Sluggett v Commonwealth of Australia
[2011] FMCA 609
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLUGGETT v COMMONWEALTH OF AUSTRALIA | [2011] FMCA 609 |
| HUMAN RIGHTS – Discrimination law – disability discrimination – discrimination in employment – direct discrimination – indirect discrimination – harassment – applicant suffers from post polio syndrome – applicant employed as a permanent Commonwealth public servant – was applicant treated less favourably because of her disability – analysis of complainant’s behaviour in the workplace – comparison between disabled complainant and person without such disability but who displays same behavioural characteristics – requirement to comply with a condition – reasonableness – costs. |
| Disability Discrimination Act 1992 (Cth), ss.3, 4, 5, 6, 15, 35, 42 and 123 Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PP, 46PO, 47PH Federal Magistrates Act 1999 (Cth), ss.3, 79 Australian Public Service Act 1999 (Cth), ss.10, 13 Acts Interpretation Act 1901 (Cth), s.8 Evidence Act 1995 (Cth), s.140 |
| Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 Briginshaw & Briginshaw (1938) 60 CLR 366 Waters v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | CHANDRAKANTHI SLUGGETT |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | ADG 129 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 16, 17, 18, 19, 20 & 26 November 2009; 15, 16, 18, 19, 22, 23, 24 & 26 February 2010; 27 July 2010; 27 October 2010; 24, 25, 27 & 28 January 2011; 28 February 2011; 1, 2, 3, 7, 8, 9, 10, 11, 28 & 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 30 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Connor SC (until 28 January 2011) ; then Ms Sluggett – in person |
| Solicitors for the Applicant: | Johnston Withers (until 28 January 2011) |
| Counsel for the Respondent: | Ms Bean (until 26 November 2009); then Dr Bleby |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
In the event the respondent wishes to apply for costs it is directed to make such application within 28 days of the date of these orders and serve same on the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 129 of 2008
| CHANDRAKANTHI SLUGGETT |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
Chandra Sluggett “the applicant” suffers from a disability. When she was an infant, growing up in Sri Lanka, she contracted poliomyelitis or infantile paralysis. This viral illness left her with a weakness and shortening in her left leg and foot.
In 1993, when she was aged around twenty-six years, Ms Sluggett was diagnosed with post-polio syndrome, a condition that can affect the survivors of polio many years after they have recovered from the initial acute viral attack of the disease.
The most common symptoms of post-polio syndrome are fatigue; pain in muscles and joints; lack of strength and endurance; and respiratory, speech and swallowing problems. In most cases of the syndrome, there is a steady deterioration in the neuro-muscular ability of the person affected but the condition can also be marked by a pattern of rapid decline and remission.[1]
[1] See exhibit CS22 to the affidavit of the applicant filed 4 February 2009. Hereafter references to exhibits prefaced by “CS” are to be found in Ms Sluggett’s affidavit of this date.
Ms Sluggett was employed by the Commonwealth Public Service, in a variety of roles, between 1996 and May of 2008. On 28 May 2008, after she could not be redeployed within the Australian Public Service, her employment as a public servant was terminated.
It is Ms Sluggett’s position that, between July of 2004 and May of 2008, she was the subject of systematic discrimination, because of her disability, whilst she was employed as a public servant.
This discrimination took the form of direct and indirect discrimination and harassment within the terms of the Disability Discrimination Act 1992 (“the DDA”) and as such was illegal conduct on the part of the Commonwealth and its employees and agents.
Ms Sluggett complained of this conduct to the Human Rights and Equal Opportunities Commission (“HREOC”) in October of 2007.
On 22 May 2008, a delegate of the President of HREOC terminated the applicant’s complaint on the basis that it lacked substance pursuant to section 46PH of the Human Rights and Equal Opportunity Commission Act 1986 ( “the HREOC Act”).
As a consequence of this decision, the applicant has commenced proceedings in this court pursuant to section 46P0 of the HREOC Act against the various Commonwealth Government Departments which have employed her in the past. It has been agreed between all concerned that the appropriate respondent to these proceedings is the Commonwealth of Australia (“the Commonwealth”)
Ms Sluggett filed her application on 29 May 2008. In this application she seeks a finding that the Commonwealth has discriminated against her because of her disability in contravention of the provisions of the DDA. As a consequence of this conduct, she seeks an apology, reinstatement of her employment and payment of a sum of compensation.
The Commonwealth’s position is that the applicant’s application lacks both merit and substance and, as such, is wholly misconceived. It denies that it has illegally discriminated against Ms Sluggett in any way whatsoever, including pursuant to the relevant provisions of the DDA. As such the Commonwealth seeks the dismissal of Ms Sluggett’s application. These reasons for judgment are directed towards determining this issue between the parties.
Background
Ms Sluggett has tertiary qualifications in social work and a Bachelor of Arts degree, both conferred by Flinders University. In 1995 she commenced employment with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) at its Grenfell Street, Adelaide offices.
In April or May of 1996, the applicant successfully applied for and won an APS2 position with ATSIC and became a permanent employee of the Australian Public Service. She retained this position until her employment was terminated with the Australian Public Service on 28 May 2008.[2]
[2] Ibid at paragraph 28
On 15 April 2004, the Australian Government announced its intention to abolish ATSIC. As a result of this decision, ATSIC ceased to exist on 1 July 2005. Between these two dates, the functions and staff of ATSIC were absorbed into other Commonwealth Government departments. The public service arm of ATSIC was known as Aboriginal and Torres Strait Islander Services (“ATSIS”). It also was abolished.
Due to a series of machinery government changes, these departments have been variously the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), which became the Department of Immigration & Citizenship (“DIAC”), and the Department of Families, Communities Services & Indigenous Affairs (“FaCSIA”), which became the Department of Families, Housing, Community Services & Indigenous Affairs (“FaHCSIA”).
The applicant was transferred to DIMIA and allocated to a unit called the Indigenous Coordination Centre (“the ICC”) as an APS2 registry officer. Prior to this placement, Ms Sluggett had been working with the Regional Council of ATSIC, assisting its counsellors with research and the implementation of ATSIC’s family violence policy. She had been formally employed by ATSIS.
Although she nominally remained at the APS2 level, until the Regional Council ceased to exist, which occurred at the end of June 2005, Ms Sluggett continued her research role, with the Regional Council, in respect of the implementation of ATSIC’s family violence policy until this date. These functions were designated at a higher public service level of APS4 – APS6.
On 1 July 2005, the applicant formally took up the position, to which she had been allocated, as an APS2 registry officer in the Adelaide branch of the ICC within DIMIA. Ms Sluggett asserts that this position was not commensurate with her skills, training and abilities.[3]
[3] Ibid at paragraph 104
The duties of an APS2 registry officer comprise the provision of a range of corporate services which include mail, reception, switchboard and other clerical duties. From 1 July 2005 until November 2005, the ICC was located at level 12, 33 Waymouth Street, Adelaide. It was collocated with the Office of Indigenous Policy Co-ordination (“the OIPC”).
Ms Sluggett raised issues about her physical capacity, due to her disability, to discharge the responsibilities of an APS2 registry officer with the then managers of the ICC, Fevronia Plomaritis and Lorraine Merrick in August of 2005.[4]
[4] See CS22
Because of her level of disability, which was well known to management with ATSIC, the applicant had been allocated an injury management advisor also known as a rehabilitation case manager. In August of 2005, this was Eric McMillan, who was based in DIMIA’s office in Belconnen in the Australian Capital Territory.
As a result of the issues raised, Mr McMillan arranged for two independent expert assessments to be made of the applicant and her workplace. These assessments were undertaken by Paul Dewing, an occupational therapist ergonomist and occupational health & safety consultant on 7 September 2005[5] and Milton Lewis, a consultant occupational physician on 22 September 2005.[6]
[5] See CS23
[6] See CS24
In November of 2005, OIPC and ICC staff, including the applicant, were relocated to the fifth floor of 33 Waymouth Street, Adelaide. As a result, the applicant was allocated a new workstation. The applicant complains that her new desk, being curved and wider than she was used to caused her “considerable difficulty”.[7] Ms Sluggett asked Mr McMillan, via email, to arrange a fresh assessment of this new workstation.[8]
[7] See Ms Sluggett’s affidavit of 4 February 2009 at paragraph 136
[8] See CS26
In early 2006, tensions arose in the ICC, particularly in regards to the issue of answering telephones, which fell within the purview of an APS2 registry officer. A meeting of staff, including the applicant, was convened on 6 February 2006 by Mr Tristan Cox, a manager from OPIC. Ms Sluggett alleges that she was harassed, both at this meeting and afterwards, by Mr Cox.
On 13 February 2006, Ms Susan Corbisiero commenced duties as the manager of the ICC. By this time, governmental responsibility for indigenous affairs had moved to FaCSIA and, in May of 2006, Ms Sluggett was allocated a new rehabilitation case manager, Paul Cohen, within FaCSIA.
On 22 February 2006, Ms Sluggett provided Ms Corbisiero with a medical certificate which indicated that she, (Ms Sluggett) was suffering from “left shoulder blade pain” and was fit to return to “modified” duties provided she did not use her “left arm as far as possible”.[9]
[9] See CS33
On receipt of this certificate, Ms Corbisiero directed that the applicant leave the workplace, on sick leave, until she had provided “a medical certificate outlining [her] specific capabilities in the workplace and that [she was] fit to return to the workplace.[10]
[10] See CS34
On 31 May 2006, the applicant returned to work. On the day prior, at the instigation of Mr Cohen, an assessment had been made of Ms Sluggett’s workstation and workplace in order to facilitate Ms Sluggett’s return to work. This assessment was categorised as an “ergonomic assessment report (comprehensive)” and was compiled by a physiotherapist Kate Agus.[11]
[11] See CS39
Ms Agus made some recommendations regarding aspects of Ms Sluggett’s workstation. These recommendations pertained to the provision of a chair mat; repairing the arms on her chair; providing her with a headset and handset lifter, in order to answer the telephone; and the possible relocation of her workstation cubicle, so that she could enter from the right rather than the left.
These recommendations came about because of reports Ms Sluggett had made of pain in her left scapula and left upper arm, which she attributed to difficulties arising from operating the switchboard. Her treating specialist, Dr Ravindran had attributed these complaints to her “pre-existing underlying condition, acute anterior poliomyelitis, which had resulted in post poliomyelitis syndrome.”[12]
[12] See CS35
The applicant asserts that these recommendations were not properly implemented by the immediate management of the ICC. Rather, Ms Sluggett says her requests for assistance and modification of her duties and work environment met with growing hostility in her workplace, particularly from Ms Corbisiero. Both Ms Sluggett and Ms Corbisiero acknowledge that their working relationship became increasingly fractious.
In June of 2006, Ms Sluggett was examined by an independent occupational physician, Grantley Tschirn, in order to ascertain whether she was eligible for a partial invalidity retirement, as a result of her level of disability.
Dr Tschirn was of the view that Ms Sluggett had reached her long term sustainable work level of thirty hours per week, in a sedentary based job. However, he was of the view that if she remained in her current position in the ICC registry, there was a “possibility” she may have to reduce her weekly hours further, in the “medium term” down to twenty-eight or possibly twenty-six hours per week to accommodate her “chronic medical condition”.[13]
[13] See CS42
Ms Sluggett was critical that management in the ICC, particularly Ms Merrick did not properly respond to her application to reduce her working hours, in the light of Dr Tschirn’s report, which had been supported by a further report from her own treating rehabilitation specialist, Dr Nigel Quadros.
On 22 June 2006, a meeting was held at the ICC which was attended by the applicant, Ms Corbisiero, Ms Merrick and Mr Cohen. Following this meeting, Ms Sluggett was placed on miscellaneous leave, with pay, and was absent from work until 31 July 2006.
Whilst Ms Sluggett was absent from work, she was examined by Peter Jezukaitis, an occupational physician and Ann Buchan, a neurological physiotherapist, at the instigation of Mr Cohen. Both experts provided reports to Mr Cohen, prior to the date scheduled for Ms Sluggett’s return to work.
Dr Jezukaitis was of the opinion that, if Ms Sluggett’s workstation had been set up in line with recommendations made by Mr Dewing, it would not be unsafe for Ms Sluggett to perform her work activities from it. However he noted that her underyling condition was likely to impact upon her work performance and there were likely to be tasks which fell outside of her physical capabilities. These included duties requiring handling archive boxes; manually scanning documents; and duties requiring frequent walking or a rapid response.[14]
[14] See CS48
Ms Buchan noted that post polio syndrome could be managed, within reason, by careful handling, pacing, planning and calling a halt to activities before fatigue effects became extreme. She also noted that there were “complex issues” to do with Ms Sluggett’s employment history, relating to the need for her work tasks to be modified and the nature of her work changed, particularly given Ms Sluggett’s sense that she was not able to do “the type of work she feels able to do – eg research work”.
In this context, Ms Buchan opined as follows:
“A complete change of department would perhaps be the better way to solve a continuing fraught environment. … the prolonged history of work relationships, fatigue, ergonomic misfit and declining strength, will really need to be confronted by a trial in another office and another child with good ergonomics after careful career/lifestyle counselling. Some people with polio eventually have to leave work.”[15]
[15] See CS49
Ms Sluggett asserts that the management of the ICC failed to implement any of the recommendations made by either Dr Jezukaitis or Ms Buchan. Rather she asserts that management increased her duties and reduced the effectiveness of any modifications, which had earlier been made to her workstation and conditions of work.
On 28 July 2006, a further meeting was convened at the ICC, which was again attended by Ms Corbisiero, Ms Merrick and Mr Cohen. Ms Sluggett attended with a friend and support person, Ms Merelyn Cowell. The purpose of the meeting was to discuss Ms Sluggett’s return to work the following week, in the light of the medical and ergonomical material, which had been compiled up to that stage.
Ms Sluggett’s evidence is that she was distressed at the manner in which this meeting was conducted, particularly because Mr Cohen raised the provisions of the Australian Public Service Act with her and the possibility that she might be the subject of a possible investigation of a breach of its code of conduct.
In addition, Ms Sluggett complains that her immediate managers refused to comply with her requests to modify her duties and workstation, so that she could safely undertake her employment responsibilities. In particular, she asked for a stool or chair to use whilst she sorted the mail and for the door of the ICC to be assessed because she found it difficult to open because of its weight.
Between 31 July 2006 and 10 May 2007, relations between Ms Sluggett and the management of the ICC deteriorated further. There was ongoing controversy as to how Ms Sluggett was to complete the ingoing and outgoing mail at the ICC; answer phone calls to the ICC; and deal with visitor and other reception duties. All these functions falling within the parameters of duties allocated to an APS2 registry officer.
Ms Sluggett asserts that she did the best she could, but her disability and the unfavourable circumstances of her work environment prevented her from accomplishing her tasks without suffering extreme fatigue and pain. Ms Sluggett paints a picture of a work environment, which was unsympathetic to her needs and hostile to her personally. On the other hand Ms Corbisiero asserts that Ms Sluggett rarely, if ever, did the mail and other tasks allocated to her. The picture she paints is of a person who was unwilling to perform her employment duties.
It is a provision of the Australian Public Service Code of Conduct that an APS employee must comply with any lawful and reasonable direction given to him or her by a person within the Public Service, who has the authority to give such a direction. In a minute to Ms Sluggett, dated 29 November 2006, Ms Corbisiero indicated that she was considering investigating a potential breach of this aspect of the code of conduct, by Ms Sluggett, as a consequence of her alleged refusal to comply with directions regarding sorting incoming mail and dispatching outgoing mail.[16]
[16] See CS56
As a result of this situation, Ms Sluggett herself contacted the respective departmental heads of FaCSIA and the OIPC complaining that she had, in effect, been threatened with a “code of conduct” process by Ms Corbisiero because she was not performing the duties required of her in respect of registry mail in the manner directed to her – “standing up”.
As a result of this initiative on Ms Sluggett’s part, she was contacted by Wes Slater, then a senior public servant in the “People Branch” of FaCSIA, located in Tuggeranong, in the Australian Capital Territory. In an email to Ms Sluggett dated 4.03pm on 3 August 2006, Mr Slater indicated his view that Ms Sluggett’s correspondence with the heads of FaCSIA and OIPC constituted a request, on her part, to review the decision of Ms Corbisiero regarding her (Ms Sluggett’s) possible citing in respect of a possible breach of the APS Code of Conduct.[17]
[17] See exhibit WS1 to the affidavit of Wesley Slater filed 24 March 2009
The person nominated to conduct the review was Julie Baker-Smith. Ms Baker-Smith is a consultant, who works independently of FaCSIA. She was instructed to undertake the review by the Acting Branch Manager of FaCSIA. She commenced her investigations on 14 August 2006 and completed her review on 9 October 2006.
Her task was to consider the following:
whether the duties assigned to Ms Sluggett on her return to duty (on 31 July) could be considered appropriate given her medical condition and in accordance with the medical advice obtained prior to her recommencing duties;
if the workplace modifications made to accommodate Ms Sluggett complied with the workplace assessment and whether it was appropriate for her to carry out the duties she has been allocated;
were there identifiable alternatives to the workplace arrangements and return to work plan which would conform with the medical advice provided and the workplace assessment which would be acceptable both to Ms Sluggett and the OIPC.[18]
[18] See CS64
In the course of her inquiry, Ms Baker-Smith interviewed Ms Sluggett; Ms Corbisiero; Ms Merrick; and Mr Cohen. Ms Baker-Smith also inspected Ms Sluggett’s workplace. She invited Ms Sluggett to respond formally to the issues raised by the inquiry process.
Ms Baker-Smith did not form a favourable impression of Ms Sluggett’s behaviour in the workplace, since her (Ms Sluggett’s) arrival in the ICC. She characterised Ms Sluggett’s conduct as being oppositional and resistant to management. It was Ms Baker-Smith’s observation that Ms Sluggett had no intention of ever performing the duties, as had been modified, as a registry officer at the APS2 level at the ICC. Accordingly, she was of the view that Ms Sluggett had breached the APS Code of Conduct[19] and the values of the Australian Public Service.[20]
[19] See Australian Public Service Act 1999 at section 13
[20] See Australian Public Service Act 1999 at section 10
Ms Sluggett is critical of the way the review of action was undertaken by Ms Baker-Smith, particularly in terms of her capacity to make submissions to Ms Baker-Smith and respond to criticisms made of her. Ms Sluggett is also critical that one of Ms Baker-Smith’s recommendations, regarding the relocation of her workstation, across the aisle from where she was then located, was not implemented.
The applicant further complains that, in February 2007, Ms Corbisiero allocated the workstation across the aisle from her to another member of the ICC staff. This workstation had been previously vacant. Ms Sluggett characterises this action as being contrary to the spirit of the Baker-Smith report and the earlier recommendations of Ms Agus.
In early August of 2006, as part of her duties, as the APS2 registry officer, at the ICC, the applicant was directed to “meet and greet” a number of graduate applicants for positions with the Department of Communications Information Technology and the Arts. The necessary job interviews were scheduled to take place at the ICC in the afternoon and morning of the 8th and 9th August respectively. Ms Sluggett had to open the door for some of these interviewees.
Ms Sluggett has complained that the door of the ICC office was too heavy for her to manage, due to her disability and so aggravated her condition. Ms Sluggett has deposed that Ms Merrick demonstrated no empathy towards her in respect of these difficulties and offered no alternative means of the “meet and greet” function being completed.
During the review of action procedure, Ms Sluggett asked to examine her rehabilitation file, which was held in FaCSIA’s ACT office. She made her request to Mr Cohen, who forwarded the files, including Ms Sluggett’s personal file, to the ICC office in Adelaide, in a carton addressed to Ms Corbisiero. Ms Sluggett discovered that Ms Corbisiero was in fact the addressee of her various files because she received the delivery of the carton from Mr Cohen as part of her duties as the ICC registry officer.
Ms Sluggett expresses herself as being “shattered” that her records had been apparently forwarded to Ms Corbisiero.[21] She regards this action as a breach of both her trust and privacy. As such, she felt undermined.
[21] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 226
Ms Sluggett was provided with a copy of the Baker-Smith Report on or around 23 October 2006, under cover of a letter from Jan Lawless, who then held the position of branch manager – flexible programs and agreements, within FaCSIA. Ms Lawless had been delegated to determine the outcome of the Baker-Smith Report.
Ms Lawless indicated to Ms Sluggett that she accepted the findings of the Baker-Smith report, particularly that the directions which had been provided to Ms Sluggett by Ms Corbisiero were “lawful, reasonable and fully compliant with the medical evidence and workplace assessments [applicable].”[22] As such, Ms Lawless indicated that Ms Sluggett should continue to work in accordance with directions provided to her.
[22] See CS64
Following this finding, in early May of 2007, senior management within FaCSIA delegated Allison Denny-Collins to determine whether Ms Sluggett’s actions, up to that stage, constituted a breach of the Australian Public Service Code of Conduct, as set out in section 13 of the Australian Public Service Act 1999.[23] At the time, Ms Denny-Collins held the position of HR Advisor Management Support and Advisory Section with FaCSIA People Branch.
[23] See CS66
On 16 May 2007, there was a further incident between Ms Corbisiero and Ms Sluggett, at the office of the ICC, regarding the latter’s failure to answer a ringing telephone. Ms Sluggett alleges she was inappropriately and violently verbally rebuked in respect of this omission attributed to her. Ms Sluggett asserts that she was left distraught, shaking and shocked by Ms Corbisiero’s actions.
Ms Sluggett was absent from work until 28 May 2007. She was found by her treating psychiatrist, Richard Thompkins to be suffering from “dis-associative episode/conversion disorder/panic disorder”. Dr Thompkins certified Ms Sluggett as being unfit to work from 16 May until 27 May 2007.[24]
[24] See CS67
On her return to work on 28 May 2007, Ms Sluggett completed a form entitled Workplace Hazard & Injury Report Form, in which she detailed her account of what had happened between her and Ms Corbisiero on 16 May 2007 under the heading “Harassment & bullying incident”.[25] This form was provided to Lucy Simic, who at the time was the disability coordinator and harassment contact officer within FaCSIA. It is referred to as an Occupation Health and Safety Incident Report (“OHS Report”).
[25] See CS68
In June and July of 2007, Ms Sluggett asserts that she was harassed, particularly by Ms Corbisiero, about answering incoming telephone calls to the ICC, but was too frightened to protest because of fears that it might result in further disciplinary action being taken against her.
Ms Sluggett responded to the Breach of Code Inquiry, being conducted by Ms Deny-Collins, in September of 2007. She complains that she has never received any indication regarding the outcome of this inquiry. For her part, Ms Denny-Collins has deposed that she suspended her investigations upon hearing from Ms Simic that Ms Sluggett had submitted a harassment case against Ms Corbisiero.
On 24 September 2007, the ICC office was relocated to the main state office of FaCSIA, located at level 18, 11 Waymouth Street, in Adelaide. This co-location of the two departments resulted in the potential duplication of some corporate services required for both the ICC and FaCSIA.
At the level 18 offices, Ms Sluggett complains that the telephone system she was required to operate was not adapted sufficiently to cater for her level of disability. In addition, she asserts that it was problematic for her to attend to many of the requirements of reception at the new offices, particularly opening the door and accepting delivery of parcels and documents. Ms Sluggett asserts that these various duties required her to walk and aggravated pain in her pelvis and legs.
Ms Sluggett complains that no effective action was taken in regards to her OHS report of 28 May 2007. Accordingly, she made an appointment to discuss the matter with Heather Coleman, who at the time was the Deputy State Manager of FaCSIA. This meeting took place on 3 July 2007.
Ms Sluggett is critical of Ms Coleman because she failed to deal with or respond at all to her (Ms Sluggett’s) complaints that she felt unsafe in her workplace because of the behaviour of Ms Corbisiero, particularly Ms Corbisiero’s harassment and intimidation directed towards her.
As a result of the decision to re-locate the ICC to the South Australian State Office of FaCSIA, a firm of consultants, Yellow Edge, based in Victoria, were asked to review the provision of business support for both the State Office and the Adelaide ICC, given what was seen as the overlap of services required for the two departments.
On 28 July 2007, John Robinson, the Victorian State Manager of Yellow Edge completed a Review of Business Support/Corporate Services in anticipation of the co-location of the ICC with the FaCSIA state office. [26] He recommended that a steering committee be set up to identify what were the optimal staffing levels for the two departments concerned, with the aim of integrating business support functions across FaCSIA.
[26] See CS73
On 28 August 2007, following the staffing review, Vicki Toovey, who was then the State Manager for FaCSIA, wrote to Ms Sluggett informing her that the review had found that her position was potentially excess to the staffing requirements for FaCSIA’s Adelaide Office. Accordingly it was proposed that Ms Sluggett be offered a voluntary retrenchment, if an alternative position could not be allocated to her within the Commonwealth Public Service.
Concurrently with the letter from Ms Toovey, Ms Sluggett was provided with the provisions of the FaCSIA Certified Agreement, which set out the provisions relating to the redeployment and retrenchment of what were termed “excess employees”. If such an employee rejected an offer of voluntary retrenchment and was unable to be redeployed, he or she would be subject to a “retention period” of seven months, after the expiration of which the employee in question would be involuntarily retrenched.
Ms Sluggett deposes that she found the circumstances surrounding this offer of voluntary retrenchment to be a complete shock to her. She complains that she was singled out to be retrenched (either voluntarily or otherwise) because of the various complaints she had made to management regarding how her disabilities had been treated at the ICC. It is her evidence that she was the only staff member who was found to be excess to requirements within the ICC. By necessary implication, she is of the view that the management of FaCSIA were intent on removing her from the ICC come what may.
Ms Sluggett was not successful in any application for redeployment. She chose not to accept a voluntary redundancy. Her retention period expired on 28 May 2008. On this date she was made redundant from the Commonwealth Public Service. She has not been in the paid workforce in the period since.
Ms Sluggett’s position is that her retrenchment did not comply with FaCSIA’s policy in regards to the recruitment and retention of people with disability. As such, it is her case that her retrenchment and the conduct of the FaCSIA management, which preceded it, were discriminatory.
Ms Sluggett has raised issues regarding how she was treated in her workplace, between August of 2007 and May of 2008, when she was retrenched. Firstly she complains that she was not allocated proper duties to perform and was excluded from the Corporate Services Team. Secondly, it is her position that suitable modifications were finally made to her desk and workstation, which enabled her to perform the duties required of her.
Given these modifications, which Ms Sluggett categories as simple ones, but ones which nonetheless had remarkable implications for her ability to function to her full capacity in the workplace, Ms Sluggett would characterise the decision of her employers to proceed with her retrenchment as all the more cynical and discriminatory.
The Commonwealth’s position is that, whilst Ms Sluggett was employed at the ICC, she was properly directed to perform the tasks appropriately allocated to her as an APS 2 registry officer. These tasks had been modified according to the recommendations of experts retained by the Department to assess Ms Sluggett’s capabilities. As Ms Sluggett refused, of her own volition, to comply with directions given to her, it is the Commonwealth’s position that she has been treated no less favourably than any other Commonwealth public servant without a disability but who otherwise elected to disregard conditions relation to his/her employment.
In addition, the Commonwealth denies that it has subjected Ms Sluggett to any indirect form of discrimination. It asserts that it was a condition of her employment that she did the tasks which were allotted to her. Given the circumstances surrounding her employment, particularly the various modifications which were made to her duties, there is nothing unreasonable in such a condition or requirement being associated with that employment.
The Commonwealth denies that it has denied Ms Sluggett any form of promotion, training or advancement, which would have been available to an abled-bodied person, in the same position as Ms Sluggett, as a result of her disabilities.
The Commonwealth also denies that it has subjected Ms Sluggett to any form of harassment. Finally, the Commonwealth points to the fact that Ms Sluggett’s employment, as a public servant, was terminated as a result of an arm’s length inquiry, which found she was excess to FaCSIA’s required staffing levels. As such, this cannot be categorised as a discriminatory decision on its part.
The Legal Principles Applicable
a) Introduction
The last incident of illegal conduct, alleged by Ms Sluggett to be in contravention of the provisions of the DDA, occurred on the termination of her employment by the Commonwealth on 28 May 2008. Since that date, the DDA has been significantly amended in areas specifically relevant to Ms Sluggett’s application. In addition, the HREOC Act has been repealed and replaced by the AustralianHuman Rights Commission Act 1986.[27]
[27] See Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. The date of commencement of this legislation is 5 August 2009.
Section 8 of the Acts Interpretation Act 1901 deals with the consequences of a repeal of an act of the Commonwealth Parliament. Unless the contrary intention appears in the repealing legislation, the repeal will not affect the previous operation of any act repealed by it or affect any right, privilege, obligation or liability acquired or accrued pursuant to the repealed legislation.
The relevant commencement date for the amendments to the DDA was 5 August 2009. Accordingly these amendments do not apply in the present case, given the date of the last allegation of unlawful, discriminatinatory conduct alleged by Ms Sluggett.
In addition, Ms Sluggett commenced these proceedings on 29 May 2008. Earlier on 4 April 2007, Ms Sluggett had made a complaint to the Human Rights & Equal Opportunity Commission alleging disability discrimination against her by various employees of FaCSIA. She amended this complaint on 14 October 2007.
On 22 May 2008, a delegate of the President of the Human Rights & Equal Opportunity Commission terminated its investigation into Ms Sluggett’s complaint on the basis that it was considered that the complaint was lacking in substance. This decision was made pursuant to section 46PH of the HREOC Act.
Pursuant to section 46PO of the HREOC Act, as it then stood, in these circumstances, Ms Sluggett was entitled to make application to this court, alleging unlawful discrimination on the part of FaCSIA. It was pursuant to this section that Ms Sluggett commenced proceedings in this court.
Notwithstanding the repeal of the HREOC Act, her application is to be determined pursuant to the powers conferred on the court by virtue of section 46PO(4). These are as follows:
“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.”
The DDA makes it unlawful to discriminate, on the grounds of disability, in many areas of public life. These areas include employment [DDA section 15]. It is also unlawful to harass a person, in employment, in relation to their disability [DDA section 35].
The concept of disability is defined in section 4 of the DDA. It includes the following:
“(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
…
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
…
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgements or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future… ”
The respondent accepts that the applicant suffers from post-polio syndrome and that this is disability for the purposes of the DDA. There is controversy between the parties regarding an allegation made by Ms Sluggett that the actions of the Commonwealth have in some way exacerbated a psychiatric disorder suffered by her. However, I do not understand her case to be that she suffered unlawful discrimination because of the disability represented by this mental illness.
Employment is defined in section 4 of the DDA. It includes “work as a Commonwealth employee”. Ms Sluggett was a Commonwealth public servant. There is no dispute that she was employed by the respondent, at the relevant times.
Section 15(2) of the DDA renders it unlawful for an employer or a person acting on behalf of an employer to discriminate against an employee on the grounds of the employee’s disability in respect of the following areas of employment:
“(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.”
“Discriminate” is also defined in section 4 of the DDA. It has the meaning given by sections 5 and 6 which deal with the concepts of direct discrimination and indirect discrimination respectively.
It is Ms Sluggett’s case that the Commonwealth, through the actions of various of its employees, has discriminated against her in her employment by it, both directly and indirectly. In particular, she alleges that she was denied opportunities; was detrimentally treated; and ultimately dismissed because of her disability.
b) Direct discrimination
The objects of the DDA include the elimination of discrimination, as far as possible, against persons on the grounds of disability in the area of work (inter alia) and to ensure, as far as is practicable, that persons with disabilities have the same rights to equality before the law, as do other members of the community [DDA section 3].
Accordingly, the basis of the definition of direct discrimination rests on a notional comparison between the way in which a person with a disability has been treated (the “aggrieved person”) and the way in which a person “without the disability” would have been treated in “in circumstances that are the same or not materially different.” Specifically, section 5 of the DDA provides as follows:
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.”
The leading authority, in respect of how a court such as this one, is to formulate a comparator, “without the disability” to weigh against the treatment accorded to the person bringing a complaint of direct discrimination, in the same circumstances, pursuant to the provisions of section 5 of the DDA is Purvis v New South Wales (Department of Education & Training).[28]
[28] See Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92
The aggrieved person in Purvis was a secondary school student with brain damage. His disability manifested itself in violent and disruptive behaviour towards teachers and other students at the school which he attended. Ultimately his behaviour, stemming from his disability, resulted in him being excluded from the high school, operated by the New South Wales Department of Education, which he attended.
The question for the High Court in Purvis was what attributes should be ascribed to the required comparator for the purposes of determining whether direct discrimination had occurred. Was the comparator a person without the disability simpliciter or a person without the disability but who nonetheless was deemed to have behaved in a similar violent and disruptive fashion to the complainant?
The majority of the High Court held that it was necessary to compare the treatment of the student with the disability with a student who exhibited violent behaviour but did not have the disability. Gleeson CJ stated as follows:
“The circumstance that gave rise to the first respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.”[29]
[29] Ibid at 100-101
The comparison required by section 5 of the DDA is not a purely formal one between a person with the disability and one without it. Section 5 requires a comparison between a person with the disability and one without it but the comparator must be taken to display the same behaviour and conduct as that exhibited by the disabled person.
Accordingly, how the comparator required for any given case is to be constructed must depend on the particular facts and circumstances of the case concerned. In Purvis, the comparison required by section 5(1) of the DAA was with a non-disabled student, who exhibited violent behaviour. The statute required a comparison with a student without the disability, but not a student without the disruptive behaviour, which had been part of the circumstances leading to the expulsion of the student in question.
In Maxworthy v Shaw[30] Nicholls FM was dealing with a complainant under the DDA, who suffered from Crohn’s Disease, the symptoms of which required her to wear a colostomy bag. She worked in a sandwich business called “The Lunch Spot”. Nicholls FM found that the exercise delineated in section 5 of the Act required “a comparison with another person displaying the same behaviour and conduct of Ms Maxworthy. That is someone in her position, but who does not have the disability, and who would not have been treated less favourably.”[31]
[30] See Maxworthy v Shaw (2010) FMCA 1014
[31] Ibid at paragraph 66
Accordingly, in the case, Nicholls FM found that the appropriate comparator to the complainant was as follows:
“a. An employee of “The Lunch Spot” having the same position and responsibilities of the Applicant;
b. Who did not have Crohn’s disease;
c. Who was a well regarded employee;
d. Who carried a colostomy bag;
e. Who was unable to work in the mobile van on a full-time basis;
f. Who was absent from work for a short period of time.”[32]
[32] Ibid at paragraph 69
Fetherston v Peninsula Health[33] dealt with a complainant, who was a medical practitioner, whose employment had been terminated following the deterioration of his eyesight as a consequence of diabetes and other circumstances relating to the performance of his medical duties. Dr Fetherstone had been required to attend a medical examination to ascertain what the level of his optical disability was. He declined to provide the resulting report to his employer, who terminated his employment.
[33] See Fetherston v Peninsula Health [2004] FCA 485
Heerey J, in applying the majority decision in Purvis (Gummow, Hayne & Heydon JJ), determined that the comparison required by section 5(1) required him
“… to identify the circumstances attending the treatment given to the disabled person and then examine what would have been done in those circumstances if the person concerned was not disabled. The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the discriminator. There is no basis for excluding from consideration some of the circumstances because they are identified as being connected with the disabled person’s disability.”[34]
[34] Ibid at paragraph 73
Accordingly, Heerey J identified a number of features, relevant to Dr Fetherstone required for the comparison arising under section 5. He noted that “one should not strip out the circumstances, which are connected with the applicant’s disability.” In the particular case, Heerey J found the circumstances were as follows:
“(a) Dr Fetherston was a senior practitioner in the ICU, a department where urgent medical and surgical skills in life-threatening circumstances are often required;
(b) Dr Fetherston had difficulty in reading unaided charts, x‑rays and handwritten materials;
(c) There were reports of Dr Fetherston performing tracheostomies in an unorthodox manner, apparently because of his visual disability;
(d) Medical and nursing staff expressed concern about Dr Fetherston’s performance of his duties in ways apparently related to his visual problems;
(e) In the light of all the foregoing Dr Fetherston attended an independent eye specialist at the request of his employer Peninsula Health but refused to allow the specialist to report to it.”[35]
[35] Ibid at paragraph 86
Within the matrix provided by section 5 of the DDA, Heerey J went onto consider how the respondent would have treated a person, without the applicant’s disability, in the circumstances delineated above. He held as follows:
“The answer in my opinion is clear. Peninsula Health and any responsible health authority would have in these circumstances treated a hypothetical person without Dr Fetherston’s disability in the same way. An independent expert assessment would have been sought. A refusal to allow that expert to report must have resulted in termination of employment.”[36]
[36] Ibid at paragraph 89
In Ware v OAMPS Insurance Brokers Ltd[37] Driver FM was dealing with an applicant who suffered from attention deficit disorder and depression who had been terminated from his employment. The respondent’s position was that Mr Ware had been dismissed because of his poor work performance, not his disability.
[37] See Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664
Applying the reasoning in Purvis, Driver FM held that the proper comparator in the case was:
“a) an employee of OAMPS having a position and responsibilities equivalent of those of Mr Ware;
b) who did not have Attention Deficit Disorder or depression; and
c) who exhibited the same behaviours as Mr Ware, namely poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance, but with a formerly high work ethic and a formerly good work history.”[38]
[38] Ibid at paragraph 100
In summary, direct discrimination occurs where, because of a person’s disability, the discriminator treats that person less favourably than the discriminator would have treated a person without the disability, in circumstances that are the same or are not materially different. The comparison arising is not simply between the complainant and someone who does not have the disability concerned. Rather, this comparison must be drawn between what the discriminator would have done in the same circumstances to a person without the disability, but whose circumstances are taken to include salient aspects of the aggrieved person’s conduct.
c) Indirect discrimination
Indirect discrimination is concerned with unfair or equal outcomes, which disadvantage a disabled person in comparison to the more significant numbers of abled-bodied persons within the community. Specifically, the provisions of section 6 of the DDA, which are operative in the circumstances of the present case, provide as follows:
“For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the grounds 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.”
Indirect discrimination occurs when the discriminator in question requires an aggrieved person to comply with a requirement or condition with which that person cannot comply because of their level of disability. Collier J summarised the case law as to what constitutes a “requirement or condition” for the purposes of section 6 of the DDA, in Forest v Queensland Health.[39]
[39] See Forest v Queensland Health (2007) 161 FCR 152 at 164
Firstly it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled", the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance.
This followed from what Drummond J held in Sluggett v Human Rights and Equal Opportunity Commission. [40] This case related to an earlier complaint of disability discrimination which Ms Sluggett had brought against Flinders University, as a result of the circumstances surrounding her completion of a post-graduate diploma in social administration at the University in 1992 -1993.
[40] See Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 577
As part of this course, Ms Sluggett was required to complete a field placement. She chose to research a topic relating to AIDS/migrant welfare at the Migrant Health Service. Ms Sluggett complained that her disability, arising from her post-polio syndrome, prevented her from accessing the premises of the health service chosen by her and so being able to complete her field placement.
It was found that Ms Sluggett had not raised any issues about her difficulties in accessing the health service’s premises with the University. If she had done so, the University would have made alternative arrangements to enable Ms Sluggett to complete her placement at another agency.
In this sense, Drummond J found that the concept of a “requirement or condition”, with which the aggrieved person is required to comply, involves the notion of compulsion or obligation, which was absent from Ms Sluggett’s case. She was not obliged to attend at the health service in question to complete her qualification in question. Another placement could have been found for her.
This theme of compulsion was taken up in Fetherstone v Peninsula Health. Dr Fetherston had made a request to his employers for computer software that would enlarge printed material on a computer screen. He never received a definitive response to this request. Heerey J found that:
“The mere non-response to Dr Fetherston’s requests cannot, in my opinion, be characterised as a "requirement or condition" within the meaning of s 6. That provision is concerned with some positive criterion or test or qualification or activity with which the disabled person is called on to comply.”[41]
[41] Ibid at paragraph 81
Secondly, whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia, use services of access premises, is a question of fact and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DDA has been infringed by indirect discrimination.
Thirdly, a requirement or condition may be implicit in the conduct, which is said to constitute discrimination. Fourthly, the requirement or condition in each case will depend on the facts of that particular case.
Fifthly, the notion of “requirement or condition” would seem to involve something over and above that which is necessarily inherent in the goods or services provided. The example being given that it would be nonsensical to assert that a manicure involves a requirement or condition that those availing themselves of such a service have one or both of their hands.[42]
[42] See Waters v Public Transport Corporation (1991) 173 CLR 349 at 361 per Mason CJ & Gaudron J
Finally, the expression “requirement or condition,” should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition.
Section 6(b) of the DDA requires that the relevant condition be “not reasonable having regard to all the circumstances of the case.” The onus on establishing the unreasonableness of the condition in question rests with the aggrieved person. The test is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other.[43]
[43] See Catholic Education Office & Anor v Clarke (2004) FCR 121 at 145-146
In Clarke, the applicant submitted that his child, who was deaf and a student at a school operated by the respondent, had been subject to indirect discrimination by virtue of the failure to provide Australian sign language interpreting assistance in the classroom. Instead, the school had relied upon the use of note taking as the principal means to allow the student to communicate in the classroom. It was alleged that this did not allow the student to adequately participate in classroom activities.
At first instance, Madgwick J found that the requiremental condition applicable to the student in the case was “to participate in and receive classroom instruction without the assistance of an interpreter.” It was also found that the criterion provided by section 6(a) was satisfied by a comparison being made between the student in question and a “base group” comprised of the other year 7 students at the school in question.
In determining whether the condition or requirement in the case was a reasonable one, the Full Court indicated as follows:
“The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition… However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable (citations removed)”[44]
[44] Ibid at page 146
Ultimately, after having considered the situation of the student in question, including financial considerations pertaining to the provision of the interpreter by the education authority, the Full Court confirmed the decision of the trial judge that the requirement that the student attend classes without the interpreter in Australian sign language was an unreasonable one.
In Daghlian v Australian Postal Corporation,[45] the relevant condition, applicable to the complainant’s employment situation as a postal services officer and which was said to constitute indirect discrimination contrary to the provisions of section 6 of the DDA, was that she not be seated at the retail counter of the post office where she worked, during business hours. Ms Daghlian suffered from a back and heel disability.
[45] See Daghlian v Australian Postal Corporation [2003] FCA 759
Conti J found that this condition or requirement was not reasonable. In so doing, he considered the following circumstances:
From 1989 until 2001, Ms Daghlian had sat on a stool at her workplace counter, from time to time, without restrictions being imposed on her;
In spite of recommendations made in medical and ergonomic reports obtained both by the respondent and applicant, Ms Daghlian had not been provided with an appropriately designed ergonomic chair or stool;
Ms Daghlian was a competent and conscientious and a dutiful team member of the counter staff;
Ms Daghlian’s past use of a stool, in her work station, had not caused other employees to trip;
The use of a stool was not likely to be prejudicial to the new post shop image, which the respondent desired following the conversion of the traditional post office where Ms Daghlian worked;
The assertion that the space behind the counter at Ms Daghlian’s workstation was too small to accommodate the stool or chair in question.[46]
[46] Ibid at paragraph 111
The final limb provided by section 6(c) requires that the applicant concerned “does not or is not able to comply” with the requirement or condition asserted to be indirectly discriminatory. The criterion is to be applied broadly and liberally rather than through a technical appraisal as to whether the aggrieved person can physically comply with the condition.
Rather, the test of compliance with the condition must not be at the cost of the aggrieved person being put to “any substantial disadvantage in relation to the comparable base group.” In Clarke, at first instance, Madgwick J found that it was not realistic to say that the student in question could have complied with the model of tuition offered at the school, without facing serious disadvantage when compared to his hearing classmates.
d) Harassment
Pursuant to section 35 of the DDA, it is unlawful for a fellow employee of a disabled person to harass that person in relation to their disability. It is Ms Sluggett’s assertion that the actions of Mr Cox and Ms Corbisiero constitute harassment for the purposes of section 35.
In McCormack v Commonwealth of Australia[47] Mowbray FM adopted the ordinary dictionary definition of “harass” to define the term. As such, it was defined as “to trouble by repeated attacks; to harry, raid and disturb persistently, torment …”.
[47] See McCormack v Commonwealth of Australia [2007] FMCA 1245 at page 31
In Penhall-Jones v State of New South Wales (No2)[48], Raphael FM, after noting there was little authority on what constituted “harassment” for the purposes of section 35 of the DDA, adopted the approach taken by Mowbray FM and observed that harassment is “something which is repetitious or occurs on more than one occasion …”.
[48] See Penhall-Jones v State of New South Wales (No2) [2008] FMCA 832 at page 23
In relation to the meaning of the phrase “in relation to the disability”, both Mowbray FM and Raphael FM adopted the following statement from McHugh J:
“The prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.”[49]
[49] See O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 at 376
McDonald v Hospital Superannuation Board[50] concerned a complainant who suffered from multiple sclerosis. It was found that the comments of a fellow employee, which were impliedly or expressly framed to cause discomfort and humiliation to the complainant, concerning his condition of multiple sclerosis, amounted to harassment. The Commission found that even if there were multiple motivations on the part of the employee concerned for making the comments concerned:
“… ranging from personal animosity through to a threat to her management practices, and even if there were no or only one or two singular references to MS, it was open to me to find that in fact on a number of occasions Ms Masson was using MS as part of her campaign to affect a certain end, that of causing the complainant to cease employment in her section.”
[50] See McDonald v Hospital Superannuation Board (1999) EOC 93-025
e) Vicarious liability
Section 123(2) of the DDA provides that a body corporate is liable for the discriminatory conduct of its servants or agents, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid such conduct.
In Vance v State Rail Authority[51] Raphael FM indicated the importance of statutory authorities implementing effective education programs to limit discriminatory conduct by their employees in the workplace, in order to avoid being held vicariously liable for the acts of their employees, as a consequence of the provisions of section 123.
[51] See Vance v State Rail Authority [2004] FMCA 240 at paragraphs 54-58
But he considered it would be unreasonable to expect such programs to achieve perfection in this regard, rather the aim of such programs was to do what was reasonable in regards to the education of staff members in respect of disability and discrimination issues.
In this particular case, there is no argument that if I find that any of the various employees of the Commonwealth departments in question has acted in a discriminatory way towards Ms Sluggett, which behaviour is rendered unlawful by virtue of the DDA, the Commonwealth is vicariously liable for those actions. No submissions were made in respect of any particular precautions, taken by the Commonwealth, to avoid discriminatory conduct by its employees.
Ms Sluggett’s origins and early years of employment
Ms Sluggett was born in Sri Lanka, on 15 November 1967. She contracted poliomyelitis at the age of eighteen months. Her early years were spent in a Buddhist orphanage in Sri Lanka.
At the age of ten, Ms Sluggett was adopted by her Australian parents and came to this country. She attended school in Berri, Port Augusta and Leigh Creek. She completed Year 12 at Glenunga High School, in Adelaide, in 1985.
One of her older sisters is a teacher, who has worked at schools in Aboriginal communities in South Australia. As a result, Ms Sluggett, whilst a teenager, lived at the Nepabunna Aboriginal community. This seems to have been the beginning of an interest Ms Sluggett has long held in indigenous affairs.
In 1982, Ms Sluggett had an operation on her left leg and foot to correct a physical deformity as a consequence of her polio. Her foot was reconstructed and she received a tendon transplant so that she could move her foot and toes to enable her to walk.
After completing Year 12, Ms Sluggett had a variety of jobs, including as a kitchen hand, cook and waitress; managing a jewellery shop; and child minding. She experienced some limitations in these various roles but, at the time, did not think those limitations were significant.
In 1987, Ms Sluggett began studies to complete a certificate in Aboriginal Community Development, at the University of South Australia. Following her successful completion of this certificate, she applied to the Flinders University to undertake a Bachelor of Arts degree. Ms Sluggett completed her degree in 1990.
In 1991, Ms Sluggett was a volunteer at the Clarence Park Community Centre. She assisted in taking multi-cultural and English classes at the centre and became a member of its board. Around this time, due to her level of disability, she began to seek assistance from the Commonwealth Rehabilitation Service (CRS).
In 1992, Ms Sluggett commenced a post-graduate Bachelor of Social Administration (Social Work) degree, also at Flinders University. She did not complete this degree, in circumstances which remain controversial. As previously indicated, as part of her course, Ms Sluggett was required to complete a field placement.
In her affidavit of evidence, prepared for this hearing, Ms Sluggett deposes that during 1993, due to her disabilities, she was unable to access lecture halls, tutorial rooms and other facilities at Flinders University, as well as being unable to attend at the Migrant Health Service to complete her field placement. At the end of 1993, she failed a number of her academic subjects. Ms Sluggett asserts that it was because she “did not receive the help [which she] needed” from the University that she failed her second semester of studies.[52]
[52] See affidavit of Ms Sluggett filed 4 February 2009 at paragraph 18
As a consequence of the University failing to accord her a reconsideration of her academic result, on the basis that account had not been accorded in respect of her mobility difficulties, Ms Sluggett made a complaint of discrimination to the Human Rights & Equal Opportunities Commission. This led to protracted legal proceedings, which were ultimately concluded by Drummond J in 2002. Ms Sluggett’s complaint was unsuccessful, both before HREOC and on appeal.
In his judgment, Drummond J set out the circumstances of Ms Sluggett’s complaint and disability, in his reasons for judgment, as follows:
“The medical evidence about the applicant's disabilities is not in dispute. I have referred to her permanent disability that impaired her mobility. From 1992 her health worsened and in December 1993 she was diagnosed as having developed post polio syndrome. Its onset may have begun as early as 1991. It became increasingly debilitating though Ms Sluggett did not realise that she had developed this condition. Symptoms included increased weakness and instability in her lower limbs, particularly in her left leg, pain and fatigue. It affected her academic performance. Her performance in 1992 was satisfactory. But in December 1993 she failed a number of subjects. Ms Sluggett applied to the University Appeal Committee for a re-grading of these subjects on the ground that her problems with mobility had detrimentally affected her performance and that, in failing to make allowances for her disability, the University had discriminated against her. Her appeal was unsuccessful. She then made her complaint to the Commission.”[53]
[53] See Sluggett v HREOC ibid at 563-564
It is the submission of Dr Bleby, counsel for the Commonwealth, that Ms Sluggett has been somewhat disingenuous, in her affidavit account, regarding the reasons for her academic failure in 1993, which were not borne out by the findings of the HREOC Commissioner and which were not reversed on appeal.
The basis of Dr Bleby’s criticism being that, after previous academic success at the University, which had necessitated her attendance at its facilities, it was only when she had begun to fail her course, Ms Sluggett had raised complaints pertaining to her ability to access the University campus, as a consequence of her disability. The implicit criticism being that Ms Sluggett’s complaint was opportunistic and self-serving.
Drummond J summarised the Commissioner’s findings in the passage below. He did not find any fault in those findings:
“It was only as her disability increased as her post polio syndrome gradually worsened during 1993 that the University is said to have discriminated against her with respect to access. This is said to be so though Ms Sluggett did not herself draw to the attention of the University her growing problems with mobility. She did mention something of her problems to some of her lecturers. But the Commissioner found that what Ms Sluggett did was this. She: "did not refer to difficulties of access within the University as the cause of her academic problems: rather, she complained about difficulties in getting into the University from her home, and about her personal problems and relationships". It is difficult to see how means of access about which there is no complaint in 1992 can become the subject of discriminatory conduct by the University in 1993 solely because of a deterioration in Ms Sluggett's physical capacity which she did not draw to the attention of her lecturers, the unit within the University specifically set up to provide advice and assistance to disabled students or anyone else in the University. It was only her examination failures, at the end of the 1993 academic year that caused her, early in 1994, to make complaint to the Academic Registrar in the course of appealing against the failed grades she had received. If it were the case that the University did, in 1993, require Ms Sluggett to comply with a requirement or condition that she attend classes at the University or field work at the Health Service centre with which requirements she became increasingly unable to comply, it is difficult to see how it could be said that such a requirement or condition was in terms of s 6(b) …”[54]
[54] Ibid at page 565-566
In his written submission to the court[55] Dr Bleby asserts that Ms Sluggett’s conduct during the first set of protracted discrimination proceedings and how she has characterised them in the current proceedings are relevant issues for the court to have regard in its overall assessment of her credit.
[55] See written submissions of the respondent – page 7 at paragraph 16
Dr Bleby asserts that, firstly Ms Sluggett has not been frank about the earlier proceedings. Secondly, she has “a long history of unmeritorious complaints”. Thirdly, in Dr Bleby’s submission:
“This evidence also puts the court on notice that the applicant has a history of making complaints about discrimination well after the event complained of, and in circumstances where she did not provide the pertinent information to the relevant body at the time. This is a matter that features heavily in the applicant’s conduct relevant to the present case.”
As Drummond J indicated, it was in late 1993 that Ms Sluggett was formally diagnosed with the condition of post-polio syndrome. She was found, around this time, to have a weakness in her left leg, which caused it to fatigue quickly, giving way at the knee and ankle, often causing her to fall.[56]
[56] See CS2
There is no dispute between the parties that Ms Sluggett continues to suffer post-polio syndrome and that this is a disability within the meaning of section 4 of the DDA. Post-polio syndrome is a second phase of poliomyelitis, contracted many years after the individual concerned has been initially affected by the disease. The syndrome is a slowly progressive and degenerative phase of the disease. Its estimated prevalence is between 4,000 and 26,000 people in Australia.
The main features of post-polio syndrome include:
Fatigue;
Pain in muscles and joints;
Lack of strength and endurance;
Respiratory, speech and swallowing problems.
Just as there is no cure for poliomyelitis, so there is no cure for post-polio syndrome. Medical treatment is available only for the treatment of its symptoms. In most cases of the disease there is a steady deterioration in the neuromuscular ability of the person affected.[57]
[57] See CS22
As a result of her diagnosis, Ms Sluggett began to receive treatment at the Queen Elizabeth Hospital department rehabilitation medicine. She began to see her current specialist, Dr Nigel Quadros in 1994. She also qualified for a disability support pension.
At the end of 1994, as part of a CRS work rehabilitation program, she commenced a three month unpaid and part-time trainee placement at ATSIC. This led to her obtaining a temporary part-time position at ATSIC. In mid-1996, Ms Sluggett successfully applied for a permanent APS2 position with ATSIC and became a permanent employee of the Australian Public Service. She retained this “substantive APS2 position” until the termination of her employment on 28 May 2008.
From 1996 until 2001, Ms Sluggett held a number of positions at ATSIC including as a project officer and staff training and development officer. Although she remained substantively at the APS2 level, some of these roles were designated at a higher level up to APS4. Ms Sluggett’s evidence is that she was happy in her employment at this time.
In 1998, Ms Sluggett undertook part-time studies at the University of South Australia to obtain a graduate diploma of social science in rehabilitation. She reduced her hours of work at ATSIC to twenty-four hours per week. She was interested in this area of study because of her own experiences as a person with a disability.
Ms Sluggett successfully obtained her graduate diploma. She took leave from ATSIC in 1999 to work on a part-time basis with a private sector organisation, which assisted disabled people obtaining employment. One of her responsibilities was to advocate on behalf of her disabled clients.
Ms Sluggett returned to ATSIC in early 2000. She was placed in the human resources section, which was involved with providing staff training. This was not a happy period for Ms Sluggett, who claims that she was discriminated against by her then manager, Jenny Woods, because of her disability, resulting in being humiliated and a burden on her fellow staff members. In addition, Ms Sluggett complains about the size and configuration of her workstation at the time and the requirements that she stand for long periods of time photocopying and deliver files and other materials throughout the office.
Ms Sluggett asserts that, due to these difficulties in her workplace, she became distressed, particularly at what she perceived to be Ms Woods constant negative criticisms of her. As a result, she took extended leave from November 2000 to February 2001. The clear import of her evidence is that her disability needs were not being met in her workplace and she was being harassed because of her disability.
This period is not the subject of any specific complaint of discrimination made by Ms Sluggett. She has however alluded to it, at some length, in her affidavit material. In particular, she claims that Ms Woods threatened her with “disciplinary action” unfairly and as a means to intimidate her. The implication of Ms Sluggett’s evidence being that such a threat was unwarranted and unrelated to any issues to do with her work performance.
Ms Woods is not a witness in these proceedings. However, a lengthy email chain of emails passing between Ms Woods and Ms Sluggett in the period from September 2000 to October 2000 was put to Ms Sluggett in cross examination.[58] The final email of the chain indicates that, ostensibly at least, Ms Woods had significant concerns about Ms Sluggett’s performance at work in the following areas:
incorrect completion of flex sheets;
taking flex leave without prior approval;
blurring between the performance of ATSIC duties and other private interests;
lack of courtesy to supervisors;
the incompletion of tasks given to her and her general attitude to work;
refusal to answer the phone;
her assertion that her personal development needs were not being met, which was characterised as mischievous and misleading.
[58] See exhibit 17
On 17 July 2001, Ms Sluggett wrote a lengthy letter to the personal manager of ATSIC, setting out her various grievances arising from her employment at ATSIC from 1997 onwards.[59] She made specific complaints about Ms Woods’ conduct towards her. She also complained as follows:
“I am a university graduate yet I watched other people including temporary staff brought in for specific positions rather than advertising for internal staff or giving internal staff who have applied for positions a chance. …”
[59] See CS6
Ms Sluggett’s evidence is that she was advised to lodge her grievance, as it was the only mechanism available to her for her “disability needs” in her workplace to be met. In cross examination, she maintained that she did not personally want to put the grievance letter in but was asked to do so. She asserted that she wished to avoid conflict in her workplace.[60] I consider that both these assertions are against the weight of the evidence, particularly in the light of Ms Sluggett’s subsequent actions.
[60] See transcript at page 311
Whilst her grievance was being investigated, Ms Sluggett was put up for redeployment outside of ATSIC. In addition, she received counselling and psychological support from Jane Kemp. My understanding is that she did not return to her workplace during this period.
Ms Sluggett was advised of the outcome of her grievance proceeding in October of 2001. The advice was that her various grievances had been found to be unsubstantiated and she should return to her position in the Adelaide ATSIC office. Ms Sluggett’s evidence is that she was emotionally unable to return and went on immediate sick leave.
Following the receipt of Ms Sluggett’s letter of 17 July 2001, the relevant managers within ATSIC determined to treat it as a complaint that Ms Woods and four other ATSIC employees, within the Adelaide office, had breached the Australian Public Service Code of Conduct as a result of their behaviour towards Ms Sluggett.
Bill Marshall was nominated to report into the matter and determine whether there had been a possible breach of the code of conduct. Mr Marshall was independent of ATSIC management. His report was released to Ms Sluggett on 13 November 2001.[61]
[61] See CS12
In all these circumstances, I do not think there is anything unusual or sinister about Mr Robinson’s report. I accept that the report was independent of the FaCSIA management and was based on an examination of the various positions concerned within FaCSIA’s Adelaide office and the ICC and any duplication arising, rather than the identity of the actual individuals who occupied each of them.
Ms Sluggett’s major complaint about Mr Robinson’s report and FaCSIA’s response to it was that it resulted in Maria Pagoda, a temporary APS4 employee, being retained within the corporate structure and being nominated to perform duties which Ms Sluggett discharged. The implication being that this was a conscious and unfair decision on the part of management intended to thwart Ms Sluggett.
An analysis of the Business Plan attached to Mr Robinson’s report shows that at the time Ms Sluggett had few duties in comparison to Ms Pagoda. In any event, Mr Robinson’s proposed re-structure made provision for an interim APS4 officer to provide file management and business support for a period of six to twelve months.[166]
[166] See CS73 at page 7
Accordingly I do not consider that the evidence reveals that the roles of the APS2 registry officer (Ms Sluggett) and the APS4 officer (Ms Pagoda) were interchangeable. As a result of these matters, I do not think that the decision to retain Ms Pagoda, albeit on a temporary basis, can be regarded as being discriminatory of Ms Sluggett.
Ms Sluggett was invited to apply for a voluntary retrenchment on 27 September 2007.[167] Ms Sluggett describes this as coming as a “complete shock” to her. Given the time of the commencement of Mr Robinson’s report and given the fact that Ms Shaw and Ms Kudinoff had earlier discussed the issue with her and provided her with a copy of Mr Robinson’s report, this seems unlikely to me. More tellingly, Ms Toovey, the state manager of FaCSIA sent a confidential minute to Ms Sluggett on 28 August 2007 formally advising her that she was potentially excess to the staffing requirements of FaCSIA’s Adelaide office.[168]
[167] See CS74
[168] See CS73
What is more significant is the suggestion made by Ms Sluggett that the timing of the offer of retrenchment indicates that it was motivated by the contents of a psychiatric report of Dr Cossof, which had been prepared in respect of her. After having examined her on 27 August 2007, at the request of Comcare, Dr Cossof diagnosed Ms Sluggett as suffering from dysthmia and acute stress disorder caused by her perception of difficulties at work. The report itself was dated 31 August 2007.[169]
[169] See CS75
Given that Ms Toovey’s minute was composed on 28 August and Dr Cossof’s report was prepared three days later, I fail to see that there is any connection between FaCSIA’s decision to offer Ms Sluggett a voluntary retrenchment and the issues raised by Dr Cossof in her report. I reject the contention that the letter to Ms Sluggett of 27 September, inviting her to apply for retrenchment, was some form of subterfuge designed to remove Ms Sluggett from the ICC because of her disability and the complaints she had made about her treatment in the workplace.
To my mind, a proper analysis of the relevant evidence does in fact indicate that Ms Sluggett was surplus to FaCSIA’s staffing requirement. As such, in my view, Ms Sluggett’s retrenchment cannot be characterised as being discriminatory or some form of victimisation of her. Although it obviously had very significant consequences for Ms Sluggett herself, the redundancy was otherwise an unexceptional piece of public service administration and was unrelated to Ms Sluggett’s disability.
As Ms Sluggett’s position had been declared otiose, in late September of 2007, she was moved to another workstation, whilst she worked out the required period of seven months prior to her redundancy becoming effective. At her request, a further assessment of her new workstation was undertaken. This involved Dr Quadros and Ms Agus and was overseen by Ms Shaw, who was now Ms Sluggett’s line manager.
Ms Agus provided a comprehensive ergonomic workplace assessment report on 24 October 2007.[170] In the report, she confirms that she has consulted with Dr Quadros. In the report, Ms Agus recommended that a standard corner desk with a straight rather than a round cut out be obtained for Ms Sluggett; that flatter armrests be fitted to her chair; and she be provided with a smaller keyboard and a writing slope.
[170] See Exhibit CS76
Ms Agus also recommended that modifications be undertaken in respect of the weight of the disabled toilet door which was utilised by Ms Sluggett. Ms Shaw confirms that she referred the issue to FaCSIA property in Canberra and after tenders were called, the modifications were made.
In February of 2008, Ms Sluggett was provided with a new desk in line with Ms Agus’ recommendations. Ms Sluggett deposes that the provision of the new desk made a remarkable difference to her ability to perform tasks assigned to her. A contention which is supported by a further follow up assessment, which was conducted by Ms Agus on 28 February 2008.[171]
[171] See CS77
Ms Sluggett deposes that she was pleased at the manner in which Ms Agus’ recommendations were implemented and the fact that they reduced her symptoms. The implication arising from her evidence being that it was a comparatively simple exercise to modify her workstation to make it suitable for her and it was only when she had been found to be excess to requirements that these modifications were implemented.
It is the case that the Commonwealth implemented the recommendations made by Ms Agus. Clearly these actions, on its part, cannot be regarded as discriminatory of Ms Sluggett. What Ms Sluggett suggests is that the apparent ease with which these modifications were made establishes definitively that the respondent had behaved in a discriminatory manner against her earlier.
I do not accept that this is so. Ms Agus’ two final reports in respect of Ms Sluggett’s workstation were the final reports in a series of reports, which included reports from Ms Agus herself. In my view, the evidence indicates that the Commonwealth acted in respect of each of those reports. The fact that, from Ms Sluggett’s perspective, it was the final reports which were the most effective ones does not by necessary implication establish that the Commonwealth was discriminatory in respect of its implementation of the earlier reports and so acted unlawfully towards her.
It may be the case that those advising the Commonwealth about Ms Sluggett’s ergonomic requirements could have done so better or more sensitively. However, it is not suggested that the expert advice obtained by the Commonwealth was inappropriate. Nor, in my view, does the evidence indicate that it was ignored because of any issue arising from Ms Sluggett’s level of disability.
At Ms Sluggett’s request, innumerable ergonomic experts had been called in to assess her workplace. These included Dr Lewis, Ms Buchan, Mr Dewing and Dr Jezukaitis, as well as Ms Agus herself on several occasions. Accordingly, it is misleading to suggest that it was only after she had been declared excess to staffing requirements that heed was given to Ms Sluggett’s disability needs in the workplace.
Ms Sluggett complains that nothing was done to remedy the weight of one of the doors. Ms Shaw deposes that she offered to Ms Sluggett that she could telephone her when she wanted to go out the door in question, an offer which Ms Sluggett declined. It should also be noted that two of the doors into the office, albeit not the ones most convenient for Ms Sluggett, were automatic ones.
Ms Shaw and Ms Kudinoff obtained the services of a career consultant to assist Ms Sluggett obtain an alternative position. This process was not successful. During the time leading up to her retrenchment, Ms Sluggett was allocated what Ms Kudinoff described as “several short term research projects”. I have not been provided with any definitive evidence as to what was meant by this.
Ms Sluggett’s evidence is contradictory about how she reacted to the tasks which were allocated to her in this period. In her initial affidavit she deposes that she was “pleased and happy” with her new situation. The implication being that she was not the intrinsically difficult person to accommodate as the Commonwealth would have her. On the other hand, in a more recent affidavit, she deposed that she was not provided “meaningful” work in this period.
It seems to me to be against the weight of the evidence that the period during which Ms Sluggett was being supervised by Ms Shaw and Ms Kudinoff inaugurated a period of employment satisfaction for Ms Sluggett, which stood in marked contrast to what had occurred to her earlier at the ICC. The implication being her earlier unhappiness was due to the discriminatory conduct of the previous managers towards her. I am concerned that Ms Sluggett is being capricious when she attempts to portray her situation thus.
Notwithstanding Ms Sluggett’s reports of considerable improvements in her physical condition arising from the new desk allocated to her and the implementation of the other recommendations made by Ms Agus, in February of 2008, Dr Quadros reduced her hours of work to 14.50 hours over two days per week because of “ongoing pain in [her] injuries and deterioration in [her] physical health.”[172]
[172] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 272
As a result of these matters, Ms Sluggett’s then case manager, Fleur Bowler referred her to an occupational physician, Dr Shepherd for assessment in May of 2008. Dr Shepherd wrote as follows:
“Given her report level of symptoms and reported level of function, my feeling is that she would be better off not being at work at all with a goal of improving of her health over an extended period, and if this successful she could then make a return to work. If this is unsuccessful, which is possible given her diagnosis of post polio syndrome and Dr Nigel Quadros’ opinion that this is likely to become more severe, if anything, there is a reasonable likelihood she will never return to any duties requiring any physical tasks.”[173]
[173] See CS78 at page 4
It is my finding that the management of the ICC, through the aegis of Ms Shaw and Ms Kudinoff, acted responsively and appropriately to Ms Sluggett’s level of disability in the period immediately prior to her becoming redundant on 28 May 2008. They cannot be categorised as failing to respond appropriately to Ms Sluggett’s level of disability. However, in my assessment, it is disingenuous and simplistic for Ms Sluggett to imply that it was a comparatively easy thing to accommodate her level of disability within the workplace and so suggest that the earlier management team had failed in this regard in comparison.
Ms Sluggett was unsuccessful in her attempts to secure an alternative position in the Commonwealth Public Service. She worked out the mandated period prior to her redundancy becoming effective on 28 May 2008. She has not worked in the period since.
Conclusions
I have attempted to analyse each of the applicant’s complaints of discrimination within her workplace at the ICC. On an individual basis, I have found that none of her complaints amount to unlawful conduct on the part of the respondent and its agents. The question which remains however is whether viewed cumulatively the behaviour of the Commonwealth, over the course of its final three or four year employment relationship with Ms Sluggett, can be viewed as discriminatory and so unlawful.
Essentially, is it the case that items of behaviour which, when viewed in isolation appear innocuous, when viewed in context with similar items, in totality those items present a different picture of a concerted and pernicious campaign against Ms Sluggett motivated by her disability?
I do not believe so. Clearly the atmosphere within the ICC grew more and more difficult over time. Attempts by management to resolve the difficulties were ineffective. I am of the view that the evidence indicates that this unhappy state of affairs arose because of Ms Sluggett’s behaviour and actions within the workplace, rather than as a response by the ICC’s management to her disabilities.
The lateral solution to the difficulties within the ICC was to provide Ms Sluggett with the research position of her preference. Ms Buchan suggested such an outcome. Clearly this was the outcome sought by Ms Sluggett. However such a position was not available and the Commonwealth was not obliged to create such a position for Ms Sluggett.
This was highly unsatisfactory to Ms Sluggett for a variety of reasons. It was not in keeping with her tertiary qualifications or previous experience at ATSIC. In response to her dissatisfaction, I am satisfied that the evidence indicates that, throughout her time as an APS2 officer at the ICC, Ms Sluggett waged a passive campaign, based on intransigence and obstruction to management, to secure her preferred outcome, following the abolition of the Regional Council of ATSIC, which was to have a research position based at a higher APS level.
It was this behaviour to which the Commonwealth had to respond. It meant that nothing which the Commonwealth did or provided to Ms Sluggett, in response to her complaints arising from her significant level of disability, was capable of satisfying her. It meant that there would always be further complaint from Ms Sluggett, ostensibly based on her disability, until such time as her wish to have another position had been satisfied.
Dr Bleby, counsel for the respondent, has characterised Ms Sluggett’s facility to make complaints of discriminatory behaviour, on the basis of her disability, as a “weapon” which is tantamount to an “abuse of the system” on her part.[174]These are harsh criticisms for the Commonwealth to level against her. With some regret, I have come to the conclusion that Ms Sluggett did indeed use her undoubted familiarity with the mechanisms of complaint as an instrument of intimidation against the respondent and its agents.
[174] See Respondent’s final submissions at paragraph 380
In response to Ms Sluggett’s manifold complaints, the respondent engaged a variety of independent experts to provide advice about how Ms Sluggett’s needs could be accommodated within the workplace. It followed the recommendations provided to it. At times, with the benefit of hindsight, it could be said that some of the Commonwealth’s agents could have acted quicker or have communicated better or more empathetically with Ms Sluggett. But these are not the applicable criteria for discrimination under the DDA and, in any event, Ms Sluggett was not likely to have been mollified by any such expressions of empathy.
To a large extent, Ms Sluggett decided what duties she would undertake at the ICC. Up to a certain point, to avoid conflict, the ICC management was passively accepting of this state of affairs but ultimately it was untenable for it to continue. As such it was inevitable that, because of Ms Sluggett’s behaviour, there would have to be a code of conduct investigation. This arose because of Ms Sluggett’s conduct not because of her disability. It was Ms Sluggett’s behaviour which led to the confrontation not her disability per se.
In any event, the investigation into a possible breach of the Public Service Code of Conduct was never finalised and no formal adverse finding has been made against Ms Sluggett. Ms Sluggett was terminated from her position because of the co-location of the ICC with the state office of FaCSIA and the resulting inquiry into staffing requirements, which found her position to be otiose.
Pursuant to section 5 of the DDA, the essential question for the court is why Ms Sluggett was treated in the way she was by the management of the ICC. Did she receive less favourable treatment because of her disability rather than for some other reason?
This requires a comparison to be made between Ms Sluggett and a person without her disability but who displays the same behavioural characteristics as she. I am satisfied that a person who did not suffer from the characteristics of post-polio syndrome but who displayed the same level of intransigence and obstructive behaviour in the workplace, as did Ms Sluggett, over the course of her employment at the ICC, would have been treated in the same manner by the management of the ICC. Ultimately the behaviour of such an employee would have been subject to some form of stricture.
There is no dispute in this case that Ms Sluggett is significantly disabled. As such, it is to her credit that she has obtained tertiary qualifications and was able to secure employment for herself in the Public Service. It is in fact the opinion of some of the medical experts involved in this case, notably Dr Shepherd and Ms Buchan, that those suffering post-polio syndrome, to the degree of Ms Sluggett, are precluded from employment involving significant physical exertion.
However this case is not specifically an inquiry into the level of Ms Sluggett’s disability and what was her actual capacity for work during the periods in question. The case is concerned about how the respondent acted in respect of Ms Sluggett’s disability and whether she was discriminated against, in her workplace, because of it.
In particular whether Ms Sluggett was unreasonably required by the respondent to comply with a condition or conditions arising from her employment, with which it was impossible for her to comply because of her disability. These are issues germane to whether there has been any indirect discrimination against Ms Sluggett.
In my view, the evidence indicates that Ms Sluggett is a most judicious guardian of her health. To all intents and purposes, she decided what she would and would not do, whilst at the ICC. The various duty statements applicable to Ms Sluggett from time to time nominally allocated duties to Ms Sluggett, although these duties were also subject to discussion between her and management. Management accepted without demur that some duties were not appropriate to be allocated to Ms Sluggett and these were allocated elsewhere.
The evidence also indicates that Ms Sluggett declined to perform many of the duties allocated to her at the ICC. Over time she was released from responsibility for those duties, sometimes unofficially, and their discharge devolved on to others at the ICC. Accordingly Ms Sluggett was not compelled to perform duties at the ICC, which she judged were beyond her capacity. She did not do them and she was not subject to compulsion to do them.
The Commonwealth currently doubts and the ICC management at the time doubted the validity and motivation of many of Ms Sluggett’s decisions in regards to what she would or would not do as an APS2 registry officer. Nonetheless the respondent went to some lengths to modify the duties remaining to Ms Sluggett by enlisting the services of suitably qualified experts to provide advice to its relevant management about how Ms Sluggett could perform her duties.
What duties remained to Ms Sluggett were, in my view, significantly modified over time by the respondent in the light of advice provided to it. Amongst other things Ms Sluggett was directed to pace her tasks. She was provided with ergonomic equipment. When Ms Sluggett was provided with directions to apply herself to a particular duty, in the circumstances of this case, those directions do not appear to me to have been unreasonable ones. The evidence also indicates that Ms Sluggett was able to comply with her duties after modifications had been made.
During the period of her employment at the ICC, Ms Sluggett’s decision not to undertake particular tasks created an atmosphere of tension and resentment in the workplace. Individual members of the management team reacted to this tension from time to time, not always with composure. These reactions may be criticised for being unprofessional, however, in my view, they do not amount to harassment for the purposes of the applicable legislation.
For these reasons, I have come to the conclusion that Ms Sluggett’s complaint should be dismissed. Accordingly, it is not necessary for me to embark upon a process of calculation of any damages to be awarded to her, which would involve an assessment of the expert medical evidence which has been led before me.
Costs
There remains the issue of costs. The Commonwealth has sought costs on a solicitor and own client basis.[175] The hearing before me occupied thirty one sittings days. Accordingly the potential quantum of costs, if any are awarded, is significant. Ms Sluggett is not a person of means. She is currently unemployed. She is also significantly disabled. It also seems likely that she has incurred her own liability in respect of costs, although I am unaware of the basis on which she has been granted legal assistance to advance her complaint before me.
[175] See Response filed 7 July 2008
The Commonwealth rigorously contested these proceedings, as it was entitled to do. The proceedings were also of great significance to Ms Sluggett herself and touched on an issue of public importance. The purpose of the Disability Discrimination Act 1992 is to outlaw discriminatory behaviour on the basis of a person’s disability. Through the legislation, the Government of Australia has recognised that such discrimination is a societal evil. As such, the legislation is remedial in nature and it is in the public interest that the victims of such discrimination are encouraged to come forward.
On any view, there is a marked discrepancy in the financial resources available to the parties in this case. Although it is a legal cliché, when compared to Ms Sluggett, the resources of the Commonwealth can be said to be limitless. These are relevant considerations to the question of costs.
Pursuant to section 79 of the Federal Magistrates Act 1999 I have jurisdiction to make an award of costs in favour of the respondent. Such an award is discretionary. At this juncture, I do not consider that I have sufficient material before me to be able properly to exercise such a discretion.
For that reason, I propose directing that, in the event the respondent wishes to pursue an application for costs it makes a formal application to this effect supported by affidavit within twenty eight days of the date of these orders. Ms Sluggett will then be able to respond formally to such application.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seven hundred and forty-eight (748) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 30 August 2011
2
13
0