Schwedler v Sydney Local Health District

[2025] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Schwedler v Sydney Local Health District [2025] NSWCATAD 181

Hearing dates:

4-5 April 2024, 6 and 31 May 2024, 24 February 2025 (final submissions)

Date of orders:

24 July 2025

Decision date:

24 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member
M Maher, General Member

Decision:

(1)   The application is dismissed.

(2)   Any party seeking an order as to costs should apply within 14 days of the date of this decision and indicate whether, in their view, the question of costs can be determined “on the papers” without the need for a further oral hearing.

Catchwords:

DISCRIMINATION – disability discrimination – employment, whether actions taken by management constituted disability discrimination

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Commission of Corrective Services v Aldridge [2000] NSWADTAP5

DHL v Nationwide News Pty Ltd [2013] NSWCATAD 92

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Frost v TAFE [2019] NCATAD 62

Frost v TAFE NSW (No 2) [2019] NCATAD 129

Hall v Shieban (1988) 20 FCR 217 at 277

Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Purvis v New South Wales (2003) HCA62; 217 CLR 92

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Thomas Schwedler (Applicant)
Sydney Local Health District (Respondent)

Representation:

G Schwedler (Applicant)

M Moir (Respondent)

File Number(s):

2023/00260344

Publication restriction:

Nil

REASONS FOR DECISION

1. This was an application alleging disability discrimination in steps taken by the respondent following an annual Performance Development Review (referred to here as ‘PDR’) meeting on 7 December 2022 to review the work of the applicant.

2. This matter falls for determination under the Anti-Discrimination Act, NSW (1977) (‘the Act’).

3. The period of the complaint accepted by Anti-Discrimination NSW for investigation is in relation to events and/or conduct that occurred from 7 December 2022 to 2 January 2023 (‘the complaint period’).

4. The Tribunal is required to determine whether or not disability discrimination against the applicant has occurred within the complaint period.

What is required in order to establish discrimination on the grounds of disability?

5. Section 4 of the ADA defines the term ‘disability’ as follows:

“disability” means –

(a)   Total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   The presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   The malfunction, malformation or disfigurement of a part of a person’s body, or

(d)   A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)   A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

6. Section 49A provides as follows:

“A reference in this Part to a person’s disability is a reference to a disability –

(a)   That a person has, or

(b)   That a person is thought to have (whether or not the person in fact has the disability), or

(c)   That a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   That a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

7. Section 49B provides that:

(1)   A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator—

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3)   For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A)   For the purposes of, but without limiting, this section, the fact that a person who has a disability—

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4)   A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

8. Section 49D provides that:

(1) It is unlawful for an employer to discriminate against a person on the ground of disability--

(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b) in determining who should be offered employment, or

(c) in the terms on which the employer offers employment.

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability--

(a) in the terms or conditions of employment which 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.

(3) Subsections (1) and (2) do not apply to employment--

(a) for the purposes of a private household, or

(b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or

(c) by a private educational authority.

(4) Nothing in subsection (1) (b) or (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 that disability and the provision of which would impose an unjustifiable hardship on the employer.

(5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

9. Section 4A of the ADA provides that:

If—

(a)   an act is done for 2 or more reasons, and

(b)   one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

10. In order to establish a claim of discrimination, the applicant needs to establish that he was in fact as treated less favourably than others in the same or similar position (sometimes referred to as ‘differential treatment’) and that at least one of the reasons he was treated less favourably was “on the grounds of” his disability (sometimes referred to as ‘the causation question’).

11. The words “on the grounds of” have been paraphrased as “because of”, “due to,” “a real” reason, a “genuine” reason or “true reason” for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

12. A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

13. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that may also constitute indirect disability discrimination. That was not alleged in this case.

14. The applicant bears the onus of proof that he was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56].

15. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service[2002] NSW ADT 133 at [59] – [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd[2016] NSWCATAD 167 at [23].)

16. It is not the case that because a person has a disability and experiences something he or she perceives as “adverse” to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred “on the ground of”, “due to” or “because of” the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed.

17. If a person who had a different disability, or who exhibited the same conduct as that of the applicant but did not have a disability would, on the balance of probabilities, have been treated in the same way that the applicant was treated, then disability discrimination will not have been proven (Purvis v New South Wales (2003) HCA62; 217 CLR 92).

18. If, as in this case, an organisation has a policy for dealing with injuries, then the Tribunal may consider whether the policy itself is discriminatory and/or whether it was applied in a discriminatory fashion. If the policy itself was reasonably adapted to deal with issues in the workplace, and the Tribunal is not satisfied that it was applied differently or less favourably to the applicant than to others, then discrimination will not have been proven.

The Discrimination Claim

19. The applicant filed a narrative Points of Claim document of 38 pages plus sixteen further attachments. He contended that the following were acts of discrimination:

1. The way in which a Performance Development Review (‘PDR’) meeting was conducted on 7 December 2022;

2. The fact that the person who conducted the PDR meeting (Mr Simon Tully) reported after the meeting to more senior management that the applicant had alleged suicidality and that he did not appear to be fit for his clinical duties as an acute care Social Worker;

3. The unexpected meeting called by the applicant’s senior managers with him after the report by Mr Tully to the meeting;

4. The follow up telephone call to him the following day;

5. Having the NSW Police conduct a welfare check on him;

6. Being required to get a GP’s report and later the report of a psychiatrist;

7. Being placed on non-clinical duties;

8. Conduct by his line manager, Ms Donna Beeson (referred to here as ‘the line manager’) towards him that he perceived as discriminatory.

20. As to the conduct by his line manager, his complaints went back to 2016 and went beyond discrimination and alleged “corrupt conduct to the point of criminality”. The line manager was not involved in the PDR meeting on 7 December 2022, although the applicant had expected or anticipated that she would be involved in it, as his immediate line manager.

21. The applicant needs to establish that within the complaint period:

1. he was treated less favourably than a comparator, in this case a hypothetical comparator as no actual comparator was posited,

2. that at least one of the reasons for such treatment was because of, or due, or on the ground of, to his disability.

22. These two requirements to provide the claim are often referred to as the ‘differential treatment’ and ‘causation’ requirements.

The Hearing

23. At the hearing, the applicant was represented by his agent and spouse, Ms Gail Schwedler, who also provided an affidavit. The respondent was legally represented by Mr Moir, of Counsel.

Background

24. The applicant had been employed in a clinical role by the respondent as a Social Worker since 1989, working as a member of a team for the respondent at the Camperdown/Marrickville/Redfern Acute Care Service. He had worked part-time since 2011. Since 2015, his clinical responsibilities to assist people in acute mental distress had been undertaken at the Camperdown Health Centre and he worked two days per week.

The Disability

25. The applicant also received psychiatric services as a result of a medical condition and it was common ground that management were aware of the mental health services.

26. It was common ground that the applicant had a disability within the meaning of the Act and that the executive of the Sydney Local Health District were aware of this. In his Points of Claim that applicant states that:

“In 1976 I had an initial episode of schizophrenia while studying at university. In mid-1984, I had an acute episode while I was completing a degree in social work. I chose to resume my life without professional psychiatric intervention… from the time of my discharge from hospital in 1976 the contact that I had with GP was for physical health concerns… my current GP has provided support from 2014 due to what have been the formal medico legal requirements of the workers compensation claims of 2016, 2022 and 2023, I now confer with my GP about my mental health”….

27. The evidence is that the applicant advised his managers that he was “a consumer”. In his Wellness Plan, a document agreed by the applicant and respondent in settlement of an earlier discrimination claim by the applicant, he states in that document that it was:

“important to ensure that team members develop an understanding that I am a consumer and that has an effect on my work performance” (see for example CB231 – 232).

28. One of the documents that the applicant provided to Mr Tully was a copy of “GP Session 27/4/21” which stated, in part that:

My mental health is not sufficiently affected for me to resort to the use of anti-psychotics. I have no obvious symptoms that would damage my reputation publicly or in the workplace” (CB235).

29. It is clear from these documents that the applicant sees his mental health condition as a continuing one, though controlled by diet, exercise, good relationships, contact with his doctor and through medication if required.

30. The applicant contends that in January 2022 he had lodged a claim for workers compensation due to bullying in the workplace. The claim was investigated and upheld. Over a period of six months, he had a recovery at work plan which concluded with his return to full duties at the end of October 2022. He states that.

“with the cessation of the bullying directed at me, by November 2022 I had achieved a significant recovery at work this was being placed in jeopardy I am separated from my wife due in part to the events at work since 2016. On 8 December 2022 the police contacted my wife at her residence my wife was enraged and spoke of divorce. A risk assessment has been conducted of my ability to attend to my clinical duties. I am being disempowered as I have not been provided with a copy of this risk assessment so that I can evaluate its veracity. A similar redeployment occurred in December 2016, using a risk assessment. In 2016 I did not accept the redeployment. Instead I took immediate and extended sick leave, otherwise I would have become psychotic…. I am being re traumatised… I notice a deterioration in my mental health… the redeployment in 2023 is not an appropriate managing decision as this action is discriminatory.”, . , . , . .

Sequence of Events in Question

31. On 7 December 2022, at 11am, the applicant had a mandatory annual Performance Development Review (‘PDR’) with Mr Simon Tully, Senior Social Worker - Mental Health Services of Sydney Local Health District. The applicant’s direct line manager, Ms Beeson, with whom he had been in conflict since 2016, did not participate. The applicant states that he was not informed that the line manager would not be participating and that in his view, as the Senior Social Worker had no ongoing direct experience of his employment responsibilities, the review would “have no credibility”.

32. Mr Tully’s affidavit of 7 December 2023 states that as a result of grievances filed by the applicant against Ms Beeson, Mr Schwedler’s line manager and other managers in the past:

“administrative action was implemented to assist in resolution of grievances raised such that Ms Beeson would continue to be the applicant’s line manager however I would assist as an additional professional reporting line for the applicant. As a result, I have participated in PDR (Professional Development Review) meetings with the Applicant.”

33. The applicant says that he was intending to retire in early 2023 and that he used the opportunity of the PDR meeting as an ‘exit interview’ and raised with Mr Tully his complaint that the executive of Sydney Local Health District had not provided him with an adequate duty of care.

34. During the PDR meeting Mr Tully and Mr Schwedler agreed on goals and entered these into the performance and talent (PAT) system. Mr Schwedler provided Mr Tully a signed copy of the NSW Health Code of Conduct and voiced his dissatisfaction about the PAT process. Mr Schwedler then referred to past grievances beginning from 2016. The applicant says in his statement to Anti-Discrimination NSW that:

“I included a discussion with Mr Tully that the Executive of the Sydney Local Health District had not attended to me, as an employee, with adequate Duty of Care”.

35. Although the applicant claims that he saw this as an exit interview, it was not scheduled or made known by him to management as such. The applicant did not notify Mr Tully in advance of the PRD meeting that he sought to canvass broader issues than would normally be dealt with in an annual review scheduled for about 35 minutes.

36. The respondent contends that the purpose of the meeting was to conduct an annual PDR meeting with the applicant and that was what was communicated to him prior to the meeting.

37. In such PDR meetings the applicant says that he sometimes used written “scripts” which he prepared in advance and it appears that this was a practice of his that was accepted or tolerated in the workplace. Ms Gail Schwedler says that she “usually” accompanied her husband to such reviews as his Support Person but she did not on this occasion.

38. The applicant had prepared a 15-page document containing script of the exact words he planned to speak in his presentation in the PDR meeting, with a further document approximately 38 pages in length containing greater detail. He provided Mr Tully with his notes and concerns, which were in evidence.

39. In the course of outlining his grievances, Mr Tully alleges that Mr Schwedler said, ‘suicide is an option’ and that ‘any other staff member would be dead’ having to endure this process of bullying since 2016 without resolution. Mr Schwedler denies saying either of those things, although he admits that he did make a comment about suicidality.

40. During the PDR meeting of 7 December 2022, the applicant made many complaints about his line manager. At paragraphs 67 – 68 of his Points of Claim, the applicant alleges that Mr Tully “followed the lead provided by the Line Manager”. In his submissions in reply filed on 24 February 2025, the applicant submits that there was “evidence of collusion/allegiance between Ms Beeson and Mr Tully on 7 December 2022”.

41. The applicant denies making any comments to Mr Tully on 7 December 2022 that could have been seen as suggesting that he was considering suicide. He submits in this application that these are “false allegations” and supports this submission by pointing to the evidence that he had completed his return-to-work plan by October 2022 after a period of workers compensation and was working at his usual duties without any noted difficulties and had “no documented history of suicidal ideation”.

42. The applicant contends that the meeting with Mr Tully concluded at approximately 11:40 AM. He then had lunch.

43. Following the meeting, at about 11.59am Mr Tully says that he telephoned Ms Merryn Sheather, Acting Community Mental Health and Partnership Manager Mental Health Services (MHS), regarding Mr Schwedler, a Social Worker with MHS. At the request of Ms Sheather, he sent a file note to her and to Ms Dora Hazzouri, Senior Workforce Advisor, District Services, SLHD. The concerns he identified included possible suicidality, alarming commentary, fixated behaviour, that he seemed ‘quite distressed’ and that he had separated from his wife. The email read as follows:

“Merryn, Dora,

Please see attached documents provided to me this morning from Tom Schwedler (11.00 – 11.35). Tom was quite distressed and as you can see from the attached included providing copies of attached previous dealt with matters.

Tom's mental health is deteriorating. He said, “suicide is an option” and how any other staff member who had endured this” would be dead. He spoke about his brother recently contacting him to check on him and his separation from his wife. I asked if Tom felt safe to return to the workplace post meeting to which he shrugged his shoulders...’ I've worked here for 20 years’. Expressed no immediate intent to self-harm however he was clearly very consumed by the attached (as you can see from the volume of paperwork provided)

Please also find attached complaint letter dated 5 December 2022 provided at today's meeting. I do not believe Tom is currently fit for clinical duties. Regards... "

44. The letter of 5 December 2022 referred to by Mr Tully as having been given to him by the applicant during the PDR meeting was a letter addressed to Mr Tully entitled “Re Malfeasance as Perpetrated by Ms Donna Beeson, NUM”. It outlined complaints by the applicant against Ms Beeson and sought that an investigation into his complaints be undertaken by an external agency.

45. The documents Mr Tully says were provided by the applicant during the PDR meeting are found from pages 657- 737 of three volumes referred to as ‘the Courtbook’.

46. A meeting of MHS executives was held and it was identified as a precautionary step that the applicant’s ability to continue performing clinical duties must be assessed by his own GP.

47. At approximately 1:30 PM on 7 December 2022, the applicant was “tapped on the shoulder” and asked to meet fairly immediately with two managers, Ms Cath Ryan, Acting Eastern Sector Manager and Ms Merryn Sheather, Acting Community Mental Health and Partnerships Manager. They asked him about issues of suicidality and he reassured them that this was not an issue.

48. The applicant also relies on the observations of Ms Cath Ryan on 7 December 2022 that:

“Tom denied suicidal ideation and denied thoughts of self-harm. He was not distressed. He was calm, clear, concise, maintaining good eye contact. He was future focussed, spoke of his family as a protective factor…somewhat fixated on matters that had been unresolved since 2016/2017, however able to redirect and talk about the current matter” (as cited in the applicant’s submissions in reply, referring to pp242-243 of the transcript).

49. The applicant gave evidence that he finds it difficult to be “tapped on the shoulder” for a meeting to be held almost instantaneously and had a protocol with his employer, a ‘Wellness Plan’ that he had agreed with his employer in 2021, as brokered by Anti-Discrimination NSW, to the effect that he would be given notice of any meeting and an ability to prepare for it.

50. Nevertheless, the applicant participated willingly in the meeting with the two managers.

51. Ms Ryan also stated in her email that she went past Mr Schwebel’s workplace that day after being notified of what had occurred in the PDR meeting with Mr Tully, but that the applicant appeared to be working normally and did not appear abnormally distressed.

52. On 8 December 2022, Ms Ryan conducted a welfare check by contacting Mr Schwedler. The respondent says that on 9 December 2022 the applicant sent an email to her thanking her. The applicant says that her inquiry was actually unnecessary and excessive and that he responded to her ‘in a civil fashion’.

53. On 8 December 2022, the applicant received a telephone call from NSW Police indicating that they wished to perform a welfare check on him. He was, at the time, at the home of his wife and was familiar with police checks of that nature due to his work. He voluntarily attended Katoomba Police Station and spoke with Senior Constable Richard Shields, who provided a report to Ms Ryan by email stating as follows:

“As per our conversation, Mr Thomas Schwedler attended Katoomba station to speak with me. Mr Schwedler indicated that his employer had arranged for a welfare cheque to be conducted on him and that was the reason for his attendance.

I spoke with Mr Schwedler who at the time appeared to be in good spirits, well-spoken and appropriately dressed.

I asked Mr Schwedler if he had made any comments about self-harm which he adamantly denied, stating that the conversation had been totally misinterpreted.

Mr Schwedler was offered a number of support services and really available to him. He advised that he will be attending his scheduled appointments and will be attending work.

54. On 9 December Mr Schwedler emailed Ms Ryan to state that the duty of care and the welfare check were not necessary, and that he would forward confirmation from his GP about suitable duties for himself.

55. On 10 December 2022, at around 10:33 AM, Mr Schwedler sent an email to Ms Ryan and Mr Tully attaching a medical clearance certificate. Dr Mark Lenthen GP, provided a document entitle “Clearance Certificate” stating as follows:

“This is to certify that I have examined Thomas Schwedler on 9 December 2022. Thomas is medically fit to return to his usual work duties from 9 December 2022 inclusive.”

56. Ms Gail Schwedler, wife of the applicant, provided an affidavit stating that in the relevant time period, she was in touch with her husband on 8 December in his company for several hours and was a passenger in a car he was driving on that day. She states that they were socialising in a familiar manner and that she discerned “nothing out of the ordinary” about his behaviour on that day. He disclosed to her that issues had arisen from his PDR meeting on 7 December 2022 and she notes that:

“As the Support Person for the applicant, I usually attended his performance appraisal meetings.”

57. When the applicant told her that senior management considered he was at risk of suicide, she says that:

I was flabbergasted to hear this, as it appeared ludicrous. Since 1976, when I first met the applicant, I have never heard him express any notions of self-harm. He repeatedly commented about suicide ‘not being a way out’.

Since 2016, I have accompanied the applicant to medical appointments with his treating doctor and his personal psychiatrist, when he has been unwell, and he has never mentioned suicide as an option. “

Response by Management

58. A risk assessment was then undertaken regarding the applicant’s fitness for duty, including risk management action which resulted in him being placed into a non-clinical role. The applicant contends that these actions were discriminatory. The respondent contends that these actions were undertaken consistent with the ‘Procedure for Managing Non Work-Related Injuries or Health Conditions (2010)’ (which will be referred to here as ‘the Procedures Policy”.

59. Subsequently an independent medical examination (IME) was arranged with Dr Ian Sherman, Consultant Psychiatrist on 28 February 2023 and his report was provided to the respondent on 14 March 2023. The applicant says that at the conclusion of his consultation with Dr Sherman, verbal approval was given to him by Dr Sherman to return to his clinical duties.

60. On Thursday 29 December 2022, the applicant was asked to attend a meeting with two managers. He was informed that he was to be redeployed to Croydon health centre in a non-clinical role commencing on Tuesday 3 January 2023 pending an investigation in regard to his suitability to continue to be employed as a clinician in the role he had held to that time.

Arguments of the parties

61. The applicant contends that:

“the respondent was, at best, wilfully blind to Mr Tully’s possible rationale for making his allegations about the applicant….the respondent examined the applicant’s personnel employment file for details of his long-past psychiatric history and discriminated against him by viewing Mr Tully’s allegations, and his further input, through this lens” (submissions in reply, paragraphs 27 and 30).

62. The respondent denies that it discriminated against the applicant based on his disability and maintains that the decision to redeploy the applicant to a non-clinical role was made after serious concerns for the applicant's wellbeing were raised and appropriate risk assessment and risk mitigation strategies were undertaken, to ensure the safety of the applicant and the patients/clients of the respondent.

63. The respondent alleges that it is usual procedure to undertake a risk assessment in such circumstances and risk management actions include a risk review endorsed by the Chief Executive in order to implement risk mitigation strategies.

64. This application raised the question of whether there was disability discrimination against the applicant by the respondent and whether there were any defences to such discrimination, if the Tribunal found that there was indeed discrimination.

65. A live issue in the matter was the fact that since 2016, the applicant had been in serious dispute with those managing his role. He alleged bullying by a particular manager, Ms Donna Beeson, and had made workers compensation claims of psychological injury in the workplace in 2016 and 2021. He alleged that the response from the respondent to the PDR meeting should be seen in the context of previous disagreements with Mr Tully, who, he alleged, used what he said in the performance review to remove him from his clinical role without justification to do so. There was evidence that on 6 September 2018 Mr Tully had been required to send a formal letter of apology to Mr Schwedler for an email sent to him and to his Team Leader and an Area Sector Manager. (CB431).

66. During the hearing of the application by the Tribunal there were attempts to canvas the issues from 2016 however, given that Anti-Discrimination NSW have confined the complaint period as outlined above, the Tribunal needs to determine whether or not there has been disability discrimination in that period only. Reference what occurred earlier than that is merely background information. Similarly, what happened after the period of the complaint is not before the Tribunal and does not form part of the complaint.

67. In effect, the applicant submits that the real reason for the actions taken by Mr Tully was not the presenting issues on 7 December 2022, but that Mr Tully used those issues as a pretext to pursue an old prejudice against the applicant, remove him from his clinical duties and thereby treat him less favourably than others due to his disability.

68. The respondent submits that Mr Tully’s evidence should be accepted as it is credible and is supported by his emails to his superiors shortly after the meeting on 7 December 2022 finished. These indicated that quite disturbing things had been said by the applicant in the PDR meeting, such that he was obliged to report same to his superiors, as there had been a suggestion of suicide. In those circumstances, the employer had a duty of care towards the applicant and to those requiring acute care for whom he had clinical responsibilities.

69. As to the submissions of the applicant regarding possible “malfeasance” or misfeasance by the applicant’s line manager dating back to 2016, the respondent submits that, given the period accepted by Anti-Discrimination NSW for the complaint, this could only be relevant to shed light on the extent of distress and frustration of the applicant on 7 December 2022.

70. Further, the respondent submits that the applicant has been inconsistent in his account of what occurred during the meeting with Mr Tully on 7 December 2022. In his “Response of the Applicant to the Statement of Simon Tully” filed on 1 March 2024, CB569, the applicant says that whilst he was reading from his prepared documents at the PRD meeting,

“The applicant made the comment that he could understand why some people would consider suicide as a means of escaping persecution from a bully. This brief spoken comment was an allusion to what is the expert and learned clinical understanding of the Applicant regarding failures to properly address bullying in the broader community”.

71. During the hearing, when the applicant was cross examined, he was asked whether he brought up suicide. He said words to the effect of;

“No. I engaged in some conversation about suicide. I remember a brief conversation about suicide but not to do with me, to do with kids bullying. The conversation regarding suicide may have been initiated by him (ie Mr Tully). It was in generalities. My employment is to prevent suicide. I don’t remember exactly”.

72. The applicant confirmed that he did not recall the exact words in the interchange with Mr Tully.

73. The applicant also denied in cross examination that he had told Mr Tully that he was separated from his wife or that his brother had recently come to check on him and said that he and his brother contact each other about the care of their elderly mother, all matters that Mr Tully alleged that he had said.

74. In cross examination the applicant denied saying words to the effect of:

“Any other staff member may be dead, they would/may have killed themselves.”

75. Counsel put to the applicant that:

“You told Mr Tully that you could see why people could suicide if bullied for an extended period”.

76. His response was:

“Yes. It is a social fact that suicide occurs. It doesn’t apply to me”.

77. Other cross examination and re-examination was to the same effect.

78. In a document headed 7 December 2022, Ms Dora Hazzouri, Senior Workforce Advisor - District Services, commenced an initial review in line with the policy regarding managing complaints and concerns about clinicians (CB987 – 992). She outlined the events of 7 December 2022, provided a copy of the medical clearance certificate and police clearance certificate. In answer to the question on the template document “How serious is the alleged/suspected misconduct, performance issue?” she responded as follows:

“The concerns raised are serious in nature as it relates to Mr Schwedler’s mental health stability and his personal well-being which may impair his decision-making and judgement when dealing with clinical patient care. This potentially poses risks for the patient, himself and staff.

Mr Schwedler is a Social Worker works two (2) days a week, Tuesday and Wednesday within the ACS team MHS at Royal Prince Alfred Hospital. This requires patient clinical care.

The evidence relied upon are based on Mr Tully’s PDR meeting with Mr Schwedler and the meeting held with Ms Sheather and Ms Ryan.

Further medical advice from a health practitioner will be required to assess Mr Schwedler’s ability to continue in his role as a Social Worker, which may include further and appropriate support and/or reasonable adjustments to support Mr Schwedler at work.

The matter should be managed in line with the Procedures for Managing Non-Work Related Injuries or Health Conditions (2010).”

79. She recommended that a risk assessment be undertaken. She recommended that if there were concerns about Mr Schwedler's GP’s report as to his fitness, that an independent medical examination be considered in line with the Procedures for Managing Non-Work Related Injuries or Health Conditions (2010) (which will be referred to as “the Procedures Policy”) and that Mr Schwedler be moved to non-clinical duties with greater supervision pending completion of this review and further medical advice.

80. Details of an earlier workers compensation claim apparently also provided to the senior staff who signed off on the review noted that the applicant was an “Alleged workplace bullying victim” and had made a claim on 28 January 2022. He had been unfit for work from 24 January 2022, returned to restricted duties 28 April 2022 to 9 May 2022, then unfit 31 May 2022, on restricted duties from 31 May 2022 and pronounced fit on 27 October 2022. (CB993).

81. The document completed by Ms Hazzouri became a risk assessment that was created in accordance with the Procedures Policy. It contained recommendations that were approved by Mr Jay Jiang, Acting General Manager Mental Health Services, Sydney Local Health District on 16 December 2022 and by Ms Gina Finocchiaro, Director Workforce and Corporate Operations on 20 December 2022.

82. Mr Schwedler was notified of the outcome by letter from Mr Jiang dated 28 December 2022. He was directed to move to administrative duties at Croydon Health Centre in the new year, commencing on 3 January 2023.

Workplace health and safety obligations

83. The respondent argued that in taking the steps it did, it followed its own policies in relation to workplace health and safety. Such policies derive their legislative underpinning from the statutory obligations on employers set out in the Work Health and Safety Act 2011 (NSW). As stated in the Procedures Policy

” These procedures should be read in conjunction with the relevant legislation…”

The respondent argued that it was it was necessary to take the steps they did in order to ensure the health and safety of the applicant, those within his care and other staff.

84. Section 19 (1) – (3) of the Work Health and Safety Act 2011 (NSW) states as follows:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of--

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable--

(a) the provision and maintenance of a work environment without risks to health and safety, and

(b) the provision and maintenance of safe plant and structures, and

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking…….

85. The argument of the respondent is, in effect, that Mr Schwedler’s work in the acute team with patients with mental health conditions, including psychosis, placed himself and others in danger if his mental health was, at the relevant time, unstable. If that were assessed to be the case, the duty of the employer is to ensure his safety, the safety of all workers, “so far as is reasonably practicable” as well as the safety of those to whom services are provided.

86. Section 54 of the Act provides as follows:

54 Acts done under statutory authority

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of--

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act,

(c) an order of the Tribunal,

(d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or

(3) Except as provided in this section, this Act has effect notwithstanding anything contained in--

(c1) the Co-operatives (Adoption of National Law) Act 2012 and the Co-operatives National Law (NSW) ,

(f) the Registered Clubs Act 1976 ,

or any instrument of whatever nature made or approved thereunder.

Consideration of the Evidence

87. The Tribunal needs to consider whether, on the balance of probabilities, the applicant was treated less favourably than others in similar circumstances due to his disability, in this case, a known mental illness that was usually well managed and had been well managed for many years.

88. The applicant alleges that action taken following the PRD meeting was taken due to previous disagreements with management, but that his disability was used as a pretext.

89. The Tribunal has considered the evidence submitted on behalf of both parties, both written and oral.

90. The applicant contends that he did not say the precise words noted by Mr Tully and says that the context was really to emphasise his grievances about past conduct within the workplace. On the other hand, in cross examination he admits that he did say words to similar effect, although he says he did not intend to talk about suicide with reference to himself.

91. The Tribunal prefers the evidence of Mr Tully as to what was said during the PDR meeting because it was followed up fairly promptly by a telephone call to Ms Sheather, then a call to Ms Beeson and then with an email, at the request of Ms Sheather. That is some corroboration of what was said, given its proximity in time to the PDR meeting. After the telephone calls, the file note was sent by Mr Tully to Ms Sheather fairly soon after the PDR meeting. The telephone calls and email are consistent with a manager being concerned as to whether there was a risk of suicidality and whether or not a clinician was fit to undertake his usual clinical duties.

92. In addition to the reference to suicide and that any other staff member ‘would be dead’, the volume of material that the applicant brought to a PDR meeting, a meeting that was usually held annually, regarding matters as far back as 2016, indicates a fixedness on those events of the past rather than on performance review of his own performance in the relevant period. The Tribunal accepts that that, in itself, or in combination with the words said and/or apparent distress of the applicant could reasonably have led to Mr Tully’s concerns as to the applicant’s mental health at the time of the review. It was these things, rather than the fact that he had a known mental health condition, that were acted upon.

93. As the applicant had not formally given notice of his intention to retire, or any date for retirement, there does not appear to have been a pressing necessity for him to have regarded the PDR meeting as an ‘exit interview’ or, without prior notice, to read out the lengthy documents regarding events back to 2016 and his views about them. It was reasonable that these matters raised the question of the stability of the applicant’s mental health in the mind of Mr Tully, as he states in his email to Ms Sheather and Ms Hazzouri.

94. In the voluminous written documents read out by the applicant to Mr Tully at the PDR interview and provided to him, there was some focus on the clinical work of the applicant in the relevant period for review. An on-line document was completed by both the applicant and Mr Tully during the interview and that may have contained more information about his clinical work. Nevertheless, Mr Tully says that the applicant appeared “quite distressed” during the interview and that he “was not able to discuss his performance review”. Mr Tully says that the applicant was “clearly very consumed by the attached “as you can see from the volume of paperwork provided” which was also on-sent to Ms Sheather and Ms Hazzouri.

95. A review of those documents indicated the seriousness of the allegations made, expressed in strongly worded language. We accept that the content and tone of the scripts may have also contributed to the concern of Mr Tully, Ms Sheather and Ms Hazzouri as to the mental state and judgement of the applicant at that time and that the applicant was “consumed” by these matters.

96. Ms Sheather later noted the focus of the applicant on such matters but also noted that he was “able to be redirected”.

97. The telephone calls made by Mr Tully first to Ms Sheather and then to Ms Beeson, line manager, were reasonable in the context of those concerns.

98. Ms Sheather had not had prior contact with the applicant before these events and we find that she was unlikely to have been prejudiced against him due to prior events. It was Ms Sheather who asked Mr Tully to provide the email, Ms Sheather who followed up with the applicant and ensured that he saw his GP and had a police welfare check undertaken and Ms Sheather who was actively involved in recommending the action taken.

99. The department had a policy for handling such matters, the Procedures Policy, and followed the policy in ordering a risk assessment. The policy itself appears to be reasonably adapted to dealing with injuries in the workplace that are not workers’ compensation matters. We find that the policy was not discriminatory in itself.

100. Mr Schwedler and Ms Gail Schwedler may have known that the applicant did not intend those critical words said during the PDR meeting as anything more than a rhetorical flourish, to underline and add emphasis to his argument about issues going back to 2016 being “unresolved”.

101. It is, however, necessary to consider whether a reasonable person in the position of Mr Tully could reasonably have had concerns as to whether the applicant was considering suicide and could reasonably have drawn other conclusions from the comments, including that he was not fit for his usual duties, without acting in a discriminatory manner towards the applicant.

102. We find that on their face, as reported by Mr Tully fairly soon after the PDR meeting, the words ‘suicide is a possibility’ and that any other staff member ‘would be dead’ with such matters being unresolved, reasonably indicated to a person with managerial responsibility for the health and safety of employees and the public who may interact with employees, that it was possible that the life or health of an employee could be at risk. These words by the applicant were coupled with the applicant reading from voluminous documents that canvassed events in the workplace back to 2016. We accept Mr Tully’s evidence that Mr Schwedler appeared to be somewhat distressed in recounting those events during his assessment. He was dealing with matters of great moment to him, concerning perceived injustices to him in the past.

103. Given the nature of the work of the applicant, in the acute care team, dealing with people with mental illness, whose lives may be complex, disrupted, chaotic or desperate, it is clearly important that a clinician is in a reasonable state to deal with such medical and psychosocial issues. Otherwise, it is possible that the well-being and safety of those at risk in the community could be compromised, as well as their own safety.

104. The risk assessment process enabled such risks to be assessed. They were assessed in accordance with the policy and action was taken.

105. An appropriate comparator for the purposes of determining whether or not there was discrimination against the applicant is a person with another illness or another injury not caused by the workplace and how this would be managed. There is no evidence that the illness or injury of such a comparator would be dealt with in any other way but by application of the policy.

106. It appears that the policy was applied in this case in a straightforward manner, seriously weighing the issues in question.

107. If we are wrong as to the appropriate comparator, then, in the alternative, another hypothetical comparator can be considered: a person without any pre-existing disability who said those words that the applicant said in a PDR meeting, read and provided those documents to the manager conducting the PDR meeting and appeared to be “quite distressed” in the PDR meeting.

108. In Purvis v New South Wales [2003] HCA62; 217 CLR 92, the High Court found that if a person had a disability that meant that he had behavioural problems including being violent in the classroom, and that behaviour was responded to in a certain way ( in that case by suspension and later exclusion form a state school by its principal) then if the same behaviour would have been treated in the same way in relation to a person without such a disability, then disability discrimination will not have been established.

109. The period of this complaint is only to 2 January 2023. What occurred after that date is not before the Tribunal to consider.

110. Although the applicant’s case is that the response by management to the issues that were raised in the PDR meeting was excessive and motivated by other reasons, due to prior disagreements with management, what the applicant needs to prove, on the balance of probabilities, is that at least one of the reasons for the action was a discriminatory reason.

111. We have considered whether any inferences could be drawn that the conduct alleged took place on the ground of the applicant’s disability. The Tribunal has considered in a number of cases whether, and the circumstances in which, inferences can be drawn. As set out in Dutt at [70], the Tribunal has identified considerations in the drawing of inferences as follows:

1. A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;

2. An inference must be reasonably drawn on the basis of the primary facts;

3. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

4. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof;

5. It is not enough that the inference is a mere possibility: it must be one of “probably connection”;

6. The inference must be a logical one, and not supposition;

7. An inference cannot be made where more probable and innocent explanations are available on the evidence.

112. In this case, there is no persuasive evidence supporting the drawing of an inference that there was disability discrimination in the events of 7 December 2022 to 2 January 2023.

113. The more plausible and probable reason for the events between those periods which is available on the evidence, is that during the PDR, the applicant:

1. said things that could reasonably be regarded as alarming to a manager in the situation of Mr Tully,

2. relied on copious notes outlining events that went back to 2016, well beyond the period of the annual review and

3. appeared quite distressed during the PDR.

114. We find that these aspects of the applicant’s conduct reasonably gave rise to apprehensions by his manager, which were managed according to departmental policy.

115. We are not satisfied that the steps taken by Mr Tully or by other officers of the Department were discriminatory. The actions taken by the respondent appear to have constituted reasonable managerial action that flowed from the behaviour of the applicant, in making the alarming statements he did, reading from the voluminous documents which went well beyond the period of the annual review and his appearing quite distressed during the interview.

116. It was reported that later in the day on 7 December 2022 that the applicant appeared calm, told the NSW Police that he was “ok” and his doctor provided a clearance certificate.

117. The GP’s medical certificate provided little explanation, no details of his reasoning process or what steps he took to satisfy himself that the applicant was fit for his duties. The medical certificate was not persuasive in that sense and it was reasonable to have the applicant further medically examined by a psychiatrist and that he not undertake clinical duties whilst that occurred. His conduct during the PDR was sufficiently concerning, as we have found, that such steps arose from the employer’s duty of care towards the applicant and others. They arose as a consequence of the conduct of the applicant in the workplace, rather than his medical condition/disability.

118. The steps taken were taken in accordance with a pre-existing policy which we find was reasonably applied within the complaint period. We are not satisfied that the Procedures Policy was applied in the case of the applicant differently from the way in which it was applied to others, or, to put it differently, that he was treated less favourably than others in the application of the policy.

119. We are not satisfied that the applicant has proven his case on the balance of probabilities. We find that a person who had a different disability, or who exhibited the same conduct as that of the applicant in the workplace but did not have a disability would, on the balance of probabilities, have been treated in the same way that the applicant was treated, and therefore disability discrimination has not been proven (Purvis v New South Wales (2003) HCA62; 217 CLR 92).

120. The application is therefore dismissed.

121. The attention of both parties is drawn to section 60 of the Civil and Administrative Tribunal Act, 2013 (NSW) which deals with costs. If either party wishes to apply for costs, such an application must be made within 14 days of the date of this decision and any such application must indicate whether or not the party is content for such an application to be dealt with “on the papers”, by written submissions rather than a further oral hearing. If any such application is made it should be accompanied by written submissions and further directions will be made.

ORDERS

1. The application is dismissed.

2. Any party seeking an order as to costs should apply within 14 days of the date of this decision and indicate whether, in their view, the question of costs can be determined “on the papers” without the need for a further oral hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 July 2025