Sluggett v DIAC - [2008] FMCA 735

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SLUGGETT v DIAC & ANOR

[2008] FMCA 735

HUMAN RIGHTS – Allegations of discrimination because of disability – complainant found surplus to employment requirements and placed in a process of involuntary redundancy – application for an injunction to preserve right of employment in public service – status quo – serious issue to be tried – balance of convenience.

Disability Discrimination Act 1992, ss.5, 6, 15, 35, 42 and 123
Human Rights and Equal Opportunity Commission Act 1986, ss.46PP, 46PO, 47PH

Rainsford v Group 4 Correctional Services [2002] FMCA 36
DeAlwis v Hair [2002] FMCA 357;
Beck v Liechardt Municipal Council [2002] FMCA 331
McIntosh v Australian Postal Corporation [2001] FCA 1012

Applicant:

CHANDRAKANTHI SLUGGETT

First Respondent:

DEPARTMENT OF IMMIGRATION & CITIZENSHIP

Second Respondent:

DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES & INDIGENOUS AFFAIRS

File Number:

ADG 129 of 2008

Judgment of:

Brown FM

Hearing date:

30 May 2008

Date of Last Submission:

30 May 2008

Delivered at:

Adelaide

Delivered on:

4 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms O'Connor

Solicitors for the Applicant:

Lieschke & Weatherill

Counsel for the First Respondent:

Ms Dowsett

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Ms Dowsett

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The respondent’s file and serve a response and affidavit in support within thirty-five (35) days of the date of these orders.
The matter be fixed for final hearing for five (5) days commencing 2 March 2009.
The matter be listed for trial directions and to consider whether the matter should be referred to a dispute resolution process on 29 July 2008 at 9:30am
The interim applications herein be otherwise dismissed.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 129 of 2008

CHANDRAKANTHI SLUGGETT

Applicant

And

DEPARTMENT OF IMMIGRATION & CITIZENSHIP

First Respondent

DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Introduction

Chandrakanthi Sluggett “the applicant” contracted polio as a child. As a result, she suffers from a condition known as post-polio syndrome. She has significant weakness in her left leg, particularly her hip abductors, flexors, hamstrings and quadriceps. Her condition can cause her pain and fatigue.
The applicant has been a Commonwealth public servant since 1995. Initially she was employed by ATTSIC. She was engaged in providing administrative and research support to the Adelaide regional council of ATTSIC.
ATTSIC was formally abolished in June 2005 and, as a result, the applicant was transferred to the Department for Families, Community Services and Indigenous Affairs “FaCSIA” hereinafter referred to as “the department”, as a registry officer at an APS2 level in its office of Indigenous Policy Coordination. As I understand matters, she has been employed on a permanent part-time basis.
On 4 April 2007, the applicant complained to the Human Rights & Equal Opportunities Commission “HREOC” claiming that FaCSIA had discriminated against her because of her disability and so had breached the provisions of the Disability Discrimination Act 1992 “the DDA”.
In particular, the applicant complained that the department had failed to provide reasonable accommodation for her disability, since her appointment as a registry officer and some members of its staff had subjected her to harassment and discrimination.
The applicant amended her complaint to HREOC on 14 October 2007. She raised other issues relating to alleged victimisation in her place of work, which she claimed had been condoned by the management of the department concerned.
Ms Sluggett’s complaint engaged sections 5 [direct discrimination], 6 [indirect discrimination], 15 [discrimination in employment], 35 [harassment in employment], 42 [victimisation] and 123 [conduct of a body corporate] of the DDA.
FaCSIA denies that it has discriminated against or harassed the applicant or engaged in any unlawful behaviour as characterised by the DDA. It categorises her complaint as trivial, vexatious, misconceived and lacking in substance.
On 22 May 2008, a delegate of the commissioner of HREOC terminated the applicant’s complaint on the basis that it lacked substance [DAA section 47PH(1)(c)]. As a result, the applicant has commenced proceedings in this court pursuant to section 46PO of the Human Rights and Equal Opportunity Act 1986 “the HREOC Act”.
Currently, there are a number of inter-related disputes between the applicant and FaCSIA and its various administrative and departmental reincarnations.[1] These disputes have resulted in proceedings between the parties in a variety of forums, which include this court and the Administrative Appeals Tribunal. The factual situation relating to these various disputes is complex.
[1] The applicant’s initial complaint to HREOC names the Indigenous Coordination Centre and the Department of Families Community Services and Indigenous Affairs as the respondents to her complaint. Between 1 July 2004 to 30 May 2006 the Centre came under the auspices of the Department of Immigration, Multicultural and Indigenous Affairs. FaCSIA is now known as the Department of Families Housing, Community Services and Indigenous Affairs “FaHCSIA”. I will refer to the respondents in these proceedings as “the department”. Various aspects of the complainant’s case cover periods when the department concerned has been administered by different government agencies, which have changed their titles from time to time.
The department complains that the applicant’s capacity to perform her required duties has been subject to extensive professional assessment in the past and it has applied the adjustments to the complainant’s work situation, which have been recommended by these various assessments.
In particular, the department asserts that it has made reasonable administrative, procedural and environmental alterations to enable the complainant to work effectively, of which the complainant has not taken advantage. Rather, the department asserts that the complainant has been directed to perform her required duties and has failed to comply with these properly given directions, such that she has been in breach of the public service code of conduct.
On the other hand, it is the complainant’s position that the department failed to implement adjustments to her workplace, which were recommended by her medical advisors. As a result, she asserts that this failure to accommodate her needs resulted in her being injured at work. This alleged injury is now the subject of a worker’s compensation claim, being dealt with in the Administrative Appeals Tribunal.
As I understand matters, it is the complainant’s case that her work place injury is related to her disability, in the sense that because her work station was not appropriately modified or placed, she could not perform her duties without physical stress, which led to her becoming injured.
The department commenced internal disciplinary against the complainant, in respect of alleged breaches by her of the public service code of conduct, in May 2007. It is the complainant’s position that these internal departmental proceedings were commenced as a result of her making the complaint to HREOC and, as such, constitute harassment of her by the department.
As a result, it is the complainant’s position that she was unable to perform her required work duties because the department failed to make reasonable accommodation in respect of them and then has subsequently, through its employees, subjected her to bullying and harassment, which have led her to become anxious and depressed, further exacerbating her work related injuries and disability.
Due to her claim for worker’s compensation being rejected, the complainant is not receiving worker’s compensation payments. As a result she has utilised her accrued sick pay and recreation leave, whilst being absent from her work for lengthy periods.
In July of 2007, the department commenced a review of its operations in the section to which the complainant was assigned. As a result of this review, the complainant was found to be excess to the department’s employment requirements and, as a result, she was placed on a list of employees known as “the redeployment list”.
Whilst on the redeployment list, it is open to an employee to seek other positions within the Commonwealth Public Service. Such an employee is also entitled to receive assistance to obtain such a redeployment. However, the complainant was also informed that, if she was not able to be redeployed by 28 May 2008, her employment with the Commonwealth Public Service would be terminated.
As part of the voluntary redundancy process, the complainant has been attending her place of work. A work performance report dated 6 March 2008 indicates as follows:
“As part of the involuntary redundancy process that commenced in November Chandra has been undertaking meaningful work that has involved discrete tasks across the office working to three separate managers. On a day to day basis she reports to me. This involves meeting with Chandra and the vocational consultant that FaHCSIA SA has engaged to assist Chandra in identifying and applying for employment opportunities. It also involves requests for leave, approval of timesheets, identifying and approving training and OH&S issues including workstation assessments.
During this time she has been diligent in keeping managers informed of her whereabouts and has undertaken several training courses to increase her skills. She has sought feedback from managers in relation to the work she has produced. Managers have confirmed that they are satisfied with the work she has produced however the tasks have taken longer to complete than anticipated.”
The termination of the complainant’s complaint with HREOC and her dismissal from the Commonwealth Public Service have coincided. This is the background to the complainant’s present application to this court.
Pursuant to section 46PP of the HREOC Act, the complainant seeks an injunction preventing the termination of her employment with the Commonwealth Public Service.
In conjunction with this application for an injunction, the applicant has commenced proceedings pursuant to the HREOC Act, in this court, alleging that she has been unlawfully discriminated against by the department in contravention of the provisions of the DDA. On a final basis, she seeks an apology and compensation from the department, in respect of this alleged unlawful conduct as well as reinstatement in her position with the department.
The complainant concedes that there is no position, with the department, to which she can currently return. The involuntary redundancy process, involving the complainant, commenced in November of 2007. Subsequently, the applicant was attending at the department on two days each week. She has also undertaken a number of courses, since November of 2007, to assist in her redeployment, however no alternative position has been found.
During her time on the redeployment list, the complainant has been examined by a number of medical practitioners, including Dr G J Shepherd, an occupational physician. He opines as follows:
“Chandra Sluggett presents with symptoms affecting the majority of her body from the musculoskeletal system, respiratory system, cardiovascular system, gastrointestinal system as well as neurological symptoms. Her complaints have been complicated by psychological issues requiring psychiatric intervention. This has been further complicated by industrial dispute and outstanding legal issues. I note the above multiple specialist practitioners involved in her care and her description of completely altering her lifestyle at home to cope with her lethargy. Her inability to even answer the phone when it rings at work, as described above, given an indication of her perceived level of severity of this condition and one must consider if being at work at all is positive for her overall health.
Given her reported 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 is 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.”
As a result of his opinion, Dr Shepherd recommended that the complainant stay away from work for a period of six to twelve months, in order to see whether her various symptoms would settle.
I have not been advised when the complainant’s claim in the Administrative Appeals Tribunal, regarding her review entitlements under the Rehabilitation and Safety Act (Cmwlth) is likely to be finalised. As previously indicated, the applicant has utilised all her entitlements to sick leave and holiday pay.
She does however have an entitlement to seventy-two days long service leave. The complainant wishes to utilise this long service leave, in lieu of receiving it in the form of a lump sum on her termination. In addition, if the complainant is able to preserve her employment, it will enable her to remain on the redeployment list, with the potential of her obtaining an alternative position within the Commonwealth Public Service.
In support of her application for an injunction, the complainant deposes as follows:
“Termination of my employment with the Commonwealth Public Service will be detrimental to me. I will not have any income, and the termination will significantly diminish my employment opportunities. Termination will also result in an inability to access the partial invalidity pension being received by me as part of the Commonwealth Superannuation Scheme. The majority of the weekly income I receive, or am eligible to receive, is from the superannuation scheme.
I believe that if the employer is allowed to proceed with the termination, it is unlikely that I will be reinstated in my previous employment with the Commonwealth Public Service.
It is also my view that the allegations in my complain are of such a serious nature that prior to termination of my employment, an outcome should be determined regarding my discrimination complaint, and therefore believe I should remain in my position until such time as the complain has been determined by the Court.”
It is the department’s position that the application for an injunction should be dismissed. It points to the fact that the involuntary redundancy process has been in place since November 2007 and has now run its proper course. As such, there is effectively no employment position, which can be preserved for the complainant, who has properly been declared excess to the department’s employment requirements.
Although the department does not accept that any of its conduct can be properly categorised as being unlawful, pursuant to the provisions of the DDA, it submits that, if this court determines otherwise, at some time in the future, the complainant can still be properly compensated through a payment of damages, or if appropriate, by a reinstatement of her employment.
In support of its application, the department points to the fact that, if Dr Shepherd is to be accepted, the complainant is not fit, in any event, to resume any form of employment and, as such, it is meaningless for the court to make an order preserving her employment.
On the other hand, it is the complainant’s position that she sees her career future in one facet or other of the Commonwealth Public Service. As such, termination will significantly diminish her employment potential, particularly through access to the possibilities open to her of remaining on the redeployment list.
In addition, she will suffer serious economic consequences, as she will not be able to access the partial invalidity pension, which she currently receives as a result of her membership of the Commonwealth Superannuation Scheme. This benefit will lapse if her employment is terminated but not if she is technically to be considered on long service leave, until the final hearing of her application before this court.
The complainant argues that, if her employment is technically preserved, whilst she accesses her long service leave, there will be little economic consequences for the department. In addition, as she is only employed on a part-time basis of two days per week, her seventy-two days accrued long service leave, are likely to have been expended around about the time her application comes on for final hearing. The period would equate to thirty six weeks.
It is this application for an injunction with which I am dealing at the present time. The application has been listed as a matter of urgency. As yet, the department has not had an opportunity to file any answering material.
As I discussed with counsel for each of the parties, I propose fixing the matter for a final hearing as soon as five consecutive days are available. This will be in the early part of 2009. Pending that final hearing, I must determine whether or not to make the following order, which the complainant seeks:
“That the employment of the applicant be preserved and maintained until her complaint under the Human Rights and Equal Opportunities Act has been heard and determined.”[2]
[2] See application filed 29 May 2008

The applicable legal principles

Section 46PP(1) of the HREOC Act reads as follows:
“At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person.”
The ability to grant an interim injunction is a discretionary remedy. Ordinarily, the procedure is limited to orders necessary to maintain the effective exercise of the jurisdiction of the court.
A number of decisions of this court indicate that, in exercising its discretion pursuant to section 46PP, the court should apply the common law principles relating to injunctive relief.[3]
[3] See Rainsford v Group 4 Correctional Services [2002] FMCA 36; DeAlwis v Hair [2002] FMCA 357; and Beck v Liechardt Municipal Council [2002] FMCA 331
These principles are that the court should be satisfied that there is a serious question to be tried in the proceedings between the parties concerned and that the balance of convenience, between the parties, favours the granting of an injunction.
In determining whether there is an arguable case, the court is directed to examine the seriousness and integrity of the issue arising between the parties. The dispute concerned must not be so fanciful or so lacking in merit that the court would be capable of dismissing the application summarily. I do not think that this is the situation in the present case.
The complainant has a significant level of disability, which the department acknowledges. There is no doubt that the department has made some attempts to accommodate these needs, particularly through the modification of the complainant’s place of work. The complainant believes these efforts have been neither adequate nor reasonable, given the circumstances of both her employment and her disabilities.
It is the complainant’s position that employees of the department harassed her because of her disability and this led to her being victimised. She calls into question the integrity of the process by which she was found to be excess to staff requirements and asserts it was because of her complaint to HREOC and the other proceedings between the parties. In essence, it is the complainant’s position that her being found to be excess to the department’s employment requirements was vitiated by illegality.

On the other hand, the department states that the complainant became excess to requirements because of a routine organisational review, which was conducted independently of it and accordingly was one which can only be regarded as being bona fide in nature, particularly as the relevant staff union was involved in the process. Essentially the department states that the complainant’s termination is unrelated either to her complaints or disabilities.
The delegate of HREOC reached her decision on the basis of a consideration of the written submissions of each of the parties. She did not have the benefit of any viva voce evidence or of having viewed the work premises in question.
In my view, the determinative processes of HREOC and the adjudicative processes available in this court are essentially different. The hearing in this court will be more extensive in nature and will subject the respective positions of each of the parties to a greater degree of possible scrutiny. The evidence led before this court is likely to be far more extensive and diverse than the evidence available to HREOC.
It cannot be doubted that the complainant suffers a disability within the meaning of section 4 of the DDA. There are complex evidentiary disputes between the parties. As a result many witnesses are likely to be called. Both parties agree the case will take around five days to complete.
Counsel for the department has indicated to me that her client will not seek the summary dismissal of the complaint herein and has no objection to it being fixed for final hearing at this juncture.
Accordingly, given the intrinsic complexity of the various issues arising between the parties and the fact that the nature of these proceedings is significantly different to the proceedings conducted before HREOC, I am satisfied that there is a genuine issue to be tried between the parties.
Accordingly, the next issue to be considered is how the balance of convenience falls between the respective parties. It is the complainant’s position that it will be significantly inconvenient to her, if her employment with the department is terminated.
Firstly, she will lose the benefit of being on the redeployment list and so the potential to obtain an alternative position within the Commonwealth Public Service. Secondly, she will be economically prejudiced by reason of the loss of the superannuation component of her salary. This amounts to a sum of around $70.00 per week.
Thirdly and most importantly, the complainant categorises herself as a career public servant, within the Commonwealth sector. If she is terminated, she believes that it is unlikely that she will ever be able to return to employment with the Commonwealth and this will have a gravely detrimental social effect on her.
The complainant argues that, as she is prepared to utilise her accrued long service leave, there will be no significant economic consequences for the department, particularly as she is not currently entitled to any benefits in the way of worker’s compensation payments because her injury has not been accepted by the relevant authorities. It is her position that it would not be onerous for the department to allow her to access the limited advantages, which flow from being placed on the redeployment list, whilst she is technically on long service leave.
Although the complainant acknowledges that her relationship with the department is poor, it is not her position that this relationship has broken down to such a degree that it would be impossible for her to remain in the employment of the department.
In this regard, she points to the size of the department concerned; the possibility of a redeployment to another department within the Commonwealth Public Service; and the fact that she has never been placed within the higher echelons of the management of the public service. Accordingly, she asserts that her situation is not analogous to that described in McIntosh v Australian Postal Corporation[4].
[4] McIntosh v Australian Postal Corporation [2001] FCA 1012
I agree with this submission. In my view, the complainant’s employment relationship with the department has not broken down to such a degree that it would be untenable for her to continue in its employ, on the limited basis which she proposes.
It is the department’s position that the complainant’s application should take its course in the court’s processes to finalisation, without any interim injunction being made. Through its counsel, the department points out that, pursuant to section 46PO(4) of the HREOC Act, the court has the power, if it is satisfied that unlawful discrimination has occurred, to make an order requiring the complainant to be re-employed or to be awarded a sum of damages. As such, it is submitted that there will be no great prejudice to the complainant, if the injunction sought by her is not granted, as her potential remedies remain open to her.
In support of this submission, the department points to the fact that the process by which the complainant was found to be excess to its staff requirements has now played through, after being invoked in November of 2007. Quite simply, the department asserts that there is no employment to which the complainant can be reinstated.
In addition, given the current medical material before the court, relating to the complainant’s condition, it is argued that it must be doubtful that she would be able to take up any position available to her, arising from any potential redeployment.
On this basis, the department submits that the balance of convenience favours the injunction sought not being made, particularly as reinstatement remains one possible outcome, if unlawful discrimination is established. It is also the department’s position that the complainant can be properly compensated, in respect of any illegal conduct to which she has been subjected, by an award of damages.

Conclusions

Section 46PP(1) provides two grounds on which the court may base an interim injunction. Firstly, if it is found necessary to preserve a status quo which existed prior to a complaint of discrimination being made. Secondly to maintain or preserve any rights of a person, who has made a complaint of unlawful discrimination.
The complaint in this matter has been on foot since April 2007. In the period between her initial complaint and its amendment, in July of 2007, the department commenced a review of its operations. In my view, this review must be regarded as being part of the status quo pertaining to the complainant’s situation, certainly before she lodged her amended complaint.
It cannot be said that the department was not entitled to conduct this overall staffing review. The complainant submits that the decision to find her to be extraneous to staff requirement is tainted by illegality. I am not in a position to determine this issue now. However the initial bona fides of the staffing review cannot be challenged. In regards to the maintenance of any status quo, I think it is a significant thing that the review process has been completed, particularly the placement of the complainant on the redeployment list pending her redundancy if no alternative position was found for her.
The rights which the complainant wishes to preserve do not include any potential entitlement, which she has, to return to a specific position at the department, as she acknowledges her previously held position no longer exists. Rather, the complainant wishes to preserve the right to remain generally within the Commonwealth Public Service and the related entitlement to remain on the redeployment list.
It is difficult for me to assess the possibility as to whether the complainant will be successful in securing such a redeployment. If she accepts Dr Shepherd’s recommendation, it appears doubtful, as he is of the view that she should stand down from employment for a period of between six and twelve months. Accordingly, in my view, these rights are somewhat amorphous, so far as the complainant is concerned.
This leads to the complainant’s entitlement to receive a part disability payment, if she is technically considered to be on long service leave, until her application is finally determined. If she receives a redundancy and her long service leave is paid to her in a lump sum, she will lose the right to receive this payment. On this basis, the complainant contends that, if the injunction is not granted, she will lose a significant economic right.
The disadvantage to the department, if the injunction sought by the complainant is made, is that it will have to provide benefits and support to the complainant, in respect of an employment position which does not exist and after the involuntary redundancy process, designed to find an alternative posting for the complainant has finished. As far as the department is concerned the complainant’s redundancy process is completed and it would be an alteration of the status quo to make the order sought.
In my view, any rights lost to the complainant as a result of any illegality in either the department’s conduct or in the redundancy process itself can be rectified by an award of damages or, if appropriate an order for reinstatement, if and when her complaint is made out. For this reason, I have come to the view that the balance of convenience favour the injunction sought not being made.
I acknowledge that the HREOC Act is one designed to eliminate discriminatory conduct and, as such, should be interpreted benevolently. However, given the overall circumstances of this matter, on balance, I do not think it appropriate to grant the injunction sought.
Given the nature of the HREOC Act and the basis of the complainant’s case, which arises from the DDA and particularly given that the department has not as yet filed any answering documents, I think it appropriate that each party should bear their own costs.
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 seventy-two (72) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 4 June 2008