Taylor v Codan Ltd - [2005] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
TAYLOR v CODAN LTD
Reasons for Decision of His Honour Judge Kitchen, Member Altman and Member Shetliffe
1 July 2005
DISCRIMINATION LAW - STATE PROVISIONS - SOUTH AUSTRALIA - DISCRIMINATION ON OTHER GROUNDS
Discrimination in employment on the ground of impairment - risk that complainant would endanger himself if employed - discrimination exempted by s71(2) of Equal Opportunity Act 1984
Equal Opportunity Act 1984, referred to.
Smith v St John Ambulance Australia - South Australia Incorporated (1992) 166 LSJS 231, applied.

TAYLOR v CODAN LTD
[2005] SAEOT 1

The complainant made a complaint to the Commissioner for Equal Opportunity alleging that the respondent had discriminated against him contrary to ss66, 67 and 69 of the Equal Opportunity Act 1984 (the Act). The Commissioner, pursuant to s95(1) of the Act, declined to recognise the complaint as one upon which action should be taken by the Commissioner and gave notice of that decision to the complainant. The complainant required the Commissioner to refer, and pursuant to s95(8)(c) of the Act the Commissioner has referred, the matter of the complaint to this Tribunal for hearing and determination.
The substance of the complaint is that on 17 January 2002 the respondent refused to further consider the complainant for employment as a test technician with the respondent, and declined to provide any further work to him in that position, which as an employee of a labour hire company he had had with the respondent for the preceding approximately 18 months, on the grounds that he had an inguinal hernia.
The respondent does not dispute that because the complainant had an inguinal hernia, it determined to not further proceed with its intention to offer to him an employee position as a test technician and it also declined to continue to make work available to him as a test technician employed by the labour hire firm. The respondent’s case is that the inguinal hernia was an impairment of such a nature that the complainant would not be able to perform adequately, and without endangering himself or other persons, the work genuinely and reasonably required for employment in the position of test technician and, therefore, the discrimination against the complainant was one to which the Act does not apply.
The complainant represented himself before the Tribunal and he gave evidence. The respondent was represented by counsel; the respondent called a medical practitioner, Gavin James Shepherd (Dr Shepherd) and Louise Claire Cross (Ms Cross) who in January 2002 held the post of Group Occupational Health and Safety Manager with the respondent, a post which included responsibility for ensuring the respondent’s compliance with applicable regulatory requirements and that it provided employees with a safe working environment, a field of responsibility that she had had since becoming an employee of the respondent in 2000. Ms Cross was later appointed to her present position of Human Resources Manager an expanded role which includes her previous duties.
The respondent designs, manufactures, sells and services high frequency (HF) radios, satellites and microwave transceivers in its facilities in Newton SA and in Brisbane. In Newton it had approximately 250 employees, up to five of whom were provided by a labour hire firm.
The complainant was born in 1955. He matriculated in 1972 and then undertook a study course to become a teacher, but after two years he turned to other endeavours; he worked in the printing industry operating, and later programming, machinery and then as a storeman in that industry before working for a while in the aged care industry. In the 1990’s he embarked on work with radio frequency systems in electronics – which was also a hobby – and was employed by an entity, called Moonlighting, in programming and operating computer controlled machinery. In June or July 2000, when that entity closed the facility where the complainant worked, the complainant then aged 44 years, was recruited by Rowan Technical Recruitment Pty Ltd (Rowan), a labour hire firm, which contracted with the respondent to provide to it the complainant’s services to work at Newton as a test technician to test, and repair as necessary, circuit boards used as components in HF radios manufactured by the respondent.
The complainant’s work involved sitting, or standing, to carry out his tasks at a bench, on which there was a power supply unit (a photograph of which is Exhibit R22) of a weight at the high end of the range 10 to 20kg. It was part of the complainant’s work, although infrequently, to lift, and shift the position of, the power supply unit on the bench for the purpose of cleaning beneath it and behind it. The technical work, which the complainant carried out at the bench, was upon circuit boards and ancillary items, several (eight to ten) of which were in a box that was carried by him to the bench from shelving four to ten metres away from his bench. We accept Ms Cross’ evidence that carrying the circuit boards from the shelving to the test technician’s workbench occurred “more than five times a day”. During the period the complainant worked as a test technician, the weight of the box of circuit boards and ancillary equipment was between five and ten kilograms – there was some difference in the evidence of the complainant and Ms Cross about the weight, but more likely than not the weight was at the high end of the range. Exhibit R21 is a photograph of a box containing parts of the kind, or similar to those, the complainant carried from shelving to his workbench.
The complainant’s skills and abilities in his work with the respondent were highly regarded by those who supervised him – Ms Cross said that both the complainant’s supervisor and manager wished to ensure that he remained in the workforce, so in the year 2001 those officers embarked on the respondent’s procedures necessary to make the complainant an offer of permanent employment with the respondent by approaching her for the name of the medical practice which the respondent engaged to obtain medical examinations of those being considered for employment. Ms Cross identified Exhibit A2 to be, as to its printed parts, one of a batch of forms provided to the respondent by Dr Geoffrey Graham the proprietor of the medical practice, called Independent Occupational Medicine, which the respondent engaged to conduct pre-employment, or pre-placement, medical examinations. Dr Shepherd was one of three medical practitioners in the field of occupational medicine, employed in Dr Graham’s practice of occupational physician, who carried out pre-employment medical examinations for the respondent and other employers.
Before the complainant made his complaint to the Commissioner there was correspondence (it is included in Exhibit R23) between him and various officers of the respondent concerning his complaint; one of the topics which the complainant agitated in the correspondence, and in his evidence, was his view that someone in the employment of the respondent had made a deliberate decision that he be examined by Dr Shepherd and not by Dr Graham. We accept Ms Cross’ evidence that she made no such decision and we accept Dr Shepherd’s evidence to the effect that although Dr Graham’s name may have been on the “paperwork” carried by those attending for a medical examination it was entirely a matter for Dr Graham’s organisation to allocate examinees between Dr Graham and the other medical practitioners.
Exhibit A2 is the appointment document which the complainant said he was given in August 2001 by the charge-hand in the department in which he worked. He was told to make an appointment for an examination; an appointment was arranged for a date in August 2001, but it was deferred for one week. Before the date of the deferred appointment arrived the complainant became unwell; he was admitted to a hospital and then transferred to another where he was detained for about two weeks undergoing a number of tests, physical examinations and procedures. As we understand, the complainant’s gall bladder was removed.
The complainant returned to his work with the respondent on 17 September 2001 and thereafter carried out his usual duties. He was told by his superior, Mr Caporrella, that the matter of his permanent employment by the respondent was “sort of on hold at the moment”. Some time later, the complainant and his co-employees took part in, what he described as, a backyard blitz at the respondent’s premises (landscaping, painting and sprucing up an area of the premises) during which the complainant lifted buckets of water weighing up to 10kgs – he said he was able to do that without any problems and described that the other activities he engaged in were more physical than any tasks he performed in his usual work as a test technician, including periods of overtime.
In December 2001 the complainant’s supervisor, David Bennett, told the complainant to the effect that it looked as though the complainant was to be made a permanent employee of the respondent. Exhibit A5 is an e-mail, dated 11 December 2001, from Mr Caporrella to Mr Bennett concerning that topic, following which an appointment was made for the complainant to undergo a pre-placement medical examination on 4 January 2002 at Independent Occupational Medicine.
Upon arriving at Dr Graham’s facility on 4 January 2002 the complainant completed a questionnaire (Exhibit R24) which included questions about the complainant’s present and past illnesses, injuries and symptoms, to be answered by appropriately marking yes or no; he answered yes to the prompts “hernia”, “eye or ear trouble”, “leg, knee injury” and “any other illness, injury or operation”. After undergoing various tests and measurements conducted by a technician or nursing staff at the medical rooms, he was examined by Dr Shepherd who had with him the questionnaire completed by the complainant.
The complainant related that in the course of the examination Dr Shepherd evinced some concern about the complainant’s blood pressure and spoke on the telephone, from hearing which the complainant gathered that Dr Shepherd was inquiring whether or not the complainant should be immediately admitted to hospital. He said Dr Shepherd also informed him that he had a condition, described as central obesity, for which hormonal medication would, or may, be necessary. The complainant said that he felt “shattered” concerning Dr Shepherd’s reaction to the matter of his blood pressure because, some three months earlier when he was in hospital, he had been told his blood pressure was normal. He said he found the examination an upsetting, shattering experience and “strange” for one who, as he judged, was being examined for the purposes of a job which he had been doing for some eighteen months. Before he left the surgery, he said, Dr Shepherd gave him a note stating “Take this to a doctor and get all of these things checked out. You want to get more jobs in the future, don’t you?” The note is Exhibit A6 which lists blood pressure (“for follow up ASAP”), central obesity and a “bilateral obvious hearing deficit”.
There is nothing in Exhibit A6 about a hernia, and in his evidence-in-chief the complainant made no mention of any discussion with Dr Shepherd about, or any physical examination concerning, a hernia. In cross-examination it was put to the complainant that he told Dr Shepherd he had no ongoing problems in relation to his right patella “and you told him you had a right inguinal hernia which hadn’t yet been repaired”; the complainant’s answer was “No, that’s false, that is false, false, completely false.” He agreed Dr Shepherd asked him questions about other matters concerning his health and medical history. As to the suggestion the complainant told Dr Shepherd of an inguinal hernia, Dr Shepherd’s evidence is he thought it is unlikely the complainant used those words, rather, although he could not remember what words the complainant did use (it may have been “a hernia” or “a lump”) the impression he gained from the history given by the complainant was that which he recorded in his notes as “right inguinal hernia about 2 years, not repaired”.
It is convenient to deal with some of Dr Shepherd’s evidence at this point. Dr Shepherd graduated in 1998 and practiced primarily in occupational medicine.
Dr Shepherd said he undertook a standard pre-placement examination of the complainant, including obtaining a history from him, after the complainant had completed the questionnaire and had undergone a range of measurements and tests carried out by members of his staff. He said the complainant informed him he had suffered a fracture of his right patella in a fall, ringing in his left ear subsequent to an incident involving a projector, and a lump in his groin which had been present for about two years and had not been repaired. On his examination of the plaintiff his significant findings were a raised body mass index, and marked central obesity which together with a marked high blood pressure of 220/110, he considered to possibly be Cushing’s syndrome (an adrenal problem) his concern about which prompted him to telephone a specialist, in the complainant’s presence, for advice and to write the note Exhibit A6.
Dr Shepherd’s evidence is that as part of his standard abdominal examination he palpated the complainant’s groin region through his clothes, instructing him to cough, and consistent with the complainant’s history of a lump in the groin for about two years he diagnosed the presence of a small right inguinal hernia. He explained that, with such a hernia, an increase in abdominal girth, or in intra-abdominal pressure by heavy lifting, can stretch the defect making the hernia worse and allow the abdominal contents to protrude further through the defect. An operation under general anaesthetic either by an open procedure or by laparoscopic means, can be undertaken with the objective of repairing the hernia; recovery from an operation involves six weeks or two weeks absence from work depending upon which of the two methods is adopted. Dr Shepherd said that whether the need for an operation would be recommended was a decision which took into account the symptoms, and the extent of them; in the complainant’s case the lump had been present for two years, he presumed the complainant had obtained advice about it in the past, and he did not include it in his letter Exhibit A6, confining the letter to those matters he judged to be urgent and which needed to be followed up in relation to the complainant’s daily health.
In cross-examination Dr Shepherd agreed that as the complainant had not given him any history of pain associated with the hernia he considered that conservative treatment of it was appropriate, which, we infer, would have included, were he to have been the complainant’s treating doctor, advise “to not do things that are likely to exacerbate” the hernia.
In a letter dated 4 January 2002 (Exhibit R23, document 1) Dr Shepherd wrote to the respondent summarising his findings on examination, including the result of an audiogram, noting marked hypertension, marked central obesity and a palpable right inguinal hernia. The letter concludes:
“Opinion
Given his right inguinal hernia he will be at risk of exacerbating this at work. His hearing loss represents a late noise-induced hearing loss or alternatively a condition like otosclerosis. This would be better defined with diagnostic audiometry prior to employment. His body mass index indicates he may be at increased risk of musculo-skeletal injury with repetitive lifting duties. Otherwise fit for employment.”
Dr Shepherd also identified a letter dated 18 January 2002 which he wrote to the respondent – it is Exhibit R23, document 2. He said he dictated that letter a few days after speaking to Ms Cross on the telephone who referred him to the topic, in his report, of the complainant being at risk of exacerbating his right inguinal hernia at work, and asked him “If there is a risk, how do we cope with that?” and “what restrictions may be necessary to allow (the complainant) to continue to work”. He said he advised Ms Cross that the complainant be restricted to 5kgs in the weight he should lift, and confirmed that advice in his letter dated 18 January 2002. The letter reads:
“I apologise for not including specific weight restrictions for the pre-employment medical on Mr Taylor.
Given he has an inguinal hernia it is important that this is not exacerbated at work. As a preventative measure I suggest a 5kg lifting restriction. Although this does not guarantee he will not exacerbate his hernia at work it will minimise this risk as far as possible.”
We interpolate here Dr Shepherd’s evidence, which we accept, that approximately annually between 1998 and 2002 he had been conducted through the respondent’s manufacturing facility to see the manufacturing and other processes in which the respondent’s employees were engaged, in the course of which he gained what he termed “the gist” (we understood a broad understanding) of the work activities including those of test technicians carried out at the facility.
The day after his examination by Dr Shepherd, the complainant, who did not have a medical practitioner whom he regularly consulted, went to a doctor’s surgery and consulted Dr Philpott. The complainant was apprehensive he might be hospitalised, but that did not eventuate and he continued working with the respondent until the events on 17 January 2002.
The complainant said that just after lunch on 17 January 2002, Mr Caporrella came to his work place and together they went to Ms Cross’ office. He said Ms Cross read out from a sheet she was holding. He related (T46),
“She said ‘this hypertension, it can be dealt with by medication. The obesity ‘– well, I don’t remember exactly what she said but it didn’t seem as though it was too much of a problem. ‘The hearing deficit’ or ‘the obvious hearing deficit’ – whatever it was – ‘you could use a hearing aid. But the hernia, this inguinal hernia, I just can’t guarantee your safety here. Have you ever heard of the Occupational Health and Safety Act, 1986?’ And I said “Yes, I had a little bit to do with it, like, I know of it.’ She said ‘I just cannot guarantee your safety at Codan, and I am terminating your contract immediately’. It was really weird. I said – we had legal advice on the matter and even Martin Ey said there was just nothing else that we could do. And I said ‘Why would you get legal advice before mentioning or asking me about it; why didn’t you get another medical opinion?’ – something along those lines. And Nino said ‘We only ever get one opinion’, which I think with Nino he said even Martin Ey said there was no other option – I am not reading from this but I think it was Nino who said that even Martin Ey said there was no other option that the company takes. Then, basically, he said something like ‘Is there anything else in there?’ and then I was just, like, sent to get my things and leave the premises.”
He said that Mr Caporella told him “We are going to have a meeting” – with the complainant’s co-workers as the complainant understood. He set about gathering up his personal possessions from his work place, describing that he put them into his back-pack and two plastic shopping bags and, laden with the weight of about 20kgs, went home on public transport.
After 17 January 2002 Mr Taylor wrote numerous letters to officers of the respondent, and its directors, to each of which the respondent replied. A copy of the correspondence is collected in Exhibit R23. We do not propose to include in these reasons a detailed review of, or even the substance of, all that correspondence. We will refer to what we regard to be the most salient matters for our purposes.

The complainant’s request by letter to the respondent in January 2002 for “specific information”, including any relevant legislation, concerning the reasons for the decision on 17 January 2002 that he could no longer carry out his duties because of his “alleged” medical condition was initially met (after the respondent obtained legal advice) with the response that, his contract of employment being with Rowan, his questions should be put to Rowan, but by 12 February 2002 when the respondent provided to the complainant a copy of Dr Shepherd’s report dated 4 January 2002 the respondent confirmed an earlier offer that it would be happy to take part in any meeting the complainant might wish to have with Rowan and there answer any questions the complainant might have. The complainant’s evidence is that he did not receive a copy of Dr Shepherd’s report dated 18 January 2002 until in the month of August 2002.
On 6 March 2002 the complainant wrote a letter of six pages to Julian Carne (Mr Carne) then the Group Human Resources Manager of the respondent; at the time of the hearing of this matter Mr Carne had left his employment with the respondent. In the letter the complainant set out his history of work with the respondent, and described his view of what had occurred at his examination by Dr Shepherd and the events of 17 January 2002. He complained of his lack of success in trying to obtain from the respondent “a simple written confirmation of the information given to me verbally (by Ms Cross)” and asserted the belief there had been dishonesty, and illegal acts, on the part of senior management of the respondent concerning his “failure to be employed directly by (the respondent)” and his “instant dismissal from my contract position of eighteen months” because of an inguinal hernia. He requested a rigorous investigation by the Board, and others, of the respondent into those matters. Mr Carne, it appears, was overseas when the letter was received. He replied to the letter on 25 March 2002 stating his willingness to undertake a review of events “with the objective being to find a satisfactory outcome from your and (the respondent’s) perspective”, and proposed a meeting with the complainant to discuss the issue. A meeting was arranged for 9 April 2002.
In his cross-examination, the complainant said that a few days before 31 December 1999 he fell from a ladder while pruning a tree, and as he fell the right side of his lower abdomen struck a branch. He consulted a doctor who examined him. He asked the doctor “Is it a hernia?” to which she replied to the effect “Don’t worry about it, it might be a hernia, but even if it is don’t worry about it”. Then when he was hospitalised in August or September 2001 a person who was examining him asked “What’s this mark here?” indicating, as we infer, the area of his right lower abdomen and he replied that it was caused by his fall.
The complainant said it was the incident in his fall when he struck the branch, the doctor’s response to his question whether he had a hernia, and the examination in August 2001, which prompted him to answer “yes” to the questionnaire as to the matter of a hernia.
When he received the copy of Dr Shepherd’s report dated 4 January 2002, sent to him by the respondent, the complainant took it to Dr Philpott whom he had continued to consult after 18 January 2002. It is not entirely clear, but the probability is that Dr Philpott prepared a report (which is undated) for the purposes of a proposed meeting on 4 April 2002 between officers of the respondent, Rowan and the complainant. In the report (Exhibit R23, document 15), which is addressed to the respondent, Dr Philpott wrote that the complainant’s blood pressure had been checked and found to be normal and “I have been unable to detect a hernia or a hormone problem … (the complainant) is fit for the duties he was doing at the time of his retrenchment … I will be available to answer any questions on Thursday 4/4/02”. The complainant, we infer, was given the, or a copy of the, report on about 13 March 2002.
It is unclear to us whether there was a meeting on 4 April 2002, but on 9 April 2002 Mr Carne met with the complainant when, as we understand the evidence, the existence of Dr Philpott’s report, or information concerning its content, was disclosed to the respondent for the first time; on 11 April 2002 the complainant sent a copy of the report to Mr Carne.
Dr Philpott was not called to give evidence, but his report was admitted as an exhibit.
On 17 April 2002 Mr Carne wrote to the complainant (Exhibit A8), stating that when Dr Shepherd indicated a 5kg lifting restriction “… we did not believe that (Codan) would be a safe working environment for you”. We infer from that passage, that the complainant was informed on 9 April 2002, at the latest, of the lifting restriction suggested by Dr Shepherd. The letter goes on to request that the complainant obtain a report from a general surgeon of his choice or a radiographer’s report, in each case at the respondent’s expense, “confirming the non-existence” of an inguinal hernia, upon receipt of which Mr Carne would “reconsider a review” of the complainant’s situation.
Mr Carne pursued that proposal, with the complainant, on 3 May 2002 in a letter which included
“I rang you today to enquire about your progress in obtaining a report from a general surgeon or a radiographer of your choice in order to resolve whether or not you have an inguinal hernia.
I understood from our conversation that no progress has been made. I urge you to obtain such a report. Since there is an apparent discrepancy between the opinions of Dr Sheppard (sic) and Dr Philpott on this matter, Codan remains concerned that your health would be put at risk if you returned to your previous duties at Codan. A third expert opinion would resolve the matter and allow us to reconsider your suitability for these duties. We have already offered to meet the cost of the necessary medical appointments.”
However by that time the complainant had written a detailed letter to two directors of the respondent which included allegations of impropriety (to say the least) on the part of the respondent’s employees, among others, and sought the withdrawal of his “dismissal” and Dr Shepherd’s report.
On 29 May 2002 Mr Carne wrote to the complainant that he had been authorised by the respondent’s Board of Directors to “find a satisfactory outcome through private mediation, the whole cost of which would be met by” the respondent. In a further letter dated 12 June 2002 to the directors of the respondent, the complainant rejected the proposal, repeated allegations of “illegal activity” by the respondent’s management and sought a meeting with members of the respondent’s Board of Directors. In a contemporaneous letter to Mr Carne, the respondent stated that mediation could proceed only upon his dismissal and Dr Shepherd’s report being “withdrawn”. His last communication, on 19 June 2002, was a letter to the chairman of the respondent’s Board informing him he had sought an opportunity to address the Board to (inter alia) request an investigation into what he referred to as a “fake medical assessment” by Dr Shepherd. On 28 June 2002, the complainant lodged with the Commission the complaint the subject of these proceedings.
The correspondence between the complainant and the respondent, or its officers, was tendered to the Tribunal not (we apprehend) as proof of the truth of any of the allegations or assertions contained in it, but only to set out material to identify the steps taken by the parties before the Commissioner received the complainant’s complaint under the Act.
Dr Shepherd was questioned by the complainant at some length in cross-examination. In our assessment of Dr Shepherd his responses and explanations were measured, delivered with (as best as we could judge) apparent knowledge of clinical medical skills and we detected no instance of prevarication or of self-justification to cause us to treat his evidence with circumspection. He was possibly being very cautious in recommending that the complainant consult a medical practitioner for treatment, and in providing a note of his observations relating to the complainant’s blood pressure and other matters to such a practitioner, but that in our view was in the interests of the complainant who was not his general patient.
Dr Shepherd adhered to his opinion that in his examination of the complainant, the method of which he explained, he diagnosed the existence of an inguinal hernia. There is nothing in his evidence or cross-examination to cause us to conclude that his diagnosis should be rejected. We have had regard to Dr Philpott’s report, but in circumstances where his opinion has not been tested before the Tribunal, we accept Dr Shepherd’s evidence of the diagnosis he made. Our conclusion is that any employer, or potential employer, in the position of the respondent had to seriously view Dr Shepherd’s diagnosis of an inguinal hernia.
Dr Shepherd was pressed by the complainant why it was if the complainant had been performing his duties as a test technician for the respondent for 18 months, lifting no more than 5kg was suggested by Dr Shepherd and he did not inform the complainant of that restriction. Dr Shepherd said he was not suggesting the complainant was incapable of lifting more than 5kg weight, but that a hernia in the groin can be exacerbated by lifting and in the context of advising an employer he considered a 5kg lifting limit was appropriate to minimise the risk of such an occurrence; as to not informing the complainant of the restriction, Dr Shepherd said the topic of weight was not considered by him until Ms Cross spoke to him after his report dated 4 January 2002 and he had not seen the complainant, or been asked to see him, after his examination on that date. It was put to him that the wearing of a truss could have been an alternative to the setting of a lifting restriction of 5kg; he said he knew of no evidence that a truss would reduce the risk of a hernia becoming symptomatic or being exacerbated.
Concerning the weight lifting restriction of 5kg which he suggested, Dr Shepherd stated his opinion to be that a hernia in the groin area being at risk of enlarging from increased abdominal pressure, causing an onset of an increase in symptoms and requiring a bigger operation to try to correct or repair it, it is wise for any employer to ensure that a person, who has such a hernia, is safe in the workplace by avoiding or restricting lifting tasks, and it was to that end he suggested the lifting restriction which he considered to be appropriate. He accepted the complainant’s proposition that a restriction to 5kg may well impact upon day to day domestic and private activities, but observed that was a matter of choice for a hernia sufferer and adhered to his view that, in the workplace, the restriction he suggested to the respondent, in its role as a employer, was in his clinical judgment appropriate to minimise the risk of exacerbating the hernia.
We turn to the evidence of Ms Cross.
Ms Cross, as we assessed her, was very mindful, and properly so, of her employer’s responsibilities under the occupational health, safety and welfare legislation.
Ms Cross said, and we accept, that Dr Shepherd telephoned her on 4 January 2002 and spoke about four matters he had found on his examination of the complainant – very high blood pressure, central obesity, hearing loss and an inguinal hernia, the last of which “was going to be a problem”. He told her he had referred the complainant to his own doctor concerning the first three conditions. The “problem” in relation to the hernia concerned lifting, to which her response was she would await his report and talk to him about it. At the time this conversation occurred, Ms Cross was on leave; she read Dr Shepherd’s report when or soon after she returned from leave on 8 January 2002.
Having read the report, Ms Cross related, she discussed its contents with the respondent’s manufacturing manager and factory manager, “to talk to them about how we could work through with this and what the concerns were in the findings from the pre-placement medical … how that would affect us and the workplace”. She then telephoned Dr Shepherd and from her conservation with him understood
·that subject to an audiogram by an independent audiologist to identify the precise level of loss, the hearing impediment was not a concern;
·the complainant’s blood pressure could be stabilised with medication;
·that once the central obesity had been looked into to dismiss anything “sinister”;
only the question of the hernia remained. She said she asked Dr Shepherd what weight the complainant could lift in the workplace without exacerbating the hernia and he informed her that the complainant should not lift more than 5kg. Armed with that information concerning the lifting restriction, Ms Cross said she conferred again with the factory and manufacturing managers, with whom she assessed the complainant’s worksite and duties as a test technician in the re-work area (a job with which she was familiar) and considered the feasibility of accommodating such a restriction in the complainant’s work. Ms Cross said that subsequently, a day or so before 17 January 2002, the conclusion was reached that the restriction could not be accommodated because there were aspects of the complainant’s work which involved lifting more than 5kg, and on 17 January 2002 she informed the complainant, substantially in terms related by the complainant in his evidence, to the effect that his hernia was at risk of being exacerbated in his workplace, the respondent could not guarantee to him a safe working environment and he would not be offered employment or provided with on-going work.
Earlier in these reasons we set out the effect of the evidence, and our findings, on the incidence of lifting in the complainant’s workplace activities and the weights involved.
In cross-examination Ms Cross said the decision concerning the complainant was a collective one made by the manufacturing manager (Mr Martin Nye), the factory manager (Mr Caporrella), the recruitment and remuneration manager (Ms Tracey Trimboli) and herself. After conveying the decision to the complainant, Ms Cross said, she suggested that he call Rowan; she then spoke to Rowan to report that by reason of the pre-placement medical report, the respondent was not able to offer any further work to the complainant.
Without objection by the complainant, and with no challenge by him, Ms Cross said she understood Mr Caporrella informed the complainant, on 17 January 2002 we infer, that were the hernia to be repaired the respondent would be able to provide work to him. We note that in the documents forming part of his complaint to the Commissioner the complainant alluded to Mr Caporrella having said something of the kind.
Ms Cross was asked whether she could estimate how much time would have been lost each day were the complainant to have brought circuit boards, one at a time, from the shelving to his workbench; she said she could not guess. That method of work for the complainant was not further explored in cross-examination.
Ms Cross said that during the period of 18 months the complainant worked at the respondent’s facility he had been “a very good worker and (he) was a very reliable worker” which was why she and the complainant’s managers met a few times to “analyse and look into the restrictions and the factors surrounding the medical report” and “tried very hard to see whether we were able to accommodate him within the workplace”.
Ms Cross impressed us as an accurate, reliable witness who was frank about her involvement in the decision made concerning the complainant.
Sections 66, 67 and 69 of the Act are within Part V, the subject matter of which is the “prohibition of discrimination on the ground of impairment”. Under the Act, an impairment includes a physical impairment, defined by s5 to mean (inter alia) the total or partial loss of any function of, or the malfunctioning of, any part of the body, whether permanent or temporary.
By s66 of the Act –
“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;
(b)    if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and –
(i)the nature of the requirement is such that a substantially higher proportion of persons who do not have such an impairment complies, or is able to comply, with the requirement than of those persons who have such an impairment;
and
(ii)the requirement is not reasonable in the circumstances of the case;
(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;
(d)     if, in circumstances where it is unreasonable to do so –
(i)he or she fails to provide special assistance or equipment required by a person in consequence of the person’s impairment;
or
(ii)he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other’s impairment;
…”
Sections 67 and 69 occur in the division of Part V headed “Division II – Discrimination in Employment”; they, relevantly for our purposes, provide
“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;
(b)(not relevant)
(2)    not relevant
69.    (1)    This section applies to the principal for whom work is done by contract workers in pursuance of a contract between the principal and the employer of those contract workers.
…
(3)    It is unlawful for a principal to discriminate against a contract worker on the ground of impairment –
(a)in the terms or conditions on which the contract worker is allowed to work;
(b)     by not allowing the contract worker to work;
(c)by denying or limiting access to any benefit connected with employment;
or
(d)     by subjecting the contract worker to any other detriment.”
Section 71(2) is in the same division of the Act as s67 and s69. It provides –
“Exemptions
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.”
The complainant, in the conduct of his case, maintained that he did not have a hernia; for this, as we infer, he relied upon Dr Philpott’s undated note (Exhibit R23, document 15), but Dr Philpott was not called, so his inability to detect a hernia was not tested. The complainant failed to act upon the respondent’s proposal that the complainant be examined by a surgeon of his choice concerning whether a hernia was present or not. The only medical evidence of any weight before the Tribunal was that of Dr Shepherd.
We find on the balance of probabilities that on 4 January 2002 the complainant had an impairment, within the meaning of the Act, namely a small right inguinal hernia. That was the condition diagnosed by Dr Shepherd from his examination of the complainant, and the possibility that the complainant had sustained a hernia at that site approximately two years earlier, in the incident when he fell against the branch of a tree, had not been dismissed by the medical practitioner whom the complainant consulted soon after that incident occurred. It is likely, as the complainant conveyed to Dr Shepherd, that the complainant experienced no painful symptoms to the time of his examination on 4 January 2002, however in the opinion of Dr Shepherd, which we accept, there was a risk that the hernia could be exacerbated by increased intra-abdominal pressure, by effort as simple as coughing and greater risk with the effort of lifting, to cause the abdominal contents to protrude further. The greater the effort, the higher the risk of protrusion, giving rise to painful symptoms and a need to undergo surgery to repair the defect. In our view that was not a remote or negligible risk, having regard to the restriction on lifting which Dr Shepherd judged to be appropriate to minimise the risk of exacerbation. That the complainant in the course of his work with the respondent may not have exacerbated his hernia, or experienced symptoms, is not a basis upon which to find Dr Shepherd’s advice to the respondent that the complainant should be restricted to lifting no more than 5kgs in the course of employment, was unreasonable and unsupportable. We find that Dr Shepherd determined upon that restriction having regard to his findings made after his examination of the complainant; as he said, and we accept, in other cases he had recommended that there be no lifting or that lifting be restricted to weights as little as 1kg to accommodate the physical capacities of persons in the workplace.

It is more probable than not Dr Shepherd did not inform the complainant of a diagnosis of an inguinal hernia – the complainant said he was not told and Dr Shepherd said he could not recall – but we accept Dr Shepherd’s evidence that the complainant having disclosed in the questionnaire that he had a hernia and informed him to the effect of the note he (Dr Shepherd) made on the questionnaire concerning a hernia, it would not have occurred to him to inform the complainant of his diagnosis. In our view Dr Shepherd’s omission was understandable, and did not justify the complainant’s implied criticism of Dr Shepherd, on that account, to the effect the diagnosis had been hidden from him; similarly, the complainant’s contention that by not mentioning a hernia in the letter that Dr Shepherd handed to him was a step to suppress the diagnosis from the complainant was also unsubstantiated – we accept Dr Shepherd’s evidence that the purpose of the note was to assist the complainant in seeking advice from his general practitioner upon matters which Dr Shepherd considered needed prompt investigation, and the hernia did not fall into that category.
We find that although Dr Shepherd’s report to the respondent dated 4 January 2002 identified other physical deficits in his examination of the complainant, after the telephone conversation between him and Ms Cross a few days before 17 January 2002 those other deficits were peripheral and of no relevant concern to the respondent in its decision concerning the employment of the complainant. The focus was entirely upon the complainant’s capacity in the workplace as a test technician with a diagnosed inguinal hernia. We conclude, and the respondent does not contend otherwise indeed it urged it should be found, that the complainant’s hernia was the impairment on the grounds of which the respondent discriminated against the complainant both in determining not to offer him permanent employment (s67) and in not allowing the complainant to work as a contract worker (s69) in each case as a test technician. But for the hernia, and the consequent lifting restriction, the complainant would have been offered, or allowed to continue, work as a test technician; he was treated less favourably than he would have been without that impairment.
The crucial issue is whether the proved discrimination against the complainant on the ground of impairment was discrimination within s71(2) of the Act in which case the provisions of s67 and s69 do not apply. This turns upon whether or not the complainant’s impairment rendered him unable to “perform adequately and without endangering (himself) or other persons, the work genuinely and reasonably required” for the position of test technician which he filled as a contract worker, or was being considered to fill as a permanent employee of the respondent (s71(2)(a)).
On the issues concerning which the complainant and the respondent conducted their respective cases nothing turns upon the alternative (b) in s71(2) – no evidence was led by either side directed, or relevant, to that provision.
The impairment, in the case of the complainant, was not simply the presence of the inguinal hernia but the limitation on the maximum weight he should lift to minimise the risk of exacerbating the hernia. Clearly the mere presence of an inguinal hernia would not necessarily give rise to a question under s71(2) were the particular individual’s employment entirely sedentary.
The exacerbation of an inguinal hernia to cause the onset of, or an increase in, painful symptoms is, on the evidence, an indication of a worsening in the defect which gives rise to the need to consider corrective surgery. In our view the prospect of that occurring in the course of carrying out a particular activity in the workplace is to endanger the person engaging in that activity, that is it puts that person at risk of enlarging the physical defect, progressively if the particular activity is repeated, and increasing either the need for or the extent of corrective surgery. What particular activity may precipitate such an endangerment is a matter for expert evidence.
In the complainant’s case the expert evidence is that of Dr Shepherd, uncontroverted, and which, as we find, is not undermined or indicated to be unreliable by any other findings on the evidence before the Tribunal. We have considered whether the complainant’s performance of his work, involving lifting, for some 18 months before 17 January 2002 is a factor which points to the complainant, were he to have continued such work, not endangering himself, but the weight of Dr Shepherd’s evidence is such, in our view, that the complainant’s history in his work with the respondent does not detract from Dr Shepherd’s evidence. That which the medical practitioner, who examined the complainant when he fell against a tree branch, thought might be a hernia was sited by the complainant at his right lower abdomen which we understand to have been the, or the approximate, location where Dr Shepherd diagnosed there to be a hernia in his examination on 4 January 2001. Whether Dr Shepherd’s examination was more thorough than that of the previous examiner, or the palpable presence of the hernia on 4 January 2001 evidenced a deterioration of the defect giving rise to the hernia, cannot be determined upon the evidence before the Tribunal, but the risk that the latter may have occurred cannot be dismissed.
The lifting restriction of 5kgs was not, we find, unreasonable in the complainant’s case; on the evidence it was based on a consideration of the complainant’s physical impairment identified by Dr Shepherd.
We accept the evidence of Ms Cross that she sought the advice of Dr Shepherd upon the matter of minimising any adverse risk to the complainant, and with others of the respondent’s managers explored the prospect of accommodating the complainant’s impairment in his role as a test technician with a view to retaining him in that role in which he had shown himself to be a good and reliable worker.
We find that the position of test technician which the complainant occupied, and which the complainant was being considered for as a permanent employee, genuinely and reasonably required that he daily engage in lifting weights approaching 10kgs on a regular basis, and infrequently weights nearing 20kgs.
We find, pursuant to s71(2) of the Act, that the discrimination by the respondent against the complainant in both considering him for permanent employment and not allowing him to work as a contract worker, was on the ground that by reason of his impairment he was not able to perform adequately and without endangering himself the work genuinely and reasonably required in the position of test technician with the respondent.
In Osborne v CSR Timber Products (1999) EOC 92 - 977, this Tribunal concluded, relying on the reasoning of the Victorian Court of Appeal in Heinz Company Australia Ltd v Turner (1999) EOC 92 - 964, that the onus lies on the complainant to establish that a proved discrimination against the complainant is not excluded by the provisions of s71(2). Heinz’s case, as the Tribunal in Osborne’s case observed, concerned a provision in the Victorian Equal Opportunity Act; the Tribunal wrote
“The exemptions (in the Victorian Equal Opportunity Act), although different in terminology, are of a similar character to those found in the South Australian legislation, i.e. they referred to the fact that the relevant legislation “does not apply to discrimination” of a particular kind. The Court of Appeal (in Heinz’s case) held that legislation in such a form does not constitute an “exemption” as that term is generally understood by the law, but rather a statement that the law does not apply at all in the circumstances to which the section refers. We respectfully adopt those views. This means that the onus of proving the relevant provisions of the Equal Opportunity Act apply to the discriminatory conduct undertaken by CSR with respect to Mr Osborne lies upon the person alleging the law to be applicable, namely Mr Osborne.”
Smith v St John Ambulance Australia – South Australia Incorporated (1992) 166 LSJS 231 was an appeal to the Full Court against the judgment of Matheson J dismissing an appeal by Mr Smith against the order of this Tribunal dismissing his complaint under the Act. Cox J, with whom White ACJ and Mohr J agreed, set out passages from the Tribunal’s reasons in which it examined the provisions of s.71(2) to conclude that ‘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 ….’”.
Cox J wrote
“The Tribunal went on to examine the evidence and found against the appellant on the facts. It held that there had been discrimination but that the respondent had brought itself within the exemption provided by s.71.
I do not think it is necessary to examine the evidence in detail. That has been done with care and thoroughness by the Tribunal. I agree with its analysis and its conclusion … The Tribunal was justified in reaching the conclusion that the respondent had established its case for an exemption. That was, in substance, the view taken by Matheson J and in my opinion it was correct.”
That case establishes that once discrimination has been shown to have occurred under (inter alia) s67 or s69, the onus of proving the exemption provided for by s71(2) lies upon the respondent. We are satisfied, on the balance of probabilities, that the respondent discharged that onus.
The complaint is dismissed.