State of New South Wales (Department of Justice - Corrective Services) v Huntley
[2017] FCA 581
•26 May 2017
FEDERAL COURT OF AUSTRALIA
State of New South Wales (Department of Justice – Corrective Services) v Huntley [2017] FCA 581
Appeal from: Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 File number: NSD 866 of 2015 Judge: PERRY J Date of judgment: 26 May 2017 Catchwords: HUMAN RIGHTS – direct discrimination - whetherunlawful discrimination in employment on ground of a disability contrary to sections 5 and 15 Disability Discrimination Act 1992 (Cth) – whether failure by primary judge to identify appropriate comparator where matter not in issue at trial - whether failure to make reasonable adjustments for the aggrieved person contrary to section 5(2) –where employer did not allege at trial that making the adjustments would impose an unjustifiable hardship – where short-term return to work only put in place contrary to medical advice - whether defence in section 21A that aggrieved person unable to carry out the inherent requirements of the particular work established – where employer relied at trial upon generic documents to establish inherent requirements – whether discrimination of a nature covered by the section 21A defence – where failure by employer to comply with its policies subjected aggrieved person to a detriment and denied aggrieved person access to a benefit
DAMAGES – where no issue raised at trial as to quantum of damages – whether assessment of damages tainted by erroneous finding of breach of implied term of trust and confidence in employment contract
PRACTICE AND PROCEDURE - where issues raised for the first time on appeal– where prejudice to respondent – leave refused to raise new issues
EVIDENCE –section 79, Evidence Act 1995 (Cth) - where medical reports annexed only to affidavits of other witnesses - observations on failure to provide medical reports in admissible form
Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PH
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 15, 21A, 21B
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Evidence Act 1995 (Cth) ss 4, 73, 79
Federal Circuit Court of Australia Act 1999 (Cth) s 42
Sex Discrimination Act1984 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 15.07
Cases cited: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth Bank v Barker [2014] HCA 32; (2014) 253 CLR 169
Coulton v Holcombe (1986) 162 CLR 1
Farrington v Deputy Commissioner of Taxation [2002] FCA 1013
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68
New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174
Pauls Retail Pty Ltd v Sporte Leisure Pty Ltd [2012] FCAFC 51; (2012) 202 FCR 286
Picos v Australian Federal Police [2015] FCA 118
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Qantas Airways v Christie (1998) 193 CLR 280
Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
SZSJA v Minister for Immigration and Border Protection [2013] FCAFC 158; (2013) 308 ALR 266
Tabet v Gett [2010] HCA 12; 240 CLR 537;
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Water Board v Moustakas (1988) 180 CLR 491
Waters v Public Transport Corporation (1991) 173 CLR 349
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177
Date of hearing: 22 February and 23 February 2016, 2 March 2016 Date of last submissions: 16 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 254 Counsel for the Appellant: Mr P Menzies QC and Mr S Benson Solicitor for the Appellant: Crown Solicitor’s Office NSW Counsel for the Respondent: Ms C Ronalds SC and Ms A Perigo Solicitor for the Respondent: PCC Lawyers ORDERS
NSD 866 of 2015 BETWEEN: STATE OF NEW SOUTH WALES (DEPARTMENT OF JUSTICE - CORRECTIVE SERVICES)
Appellant
AND: CARYN HUNTLEY
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
26 MAY 2017
THE COURT ORDERS THAT:
1.Insofar as the appeal relates to ground 8 of the further amended notice of appeal, the appeal is allowed.
2.The appeal is otherwise dismissed.
3.The declaration made by the primary judge on 3 July 2015 is varied so as to read as follows:
The Department unlawfully discriminated against the applicant in breach of ss 5(2) and 15 of the Disability Discrimination Act 1992 (Cth).
4.The appellant is to pay the costs of the respondent as agreed or assessed.
THE COURT NOTES THAT:
5.The respondent conceded ground 8 of the further amended notice of appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1 INTRODUCTION
[1]
2 OVERVIEW OF CONCLUSIONS
[7]
3 BACKGROUND
[14]
3.1 Diagnosis of Crohn’s disability and initial periods on leave (June – August 2009)
[14]
3.2 Report of Dr Edwards dated 26 August 2009 for the Return to Work Plan
[17]
3.3 Arrangements to perform modified duties (August 2009 - 9 September 2010)
[20]
3.4 The meeting in March 2010
[23]
3.5 Dr Crowle’s medical assessment dated 15 June 2010 (the first Crowle report) and failure by CSNSW to comply with the Fitness to Continue Procedures
[25]
3.6 Alternative positions in correctional facilities declined in 5 July 2010
[36]
3.7 The position with the Corrections Intelligence Group and diagnosis of the IH disability
[39]
3.8 The 10 May 2011 Meeting
[53]
3.9 Events following the meeting on 10 May 2011
[60]
4 THE DECISION BELOW
[72]
4.1 Commencement of proceedings in the Federal Circuit Court
[72]
4.2 Findings on key events
[76]
4.2.1 The meeting of 10 May 2011
[77]
4.2.2 The travel restriction
[78]
4.2.3 Ms Huntley’s sick leave
[80]
4.2.4 Ms Huntley’s ability to perform duties
[81]
4.2.5 Ms Huntley’s psychological condition – causation
[82]
4.3 Findings below on the alleged breaches of the DDA and contract
[84]
5 RELEVANT PROVISIONS OF THE DISABILITY DISCRIMINATION ACT
[91]
6 CONSIDERATION
[108]
6.1 The manner in which CSNSW ran its case at trial
[108]
6.2 Issue 1: alleged failure to apply s 5, DDA (Grounds 2,3,6,7 and 7A)
[116]
6.2.1 Submissions by CSNSW on the appeal
[116]
6.2.2 Was the comparator issue raised below?
[122]
6.2.3 Should leave be granted to raise the comparator issue?
[133]
6.3 Issues 2 and 3: Failure to make reasonable adjustments (Grounds 3, 15, 16 and 17) and defence under s 21A, DDA (Grounds 4 and 5)
[140]
6.3.1 What is meant by “reasonable adjustments” under the DDA?
[140]
6.3.2 Is it open to CSNSW to contend on appeal that the adjustments would have subjected it to unjustifiable hardship? (Ground 3.2)
[150]
6.3.3 The failure to make reasonable adjustments upon Ms Huntley’s return to work in the PPO position (31 August – 20 October 2009)
[152]
6.3.3.1 Key findings below on the failure to make reasonable adjustments
[152]
6.3.3.2 Did the primary judge err in finding that CSNSW did not make reasonable adjustments in the period June 2009 – March 2010?
[154]
6.3.4 Rejection of the inherent requirements defence in s 21A of the DDA
[167]
6.3.4.1 What is meant by the inherent requirements of the particular work for the purposes of s 21A of the DDA?
[167]
6.3.4.2 Key findings with respect to the defence under s 21A
[175]
6.3.4.3 Did the primary judge err in rejecting CSNSW’s defence under s 21A?
[176]
6.3.5 The failure to make reasonable adjustments to enable Ms Huntley to continue in the CIG position (the work from home issue)
[193]
6.3.5.1 The issues
[193]
6.3.5.2 Key findings below
[195]
6.3.5.3 Were reasonable adjustments made to enable Ms Huntley to continue in the CIG position?
[196]
6.3.5.4 CSNSW’s reliance on s 21A in relation to the cessation of Ms Huntley’s position with the CIG
[201]
6.3.6 The failure to make reasonable adjustments upon Ms Huntley’s “nominal” resumption of the PPO position (11 May 2011-10 August 2011)
[204]
6.3.6.1 The Issues
[204]
6.3.6.2 Key findings below
[205]
6.3.6.3 Did the primary judge err in finding that CSNSW failed to make reasonable adjustments on Ms Huntley’s nominal return to her PPO position
[208]
6.3.6.4 Did the primary judge err in failing to uphold s 21A defence
[210]
6.4 Issue 4: Alleged failure to give reasons (Ground 7A)
[212]
6.5 Issue 5: Alleged errors in finding breaches of the contract of employment (Grounds 8-13)
[213]
6.5.1 The findings below
[213]
6.5.2 Did the primary judge err in finding that CSNSW had acted in breach of contract?
[216]
6.6 Issue 6: Alleged errors in findings as to quantum of damages (grounds 12-17 inclusive)
[225]
6.6.1 Issues with respect to damages
[225]
6.6.2 The failure to provide medical evidence in admissible form
[228]
6.6.3 Findings by the primary judge as to damages
[232]
6.6.4 Did the primary judge err in assessing damages?
[239]
7 DISPOSITION OF THE APPEAL
[254]
1. INTRODUCTION
The respondent, Ms Caryn Huntley, was employed by the appellant, the Department of Justice - Corrective Services, State of New South Wales (CSNSW). Ms Huntley instituted proceedings in the Federal Circuit Court (the Court below) against CSNSW pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) alleging that CSNSW had unlawfully discriminated against her in her employment on the grounds of her disability in breach of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) (DDA). Ms Huntley also alleged that the Department had acted in breach of her contract of employment.
It was not in issue that at all relevant times, Ms Huntley suffered (and continued to suffer) from Crohn’s Disease, a disability for the purposes of s 4 of the DDA (the Crohn’s disability) (reasons below at [4]). Nor was it in issue that at the relevant times, she suffered from Idiopathic Hypersomnolence which was also a disability for the purposes of s 4 of the DDA (the IH disability) (ibid).
The Court below found that CSNSW had engaged in direct discrimination against Ms Huntley contrary to ss 5 and 15 of the DDA. In so finding, the Court below rejected CSNSW’s defence under s 21A of the DDA that its conduct in moving to medically retire Ms Huntley was as a result of her being unable to perform the inherent requirements of her substantive position with CSNSW. The Court below also held that CSNSW had acted in breach of implied and express terms of its contract of employment with Ms Huntley. As a consequence, the Court awarded declaratory relief and damages pursuant to s 46PO(4)(d) of the AHRC Act with interest for the contraventions of the DDA and breaches of contract, and restored her leave entitlement under s46PO(4)(a).
Counsel for CSNSW identified five “real” or “significant” issues on the appeal as follows.
(1)The primary judge erred in finding at [437] that CSNSW had breached s 5 of the DDA (direct discrimination) in that his Honour failed to determine in any real sense the question of whether Ms Huntley had been treated less favourably by reason of her disability than a person in the same position without the disability in circumstances which were not materially different. In particular his Honour failed to identify the characteristics of the comparator and to assess whether Ms Huntley had been treated less favourably than such a person (Grounds 2, and 7A).
(2)Secondly, the primary judge’s findings that CSNSW had failed to make reasonable adjustments at each of the different periods in relation to the different disabilities were “demonstrably incorrect” (Grounds 3, 6, and 17).
(3)Thirdly, the primary judge effectively reversed the onus in determining whether CSNSW had failed to make reasonable adjustments (Ground 3).
(4)Fourthly, CSNSW allege that the primary judge wrongly failed to find that the defence under s 21A was made out (Grounds 4 and 5).
(5)Finally the primary judge assessed damages on the basis of demonstrably incorrect findings, namely, that:
(a)there was an implied term in the employment contract of mutual confidence which had been breached when it is properly conceded by both parties on the appeal that no such term is implied under Australian contract law; and
(b)in assessing damages the primary judge found that Ms Huntley suffered a chronic depressive disorder based on the report of the psychologist, Ms McIntyre, when Ms McIntyre advised only that in her opinion it was “possible” that Ms Huntley’s illness was chronic, i.e. not on the balance of probabilities, and the finding was contrary to the evidence of other medical practitioners to which his Honour did not avert.
(Grounds 8, 13, 14, 16 and 17)
(I note that the relationship between the grounds of appeal, on the one hand, and that each of these significant issues, on the other hand, is not in every case self-evident.)
Against this, Ms Huntley alleges that the appeal is largely an attempt by CSNSW to raise new arguments not made at trial and that she would be prejudiced if CSNSW were permitted to press those grounds. Ms Huntley also submits that in any event no error is established in the reasons of the Court below.
In addition, CSNSW confirmed at the hearing that it did not press ground 1. Grounds 9 to 12 inclusive of the amended Notice of Appeal, which take issue with his Honour’s findings as to the alleged breaches of the contract of employment, including his findings that CSNSW had acted unreasonably and arbitrarily, were not identified as key issues on the appeal and were not the subject of oral submissions. However, certain aspects of some of those grounds were addressed in written submissions and counsel for CSNSW confirmed on the last day of the appeal that CSNSW relied upon its written submissions in support of those grounds. In those circumstances, I have addressed those aspects of grounds 9 to 12 which were the subject of written submissions by CSNSW and have regarded those grounds as otherwise not pressed. Ground 8 (that the primary judge erred in finding a breach of an implied term of trust and confidence) was conceded although the parties disagreed as to whether that impacted upon the award of damages and the matter should therefore be remitted to the primary judge.
2. OVERVIEW OF CONCLUSIONS
For the reasons set out below, the appeal must be dismissed with costs. First, CSNSW sought to raise a number of issues for the first time on the appeal. These included the following:
(1)the primary judge failed to apply s 5(2) of the Act because his Honour failed to identify an appropriate comparator (issue 1);
(2)CSNSW did not discriminate against Ms Huntley contrary to ss 5(2) and 15 of the DDA by reason of a failure to make reasonable adjustments for her because to have made reasonable adjustments for Ms Huntley’s disability would have imposed upon CSNSW an unjustifiable hardship; and
(3)a challenge to previously uncontested evidence as to economic and non-economic loss suffered by Ms Huntley.
Particularly in circumstances where it is apparent that Ms Huntley would have conducted the trial differently if these matters had been raised at trial, leave (to the extent to which it was sought) to raise the new issues on the appeal should be refused.
Secondly, no error has been demonstrated in the primary judge’s findings that CSNSW had failed to make reasonable adjustments. Nor did the primary judge impermissibly reverse the onus in determining whether CSNSW has failed to make reasonable adjustments. Rather, Ms Huntley having proved that specific identifiable adjustments were available but not made, the onus shifted to CSNSW to demonstrate that making that adjustment would have imposed an unjustifiable hardship (a case which CSNSW did not run). In this regard, with respect, the submissions by CSNSW at trial and at times on appeal appeared to overlook the proposition that under the scheme of the DDA, an identifiable adjustment is effectively deemed to be a reasonable adjustment for the purposes of s 5(2) unless the employer demonstrates that the adjustment would impose an unjustifiable hardship. I note, as this example illustrates, that it is important to appreciate that the DDA enacts a complex regime utilising concepts peculiar to discrimination law which may not accord with the ordinary meaning of the terminology applied to describe those concepts. This highlights the care with which an employer relevantly must approach the discharge of its duties under the Act.
Thirdly, no error is demonstrated in the primary judge’s finding that CSNSW had failed to establish on the evidence that aspects of Ms Huntley’s work in which she could no longer engage by reason of her disability constituted inherent requirements of her work.
In the fourth place, while the primary judge did err in accepting (without argument to the contrary) the existence of an implied contractual obligation of trust and confidence and therefore in finding that it had been breached, CSNSW did not demonstrate that that error would have led to any different assessment of the quantum of the loss suffered by Ms Huntley so as to warrant remittal of the matter to the primary judge. No other errors in his Honour’s findings as to breach of contract were demonstrated, including as to serious breaches by CSNSW of its implied obligation to act consistently with its own policies.
Fifthly, in circumstances where CSNSW did not at trial challenge the evidence, including expert evidence, as to economic and non-economic loss or the quantum of those losses claimed by Ms Huntley, it cannot now challenge these matters on appeal. Nor is any error demonstrated in the primary judge’s understanding of the expert evidence.
Finally, no finding was expressly made by the primary judge as to whether CSNSW had breached s 5(1) or s 5(2) of the DDA or both; nor does the declaration made by the primary judge clarify the matter. Nonetheless, given the way that the trial was run below and reading the findings fairly, it is apparent that the primary judge held that the breaches were of s 5(2) of the DDA, being the failure by CSNSW to make reasonable adjustments. I do not accept the submission by counsel for Ms Huntley that “it can be inferred that written in invisible ink is [subsection] (1)” as well as subsection (2). In those circumstances, I consider that the appropriate course is to amend the terms of the declaratory relief granted by the primary judge so as to refer specifically to s 5(2) of the DAA.
3. BACKGROUND
1.1 Diagnosis of Crohn’s disability and initial periods on leave (June – August 2009)
Ms Huntley graduated in 2002 with a Bachelor of Social Science (Criminology). She commenced work with CSNSW as a trainee Probation and Parole Officer on 31 January 2005. At the time of instituting the proceedings below, Ms Huntley held the substantive position of Probation and Parole Officer (PPO) with CSNSW at the Campbelltown Community Offenders Support Program.
Ms Huntley began experiencing certain medical symptoms from late 2008 to mid-2009. She was diagnosed with the Crohn’s disability following surgery on 24 June 2009. Ms Huntley was declared unfit for work between 22 June 2009 and 3 July 2009. A further medical certificate from Ms Huntley’s gastroenterologist, Dr Paul Edwards, declared Ms Huntley unfit to work between 30 July 2009 and 31 August 2009 (reasons below at [20]).
As a result of the Crohn’s disability, Ms Huntley required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Ms Huntley’s access requirements could not be anticipated and were often urgent (reasons below at [21]).
1.2 Report of Dr Edwards dated 26 August 2009 for the Return to Work Plan
When Ms Huntley returned to work on 31 August 2009 she was capable of performing some duties. However she was unable to perform the field work or home visits component of her position as a result of her physical needs due to the Crohn’s disability. At CSNSW’s request, Dr Edwards prepared a report for CSNSW on 26 August 2009 to enable a suitable return to work plan (RTWP) for Ms Huntley to be implemented (reasons below at [22]). In its letter requesting advice from Dr Edwards, CSNSW wrote:
I understand that you are the treating doctor for Ms Huntley who is an employee of the Department of Correctional Services.
Ms Huntley has informed the department that she has been diagnosed with Crohn’s Disease and is currently certified unfit for work as a Probation and Parole Officer.
Ms Huntley has expressed a concern as the effects of IBD complicate and impact on her daily duties. In order to assist the Department of Corrective Services in developing a suitable return to work plan for Ms Huntley, it would be appreciated as a matter of urgency if you could answer the following questions. I have also attached a position description for Ms Huntley for your reference.
Notably the letter did not identify which of the tasks in the position description were inherent requirements. The position description that was attached to the letter was not in evidence although the assumption was made by the parties that it was the same as the position description which was later attached to the second referral to Dr Crowle (see further below at [35]).
In response to the questions asked, Dr Edwards confirmed Ms Huntley’s diagnosis as “IBD – likely to be Crohn’s Disease” and advised that it was “permanent” and that her prognosis was “long term - moderate prognosis”. With respect to the question as to how the condition would affect Ms Huntley and the workplace, Dr Edwards advised that it would be “[v]ery difficult to do home visits out of office work” and that “[i]n office [Ms Huntley] needs good access to toilets on a regular basis” (emphasis in the original). He also advised that he thought it was possible that she would be able to return to her substantive position “but needs good access to bathrooms & out of office work could pose problems.”
1.3 Arrangements to perform modified duties (August 2009 - 9 September 2010)
Ms Huntley gave evidence that she entered into an informal arrangement between August 2009 and 9 September 2010 with her then manager, Mr Morgan, to allow her to perform modified duties as a PPO. According to Ms Huntley, the adjustments to the PPO position were as follows.
(1)She did not perform home visits for the cases, or reports, allocated to her. These were either performed by her supervisor (which was usually the case) or her PPO colleagues.
(2)Her case load was reduced from over 140 hours per month to no more than 80 hours per month. She continued to be assigned “offenders” of all “risk levels”.
(3)She was permanently placed on “intake” duties which involved interviewing newly released offenders who had not yet been assigned a PPO or case manager.
(4)She was given the “additional duty of being responsible to meet with all ‘walk-ins’”, being unscheduled visits to the Campbelltown office by offenders who had not been allocated a PPO or whose officer was not available.
(5)She responded to all external enquiries from other District Offices and Parole Units which usually involved requests as to available services for particular offenders.
(6)She carried out ad hoc administrative tasks as required.
(7)She undertook further report writing and administrative tasks to relieve her colleagues who in turn were relieving her of the need to perform home visits.
On 1 September 2009, Ms Huntley and her supervisor, Mr Morgan, signed the RTWP. The plan stated that it commenced on 31 August 2009 and “ends/review” on 2 October 2009. The RTWP provided that:
SUITABLE DUTIES
(not to be exceeded beyond the limitation of the Restrictions)
1 Supervision of a small caseload of offenders including:
· Interviewing offenders
· Verifying information
· Completing relevant risk assessment and documents
· Conducting Police intelligence checks
· Administrative functions involved with supervision of offenders
2 Assisting in the event of staff absences including the following tasks:
· Interviewing offenders for staff who are absent
· Contacting offenders to arrange alternate reporting times
· Updating offender information
· Administrative functions relating to interviews (OIMS etc)
· Completing Intake Forms
· Interviewing Offenders in the capacity of intake officer
3 Completing pre-sentence reports including:
· Interviewing offenders
· Completing relevant documentation and verification
· Making appropriate assessments
4 Additional tasks allocated by supervisors and managers that do not conflict with medical restrictions.
RESTRICTIONS
1 Not to conduct duties outside of the office including home visits.
2 Ability to take appropriate bathroom breaks when needed.
REQUIREMENTS
1 Employee to adhere to normal policies and procedures of the work location. 2 Employee to immediately notify Supervisor of any arising issues (including exacerbations) with suitable duties. 3 No changes of alterations are to be made to this program without prior consultation with Supervisor. 4 Suitable duties must be meaningful, appropriate and limited to the hours and days stated on the medical certificate.
In the Court below, Ms Huntley alleged that CSNSW did not perform an appropriate workplace assessment with her for the period following her return to work in August 2009 until March 2010 and that no plan for reasonable adjustments was put in place. This was denied by CSNSW which alleged that a formal arrangement was in place for the period July 2009 to September 2010 which was a “short term, structured return to work program in accordance with medical recommendations and the agreement of all parties” (reasons below at [60]).
1.4 The meeting in March 2010
Ms Huntley alleged that in March 2010 Mr Morgan advised her that the informal arrangement could not continue in the long term due to constraints that it placed on operations in the workplace. She said that at this time no constraints were identified to her, no formal workplace assessment was conducted, and no complaints from co-workers were provided, before the decision to terminate the informal arrangement was made. Her evidence was that Mr Morgan advised that she would be referred for a medical assessment, the purpose of which was to determine what alternative positions within CSNSW she would be more suited to as a result of the restrictions on her ability to perform field visits due to the Crohn’s disability.
It was Mr Morgan’s evidence that when he spoke with Ms Huntley in March 2010 he explained the formal arrangements could not continue due to the constraints which the arrangements placed on the other PPO’s and case managers and that this was to the detriment of the office. That said, CSNSW contended in any event that Ms Huntley was informed by Mr Morgan that the arrangement was a “short term” arrangement. The primary judge said that in initial submissions CSNSW indicated that it would always have been a short term arrangement as the constraints on the workplace had a serious effect on the safety of the community. However, the primary judge held at [61] that “no evidence was provided in support of this contention, and no further submissions were made.”
1.5 Dr Crowle’s medical assessment dated 15 June 2010 (the first Crowle report) and failure by CSNSW to comply with the Fitness to Continue Procedures
On 7 May 2010 Ms Felicity Collins, OHS & IM Coordinator, CSNSW, wrote to Dr Louise Crowle, a Government Medical Officer (GMO), referring Ms Huntley for a medical assessment. In the letter attaching the referral, Ms Collins wrote relevantly that:
Reasons for Current Referral
Both Dr Edwards and Dr Ng have advised that Ms Huntley requires unrestricted access to toilet facilities on a regular basis. In order to manage her medical condition, Ms Huntley has taken extensive sick leave during the past 12 months. Accordingly, as an interim measure, the workplace has limited her to office work, no home visits, and decreased Ms Huntley [sic] required case load to meet her medical restrictions/requirements.
Dr Ng has advised that this is a permanent medical condition. Accordingly, [CSNSW] seeks clarification in relation to Ms Huntley’s current level of fitness and her prognosis for being able to perform all aspects of her substantive position.
Current Situation
Ms Huntley continues to remain in the workplace with restrictions.
Specifics for Assessment
The Department is seeking an opinion in relation to Ms Huntley’s fitness to continue as a Probation and Parole Officer in accordance with Section 25 of the Public Sector Employment and Management Act 2002. In particular, the Department seeks clarification of the following:
1.Please confirm Ms Huntley’s current diagnosis.
2.Ms Huntley is substantively employed as a Probation and Parole Officer. In your medical opinion and with reference to the attached position description could you please advise whether Ms Huntley is:
a. Currently fit for her substantive position; or
b. Temporarily unfit for her substantive position; or
c. Permanently unfit for her substantive position.
3.Should Ms Huntley be assessed as temporarily unfit for her substantive position, would you kindly comment on the following:
a. a timeframe for Ms Huntley’s return to her substantive position.
b. The temporary restrictions for Ms Huntley that you would recommend and timeframes for upgrades.
c. Any other recommendations that would assist Ms Huntley return to her substantive position.
4.Should Ms Huntley be assessed as permanently unfit for her substantive position, please advise of permanent restrictions preventing Ms Huntley from undertaking her substantive duties.
A copy of the documents given to the GMO was provided to Ms Huntley under cover of a letter signed by Joanne Frearson (then “Manager, Injury Management”, CSNSW) which advised that Ms Huntley had been referred for an assessment of her fitness for duties.
In addition to other documents, the letters attached a document described as “Department of Premiers Memorandum 2001 – 11: Fitness to Continue Procedures” (the Fitness to Continue Procedures). That document stated under the heading “B Minimum Standards for the Referral of Employees”, that a written report must always accompany any referral notice and that the report “must be submitted by the person in the agency who has the specific delegated authority to refer matters to the GMO. In all but exceptional cases, the section of the report dealing with the work performance of the employee must be undertaken by the employee’s immediate supervisor.” No report from Ms Huntley’s immediate supervisor was however provided. The Fitness to Continue Procedures also specified that:
The report must:
1.contain an agreed (where possible) position description which sets out the inherent requirements and job demands of the position;
…
3.provide factual information on how work performance is being affected, resulting in the inherent requirements and job demands of the position not being undertaken…
Despite this requirement, only the general PPO position statement was provided and no attempt was made to differentiate between those requirements said to be inherent or essential to Ms Huntley’s work and those which were not.
The Fitness to Continue Procedures also provided that:
C Consultation with Employees
It is important that discussions be held with employees when medical advice is being sought to determine whether the employees can undertake the inherent requirements and job demands of their position. This issue is particularly significant when fitness to continue referrals are initiated by the employer. Consultation with employees and sharing of referral information is fundamental to both transparency and procedural justice and promotes efficiency by allowing the employees to prepare for their assessment.
There is no evidence that any such discussions took place with Ms Huntley.
In her report dated 15 June 2010, Dr Crowle expressed the opinion first that:
DR CROWLE’S OPINION OF WORK CAPACITY
Ms Huntley is suitable to perform full time office based duties where there is unrestricted access to toilet facilities. Travel in association with work should ideally be limited to less than 30 minutes or planned such that Ms Huntley can have reliable access to toilet facilities. The information provided indicates that she has likely reached maximum medical improvement and these recommendations are likely long-term.
Secondly, Dr Crowle considered relevantly with respect to specific questions asked of her that:
2.Ms Huntley is substantively employed as a probation parole officer. In your medical opinion and with reference to the attached position description, could you please advise whether Ms Huntley is (a) currently fit for her substantive position or (b) temporarily unfit for her substantive position or (c) permanently unfit for her substantive position?
Ms Huntley is assessed as permanently unfit for the full duties of her substantive position.
She was diagnosed with inflammatory bowel disease 12 months ago and has had active management of her condition. She is assessed as being in remission however despite this she continues to have bowel symptoms which are not compatible with the performance of home visits. She requires regular and reliable access to toileting facilities. This access can be provided in a regular office environment however is not available in home visits or in travel required to undertake home visits or other work that requires her to travel extended distances/time. It is unlikely given the duration of her symptoms that this will change in the foreseeable future or in the next 12 months. My opinion is consistent with that provided by her treating specialist in the available reports.
(emphasis added)
In answer to the question “Should Ms Huntley be assessed as permanently unfit for her substantive position, please advise of the permanent restrictions preventing Ms Huntley from undertaking her substantive duties”, Dr Crowle advised that:
I have previously detailed this in my response to Question 2. Ms Huntley continues to have bowel symptoms which would limit her ability to undertake home visits. She is however currently fit to perform full time administrative duties in an office environment where there is ready access ability to toileting facilities. Ms Huntley indicated that she [sic] her preference is to continue her employment with the Department of Corrective Services and not to be medically discharged.
Neither Ms Collins who authored the referral, nor Ms Frearson who sent a copy of the referral to Ms Huntley, gave evidence below. The primary judge also noted at [264] that:
Further, there was no evidence from CSNSW that those who arranged for the referral, consulted those who, on the evidence, were relevant managers and supervisors (Mr Morgan, Ms N Smith, Mr Fallon, Ms M Miller, acting Operations Manager, Campbelltown Probation and Parole, or Ms Borg) in the preparation and transmission of the referral, and in particular the documents attached to the referral.
As to the last point, I note that attached to the first referral letter was a document described as “Position Description – Probation and Parole Officer”. However, only the position description attached to the second referral to Dr Crowle in June 2011 was in evidence. With respect to that document, the primary judge found at [267] that “[i]t is not clear on the evidence whether this was the relevant position description as at May/June 2010 (the time of the first referral to Dr Crowle, and the making of her first report).” Nonetheless it is common ground on the appeal that the parties proceeded at trial on the assumption that the position description sent to Dr Crowle with the first referral was the same as that sent to Dr Crowle with the second referral which was in evidence.
1.6 Alternative positions in correctional facilities declined in 5 July 2010
In approximately June or July 2010, CSNSW asked Ms Huntley if she would prefer to be redeployed or medically retired. It was not in issue that Ms Huntley expressed her desire to be redeployed (reasons below at [63]).
On 5 July 2010, a representative of CSNSW advised Ms Huntley that there were two alternate positions available. Both positions were in correctional facilities and required meeting with inmates in secure areas. Ms Huntley declined both positions citing their incompatibility with her physical needs as a result of the Crohn’s disability (with reference to the initial medical report) and the security requirements of the correctional facilities.
While CSNSW admitted that Ms Huntley requested redeployment and was offered two positions for redeployment within correctional facilities, it did not admit that those positions were inappropriate because of the Crohn’s disability. Rather, CSNSW submitted that the positions were a clear indication of its attempts to assist Ms Huntley in redeployment (reasons below at [63]).
1.7 The position with the Corrections Intelligence Group and diagnosis of the IH disability
On 9 August 2010, Ms Huntley submitted an Expression of Interest for a position as a Clerk Grade 7/8 Analyst with the Corrections Intelligence Group (CIG) within CSNSW (CIG position). The advertisement for the position sought expressions of interest for the position “for a period of up to 4 months” and advised that “[t]he position is responsible for undertaking analysis on information and intelligence holdings, data and incidents, with a view to identify trends in criminal activities and specific security and other critical security issues.” The selection criteria included “a proven ability to maintain confidentiality”.
In making the application, Ms Huntley said that the supervising manager of the CIG position was made aware of her sick leave record. While CSNSW did not admit that the supervisor of the CIG position was told of her sick leave record, the primary judge noted that Ms Nyree Smith, Manager of Community Corrections, admitted to giving this information to “a person at CIG” (reasons below at [64]).
On 19 August 2010 Mr Wayne Creighton, Manager, CIG, contacted Ms Huntley and discussed concerns about her sick leave record. Ms Huntley advised Mr Creighton of her diagnosis with the Crohn’s disability, the symptoms which she experienced and that it was currently in remission.
Ms Huntley was offered the CIG position on merit. Ms Huntley alleged that when she left the PPO position to take up the CIG position, she was informed by Mr Morgan that on leaving she would not be able to return. This was denied by CSNSW although consistently with what Ms Huntley says she was told, it was CSNSW’s case that she could only be given the options of medical retirement or redeployment (reasons below at [62]-[63]).
It was not in issue that Ms Huntley commenced the CIG position on 13 September 2010 and that, as a result of the position being extended, she remained in the position until in or around May 2011 (reasons below at [64]). During October 2010, Ms Huntley sent an email to Ms Wendy Lobley, Manager, Injury Management, CSNSW, in which she made an inquiry as to whether the CIG position, then due to cease around December/January, might be extended. In the ensuing email exchange, they both expressed an understanding that the CIG position “had the potential to become long term” and Ms Huntley said that she hoped it may be a long term option as she was enjoying the work.
In late 2010 and throughout 2011 Ms Huntley began to experience fatigue, constant sleepiness, exhaustion, an inability to wake from sleep and extremely long sleeps. On 29 July 2011, Ms Huntley was diagnosed with the IH disability. Prior to that time during the diagnostic process Ms Huntley took varying amounts of sick leave due to her IH disability.
In early 2011, Ms Huntley sought permission to complete office duties from home from Ms Leah Nicholson, General Manager, CIG. Ms Huntley gave the following account of that conversation:
[Ms Huntley]: “Leah, I am struggling with fatigue and exhaustion and there are days when I physically cannot get out of bed. There are days when I feel like I could fall asleep at the wheel driving to work because I am so tired. I have spoken to my Doctors about this and they are investigating it, but they don’t know what is causing it yet. It could be related to my Crohn’s disease, it may be an issue with my liver, they just don’t know yet. However, could I please be assessed to be able to work from home to assist me to cope until the Doctors figure out what is wrong?”
Miss Nicholson: “I will make some inquiries and get back to you later”.
[Ms Huntley]: “Thanks so much, Leah”.
Upon the matter being followed up by Ms Huntley, Ms Nicholson advised her by email on 4 May 2011 that:
Hi Caryn
I have made enquiries and can confirm that this is definitely not an option. Sorry for the delay I thought I had discussed this with you.
Leah
No reasons were provided.
On 22 and 23 February 2011, Ms Gail Hillyard, the Human Resources Manager of the CIG role, sent correspondence by email to Ms Lobley, Ms Nicholson and others which discussed Ms Huntley’s sick leave. Ms Huntley was not aware of this communication. Further, Ms Huntley was not approached about her sick leave while in the CIG position, or at any other time.
In an email sent on 22 February 2011 from Ms Hillyard to Ms Lobley and Mr James Smith (Regional Human Resources Manager) and copied to Ms Nicholson and others, Ms Hillyard said that:
Caryn Huntley, substantive P&P Officer, Campbelltown DO, has been seconded as an Analyst Clerk 7/8 in CIG Silverwater since 13/9/10. On reviewing her P File, I note that Ms Huntley was referred for a fitness to continue duty assessment in March 2010. The assessment was conducted on 2/6/10 and a diagnosis of crohn’s [sic] disease was confirmed. She was assessed as permanently unfit for the full duties of her substantive position.
Ms Huntley was assessed as suitable to perform full time office based duties where there is unrestricted access to toilet facilities. The assessment also concluded the travel in association with work should ideally be limited to less than 30 minutes or planned such that she can have reliable access to toilet facilities. Although the duties within CIG enable unrestricted access to toilet facilities, Ms Huntley… is required to travel more than 30 minutes to work at Silverwater. CIG management were not aware of these conditions. Ms Huntley has approached the A/GM CIG requesting approval to work from home as she is finding the travel to work tiring, often feeling like she is going to fall asleep at the wheel.
Ms Huntley has taken 50 day sick leave with medical certificate [sic] during the past 12 months including 19 days with certificate since 13/9/10. Reasons for all sick leave absences relate to Crohn’s disease.
Due to the amount a [sic] sick leave taken and her inability to travel for more than 30 minutes, Ms Huntley’s secondment at CIG can no longer be supported. Ms Huntley’s secondment ceases on 2/3/11.
In view of Ms Huntley’s assessment as permanently unfit to perform the full duties of her substantive position, could you please advise an alternative placement from 3/3/11 or earlier which better suits her medical requirements.
Mr Smith replied:
Hi Gai,
Sorry to see that Caryn is not working out. It is a bit out of my league and will take the advice of Wendy Lobley. There may be some scope in the original medical assessment if her placement in CIG didn’t work out. Unfortunately, any other work placement will probably not achieve a different result, if one could be found.
Ms Hillyard replied on 23 February 2011 to Mr Smith:
Hi James,
Yes, I spoke to Wendy yesterday. She will contact Caryn and discuss further options which may involve an assessment for fitness for duty. Caryn is currently on sick leave.
From 29 April 2011 to 7 November 2011, Ms Huntley commenced applying for a number of other jobs and submitted expressions of interest, including for a position with the NSW Police.
1.8 The 10 May 2011 Meeting
The primary judge noted that the meeting on 10 May 2011 was a “key critical event” (reasons below at [70]). The meeting was attended by Ms Huntley, Ms Hillyard, Ms Lobley and Ms Nicholson.
The primary judge summarised Ms Huntley’s evidence regarding the meeting as follows:
40. … At the meeting Ms Lobley informed Ms Huntley that the CIG position would not be further extended, in effect, due to her illness and her extended sick leave record. As such, Ms Huntley would be nominally returned to her PPO position. Ms Lobley informed Ms Huntley that CSNSW had previously intended to “medically retire” Ms Huntley in August 2010, however as she had obtained the CIG position that process did not proceed. Ms Lobley stated that Ms Huntley was sent correspondence by letter in 2010 informing her of CSNSW’s intentions... Ms Huntley alleges that she did not receive that correspondence.
41. At the meeting on 10 May 2011 Ms Lobley informed Ms Huntley that Ms Huntley had two choices, either to agree to a medical retirement or to undertake a further medical assessment. Ms Huntley was advised that as at 20 May 2011 she would be directed to go on leave pending CSNSW’s decision. Further, that as such, she did not have a position to report to following 20 May 2011. Ms Lobley further informed Ms Huntley that CSNSW would be “guided” by the results of the medical assessment as to Ms Huntley’s ability to continue working with CSNSW. Ms Huntley declined the offer of medical retirement.
42. At the meeting on 10 May 2011, Ms Huntley inquired about CSNSW’s ability to assist her in securing a position with NSW Police. Ms Lobley informed Ms Huntley that CSNSW would not assist with, or consider, an inter-agency transfer. Further, that any application by Ms Huntley for a position with NSW Police would need to be obtained on “merit”.
(references to the evidence omitted)
It was not in dispute that on 10 May 2011 prior to the meeting Ms Huntley underwent an electroencephalogram (EEG) as a part of the diagnostic process ultimately leading to the IH diagnosis. After the EEG she felt “dizzy, disoriented and generally unwell”. She sent a text message to her supervisor, Ms Janelle Farroway, to advise that she would not be attending at her work that afternoon, saying “The test has thrown me for six, so I won’t be in today. Sorry, I will be in tomorrow though”. Shortly thereafter, she received a message from her supervisor stating “Leah wants to know if there is any way u [sic] can come in today as she has a meeting for you to attend?”Ms Huntley’s evidence was that this was the first and only time that she received notice of the meeting.
CSNSW, however, contended that Ms Huntley had requested the meeting. In this regard, Ms Nicholson gave evidence that she spoke to Ms Huntley a “day or so” before the meeting and “ascertained” that she had been told about the meeting (reasons below at [127]). CSNSW also contended that it was Ms Nicholson who informed Ms Huntley that the CIG position would not continue after 20 May 2011 (reasons below at [68]). Furthermore, while CSNSW admitted that the letter had not been sent to Ms Huntley in relation to earlier plans to medically retire her, it did not admit that she was told that her CIG position would not be extended due to her disability or her sick leave record, or that CSNSW had not proceeded with earlier plans to medically retire her because she had obtained the CIG position (reasons below at [67]).
In preferring Ms Huntley’s evidence, among other things the primary judge took into account that, Ms Huntley’s account of the circumstances in which she was advised of the meeting was consistent with Ms Nicholson’s prior statement in workers compensation proceedings (reasons below at [127]). His Honour further held that:
125. Ms Huntley’s evidence was that, in a telephone conversation within minutes of this message from Ms Farroway, Ms Farroway was unable to tell her why the meeting was called. Ms Huntley’s evidence was that even when she arrived at the office, about an hour and a half later, Ms Nicholson only told her that the meeting was about “some HR thing”. Ms Huntley’s evidence was that she “confirmed” her records and could not find any prior notice of the meeting. Ms Huntley’s relevant evidence under cross-examination, to the extent that it was pursued, was clear, consistent in its detail, and remained without relevant doubt. I agree with Ms Huntley’s submissions that in cross-examination CSNSW did not put to Ms Huntley that she was untruthful in, or for that matter mistaken about, her relevant evidence …
The primary judge agreed at [142] that “the application of the rule in Browne v Dunn [(1893) 6 R 67] in the circumstances presented, emphasises the acceptance of Ms Huntley’s account in relation to this key factual dispute” but held in any event that:
140. Even without the “invitation” flowing from the rule in Browne v Dunne [sic], I find that on balance Ms Huntley’s evidence is to be preferred to that of Ms Nicholson in relation to whether Ms Huntley was given prior notice of the meeting by Ms Nicholson. Ms Nicholson’s relevant evidence was equivocal. It lacked the clarity and certainty of Ms Huntley’s evidence. In one aspect, as set out above, it confirmed Ms Huntley’s version.
Accordingly his Honour found at [143] that Ms Huntley:
(1)was not given notice of the meeting of 10 May 2011 prior to that date; and
(2)was not put on notice of the detail of the meeting in the short time prior to the meeting.
1.9 Events following the meeting on 10 May 2011
Following the meeting on 10 May 2011, Ms Huntley went home in a distressed state. She consulted Ms McIntyre for psychological counselling. She also consulted her General Practitioner, Dr Farmer, on 11 May 2011 in a “distressed” and “anxious state”, allegedly as a result of the meeting with Ms Lobley, Ms Hillyard and Ms Nicholson on 10 May 2011.
Dr Farmer issued a Workcover NSW medical certificate to CSNSW with the diagnosis of “Anxiety Adjustment disorder” on 11 May 2011 (reasons below at [374]). That certificate stated that Ms Huntley was “unfit for work” for the period 11 May 2011 to 20 May 2011. Ms Huntley was not medically retired at this time but was placed on sick-leave pending her second medical assessment (reasons below at [348]). During the period from 11 May 2011 to 15 July 2011, CSNSW applied Ms Huntley’s accrued leave entitlements. CSNSW ceased paying Ms Huntley’s salary on 18 July 2011 and placed her on leave without pay.
On 11 and 12 May 2011 respectively, Ms Huntley sent emails to Ms Lobley and Ms Nicholson requesting confirmation of what was discussed at the meeting on 10 May 2011 and what options she had. The primary judge found that it did not appear that Ms Huntley received any satisfactory response to either email (reasons below at [376]). Ms Huntley also sent an email to Ms Lobley on 12 May 2011 asking her for a copy of the letter which she had been told at the meeting had been sent to her in August 2010, and which was said to have notified her of CSNSW’s intention to proceed to her retirement on medical grounds (reasons below at [377]).
Ms Lobley’s response by email on 12 May 2011 read as follows:
Caryn
as stated I have to look back at our records prior to my time and this is why I have indicated I will re refer you for another assessment to ensure that a fair process is followed. Again if you are telling me you are fit for full duties please supply evidence that supports this. You acknowledge that you received a copy of the medical report and the restrictions are based on this report and it has been determined that you cannot resume your substantive duties.
I will organise for another assessment to make sure due process is followed the outcomes of this will be appropriately notified to you. Additionally you indicated that you medical status had changed and given the fact the report was done several months ago so I think its appropriate to re do this to determine if this is appropriate.
The fitness to for duty document can be found on the premiers Dept web site…”
(Errors in the original.)
The primary judge held at [379] that that response:
…is, at best, ambiguous and unhelpful. For example, is Ms Lobley seeking to say she was looking at relevant records prior to her “time”, and this was why she had not produced the letter? If that is the case, then without looking at the records she appears to have determined that Ms Huntley be referred for another medical assessment.
In my view, the preferred relevant explanation is, as set out earlier in this judgment, that no letter had been sent to Ms Huntley. Ms Lobley’s evidence that she arranged another medical referral “to ensure due process was followed” in the circumstances can be understood as an acknowledgement that it had not been followed in the past. The references in the email to Ms Huntley’s claims of a “changed medical status” and the fact that the report was done “several months ago” were plainly put as additional to the concern about due process.
Ms Huntley responded on 12 May 2011 directing Ms Lobley to her initial request. Ms Lobley responded on 13 May 2011 acknowledging that Ms Huntley had not received the letter with the intent to proceed with medical retirement and referring to Dr Crowle’s earlier medical report which was said to identify that she is “permanently unfit for [her] substantive position and there are restrictions.” The letter further advised that Ms Lobley is now referring Ms Huntley for further assessment to determine if she is in fact fit for her substantive position, and advised that “[i]f the report again recommends medical retirement all relevant documentation will be sent to you in line with due process.”
On 6 June 2011, Ms Huntley provided another medical certificate to CSNSW from Dr Farmer in the context of the “Workcover NSW” processes (reasons below at [389]-[390]). The medical certificate stated that Ms Huntley is “fit for pre-injury duties”, referring to the “injury” alleged by Ms Huntley as a result of the meeting on 10 May 2011 (reasons below at [390]).
As a result of the meeting on 11 May 2011, Ms Wendy Lobley, then Manager Injury Management, CSNSW, wrote a second external medical referral for Ms Huntley to determine if she was fit for her substantive duties. While the referral and covering letter are undated, the signature by the “Assistant Commissioner, OoC&HR” approving the referral is dated 20 June 2011. In her covering letter attaching the referral, Ms Lobley stated that:
BACKGROUND
Ms Huntley was substantively employed as a Probation and Parole Officer located at the Campbelltown District Office. Ms Huntley has identified that she has a Crohn’s Disease and she was previously referred for a Fitness to Continue Assessment. The outcome of that assessment was that she was unfit for the inherent requirements for her position, however she could undertake alternative duties if certain criteria could be found. Ms Huntley was able to locate an Expression of Interest (POI) that appeared to meet her requirements. However due again to high level of sick leave she struggled to attend work.
REASON FOR CRRENT REFERRAL
Recently a meeting was held with Ms Huntley as her EOI was due to finish and Ms Huntley was asking for clarification on her employment status. The amount of leave and her medical conditions were discussed and Ms Huntley identified that she had her Crohn’s disease under some control however she now had other medical issues that were being examined. …
Ms Huntly has used excessive amounts of leave in the eight months she was on an expression of interest. CSNSW has no clarity on what duties and hours would assist Ms Huntley to remain in the work place.
…
SERVICES FOR ASSESSMENT
Corrective Services NSW seeks a medical assessment and opinion in relation to Ms Huntley’s fitness undertake any employment.
Specifically, Corrective Services, NSW wishes clarification of the following:
1.In your medical opinion and with reference to the circumstances presented with this referral, please advise whether Ms Huntley is:
a) Currently fit for her substantive position; or
b) Temporarily unfit to work in her substantive position; or
c) Permanently unfit to work in her substantive position.
d) Fit to undertake any employment that she is suitable qualified for.
2.Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice with a timeframe for her return to her substantive duties. In order for this to be durable, please provide guidance to the capabilities anticipated during a graded return to his substantive duties.
3.Please comment on current treatment, including medications, and/or anything else you are aware of that would prevent or minimise further absence.
4.Should Ms Huntley be assessed as permanently unfit for his substantive position, please provide advice of permanent restrictions preventing him from undertaking his role as a Correctional Officer with CSNSW.
(Errors in the original, including erroneous references to “he” and “him”)
Among other things, a document described as “position description” was attached to the referral. However, Ms Huntley alleged in the Court below that CSNSW did not provide the “inherent requirements” of Ms Huntley’s position to Dr Crowle; nor, she alleged below, was Dr Crowle asked to consider what “reasonable adjustments” could be made to her position to enable her to continue in that position. I also note in this regard that the covering letter from Ms Lobley wrongly states that the earlier medical assessment, being Dr Crowle’s first medical report, was that Ms Huntley was “unfit for the inherent requirements for her position”, whereas Dr Crowle had earlier advised that Ms Huntley was not fit for the “full” duties of her position based upon the generic position description provided to him: see above at [32].
Ms Huntley underwent the second medical assessment with Dr Crowle on 27 July 2011. Dr Crowle was advised on 29 July 2011 by Ms Huntley of her diagnosis with the IH disability.
In her report dated 10 August 2011, Dr Crowle opined that:
1. In your medical opinion and with reference to the circumstances presented in this referral, please advise whether Ms Huntley is currently a) fit for her substantive position or b) temporarily unfit for work in her substantive position or c) fit to undertake any employment that she is suitably qualified for.
Ms Huntley is permanently unfit for the substantive position of Probation and Parole Officer. This opinion remains unchanged from that provided in June 2010. Ms Huntley is unable to perform the field requirements of her substantive position.
She is currently fit to undertake employment in an office based environment on a graded return to work plan.
2. Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice for a timeframe for return to her substantive position. In order for this to be durable, please provide guidance as to the capabilities anticipated during the graded return to the substantive duties.
Ms Huntley is medically suitable for office based sedentary work provided there is reliable access to toilet facilities. Ms Huntley’s travel arrangements need to accommodate her requirement to have reliable access to toilet facilities. Possible strategies include identification of a travel route where there are reliable places to stop and access toilet facilities if travelling by car and travel at times of day to avoid peak hour traffic. It is recommended that Ms Huntley return to work on a graded return of hours, commencing at 25 hours per week and upgrading to full hours over a 2 to 3 month period as this would be beneficial in upgrading to sustainable full time hours of work whilst she continues to establish management of her most recently diagnosed condition. Utilisation of relevant flexible work hour policies or work from home arrangements, should this be possible in any suitable position, would assist in reducing the amount of sick leave required and provide flexibility to avoid peak hour traffic travel.
Ms Huntley was offered a temporary position with NSW Police as a Senior Analyst on 14 December 2011, having applied in September 2011. She commenced work in that position on 3 January 2012. It became a permanent position on 3 January 2014. Ms Huntley formally resigned from CSNSW on 21 January 2014.
4. THE DECISION BELOW
1.10 Commencement of proceedings in the Federal Circuit Court
On 18 October 2012 Ms Huntley lodged a complaint with the Australian Human Rights Commission (AHRC) alleging contraventions of the DDA by CSNSW. By notice dated 8 May 2013 and pursuant to s 46PH(2) of the AHRC Act, a delegate of the President of the AHRC terminated the complaint.
On 5 July 2013, Ms Huntley filed an application in the Federal Circuit Court (originating application) claiming that CSNSW unlawfully discriminated against her on the ground of her disabilities including by failing to make reasonable adjustments and by denying or limiting her access to opportunities for promotion, transfer or training (originating application at [9] and [86]-[88]). In particular at [87] of her originating application, Ms Huntley alleged that:
By reason of the conduct pleaded in paragraphs 18 to 84, the Respondent has unlawfully discriminated against the Applicant in breach of section 5(1), section 5(2) and section 15(2)(a), (b) and (d) of the DDA by treating the Applicant less favourably on the ground of her disability in circumstances that are not materially different by failing to make any reasonable adjustments and in particular:
(a)by failing to adjust her job duties as a Probation and Parole Officer so she was not required to make home visits;
(b)by failing to adjust her job duties in 2011 and refusing to permit her to work from home;
(c)by failing to adjust her job duties when due to her disability she was required to take sick leave from late 2010 until 10 May 2011 and by labelling the sick leave as “excessive” without any proper or adequate exploration of the reasons for the sick leave and without identifying what disadvantages, if any, this caused in the delivery of the Applicant’s work schedule;
(d)by failing to find any other suitable position for the Applicant within the Respondent;
(e)by directing the Applicant to attend two medical assessments with Dr Louise Crowle but failing to provide appropriate information about the inherent requirements of the Applicant’s position and the type and extent of reasonable adjustments that may be required;
(f)after 20 May 2011, by directing the Applicant to not attend work;
(g)making inaccurate and misconceived assumptions about the Applicant’s disability, her capabilities and her capacity to perform certain work, especially in the decisions made by Ms Wendy Lobley.
No claim was made by Ms Huntley of unlawful discrimination with respect to her psychological condition.
The relief sought by Ms Huntley in the originating application included: declarations that the Department unlawfully discriminated against her and had breached her contract of employment; an apology pursuant to s 46PO(4)(b); and compensation pursuant to s 46PO4(d) of the AHRC Act.
1.11 Findings on key events
At [115] of his reasons, the primary judge explained that there were a number of key events on which Ms Huntley relied in support of her claims under the DDA which raised the following questions:
1) Whether CSNSW gave Ms Huntley notice of the meeting on 10 May 2011 (“the meeting of 10 May 2011”).
2) Whether Ms Huntley could travel more than 30 minutes to work (“the travel restriction”).
3) Whether Ms Huntley’s sick leave was ever discussed prior to 10 May 2011 and whether there was compliance by CSNSW with the Managing Sick Leave Policy (“Ms Huntley’s sick leave”).
4) Whether Ms Huntley was capable of holding down a full time office based position (“Ms Huntley’s capabilities in employment”).
5) Whether the conduct of CSNSW, caused Ms Huntley to suffer a significant exacerbation in her psychological condition causing her to suffer Major Depressive Disorder (“Ms Huntley’s psychological conditions”).
1.1.1The meeting of 10 May 2011
I have already set out the primary judge’s findings on the first key factual issue at [59] above. There is no appeal against those findings although as I later explain in its written submissions CSNSW seeks to attack this finding in the context of challenging the award of damages by the primary judge.
1.1.2The travel restriction
The second key factual dispute at trial concerned whether Ms Huntley could travel for more than 30 minutes to work as a consequence of the symptoms of her Crohn’s disability. The primary judge explained at [145] that this was one of the “medical issues” that Ms Hillyard said in her evidence prompted her to arrange the meeting of 10 May 2011. Ms Hillyard’s concern that Ms Huntley was driving more than 30 minutes from her home to Silverwater and vice versa was based on her having “googled the distance” (reasons below at [146]). This was a factor that led Ms Hillyard to conclude that Ms Huntley’s continued secondment to CIG would not be supported and should cease on 2 March 2011 (reasons below at [146]-[147]). Thus in her email dated 22 February 2011 (quoted at [49] above), Ms Hillyard, after referring correctly to Dr Crowle’s assessment that travel should ideally be limited to 30 minutes or alternatively planned such that she can have reliable access to toilet facilities, nonetheless concluded that Ms Huntley’s secondment at CIG could no longer be supported due to the amount of sick leave taken “and her inability to travel for more than 30 minutes”.
The primary judge found at [155] that there was nothing in Ms Hillyard’s evidence to show that she understood at the relevant time (as opposed to the time at which she gave her evidence) that Dr Crowle’s report did not state simply that Ms Huntley could not travel for more than 30 minutes, but recommended an alternative of planned trips (reasons below at [152] and [154]). Ms Nicholson, in turn, gave evidence that it was her decision not to support the extension of Ms Huntley’s placement at CIG, that she became aware of the 30 minute travel issue when Ms Hillyard brought it to her attention, and that she did not extend the secondment on that basis (reasons below at [160]). The primary judge, after referring to the ill-defined or poorly explained relevant management lines of authority in CSNSW, concluded that:
163. What can be said, on balance and ultimately, although the evidence was unclear in some aspects, is that despite her initial evidence to the contrary in cross-examination, Ms Nicholson was the manager with responsibility for the subsequent decision not to extend the secondment. It is also available to say that on her own evidence Ms Nicholson did not directly rely on Dr Crowle’s report, but on what she understood Ms Hillyard to have, ultimately, reported of it.
164. I find that Ms Nicholson’s expressed understanding of what Dr Crowle stated is factually inconsistent, or not reflective, of the entire relevant recommendation made by Dr Crowle. That is, CSNSW proceeded on the factually incorrect basis that Ms Huntley could not work in a situation which required car trips of more than 30 minutes. This plainly has relevance also to the matter of reasonable adjustments (see further below).
1.1.3Ms Huntley’s sick leave
The third key area of factual dispute between the parties identified by the primary judge concerned the question as to whether Ms Huntley’s sick leave was discussed with her prior to 10 May 2011 and whether there was compliance by CSNSW with its “Managing Sick Leave Policy”. The primary judge found on balance at [181] that “Ms Nicholson, did not speak to Ms Huntley about either of those issues prior to May 2011. I further find that Ms Nicholson did not undertake the relevant procedures in relation to Ms Huntley during this time as set out in CSNSW’s policy statement.”
1.1.4Ms Huntley’s ability to perform duties
The fourth factual dispute at trial concerned Ms Huntley’s ability during the relevant period to perform the duties of a fulltime office-based position. The dispute centred on whether Ms Lobley’s evidence that she considered that Ms Huntley’s absences from work indicated that her illness was not improving and that did not allow her to attend work full time should be accepted, or alternatively Dr Crowle’s opinion expressed in her reports in June 2010 and August 2011 that she could do so if appropriate adjustments were made. Not surprisingly, the primary judge did not accept Ms Lobley’s lay evidence on the issue. Accordingly the primary judge found at [193] that “that Ms Huntley was able to return to work in the manner explained by Dr Crowle and to perform the duties of a ‘full time office position’.”
1.1.5Ms Huntley’s psychological condition – causation
The fifth key area of factual dispute concerned the question of whether CSNSW’s conduct caused damage to Ms Huntley’s mental health. The primary judge accepted the opinion expressed in the expert report of Ms McIntyre, a trained psychologist, who had treated Ms Huntley for over four years at the time of her report dated 17 January 2014. Based upon Ms McIntyre’s report, the primary judge found that CSNSW significantly exacerbated a pre-existing Major Depressive Disorder from which Ms Huntley suffered and prolonged consequential treatment. In this regard the primary judge observed that no evidence was led from Ms McIntyre verifying her opinion. Her report was merely annexed to the affidavit of Ms Helen Carter, the solicitor for CSNSW. Nonetheless, there was no objection to the report being read into evidence nor any attempt to call or subpoena Ms McIntyre as a witness (reasons below at [198]). Further the primary judge understandably found that attempts to cross-examine Mr and Mrs Huntley in relation to the report to elicit what they thought of it or even to explain it were of no assistance to CSNSW’s case. Rather, the primary judge found that:
199. Ms McIntyre’s report, to the extent that it gives her opinion in relation to matters within her expertise, speaks for itself. In the absence of any direct challenge to Ms McIntyre, or of any other evidence to challenge or even doubt aspects of her report, which was put in evidence before the Court, leads to the situation where I accept what is stated in Ms McIntyre’s report (see Bulstrode v Trimble [1970] VR 840 (“Bulstrode”), see also Baulch, Message v Baires Contracting Pty Ltd [2011] VSC 75 (“Message”) and Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6 (“Rumney”)). As it is presented, and as it stands, Ms McIntyre’s report is not “incredible or unconvincing” (Bulstrode).
Nor were Mr and Mrs Huntley cross-examined on their evidence as to the psychological impact of the events on 10 May 2011 on Mrs Huntley. Accordingly the primary judge accepted that evidence and found (at [210]) that “the conduct of CSNSW at relevant times exacerbated Ms Huntley psychological condition for the period she claims and contributed to her difficulties as she claims.”
1.12 Findings below on the alleged breaches of the DDA and contract
CSNSW accepted at trial that it bore the onus of proving that reasonable adjustments were made at the relevant periods and, in the context of the defence in s 21A, that no further reasonable adjustments could be made (reasons below at [249]). At trial, CSNSW’s defence was that it was not obliged to put reasonable adjustments in place because Ms Huntley could not meet the inherent requirements of the position, or alternatively it attempted to reasonably accommodate Ms Huntley (reasons below at [211]). The reasons below record that CSNSW’s submissions at trial appeared to proceed on the assumption that reasonable adjustments could not be provided to Ms Huntley or could not accommodate her needs and in part that reasonable adjustments were offered and attempts made to implement them in an attempt to accommodate the medical restrictions of her “illness” (reasons below at [251]).
Ms Huntley proposed four key areas where she said that reasonable adjustments could have been made but were not. These are summarised in the reasons below at [212] as follows:
1)CSNSW’s failure to assess the adjustments put in place in September 2009 and to ascertain whether they were reasonable and could continue before advising Ms Huntley in March 2010 that they could not continue.
2)CSNSW’s failure to consider and make reasonable adjustments to the PPO role in the period of March 2010 until early July 2010 when it determined that she was substantively unfit for the PPO role.
3)The failure to make reasonable adjustments for Ms Huntley to enable her to continue in the CIG secondment.
4)The failure to consider or make reasonable adjustments for Ms Huntley in or around June 2011 when Ms Huntley was referred by Ms Lobley for a second medical assessment by Dr Crowle.
The primary judge’s conclusions with respect to the different periods may (at the risk of oversimplification) be summarised as follows.
(1)In the period from August 2009 to September 2010 (covering periods (1) and (2) above) CSNSW did not make reasonable adjustments to enable Ms Huntley to continue in the PPO position at the Campbelltown Office as the RTWP was put in place for one month only on the basis of a misunderstanding of the medical evidence, namely, that it was a temporary situation as opposed to a long term prognosis (at [231]-[233]). Furthermore, even if CSNSW acted as if the RTWP was in place for the whole period, there was no evidence of any adjustment or evaluation to determine whether the adjustments were reasonable in the circumstances. Nor did CSNSW establish that Ms Huntley could not carry out the inherent requirements of her position even if reasonable adjustments were made because they failed at the hurdle of proving the inherent requirements of her position. As to the latter, in the absence of further explanatory evidence, the generic position description did not establish the inherent requirements of her position. Nor were the inherent requirements of her position identified to Dr Crowle whose expert opinion had been sought in preparing the RTWP.
(2)CSNSW also failed to make reasonable adjustments to allow Ms Huntley to continue in the CIG secondment. Her request to work from home was a reasonable adjustment given that CSNSW’s own policy contemplated this as an example of a reasonable adjustment. Yet no decision was made on whether to allow that request. Instead CSNSW decided not to further extend Ms Huntley’s secondment on the misunderstanding that the medical advice was simply that she could not travel more than 30 minutes and that she had taken too much sick leave. CSNSW admitted that it did not make any reasonable adjustments to Ms Huntley’s work situation at the time of the decision not to extend the secondment but said that that was because the inherent requirements of the position could not be met. However, no medical assessment was made of Ms Huntley’s capacity to undertake the inherent requirements of the CIG position.
(3)CSNSW did not seek to make any reasonable adjustments to the PPO position on her “nominal” resumption of that position when she was placed on sick leave; nor was Dr Crowle advised of the inherent requirements of Ms Huntley’s position when he prepared the medical assessment. The generic position statement did not identify those requirements. The absence of any action by CSNSW to implement Dr Crowle’s second recommendation with knowledge of both disabilities was not satisfactorily explained. Ms Lobley had pre-determined that Ms Huntley should be medically retired.
The primary judge concluded on the issue of discrimination that:
436. In all, I find that CSNSW discriminated against Ms Huntley in breach of the DDA. For the reasons set out above, I agree with Ms Huntley that CSNSW failed to make reasonable adjustments for Ms Huntley to enable her to continue in the PPO position in 2010, failed to consider, let alone make, reasonable adjustments to allow her to continue in the CIG secondment, and in its determination that Ms Huntley was unfit for the position of PPO in 2011.
437. Further, given the factual findings made above, arising from the view of the evidence that I have taken, I find that CSNSW discriminated against Ms Huntley because of her disability by treating her less favourably in her employment (s.5 of the DDA, Varas v Fairfield City Council [2009] FCA 689 and Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133).
The primary judge also found that CSNSW had acted in breach of various implied terms of the contract of employment namely, the term of trust and confidence, the safe work term, the good faith term, the obligation to make reasonable adjustments, and the obligation to act consistently with CSNSW’s own policies. Furthermore the primary judge found that the conduct of CSNSW’s managers and supervisors in relation to the meeting on 10 May 2011 and its aftermath “had an adverse and significant impact on Ms Huntley’s health” (at [453]). In addition the primary judge held that:
454. I also find, in light of the evidence set out variously above, that CSNSW failed to perform obligations under the DDA and its own published policies. The failures of making reasonable adjustments, the lack of fairness in its communications with Ms Huntley were exacerbated by such conduct as putting Ms Huntley on extended leave and recreational leave, and without notification or consultation, sick leave, variously, during the period of May 2011 to July 2011 and then leave without pay in July 2011. CSNSW acted arbitrarily and capriciously in this regard. Its unexplained failure to act in good faith also gives rise to a finding that it acted unreasonably.
Finally, with respect to damages, the primary judge found first that CSNSW was to pay Ms Huntley an amount of $98,863.89 for economic loss as result of its conduct. That award was made in circumstances where the primary judge found that CSNSW had not taken any issue with the evidence or submissions relied upon by Ms Huntley in support of the award of damages sought.
With respect to non-economic loss, the primary judge accepted the unchallenged opinions expressed in Ms McIntyre’s report that the events from 10 May 2011 acted as an acute and chronic stressor exacerbating Ms Huntley’s depressive symptomology. Having regard to that evidence, his Honour found (at [471]) that “CSNSW’s conduct resulted in an acute and, on the report from Ms McIntyre, chronic impact on Ms Huntley.” The primary judge concluded that the impact of CSNSW’s actions caused Ms Huntley pain and suffering, through emotional distress and considered that an amount of $75,000 was appropriate as general damages.
5. RELEVANT PROVISIONS OF THE DISABILITY DISCRIMINATION ACT
Division 1 of Part 2 of the DDA (ss 15-21B) is concerned with discrimination on the ground of a disability in work.
Section 15 relevantly proscribes discrimination in employment, providing that:
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(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.
In Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts), Mortimer J considered that each of subs (2)(a) to (d) must be given real and separate work to do. In particular:
(1)With respect to subs (a), the conduct said to amount to discrimination could relate either to existing terms and conditions or to any changes made or proposed to the terms and conditions of employment (Watts at [59]).
(2)Subs (b) is dealing with matters outside the terms and conditions of employment. The benefits which it includes are not limited to those with a pecuniary impact on the employee’s income; nor to benefits that are permanent. Rather, “[t]hey are all matters which enhance and develop a person’s capacity and opportunity in her work” and encompass benefits from the perspective of the employer (i.e. increasing the employee’s value to the employer), the employee (i.e. which bring personal achievement and satisfaction to the employee, or both (Watts at [60]). The identification of specific benefits in subs (b) was not intended to limit or restrict what might otherwise fall within the broad concept of benefit (ibid). As such, her Honour considered that:
66. …there is no reason to exclude from the concept of “benefits associated with employment” matters such as those identified by the applicant in this case: attending for work, performing work and exercising skills, using accrued entitlements at a time and for a purpose of the employee’s choosing (as would usually be the case with entitlements, within reasonable limits) and earning ordinary income.
(see also Watts at [271]).
(3)The use of the word “detriment” in s 15(2)(d) should be taken to encompass different kinds of conduct or treatment from subs (b) (Watts at [67] 240). In this regard her Honour considered at that:
68. Aside from a nexus between the identified “detriment” and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a “detriment” within para (d) will have an immediate negative connotation: a “benefit” within para (b) will have an immediate positive connotation. A “detriment” should not be identified solely by the negative expression of what is in reality a benefit.
Accordingly, the primary judge accepted the unchallenged evidence as to the economic loss allegedly suffered by Ms Huntley save that his Honour did not allow damages in respect of an extended period of loss beyond that originally claimed where no basis had been put forward justifying that extension. Specifically, his Honour found that:
457. Ms Huntley has put evidence before the Court on which she sought to base various components of economic loss which she says she suffered as a result of CSNSW’s conduct … Ms Huntley has sought to quantify this in the Schedule of Damages, including the loss of wages, loss of leave entitlements …, “psychologist costs”, and loss of promotion opportunities. I also took Ms Huntley to submit that the “loss of promotional opportunities” focussed on the potential promotions that Ms Huntley could have applied for, and probably received, had she not been discriminated against because of her disability.
458. Ms Huntley’s submissions on economic loss stated that the damages had been calculated on the basis that her income earning potential will have recovered from the impact of CSNSW’s discriminatory conduct by 30 June 2017. I accept this submission in relation to the lost promotional opportunities, as calculated in the Schedule of Damages. However, I note that this, and the amount sought in the Schedule of Damages, made an amendment to the amount sought for “psychologist costs” of a further two years. This was not explained by Ms Huntley as being related to her “earning potential”. The application to the Court, which she did not formally seek to amend, sought an amount commensurate to two years from the date of the application, 5 July 2013. In the absence of any submissions as to the “extended” time period, I cannot be satisfied that the timeframe should be extended. In these circumstances, the appropriate amount, taking into account the amount included in the Schedule of Damages up to 10 June 2014, and calculated to extend to 5 July 2015, is $9,937.00.
459. It is important to note that CSNSW filed no evidence to satisfactorily assist the Court in this consideration, nor were any submissions made in relation to damages by CSNSW. Nor, importantly, was Ms Huntley challenged before the Court in relation to this evidence. I agree with Ms Huntley’s submission that in the circumstances there is no basis on which to not accept her relevant evidence. I do so.
460. I note Ms Huntley’s written submissions at [126]. The Schedule of Damages is attached to this judgment at Schedule 3. Having regard to that material and my findings above, I find that CSNSW is to pay Ms Huntley an amount of $98,863.89 for economic loss as result of its conduct.
(references omitted)
Finally, with respect to noneconomic loss, the primary judge accepted the evidence contained in Ms McIntyre’s report that the events from 10 May 2011 acted as an acute and chronic stressor exacerbating Ms Huntley’s depressive symptomology, prolonging the requirement for treatment, and having possibly impaired full recovery of Major Depressive Disorder. Importantly, again none of the evidence relevant to non-economic loss was challenged by CSNSW at trial. In this regard, the primary judge held that:
465. As stated above, it is the case that Ms McIntyre was not called for examination, or cross-examination. Ms Huntley says that in these circumstances her opinion, which should be seen as an “expert opinion” should be accepted. For the reasons stated above, I accepted Ms McIntyre’s report as evidence in that light.
466. Ms Huntley also relied on her own evidence to support the claim for non-economic damages in terms of the impact of CSNSW’s conduct on her after 10 May 2011 … There was no relevant cross-examination of Ms Huntley’s own evidence about the impact. There were no submissions by CSNSW that Ms Huntley’s evidence should not, in part or in full, be accepted. In all the circumstances, including in the absence of any other evidence to the contrary, I accept Ms Huntley’s evidence in this regard.
467. Mr Huntley also gave evidence on this point … It is the case that it may have been available for CSNSW to make submissions as to Mr Huntley’s lack of direct observation of some relevant events to which he made reference. However, no such submission was made. Further, such a submission could not be made in relation to his direct observation, and conduct during the relevant time. That is, the observed impact on Ms Huntley. This evidence also is accepted as supporting Ms Huntley’s claim.
(references omitted)
With respect to his Honour’s finding that Ms McIntyre’s report was unchallenged, I note that at the hearing of the appeal, the parties also tendered by consent:
(1)a letter dated 26 May 2014 from Ms Huntley’s solicitors to CSNSW giving notice of those witnesses for CSNSW who were required for cross examination, and further requesting that CSNSW’s solicitors advise “which of [Ms Huntley’s] witnesses and medical specialists, if any, you require for cross-examination”; and
(2)an email from the solicitors for CSNSW dated 30 May 2014, in which it was stated that CSNSW “do not require any of the expert witnesses for cross examination”.
With respect to his Honour’s reasons for accepting the opinions expressed in Ms McIntyre’s report notwithstanding that she personally gave no evidence, his Honour had earlier held that:
198. Ms Huntley submitted that CSNSW elected not to cross-examine Ms McIntyre. I note that Ms McIntyre’s report was not before the Court as an annexure to any affidavit by her, but to that of Ms Carter. Nonetheless, there was no objection to the report being read into evidence as an annexure to Ms Carter’s affidavit. Nor, importantly, was there any report of any attempt to call, or subpoena, Ms McIntyre as a witness.
199. CSNSW, albeit to a limited extent, sought to cross-examine Ms Huntley and Mr Huntley in relation to the report. I agree with Ms Huntley that attempts by CSNSW to, in effect, elicit what Ms Huntley and Mr Huntley thought of the report, or even to explain it, were of no assistance to CSNSW’s case. Ms McIntyre’s report, to the extent that it gives her opinion in relation to matters within her expertise, speaks for itself. In the absence of any direct challenge to Ms McIntyre, or of any other evidence to challenge or even doubt aspects of her report, which was put in evidence before the Court, leads to the situation where I accept what is stated in Ms McIntyre’s report (see Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840 (“Bulstrode”), see also Baulch, Message v Baires Contracting Pty Ltd [2011] VSC 75 (“Message”) and Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6 (“Rumney”)). As it is presented, and as it stands, Ms McIntyre’s report is not “incredible or unconvincing” (Bulstrode).
200. Ms Huntley relied on Bulstrode for the proposition that in the absence of any reason not to, evidence which is unchallenged before the Court, and which is not “incredible or unconvincing” may provide good reason to accept the evidence (see also Baulch, Message, Rumney).
201. What is of immediate note is that the issue in Bulstrode was a failure to call the deponent of an affidavit for cross-examination. In the current circumstances, Ms McIntyre did not depose her evidence in any affidavit.
202. However, her report is in evidence before the Court as a result of Ms Carter’s affidavit. Ms Carter gave evidence that she wrote to Ms McIntyre on 18 November 2013... The letter sought a “medical report” from Ms McIntyre concerning Ms Huntley’s relevant medical condition. The letter sent, as attached, various relevant documents and sought answers to specific questions. Importantly, it drew Ms McIntyre’s attention to r.15.07 of the FCCA Rules concerning expert witnesses.
203. In Ms McIntyre’s report (at HKC8), she confirmed that she had read and understood that she as “bound” by the conditions of the “Expert Witness Code of Conduct” and prepared her report in accordance with relevant articles.
204. Ms McIntyre’s report states that her expert opinion is restricted to “medical conditions which are psychological in nature”. That is, within her area of expertise (see page 3 of the report).
205. There is nothing in Ms McIntyre’s report, nor otherwise before the Court, to say that the report is “incredible or unconvincing”. In the circumstances, those parts of the report relied on by Ms Huntley now form the basis on which the relevant submissions may be made and accepted by the Court. I accept her report as evidence of Ms Huntley’s psychological condition at the relevant times.
Having regard to that evidence, his Honour concluded with respect to the claim for $100,000 in general damages that:
470. Plainly, CSNSW did not cause, by its conduct, Ms Huntley’s disabilities. The focus for current purposes must be on whether CSNSW’s conduct, as described variously above, caused further, or “contributed to”, “trauma” to Ms Huntley, and “pain and suffering” (Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (“Richardson”) at [69]–[70] and [96]–[103]). Further, if so, whether it was significant, as she now asserts, such as to support the claim for $100,000 in general damages.
471. On the evidence, I find that Ms Huntley was diagnosed as suffering depression prior to the events of May 2011. Plainly CSNSW’s conduct therefore cannot be said to have caused this condition. However, I agree, on the evidence as referred to above, that CSNSW’s conduct did result in an acute and, on the report from Ms McIntyre, chronic impact on Ms Huntley. I note Ms McIntyre’s report as to the relevant “original diagnosis” of “Major Depressive Disorder” as being “moderate in severity”. This was linked to what were described as “acute and/or chronic stressors”, which on the evidence I accept, resulted from CSNSW’s conduct as variously described above.
472. For current purposes, it is also important to note Ms McIntyre’s prognosis that the “ongoing acute and chronic stressors and health conditions are likely to sustain her diagnosis” (see page 4 of the report). I understand this to mean that the stressors on Ms Huntley, and her “health” conditions, are both relevant to the prognosis.
473. I accept that CSNSW’s conduct caused psychological injury to Ms Huntley. In the circumstances that injury was “significant”. However, this must be seen in light of Ms McIntyre’s opinion (see page 4 of the report):
“However, Mrs. Huntley’s expression of current symptomology remains linked to, and is a function of, the following factors: anti-depressant usage; active participation in treatment both medical and psychological; her reported level of current workplace functioning; and absence or presence of on-going chronic and acute stress(ors). Should any of these factors change there is likely to be a shift in Mrs. Huntley’s presentation.”
474. In all, the impact on Ms Huntley of CSNSW’s conduct has been significant in the sense of the psychological trauma she has suffered. In reaching this conclusion I have taken into account that the depression in some degree was pre-existing, the significant impact of CSNSW’s conduct, and Ms McIntyre’s diagnosis of Ms Huntley’s psychological symptomology meeting the criteria for “Major Depressive Disorder”, as being described as “mild” on balance. I also accept that the impact of CSNSW’s actions caused Ms Huntley “pain and suffering”, through emotional distress. I am of the view that an amount of $75,000 is appropriate as general damages.
1.1.20Did the primary judge err in assessing damages?
The short point is that there was no challenge at trial to the evidence relied upon by Ms Huntley of economic and non-economic loss flowing from the alleged breaches or to the quantum ascribed to those losses as set out the schedule of damages. As such it is not open to CSNSW now on appeal to challenge the primary judge’s findings based upon that material in line with the principles earlier set out, as Ms Huntley submits. Nonetheless it is helpful to deal with the specific matters identified by CSNSW in support of its grounds of appeal.
CSNSW first challenges the basis on which damages were awarded upon Ms Huntley’s nominal return to her PPO position after her position with CIG on the basis that “[f]rom 18/07/11 to 3/01/12 the Respondent, having exhausted all leave and with no capacity to be employed in her further position and in the absence of other employment to which she could be deployed, received no income. None of that occurred as a result of any breach by the Appellant.” That submission proceeds on the express assumption that Ms Huntley had no capacity to be employed in her former position. It therefore assumes that the primary judge wrongly held that CSNSW failed to make reasonable adjustments upon Ms Huntley’s nominal return to her PPO position so as to enable her to continue in that role or otherwise that he erred in rejecting the defence under s 21A. For reasons earlier given, however, CSNSW has not demonstrated any such errors: see above at [205]-[211].
Secondly, CSNSW alleges on appeal that before 11 May 2011, Ms Huntley was being treated fortnightly for psychiatric illness and there was no evidence that that would otherwise have ceased. In this regard, Ms Huntley claimed in the schedule of damages psychologist costs from 11 May 2011 to 10 June 2014 of $7312.00, citing in support of that claim:
Notes: CH1 page 594 shows costs at $125.00 per session – fortnightly intervals 75% of cost 78 sessions. Report of Alysia McIntyre page 79 of affidavit of Helen Carter.
Again no issue was taken with this claim at trial and it finds support in Ms McIntyre’s report. In particular, Ms McIntyre considered that “Mrs. Huntley’s symptoms which make up the diagnosis of Major Depressive Disorder, along with the associated acute and chronic stressors, have been work related”. It was her opinion that Ms Huntley suffered an acute stress reaction as a result of the 10 May 2011 meeting and thereafter more intense treatment strategies for the management of intense distress and increased depressive symptomology reported by Ms Huntley. Consistently with this, Ms McIntyre concluded that:
If the events, as reported to me by Mrs. Huntley, of alleged consistent, ineffective and unfair procedural processes breach public service policy, procedure, law and/or are discriminatory in nature, then it would be my professional conclusion that the event(s) from 10 May 2011 have acted as an acute and chronic stressor. Acute and chronic stressors exacerbated Mrs. Huntley’s depressive symptomology, prolonged the requirement for treatment and have possibly impaired full recovery of Major Depressive Disorder.
It follows that no error has been found in the primary judge upholding this aspect of the claim for damages. It cannot be said that there was no evidence of loss in this respect.
Thirdly, in its written submissions CSNSW alleges that there was no evidence that Ms Huntley would have been promoted in the period up to 30 June 2012 and therefore no warrant for including that in the quantum of damages. That submission must be rejected. The schedule of damages did not make a claim for damages for loss of promotion opportunities to 30 June 2012 but rather under the heading “Loss of Promotion opportunities 1 July 2012 to 10 June 2014” claimed:
Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH 1 pages 586, 595 and 596 to 598.
-$284.75 for loss of higher duties allowance 21 May 2011 to 30 June 2012.
-$1903.96 for period 1 July 2012 to 30 June 2012 [Actual pay grade Max 6 ($77,797) projected pay grade without discrimination of Minimum Grade 7 ($80,096)].
…
In turn, in her affidavit affirmed 14 February 2014 at [410], Ms Huntley deposed that:
I was paid a higher duties allowance in my CiG secondment from 13 September 2010 to 20 May 2011. A payslip for a usual fortnightly pay period during the period of the secondment appears at page 595 of CH1. As a direct result of the discrimination I have suffered I have not been able to progress through the pay grades. If reasonable accommodations had been made for my disabilities I consider I would continue at pay grade Clerk Grade Minimum 7 from 18 July 2011 until on or around September 2012. From on or around September 2012 I consider I would have been paid at maximum 7 to the date of this affidavit. A copy minimum pay classifications for these pay grades effective from 1 July 2012 and from 1 July 2013 appears at pages 596 to 598 of CH 1.
(Emphasis added)
In this regard earlier in her affidavit, Ms Huntley explained that she had been engaged with the CIG as an Intelligence Analyst Clerk Grade 7/8. That evidence explains the reference to her continuing at pay grade 7 at paragraph [410] of her affidavit. No issue was taken in submissions with this aspect of Ms Huntley’s claims by CSNSW below and it follows that the primary judge’s finding upholding this aspect of the claim identified in the schedule of damages had a proper foundation in the evidence.
In the fourth place, CSNSW submitted that:
As to the period between 10 June 2014 and 30 June 2016, there is no evidence of any promotional opportunities which were lost and inasmuch as there is no evidence that she gained promotion during her employment with the police during this period it may be inferred that she would not have gained promotion in the same period in other employment. Although Ms McIntyre, Psychologist, opined that her further treatment was required as a consequence of the events of 10 May 2011 the finding of a continuing depressive disorder was at odds with the finding of Dr Crowle who, in the report of 10 August 2011 had found that “There was no evidence of elated or depressed mood” and that her presenting problem at that time related to principally excessive fatigue and hypersomnolence. In addition her treating GP who had medically diagnosed her with Anxiety Adjustment Disorder, Dr Farmer, found the Respondent by 6 June 2011 was fit for her pre-injury duties, and had been so since 21 May 2011. Accordingly, on the probabilities, any need for continuing psychological treatment arose from events prior to 10 May 2011 and unrelated, in any event, to her work.
The submission raised two issues: whether there was any evidence of promotional opportunities lost in the relevant period: and, as counsel for CSNSW also argued at the hearing of the appeal, whether the primary judge ought to have considered and preferred other medical evidence allegedly inconsistent with the opinions expressed by Ms McIntyre. As to the first issue, the short point is that the evidence upon which Ms Huntley relied was identified in the schedule of damages and no issue was taken with that evidence or the schedule below. As to the second issue, Ms Huntley relied at trial upon the report of Ms McIntyre in support of her claim for loss of promotional opportunities as a result of the mental injury allegedly suffered by her as a consequence of the meeting of 10 May 2011, and Ms McIntyre as a psychologist was, as CSNSW accepted in oral submissions on the appeal and implicitly accepted below, qualified to give an expert opinion as to Ms Huntley’s mental injury. None of the other medical practitioners whose reports were in evidence purported to be specialists in mental health issues. Nor were Ms McIntyre or any of the other medical practitioners cross-examined or subpoenaed by CSNSW so as to put in issue Ms McIntyre’s opinions as expressed in her report. No error is therefore demonstrated in the circumstances with the primary judge having accepted Ms Huntley’s submission that there was no reason why Ms McIntyre’s expert opinions should not be accepted.
Fifthly, with respect to non-economic loss, there was no challenge at trial to Ms McIntyre’s opinion that the events from 10 May 2011 acted as an acute and chronic stressor exacerbating Ms Huntley’s depressive symptomology and that “the Major Depressive Disorder symptomology currently [i.e. January 2014] impacts Mrs Huntley’s ability to function to the full potential in her life, professionally, socially and relationally.” Nor is any issue now taken with the primary judge’s finding that CSNSW’s conduct exacerbated Ms Huntley’s depression from which she had suffered prior to the events of May 2011: reasons below at [471]. However, at the hearing of the appeal CSNSW submitted that the primary judge “found as part of the damage that in accordance with Ms McIntyre’s evidence the appellant suffered a chronic disorder” caused by the breach of the Act (emphasis added). Contrary to this, in CSNSW’s submission, Ms McIntyre’s report went no higher than to consider that it was possible that Ms Huntley would suffer a chronic disorder and argued that that did not suffice to attract compensation based upon its interpretation of the High Court’s decision in Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537.
However, the primary judge did not find that Ms Huntley had suffered a “chronic disorder” as a result of the breach. That phrase is not found in his Honour’s judgment. The finding of the primary judge relevantly at [471] was that CSNSW’s conduct resulted in an acute “and on the report from Ms McIntyre, chronic impact on Ms Huntley” (emphasis added).
In so finding, the primary judge appreciated that Ms McIntyre’s diagnosis was “linked to what were described as ‘acute and/or chronic stressors’, which on the evidence I accept, resulted from CSNSW’s conduct as variously described above” (reasons below at [471]). His Honour also explained at [472] that he understood Ms McIntyre’s assessment of Ms Huntley’s prognosis that the “ongoing acute and chronic stressors and health conditions are likely to sustain her diagnosis” to mean that “the stressors on Ms Huntley, and her ‘health’ conditions, are both relevant to the prognosis.” It is therefore clear that his Honour understood and must be taken to have factored into his assessment of damages, Ms McIntyre’s evidence that it was difficult to predict Ms Huntley’s prognosis given the length of her depressive symptomology which preceded 2009, the “on-going chronic and acute stressors present since 2009 which included health and industrial employment issues”, and research evidence that individuals suffering chronic and ongoing medical condition are at an increased risk of developing Major Depressive Disorder (DSM-IV, 2000). In those circumstances no error in this respect has been made out.
Finally, CSNSW contended that the assessment of damages was tainted by the erroneous finding by the primary judge of a breach of an alleged duty of mutual confidence. As earlier mentioned, while CSNSW did not dispute the existence of such a duty at trial, it rightly contended on the appeal that no such duty existed under Australian contract law. However, in CSNSW’s submissions, it was not possible from the reasons of the primary judge to identify any particular component relating to that alleged breach of contract, and therefore the error renders it necessary for the assessment of damages to be set aside and the matter remitted to the primary judge to assess damages according to law. In other words, senior counsel for CSNSW submitted that it is not possible to know the “potency” of the finding below that CSNSW had failed to comply with the wrongly implied term in the ultimate assessment of damages. It was not suggested that this Court was in a position to be able to undertake the task of reassessing damages if the error were made out.
However, as Ms Huntley alleges, the factual findings giving rise to the finding of a breach of the (supposed) implied term of trust and confidence by the primary judge are factual findings also held to give rise to breaches of other contractual duties and of the DDA. Specifically, as Ms Huntley contends, the failure to consider or to make reasonable adjustments was held to be in breach of the DDA (reasons below at [436] and [437]) in respect of which Ms Huntley claimed general damages pursuant to section 46PO(4)(d) of the AHRC Act in any event. Further, the requirement for Ms Huntley to take her leave entitlement from 11 May 2011 was in breach of CSNSW’s policies contrary to the implied obligation on CSNSW to comply with its policies, as was the failure by CSNSW to comply with its Managing Sick Leave Policy. Accordingly, CSNSW has not demonstrated that the error by the primary judge would have sounded in any lesser award of damages so as to warrant potentially remitting the matter to the primary judge.
7. DISPOSITION OF THE APPEAL
The appeal must be dismissed save for ground 8 of the further amended notice of appeal, and an award of costs made in favour of the respondent. Further the declaration below that the Department unlawfully discriminated against Ms Huntley in breach of ss 5 and 15 of the DDA should be amended to refer specifically to s 5(2) of that Act.
I certify that the preceding two hundred and fifty-four (254) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 26 May 2017
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