Smith v Director General, Department of Education and Training

[2010] NSWADT 282

CITATION:	Smith v Director General, Department of Education and Training [2010] NSWADT 282
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Graham Smith RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	101081
HEARING DATES:	3 August 2010
SUBMISSIONS CLOSED:	3 August 2010
DATE OF DECISION:	29 November 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE – disability discrimination complaint – lacking in substance, subject matter of complaint governed by Workplace Injury Management and Workers Compensation Act 1998 – victimisation complaint – lacking in substance.
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Jones and Anor v Ekermawi [2009] NSWCA 388 Divertie v Startrack Express Pty Limited [2008] NSWWCCPD Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261
REPRESENTATION:	APPLICANT In person RESPONDENT P Griffin, counsel
ORDERS:	Leave is refused for the applicant’s complaints of disability discrimination and victimisation to proceed.

REASONS FOR DECISION

Introduction

1 Mr Smith began working with the Department of Education and Training as a Training Advisor at the end of 2007. His position was located in Parramatta. Mr Smith made a workers compensation claim on 26 September 2008 for an adjustment disorder with anxiety. The insurer accepted the claim on 5 February 2009. In September 2009 Mr Smith complained to the Anti-Discrimination Board that the Department had discriminated against him on the ground of his disability by “mishandling his Workers’ Compensation Claim and the resulting Injury Management Plan because of unexplained interference in the normal process by senior management in the Department.” He said that his Injury Management Plan was mismanaged because Mr Moore and other senior managers in the Department did not honour an agreement that he should return to work at Parramatta. Instead, those managers insisted that he return to work at premises in Darlinghurst in the Sydney CBD. In Mr Smith’s view, that was not a suitable location or a suitable position for him because, among other things, of a pre-existing back injury. Mr Smith also complained that the Department victimised him for making that complaint.

2 The President of the Board declined the complaints as lacking in substance: AD Act, s 92. Mr Smith requested that the complaints be referred to the Tribunal. The complaints cannot proceed unless the Tribunal gives leave: AD Act, s 96. In deciding whether to grant leave the Tribunal should be guided by what is fair and just in the circumstances. Relevant factors include whether the complaint lacks substance, whether another more appropriate remedy is available or whether the subject matter of the complaint should be dealt with by another body: Jones and Anor v Ekermawi [2009] NSWCA 388 and AD Act, s 92(1)(a). The onus is on Mr Smith to satisfy the Tribunal that leave should be granted.

President’s reasons for declining complaint

3 The President of the Board declined the complaints on 10 May 2010 because they lacked substance. The specific reasons for declining the disability discrimination complaint were that:

You have not provided evidence, other than mere assertion, to support your allegation that the department treated you less favourably because of your disability in its management of your workers compensation claim and return to work planning.

While you may be unhappy with the department's decision about where you have been directed to return to work, the department's evidence shows that this decision was related to continuing unresolved industrial relations matters and not your disability.

While it is clear that there is an ongoing dispute between the parties this does not appear to be the appropriate jurisdiction for its resolution.

Disability discrimination complaint

In order to assess whether the complaint of disability discrimination should proceed I need to examine the legal and factual basis for that complaint. The provision which Mr Smith says has been breached is s 49D(2) of the AD Act:

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

(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
. . .
(d) by subjecting the employee to any other detriment.

. s 49B: What it means to “discriminate against an employee on the ground of disability” is set out in

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

6 Section 49B(1)(a) defines what is known as ‘direct’ discrimination. At least one of the reasons for the conduct must be the person’s disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 49B(1)(b) defines what is known as ‘indirect’ discrimination. My understanding of this complaint is that Mr Smith is complaining of ‘direct’ discrimination.

7 For Mr Smith to prove that he had been ‘directly’ discriminated against on the ground of disability in the management of his Workers’ Compensation Claim and the resulting Injury Management Plan, he would have to prove that the conduct occurred within the period of the complaint and that:

a) he has a disability as defined in s 49A and s 4 of the AD Act;

b) the Department denied him access or limited his access to a benefit or subjected him to a detriment;

c) that treatment was less favourable than the Department treated or would have treated a person without Mr Smith’s disability in the same or similar circumstances; (differential treatment) and

d) at least one of the reasons for that treatment was Mr Smith’s disability (causation).

8 Period of complaint

. The period covered by the disability discrimination complaint is 27 May 2009 to 18 September 2009. To be unlawful the alleged conduct must have occurred within that period. I have not addressed any conduct of the Department which occurred outside that period.

9 Disability. The insurers initially accepted Mr Smith’s workers compensation claim that he had suffered from an adjustment disorder with anxiety. The claim was subsequently declined on 4 June 2009 on the ground that he was no longer suffering from an injury arising from his employment and was no longer incapacitated as a result of that injury. Mr Smith did not challenge that decision. The conduct about which Mr Smith complains occurred at the end of June 2009. Even if Mr Smith was not suffering from an adjustment disorder with anxiety at that time, the definition of disability covers a disability that a person had in the past: AD Act, s 49A(c). Mr Smith also says that he was suffering from a pre-existing back injury at the time. Senior managers who made the decision to locate him at Darlinghurst say that they were not aware that he had that injury when the alleged conduct occurred. The available evidence supports a finding that, at least, Mr Smith had psychological disability in the past.

10 Conduct about which Mr Smith complains. The specific conduct about which Mr Smith complains is that the Department failed to comply with an alleged Return to Work Program which was part of Mr Smith’s Injury Management Plan. That program specified that Mr Smith should return to work at Parramatta. Despite the fact that the insurer had declined liability in early June 2009, the requirements in relation to Workplace Injury Management set out in Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 (Compensation Act) continued to apply: Compensation Act, s 41A and Divertie v Startrack Express Pty Limited [2008] NSWWCCPD. According to Mr Smith, when the management of his Return to Work Program was given to Mr Moore, he did not honour the original agreement. On 26 June 2009 a return to work conference was held at which Mr Smith was offered “suitable duties” as part of return to work program at head office in Darlinghurst. Mr Smith refused to agree to return to work at that location because he said he did not have the skills to perform those duties and was unable to perform them due to a pre-existing back injury. In addition, Mr Smith did not consider it appropriate that he work at the Darlinghurst office given that Mr Moore worked at that office and it was he who was partly responsible for his psychological injury in 2008. Mr Smith was asked to consent to Departmental employees contacting his doctor so that a future return to work program could be developed which accommodated Mr Smith’s ‘physical needs’. Mr Smith refused to give that consent. Mr Smith did not return to work, even though he received a direction on 7 August 2009 to report to work at Darlinghurst.

11 Denial of access to a benefit or being subjected to a detriment. There is a real question as to whether this conduct can be characterised as the denial of access to a benefit or being subjected to a detriment. There is no doubt that Mr Smith regarded working at Darlinghurst as detrimental. However, what constitutes “suitable duties” and the obligations on an employer to provide such duties are governed by Chapter 3 of the Compensation Act. That Chapter sets out a comprehensive legislative scheme for workers who have suffered a workplace injury to return to work. The object of the scheme is “to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries”: Compensation Act, s 41. The insurer is obliged to establish an Injury Management Plan for the worker: s 45. An Injury Management Plan is designed to manage the worker’s injury “for the purpose of achieving a timely, safe and durable return to work for the worker.” Both the employer and the worker must comply with their obligations under the Plan: s 46, s 47. A worker must make all reasonable efforts tor return to work as soon as possible and the employer must provide “suitable work” for the worker whether or not in the worker’s previous position: s 48, s 49. An employer must also establish a return to work program which is consistent with the insurer’s Injury Management Plan: s 52. Decisions may be made under Chapter 3 of the Compensation Act which a worker considers to be detrimental. If so, the worker may have a remedy under the scheme. Whether such decisions can be regarded as being subjected to a detriment within the meaning of that term in s 49D(2)(d) of the AD Act, is a question of fact. While the issue is arguable, the complaint does not lack substance on that basis.

12 Differential treatment. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. The treatment afforded to Mr Smith must be compared with the treatment that the Department would have afforded to another employee, real or hypothetical, without Mr Smith’s disability in circumstances which are the same or not materially different. It is difficult to identify circumstances which are the same or not materially different from the circumstances that apply to workers under Chapter 3 of the Compensation Act. That scheme is a specific and detailed scheme relating to rehabilitation of injured workers. In many respects, the scheme in Chapter 3 obliges employers to treat injured workers more favourably than those employers would be required to treat such a worker under the AD Act. For example, under the Compensation Act, an employer must provide a worker with “suitable duties” in certain circumstances including on a full time or part time basis and whether or not those duties are in the worker’s previous position. Under the AD Act, an employer is not required to alter the duties of a job in order to accommodate a person with a disability in any circumstances: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57].

13 Chapter 3 provides a legislative scheme specifically for people who have suffered workplace injuries. The scheme places obligations on employers which they are not subject to under the AD Act. In those circumstances a comparison cannot be made between how a worker with a disability who is subject to that scheme was treated and how a worker without a disability who was not subject to that scheme would have been treated. In addition, since the subject matter of Mr Smith’s complaint is governed by Chapter 3 of the Compensation Act, Mr Smith may have had access to remedies under those provisions through the Workers Compensation Commission. It is more appropriate for the subject matter of this complaint to have been dealt with by that body. In all the circumstances, it is not fair or just for the disability discrimination complaint to proceed.

Victimisation complaint

14 Mr Smith alleges that by writing a letter dated 11 October 2009 directing him to return to work, the Department was victimising him for having lodged a complaint of disability discrimination. Section 50 of the AD Act states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

15 In order to substantiate his victimisation complaint, Mr Smith would have to prove that the writing of the 11 October letter amounts to a detriment and a reason for writing that letter was that Mr Smith alleged that the Department had discriminated against him on the ground of his disability.

16 The 11 October 2009 letter from Mr Moore stated, in part, that:

I refer to your letter to Mr Paul Carmody, staff support officer dated 6 October 2009 enquiring of any suitable duties at Parramatta office. As you are aware, on 7 August 2009, I wrote to you directing you to report . . to level 12, 1 Oxford St, Darlinghurst in your capacity as a Training Advisor Clerk 5/6.

You have received two previous letters . . to this effect. . .

I repeat the direction I made to you on 7 August 2009 to report to level 12, 1 Oxford St, Darlinghurst on your return to duty.

I also direct you to provide outstanding leave forms . .

Pursuant to clause 6 of the Department of Education and Training Code of Conduct 2004 I have the authority to issue directions which together with official guidelines concerning the performance of your duty, you are required to adhere to and comply with.

Accordingly I hereby direct you to:

Immediately resume duty and if unable to do so you are required to notify me of the reason of your current absence and the date you will be able to resume duty;

Complete and submit a leave form together with supporting documentation for any period of absence;

Produce a certificate from a duly qualified medical practitioner to support all sick leave absences, regardless of the period of the absence, this includes single day absences;

I direct you to contact me by close of business on Friday 16 October 2009 to advise me of your intention in relation to your employment.

Your compliance with this direction will be monitored. You should understand that if you fail to comply with this direction, this will result in remedial and disciplinary action or both. However, I expect that such action will not be necessary and that you will comply and participate actively in all the corporate interests of the Directorate and the Department.

17 Detriment.

The letter foreshadows adverse consequences for Mr Smith if he does not comply with the directions contained in the letter. I accept for the purposes of these proceedings that the 11 October letter constitutes a detriment to Mr Smith.

Some of the previous correspondence to which Mr Moore was referring were letters dated 7 and 21 July 2009. The 7 July letter stated, in part, that:

I have now been informed that your benefits from GIO ceased on 6 July 2009. I would like to advise you that you are required to apply for leave from the Department if you are unable or unwilling to attend Training Services, Level 12, 1 Oxford St Darlinghurst.

. . .

Can you please contact me . . . regarding your intention to return to work at 1 Oxford St Darlinghurst or to continue on leave?

19 The 21 July letter stated, in part, that:

I would like to remind you that you are required to formally apply for leave from the Department if you are unable or unwilling to attend Training Services Level 12, 1 Oxford St Darlinghurst.

. . .

Can you please let me know next week . . regarding your intention to return to work at 1 Oxford St Darlinghurst or to continue on leave?

20 Causation

. Mr Smith submitted that the October letter threatened more serious consequences than the July correspondence and that for that reason it can be inferred that it was prompted by his complaint to the Board. There are two reasons that inference may not be available. The first is that Mr Smith had not complied with the directions in the July letters, so it is not surprising that the October letter foreshadowed more severe consequences than those foreshadowed in the earlier correspondence. The second is that the inference that Mr Smith says is open is not available if Mr Moore was not aware of the complaint when he wrote the letter.

21 The Board notified the Department of the disability discrimination complaint on 2 October 2009. In a letter dated 5 May 2010, the Department provided detailed information about what happened to the Board’s letter after it was received: President’s Report, page 156. The Department said that the complaint remained with the Director of Legal Services from 7 October 2009 until 9 November 2009. The Director then referred the complaint to David Collins, General Manager, State Training Services. Mr Moore was advised of the complaint on 15 January 2010 after the complaint of victimisation had been made. The Department provided some documentary evidence in support of those assertions including an email from the Director of Legal Services to David Collins dated 9 November 2009. If that evidence is accepted, Mr Moore could not have written the 11 October 2009 letter “on the ground that” Mr Smith had lodged a complaint of discrimination because he was not aware that he had lodged such a complaint at that time. In my view, it is highly likely that the Department would be able to prove that Mr Moore was not aware of the disability discrimination complaint when her wrote the 11 October letter. In addition, it is not surprising that a more serious letter was written in Ocotber as Mr Smith had not complied with two earlier directions. On those grounds, the complaint lacks substance and it would not be fair or just for it to proceed.

Leave is refused for the applicant’s complaints of disability discrimination and victimisation to proceed.