, as service director of the first respondent, in a letter dated 28 July 2004, required the applicant to attend a first stage counselling meeting to answer concerns about the applicant’s conduct at a staff training session. The applicant complained that he was given insufficient notice of this counselling.
iii)When, in the week starting 7 August 2004, the second respondent, Ms Kuling, as the applicant’s nursing unit manager, required the applicant to work a week’s roster involving a day shift “sandwiched in the middle of two ten hour night duties”. The applicant complained that her requirement was unreasonable and discriminatory in the known circumstances of his disability at the time, and was the immediate cause of his resigning his employment and suffering considerable loss and damage.
The applicant also complained to HREOC about the actions of two doctors relating to his admission at Royal North Shore Hospital in 2002 for psychiatric treatment, but he withdrew these complaints, and the events of 2002 now provide only background to the matters which I must address. In his documents, filed in the Court, he again makes criticisms of various people in relation to the events of 2002, but I have ruled that they do not come within the ambit of the complaints which were addressed by HREOC, and therefore are not within the matters which I can address under s.46PO(1).
In their points of defence, the respondents contend that the application was not filed within 28 days of the issue of the delegate’s notice as required by s.46PO(2), but was 14 days out of time. However, the delay was relatively brief, and is explained by the applicant by reference to a delay in receiving the delegate’s notice and his state of health. The respondents have not pointed to any substantial prejudice arising from the delay, and in all the circumstances I consider that I should allow the applicant the additional time pursuant to my power in s.46PO(2).
The background to the applicant’s complaints
The applicant obtained nursing qualifications after completing his secondary schooling, and was first registered as a nurse in 1985. After about six months of general nursing, he was employed for about four or five years as a psycho-geriatric nurse in nursing homes. He then pursued other occupations, before being attracted back to nursing in 2002 through a “reconnect” programme. He then, in March 2002, obtained employment in acute psychiatric and psycho-geriatric units, known as the East Wing, at Manly Hospital, which continued until it was terminated on 20 August 2004 in circumstances described below.
The applicant had suffered a serious head injury playing football at school in 1977, and a further head injury in an accident in 1999. Although neither party presented medical reports specifically directed at the medical aspects of this case, there is medical evidence supporting his claim that he was left with residual brain damage and post-traumatic epilepsy. He required on-going medication and treatment from a neurologist, and suffered acute episodes of epileptic seizure and ill-health on at least two occasions during his employment at Manly Hospital. An episode in 2002 was also accompanied by psychiatric treatment. Another episode occurred during the last month of his employment, and relates directly to his present complaints of unlawful discrimination. He gave evidence that after leaving his employment at Manly hospital, he has suffered further seizures and episodes of ill-health arising from his condition of epilepsy, and has been receiving a disability support pension for most of that time.
The medical evidence. The above brief summary of the applicant’s medical history does not make findings which were seriously disputed by the respondents, notwithstanding that it is based upon the applicant’s own evidence as to his disability supported by only fragmentary medical evidence. However, I need below to identify the applicant’s “disability” as defined in the Disability Discrimination Act, and also to consider whether there is evidence allowing inferences as to the effects of the applicant’s on-going medical condition, including its treatment and acute phases. It is convenient, therefore, at this point of my judgment to extract significant medical evidence which was presented by the applicant, apart from his own evidence.
a)A report from Professor Tennant of the Department of Psychological Medicine at RNSH dated 10 January 2003 was sent to the first respondent’s workers’ compensation insurer, and was seen by at least one relevant officer of his employer. It referred to his admission following an episode of self-harm in October 2002, which itself followed a very stressful incident at Manly Hospital in which a patient committed suicide. Prof Tennant recommended the applicant’s return to work on 4 December 2002, but noted that this was subject to a review of his registration by the Nurses Registration Board. He reported his diagnosis:
When I saw him, he was recovering from a recent severe adjustment disorder and had a past history of drug and alcohol abuse (which had been of a recreational nature and did not interfere with his work). Furthermore he had a past history of epilepsy with associative features at times, a personality disorder, and a probable past history of psychosis. …
The factors related to the ward suicide were a triggering factor in this episode of disorder however it is fair to say that he was more vulnerable to these stressors because of his past experience with the police.
b)There is in evidence a report of a professional standards committee of the NSW Nurses and Midwives Board dated 25 July 2005 concerning the applicant’s registration as a nurse. It contains a summary of reports made in 2005 by a psychiatrist, Dr Jurd, and a neurologist, Dr Johnston, who treated the applicant since 2002. I accept the probable accuracy of its reference to their diagnoses and treatment:
In the March 2005 report Dr Jurd observed that the Nurse sees himself as having recovered from heroin addiction and is reluctant to regard his episodic use of stimulants, cannabis and LSD as problematic. Dr Jurd is of the opinion that at times the Nurse would have qualified for a diagnosis of poly drug abuse but that now he was in remission. The Doctor confirms that the Nurse has been diagnosed with multiple forms of epilepsy (being post traumatic epilepsy) including complex partial seizures, which had been misdiagnosed as ongoing psychosis. His epilepsy had been complicated by substance abuse. The treatment regimen prescribed by Dr Robert Johnston initially included Epilum, then Tegretol then Dilantin with the addition of Diamox. The Nurse’s liver function test results support his statement to Dr Jurd that he no longer takes drugs or excessive alcohol, and the levels of anticonvulsant medication indicate compliance with the medication and are now maintained at a therapeutic level. …
The reports of Dr Johnston give a history of the Nurse first seeing this doctor in November 2002 and continuing as required, Dr Johnston worked with Dr Jurd to prescribe the correct medication to treat the Nurse’s epilepsy.
c)There is also in evidence a report of Dr Jurd to Dr Johnston dated 4 November 2002, which confirms “a history of epilepsy consequent upon 2 episodes of major head injury, one in 1977 requiring neurosurgery and again in 1999 when he had cerebral contusion /?cerebral haemorrhage – CT scan at Orange Base Hospital. His last (indecipherable) seizure was in May 2002 …”. A further report of Dr Jurd dated 10 July 2003 refers to the applicant as having “a seizure disorder … he had a single GM (i.e. grand mal) seizure about 1 month ago”.
d)A Centrelink medical certificate given by the applicant’s general practitioner, Dr Levenston, on 11 August 2004, two days after he ceased work at Manly hospital in circumstances I shall describe below, gave an opinion of unfitness to work from 11 August 2004 until 11 November 2004. It diagnosed an exacerbation of an existing permanent condition of “epilepsy with paranoid ideation” with onset of “one month” and “uncertain” prognosis. The symptoms were listed as “difficult to control epilepsy with 2° sleep deprivation + paranoid ideation”. I accept the applicant’s interpretation of the shorthand ‘2°’ as meaning “secondary”, i.e. conditions resulting from the primary condition. This diagnosis of the applicant’s condition at a critical period of his employment was not challenged by any evidence led by the respondents, and is consistent with the other medical evidence and with the applicant’s history of his symptoms at the time. I accept it entirely.
e)To corroborate his claimed disability and a claim to have suffered a series of seizures in recent years, the applicant tendered a discharge summary from Blue Mountains Hospital dated 10 October 2006. This confirms a diagnosis of a condition of “epilepsy” with an “additional diagnosis” of “epilepsy, previous head injury secondary to MVA”. It contains a report of a CT scan of the applicant’s head, which appears to confirm an area of brain abnormality, but I am unable to interpret the significance of the findings in the absence of expert explanation.
Knowledge of the applicant’s condition. The respondents did not dispute that the applicant’s employer and some of his relevant managers were aware that the applicant suffered from a condition of epilepsy. The evidence concerning the general awareness of his disability by his employer and at his work place, can be summarised:
a)The applicant completed a staff personal medical history form dated 5 March 2002, which was submitted when he applied for his employment. In this, he identified in his past health “epilepsy & psychiatric treatment – long history following head injuries age (1?)”. In relation to “any illness or injury that required treatment by a doctor during that past 2 years”, he said: “epilepsy controlled with ongoing medication”. He stated “Epilem 200mg BD” as his regular medicines, and described his “present state of health” as “physical health good, with epilepsy well controlled with medication”. He declared: “I am not aware of, or have disclosed above, all health condition that may adversely affect my ability to perform the duties of this position, or which might lead to foreseeable injury to myself or others in the normal course of work.” (emphasis added)
b)Notwithstanding his declared medical condition, he was then employed in an acute psychiatric admission unit at Manly hospital. In the course of this employment he encountered, in late 2002, the stressful incident which, on Prof. Tennant’s opinion, contributed to a period of mental breakdown, and which included treatment by a neurologist and psychiatrist for his epilepsy and associated conditions. I find that Prof. Tennant’s report probably reached his employer’s notice, and that from that time his employer held records from which all his managers could have been made generally aware of the conditions from which he was suffering, including his history of psychiatric symptoms related to his seizure disorder. However, Ms James, one of the applicant’s managers in 2004 gave evidence that “personnel files” and “recruitment information, medical certificates, staff medical history forms” were kept by the first respondent’s Human Resources Department at Macquarie Hospital – far distant from Manly Hospital.
c)His employer was also generally aware from that time that his ability to practise as a registered nurse was under review by the Nurses Registration Broad arising from a complaint based on an inaccurate history taken during his hospitalisation at RNSH in September 2002. An undated letter from the CEO of his employer, Dr Christley, to the Board, reveals knowledge of these circumstances, and requested “notification about the Nurse’s Registration Board’s determination regarding Mr Rawcliffe as it has obvious implications for his return to work with Northern Sydney Health”. In response, the Board in December 2002 and January 2003 informed his employer of interim conditions placed on his registration. These required him to attend a medical examination, “only work under the supervision of a registered nurse”, and “advise his current employer and future employers of these conditions”. The applicant was then permitted to return to work in the psychiatric units on 2 February 2003. There were further communications between the Board and the applicant’s managers concerning compliance with these conditions during 2003 and 2004. I shall consider these below, when addressing the applicant’s first complaint to HREOC.
d)There was a diversity of evidence presented to me in relation to the actual knowledge of the applicant’s epilepsy and related conditions held by various managers and colleagues at Manly Hospital. There was no evidence that there was any attempt by his employer to ensure that all his managers were aware of his condition and of the possibility that they might need to accommodate its reasonable requirements, and no evidence of any general policies or practices concerning the personnel management of nurses employed with known chronic medical conditions. The employer’s policy in practice seems to have been to leave it to the individual nurse to make known to his or her immediate manager any accommodation in work practices arising from a disability, and to leave to that manager a discretion on how to accommodate the disability.
e)The applicant’s evidence was that at all times he wore a medi-alert bracelet identifying his epilepsy, and that his colleagues and immediate managers were aware of his condition. His evidence was, that at the time of the 2002 patient suicide, he “had apparent seizure witnessed by staff after which he became aggressive, consistent with his diagnosis”. A colleague, Ms Brady, observed him at that time to be “vague, confused and perplexed. He then became verbally hostile towards myself and the police officer”. It is unclear which of his other colleagues were aware of his symptoms of epilepsy at that time.
f)The applicant led evidence from nursing colleagues in his unit during 2004, Ms Brady and Ms Stapleton that they were generally aware of his epileptic condition. Ms Brady was not required for cross-examination on her recollections:
Since Mr Rawcliffe’s employment on East Wing I was aware he suffered from Temporal Lobe Epilepsy. I observed him to be wearing a ‘medi-Alert’, bracelet stating on it he had Epilepsy. I am aware that Mr Rawcliffe is medicated for his Epilepsy. Mr Rawcliffe on at least one occasion during his employment informed me he was leaving the unit during his meal break to have a blood test for serum levels of his prescribed anti-convulsant.
g)Mr Mark Allan was the applicant’s “nursing unit manager” from the commencement of the applicant’s employment until Mr Allan went on long service leave at the end of June 2004. He gave sworn evidence, which I accept, that the applicant “informed me on his first meeting of both his work, and relevant medical histories. It was particularly memorable and impressed me his open-ness and honesty in this regard, specifically talking about his experience of epilepsy.”
h)Mr Allan’s position as the applicant’s nursing unit manager was filled by the second respondent, Ms Kuling during the crucial period of July and August 2004. I shall consider her evidence more closely below, where I find that she also was aware of his epilepsy.
i)Ms Stone was Deputy Director of the first respondent until February 2004, and was the manager to whom the applicant’s nurse unit manager reported. She held that position at the time of the 2002 events, and was aware of the applicant’s hospitalisation, and his return to work under conditions imposed by the Nurses Registration Board. However, she denied being aware that he suffered from epilepsy or a complex partial seizure disorder.
j)Mr Graham, the third respondent, occupied Ms Stone’s position after she left. He said that he became aware of the conditions on the applicant’s nurses registration, and of its relationship to his hospitalisation in 2002, but denied that he was ever told that the applicant suffered from epilepsy or seizure disorder.
k)However, Ms James, who was Mr Graham’s superior, holding the position of Director of Northern Beaches Mental Health Service based at Manly Hospital, admitted knowing that the applicant suffered from epilepsy. She recalled being told this by the applicant in about May 2004, in the course of a discussion about the NRB conditions.
The nurses’ registration proceedings. The applicant presented evidence and submissions concerning the proceedings which have investigated his fitness for registration as a nurse. He suspects that there was an undisclosed involvement of his employer in the regulatory proceedings, which have been stressful for him and have hampered his efforts to return to employment as a nurse. However, these concerns do not directly provide the complaints of unlawful discrimination by the employer, which he maintained to HREOC, and which I must now determine. I therefore do not consider it necessary to detail the full course of the proceedings before various regulatory bodies, nor to make findings as to whether there is any substance supporting the applicant’s suspicions as to his employer’s involvement in them, except in relation to the applicant’s first complaint of unlawful discrimination which I shall address below. The background of these proceedings is also relevant when considering the influences on the applicant’s mental condition and his unemployment after ceasing work in August 2004.
Although the registration proceedings were initiated in the course of the events of September 2002, they continued long after the termination of the applicant’s employment by the first respondent in August 2004. A complaint was initially made that his fitness was affected by ‘poly drug abuse’, but this was contested by the applicant and was ultimately withdrawn. Formal proceedings before a Professional Standards Committee were commenced by the Health Care Complaints Commission on 18 August 2004, and the Committee’s report was dated 25 July 2005. It found:
Findings in relation to the Complaint
The Professional Standards Committee finds that the Nurse is suffering from an impairment within the meaning of the Act in that he suffers from epilepsy and addiction to drugs and alcohol. The epilepsy is now under control by treatment with appropriate medication and his addiction is currently in remission. It is clear that the Nurse will require medication for a significant period of time, maybe lifelong. Further his impairment will make him more vulnerable to adverse reactions to stress. As these are matters that will affect the Nurses ability to practise nursing they should be addressed by the orders this committee makes.
The Committee accepts the evidence of the Nurse that he is feeling well for the first time in a very long time and that he is committed to the position of maintaining his wellness and that this means he will have to abstain from the abuse of drugs and alcohol. The Nurse stated that he firmly believed that there is no place for the use of substances in his life if he is to remain well. The attitude displayed by the Nurse before the Committee was clearly one of insight into his disability, an acceptance of his lifelong need for medication and monitoring by a psychiatrist in the future. The Nurse showed insight into many aspects of his life history and their effect on him. The Nurse told the Committee that he could not now drink alcohol as it adversely reacted with his medication. He agreed that the use of substances potentially could affect his ability to nurse.
The Committee accepts that the Nurse demonstrated a good standard of nursing when he was working in the East Wing of Manly Hospital and is likely to be able to perform the work of a registered nurse in a psychiatric setting after an initial period of supervision. The Committee would have a cautious view of the Nurse practising in some areas of nursing, such as intensive care, due to levels of stress he would experience, without the recommendation of his treating psychiatrist and appropriate post-graduate education.
The Committee ordered the applicant to undertake a period of urinanalysis from the date of his return to work as a nurse, and placed conditions on his registration that he should comply with the medication regimen prescribed for the control of his epilepsy and continue under the care of a psychiatrist.
The applicant contested the decision of the Committee, by appealing to the Nurses and Midwives Tribunal. On 5 June 2006, it upheld his appeal, found that the subject matter of the complaint was not established, and set aside all conditions on his registration. However, the Health Care Complaints Commission obtained orders from the Supreme Court quashing that decision on procedural grounds, and at the time of hearing before me, the applicant was facing the resumption of proceedings before the Tribunal (see Health Care Complaints Commission v Rawcliffe [2007] NSWSC 188).
The applicant’s ‘disability’
The applicant’s evidence was that after his return to work in 2003, his epilepsy did not interfere with his ability to perform his duties at Manly Hospital, and he did not request any special accommodation in the conditions of his employment until the last month of his employment. At this time, in July and August 2004, his specialist was introducing him to new anti-convulsant medication so as to overcome hepatic symptoms of his previous medication, which were noticeable to him and were revealed in liver function tests which he saw at the time. They led to extreme tiredness, difficult sleeping, and susceptibility to seizures. He also, in retrospect, believes that his deterioration in health had effects on his mental condition, so that his reactions to events in the course of his employment at this time were attended by a level of paranoia.
In my opinion, I am able to accept the applicant’s evidence as to a deterioration in his epileptic condition and the symptomatic effects of his changed epilepsy medication, both as an observant and credible lay person being treated with a chronic disorder, but also giving weight to his medical qualifications as a nurse. I also consider that his account of an episode of exacerbation of his epileptic condition and associated conditions occurring during July and August 2004, is confirmed by the contemporaneous diagnosis of Dr Levenston extracted above.
In the light all the evidence concerning the applicant’s epilepsy, I find that his epileptic condition and its associated symptoms and secondary effects constituted a “disability” within the definition of that term in s.4 of the Disability Discrimination Act. The definition encompasses “total or partial loss of the person’s bodily or mental functions”, a “malfunction … of a part of the person’s body”, and a “disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”.
This definition, as has been held in the authorities which have considered similar definitions, shows that all the actual mental and physical effects of the medical condition on the applicant, including the effects of his medication for that condition, are to be considered as part of the applicant’s “disability” when addressing the provisions of the Disability Discrimination Act. The definition’s reference to a person’s “functions” and to “affects” on a person’s mental processes, confirms that his ‘disability’ for the purposes of the Act is not confined to the underlying condition to the exclusion of his resulting behaviour (cf. Purvis v State of New South Wales (2003) 217 CLR 92 at [11], [27], [67], [73], [223]-[224]). The actual circumstances of his condition at the relevant time are to be considered as part of his disability, including fluctuating symptoms and secondary effects experienced from time to time, rather than those of an objectified or stereotyped or hypothetical sufferer of his condition (cf. QBE Travel Insurance v Bassanelli (2004) 137 FCR 88 at [85]).
Unlawful discrimination in employment
Section 15 of the Disability Discrimination Act 1992 (Cth) relevantly provides:
(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 for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
(4)Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s 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 provision of which would impose an unjustifiable hardship on the employer.
In the present case, the applicant’s three complaints concern actions taken in the course of his employment by agents of the first respondent which may be characterised as concerning the “terms or conditions of employment”. Thus, they respectively concern, (i) how the employer responded to concerns of the Nurses Registration Board concerning the applicant’s employment; (ii) the conditions under which the applicant was required to attend for counselling as an employee; and (iii) the terms of his rostering for shifts in one week in August 2004.
I therefore consider that the applicant’s complaints are best considered as allegations of unlawful discrimination by reference to s.15(2)(a). This then requires consideration of whether the events complained of involved acts which “discriminated against” the applicant as defined under the Disability Discrimination Act 1992 (Cth). The Act defines discrimination ‘directly’ upon grounds of disability in s.5, and defines ‘indirect disability discrimination’ in s.6. They provide:
5 Disability discrimination
(1)For the purposes of this Act, 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 disability.
(2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
6 Indirect disability discrimination
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
Before considering the application of these provisions to the evidence concerning the three events complained of, I note that the applicant’s documents also invoke other species of unlawful discrimination under s.15(2). He argues that Ms Kuling’s discriminatory rostering requirements in the week of 7 to 13 August 2004, either of itself or cumulatively with discrimination in the other two events, brought about his “constructive” dismissal by creating intolerable working conditions. He also argues that the discriminatory conduct in each of the three events involved “subjecting the employee to any other detriment”. He therefore also invokes paragraphs (c) and (d) of s.15(2). However, I do not consider that these arguments raise issues that cannot be addressed by considering broadly whether the three complaints demonstrate discrimination in the conditions of his employment.
The respondents did not present any evidence or arguments seeking to justify discriminatory treatment of the applicant in his conditions of employment, whether direct or indirect, under s.15(4), on the ground that the applicant’s disability rendered him “unable to carry out the inherent requirements” of his particular employment, or required services or facilities whose provision would impose an “unjustifiable hardship on the employer”. The respondents’ defence to the applicant’s complaints relied only upon arguments that the applicant failed to make out any discrimination falling within either s.5 or 6. in relation to any of the three complaints.
I also note that the first respondent did not dispute that it was a “body corporate” created by State legislation which was subject to the Disability Discrimination Act. Nor did it contend that it could avoid vicarious liability for any discriminatory conduct against the applicant on the part of the second, third or fourth respondents. Section 123(2) of the Act, takes their actions “to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct”. In particular, I note that it was not contended, and I would not find on the evidence before me, that Ms Kuling’s refusal to accommodate the applicant’s disability when requiring him to work the roster he complains about, was the subject of any “reasonable precautions” or “due diligence” by the employer to avoid its occurrence.
Mr Graham’s letter to the Nurses Registration Board
As I have indicated above, the CEO of the first respondent, the applicant’s employer, was aware in late 2002 that the applicant’s nurse’s registration was under consideration by the Nurses Registration Board. The employer’s “Director, Integrated Health Care Services Area Director of Nursing”, Prof. Baker, was expressly informed by the NRB of the three conditions imposed on the applicant’s registration by letter dated 12 December 2002, before he returned to work in February 2003. The conditions included that he “only work under the supervision of a registered nurse”, and “advise his current employer and future employers of these conditions”. The letter identified the Board’s inquiry as originating on “advice” from the Medical Director of the Cummins Unit at RNSH, without disclosing its contents, and advised that the conditions on the applicant’s registration “were not imposed under the Impairment Provisions of the Act but under the complaints and disciplinary proceedings provisions”.
In her affidavit, Ms Stone, who was Deputy Director of the first respondent and supervisor of Mr Allan, the applicant’s nurse unit manager at the time, admits that she was aware of these conditions when the applicant returned to work, since she had seen the NRB letter of 12 December 2002. She informed the applicant at that time that the employer had been notified. She claims in her affidavit that she also advised Mr Allan of the conditions at an unspecified date, and told him “that Mr Rawcliffe could not work on night duty in the Psychiatric Geriatric Unit” because he would be the most senior nurse on duty.
In his evidence, Mr Allan recalled being informed by the first respondent of the applicant’s conditions, but said: “I think it was fairly late in the proceedings”. A HCCC file note dated 19 March 2004 records Mr Allan informing an officer of that body that “although he was unaware that Rawcliffe was required to work under the supervision of a registered nurse, Rawcliffe would have been supervised in the 3 Unit wards at Manly hospital. Allan then added that Cathy Stone (dep director of Mental Health) who is on long service leave, would possibly have been aware of this fact”.
The applicant complains that his employer took insufficient steps to ensure that all his managers were aware of the NRB conditions, and that he was unfairly blamed for their lack of knowledge, in circumstances where he was only obliged to advise his “employer”, and where in fact he worked with several registered nurses at all times.
In particular, he complains about a letter sent by Mr Graham to the NRB at the end of June 2004. The events relevant to this complaint are:
a)A NRB file note of 23 March 2004 records its officer speaking by telephone to Ms Hinchcliffe, director of nursing at Manly Hospital, apparently to check that the applicant’s supervisors were aware of the conditions. It records Ms Hinchcliffe stating that she was not the applicant’s “online manager”, that his “line manager” Ms Stone “was informed of the conditions but this cannot be verified”, and that “the acting NUM (for over 12 months) was not aware of the restrictions on Mr Rawcliffe’s registration. Mr Rawcliffe has not been working under the supervision of a registered nurse and often works night shift on his own”.
b)By letter dated 16 June 2004, a deputy registrar at the NRB wrote to Ms Hinchcliffe, repeating the conditions on the applicant’s registration, and advising that “this matter is being investigated by the Health Care Complaints Commission as required under the Nurses Act.”
c)Mr Graham, Ms Stone’s successor, gave evidence that he was unaware of restrictions placed on the applicant’s registration before being shown this letter. He said that he spoke to the applicant and told him to inform Ms Kuling, as his acting NUM, of the conditions, and that he also confirmed that Ms Kuling was aware of the conditions. He then responded to the NRB by letter dated 25 June 2004:
With regard to the section 48 conditions placed on Mr Rawcliffe, I wish to advise you that the Northern Beaches Mental Health Service is ensuring that these conditions are being adhered to according to regulation.
I believe that Mr Rawcliffe had been remiss in his responsibility in notifying his supervisor of these conditions on occasion. This situation has been addressed and full compliance is now assured.
d)Mr Graham in his affidavit states:
My response to the NRB was consistent with my usual practice upon receiving such a request. I would have responded to any request about conditions placed on any nurses’ registration in this manner and I have done so. As Deputy Director of NBMHS it is my responsibility to liaise with the NRB regarding restrictions on registration and compliance with imposed conditions.
It is unclear when the applicant became aware of Ms Hinchcliffe’s communication to the NRB and of Mr Graham’s letter. In his complaint to HREOC, he referred to Mr Graham’s criticism of himself, and suggested that it was “ludicrous”, since the delay in Mr Allan becoming aware of the conditions on his registration was due to a failure by Ms Stone, rather than “due to any act of neglect on my behalf”. He said: “Though this act in itself is not an act of disability discrimination, when viewed in context of the behaviour of other senior staff, it appears to me to be discriminatory”. In a later letter to HREOC, he claimed: “The allegation concerning Sean Graham is an issue of discrimination in as much as indicating that I was remiss in my responsibility influences the attitude of the statutory body as to the nature of my character.”
In his documents filed in the Court, the applicant complains that Mr Graham’s statement “that I had been remiss in my responsibilities to notify my supervisors of my conditions of registration is a misrepresentation of facts to the NRB”, as was Ms Hinchcliffe’s earlier oral communication. This was because the employer “had full knowledge of my conditions as they sought them from the NRB” in 2002. In one document, he described Mr Graham’s actions as involving “public humiliation if my superior is directing myself to inform members of the hierarchy of these conditions personally.”
He said that he never worked on his own on night shifts, because “East Wing Inpatient Unit is a thirty bed psychiatric unit with at least 4 registered nurses working every night as rosters will reveal. This is an obvious misrepresentation as it would make it appear I have breached the conditions”. However, he also said that there was a short period, before Mr Allan was made aware of the conditions, when he was promoted to “in charge nurse”. He said: “this promotion was in fact a breach of my registration conditions and I was thus demoted with the anguish that accompanied this act.”
In reply to the applicant’s documents, Mr Graham stated in an affidavit:
When I spoke with Mr Rawcliffe in or about mid to late June 2004 regarding the conditions on his registration and subsequently advised him to inform Ms Kuling of the conditions on his registration, I did not do so to humiliate Mr Rawcliffe and did so to ensure that the conditions on his registration were notified to his manager and abided by.
The applicant did not seek to cross-examine Mr Graham upon this statement, nor generally.
Under cross-examination, the applicant agreed that there was nothing improper in his employer liaising with the NRB to ensure compliance with the conditions on his registration. He said that the reason that he said Mr Graham’s statement that he had been “remiss in his responsibility” was discriminatory was because it was erroneous, since “I had no need to inform management if my condition is to inform the employer”.
In effect, the applicant’s complaints about the communications of Ms Hinchcliffe and Mr Graham to the NRB are that they were incorrect in their statements of fact, and unfairly suggested that he had not complied with the conditions on his registration. However, even if they were attended with these faults, I am not able to find that they involved any direct or indirect discrimination referable to his identified disability.
In relation to direct discrimination under s.5(1), I can find no evidence that the communications involved the applicant being treated “less favourably” than a person in the same position as the applicant but without his disability, and being so treated “because of” his disability.
Section 5(1) requires consideration of the “true basis for the act or decision” complained of, which may not necessarily be found in the motive of the respondent (see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176). Where the action is directed at a person with a disability, it is appropriate to take into account “obligations and responsibilities which the (employer) was legally required to take into account” when determining the basis for the action (cf. Purvis (supra) at [14]). Section 10 provides that if an action has two “reasons”, of which even a minor or insubstantial reason is the complaint’s disability, then “the act is taken to be done for that reason”.
In my opinion, the sole reason for the communications to the NRB can be clearly found within the two managers’ responsibilities to respond to official communications concerning the conditions on the registration of one of their employed nurses. Their communications took place because of those responsibilities, and not because of the applicant’s disability. Even if, and this is unclear on the evidence before me, the imposition of the registration conditions in 2002 had a relationship to the applicant’s disabilities, this did not alter the basis of the communications from the managers. In my opinion, they occurred only because of the imposition of the conditions, and only as a result of the responsibilities of the first respondent’s managers to supervise and report their implementation. I can find no evidence that any other motive or reason actuated their occurrence or content.
I can find no evidence that the applicant was treated any differently than would have been any other nurse at Manly Hospital who was subject to registration conditions of the type communicated to Ms Hinchcliffe and Mr Graham by the NRB. I accept that their responses to the NRB failed to admit some failures of communication within the management structure of the employer, and might have unfairly reflected upon the applicant’s compliance with his registration conditions. However, I am not satisfied that these aspects occurred because of the applicant’s disability, rather than the failings of the managers unrelated to his disability. I am not satisfied that Mr Graham’s criticisms of the applicant would not also have been made of another person in the applicant’s situation and without his disability.
In particular, I cannot find support in the evidence for the applicant’s suspicions that the criticisms made in the communications were motivated by a desire or plan to cause him distress or upset, or by an awareness that they would cause him special upset, or with an intention to aggravate the mental components of his disability, or to effect his constructive dismissal by making his continuing employment intolerable to him. As the applicant himself recognised in submissions to me, on the evidence which he was able to present to the Court these suspicions – which he developed when he discovered that his managers were communicating with the NRB and HCCC – were most probably figments of his paranoid thought processes. Those thought processes were probably symptoms of a deterioration of his epileptic condition at the time, but they do not themselves alter the true basis for the events which triggered them. I am not satisfied that the actions of his managers when communicating to the NRB involved any element of direct discrimination on the ground of his disability.
In relation to indirect disability discrimination under s.6, I am unable to find any basis for making findings in terms of that provision in relation to the communications of Ms Hinchcliffe and Mr Graham’s to the NRB. The communications themselves did not “require” the applicant to “comply with a requirement or condition”, although their subject matter related to requirements imposed upon him under the registration conditions. Those requirements were not imposed by the employer, and are not themselves a matter complained of in this proceeding.
To the extent that this complaint concerns Mr Graham’s requirement that the applicant convey the registration conditions to Ms Kuling as his nursing unit manager, in my opinion, the evidence shows that the applicant was “able to comply” with that requirement, and in my opinion it was “reasonable” for Mr Graham to make that request.
For the above reasons, I am unable to find that any unlawful discrimination under ss.15, 5 and 6 occurred in relation to the communications between the applicant’s managers and the Nurses Registration Board concerning the 2002 conditions on his nurses registration.
Ms James’ notice requiring attendance at counselling
At the end of July 2004, another event occurred in the applicant’s employment which further fuelled his paranoia.
This arose out of his attendance on 21 May 2004 at a staff training session on ‘aggression minimisation’ conducted by ‘trainers’ from outside the applicant’s work unit. It seems that the applicant strongly disagreed with the policy underlying the training, which was contained in a NSW Department of Health Policy Directive entitled “zero tolerance to violence in the NSW Health Workplace”. The applicant thought that “zero tolerance” was an inappropriate response to patients in his wards, whose problematic behaviour was likely to be a symptom of their illness, requiring treatment not intolerance. He expressed his views forcefully, and admitted saying that “zero tolerance was crap”. Another colleague, nurse Brady, supported his opinion, and they were both asked to leave the training session on the ground that their conduct was disruptive.
On 27 May 2004, Mr Graham spoke to the clinical nurse educator facilitating the training session. She complained that Ms Brady “appeared hostile” and “made inappropriate comments” with racist overtones. She told Mr Graham that Ms Brady and the applicant had made critical comments concerning the zero tolerance policy, and her attempts “to steer the class discussion back to the course content were thwarted by continual complaining” from them. Their points were made “in an aggressive manner and inappropriate forum which resulted in distressing the trainers and disrupting the learning process for other employees”.
Two months after this event, on Wednesday 28 July 2004, Ms James wrote a letter to the applicant which said:
Dear Mr Rawcliff
As a result of concerns regarding your performance you are requested to attend a first stage counselling meeting on Tuesday 03/08/2004 at 13:45 in the office of Ms Paula James, Service Director at East Wing.
In accordance with the NHS Counselling and Discipline Policy (attached) you will be given at this meeting the opportunity to discuss these concerns and an agreed course of action will be determined. Ben Blunt, Deputy Human Resources Manager will also be present at the meeting.
Concerns regarding your performance include the following:
Disrupting a NSH Staff training course resulting in the trainer requesting you leave the class and return to the workplace.
Please be assured that the management of this matter will be a private, confidential and impartial process. Please also note that the Peer Support Program can be contacted on 9962 9000, Page 145338.
You are entitled to invite a silent support person of your choosing to accompany you to the meeting.
Yours Sincerely
Paula R James
The attached counselling and disciplinary policy detailed a lengthy procedure which could lead to disciplinary sanctions, including summary dismissal, if “everything that was agreed to at the first counselling meeting is not progressing well”.
The letter was left at the nurses’ station at East Wing, and also posted to the applicant’s residential address. However, due to his being rostered off work at the time, the applicant did not receive the letter until one or two days before the appointed meeting. He complained to HREOC that he was given little time to organize an appropriate person to accompany him, and could only ask a nursing colleague, Mr Neville, “on his lunch break” to accompany him as his “silent support person”.
However, on Tuesday 3 August he did attend the meeting with Ms James and Mr Blunt, a deputy human resources manager. They prepared a record of meeting, which the applicant accepts is accurate. This describes the content of the discussion:
7.List the explanations the person being counselled gave at the meeting about their performance/behaviour (or anything else relevant)
· Cliff understood the training session to be interactive and that discussion amongst attendees was encouraged.
· Cliff had strong ideas and opinions about the issue of ‘Zero Tolerance to Violence’ policy and how this applies to the workplace in a mental health setting.
· Cliff stated that he is not afraid to voice his opinions and that he has an authoritative voice and manner, which is useful in his role as a mental health nurse.
· Cliff stated that he does not believe he did, nor that he intended to harass or intimidate the Educator who was running the Aggression Minimisation course.
· Cliff does not believe he disrupted the training course.
8. List the agreements made about what the person being counselled will do.
· It was explained to Cliff that although he did not intend to disrupt the training course the Educator/s and at least some of the other attendees present found his questions and comments intimidating and disruptive.
· Cliff agreed that at future training sessions he will remain mindful of his authoritative and opinionated manner and that he will not be as forceful in making his opinions known within a classroom setting where Educators are trying to teach and may find his comments disruptive.
· If future training sessions trigger thoughts and reactions in Cliff regarding problems within his own department he should take these issues up with the appropriate mental health management.
A separate counselling session for Ms Brady was conducted by Mr Graham on 13 August 2004. In his affidavit, he said that this date was chosen by reference to her roster, as a day on which they would both be in attendance at work.
The applicant complains that the shortness of notice of his counselling session made it much more stressful for him, and it appeared discriminatory because Ms Brady, who was also required to attend counselling, was given fourteen days notice of her meeting. This was the first time that he had been the subject of a disciplinary proceeding at a workplace, and he regarded it as unfairly convened. He notes that his thoughts of being victimised were influenced by his state of health at the time.
In one of the applicant’s affidavits, he states that Ms Bright “suffers from epilepsy also”. However, no further evidence was presented concerning this by either party, and the applicant’s submissions did not identify its relevance to his complaint of discrimination. Prima facie, although this evidence might suggest that he was “treated less favourably” than another employee, it points against the discrimination occurring because of his epilepsy.
Ms James said in her first affidavit:
31.I deny that the difference in the notice of the meeting given to Mr Rawcliffe, in comparison to Ms Brady, had anything to do with Mr Rawcliffe’s epilepsy.
32.I met with Mr Rawcliffe. I understand that Mr Graham met with Ms Brady. There was no specific reason for this arrangement.
33.At my meeting with Mr Rawcliffe on 3 August 2004, Mr Rawcliffe did not raise epilepsy as a reason for conduct at the aggression minimisation training session. Nor did he complain that he had been given insufficient notice of the meeting.
34.Notes of my meeting with Mr Rawcliffe were taken. A copy of these notes was provided to Mr Rawcliffe shortly after the meeting. Annexed to this affidavit and marke ‘PJ 4’ is a copy of these notes.
35.So far as I am aware, Mr Rawcliffe was dealt with in the same manner as Ms Brady in relation to this disciplinary process.
36.Both staff received notice in accordance with the relevant policy and meetings were scheduled with Mr Rawcliffe and Ms Brady when they were available.
37.I did not act any differently toward Mr Rawcliffe as I would have toward any member of staff who had been ejected from a training session due to unsatisfactory conduct.
38.On other occasions when disciplinary issues have arisen with other staff, I have instigated a similar disciplinary process to the process conducted in respect of Mr Rawcliffe.
39. I did not ‘single out’ Mr Rawcliffe on the basis of his epilepsy.
40.To the best of my recollection, Mr Rawcliffe did not at any stage raise the issue of the period of notice with me.
41.Had Mr Rawcliffe ever stated that the notice he received of the disciplinary meeting was insufficient I would have rescheduled the meeting, to be fair to him.
In an affidavit in reply, she states:
6.In providing notice to Mr Rawcliffe of the disciplinary meeting on 3 August 2004, I endeavoured to provide him with the same notice as Ms Sheridan Brady. The difference in notice provided was not intended to cause any detriment to Mr Rawcliffe or contribute to his alleged complex partial seizure disorder. Had Mr Rawcliffe asked me to change the date of the disciplinary meeting I would have done so.
The applicant did not seek to cross-examine Ms James on her affidavits. When he was cross-examined, the applicant agreed that he did not request a rescheduling of the meeting. He explained why he thought that he was discriminated against in relation to notice of the meeting:
Do you say that that was unfair because Ms Brady had more time to prepare? --- No. I say it’s unfair as it contributed to my negative mental state at the time because of such an obvious disparity between three days, of which I had two of them off, which you can check on the roster, and I had come to work and find that I have got to go to a disciplinary meeting and find that the other person involved for exactly the same thing, who actually did call people ethnics etcetera, gets a further two weeks to prepare themselves, and I perceive that – that is an obvious discrepancy, and one that I took in light of my failing health, took a view – a degree of paranoid ideation and might of thought created that discrepancy that – obvious discrepancy of 10 days, there was obviously a difference in the way people were being treated. That is as I perceived it and that contributed to my mental health.
So yours is discrimination because it contributed to your ill health. Is that right? --- Yes.
After considering all the evidence relating to the counselling episode, I have come to the same conclusion as in relation to the applicant’s complaint about Mr Graham’s communication to the NRB. I am unable to find evidence supporting a finding that the applicant’s disability provided a basis for his being required to attend counselling, nor for his being given a different period of notice than Ms Brady. I accept Ms James’ evidence in this respect. Her actions, whether or not they provided notice which was reasonable in the circumstances of the applicant’s disability, were not attributable to the applicant’s disability. I am not persuaded that the short notice he was given, though less favourable than that given to Ms Brady, would not also have been given to a person without the applicant’s disability.
I accept that Ms James’ actions had an effect on the applicant arising from his perception of less favourable treatment, that effect being an aggravation to his disability’s mental symptoms and difficulties arising from his sleep deprivation at the time. However, this effect on his disability does not alter the basis upon which her actions were taken. I am unable to find actions of direct discrimination arising under s.5(1) in the course of this event.
In relation to indirect discrimination, I would not find that the applicant did “not or is not able to comply” with the requirements conveyed in Ms James’ letter, within s.6(c). The concept of “able to comply” is not absolute, since “it is sufficient to satisfy that component of s.6(c) that a disabled person will suffer a serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can “cope” with the requirement or condition” (Hurst v Queensland (2006) 151 FCR 562 at [134]). However, I am unpersuaded that the applicant suffered any “serious disadvantage” arising from the manner in which Ms James gave notice or conducted the counselling meeting. In fact he attended the meeting and, according to the note of the meeting, was able to defend himself more than adequately, notwithstanding the symptoms of his disability which he was developing at that time.
Since I do not find paragraph (c) of s.6 to be satisfied in the context of the applicant’s complaint about the counselling which occurred on 3 August 2004, I do not need to consider the issues raised by paragraphs (a) or (b) of s.6 in relation to this complaint.
Ms Kuling’s roster for 7 to 13 August 2004
The applicant’s complaint that he was required to work a roster in the week of 7 to 13 August 2004, which was unreasonable in the circumstances of his disability at the time, was at the centre of his complaint to HREOC and to this Court. He claims that it precipitated his resignation from his employment, and caused an epileptic seizure which contributed to a lengthy period of incapacity for work. For reasons which I shall explain below, I have decided that the rostering of the applicant by Ms Kuling did involve indirect discrimination falling within s.6, although I am unpersuaded that direct discrimination was involved. I shall then need to consider what remedies should be ordered.
The evidence as to the content of Ms Kuling’s roster directions and their effects on the applicant was essentially not disputed by any evidence led by the respondents, and supports a finding that the applicant was not “able” to comply with Ms Kuling’s final direction as to his roster for the purposes of s.6(c) due to the condition of his disability at the time. However, the content of oral communications between the applicant and Ms Kuling leading up to her direction is disputed. These communications are relevant to an appreciation of the applicant’s mental state at the time, and become particularly relevant to whether I should characterise her direction as “not reasonable having regard to the circumstances of the case” for the purposes of s.6(b). The conceptually difficult issues raised by s.6(a) also need to be addressed.
The applicant’s employer gave to the nursing unit manager (NUM) of the East Wing mental health wards at Manly Hospital the responsibility for setting a roster for the nurses, who worked there on a variety of shifts providing 24 hour nursing services. During August 2004, there were 33 nurses covered by the roster. Under Mr Allan’s management of the rosters up to June 2004, the applicant was rostered on all the available shifts, without any requests on his part to be treated differently than other nurses.
Mr Allan’s established practice, which I infer was approved by his own supervisors, was to invite the nurses to nominate and negotiate their preferred shifts for the next four weeks, before himself determining and publishing the work roster for that period. Further alterations to the shifts could then be made with the approval of the NUM.
It is apparent, in my opinion, that it was a “term or condition” of the applicant’s employment for the purposes of s.15(2)(a) of the Disability Discrimination Act, that he should work the shifts allotted to him by the NUM. I also consider that the NUM’s directions in relation to the shifts to be worked, constituted “requirements or conditions” within the opening language of s.6. I did not understand the respondents to contest these conclusions (and compare Dawson J in Banovic (supra) at 185, followed in Waters v Public Transport Corporation (1991) 173 CLR 349 at 393 and 406).
Ms Kuling became acting NUM when Mr Allan went on leave in June 2004. Mr Allan may have been involved in determining a roster for the period ending on Friday 30 July 2004. However, I find that the roster for the subsequent period was entirely Ms Kuling’s responsibility, and I do not accept her claim in her affidavit that it was “prepared under the supervision of Mr Allan”. She retreated from this claim under cross-examination, and it is inconsistent with the evidence as to the chronology of his departure and of the publication of the roster.
In the middle of July, a blank schedule was posted up, with vertical columns for each day in the four week period commencing on 31 July, and horizontal columns for the 33 nurses. They then “pencilled in” their suggestions of the shifts they would work. Alterations were then made by the NUM to the draft roster, before she published the final roster.
The applicant’s evidence, which I accept, was that around the time that the draft roster was prepared, he was aware of “the effect of my epileptic medication was having on my liver which was making me tired, a commonly recognised symptom of hepatitis”. He therefore pencilled in “EC” to identify his preferred shifts throughout the period. This indicated a request to be rostered only for afternoon shifts, from 1.30pm to 11pm. He said that this would allow him to address his tiredness and sleeping difficulties by getting up in the middle of the day. He said that at some stage around this time he explained his ill health to Ms Kuling “on the ward”, and that in conversation he referred to his liver function tests showing problems with his anti-convulsant medication which was causing hepatitis. He said that she must have been aware from this, and from earlier conversations or observations, and from the general knowledge amongst his colleagues, that he was under treatment for epilepsy.
The photocopy of the draft roster, which is in evidence, appears to confirm the applicant’s original request for all EC shifts for the four weeks. It also appears to show that for the second week of the roster period, this has been erased and someone has inserted the shifts which were ultimately determined by Ms Kuling, except that the roster for the 11th is shown as MN rather than the TC which was ultimately provided. Ms Kuling gave differing evidence as to the hours of the MN and TC shifts, and the applicant’s evidence as to their difference was also not clear. On her evidence they were both day shifts, both of about 10 hours, MN commencing at 9am and TC at 11.30am. According to descriptions on an official compilation of the rosters (Exhibit 3), the TC shift was a 10 hour shift commenced at 7.30am, and there is no mention of a MN shift. I am inclined to prefer this evidence as to the official hours of a TC shift, since Ms Kuling’s evidence lacked consistency and confidence.
I accept the applicant’s evidence as to the state of his health over this period and as to his communication of it to Ms Kuling in his conversation “on the ward”, and in a subsequent meeting in her office which I shall narrate below. The substance of the applicant’s evidence was, in my opinion, consistently given throughout his written and oral evidence, and was not substantially shaken in cross-examination. His deteriorated medical condition at the time is corroborated by Dr Levenston’s certificate, and is consistent with the other medical evidence. His account of conversations is consistent with the documented history of the roster, with Ms Kuling’s written directive to the applicant on 9 August which I shall describe below, and with the documented evidence of the behaviour of the applicant at the time. As a witness, he gave oral evidence in a manner which impressed me with his effort to give honest recollections, and which showed a remarkable capacity to be objective about his history of paranoid thoughts. Those thoughts might have distorted his appreciation of events, but I do not consider that his recollection of the events in which he was directly involved was distorted by his paranoia.
Ms Kuling’s published roster was issued to nurses in a printed table dated 19 July 2004. It was also published on 20 July in the form of a daily ward diary, listing each nurse rostered on each day, and their rostered shift. Any further changes approved by Ms Kuling were then written into this diary. The published roster showed the applicant working only EC shifts in the first and third week, and also in the fourth week except for one morning shift. However, in the second week it required the applicant to work a TV night shift from 9.30pm on Sunday 7 August to 7.30am on 8th, a TV night shift from 9.30pm on 9th to 7.30am on 10th, a TC day shift from 7.30am to 5.30pm on 11th, and a TV night shift from 9.30pm on 12th to 7.30am on 13th. I find that there was, in the language of the applicant’s complaint to HREOC, “a ten hour day shift sandwiched in the middle of two ten hour night duties”. It is true that the shifts were not immediately ‘back to back’, but they required the applicant to adopt significantly shifting sleep patterns in one week.
When the applicant saw this roster, he formed the opinion that he would have difficulty working the shifts for the second week, due to their disruption to his sleep patterns while he was suffering from chronic tiredness. He then “organised to see Ms Kuling”, and had a meeting with her in her office between the 21st and 28th July. At this meeting he told her that he could not work those shifts, and wanted them altered because of his epilepsy and ill health in general. He reminded her about what he had told her on the ward. He said to her: “can I not do that day shift in the middle of the night shifts?”, and Ms Kuling agreed. The applicant then altered, in his own handwriting, the nursing daily diary, so as to show that he would be working a night TV shift on 11-12th August, rather than the TC day shift on the 11th.
The applicant then worked the roster until his night shift of 9th to 10th August. At the commencement of that shift he found a directive from Ms Kuling, written on a sheet of humorous note paper. It said:
Hi Cliff
I don’t know who changed you to night duty on 11/8/04 but the ward needs you to stay on the TC.
If your short ? hours you can do a 10 hr day – not sure what has gone on.
Thanks
Jayne K.
This abrupt change to the roster, back to the “sandwiched” day shift, caused the applicant to submit his resignation “on the spot”. He typed on an office computer: “Dear Jayne, I would like to tender my resignation as of today, 09/08/04. I will be working my 14 days notice as of today.”
However, he did not work that 14 day period. When he returned home, he “had a severe grand mal fit in which my head hit the wall and I never went back to work because I was on sick leave.” Dr Levenston’s medical certificate given on 11 August certified his unfitness for work from 11 August to 11 November 2004, and gave the diagnosis which I have described in full above. This included his opinion that there had been symptoms for the preceding month of “difficulty to control epilepsy with (secondary) sleep deprivation & paranoid ideation.” The applicant was then placed on the disability support pension, upon Dr Levenston’s medical certificate.
In the course of his cross-examination, the applicant explained his state of mind at the time that he received Ms Kuling’s direction on 9th August and wrote his resignation letter:
When you received the note on 9 August 2004 you did not ring Ms Kuling and ask her why the change had been reverted? --- No, because I had made the point of going and asking her and explaining my health condition and when she changed my day I just went, “Hey, they are just trying to make me sick. I am leaving”. And then I did have a seizure and my head hit the wall and it stuck between iron bars and I was given days off and I took the roster in to Dr Levenston and showed him, and he said, “You are going off work now”.
…
After you received the note, you did not ring Ms Kuling and ask her to take the issue to Ms James, for example, did you? --- No, because I wasn’t very well, obviously. People are doing things like that to generate paranoia – you know, like, I went into an office, agreed to change the roster, and I didn’t say I don’t want to do any nightshifts. I said I don’t want to do a day shift amongst the nightshifts. I was a team player and then, you know, two weeks later it gets changed back to the original things and that was one of the things that generated paranoia and probably most likely contributed to the rest of the ill health, but it’s you know, those sort of things where you have a meeting and like, you go and meet the boss and you go and discuss something and then a week later there is a note saying, “I don’t know what happened. Who changed the night shift” when you can see it’s my writing who changed the nightshift, that made me feel paranoid.
The applicant says that he suffers from postictal memory loss about subsequent events. There are records showing that on 20 August 2004 he executed a formal “notice of resignation” witnessed by Ms Kuling, in which he gave two weeks notice of resignation on that day, for the reason of “exacerbation of health condition” with an attached health certificate, which I infer was that of Dr Levenston. The applicant’s “employment separation certificate” which allowed him to qualify for Centrelink income support, was signed by his employer on 27 August 2004, and certified that his reason for termination was “health”. He received a $6,599.04 termination payment in lieu of accrued leave.
The applicant has no recollection of any telephone conversations with Ms Kuling at this time, but does not deny her claim that she telephoned him on 11th August. She claims that he told her “I’m not coming in to work anymore”, and that “he did not say anything … about not attending work because of epilepsy and/or for a complex partial seizure disorder”. I have doubt as to the likelihood of his saying nothing to her about his epilepsy in response to her enquiry about his absence from work, but do not need to rule upon this. She also claims that she “subsequently” telephoned the applicant “to discuss the arrangements for him to be paid his termination entitlements”, and that this led to his attendance at the hospital to sign the form of resignation.
Ms Kuling’s account of her rostering of the applicant and knowledge of his health has developed over time, and it received further elaboration when she gave oral evidence. For reasons explained above and below, where her evidence is not corroborated by contemporaneous documents and is inconsistent with the applicant’s evidence, I prefer to accept his account of events. Thus:
a)In her statement dated 18 November 2005, given to HREOC in response to the applicant’s complaint, she said:
While I was aware that Mr Rawcliffe suffered epilepsy, I was unaware of his impaired nurse status and / or that he had any special needs with regard to his roster. At no time did Mr Rawcliffe or management discuss this matter with me and / or provide any medical evidence of his disability.
Consequently I followed the usual ward process for rostering Mr Rawcliffe’s shifts. This process involved staff initially self rostering shifts on a draft roster template and I, as the NUM, altering the roster to meet the requirements of the unit. The final roster was then posted for the staff to read.
Mr Rawcliffe followed this process and I believe that his requests were generally met.
I do not recall a conversation with Mr Rawcliffe about the shift in question. However, given my note to Mr Rawcliffe, I assume that there was some communication about the shift between us.
b)I consider that the equivocal “and/or” elements in this statement, and its denial of recollection about events leading to her 9th August direction, reveals lack of candour by Ms Kuling. The events immediately leading to the applicant’s resignation would be expected to have been memorable, and I consider that her statement to HREOC attempted to limit the significance of a clear admission that she, as the applicant’s supervising colleague working closely with the applicant, was aware that he suffered epilepsy. The statement suggests an attempt to avoid admitting the obviously probable nature of the “communication about the shift” which explained her “note”. This was that the applicant had requested an accommodation in relation to the roster for health reasons, which she had granted, and then changed her mind about for reasons which she preferred not to explain or could not reasonably justify.
c)My impression that Ms Kuling has attempted to avoid admitting the true background and reasons for her 9th August direction, is reinforced by the disingenuous suggestion in the note itself, which was repeated in her affidavit in this Court, that she was unaware that the applicant had changed the nursing diary after obtaining her approval for the roster change. Her oral evidence about the alteration to the diary retreated from this suggestion, and, in its content and demeanour, revealed a witness whose testimony I would not generally rely upon (compare transcript 18/4/07 p.15 line 47 and p.26 lines 15-41).
d)An impression of a desire to avoid revealing, rather than truthfully recounting, her oral communications with Mr Rawcliffe concerning his health, is confirmed by the contents of her affidavit, sworn on 19 September 2006, in these proceedings. In this she said that she had known the applicant since she commenced employment with the first respondent in June 2003, and worked with him as a registered nurse “in both the PGU (i.e. psycho-geriatric unit) and East Wing”.
e)The affidavit contains some discreditable allegations about the applicant as a nurse, whose relevance to the applicant’s present complaints is not clear. I observed a similar tendency to make gratuitous discreditable statements about the applicant in the course of her answers to cross-examination, and was left with an impression of personal animosity felt on her part towards Mr Rawcliffe. However, this possible explanation for her rostering direction to the applicant, although suggested in some of the documents filed by the applicant, was not put to her clearly in cross-examination. There are other possible explanations, and I am unable to make any positive finding as to the motivation for her refusal to accommodate the applicant’s disability. As I have found above, I do not accept her denial that he ever requested her to give any accommodation. However, Ms Kuling’s lack of candour about the background and reasons for her direction of 9th August, and the absence of any other evidence to shed clear light on her motivations, means that I would not make findings that it occurred “because of” the applicant’s disability, within s.5(1) of the Disability Discrimination Act.
f)Her affidavit’s account of events was:
18.In the past I have heard staff on PGU refer to the fact that Mr Rawcliffe suffers from epilepsy and took medication. This was in the context of general conversation and was never discussed formally with me.
19.Mr Rawcliffe at no time confirmed with me that he had epilepsy. Mr Rawcliffe and I did not at any time have a conversation regarding his epilepsy.
46.On the finalised roster for that week, Mr Rawcliffe was granted shifts reflecting the draft roster, with the exception of the MN shift on Wednesday 11 August 2004. I recall I had a conversation with Mr Rawcliffe in which he indicated he did wish to work the MN shift. He did not indicate that his reasons for this were related to epilepsy and/or a complex partial seizure disorder. I changed the shift and on the final roster Mr Rawcliffe was allocated the TC shift on Wednesday 11 August 2004.
50.Mr Rawcliffe has alleged he requested a meeting with me to discuss the August 2004 roster. I do not recall him making any such request nor having any formal meeting with him where he discussed the proposed roster with me.
51.However, I do recall having a short telephone conversation with Mr Rawcliffe in words to the effect of:
Rawcliffe:I don’t want to work the night shifts you have rostered me on.
Kuling:I’ll see what I can do. The ward is desperate for staff so if you can do it I would be grateful.
52.At no time during that conversation or any other conversation did Mr Rawcliffe advise me that he did not want to work night shift because of his epilepsy or for any other health related reason.
…
60.Mr Rawcliffe never requested any adjustment or modification to his work to accommodate problems arising out of epilepsy and/or a complex partial seizure disorder. If he had done so, I would have acted upon this information to ensure he was receiving appropriate support.
61.Because Mr Rawcliffe had worked full-time since I had known him, it did not occur to me that this shift pattern would affect him.
g)
At the commencement of her oral evidence, Ms Kuling altered her evidence as to the “short telephone conversation” narrated in paragraph 51 of her affidavit, so that the applicant’s statement would read: “I don’t want to work the day shift between night shifts you have rostered me on”. In my opinion, this was a belated attempt to address the implicit admission in her note of
9 August that there must have been communications explaining why the applicant’s day shift on 11th August had been changed in the diary to a night shift, so as to conform to the surrounding night shifts. However, the altered version of the conversation in paragraph 51 sits very awkwardly with paragraph 46 of her affidavit, which was not withdrawn.
h)Paragraph 46 of her affidavit appears to make an unbelievable suggestion that the applicant himself had requested the week’s night shifts and that they should be disrupted by a day shift. I consider that in her affidavit, and in her oral evidence modifying it, Ms Kuling attempted to construct explanations for the recorded history of the roster and for her note of 9th, which avoided admitting that she was aware why the applicant had requested changes to her roster. I do not accept that the applicant ever requested Ms Kuling to give him a 10 hour day shift for 11th August. Nor do I accept that he requested any night shifts for that week. I accept his evidence that, once presented with those night shifts in the amendments to the draft roster, he requested, and was initially given by Ms Kuling, permission to change the ‘sandwiched’ day shift to a night shift. I have been presented by Ms Kuling with no explanation why he would not have explained his reasons for that request, if they were not already apparent to her, before she agreed to the change. I consider that she must have been aware of his reasons, but has been unwilling to admit this, because of a consciousness that this would make manifest a lack of reasonable justification for her direction of 9th August.
i)In an affidavit in reply, sworn on 21 February 2007, Ms Kuling recalled for the first time (cf. paragraph 50 of her earlier affidavit), that there had been a conversation with the applicant in her office about the published roster. Although she did not recount the contents of the conversation, she maintained her denials that he ever referred to his health reasons for requesting changes to the roster. She also maintained her admissions to the effect that, if she had been so informed, accommodation would have reasonably been given. She said:
6.My involvement with the August 2004 roster was not intended to “single out” Mr Rawcliffe and the roster was done with the intention of staffing the unit appropriately.
7.At the time of preparing the August 2004 roster I had not seen any documentation which indicated that Mr Rawcliffe was suffering from epilepsy and/or complex partial seizure disorder relating to his inability to undertake shifts. If I had such knowledge I would have acted upon it and discussed ways that I could have assisted, as manager.
8.I was appointed to the position of Acting Nurse Unit Manager from July 2004 and then Nurse Unit Manager from August 2004 of East Wing and the Psychiatric/Geriatric Unit (PGU) at Manly Hospital. I am aware that Mr Rawcliffe alleges that I was put into this position with “a task of practice reform in the unit”. I deny that.
9.I did not receive any instructions at the time of appointment to “remove” any staff member, including Mr Rawcliffe from the unit. I did not, in that position have authority to recruit and dismiss staff, including Mr Rawcliffe.
10.Any changes brought about in East Wing and PGU when I was Nurse Unit Manager were done so at my own initiative.
11.I am aware that Mr Rawcliffe claims that he was suffering from hepatitis in August 2004 which caused him to be tired and this was one of the reasons he asked me to adjust the roster of August 2004. At no time did Mr Rawcliffe ever tell me that he suffered from hepatitis or was tired as a result of same. He did not request an alteration to the roster in August 2004 because of same
12.I am aware that Mr Rawcliffe claims he discussed his ‘health status’ with me in July and August 2004, both informally on the ward and in a meeting in my office to discuss his inability to work the proposed 2004 roster. I did not have a formal meeting with him to discuss this. I did talk to Mr Rawcliffe in my office about the roster but he did not mention that he was unable to do the shifts rostered because he had epilepsy or because of his health.
13.I did not authorise Mr Rawcliffe to change the roster of August 2004 at any time nor to change the diary to reflect the same. I did tell Mr Rawcliffe that I would consider any roster requests that he had, as I would for any staff member.
14.In August 2004 Mr Rawcliffe did not tell me that he had hepatitis nor did he request that his roster for August 2004 be adjusted because of that.
j)In her oral evidence in chief, Ms Kuling recalled for the first time another relevant conversation with the applicant. She said that “on the corridor outside the NUM’s office” there was a “sort of quick conversation” in which “we just discussed the shift (for 11th August) and I just said that I’d do what I could to change it for him”. She then changed the day shift so that it commenced at 11.30 am rather than 9am. She appears to have presented this evidence to explain why the draft roster was changed to an MN on that day, but the published roster showed a TC. She then suggested that TC was an easier shift, because it started later and was only 8 hours. However, on the corrections which her counsel lead from her, TC was a 10 hour shift from 11.30am to 10.pm. Moreover, as I have held above, I prefer the official description of TC shown in Exhibit 3, as a 10 hour shift starting at 7.30am. In relation to this aspect of her evidence, I was again left with an impression that Ms Kuling’s evidence contained reconstructions designed to prop up her unconvincing claim that the applicant never explained the need to accommodate a temporary worsening of his disability.
k)On all the evidence on this issue, I accept the applicant’s evidence that Ms Kuling, in the draft and published rosters, required the applicant to work a week of night shifts interrupted by a 10 hour day shift on 11th August, and that she later ameliorated this by allowing him to change that shift to a night shift – only to change her mind and to direct him to work the day shift. I accept the applicant’s evidence as to what he said to her before she agreed to the change which he inserted in the diary, and do not accept that he made no mention of his difficulties coping with a sandwiched day shift due to his illness from his epilepsy medication. I consider that it would have been most improbable that he would not have explained his reasons for requesting changes to the published roster, or that Ms Kuling would not have required an explanation before making her initial changes, if he did not offer one. I have carefully considered her evidence under cross-examination and, as I have illustrated in some particular findings above, its content and delivery left me entirely unpersuaded by her denials of the applicant’s claim to have made clear to her the reason why he needed, at least, the accommodation he was originally given. As I have indicated, I prefer his evidence in this respect.
Having accepted the applicant’s evidence as to his symptoms at the time, and in the light of Dr Levenston’s contemporaneous opinions, I consider that the applicant has established that Ms Kuling’s required roster for the week of 7 to 13 August 2004, confirmed by her direction on 9th August, made a “requirement … with which the (applicant) … is not able to comply” within s.6(c). Perhaps his physical condition might have allowed him to “cope” with the roster as directed, but in my opinion this would have been only with “serious disadvantage” by aggravating his tiredness and sleep deprivation (cf. the test in Hurst (supra) quoted above). As I shall indicate below, there was evidence that even in normal circumstances a nurse would have found the “split shifts” tiring, although workable. I consider that the applicant’s claim that he was not able to work the shift as directed is confirmed by ordinary human experience as to the requirements of sleep and the normal effects of intrusions which disrupt sleep patterns (cf. Holland v Jones (1917) 23 CLR 149 at 153). Moreover, the applicant was not only suffering from sleep deprivation, his mental balance was under serious stress from his disability, and his ability to cope with Ms Kuling’s abrupt change of direction must have triggered further paranoid ideation. Ultimately, in my opinion, the confirming evidence that the applicant’s disability rendered him unable to comply with Ms Kuling’s direction is his resignation letter.
My above findings as to communications between the applicant and Ms Kuling also, in my opinion, lead to a clear conclusion that that Ms Kuling’s directions as to the roster for that week were not “reasonable having regard to the circumstances of the case”. This conclusion seems inevitable upon her own admissions that, if she had been aware of the deterioration in his health, and if he had “requested any adjustment or modification to his work to accommodate problems arising out of epilepsy”, she would have “acted upon this information to ensure he was receiving appropriate support”. As I have found above, she was so aware, and gave a direction which was unreasonable in the circumstances known to her.
I do not accept her oblique suggestions that she was justified in turning a blind eye to his requested accommodation because she had not been “formally” notified of his disability and of a need for accommodation. In the situation in which she was placed by her employer, it was her responsibility to consider and give proper responses to the applicant’s requests to have his disability accommodated.
Moreover, as I have indicated, her employer was “formally” aware of his disability from the inception of his employment. Her employer also had “formal” knowledge of his history of mental breakdown in 2002 and its association with his declared disability. There is no evidence presented to me by the first respondent that this information was ever properly considered and discussed with the applicant and his immediate supervisors in relation to his possible need for accommodation in the course of his on-going employment. In these circumstances, if Ms Kuling had any doubts about whether she should give him accommodation during this episode of illness in response to his requests, it was her duty to obtain and consider the information about the applicant’s disability available on his personnel files and, if in doubt, to discuss the issue with her own managers.
In all the circumstances, I consider that Ms Kuling’s directions were unreasonably given, and that in the broader perspective of the applicant’s employment, his employer – through its agent, Ms Kuling – made requirements of the applicant in relation to his rostering for the week of 7 to 13 August 2004 which were “unreasonable” in the circumstances of his employment and disability. I am therefore satisfied as to the requirements of s.6(b).
In reaching this conclusion as to ‘reasonableness’, I have applied the principles summarised in Catholic Education Office v Clarke (2004) 138 FCR 121 at [115]. I do not consider it necessary to discuss the application of those principles at length. In short, their application leads to a clear outcome in this case, since the respondents did not advance any “reasons in favour of the condition or requirement” which was placed on the applicant as an employee with a known disability.
My above findings provide an introduction to the issues raised by s.6(a). This requires me to consider whether Ms Kuling’s roster for the relevant week, including her direction given on 9th August, made a “requirement with which a substantially higher proportion of persons without the disability comply or are able to comply”. As authorities establish, this requires identification of a “base group” of persons without the disability suffered by the applicant at that time, to consider the proportion of them who could comply. Another group of persons who have the disability is also to be considered to discover its proportion of members who could comply. The test is satisfied if the proportion of the first group is “substantially higher” than the proportion of the second group (cf. Catholic Education Office v Clarke (2004) 138 FCR 121 at [111]). The identification of the two “groups”, and the “pool” from which they may both be taken, is a matter for which the authorities allow considerable flexibility, since there is no requirement for a general or statistically chosen population to be identified. The appropriate groups are to be determined by considering the particular factual context in which the indirect discriminatory effect of the “requirement” is being examined. The two base groups should allow consideration of “whether (the disability) is a significant factor in compliance” (cf. Banovic (supra) at 178-9).
In the present case, neither parties presented evidence clearly directed at identifying appropriate base groups, nor at exploring the proportions of their members who would have been able to work under Ms Kuling’s roster for the applicant. On the applicant’s part, this was probably due to his lack of legal representation, and the complexity of this element of the Act. On the first and second respondent’s part, their legal representatives preferred to try to win this issue by submissions pointing to paucity of evidence, notwithstanding the first respondent’s likely ability to provide statistical or other evidence as to the capacities of nurses to perform mixed day and night shifts in one week, and of the composition and capacities of the relevant nursing population at Manly Hospital in particular.
In this situation, I am able to take into account the respondents’ failure to lead relevant evidence, since “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (see Russo v Aillo (2003) 215 CLR 643 at [11]). However, I still must find some basis for making positive findings under s.6(a) from the evidence before me or from ordinary human experience of which I can take judicial notice.
It is not uncommon in discrimination matters for there to be a lack of statistical or general evidence on issues raised by s.6(a), and it would be inappropriate to insist upon it unnecessarily in a jurisdiction conducted in an inferior court established to “operate as informally as possible in the exercise of judicial power” using “streamlined procedures” (Federal Magistrates Act 1999 (Cth)). Even in the Federal Court, judges have felt able to draw upon their “commonsense” when addressing s.6(a) (cf. Forest v Queensland Health [2007] FCA 936 at [69]). As has been said in the comparable State jurisdiction in Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 in a case of alleged sex discrimination:
The pool and proportions
57.The first stage is to identify all the people who had to comply with the requirement (the base group, or ‘pool’). No evidence is necessary to establish this: it is apparent from the facts. Just as in Bradley (No2) (at [64]), “the pool is easily defined in this case as all the people to whom the requirement or condition was directed”. Thus the pool in this case is all those NRAHS employees who conducted ward collections of blood. We do not know how many were in the pool.
58.Within that pool we identify the two relevant groups and compare their rate of compliance with the requirement. The rate of compliance with the requirement is essentially a question of fact (Kumaran at [17]). As is often the case in indirect discrimination cases, no statistical evidence was tendered on the rates of compliance with the requirement by the comparator groups , in this case by men and by women in a late stage of pregnancy.
59.The desirable way, when possible, to deal with proof of indirect discrimination was clearly set out by Justice Browne-Wilkinson as he then was in Perera v Civil Service Commission [1982] IRLR 147 at 151-2 para 29:
it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the USA has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of [the legislation] are satisfied.
60.This was not a novel approach at the time (see eg Price v Civil Service Commissioner [1978] 1 All ER (EAT) 1228 at 1231f), and has since been explicitly and consistently followed in the UK.
61.There will be cases when a Tribunal will be unable, without statistical evidence, to assess rates of compliance because some aspect of the case will not be within common knowledge: the fact that men, on average, are taller than women could be relied on as common knowledge without the need for evidence, but whether men, in the particular circumstances of a case, make more use of a carpool than women would be a matter requiring evidence (eg Bonella & ors v Wollongong City Council [2001] NSWADT 194).
62.In our view, when reliance on common knowledge will suffice, it is appropriate for us to proceed without the time and expense of expert evidence (see, eg, Kumaran at [21]; Finance Sector Union v Commonwealth Bank of Australia [1997] HREOCA 12 at text associated with footnotes 164 and 165).
63.In addition, not only are we not bound by the rules of evidence and, subject to the rules of natural justice, empowered to inform ourselves in such manner as we think fit, we are obliged to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case (s73(2) and (3) Administrative Decisions Tribunal Act 1997).
64.The parties having offered no evidence either way on this issue, we have, in the circumstances, relied on matters of common knowledge in assessing the rates of compliance. In coming to a view as to rates of compliance, we have accepted as common knowledge, and as not reasonably open to question, that people who are employed to do a job are able do the job until and unless inhibited by pain, discomfort or distress, that men have no particular disposition to pain, discomfort or distress, and that women in a later stage of pregnancy do have a particular disposition to pain, discomfort or distress.
In the present case, I consider that the questions raised by s.6(a) can be answered shortly, by reference to the obvious and uncontested circumstances in which Ms Kuling’s rostering directions occurred, and to the evidence given by the witnesses in the case.
In my opinion, the appropriate “pool” from which both groups should be considered is the group of about 33 nurses who were required to work the rosters determined by Mr Allan and Ms Kuling for East Wing nurses at Manly Hospital. This is a situation such as was suggested by Dawson J in Banovic (supra) at 187: “where a requirement is imposed upon existing employees, the relevant group may be the class of employees affected”.
In the absence of evidence to the contrary, I consider that it is reasonable to infer that this pool probably included a number of workers, even a majority of workers, who were not affected by epilepsy with its associated symptoms which formed part of the applicant’s disability at the time, including sleep deprivation and paranoid ideation. The evidence shows apparently successful rostering of the pool of nurses containing this group over several months, in a manner which included night shifts alternating with day shifts, and with an occasional alternation of day and night shifts.
The evidence of Ms Kuling suggested that in her experience such rosters were, in fact, worked by the nurses and that such rosters were reasonably required, at least for non-disabled nurses. She did acknowledge at one point that a “rotating roster” posed demands on “any employee” (transcript 18/4/07 p.25 line 10), but she also said: “split shifts happen all the time. On the week concerned re Cliff there were six other staff members doing similar shift patterns in that month period” (transcript p.27 line 14). The implication from the applicant’s own evidence also was that in his experience he would have been able to comply with the roster but for the deterioration in his health. Mr Allan pointed to the adverse health implications of the roster given to the applicant, and suggested that it was generally unsuitable, but I would not find from his evidence that most people in the group of nurses subject to Ms Kuling’s roster, who did not have disabilities such as were suffered by the applicant, would not have been able to comply with it. On all the evidence as to the past rostering of nurses in the East Wing wards, I consider it probable that most, or at least a high proportion, of the nurses without disabilities such as the applicant was suffering in July and August 2004 would have been able to comply with the rostering directions given by Ms Kuling to the applicant. I find, at least, that the proportion of non-disabled nurses rostered in East Wing who would have been able to comply with Ms Kuling’s roster was significantly greater than nil.
I do not consider that it matters that I am not able to give more precision to my identification of the non-disabled group of nurses or of its exact proportion of complying nurses, since I have formed a clear opinion that no nurse in a group of nurses, suffering the same disabilities as the applicant and taken from the same pool, would have been able to comply with the directions given by Ms Kuling. This conclusion is, in my opinion, a proper extrapolation from my reasons for finding the applicant’s own demonstrated inability to comply with her directions. It is also a reasonable extrapolation from Ms Kuling’s own admission that such a person would require support from his or her nursing unit manager. The combination of sleep deprivation and mental imbalance present in the applicant’s disability at the time would, in my opinion, give rise to “serious disadvantage” to any nurse working in a mental health ward who attempted to comply with the night and day roster given to the applicant for the week of 7 to 13 August 2004, and who was suffering from his disabilities.
I am therefore satisfied that a “substantially higher proportion” of non-disabled nurses on the East Wing roster would have been able to comply with the roster than the nil proportion of nurses disabled similarly to the applicant. I am therefore satisfied as to the issues raised by s.6(a).
For the above reasons, I find that Ms Kuling, as a person acting on behalf of the applicant’s employer, unlawfully discriminated against the applicant in relation to his conditions of employment within s.15(2)(a) of the Disability Discrimination Act, by requiring the applicant to work the roster directed for the week of 7th to 13th August 2004 in circumstances falling within s.6. Pursuant to s.123(2), I find that the unlawful discrimination of Ms Kuling is also taken to have been engaged in by the first respondent. I am not satisfied that any actions of the third and fourth respondent involved unlawful discrimination.
Remedies for the unlawful discrimination
The Court’s powers to provide remedies are given under s.46PO(4) of the HREOC Act:
46PO(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a)an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b)an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c)an order requiring a respondent to employ or re‑employ an applicant;
(d)an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter.
In his June 2005 complaint to HREOC, the applicant blamed his loss of employment and incapacity to work in other employment on Ms Kuling’s roster direction, and sought damages for financial loss and psychological damage. He said that at that time he had recovered and “am now fit to return to work”. He sought $45,000 as a global award of compensation.
In his application to this court he indicated that he was seeking an apology and compensation, but did not particularise how this should be calculated. Later in the proceeding he provided the following “breakdown”:
Loss of wages 9/8/04 through 2/8/06 when I recommenced employment
$160,000
Exacerbation of existing illness
30,000
Loss of employment opportunities, increased wage rate for experience
10,000
Contribution to bankruptcy and associated financial hardship and social humiliation
10,000
Discrimination, psychological pain and suffering and the tarnishing of professional reputation
10,000
TOTAL
$220,000
In oral submissions, the applicant largely left the determination of appropriate remedies to the discretion of the court.
In my opinion, the appropriateness of remedies other than compensation can be put aside. I have above made findings as to unlawful discrimination which I propose to address through the remedy of compensation, and I do not consider that they need to be further presented as declarations of the Court.
The applicant has not sought an order for reinstatement nor any other corrective action on the part of the first respondent, whether relating to his own position or to correct any systemic failing revealed in the present case.
Neither the first nor second respondent have offered an apology to the applicant, nor shown any disposition to recognise the possible need for one. Instead, they have vigorously opposed the applicant’s allegations of unlawful discrimination. In this circumstance, I would follow cases suggesting that a court-ordered apology would serve little purpose (cf. Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [34], Grulke v K C Canvas Pty Ltd [2000] FCA 1415 at [4], and Jones v Toben (2002) 71 ALD 629 at [106]). The applicant’s distress at the failure to be offered an apology is, however, a matter which I propose to take into account in a minor way when awarding compensation.
The significant difficulty facing the applicant’s claim for substantial damages for mental injuries and lost earnings is that he has not presented any medical opinions addressing the requisite causal connections. That his seizure on 10th August and his subsequent period of incapacity to work was caused or contributed to by events on 9th August appears obvious to the applicant. However, I am not prepared to draw this conclusion merely from the sequence of events, in the absence of any expert evidence as to the aetiology of his seizure and subsequent incapacity. In adversarial proceedings such as the present, the court can only decide these issues on the evidence presented by the parties. Moreover, even had the applicant presented medical evidence showing a causal contribution from Ms Kuling’s actions, he would still have faced difficulties obtaining his claimed compensation, due to the supervening effects on his health and earning capacity of the disciplinary proceedings which commenced in August 2004, and which have had an obvious effect on his health and employability over the subsequent years.
In my opinion, the applicant has failed to establish any financial “loss or damage because of the conduct” constituting the unlawful discrimination of the first and second respondents. He has not established any loss of earnings for which I would award compensation. Nor has he established physical or mental injuries causally related to the unlawful discrimination, for which substantial compensation could be given. This would require evidence to have been provided by medical experts as to their assessments of causation, gravity of effects and prognosis.
It is, however, well established in discrimination cases that the legislation permits an award of compensation for intangible injury to feelings, personal hurt and distress occasioned by conduct which Parliament has declared unlawful. In relation to such compensation, I summarised the effect of the authorities in Rankilor v Jerome Pty Ltd [2006] FMCA 922 at [41]:
The exact determination of the appropriate amount of compensation for the applicant’s personal distress is never easy in these cases. Account must be taken of my assessment of the likely personal effects on this particular applicant of the discriminatory conduct, and an award should be arrived at which is “restrained” but not “minimal”, taking into account the intangibility of an injury by way of hurt feelings and mental distress without an established medical injury (c.f. Hall & Ors v A&A Sheiban Pty Ltd & Ors (1989) 20 FCR 217 at 238, 256, 281). See also QBE Travel Insurance v Bassanelli (2004) 137 FCR 88 at [89], and
In the present case, I consider that there are features which call for such an award at the upper level of appropriate awards. The immediate distress suffered by the applicant was clearly demonstrated by his resignation letter, before his subsequent seizure and disability. The applicant claims, and I accept, that Ms Kuling’s conduct produced highly distressing paranoid thoughts at the time, and caused him to believe that his employer, through her agency, wished to undermine his health and force his retirement from nursing. To a real extent these distressing thoughts are still present, and have been revived in the course of this proceeding. They are apparent throughout the bulky documents filed by the applicant, in his fruitless efforts to discover documents shedding light on the motivations of Ms Kuling and his other managers, and in his oral evidence when undergoing a thorough cross-examination which attempted to discredit his recollection of events. Taking into account all his circumstances, and mitigating my award to take into account unquantifiable contributions to the applicant’s long term mental distress from events other than the unlawful discrimination found by me, I consider that an appropriate award of compensation is $15,000.
I shall hear the parties further in relation to any application by the applicant for interest under s.76 of the Federal Magistrates Act in relation to a component of my award which relates to a past period of time, and in relation to costs.
I certify that the preceding one hundred and six paragraphs (106) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 9 July 2007
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