Tarr v Torrens Transit Services (North) Pty Ltd
[2008] SAEOT 12
•4 September 2008
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
TARR v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 12
Judgment of Her Honour Judge Cole, Member Mr D Shetliffe and Member Ms H Jasinski
4 September 2008
DISCRIMINATION LAW
Allegation of discrimination against an application for a position of bus operator on the basis of a pre-employment functional assessment - whether respondent acted in contravention of the Equal Opportunity Act 1984 - the rejection of the application was found to be in contravention of s67(1)(a) of the Act - appeal allowed - compensation awarded.
Equal Opportunity Act 1984, referred to.
Smith v St John Ambulance Australia - South Australia Incorporated (1992) 166 LSJS 231; Forest v Queensland Health [2007] FCA 1236; Gama v Qantas Airways No 2 [2006] FMCA 1767, considered.
TARR v TORRENS TRANSIT SERVICES (NORTH) PTY LTD
[2008] SAEOT 12Introduction
Mr Tarr complained to the Commissioner of Equal Opportunity (“the Commissioner”) that Torrens Transit (North) Pty Ltd (“Torrens Transit”) had discriminated against him contrary to the Equal Opportunity Act 1984 (“the Act”). The Commissioner attempted to conciliate the complaint, but was unsuccessful, and therefore referred the complaint to this Tribunal pursuant to s 95(8) of the Act for hearing and determination.
At the hearing before us, Mr Tarr and Dr Meegan, an occupational physician, gave evidence in the complainant’s case, and Ms Schirmer, the Director of Clinical Services of the Corporate Health Group, Ms Holland, a physiotherapist at the Corporate Health Group and Mr Lamont, the General Manager of Torrens Transit, gave evidence in the respondent’s case.
The Facts
In May 2004, Mr Tarr gained casual employment with Serco as a bus driver. Prior to that, he had driven heavy trucks from 1999 to 2003, and, prior to that, he had driven the City of Prospect’s community bus from 1983 to 1999.
In February 2005, Torrens Transit successfully tendered to provide the public bus service on a number of bus routes serviced by Serco. It was Mr Lamont’s evidence that Torrens Transit had about eight weeks from being awarded the contract to assuming the conduct of the bus service. During that time, a process was put in place to facilitate the application by Serco bus drivers for positions with Torrens Transit. The process involved the making of a written application for employment to Torrens Transit by the bus driver. The employment application form produced by Torrens Transit required the disclosure of prior workers compensation claims and medical conditions, among other things. Torrens Transit processed the employment applications. It was Mr Lamont’s evidence that Torrens Transit consulted with WorkCover and its insurer, CGU, with respect to this process. Mr Lamont said that WorkCover produced a list of injuries for Torrens Transit. They were back, neck, shoulder, upper arm, lower leg and knee injuries. If an employment application disclosed that the applicant had previously suffered one or more of the injuries on the list, that applicant was then referred to the Corporate Health Group for the purpose of undergoing a “pre-employment functional assessment”. Mr Lamont said that about 600 applications were received for about 400 positions, and that about 125 applicants were referred to the Corporate Health Group. The Corporate Health Group Pty Ltd is a company which employs doctors, physiotherapists and occupational therapists. We gather from the evidence of Ms Schirmer that the Corporate Health Group deals with a range of occupational health matters, including pre-employment assessments and rehabilitation.
The Corporate Health Group had entered into a contract with Torrens Transit to undertake the “pre-employment functional assessment” of bus drivers who applied to Torrens Transit for employment. The Corporate Health Group approached this task by considering a job analysis of bus driving (or bus operating, as it is sometimes called in the documents). The Corporate Health Group was already in possession of a job analysis of bus driving which had been generated in 1999. Consultation took place with Ms Sharon Brown, an area manager for Torrens Transit, to ensure that this job analysis was still current. A series of tests for the applicant bus drivers was then devised, having regard to the job analysis. The tests sought to measure the applicants’ physical ability to perform the duties of a bus driver and also to identify risk factors for future injury. The component of the set of tests designed to measure back strength and flexibility was a program named “Back Power”, which had been developed in Ontario, Canada, and purchased by the Corporate Health Group in 1987.
Mr Tarr completed an employment application seeking a position as a bus driver with Torrens Transit. On his application, he disclosed, among other things, the following previous injuries in the following way:
·4.11.94. Neck injury – Writing infringement notice – No time lost; light duties; no lifting.
·1998? Lower back injury – Light duties; physiotherapy; hydrotherapy.
·5.2.01 Right knee injury – no time lost.
·9.4.03 Laceration X 2 plus bruising to left eyebrow/face/nose. – 3 stiches – no time lost.
·12.6.03 Crush injury & lacerations to ® middle finger – temporary/total incapacity for work from 12.6 to 11.7.03.
As a result of the disclosure of some of those injuries, Mr Tarr was one of the applicants referred to the Corporate Health Group for a pre-employment functional assessment.
Torrens Transit arranged for Mr Tarr’s pre-employment functional assessment to take place at the Corporate Health Group on Tuesday 29 March 2005 at 9.30am. Ms Kate Holland, a physiotherapist, was to take Mr Tarr through the assessment. Prior to the assessment, Mr Tarr filled out a “Corporate Health Group Pre-Employment Questionnaire”. On this, he ticked the “yes” box for having suffered wheezing/asthma, back pain, injury, sciatica and head injury or concussion. He also referred back to his application in relation to a question as to whether he had ever lost time from work because of illness or injury, or suffered a disease or injury resulting from work.
Mr Tarr’s memory of the pre-employment functional assessment was that it took about 15 to 20 minutes. Ms Holland’s evidence was that the duration of the testing took about an hour. Ms Holland performed many of the functional assessments for Torrens Transit. She said that she had no specific recollection of Mr Tarr’s assessment, but that he had clearly completed the assessment, which would have taken about an hour. We prefer Ms Holland’s evidence on this point. Ms Holland completed a six page document as Mr Tarr undertook the assessment. One section of the report was a table headed “Summary of Assessed Capacity”. Under the heading “Physical demand”, thirteen items were listed in a table, including “range of movement, sustained squat, fitness (treadmill) and back fitness”. On the document regarding Mr Tarr, Ms Holland ticked “yes” for “requirements met” for twelve of the thirteen physical demands. In relation to “back fitness”, Ms Holland ticked “no”. Further into the document, there is some text regarding the back fitness component of the testing, and a table headed “Back Fitness Test Scores”. The table records four tests; back flexibility, abdominal strength, hip flexor flexibility and lateral strength. Each individual test seems to have been scored out of 4, with 1 being the best result and 4 the worst. Mr Tarr scored 4 for both back flexibility and abdominal strength, 1 for hip flexor flexibility and 3 for lateral strength, giving him a total score of 12. The document says that an excellent score is 4-6, fair is 7-10 and poor is 11-16. Within the document, there is a page headed “Conclusions and Recommendations”, which reads as follows:
CONCLUSIONS AND RECOMMENDATIONS:
In the opinion of the examining Therapist, Mr Tarr has completed this assessment.
He has met all the physical requirements for the position of Bus Driver with the exception of his back fitness (achieved 12/16, requirement 10/16).
Mr Tarr has demonstrated physical capacity for job demands associated with Bus Driving.
He has body mass index of 24.5 (weight relative to height). A healthy body mass index is within the range of 19-25.
Ms Holland faxed the document to Torrens Transit on the day that Mr Tarr underwent the functional assessment test.
On 31 March 2005, Mr Lamont wrote to Mr Tarr on behalf of Torrens Transit in the following terms:
EMPLOYMENT WITH TORRENS TRANSIT
I refer to the Functional Capacity Assessment that you recently attended at the Corporate Health Clinic. As you are aware, you were required to perform a number of tasks to assess your ability to perform the duties of a bus driver.
Your performance was assessed in a number of categories and we have been advised that you failed to meet the requirements in relation to Back Fitness. Unfortunately, due to your inability to meet the inherent requirements of the position of bus operator, we are unable to offer you a job at this time.
Thanks for your application.
Mr Lamont gave evidence that, at some stage of the process subsequent to sending Mr Tarr the above letter, Mr Lamont had a telephone conversation with someone from the Corporate Health Group in which he complained that the conclusion and recommendation portion of the assessment document was not set out in a convenient manner. Mr Lamont thought that it was likely that he had this telephone conversation with Ms Holland, but he could not clearly remember. Ms Holland said that she had not had a telephone conversation with Mr Lamont. Ms Schirmer, however, recalled that she had had a telephone conversation with Mr Lamont regarding the setting out of the conclusion and recommendation section of the document, both generally and in relation to Mr Tarr. We find that Mr Lamont had a telephone conversation with Ms Schirmer on this topic, and not with Ms Holland. As a result of this conversation, Ms Schirmer produced a different conclusion and recommendation page for the report in relation to Mr Tarr. This page contained a tick-the-box section, and read as follows:
CONCLUSIONS & RECOMMENDATIONS
Name: Mr Rion Tarr
ü Has not met job demands
¨ Has met job demands
ü Clinical factor/s identified
ü Please contact Sam SchirmerComments:
· Achieved a poor back fitness rating
· Injury history
· Low back strain 1998
· Neck injury 1994
· Crush injury right middle finger 2003, no restriction on work duties
Signed ……………………. Registered Occupational Therapist
Kate Holland Injury Prevention and Rehabilitation ServicesDated: 5/4/04
The signature over Kate Holland’s name was Ms Schirmer’s. Ms Holland had no part in the making of this document. It was common ground that the date of the document was wrong, and that it should have been 5/4/05. Mr Lamont was unable to say when he received that document, and Ms Schirmer was unable to say with certainty when she sent it. Clearly, however, it post dated Mr Lamont’s decision not to offer employment to Mr Tarr. Two further versions of the conclusions and recommendations in relation to Mr Tarr were generated by the Corporate Health Group. Neither of them are dated. It seems, however, that they were generated after Ms Schirmer’s version. We find, on the basis of Ms Holland’s evidence, that the signature on one was Ms Phoebe Brown’s. Ms Brown was at one time an employee of the Corporate Health Group. The conclusion on this third version of the document was that Mr Tarr had met the job demands and that clinical factor/s were identified. The signature on the fourth version of the conclusions and recommendations was that of Ms Norsworthy, who is an occupational therapist employed by the Corporate Health Group. The conclusion on that iteration of the document was that Mr Tarr had not met the job demands.
It seems from Mr Lamont’s evidence that the third document was generated as a result of contact he made with the Corporate Health Group following his receipt of the second document. This was apparently after he had received notification from the Commissioner that Mr Tarr had made a complaint. There is no evidence as to how the fourth document came into existence. It is clear from Ms Holland’s evidence that the changes in conclusions and recommendations in the three versions of the conclusions and recommendations not signed by her were not discussed with her at the time that they were made. It is also clear that Ms Holland’s testing of Mr Tarr was the only testing that took place. The different recommendations were all based upon the same data, collected by Ms Holland.
Mr Lamont’s evidence was most unclear regarding the events surrounding the generation and receipt of the varying conclusions and recommendations. We find, however, on the basis of the evidence of Mr Lamont and Ms Schirmer, that Mr Lamont’s decision not to offer Mr Tarr employment as a bus driver was based upon Mr Lamont’s understanding of Ms Holland’s version of the report. That decision was communicated to Mr Tarr by means of the letter quoted above prior to any of the other versions of the conclusions and recommendations coming into existence.
Ms Holland gave her evidence in a clear and straightforward manner. She was an impressive witness, and we accept her evidence. Ms Holland described the two tests of back fitness for which Mr Tarr obtained a poor score.
Q Now, you’ve rated Mr Tarr in this case as a four, unable to sit up with knees bent. Can you explain what that actually means the person is doing or not doing.
A Yes, they’re asked to lie in the position, head down on the bed, knees bent at 90 degrees, and asked, with the hands on their thighs, can they sit up – can they slide their hands up to their knees and do a full sit up. If they can’t do that without their feet lifting off, a grade 4.
…
Q The next test then is the straight-leg raise, this is on p.8. Again, this is one by explanation in terms of what they’re required to do rather than demonstration.
A Yes, yes.
Q What do you actually – how do you go through that test with them, what do you actually –
A With this one, they’re lying flat on their back and I will usually put my hand in the small of their backs. When you’re lying flat, you’ve got a curve in the lower part of your spine. Explain to them I actually want them to press their back down onto my hand and quite often this is a hard one to actually – for people to get the hang of if they’ve never done it, so I’ll often get them to put their hand in there as well so they can feel the pressure of their back flattening, and ask them to keep both legs straight, lift them off the bed, trying to keep their back flat. And this one again, we’ll have a couple of goes at it to try and make sure they can feel the difference between their back staying flat and their back moving.
Q Now, in this case again you rated Mr Tarr as a four. What does that actually mean he did or didn’t do.
A. It means that they’re unable to lift their legs off the bed without discomfort. It’s a grade 3 when they lift their legs their back moves immediately but there’s no pain; grade 4, their back would move immediately, plus they’d report discomfort.
Q Do you know from either your notes or memory whether this was a situation where he couldn’t lift the legs for 10 at all, or he couldn’t lift the legs without complaining of discomfort.
A No, they have to be able to lift their legs – for the grade 4, it means that they can’t lift their legs without their back moving immediately and it’s painful.
Q So it means he must have complained of pain.
A That’s right.
In giving her evidence, Ms Holland was clear about what Mr Tarr’s test results indicated. She said that he had met the job demands for a bus driver. However, he tested poorly for abdominal strength, particularly his deep abdominal muscles, and there was some instability in his lower back. These are risk factors. Mr Tarr could do exercises which would improve his abdominal muscles in a few months. Ms Holland’s evidence was consistent with her conclusions and recommendations in her report.
Both Ms Holland and Ms Schirmer saw the report provided to Torrens Transit as information for use by Torrens Transit in the making of the decision as to whether to employ a particular applicant. They did not see themselves as the decision makers in relation to the question of whether a particular person should be offered employment, or, indeed, as to whether a particular person had met the physical requirements for employment. They expected the decision in relation to both of those questions to be made by Torrens Transit.
Mr Lamont gave evidence of the way in which he used the Corporate Health Group report in relation to the 125 applicants for employment as a bus driver who underwent the Corporate Health Group assessment. Mr Lamont’s evidence was that he looked at the table on the first page of the report headed “Summary of Assessed Capacity” which listed thirteen “physical demands”. If “No” was ticked in relation to any of the physical demands other than “Fitness (Treadmill)”, then employment was not offered to the applicant. If “No” was ticked only in “Fitness (Treadmill)”, then the applicant was given information about how to improve his or her fitness. Those applicants were offered employment and asked to work on their general fitness for the next three months. Approximately three months into their employment, Mr Lamont asked those applicants who had become Torrens Transit employees if they had improved their fitness by following the advice given. All assured him that they had, and he accepted their assurances. They were not re-tested.
The first page of Ms Holland’s report of 29 March 2005 in relation to Mr Tarr had “No” ticked for “Back Fitness”. Mr Lamont said, in evidence:
Q Looking at the document p.13, that’s Mr Tarr’s assessment.
A Yes.
Q He wasn’t offered employment.
A That’s correct.
Q Just to be absolutely clear on that, the reason you didn’t offer him employment was why.
A Because it had a tick in the box for back fitness.
Q So of the 600 applicants you had you had 400 positions for them.
A Yes.
Q Of all the people you offered positions, were there any who either had no previous injuries to the affected body parts you were concerned about, or had had an injury to that body part and had passed the functional capacity assessment or had failed on the grounds of fitness alone. Were all the people you employed in one of those categories.
A Everyone we employed either had no injuries, or reported that he had them and passed the assessment.
Q Except for the fitness treadmill section.
A Yes.
Q Which you were giving people a leave pass on.
A Yes.
It seems to us from Mr Lamont’s evidence that the distinction which Ms Holland drew in her report between the ability to meet job demands, on the one hand, and risk factors, on the other, escaped Mr Lamont.
The Act
Mr Tarr alleged that Torrens Transit had discriminated against him within the meaning of s 66(a) or (c) of the Act by denying him access to employment because of a presumed impairment contrary to s 67(1)(a) of the Act. The Act provides:
s 66 For the purposes of this Act, a person discriminates on the ground of impairment -
(a)if he or she treats another unfavourably because of the other’s impairment, or a past or presumed impairment;
…
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons who have such an impairment, or on the basis of a presumed characteristic that is generally imputed to persons who have such an impairment;
…
s 67 (1)It is unlawful for an employer to discriminate against a person on the ground of impairment –
(a)in determining, or in the course of determining, who should be offered employment;
It was conceded on behalf of Torrens Transit, in its Answer, that Mr Tarr was denied employment on the basis of “an actual physical impairment” (rather than a presumed physical impairment), being “poor back fitness that rendered the Complainant unable to meet the inherent requirements of the position of a bus operator and unable to perform the duties required of a bus driver without placing himself and others at risk of harm” (see Answer, para 5).
It is clear to us from the evidence, and, we think, is conceded on the pleadings, that Torrens Transit discriminated against Mr Tarr in determining that he should not be offered employment on the basis of his poor back fitness. Poor back fitness, we consider, falls within the definition of “physical impairment” pursuant to s 5 of the Act, as it is embraced within part (c) of that definition, “the malfunctioning of any part of the body”. Clearly, Torrens Transit is vicariously liable for the actions of Mr Lamont pursuant to s 91(1). Torrens Transit has therefore discriminated against Mr Tarr contrary to s 67(1)(a) of the Act.
Torrens Transit relied upon s 71 of the Act.
s 71(2)This Division does not apply to discrimination on the ground of impairment in relation to employment if the person suffering from the impairment is not, or would not be, able -
(a)to perform adequately, and without endangering himself or herself or other persons, the work genuinely and reasonably required for the employment or position in question; or
(b)to respond adequately to situations of emergency that should reasonably be anticipated in connection with the employment or position in question.
This section of the Act was considered by the Full Supreme Court of South Australia in Smith v St John Ambulance Australia – South Australia Incorporated (1992) 166 LSJS 231. That case concerned a volunteer St John Ambulance driver who applied for a permanent position with St John Ambulance. He underwent a medical examination as part of the selection process, and it was found that he had a degree of colour blindness. On this basis, he was not offered permanent employment. It was found that the colour blindness was an impairment within the meaning of the Act. The question of whether St Johns Ambulance came within the exemption in s 71 was considered. The Full Court of the Supreme Court agreed with the analysis of the Equal Opportunity Tribunal at first instance, which it quoted at p.233 – 234:
It must be that s.71 allows the potential employer to make some reasonable assumptions concerning the capacities of the applicant employee. It would be absurd to propose that the employer must be certain that the applicant employee could not perform the likely duties: such an interpretation makes nonsense of the provision. Where s.71(2) provides that where “the person suffering from the impairment is not, or would not be able…” the section must mean, “where it appears reasonably likely that the person suffering from the impairment is not or would not be able…”: other wise the employer would be required to expose the person with the impairment to the work or the likely emergency. Clearly there must be read into s.71 some notion of a reasonable perception that the proposed work could not be adequately or safely performed. At the same time, however, any interpretation of s.71 must be such as to balance the apparent purpose of that section against the fundamental underlying purpose of the Act.
It is our view that s.71 can be relied on in this matter only if two things are demonstrated. In the first place, we must be satisfied that the work genuinely and reasonably required, and the emergencies reasonably to be anticipated, are such as to render it reasonable for the respondent to have a colour perception test, and, associated with that, we must be satisfied that, if that is the case, a reasonable means of testing colour perception is adopted. These matters we consider address the interests and concerns of the employer with which s.71 is concerned. In the second place, we consider that we must also be satisfied, if it is reasonable to have such a test and the test adopted is reasonable, that test was administered to the complainant in a reasonable manner. This, we consider, addresses the other, and primary, concern, of the interests of the applicant for the job not to be discriminated against, and to have his or her capacities judged on an individual, and not prejudiced and generalised, basis.
Cox J went on to say that the Tribunal in that case had accepted evidence that a person with the appellant’s colour deficiency could well have considerably more difficulty, or run the risk of making more or worse or earlier errors, than a person without such a deficiency.
In Mr Tarr’s case, Ms Holland, who administered the test, concluded that Mr Tarr had “demonstrated physical capacity for job demands associated with Bus Driving”. Ms Schirmer produced a document with a different conclusion without re-testing Mr Tarr. In evidence at the hearing of the matter, Ms Schirmer’s evidence was to the effect that she considered that Mr Tarr’s score on the back fitness test indicated that he was at increased risk of injury. She did not say, however, that she considered him unfit for employment by Torrens Transit. She said that she had expected to have further discussions about his fitness with Torrens Transit. That did not, however, occur. Ms Schirmer wrote a report for Torrens Transit in November 2005. Extracts from that report were provided in the copy documents. In that report, Ms Schirmer wrote, in response to questions posed by Ms Sharon Brown, of Torrens Transit:
In response to question 2
How does the back fitness test establish that Mr Tarr is at a high risk of future back injury?
The back fitness test score that Mr Tarr achieved indicates that he has some weakness in his low lumbar stabilising muscles.
In response to question 3
Do you have data or studies that show how a rating on the back fitness test correlates with the risk of future injury?
Associate Professor Jull, Hyde and Hodges have been actively involved in assessing deep spinal and abdominal muscle with ultrasound investigation. They have found that residual weak muscle following injury is a factor in ongoing and relapsing back pain and that localised treatment of this weakness with core stabilising programs leads a good recovery.
Reports dated 2 November 2007 and 10 January 2008 from Dr John Meegan, an occupational physician, were provided in the copy documents, and Dr Meegan gave evidence at the hearing. In his report of 2 November 2007, Dr Meegan said:
As to my opinion of the assessments made by the Corporate Health Group in my view their findings do not indicate he is unable to meet the inherent requirements of bus driving. Pre employment and functional assessment testing is an attempt to simulate the work requirements. He had however successfully completed the work requirements for some twelve months without difficulty. It might be argued as Corporate Health Group have outlined in their letter that he would be as [sic] some increased risk of injury compared to other workers given his history of previous back pain and the measured reduction in core muscular strength for the spine. However in practice that had not proved a problem for him and he might have been better informed of weakness of core stabilisers and involved in an exercise program to correct that.
In evidence, in relation to the testing conducted by the Corporate Health Group, Mr Meegan said:
A And so in relation to back problems in particular, it does depend on the inherent requirements of the job and what risk it might be putting others at and so I wouldn’t be relying on – you know, just to give you a short answer, I wouldn’t be relying on a set of exercises like this in isolation but would have to see them in the context of the overall assessment and the individual case.
…
A Well as I say I saw him down the track when I already knew that he’d been rejected on the basis of such exercises but to my mind it – putting myself in that position, had I been the occupational physician at the time that he was having these assessments, I would’ve been concerned that he had, for example, undertaken the job for a period of time before the test was done under a different contract and apparently successfully without any difficulty. And I would’ve taken that as the best indication that he was fit for the work. And I would’ve been very worried about excluding him on the basis of some tests in isolation.
…
Q I wanted to ask you about the assessment that you conducted of Mr Tarr. You conducted an assessment about his fitness for work, is that right.
A Well I conducted a medicolegal assessment -
Q Yes.
A - after he’d failed a –
Q Yes.
A - pre-employment assessment process.
Q To determine whether you had a view that was different.
A Yes.
Q And what exercises did you get him to do.
A As I relied on his history and all the information provided to me, and there was quite a lot of it, but also just a general medical examination; as I say, it’s not normally my role to be undertaking the actual functional assessment.
Q Did you form a view about whether he was in fact fit for driving a bus.
A Yes.
Q And what’s your view.
A I felt that he was fit to be driving a bus.
QHow significant is it, the fact that he’s in fact been employed as a driver since he was assessed by the Corporate Health Group, in any event, without incident.
A Well I think it just confirms my view that he’s fit to undertake such work.
QAnd how important was it for you to have access to the expert reports, the X-ray results and his medical file, to come to your conclusion.
AIt’s relevant. The X-ray results, believe it or not, are less important, because there’s quite a lot of research been done on radiology as a measure of pre-employment fitness and certainly for back X-rays and back radiology; it almost creates more problems than it’s worth, and it’s not very predictive of people’s - well it really isn’t predictive of people’s work fitness. But other - you know, I guess it’s important to have what information is available that has been relied upon, especially if a decision has already been made that’s controversial, so that you can form a reasonable opinion about it.
QWhat was significant in the X-ray results is there had been a consistency and no degeneration over some years.
AYes, and there had been a congenital problem that is known to be present in a significant minority of the population asymptomatically.
QIn determining whether it was your view that he was fit to be a bus driver, did you take into account that bus drivers drive passengers around and are responsible for safety on the road of other drivers and of their passengers.
AYes, although that didn’t seem to be such a major thing in his situation because he’d demonstrated the ability to do that. So it wasn’t - put it this way, with some other pre-employment assessments where I’ve been much more concerned about whether a particular medical problem might impact on the safety of others, but in his particular case, since he was acting as a bus driver without any seeming difficulty, it didn’t appear that he was putting others at significant risk.
QIf you formed the view that his medical assessment was such that he was a danger to himself or danger to passengers or danger to other users of the road, you would have said so.
AYes.
…
ALook, it’s possible that you could develop a back problem. Even a fit person could develop a back problem as a bus driver that might endanger themselves or the public. But you wouldn’t be excluding everyone from being a bus driver on the off chance that that could occur and there would be plenty of - you think there would be a time to react to that. The short answer to your question, I think, if I’m reading you correctly, is that I didn’t see there being much chance of him, with the history and all the information I had, to me, developing a significant back problem that was going to be putting himself or others at risk.
Torrens Transit did not call any medical evidence.
Applying the reasoning suggested in Smith v St John Ambulance, we are, firstly, satisfied that it was reasonable to include the Back Power back fitness test as part of the pre-employment functional assessment. Secondly, we are satisfied that the Back Power back fitness test was administered by Ms Holland in an appropriate manner. However, on the basis of Dr Meegan’s evidence and, to some extent, Ms Holland’s evidence, we do not think that it was reasonable for the score of this test to be used alone to disqualify Mr Tarr from consideration for a position as a bus driver. It seems to us, on the evidence, that it was not possible to conclude from the score on that test alone that it was reasonably likely that Mr Tarr “would not be able to perform adequately, and without endangering himself or other persons the work genuinely and reasonably required of a bus driver”, or “to respond adequately to situations of emergency that should reasonably be anticipated in connection with” the work of a bus driver. Mr Tarr’s score on the back fitness test should have been considered together with his work and injury history, and the other results he obtained on testing. Dr Meegan has now undertaken that assessment, and his conclusion is that Mr Tarr was fit to undertake the duties of a bus driver.
We do not consider that Mr Lamont’s decision in relation to Mr Tarr comes within the exemption in s 71(2). Mr Lamont did not purport to have considered the criteria in s 71(2). Mr Lamont took a very “broadaxe” approach to his interpretation of the information provided to him by the Corporate Health Group. He rejected Mr Tarr on the basis that a “no” was ticked against an item on the first page of the Corporate Health Group report (other than fitness (treadmill)). He did not attempt to undertake an overall assessment of an applicant, having regard to recent work experience and history. He did not make a balanced assessment of all of the test results in context. It seems, from the evidence, that Mr Lamont did not appreciate the difference between the fulfilment of job requirements and the presence of risk factors. He was thus in no position to assess the extent of the risk factor identified, and he did not purport to have done so.
A considerable volume of material concerning Mr Tarr’s medical history, particularly with respect to his back, was tendered at the hearing before us. It showed that Mr Tarr was diagnosed with grade 1 spondylolytic spondylolisthesis and an L5 spina bifida occulta after his back was x-rayed following an episode of back pain in 1982. He experienced further bouts of back pain in 1985, and was prescribed back exercises. He reported back pain to his general practitioner again on two occasions in 1988, and once in 1990. He reported hip pain twice in 1992. In evidence, he explained that this was attributable to the way he was getting into the old bus at the City of Prospect. He had physiotherapy for lower back pain in 1994. He reported pain in his hips and back when walking downhill in August 1995, which had resolved with chiropractic treatment by November 1995. In 1999, Mr Tarr suffered the back injury which he disclosed on his application form to Torrens Transit. This resulted in about two weeks off work from the City of Prospect, for which a WorkCover claim was made. Following this, he was advised to do back exercises and to strengthen his abdominal muscles.
Mr Tarr did not disclose the history of his back pain prior to 1999 to Torrens Transit or to the Corporate Health Group. We have been provided with a much fuller medical history than either Torrens Transit or the Corporate Health Group had. However, there is nothing in that history which would bring Mr Tarr within s 71(2) of the Act. It seems from the medical records that all of the episodes of back and hip pain settled. We have not been provided with any medical opinion to the effect that Mr Tarr’s underlying condition renders him unable to perform adequately and safely the duties of a bus driver or to respond adequately in an emergency situation.
In deciding to reject Mr Tarr’s application for employment, Torrens Transit discriminated against him on the basis of an impairment contrary to s 67(1)(a) of the Act. In relation to that discrimination, Torrens Transit does not come within the exemption in s 71(2) of the Act.
Remedy
Mr Tarr seeks the following in these proceedings (see notice of particulars):
12.1A written apology from the respondent.
12.2That the complainant receive compensation for hurt and humiliation in the sum of $10,000.
12.3That the complainant receive compensation for the economic loss for the period of unemployment he has sustained as a result of the discrimination for a period from 31 March 2005 to 6 May 2005.
12.4That the complainant receive compensation for the economic loss for the period of employment for the period from 7 May 2005 to current date being the payment of any difference between income he would have received with the respondent and income received in his current employment.
The powers of this Tribunal to make orders by way of a remedy are contained in s 96 of the Act, which provides:
S 96(1)The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a)an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising from the contravention;
(b)an order requiring the respondent to refrain from any further contravention of the Act;
(c)an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention.
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(3) The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
Apology
The complainant asks that the Tribunal order Torrens Transit to apologise to him. The Tribunal has power to make such an order pursuant to s 96(1)(c). However, in circumstances such as these, it is our view that an apology made only to comply with an order of the Tribunal would be of no real value. (see Forest v Queensland Health [2007] FCA 1236 at para 13).
Compensation for Injury to Feelings
Mr Tarr said in evidence that he was “pretty shocked” when he read the letter from Torrens Transit of 31 March 2005 saying that he was not to be offered employment. He said that he found the process of visiting Centrelink in the course of finding a new job, after being rejected by Torrens Transit, demoralising. Mr Tarr was a somewhat taciturn witness. We accept that he felt hurt and humiliated when Torrens Transit rejected his application for employment.
Mr Tarr was undertaking a course at TAFE which would have led to the awarding of an accreditation of him as a driver of heavy vehicles, whilst employed by Serco. He was unable to continue that course when he ceased working as a bus driver.
Mr Tarr said that he prefers to drive buses, rather than trucks. His next job after his job with Serco was with Croft Taxi Trucks (“Crofts”), a transport company. He is still working for Crofts. He said in evidence that he drives trucks both intrastate and interstate, but mainly intrastate. He carries heavy cargo, such as building materials. His present job is more physically demanding than bus driving. He must periodically secure his load, which occasionally involves re-chaining it. He sometimes has to climb up on to the load to secure it.
Ms O’Connor argued that Mr Tarr’s more arduous working life as a truck driver should be taken into account in the consideration of an appropriate amount of compensation. We agree. However, to some extent, that factor is offset by the fact that Mr Tarr was offered a re-assessment by Torrens Transit in the course of the conciliation process. He refused the opportunity to be re-assessed, which could possibly have led to an offer of employment. In evidence, he said that he did so out of loyalty to Crofts. He has not applied to any of the bus companies for employment, subsequent to his rejection by Torrens Transit, presumably for the same reason.
Taking all of these matters into account, we consider that an appropriate amount of compensation pursuant to s 96(1)(a) on account of non-pecuniary matters, including injury to feelings, is the sum of $2,000.
Compensation for Actual Loss
Mr Tarr was under the impression that he would have been paid more had he been employed by Torrens Transit than he had been paid by Crofts. Mr Tarr was a casual employee at Serco, on a casual rate. In the course of the hearing, it became clear that Mr Tarr had assumed that he would have continued on a casual rate had he been employed by Torrens Transit. It was accepted, however, on his behalf, by the end of the hearing, that this was not the case. The positions being awarded by Torrens Transit in the process in early 2005 were permanent positions. The rate of pay was lower than the casual rate, but benefits such as sick leave, recreation leave and long service leave applied.
A schedule of earnings from 2005 to 2009 was tendered in the complainant’s case. It showed that Mr Tarr had, in 2005, 2006 and 2007, earned approximately 25% more with Crofts than he would have earned with Torrens Transit as a permanent employee over the same period. He had, however, worked about 25% more hours.
Mr Tarr left Serco at the end of March in 2005. He was paid by Serco for a further two weeks. He began work with Crofts on 6 May 2005. He was therefore unemployed for a period of three weeks. Had he been employed by Torrens Transit, we calculate from the Schedule of Earnings provided, his gross salary would have been about $1,834.
The correct approach to the assessment of actual pecuniary loss under the Act is to “compare the position in which the claimant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent” (see Gama v Qantas Airways No 2 [2006] FMCA 1767). On the evidence before us, we conclude that Mr Tarr’s actual pecuniary loss amounts to the sum of $1,834.
Judgment will be entered for the complainant, and there will be an award of compensation for actual pecuniary loss in the sum of $1,834, and for non‑pecuniary loss, including injury to feelings, in the sum of $2,000, being a total of $3,834.
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