VAN DER KOOIJ and FIRE AND EMERGENCY SERVICES AUTHORITY OF WESTERN AUSTRALIA
[2009] WASAT 221
•5 NOVEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: VAN DER KOOIJ and FIRE AND EMERGENCY SERVICES AUTHORITY OF WESTERN AUSTRALIA [2009] WASAT 221
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
MS C WINSOR (SESSIONAL MEMBER)
HEARD: 8, 9 AND 11 SEPTEMBER 2008
DELIVERED : 5 NOVEMBER 2009
FILE NO/S: HR 67 of 2007
BETWEEN: JACOBUS PAUL VAN DER KOOIJ
Applicant
AND
FIRE AND EMERGENCY SERVICES AUTHORITY OF WESTERN AUSTRALIA
Respondent
Catchwords:
Impairment Discrimination in employment application Indirect discrimination Unreasonable or reasonable requirements Colour blind Colour vision deficient Firefighting duties
Legislation:
Disability Discrimination Act 1992 (Cth), s 15
Equal Opportunity Act 1984 (WA), s 4, s 5, s 63A, s 66A(1), s 66A(3), s 66B(1), s 66B(1)(a), s 66B(1)(b), s 66B(1)(c), s 66(1)(a), s 66(1)(b), s 66(1)(c), s 66Q, s 93(1)(b)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr J Rosales-Castaneda
Respondent: Mr B D King, Ms N Eagling, Ms G di San Marzano
Solicitors:
Applicant: Equal Opportunity Commission
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Catholic Education Office v Clarke (2004) 138 FCR 121
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission and Anor (1997) 80 FCR 78
Commonwealth v Human Rights and Equal Opportunity Commission (Dopking No 1) (1993) 46 FCR 191
Dowling v Bowie (1952) 86 CLR 136
Garity v Commonwealth Bank [1999] HREOCA 92-966
Ghockson v Commissioner of Police (1996) EOC 92798
Haines v Leves (1987) 8 NSWLR 442
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80
IW v City of Perth (1997) CLR 1
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
Purvis v State of NSW (Department of Education and Training) (2003) 217 CLR 92
Qantas Airways Limited v Christie (1998) 193 CLR 280
State of Victoria v Macedonian Teachers' Association of Victoria Inc (1991) 91 FCR 47
Vickers v The Ambulance Service of NSW [2006] FMCA 1232
Waters v Public Transport Corporation (1991) 173 CLR 349
Williams and Commissioner of Police [2005] WASAT 349
X v Commonwealth of Australia (1999) 200 CLR 177
Y v Human Rights and Equal Opportunity Commissioner [2004] FCA 184
REASONS FOR DECISION OF THE TRIBUNAL
Summary of Tribunal's decision
Mr van der Kooij wants to be a career firefighter. He is passionate in his wish to be accepted as a recruit. He had applied to the Fire and Emergency Services Authority of Western Australia four times; on three occasions he had failed tests or other selection requirements and his application had been rejected. So, when he got to the final stage of the process on his fourth application, he was excited and very hopeful that he would achieve his goal. The final stage was a medical clearance.
During the preemployment health assessment with the occupational physician, Mr van der Kooij discovered he was colour vision deficient (colourblind). Historically, people with colour vision impairment were not accepted into emergency services. The physician sent Mr van der Kooij to an optometrist for further specialised testing. Unfortunately, the optometrist administered the wrong test which he incorrectly interpreted, thereby reaching the wrong conclusion as to the severity of Mr van der Kooij's impairment. This gave Mr van der Kooij a sense of false hope. The occupational physician recognised the mistake and in discussions with the Fire and Emergency Services Authority of Western Australia and Mr van der Kooij, it was decided that the Fire and Emergency Services Authority of Western Australia would pay for Mr van der Kooij to undergo a clinical test in Sydney. This is referred to as the New South Wales Test. It was developed by Professor Dain, who gave evidence that the test required Mr van der Kooij to undertake simulated tasks of a firefighter that were colour-critical. This was a different process than the Fire and Emergency Services Authority of Western Australia had ever before followed. In the past, applicants who were colour vision deficient, did not pass the medical test and if they wanted to demonstrate that they could perform the role of a career firefighter, then they had to pursue that themselves and at their own costs.
Mr van der Kooij failed the New South Wales Test and diagnosis of his colour vision deficiency as strongly deuteranomal was confirmed. The Fire and Emergency Services Authority of Western Australia rejected his application on the ground that he was medically unfit because his impairment posed an unacceptable risk to himself, other firefighters and the general public.
However, in the interim, because of time pressures to have everything ready for the start of the next recruit intake, Mr van der Kooij was sent by the Fire and Emergency Services Authority of Western Australia to have his uniform fitted. This was, in his mind, additional confirmation that he had been or would be accepted as a career firefighter.
Mr van der Kooij claimed that the Fire and Emergency Services Authority of Western Australia unlawfully discriminated against him on the ground of his impairment in various ways, including by requiring him to undergo the New South Wales Test. He said that the Fire and Emergency Services Authority of Western Australia sent him to do the test merely to confirm a decision it had already made, namely, to reject his application because of his impairment.
The Fire and Emergency Services Authority of Western Australia said it did directly discriminate against Mr van der Kooij, but it was reasonable to do so because of the unacceptable risk posed by Mr van der Kooij. The Fire and Emergency Services Authority of Western Australia denied the balance of Mr van der Kooij's allegations of unlawful discriminatory conduct.
The Tribunal accepted the Fire and Emergency Services Authority of Western Australia's submission that the fundamental purpose of the recruitment process was to assess the risk that a candidate posed and their suitability for selection to attend recruit training.
The Tribunal found that colour is a critical component of the inherent firefighting duties and colour vision deficiency to the extent with which Mr van der Kooij was diagnosed, posed an unacceptable risk to Mr van der Kooij, fellow firefighters and the general public. It was therefore reasonable for the Fire and Emergency Services Authority of Western Australia to reject Mr van der Kooij's application and it was excused from any unlawful behaviour under s 66Q of the Equal Opportunity Act1984 (WA).
The Fire and Emergency Services Authority of Western Australia was required to assess Mr van der Kooij's ability (or inability) to perform the inherent tasks of a firefighter, by 'objective standards' whilst taking into account Mr van der Kooij's individual capacity to do the work. The Fire and Emergency Services Authority of Western Australia gave Mr van der Kooij every available opportunity to demonstrate that he could do the job of a career firefighter despite being colour vision deficient.
The Tribunal found, as a question of fact, that the New South Wales Test was a fair and practical means of objectively assessing Mr van der Kooij's individual capacity to undertake firefighting duties and whether he would pose an unacceptable risk if he were a career firefighter. The Tribunal accepted that Mr van der Kooij's results in all of the testing and his diagnosis as strongly deuteranomal meant that he would pose an unacceptable risk to himself, to his fellow firefighters and to the general public if he were employed as a career firefighter. Because of that risk to public safety, the Fire and Emergency Services Authority of Western Australia was entitled to consider Mr van der Kooij's ability to perform firefighting duties in 'extreme work conditions'. The Fire and Emergency Services Authority of Western Australia was also entitled to reject Mr van der Kooij's application to be a career firefighter.
The Tribunal therefore dismissed Mr van der Kooij's application.
Background
Mr Jacobus Paul van der Kooij alleges both direct and indirect discrimination, pursuant to the Equal Opportunity Act 1984 (WA) (EO Act), against the Fire and Emergency Services Authority of Western Australia (FESA) in respect of his application to become a career firefighter.
Mr van der Kooij is colour vision deficient, also described as having abnormal colour vision and referred to colloquially (though not technically accurate) as being colour blind (BL Cole, 'Assessment of inherited colour vision defects in clinical practice' (2007) 90, Clinical and Experimental Optometry 157.
As part of the career firefighter application process, FESA required Mr van der Kooij to undergo a number of standard tests used to diagnose his particular colour deficiency and the extent of that deficiency. These tests included the Ishihara Test, the Medmont C100 Test, the Farnsworth D15 Test, also known as the Standard Farnsworth Munsell D15 Test, and the Farnsworth D15 Desaturated Test (standard tests).
Mr van der Kooij also underwent a simulated clinical test developed by Professor Dain and his colleagues at the University of New South Wales. The test is commonly known as the Fire Brigades Test or the Fire Brigades Colour Vision Test (the NSW Test). Mr van der Kooij failed the standard tests administered in Perth and Sydney as well as the NSW Test. This resulted in him not being offered employment as a career firefighter.
On 10 July 2007, Mr van der Kooij lodged a complaint with the Commissioner for Equal Opportunity, alleging that FESA discriminated against him on the ground of impairment in the area of employment. On 6 December 2007, the Commissioner for Equal Opportunity referred the complaint, together with her report, to this Tribunal pursuant to s 93(1)(b) of the EO Act.
There are a number of aspects to Mr van der Kooij's claims of unlawful discrimination, but his allegations predominately relate to how and when the standard tests and the NSW Test are used and the meaning that can or should attach to the results of the tests. In particular, his claims relate to whether the requirement to undergo the tests and reach a certain standard in any of them or the application of the results of any of the tests by FESA to Mr van der Kooij's employment application is directly or indirectly unlawfully discriminatory.
After a number of directions hearings and other preliminary matters, the allegations came before the Tribunal for hearing on 8, 9 and 11 September 2008. The parties each filed several volumes of documents. Mr van der Kooij gave oral evidence (having filed a witness statement) and he called two other witnesses, both of whom had filed witness statements:
1)Mr Barry Waddingham, optometrist; and
2)Mr Neil Hawkins, volunteer Firefighting Brigade Captain at the Guildford Volunteer Fire and Rescue Service Brigade (Guildford Brigade).
Mr RosalesCastaneda, a lawyer with the Equal Opportunity Commission, was counsel for Mr van der Kooij.
At the hearing, FESA called five witnesses, each of whom had previously filed a witness statement:
1)Dr Steven Overmeire, consultant occupational physician;
2)Professor Stephen Dain, Director of Optic and Radiometry Laboratory, School of Optometry and Vision Science, University of New South Wales;
3)Ms Susan Eccles, FESA's Recruitment Coordinator;
4)Ms Josephine Fern, FESA firefighter, recruitment and rehabilitation sections, who acted as Firefighter Recruitment Coordinator when Ms Susan Eccles was acting in another position or on leave; and
5)Mr Lloyd Bailey, FESA's Assistant Chief Operations Officer, Metropolitan Fire.
The Tribunal apologises for the inordinate delay in providing this decision and written reasons and sincerely regrets any inconvenience this delay has caused the parties.
The agreed facts
Mr van der Kooij has served as a volunteer firefighter with the Guildford Brigade since April 2007.
In May 2006, Mr van der Kooij lodged an application with FESA for appointment as a career firefighter as part of the 2006 firefighter recruitment process. This was Mr van der Kooij's fourth application to FESA to become a career firefighter.
The recruitment process takes approximately six months to complete and, from FESA's perspective, involves a number of phases including advertising the position; close of the applications; assessment of the applications; profile testing; physical abilities testing; interviews; medical examinations; uniform fitting; inductions and commencement of recruit school.
On 3 June 2006, Mr van der Kooij attended for profile testing at the University of Western Australia. On 2 July 2006, Mr van der Kooij completed the physical abilities testing. On 11 July 2006, Mr van der Kooij was interviewed.
On 17 August 2006, Mr van der Kooij attended a medical examination with the occupational physician, Dr Steven Overmeire, who administered the Ishihara Test. Mr van der Kooij made 15 identification errors out of 15 plates. On the basis of the results of the Ishihara Test, Dr Overmeire determined that Mr van der Kooij was 'Class 3 - temporarily medically unfit, further information required'.
On 18 August 2006, Dr Overmeire referred Mr van der Kooij to Abernethy Owens, optometrists, for further colour vision testing. On 22 August 2006, Mr van der Kooij was further colour vision tested by Mr Waddingham, an optometrist at Abernethy Owens.
The further testing was by way of the Medmont C100 Test and the Farnsworth D15 Desaturated Test. Mr Waddingham prepared a report dated 23 August 2006 containing his assessment of the test results. His conclusions were not accepted by FESA.
On 30 August 2006, Mr van der Kooij attended a uniform fitting.
On 1 September 2006, Dr Overmeire recommended to Mr van der Kooij that he participate in a further colour vision test, namely, the NSW Test.
Prior to 2007, the NSW Test was not routinely applied to applicants for firefighter positions in Western Australia, and before that time, FESA had not recommended that any other applicants for the position of firefighter undergo the NSW Test.
FESA advised Mr van der Kooij that there would not be a position for him in the recruit school starting in September 2006, as he had not been passed as fully medically fit.
On 12 June 2007, Mr van der Kooij completed the NSW Test at the University of New South Wales. The cost of Mr van der Kooij's air fare and accommodation to attend the NSW Test were paid by FESA.
On 19 June 2007, FESA received a report dated 13 June 2007 from the University of New South Wales regarding Mr van der Kooij's results in the NSW Test and seven other clinical tests.
By letter dated 11 July 2007, FESA wrote to Mr van der Kooij advising him that it could not offer him employment as a firefighter.
The issues
1)Does Mr van der Kooij have an impairment within the meaning of s 4 of the EO Act, and if so, what is that impairment?
2)If the applicant has an impairment, does it affect his ability to carry out the duties of a career firefighter?
3)Did FESA directly discriminate against Mr van der Kooij on the ground of his impairment in its selection processes as applied to Mr van der Kooij contrary to s 66A(1), s 66B(1)(a) or s 66B(1)(b) of the EO Act?
4)Did FESA directly discriminate against Mr van der Kooij on the ground of his impairment when it arranged for him to sit the NSW Test contrary to s 66A(1), s 66B(1)(a) and s 66B(1)(b) of the EO Act?
5)Did FESA offer Mr van der Kooij employment as a career firefighter and if so, did it directly discriminate against him in the terms and conditions on which that employment was offered, namely that he satisfactorily pass the NSW Test contrary to s 66B(1)(c) of the EO Act?
6)If FESA required Mr van der Kooij to pass the NSW Test and if that requirement was unlawfully discriminatory under s 66B(1)(b) or s 66B(1)(c), was it reasonable in the circumstances and within the exception provided for in s 66Q? That is, did FESA have regard to Mr van der Kooij's circumstances; did it take all reasonable steps to obtain relevant and necessary information concerning his impairment, and was it reasonable for FESA to rely on that information? Did FESA reasonably conclude that Mr van der Kooij, because of his impairment, would be unable to carry out the work reasonably required to be performed in the course of employment as a career firefighter?
7)Did FESA, in determining who should be offered employment as a career firefighter, require Mr van der Kooij to comply with a requirement or condition, for the purposes of s 66A(3) and s 66B(1)(b) of the EO Act, that he pass the NSW Test?
8)If so, was that requirement or condition:
i)one with which a substantially higher proportion of persons who did not have the same impairment as Mr van der Kooij could comply or were able to comply;
ii)not reasonable having regard to the circumstances of the case; and
iii)one with which Mr van der Kooij did not or was not able to comply?
9)If FESA unlawfully discriminated against Mr van der Kooij, is Mr van der Kooij entitled to a remedy and, if so, what is that remedy?
The relevant legislation
Mr van der Kooij is claiming unlawful direct discrimination under s 66B(1)(a), s 66B(1)(b) and s 66B(1)(c) of the EO Act and unlawful indirect discrimination under s 66A(3) and s 66B(1)(b) of the EO Act. FESA seeks to rely on the exception provided in s 66Q of the EO Act. Set out below are the relevant statutory provisions.
Section 4 defines 'impairment':
… in relation to a person, means one or more of the following conditions -
(a)any defect or disturbance in the normal structure or functioning of a person's body;
(b)any defect or disturbance in the normal structure or functioning of a person's brain; or
(c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour,
whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment -
(d)which presently exists or existed in the past but has now ceased to exist; or
(e)which is imputed to the person;
Section 66A(1) of the EO Act states:
For the purposes of this EO Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of -
(a)the impairment of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person;
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
Section 66A(3) of the EO Act states:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply [original emphasis].
Section 66B(1) of the EO Act states:
It is unlawful for an employer to discriminate against a person on the ground of the person's impairment -
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
Section 66Q of the EO Act provides:
(1)Nothing in section 66B(1)(b) or (2)(c), 66C(1)(b) or (2)(c) or 66E(1)(a) or (2)(a) renders unlawful discrimination by an employer, principal or person against a person on the ground of the impairment of that person if it is reasonable for the employer, principal or person to conclude, on such grounds as having regard to the circumstances of the case and having taken all reasonable steps to obtain relevant and necessary information concerning the impairment it is reasonable for the employer, principal or person to rely on, that the person with the impairment because of that impairment -
(a)would be unable to carry out work reasonably required to be performed in the course of the employment or engagement concerned; or
(b)would, in order to carry out that work, require services or facilities that are not required by persons who do not have an impairment and the provision of which would impose an unjustifiable hardship on the employer, principal or person.
(2)Nothing in section 66B(1)(c), (2)(a) or (b), section 66C(1)(c), (2)(a) or (b), section 66D(1)(a) or (c) or section 66E(1)(b), (2)(b) or (3)(a) renders unlawful discrimination by an employer, principal or person against a person on the ground of the impairment of that person in respect of any determination by the employer, principal or person of any terms or conditions relating to the person with the impairment that are reasonable having regard to either or both of the following -
(a)any limitation or restriction that the impairment would or does impose on the person's ability to carry out the work required to be performed in the course of the employment or engagement concerned;
(b)any services or facilities that would be or are required by the person with the impairment in order to carry out the work referred to in paragraph (a) and that would not be or are not required by persons who do not have an impairment.
General legal principles
Mr van der Kooij must prove his case on the balance of probabilities; Dowling v Bowie (1952) 86 CLR 136: Williams and Commissioner of Police [2005] WASAT 349 at [34]. Discrimination proceedings are to be assessed on a case by case basis, and the standard of proof takes into account the seriousness of the allegations, the gravity of the consequences flowing from an adverse finding and the unlikelihood of the matters alleged having occurred: State of Victoria v Macedonian Teachers' Association of Victoria Inc (1991) 91 FCR 47 at [21. This is known as the Briginshaw standard of proof which is generally accepted as the relevant standard: Briginshaw v Briginshaw (1938) 60 CLR 336: Ronalds, Discrimination Law and Practice (3rd ed, 2008) at 202.
Mr van der Kooij does not need to show that FESA intended to discriminate against him. It is the effect of FESA's actions, not the underlying intent, that is the governing factor in determining whether the practice or conduct gives rise to discrimination: Garity v Commonwealth Bank [1999] HREOCA 92-966 (Garity); Waters v Public Transport Corporation (1991) 173 CLR 349 at 35; Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 (Jamal).
In this case, FESA is not entitled to make a decision made on guesses and assumptions as to Mr van der Kooij's capacity to do the job of a career firefigher. Therefore, we must decide if the process applied by FESA was infected with discriminatory conduct. We do not look to see if FESA made the correct decision with respect to employment of Mr van der Kooij.
Discriminatory conduct on the ground of impairment might arise either openly as a stated policy that has discriminatory effect, or as an unstated but prevailing discriminatory employment practice, including mechanisms adopted by an employer for recognising previous experience of an employee. The EO Act provides an exception to this principle in s 66Q whereby the employer, in this case FESA, must show through appropriate evidence what the inherent requirements of the job are, the nature and conduct of the job and the methods of performing it; FESA must assess fairly an inability to perform the inherent requirements of the job and it must not base its decision on perceived notions of ability or inability because of Mr van der Kooij's impairment. FESA's decision must be based on an 'objective standard'.
FESA must therefore look at the individual applicant, in this case Mr van der Kooij, and his specific abilities and needs and give him every opportunity to show that he can do the job despite his impairment. We need to be satisfied that this occurred with respect to Mr van der Kooij's application. If it did not, then we must find that FESA acted in an unlawfully discriminatory manner.
It is not necessary for Mr van der Kooij to show that his impairment was the sole, or even the dominant, ground for FESA's actions in order for unlawful discrimination to be proved. All that is required, is for Mr van der Kooij to show that his impairment was one of the grounds: see s 5 of the EO Act: Ghockson v Commissioner of Police (1996) EOC 92798 at 78,912 (WA, EOT) (Ghockson). However, the act that amounts to discrimination must be deliberate; that is, it must be advertent and done with the knowledge of the characteristic said to be the ground on which the discriminatory act is performed: Jamal.
Mr van der Kooij must also establish a causal connection between the ground of discrimination that he alleges and the decision or act that he complains about. He must show that he was treated 'less favourably' than another person in 'the same' or 'not materially different' circumstances because of his impairment: Purvis v State of NSW (Department of Education and Training) (2003) 217 CLR 92 at 163 (Purvis). The accepted test for causation is the 'but for test' as described by Kirby J in IW v City of Perth (1997) CLR 1 at 63. This test was applied in Purvis; Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80 at 99; Commonwealth v Human Rights and Equal Opportunity Commission (Dopking No 1) (1993) 46 FCR 191 at 223. The test is an objective one: Garity at 79, 129.
The expression 'less favourably' in s 63A of the EO Act is to be given its ordinary meaning. It requires us to apply our judgment to the facts found proved in the particular case within the context of the objectives of the EO Act as set out in the long title and in s 3: Ghockson at 78,911; Haines v Leves (1987) 8 NSWLR 442 at 471; Purvis.
In considering whether circumstances are 'the same' or 'not materially different', the circumstances that we must consider are all of the objective features which surround the actual or intended treatment that is said to have been 'less favourable': Purvis.
Implicit in the notion of one person being treated 'less favourably' than another in 'the same' circumstances is the necessity to establish a comparator so that we can examine two situations or sets of circumstances, the actual and the hypothesised, in order to determine, by comparison, whether the treatment in the former is 'less favourable' than in the latter: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19.
The comparator
The basis of ascertaining whether direct discrimination, as alleged by Mr van der Kooij, occurred is that we compare how FESA treats Mr van der Kooij with how FESA would treat someone else, known as the comparator. The basis of that comparison is 'less favourable treatment'; see s 63A of the EO Act.
In his closing submissions, Mr van der Kooij proposes the following comparator (see [3(d)], [4] and [5]): 'another person who does not have the applicant's impairment'. FESA agrees that this is the correct comparator but words it slightly differently: the comparator is 'an applicant who did not have the same impairment as the applicant.' See [23] and [24] of FESA's closing submissions and [39] of its statement of issues, facts and contentions.
We find that the appropriate comparator against which we test FESA's conduct is 'applicants who are not colour vision deficient'.
Mr van der Kooij's impairment
In assessing whether or not Mr van der Kooij was subjected to unlawful discrimination, we must first decide whether Mr van der Kooij has an 'impairment' within the meaning of s 4 of the EO Act.
It is common ground that Mr van der Kooij's colour vision deficiency is an impairment for the purposes of the EO Act; what is not common ground is the precise nature and extent of that impairment.
Diagnosis of impairment
The history of how Mr van der Kooij's impairment was first recognised and subsequently diagnosed provides a context for Mr van der Kooij's allegations and a framework for discussion of the relevant technical terms.
Mr van der Kooij gave evidence that he had no idea that he was colour vision deficient until he underwent medical testing as part of his fourth application to become a career firefighter.
Mr van der Kooij was given the Ishihara Test as part of his medical examination (pre-employment health assessment). The Ishihara Test is used as the initial screening test for colour deficiency and is generally the Australian standard. Dr Overmeire said that the test is an effective screening test for redgreen colour deficiency. Individuals who pass this test have normal colour vision and, insofar as colour vision requirements apply, are regarded as suitable for employment by FESA without further colour vision testing. Mr van der Kooij made 15 identification errors (a 0% correct score) and therefore failed the test.
Dr Overmeire is employed by the body contracted by FESA to conduct pre-employment health assessments for career firefighters. He bases the need to test for colour vision deficiency and other conditions on what he understands is the policy of FESA to 'defer' to the Australasian Fire Authorities Council's 'Guidelines for Health and Fitness Monitoring of Australasian Fire and Emergency Service Workers 2002' (AFAC guidelines).
According to Professor Dain, in terms of difficulty, the Ishihara Test is the most difficult of the standard tests to pass. Close to 100% of people with red-green colour deficiencies will fail it. However, a person with a very mild deficiency may be able to pass the test. A colour vision deficiency can be a 'red colour deficiency' known as a 'protan defect'; a 'green colour deficiency' known as a 'deutan defect'; or a 'blue colour deficiency', known as a 'tritan defect'.
Dr Overmeire said that the medical report he was required to complete for FESA provided that if an applicant made two or more errors on the Ishihara Test, then the applicant had to be referred for further testing. The preprinted form also provided that 'Protans and severe Deutans do not meet the required standard'.
As Mr van der Kooij had failed the Ishihara test, Dr Overmeire referred him to Abernethy Owens, optometrists, for further testing. He wrote:
The above patient was examined today for FESA, as part of a fire fighter pre-employment medical assessment.
He failed the Ishihara colour plate examination, with a 0% correct score. The Australian Fire Authorities Council now recommends that he be referred [for] further colour vision testing, specifically to determine whether he has a mild or severe, deuteron or protan colour blindness.
I would be grateful if you could assess his colour vision, using a Medmont C100 (preferred by AFAC) or Farnsworth test, and forward the results to be (sic) as soon as possible.
In his evidence, Dr Overmeire admitted that he had not been specific about whether the Farnsworth D15 Test or the Farnsworth D15 Desaturated Test should be used, but he said he meant the former. He said he was seeking to determine what type of colour vision deficiency Mr van der Kooij had and also:
…what level of severity of colour vision he might have been suffering from given that that is the issue at play here in terms of the risk assessment for firefighting. (T: 41, 09.09.08)
The research paper from which the NSW Test was developed, SJ Dain and LE Hughes, Colour Vision Results in New South Wales Fire Brigades, describes at 6 the types of congenital colour deficiencies as follows:
Congenital colour deficiencies are caused by photopigment abnormalities in the cone receptors of the retina. In monochromasy there may be one or no functioning cone receptors which generally results in reduced visual acuity, photophobia, nystagmus and severe inability to identify colours. In dichromasy there are only two cone photopigments, which results in a substantial loss of colour vision. The long-wave 'red' sensitive photopigment is absent in protanopes, the middle-wave 'green' sensitive photopigment is absent in deuteranopes and 'tritans' lack the short-wave 'blue' sensitive pigment.
A further colour deficiency, anomalous trichromatism, occurs when all three photopigments are present but one is abnormal. Protanomalous trichromats have an abnormal 'red' photopigment, deuteranomalous trichromats have an abnormal 'green' photopigment. The abnormalities of the photopigments vary widely and consequently the severity can range from mild to severe (Birch 1993).
In describing what is called a CIE 1976 chromaticity diagram, the report stated:
Isochromatic lines show the colour confusions made by Dichromats. Deuteranopes (green lines), Protanopes (red lines) and 'tritans' (blue lines) confuse the colours with coordinates falling along each line providing no luminance contrast exists. Thus deuteranopes will confuse greens, oranges, reds and browns. Green with white and with some blues. Protanopes confuse similar colours and 'tritans' blues with greens and reds. Anomalous trichromats make similar confusions but not to the same extent as their isochromatic lines are shorter, thus are more likely to confuse shades of colours.
In the glossary section of that research paper, deutan is defined as the collective name for deuteranopes and deuteranomals and protan as the collective name for protanopes and protanomals.
Testing by Mr Waddingham
Mr van der Kooij was tested at Abernethy Owens by Mr Waddingham, an optometrist. He administered two tests, the Farnsworth D15 Desaturated Test (which he incorrectly described in his witness statement as the Farnsworth D15 Test) and the Medmont C100 Test. After testing, he wrote to FESA as follows:
As requested I have examined Mr Van Der Kooij's colour vision.
The Medmont C100 Test indicated only very mild deuteranopia. The Farnsworth D-15 Desaturated Test indicated a Deutan trend but it was not severe. (A copy is attached).
This was quite a contrast to the Ishihara which, as noted by you, indicated considerable colour vision deficiencies.
He is convinced that he has very good recognition of colours which I explained to him is usually through association.
In his evidence, Mr Waddingham stated that in the Farnsworth D15 Desaturated Test, Mr van der Kooij had made two or possibly three 'crossovers' (or mistakes) on the first test and three to four crossovers on the retest. A full deviation would have been six or seven crossovers, hence the opinion expressed in his letter that the deutan trend was not severe. He said, however, in his witness statement at [8], that the results:
… still clearly indicated a considerable Deutan pattern, which is commonly referred to as green blind.
Mr Waddingham said that the Medmont C100 Test is used to differentiate between protans and deutans and that the test result for Mr van der Kooij showed he had a decreased sensitivity to green (deutan defect), but that he did not classify Mr van der Kooij as a severe deutan.
Mr Waddingham also said that a deutranope has an absence of green core pigment and will have a reduced ability to identify colours and will confuse red, yellow and green with white and green.
Professor Dain disputed the reading of the results of the tests and the subsequent diagnosis made by Mr Waddingham on the basis of what he said, were a number of interpretive errors and errors of terminology made by Mr Waddingham.
Professor Dain stated that it is not possible for Mr van der Kooij to have only 'very mild deuteranopia' as stated by Mr Waddingham in his letter to FESA. The condition of deuteranopia is one where a person lacks one of the cone receptors totally. The ability to distinguish redness-greenness is absent and therefore, there is no relevant classification of mild or severe; there are no degrees of severity. However, Professor Dain suggested that Mr Waddingham might have meant to refer to the condition of deuteranomaly (abnormal cone receptor) and it is the case that people with moderate to severe deuteranomaly will, like those with deuteranopia, fail the Farnsworth D15 Test. The test cannot, however, distinguish deuteranomaly from deuteranopia. This can only be done with an instrument known as an anomaloscope.
Professor Dain was of the view that Mr Waddingham could also not conclude that the results of the Farnsworth D15 Desaturated Test (which is more difficult to pass than the Farnsworth D15 Test) indicated a deutan trend for Mr van der Kooij but that it was not severe. Professor Dain said that the result of the test can only be pass or fail; it is not a quantitative test based on the number of 'crossovers'. Nonetheless, after studying the test results Professor Dain calculated Mr van der Kooij as making seven 'crossovers' (not three or four as calculated by Mr Waddingham) and that he therefore clearly failed the test and by reason of that failure, demonstrated a severe deutan trend.
Professor Dain also challenged Mr Waddingham's interpretation of the results of the Medmont C100 Test. In his view, it is a misuse of the test to rely on it to diagnose 'mild deuteranopia'. Professor Dain said that what the Medmont C100 Test shows, with excellent precision, is whether or not a person is a protan, which is the collective name for people who suffer from an absent or abnormal red sensitive cone receptor/photopigment.
Under crossexamination, Mr Waddingham accepted that he was incorrect to show a 'pass' for Mr van der Kooij on the Farnsworth D15 Desaturated Test, given that he wrongly calculated the number of crossovers and he conceded that it was incorrect to assess that the test indicated a deutan trend that is not severe. He agreed when it was put to him that the test results in fact indicated a severe deutan trend.
Mr Waddingham said that the test readings for Mr van der Kooij's Medmont C100 Test were less than two and he therefore classified him as a mild deutan. He conceded that the reference to deuteranopia in his letter to FESA was incorrect. He accepted that the purpose of the test is to determine whether a person is a protan or deutan but considered he was able to find that the deutan reading was not severe relative to other people he had tested.
Mr Waddingham tendered the Cole article as confirmation of what the Medmont C100 Test could tell him about Mr van der Kooij's colour vision deficiency. Mr Waddingham made particular reference to the description of Fig 2, at 162 where Cole refers to the Medmont C100 Test:
The subject views a yellowish flickering light generated by alternating red and green LED's and adjusts the control knob until the flicker disappears or is a minimum. […] The settings chosen to achieve no or minimal flicker are read on an arbitrary scale from -5 to +5 where +2.0 to -2.0 is the extreme range of normal settings but typically colour vision normal settings are within +/- 1.0. The scale is colour-coded red for protan settings, green for deutan and yellow for normal.
Because of his concern about the seeming inconsistency between the results of Mr van der Kooij's Ishihara Test and the results of his Medmont C100 Test, Mr Waddingham said he spoke with a person he describes as a colour vision expert at the Victorian College of Optometry. The discussion, according to Mr Waddingham, clarified his understanding that the Ishihara Test is merely a screening device and that further testing is required if a person fails that test. Mr Waddingham was satisfied that this is what he had undertaken with Mr van der Kooij.
In response to Mr Waddingham's assessment of Mr van der Kooij's Medmont C100 Test, Professor Dain stated:
If you look at the literature of people who have assessed the Medmont C100 it is quite clear it is very good at doing one thing and that is distinguishing protans from everybody else. It does not distinguish deutans from normals, nor does it give a quantitative diagnosis. So there is nothing in the caption that tells you that the diagnosis is in any way quantitative. I think there is an implication that you should get positive numbers for deutan but in reality that is actually not the case.
Can you explain just what the process is or the usual process and in fact that was followed here to some extent in assessing a person's colour vision deficiency if one exists beginning with the Ishihara test? --- I think there are three important things when you are examining somebody's colour vision. The first step is to decide, 'Are they normal or abnormal' and we use the Ishihara for that and that's a very good test for picking out the red green colour vision deficiencies but it doesn't tell us anything about how big the deficiency is and it is a little unreliable in telling us protan, deutan. The Medmont C100 is utterly reliable in identifying the protans as separate from everybody else and if you have already excluded the normals with the Ishihara you can therefore differentiate protans and deutans. Again, the Medmont gives us no idea of how big the deficiency is. The third part of any diagnosis is to make an estimate of how large the deficiency is and that is by far the most difficult part of the diagnosis. There are a number of ways of doing it but typically people in practice would start with something like the FarnsworthMunsell D15 and the people with the lesser deficiencies will pass that test and the people with the greater deficiencies will fail the test and then you can choose other tests - kind of subdivide - so you might then go and use - if they pass the D15 you might then go and do a desaturated D15 to subdivide those, kind of the lessers, into if you like the lesser lesser and the greater lesser. We kind of do that quite a bit in having a set of tests with differing difficulties. There is no test that really does kind of give somebody a score out of 10 for the extent of their deficiency (T: 10, 09.09.08).
Dr Overmeire accepted that his understanding, at the time he received the test results from Mr Waddingham, was that Mr van der Kooij's results on the Farnsworth D15 Desaturated Test indicated he had a moderate to severe deutan abnormality. He stated that he has modified his view of what the test can explain after hearing from Professor Dain but said in any case Mr van der Kooij's results warranted further testing.
The NSW Test results
Mr van der Kooij underwent further testing (including the NSW Test) at the School of Optometry and Vision Science at the University of New South Wales. The testing was carried out by staff optometrist, Ms Paula Katalinic, and her colleague, Professor Dain.
The standard clinical testing was undertaken on 12 June 2007 and the results were sent to FESA by letter dated 13 June 2007. The testing identified that Mr van der Kooij has a congenital colour vision deficiency (Sahlgren's Saturation Test result: error code 10).
The results of the standard tests were as follows:
1)Ishihara Test: 12 errors: fail;
2)Standard Farnsworth Munsell D15 Test: 7 crossings, deutan axis: fail
3)Farnsworth-Munsell H16 Test: 0 crossings: pass
4)Medmont C100 Test: mean setting = +1.3: not protan
5)Neitz Anomaloscope: matching range = 18 - 20 (midpoint 19): deuteranomaly; and
6)Farnsworth Lantern Test: run 1: 6 errors; run 2: 6 errors; run 3: 7 errors; mean errors run 2 and 3 = 6.5 errors: fail.
Mr van der Kooij also undertook the NSW Test with the following results:
1)Colour matching test: 6 errors; time elapsed 126: fail;
2)Colour detection test: 12 hits; 0 errors; time elapsed 62: fail; and
3)lamp detection test: 1 error; time elapsed 107: fail.
Ms Katalinic stated in her letter to FESA that:
These results indicate that [Mr van der Kooij] is a strong deuteranomal. He fails all parts of the Fire Brigades Test [NSW Test].
Professor Dain described the NSW Test combined with the six standard tests referred to above as a comprehensive colour vision examination on which a full clinical diagnosis may be made with confidence. He stated that in the light of all the test results read together, he is confident that the correct diagnosis is that Mr van der Kooij is 'strongly deuteranomalous' (witness statement at [22]).
In his witness statement, Professor Dain explains:
[23]A deutan deficiency results in confusion between greens, oranges, reds, browns, purples, greys and blue/greens. Basically the Applicant has trouble identifying redness/greenness. So if for example, you start with a grey and put a little bit of purple into it, the Applicant would need a lot more purple before he realises it is not grey. Similarly, if you put blue/green there the same would happen. With brown, if you put red into the brown to make it reddish-brown or you put green into the brown to make it a greenishbrown, you have to put much more in before he identifies the change.
[24]But the Applicant is not bad enough that he would confuse a bright red traffic light with a green traffic light but it is entirely different if you were to put him in an adverse environment.
Clinical diagnosis strongly deuteranomalous
We prefer the evidence of Professor Dain over that of Mr Waddingham as it relates to the clinical diagnosis of Mr van der Kooij's impairment. Professor Dain is a recognised specialist and expert in the field of colour vision deficiency and his explanation was clear, concise and logical. It was supported by extensive research and independent comment.
Mr Waddingham was confused about the types of colour vision deficiencies that exist and the use to which the various standard colour vision tests could be put. Under crossexamination, he accepted that Mr van der Kooij's results on the Farnsworth D15 Test could not lead to the conclusion that he had earlier reached, namely that Mr van der Kooij does not have a 'severe' impairment. In classifying Mr van der Kooij as a 'mild deutan' using the Medmont C100 Test, Mr Waddingham used the test results in a way that, on the evidence of Professor Dain, is not a proper use of that test. We agree with Professor Dain.
For these reasons, we find that we cannot rely on the testing and assessment carried out by Mr Waddingham. We rely instead on the clinical diagnosis made by Ms Katalinic.
We find that the correct diagnosis of Mr van der Kooij's colour vision impairment is that he is strongly deuteranomalous.
What that diagnosis means in the context of Mr van der Kooij's application to become a career firefighter and his subsequent claim of unlawful discrimination when he was not ultimately employed by FESA as a career firefighter, is the subject of the remainder of these reasons.
The AFAC guidelines
In assessing a candidate's ability to be a career firefighter, FESA takes into account the AFAC guidelines which were specifically devised for the firefighting sector. The guidelines highlight medical conditions, including defective colour vision, that could impact adversely on a person's ability to perform the tasks of firefighting effectively and safely.
Mr van der Kooij queries the 'legal status' of the AFAC guidelines and whether they exempt FESA from the provisions of the EO Act.
What are the AFAC guidelines?
The AFAC guidelines comprise a document which together with its appendices is about 100 pages. In late 1999, the Australian Fire Authorities Council decided to develop guidelines 'related to the health and physical fitness monitoring of career and volunteer firefighters' (at 4). After what is described as an extensive consultation process with operational firefighters, human resources and fitness and medical experts from within the firefighting industry, the guidelines were finalised in the form of the finished document. The authors state that the health and fitness field is both complex and dynamic and that the guidelines should be subject to review and, potentially, evidencebased modification. The document provided to the Tribunal is described as Version 30 April 2003, although its title dates it as at 2002.
It is important to note that the AFAC guidelines are not intended to be prescriptive; their purpose is to provide an 'indication' of the types of medical conditions that might preclude a person from the safe performance of active firefighting duties (AFAC guidelines at 15).
The AFAC guidelines 'do not purport to cover more than fire agency personnel providing fire and a variety of other emergency service functions' and have been developed with 'the primary focus being injury and illness prevention within AFAC agencies' (at 4 5).
The member agencies are expected to 'identify broad categories of physical and medical characteristics suitable to its firefighting function' (at 7) and the guidelines provide a model breakdown in appendix A. The guidelines provide that it is vital that agencies perform a risk analysis of the essential firefighting functions to ensure the relevant medical practitioner is given adequate guidance when conducting medical examinations.
There was no evidence before us as to whether FESA had undertaken this task in the form suggested by the AFAC guidelines or whether it formally created a document detailing these categories.
The AFAC guidelines were therefore developed as a means of monitoring the health and fitness of existing firefighting personnel. The AFAC guidelines envisage a medical monitoring process. When a condition of importance is suspected, the medical practitioner may refer the firefighter to their usual doctor or to a specialist practitioner. FESA also uses the AFAC guidelines to assist it in the determination of the suitability of prospective firefighters.
The AFAC guidelines introduced a system of classification of a firefighter's medical status. This classification was used by Dr Overmeire in his preemployment health assessment of Mr van der Kooij. They are (at 9):
Class 1:fit for the nominated role without restriction or,
Class 2:fit for the nominated role, but there are some conditions about which the employer needs to be aware to meet the duty of care (for example, the need for glasses to drive, or other restriction), or
Class 3:unfit for the nominated role until further medical information obtained and a final classification is made or,
Class 4:unfit for the nominated role as the results of the preemployment health assessment are inconsistent with the person meeting the medical requirements of the intended role.
Firefighting functions: environmental factors
At 11, the AFAC guidelines list 'Essential Firefighting Functions'. The AFAC guidelines specify that medical and fitness monitoring is conducted on the basis of a thorough understanding of 'the health and fitness risks associated with the essential firefighting functions, which firefighters and other emergency service personnel are expected to perform at emergency incidents'.
In the development of the AFAC guidelines, an expert working party reviewed the medical requirements for firefighting, together with existing medical requirements for occupations that share some of the essential firefighting functions.
It is taken to be crucial to performing the essential functions of a firefighter that a person can work in extreme environmental conditions such as spending extensive time exposed to the elements, tolerating extreme fluctuations in temperature and humidity, wearing protective equipment which weighs approximately 25 kilograms, facing exposure to physical chemical or biological hazards, driving and operating heavy vehicles and particularly, operating in environments of high noise, poor visibility, limited mobility, at heights, in enclosed or confined spaces and relying on senses of sight, hearing, smell and touch to help determine the nature of the emergency, maintain personal safety and make critical decisions in a confused, chaotic and potentially lifethreatening environment (at 11).
Medical guidelines
The purpose of the 'Medical Guidelines' in the AFAC guidelines (at 13) is to highlight medical conditions which if they remain undetected could impact adversely on a firefighter's ability to perform the necessary tasks of firefighting. The medical guidelines assist medical and health professionals to assess the fitness of firefighters to safely perform their essential functions. They are based on current medical evidence and apply to both urban and rural firefighters, whether fulltime, retained or volunteers.
The AFAC guidelines detail the 'most critical medical conditions' affecting firefighting (at 14). They are intended to be used as a guide to the most appropriate decision‑making process and do not purport to be a prescriptive or exhaustive list. The section on the relevant medical conditions was developed with reference to (at 14):
Medical Examinations of Commercial Vehicle Drivers, National Road Transport Commission (1997 and updated in 2002).
Medical Requirements for Firefighters, national Fire Protection Association (2000) and
Expert Australian fire service physicians.
Although the above were referred to, there were 'important variations, alterations and re-writing of firefighter-specific medical problems' (at 14). The authors counsel those who rely on the AFAC guidelines, in particular those relating to medical conditions and firefighting, to read the guidelines 'carefully in its own right' (at 14). The major categories of medical conditions are listed as: cardiovascular conditions; alcohol; drugs other than alcohol; psychiatric disorders; neurological conditions; neuromuscular disorders including Multiple Sclerosis and Parkinsonism; dementia and other cognitive impairments; serious acquired brain injury; syncope; sleep disorders; vision and eye disorders; hearing; vestibular dysfunction; locomotor disabilities; endocrine disorders; gastrointestinal disorders; respiratory conditions; renal conditions; cancer; HIV infection and pregnancy.
Each medical category includes an explanation of the rationale for its inclusion; its epidemiology; effects on firefighting and a medical guideline. Medical conditions are characterised (at 15) as either:
Category A conditions: indicate circumstances that might preclude the safe performance of active firefighting duties and require medical clearance by the specialist treating doctor or a medical panel.
Category B conditions: indicate that a thorough work-related risk assessment is required, and that before an individual is determined capable of fully performing firefighting duties some restrictions or constraints may apply [emphasis added].
The AFAC guidelines strongly recommend that agencies have a dedicated medical advisor who is suitably qualified. Dr Overmeire has been a Fellow of the Australasian Faculty of Occupational and Environmental Medicine (Royal Australasian College of Physicians) since 2001 and is therefore considered, under the AFAC guidelines, to be an appropriate medical practitioner to undertake Mr van der Kooij's preemployment health assessment.
Colour perception
Mr van der Kooij's relevant medical condition is 'colour perception' within the broader category of 'Vision and Eye Disorders' and is described at 36 37 of the AFAC guidelines. The other subcategories in this division are 'visual acuity' and 'visual fields'.
With respect to 'visual field', a person will be classified as 'Category A' if, for example, they have monocular vision. A person will be 'Category B' if they have a certain partial field loss and consideration is to be given to the likelihood of the condition progressing and its impact on essential firefighting duties.
In the area of colour perception, the AFAC guidelines state (36 - 37):
11.3.1 Epidemiology
Defective colour vision is mainly inherited. It occurs in 8.0% of men and about 0.2% of women. Of men 2.0% have a red perception difficulty (protan defect) and 6.0% have a green perception difficulty (deutan defect). Less than 0.5% have a severe red perception difficulty (protanopia).
Some studies have indicated that drivers with protan defect have a reduced visual distance for other vehicles' taillights and for red traffic signal lights. Drivers with a protan defect have an increased nose to tail collision rate.
A recent review of studies of motor vehicle accidents and drivers with colour blindness has found that drivers with severe colour blindness are at increased risk.
11.3.2 Effects on firefighting
Firefighting is a varied, demanding and often unpredictable occupation. Accurate colour discrimination not only impacts on the effectiveness of doing the work, but also safety. Visual conditions are often sub-optimal. Smoke, darkness and distance makes colour discrimination difficult. Electrical circuitry and emergency gauges/alarm boards all rely on accurate colour discrimination for safety.
Emergency Driving
Because of the decreased sensitivity to red, protanopes and protanomals have a reduced awareness of brake lights and other red light signals. This form of colour vision deficiency is not compatible with safe driving for heavy vehicles (such as fire appliances) or vehicles travelling under emergency conditions.
Discrimination of other firefighting tasks
A recent Australian study has shown that persons with dichromatic colour defects (protanopes and deutranopes) have difficulty in discriminating between colours involved in essential firefighting tasks. Some deutranomals have colour perception that is adequate for most tasks, and may be considered safe for firefighting. Protanomals are considered unsafe for firefighting because of the associated driving requirements.
11.3.3 Guideline
Colour vision is to be initially assessed with the - Ishihara Test administered under good lighting. Where three or more errors are made (out of 24 plates), further assessment is required. A Medmont C100 (or OSCAR) vision tester should be used to identify protans …
Category A:
Persons [with] protanopia and protanomalous trichomatism
Persons with deutranopia
Category B:
Person with deutranomalous trichromatism may meet the criteria for firefighting, subject to passing the firefighters colour vision test (FCV test).
Persons with tritanism should be referred for specialist assessment ...
The particular 'firefighters colour vision test' referred to in the AFAC guidelines is not identified.
Under the guidelines, Mr van der Kooij, with a colour perception diagnosis of strongly deuteranomalous, would be classified as a 'Category B' person and that is how Dr Overmeire proceeded with his report of Mr van der Kooij's preemployment health assessment.
FESA's recruitment process
FESA's recruitment process begins with a written application. Prospective career firefighters are given an application package in which they are advised of the process which is as follows:
1)preselection phase:
a)complete job application form and requirements;
b)employment profile testing; and
c)physical testing;
2)selection phase:
a)panel interview;
b)functional movement assessment;
c)preemployment health assessment; and
d)proof of qualifications and integrity check;
3)recruitment pool;
4)training school;
5)graduation; and
6)probation.
FESA relies on the preselection phase to determine the best candidates to progress through to the selection phase of the recruitment process and to therefore be included in a recruitment pool. They remain in the pool as a potential appointee for approximately twelve months.
The pre-selection phase requires the candidates to have accurately completed all of the job application requirements detailed in the application package and to have obtained highly competitive results (relative to the other applicants) on the 'FESA Employment Profile'. This testing is conducted by the University of Western Australia and is to enable FESA 'to identify the type of person FESA considers is suitable to join the organisation as well as their ability to perform successfully in the position of Firefighter' (letter accompanying the application package).
An applicant could 'fail' at this pre-selection phase and not be further considered in the recruitment process, without redress to FESA. Mr van der Kooij, in his evidence, stated that on his second and third attempts to become a career firefighter, he did not proceed from the preselection phase because of his results on the profile testing.
If a person is successful at the pre-selection stage, they proceed to the next stage which includes physical abilities testing. Those who meet the physical requirements proceed to a panel interview to assess other skills not already determined through the profile testing.
Once through the panel interview stage, the recommended candidates are required to undergo the preemployment health assessment which consists of a full medical examination to ensure that they are capable of performing the role of a firefighter. Candidates are also required to provide evidence that they have achieved the heavy rigid licence (manual), the St John's Senior First Aid Certificate and a National Police Certificate, before being offered a placement in the recruitment pool.
The application form describes the physical abilities testing, which involves a number of actual physical tests for cardiovascular fitness; height anxiety; anaerobic power and agility; simulated victim rescue which tests the applicant's aerobic and anaerobic capacity and both upper and lower body muscular strength; simulated heavy tool operation; simulated equipment carry; simulated hose drag; and confined space anxiety test.
Applicants are not required to submit a medical evaluation form from their medical practitioner; rather they are required to respond to a number of medical and fitness related questions in the application form. This includes the question: 'Do you have intact physical senses (that is, vision, hearing, smell) to be able to respond quickly to dangers or emergencies?' Mr van der Kooij responded 'Yes'. The form continues:
Please indicate with a tick if you suffer from or have problems or deficiencies with any of the following (NB: If you do, you may not be considered fit for undertaking Firefighter duties): Asthma; Epilepsy; Diabetes; Poor Eyesight (Distance vision worse than 6/12); Colour Blindness (Mild green perception difficulties are acceptable but not red perception difficulties {protans}) Poor Hearing (Average threshold of 48 decibels or worse in 500 1000, 2000 and 3000 Hz or difficulty understanding speech in the presence of background noise).
Mr van der Kooij did not tick any of the nominated conditions.
Another important reference in the application form to a person's health and fitness, is the 'Medical Examination/Evaluation' which is the preemployment health assessment and which occurs at the stage when applicants are recommended for appointment. The application form states plainly that:
Those candidates who do not meet the required standards for any part of the medical examination will not be offered a position as a Firefighter.
The application form refers to visual requirements which do not correspond exactly to the AFAC guidelines: for example, the application form mentions corrective laser surgery which is not covered in the AFAC guidelines; 'visual fields' are not mentioned at all and with respect to colour vision deficiency, the application form simply states:
Colour vision testing is performed using the 'Ishihara Plate Test'. Candidates must correctly identify all of the 'Ishihara Plates' shown to them. In the event of failure, candidates may complete a further test with a specialist in that field.
In comparison, the AFAC Guidelines state that it is only with three or more errors out of 24 plates that further assessment is required.
Finally, the application form refers to the appointment of a successful applicant and the general conditions of service of a career firefighter. The successful applicant attends training school and after graduation commences a 12 month period of probation. Permanency is subject to satisfactory performance during the probationary period.
The recruitment process for Mr van der Kooij
There is a dispute between Mr van der Kooij and FESA as to how far Mr van der Kooij's recruitment process actually progressed and whether Mr van der Kooij had in fact been offered employment by FESA.
It appears that Mr van der Kooij's application effectively stopped when the preemployment health assessment was finalised. It is unclear whether Mr van der Kooij was in the recruitment pool (which is why he attended a uniform fitting) or whether the process stopped whilst Mr van der Kooij was still in the 'selection phase' of the recruitment process.
The agreed facts show that in May 2006, Mr van der Kooij applied for the fourth time to become a career firefighter with FESA. He was successful in the pre-selection phase of the recruitment process, completed the physical abilities testing and proceeded through to the panel interview.
Mr van der Kooij stated that he was then invited to attend the training school to be held on 19 September 2006, pending a successful medical examination.
Ms Josephine Fern (FESA firefighter, recruitment and rehabilitation sections) stated that Mr van der Kooij was introduced late into the selection process because one of the other applicants had withdrawn their application and another was required to undergo further medical testing. She said that as a consequence and as the training school was to commence on 19 September 2006, the time frame for Mr van der Kooij to complete all stages of the process was very tight. It was against this background that Mr van der Kooij went to Dr Overmeire for his preemployment health assessment and for his uniform fitting.
Preemployment health assessment
Dr Overmeire saw Mr van der Kooij on 17 August 2006 for his preemployment health assessment the purpose of which was to determine whether or not Mr van der Kooij was capable of performing the role of career firefighter.
It was at that medical assessment that Dr Overmeire diagnosed Mr van der Kooij with a form of colour vision deficiency by using the Ishihara Test. In his medical report, Dr Overmeire stated that Mr van der Kooij made 15 errors on the test and that therefore he could not be certain that he could recommend that Mr van der Kooij be employed as a firefighter, stating 'needs further colour vision testing'. This is in accordance with the process set out in the recruitment package.
Mr van der Kooij stated that he was told by Dr Overmeire after the Ishihara Test that it was 'the end of the line' for him and that he could not proceed any further with his application 'because he was colourblind'. Mr van der Kooij said Dr Overmeire gave him some examples of what he could not do as a firefighter because of his condition. Mr van der Kooij said he was not satisfied with the explanation and asked for better examples, but Dr Overmeire advised him to speak with FESA.
In his evidence, Dr Overmeire could not recall saying to Mr van der Kooij on 17 August 2006 that he could not be a firefighter. He said he told Mr van der Kooij that he had failed the Ishihara Test and that further testing would be required so as to obtain a comprehensive and accurate assessment of the status of his colour vision. The fact that he arranged further testing, Dr Overmeire said, showed that he had not yet made up his mind. In this process, he said he was using the AFAC guidelines as a guide but that he was also relying on his experience in dealing with fire services and other emergency services such as the Metropolitan Police in London.
Dr Overmiere recalled a conversation with Mr van der Kooij that included the giving of examples of things he could not do due to his condition, but he said that occurred after he had received the results and report from Mr Waddingham.
Mr van der Kooij stated that when he was tested at Abernethy Owens on 22 August 2006, Mr Waddingham had told him that the results were favourable and that his colour vision deficiency was not as bad as that described by Dr Overmeire. He said he contacted Ms Fern on the same day to tell her what he understood Mr Waddingham had said. He said he did not tell Ms Fern (as she alleges) that he had had no problem with his colour vision and that he had passed the tests.
Mr Waddingham stated that he never formed an opinion regarding the minimum requirement for colour vision either required by FESA or for properly carrying out the role of a firefighter. He said it was not his role to form such an opinion. He further stated that he had a conversation with Dr Overmeire about the test results and his opinion that Mr van der Kooij suffers from a deutan (green) deficiency. Mr Waddingham said Dr Overmeire told him that FESA may need to investigate Mr van der Kooij's condition further and mentioned an eastern states test used to assess colour vision deficiency for the specific job requirements of a firefighter.
'Class 3' status
Ms Fern stated that she received the results and report from Mr Waddingham on 24 August 2006 and faxed them immediately to Dr Overmeire. Dr Overmeire stated that he reviewed Mr Waddingham's report on 24 August 2006 (he originally said 23 August 2006); that he did not agree with the optometrist's assessment and therefore, on the same day, classified Mr van der Kooij as per the AFAC guidelines, as a 'Class 3 - temporarily unfit, further information required'.
Dr Overmeire stated that his decision to classify Mr van der Kooij as a 'Class 3' was because his reading of Mr Waddingham's testing showed that Mr van der Kooij had a moderate to severe deutan abnormality and he therefore could not be satisfied at that point that Mr van der Kooij would be able to undertake the requirements of a firefighter in a safe manner.
Dr Overmeire stated that had Mr van der Kooij's results on the Farnsworth D15 Test been 'normal', he would have passed him despite his colour vision deficiency. He said that his understanding of the international literature and his experience with the Metropolitan Police in London was that people who failed the Farnsworth D15 Test would generally not be accepted for employment in emergency services.
Dr Overmiere stated that he asked his reception staff to fax his assessment to Ms Fern on the day but he could not say whether this occurred.
Contact with Ms Fern
Ms Fern stated that she contacted Mr Waddingham on 23 August 2006 and he told her that Mr van der Kooij seemed to manage with his current job as a licensed plumber, that he compensated for his disability and that he did not think there would be a problem. Ms Fern said she noticed the word 'passed' on the test scores undertaken by Mr Waddingham.
Mr van der Kooij agreed that he made regular contact with Ms Fern between 24 August 2006 and 29 August 2006 to find out the determination of Dr Overmeire after Mr Waddingham's testing. He said he made contemporaneous notes of two telephone conversations he had with Ms Fern on 30 August 2006 and 1 September 2006. He said he destroyed the original of the notes because when he scribbled down his version of the conversations, he had made a number of spelling mistakes. Before destroying the original, Mr van der Kooij rewrote his notes, correcting the spelling mistakes and he said he also added some notes for when he obtained legal advice in early 2007. A photocopy of the rewritten notes was initially given to the Tribunal and the original of that document was provided on the second hearing day (Exhibit 10).
Mr van der Kooij alleged that in the first conversation on 30 August 2006, Ms Fern contacted him and said that he needed to start at training school for the September intake of recruits and that he had 'passed' the colour vision testing. She informed Mr van der Kooij of the address he needed to attend for his uniform fitting and advised him to tell his current employer that he would have to finish his employment in the next one to two weeks. Mr van der Kooij alleges that Ms Fern told him that she would send him FESA's employment package which Ms Fern said included an offer of employment and is sent to an applicant when they have passed all the medical assessments, they have been deemed a 'Class 1' and they are about to commence their employment. In her evidence, Ms Fern said it would not have been offered or sent to Mr van der Kooij at this point. In any event, Mr van der Kooij did not receive FESA's employment package.
Mr van der Kooij contacted Ms Fern on 1 September 2006. He said he told Ms Fern that he had failed the truck driving test but was set to sit the test again in the following week. He alleges that Ms Fern said that she had to tell him something that distressed her and had kept her awake all of the night before. She said that FESA's doctor wanted him to undergo another colour vision test, that his application would be put on hold and that he could not start at the training school in September 2006. Mr van der Kooij said that he told Ms Fern he had his uniform fitted the day before and that he had given his employer notice that he was terminating his employment.
In his oral evidence, Mr van der Kooij said that the contact with Ms Fern on 30 August 2006 came across to him as meaning that everything had been sorted out and that he had been accepted and approved to proceed to the training school. He stated that earlier in the recruitment process, Ms Fern had told him that a final medical clearance was needed from Dr Overmeire but since Mr van der Kooij did not know what had occurred between FESA, Mr Waddingham and Dr Overmeire, he simply assumed that all outstanding matters had been fixed.
Ms Fern remembered the events somewhat differently. She stated that on 30 August 2006, she told Mr van der Kooij that 'things were looking pretty good' and that he should proceed to the uniform fitting. She said that it is standard practice (because of the tight time frames for the supplier of the uniforms to fill the orders) to have fittings done in advance of a recruit receiving a full medical clearance. She said her comments to Mr van der Kooij were based on Mr Waddingham's assessment which she told Mr van der Kooij showed a pass. However, she made it clear to Mr van der Kooij that any acceptance into the recruit training school in September was dependent on him obtaining a medical clearance from Dr Overmeire. She did not recall informing Mr van der Kooij to give notice to his employer. She stated that it is not her role to tell someone to resign from their employment and it should not be done by the person until they have the offer of employment letter from FESA, signed and accepted.
In her oral evidence, Ms Fern said that she gave Mr van der Kooij the dates regarding his attendance at training school but that it was dependent on the final medical clearance:
… I did sort of say to him that, 'We are pushing this along' [T: 75, 9.09.08].
Ms Fern said that Dr Overmiere contacted her on 1 September 2006 and advised her that the tests carried out by Mr Waddingham indicated that Mr van der Kooij had failed. He said that he was aware of a practical colour vision jobrelated test in NSW (which is the NSW Test) and she understood him then to suggest that FESA might like to give Mr van der Kooij the opportunity to sit that test to make absolutely certain that his colour vision deficiency precluded him from undertaking firefighting duties.
Dr Overmiere categorised Ms Fern's understanding of what he suggested to her about the NSW Test as the 'negative way of putting it' (T: 47, 9.09.08). He said that his view of having Mr van der Kooij sit the NSW Test was to determine whether he could demonstrate sufficient safety and efficiency to undertake firefighting duties. Dr Overmiere stated that he was aware of antidiscrimination legislation and the need to give Mr van der Kooij every opportunity to demonstrate safety in identifying the required colours within the required timeframes in the firefighting role. He said that he was not satisfied that he could assess Mr van der Kooij as unsuitable based only on the testing he had done and the testing undertaken by Mr Waddingham.
NSW Test recommended
Dr Overmeire stated that Mr van der Kooij is the first (and only) person with a colour vision deficiency that he has tested for the pre-employment health assessment for FESA. He was aware, through his experience, of the NSW Test (he had worked for the NSW Fire Brigade from September 2001 to December 2002), and in his conversations with Ms Fern he wanted to know whether something similar could be developed in Western Australia. He stated that he understood this would be a timeconsuming exercise and hence, the suggestion to refer Mr van der Kooij to undertake the NSW Test.
The agreed facts state that Dr Overmeire recommended to Mr van der Kooij that he participate in the NSW Test.
Mr van der Kooij stated that he received a letter from FESA (Ms Eccles) on or about 22 October 2006 advising that Dr Overmeire had deemed him as a 'Class 3' and stating that FESA was investigating the feasibility of what it called a 'Practical Colour Vision Test'. Nothing further was heard from FESA until Mr van der Kooij said he made contact on 8 January 2007. He said he was told that FESA was having difficulties acquiring the vision test for use in Western Australia.
Mr van der Kooij stated that he took legal advice that led to a meeting with FESA in February 2007 (with Dr Overmeire and Ms Eccles) and discussion occurred about the NSW Test with Dr Overmeire representing it as a practical test related to the firefighting job.
When the NSW Test was finally identified as being a possibility, Mr van der Kooij said he agreed to undertake the test to get a 'final yes or no', given this was his fourth attempt at becoming a firefighter (T: 88, 8.09.08). He had wondered whether he had been put in the 'too hard basket' and whether because of the time it was taking to get a final determination from FESA, his chance of being placed in the current recruitment pool would be lost (a recruitment pool expires after 12 months).
Mr van der Kooij stated that towards the end of May 2007, Ms Fern contacted him to advise that FESA had arranged for him to undertake the NSW Test but before that could happen, he would have to pass the 'Shuttle Run Test' which he did. This test is described in FESA's application package as part of the physical abilities testing, being the cardiovascular testing.
Ms Fern said that Mr van der Kooij indicated he was happy to do the NSW Test and that he would accept the outcome.
Ms Fern stated that for the period from September 2006 to December 2006, she was in contact with representatives of the NSW Fire Brigade about the NSW Test and how it could be made available for Mr van der Kooij. From 8 December 2006, she returned to FESA's rehabilitation section and Ms Eccles returned to her position as Recruitment Coordinator. Ms Fern stated that she was responsible for making all the travel and appointment arrangements for Mr van der Kooij to undergo the NSW Test in June 2007.
In her oral evidence, Ms Fern stated the decision to have Mr van der Kooij undergo the NSW Test in NSW was discussed with management and management made the final decision, although she did not recall the particular person. She saw the NSW Test as possibly being used more generally in Western Australia:
… if it is proving to be a good thing then why shouldn't Western Australia look into it and give people here as good an opportunity as anywhere else. [T: 80, 9.09.08]
We do not accept that Ms Fern offered to send an employment package to Mr van der Kooij at this point. In any event, one was not sent. It would be most unusual practice for Ms Fern to have sent an employment package prior to receiving medical clearance.
On 1 September 2006, Dr Overmeire advised Ms Fern that Mr van der Kooij had failed the colour vision test. He raised with her the possibility of Mr van der Kooij attending the NSW Test. Dr Overmeire says that he suggested the NSW Test to enable Mr van der Kooij to demonstrate that he could perform the functions of a firefighter safely. Ms Fern says that it was raised to give Mr van der Kooij every chance in his application.
The NSW Test
We accept that the NSW Test was at the time the most appropriate and valuable practical test for ascertaining acceptable and unacceptable levels of risk that colour vision deficient career firefighter applicants pose to themselves, their work colleagues and the public. On the evidence before us, we conclude that it provides a consistent, quick, convenient and equitable testing process so that all applicants are treated the same. It is based on colourcritical requirements for operational firefighting with all other characteristics and cues removed. Therefore, where there is a cue that is not colour-based and which enables a person to undertake a task, then that task is not included in the test.
The primary purpose of the NSW Test is that it enables the applicant to demonstrate that their colour vision is sufficiently adequate for firefighting. The test identifies people who represent a significant risk and those who represent an acceptable risk.
FESA sent Mr van der Kooij, at its cost, to do the NSW Test to give him one more chance to show he could do the necessary tasks involved in the job of firefighting; there was no sinister undertone or motivation in FESA's reasoning for sending Mr van der Kooij to do the test. It is not, as Mr van der Kooij alleges, that Dr Overmeire 'implemented this test mainly to cover FESA's possible legal liability, and his own liability as an occupational physician'; see [20(e)] of applicant's outline of closing submissions. Mr van der Kooij argues that Dr Overmeire knew that Mr van der Kooij would be likely to fail the NSW Test and sent him to do it nevertheless. We do not accept that.
On 1 September 2006, Ms Fern advised Mr van der Kooij that he would not be offered a place in the September recruitment school and discussed the NSW Test with him. Mr van der Kooij agreed to undertake the NSW Test.
Mr van der Kooij did not realise the nature of the NSW Test, in that it was a simulated test on a computer screen. We accept that he was 'shocked' but we find that this is a naïve view. It is a little surprising given Mr van der Kooij's passionate enthusiasm that he made no enquiries whatsoever and did not do any research on the NSW Test. It would have been helpful if FESA had obtained and given Mr van der Kooij some outline or available information on the NSW Test, or a relevant web address so that Mr van der Kooij could prepare for the test.
Is it a practical test?
We accept Professor Dain's evidence regarding the NSW Test. We also find that it is not feasible for an applicant to be a firefighter to be tested 'live' and 'in the field'. The danger posed is too great. In addition, as Professor Dain elucidated, a range of problems arise with this proposal including:
1)difficulties identifying the appropriate and acceptable tasks to be undertaken;
2)weather conditions need to be identical for each applicant;
3)an applicant could wait days, weeks or months for the right weather and atmospheric conditions; and
4)potentially, this sort of test would be very inequitable.
In our view, live testing would also be too dangerous and could not possibly be considered without the applicant having attended prior training. This would lead to a very expensive and time-consuming application process.
In June 2007, FESA was advised that Mr van der Kooij had failed all aspects of the NSW Test as well as the standard tests that he was required to complete. The results indicated that Mr van der Kooij was a strong deuteranomal. This is contrary to Mr van der Kooij's assertions that his 'level of colour blindness amounts to mild green perception difficulties': see [38] of applicant's amended statement of issues, facts and contentions.
We find that the correct diagnosis of Mr van der Kooij's colour vision impairment is that he is strongly/severely deuteranomalous.
On 28 June 2007, Dr Overmeire certified that Mr van der Kooij was medically unfit for firefighting ('Class 4') and FESA wrote to Mr van der Kooij on 11 July 2007 advising he would not be offered employment as firefighter.
The witnesses
We make reference in respect of each witness:
Mr van der Kooij
Mr van der Kooij was clearly very enthusiastic and passionate about firefighting. It was suggested that he was obsessed with becoming a firefighter and to some extent that showed through when he gave his evidence. It is clear that Mr van der Kooij cannot understand where and why he would have trouble being a firefighter. In our view, this lack of judgment could potentially make matters worse for him. He heard what he desperately wanted to hear, that is, his understanding of what Ms Fern told him was coloured by his passionate wish to become a firefighter. He therefore believed he had been accepted. We do not think that he intentionally misled FESA or the Tribunal in any way. However, we do not accept all of his evidence despite the fact that he believed what he was saying. At times, when giving his evidence, he was uncomfortable and looked away. He began to fidget. His credibility was damaged by his evidence regarding completion of the application to be a volunteer firefighter and his reasons for not disclosing his colour vision deficiency on that form even though he knew of the problem at the time. He also knew that FESA viewed it as a problem in firefighting, but he believed the onus was on FESA as a management issue to deal with it rather than for him to disclose it.
Mr van der Kooij's demeanour became less confident throughout his crossexamination. He failed to see how the NSW Test related to firefighting. His over-enthusiasm led him to read things into a situation. This enthusiasm was demonstrated by the example he gave of calling into fire stations, for example Osborne Park, to look at how they do things.
We accept Mr van der Kooij's evidence regarding his experience as a plumber and the various cues that he relies on to enable him to work efficiently and effectively despite his colour vision impairment. However, he does not work in critical emergency situations and his response would be slower in an emergency than other firefighters. We think it most commendable that Mr van der Kooij deals with his impairment in the way that he has. The examples he gave demonstrated how he has dealt with his colour vision deficiency in his plumbing work.
He was sometimes doubtful and vague in giving his evidence. For example, the discussions regarding his notes which form Exhibit 10. We find those notes were not contemporaneous notes and we attach little weight to them. Where there is a difference between Mr van der Kooij's evidence and Dr Overmeire's, Mr Bailey's or Ms Fern's evidence, we prefer the latter rather than Mr van der Kooij's. It was understandable that Mr van der Kooij became confused when Ms Fern sent him for a uniform fitting. As a consequence, he heard what he wanted to hear rather than what he was being told, which was that a decision had not yet been made.
We do not accept Mr van der Kooij's evidence regarding gas cylinders and his assumption that they would be 'properly maintained' so the issue would not arise if he were a firefigther; we accept the evidence that colour identification is becoming more important in this regard. Equally, it would be unsatisfactory for a career firefighter to rely on having memorised all fire alarm control panels in high-rise buildings rather than relying on colour to make an urgent immediate decision on site. We find that although the officer in charge usually undertakes this job, there may be situations where the responsible person would need to delegate this task to one of the crew.
In this regard, we note the importance of Professor Dain's explanation that if there is a non-colour cue to identify something and that cue is as accurate and as rapid as colour, then he did not include it in the test because it was not a colour-critical task. Only colour-critical tasks were included. Therefore, the NSW Test would allow for the fact that Mr van der Kooij compensates in other ways and it is likely that the NSW Test would have been overly generous in that regard.
Mr Waddingham
Mr Waddingham's documentary evidence was unreliable. He was also a tentative witness who was not firm in his views. Ultimately, he admitted he was wrong in his assessment of Mr van der Kooij and in the manner of the testing of Mr van der Kooij but he gave no reason or explanation for why he got it so wrong. We find that we cannot rely on his tests and we cannot rely on his evidence.
Mr Hawkins
Mr Hawkins is a volunteer firefighting captain of the brigade of which Mr van der Kooij is a member. We give his evidence little weight as it basically confirms that volunteer brigades are essentially 'mopup' brigades. He had not noticed anything untoward or a perceptible increased risk in working with Mr van der Kooij. However, that work is very limited compared to that of a career firefighter and we accept the other evidence given by Mr Bailey as to the differences between career and volunteer firefighters.
Dr Overmeire
Dr Overmeire was a professional and measured witness. We do not accept Mr van der Kooij's contention that Dr Overmeire's evidence is tainted by a vested interest in securing additional work from FESA and covering his own legal liability. We found him to be honest and open in his responses and his evidence.
Professor Dain
Professor Dain was an expert witness who identified problems with practical tests in the field. He described in detail the development of the NSW Test and its application. Counsel for Mr van der Kooij submitted that Professor Dain has a vested interest in having his test accepted. We note that Professor Dain receives no money for the use of his test. We found him to be an honest expert witness who was obliging and went out of his way to assist the Tribunal wherever possible.
Ms Eccles and Ms Fern
Both of these witnesses were very process and procedure driven and we accept their evidence as being a record of what occurred at the time.
Mr Bailey
Mr Bailey impressed us as a very good witness. His evidence was certainly useful in assisting the Tribunal to understand in a comprehensive way the extensive and difficult duties of a firefighter.
Decision
Mr van der Kooij is claiming unlawful direct discrimination by FESA under s 66B(1)(a), s 66B(1)(b) and s 66B(1)(c) of the EO Act and unlawful indirect discrimination under s 66A(3) and s 66B(1)(b) of the EO Act. He says FESA treated him less favourably than it would have treated an applicant who was not colour vision deficient. FESA says it did not treat Mr van der Kooij less favourably and in fact, it gave him every opportunity to demonstrate his ability to safely undertake the inherent duties of a firefighter. FESA seeks to rely on the exception in s 66Q of the EO Act to excuse any finding of unlawful conduct under s 66B(1)(b) and s 66B(1)(c) of the EO Act.
In essence, Mr van der Kooij claims that FESA unreasonably directly and indirectly discriminated against him because of his colour vision deficiency impairment. He says he does not pose a risk (or in any event an unacceptable risk) and the proof of that is well demonstrated in his many years as a successful plumber and his recognition as a valuable volunteer firefighter. He says that if FESA has any doubt, he should be given the opportunity to demonstrate his capacity to be a firefighter by serving a probationary period with FESA. Mr van der Kooij claims the NSW Test was not an appropriate means of assessing whether or not he posed a risk in the field if he were a career firefighter. He also says that he can wear colour view lenses to remedy any problems or risk that FESA says might arise.
In response, FESA says that Mr van der Kooij poses an unacceptable risk because of his colour vision deficiency impairment. FESA claims it has given Mr van der Kooij every available and possible opportunity to demonstrate that he could safely and effectively undertake the duties of a career firefighter but he has not been able to. In particular, Mr van der Kooij was given an unprecedented opportunity to demonstrate whether or not he posed a risk by being given the opportunity, at no cost to him, to do the NSW Test. FESA claims the NSW Test is an appropriate and fair means of testing whether a person with a colour vision deficiency can undertake the inherent duties of a firefighter in an emergency situation, without putting themselves, other firefighters and the public at an unacceptable risk of danger. Mr van der Kooij, in FESA's opinion, poses an unacceptable risk because he might not be able to quickly and accurately identify colour-coded equipment or other apparatus in an emergency situation with low visibility. This was clearly demonstrated by all of the testing Mr van der Kooij undertook during the recruitment process.
FESA therefore maintains that it did not impose rigid employment standards on Mr van der Kooij, but that its standard recruitment process was tailored to Mr van der Kooij's specific situation and requirements. Accordingly, FESA asserts it did nothing unlawful under the EO Act during the process leading to rejection of Mr van der Kooij's application to be a career firefighter.
For the reasons set out below, we accept FESA's submissions in this regard and find that it did not unlawfully discriminate against Mr van der Kooij.
Direct discrimination
Section 66B(1) of the EO Act sets out in sequence the steps in the recruitment and employment process which could give rise to unlawful discriminatory conduct: Vickers v The Ambulance Service of NSW [2006] FMCA 1232 (Vickers). This sequential element means that in order to understand s 66B(1) and its application we move through the key stages of the recruitment process of a potential new employee to ensure that there is no discrimination against a person with a disability, at each stage of the recruitment process. Therefore, s 66B(1)(a) deals with the preoffer stage; s 66B(1)(b) deals with the actual decision by the employer of whether or not to offer employment and s 66B(1)(c) deals with an offer of employment and the conditions imposed as part of that offer: see Vickers at [41].
We therefore look at each paragraph of s 66B(1) and test it against the facts and our findings to ascertain whether Mr van der Kooij was discriminated against at any stage of the recruitment process.
Section 66B(1)(a) of the EO Act
Mr van der Kooij alleges that FESA treated him less favourably on the ground of his impairment in the arrangements made for the purpose of determining if he should be offered employment than it would have treated a person who was not colour vision deficient. He says FESA assumed he was unfit to undertake the inherent functions of a firefighter and that it stereotyped him in a manner that precluded consideration of whether, in the light of his experience, he could perform firefighting duties despite his impairment. According to Mr van der Kooij, FESA did not consider whether the impairment could be corrected and it subjected him to the NSW Test, which no other applicant was required to undertake.
The arrangements made for the purpose of determining who should be offered employment include all the administrative and related steps which are crucial to the selection and appointment process. This includes the wording of any advertisements, the interviewing processes, the selection processes and any related procedures (C Ronalds and R Pepper, Discrimination Law and Practice (2nd ed, 2004) at 55).
This is an important arm of Mr van der Kooij's case because if he proves on the balance of probabilities that FESA discriminated against him in the preoffer stage, then he has made his case. FESA will not have the benefit of s 66Q exception for discriminatory conduct under s 66B(1)(a).
Section 66B(1)(a) is about the selection process and how it impacts on people with particular disabilities as a group or class. The question is, does the 'pre-employment' process discriminate against the person with a particular type of impairment (in this case colour vision deficiency) without regard to the person's individual characteristics, that is, before the employer has any knowledge of the individual characteristics of the person: see Y v Human Rights and Equal Opportunity Commissioner [2004] FCA 184 at [33] and [34] (Y), cited with approval in Vickers at [42].
FESA argues that Mr van der Kooij's claim under this section is misconceived. It says that s 66B(1)(a) applies in circumstances where an applicant is excluded from the process of selection before the prospective employer has any knowledge of the individual characteristics of the impaired person. The evidence in this matter is clear that FESA had knowledge of Mr van der Kooij's impairment at the time that Mr van der Kooij was offered the NSW Test. We agree with the argument that s 66B(1)(a) sets out the established ground under which persons with a disability are not even considered for employment. We find here on the facts that Mr van der Kooij's application was considered and he was given whatever opportunities he needed to prove that he could undertake the tasks of a firefighter.
FESA says that this section does not relate to discrimination where a particular individual is refused employment because of the person's particular disability; see Y at [33] and [34]. We accept that s 66B(1)(a) does not apply because FESA took steps to determine the nature and extent of Mr van der Kooij's impairment. Mr van der Kooij's impairment was not considered until the last point of the recruitment process, namely at the medical assessment. Nonetheless, we consider below Mr van der Kooij's argument further.
Mr van der Kooij must convince us to the requisite standard that FESA's recruitment process effectively excludes people with a colour vision deficiency without considering each individual applicant on their merits. FESA contends that the NSW Test and the standard tests form part of the arrangements made for the purpose of determining who should be offered employment. We note that applicants are required, as part of FESA's preselection process, to undergo a 'profile test' which if they do not 'pass', terminates their application. Mr van der Kooij did not raise the argument that this part of the preemployment process is discriminatory, although we note that he was excluded from the application process on his second and third attempts to become a career firefighter because he failed the test on both occasions.
Mr van der Kooij must show that the intention of the testing for colour vision deficiency (from the Ishihara Test through to the NSW Test) is to preclude a class of people, that is, there is an 'unshakeable preexisting view' of what people with a colour vision deficiency can or cannot do (Vickers at [40]).
There is something to be said, when all the material and evidence is considered (the AFAC guidelines; the application form; the application process), for the proposition that people who are a protan or severe deutan (such as Mr van der Kooij) have been historically considered not to be able to carry out the essential tasks of a firefighter or other emergency occupations by virtue of that impairment. It seems that the history of testing for these occupations as regards people with a colour vision deficiency has relied on the Ishihara Test and Farnsworth D15 Test to determine suitability.
FESA argues that the application process (preemployment process) does not preclude people with a colour vision deficiency as a class, but might preclude those with a severe form of the condition. However, the NSW Test is a reliable indicator, and it takes into account the individual merits or characteristics of the applicant.
As part of the application process, Mr van der Kooij was given the Ishihara Test which all applicants who get to the stage of the preemployment medical assessment are given. By failing the test, he was diagnosed as colour vision deficient (that is not in dispute). He was then further tested and retested and was diagnosed as strongly deuteranomalous.
Dr Overmeire's evidence and Ms Eccles' evidence indicate that the usual process (prior to the adoption of the NSW Test) was to exclude applicants at this stage, if they failed the Ishihara Test and Farnsworth D15 Test. At this point, there is a valid argument that an applicant's individual characteristics have not been considered.
We then ask whether the inclusion of the NSW Test overcomes any purported deficiency in the preemployment process, so that it cannot be said, as Mr van der Kooij argues, that the process has the effect of saying to applicants with a colour vision deficiency 'do not bother applying'?
We find on the balance, that Mr van der Kooij's case in this regard is not made out. All applicants entered the full medical testing on the same terms. There was nothing to suggest that Mr van der Kooij's colour vision deficiency was considered by FESA prior to the full medical examination. A person can be colour vision deficient and employed as a firefighter if they fail the Ishihara Test but pass the Farnsworth D15 Test. There is therefore not a 'blanket policy' of FESA to exclude colour vision deficient people from its employ as firefighters (Vickers at [39] and this is supported by the AFAC guidelines and FESA's application form and application process).
In our view, it is not unreasonable for FESA to refer to the AFAC guidelines when deciding its recruitment policy. It is clearly not bound by the AFAC guidelines, and although they do not purport to be prescriptive, they are a useful tool.
We therefore dismiss Mr van der Kooij's claim under s 66B(1)(a).
Mr van der Kooij also contends there was discriminatory conduct in that FESA did not consider whether his colour vision impediment could be corrected for the purpose of firefighting. We accept the evidence of Professor Dain and Dr Overmeire that colour view lenses, being the method of correction proposed by Mr van der Kooij, would not assist him to correct his vision adequately for undertaking firefighting duties. Professor Dain gave evidence that the use of colour view lenses does not translate into practical use in the workplace and in fact 'introduces a new hazard entirely'. Mr van der Kooij seeks to rely on a letter from Gwyn Williams that relates only to the use of colour view lenses in the clinical testing environment and not in a practical sense. We have therefore not taken into account the use of colourview lenses.
Section 66B(1)(b) of the EO Act
FESA accepted that it discriminated against Mr van der Kooij because of his impairment in determining who should be offered employment but relies on the exception under s 66Q of the EO Act to render the discrimination lawful. FESA bears the onus of persuading us that s 66Q applies (s 123 of the EO Act).
Section 66Q sets out a twostage process:
(1)the taking of all reasonable steps to obtain relevant and necessary information concerning the impairment that it is reasonable for the employer to rely on; and
(2)to reasonably conclude from (1) that Mr van der Kooij would be unable to carry out work reasonably required to be performed in the course of employment.
X v Commonwealth of Australia (1999) 200 CLR 177 (X) is authority for the proposition that the inherent requirements of a particular job (or under s 66Q(1)(a) of the EO Act, 'work reasonably required to be performed'), is not confined to the physical ability or skill of the employee to perform the tasks of the job but also requires the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees; see X at 181 [11] and at 187 188 [31] to [33] per McHugh J and at 208 and 210 [103] and [109] per Gummow and Hayne JJ.
In determining whether the employee poses such a risk, the degree of risk and the consequences of it being realised must be considered: see X at 190 ۠ 191 [41] to [43] per McHugh J and at 210 [109] per Gummow and Hayne JJ.
The X case is also authority for the proposition that appropriate recognition must be given to the business judgment of the employer in organising its undertaking and in regarding a particular requirement as essential to the particular employment, unless the employment is organised on a basis which impermissibly discriminates against the employee: see Qantas Airways Limited vChristie (1998) 193 CLR 280.
FESA's case rests largely on the alleged risk to himself and others that Mr van der Kooij poses if he were to be employed as a firefighter. That risk is seen in terms of the outcomes that might occur in the context of a firefighting role. For example, even if the risk were low, it is still unacceptable because the outcome might be catastrophic, such as loss of life. To this end, much of the evidence is about the extent to which colour plays a role in the identification of things that a firefighter comes into contact with in an emergency situation.
FESA says that Mr van der Kooij's NSW Test results demonstrate his inability to carry out the firefighting role in a safe and efficient manner. It is this test, FESA argues, that measures the individual characteristics of Mr van der Kooij against the requirements of the job in the context of a risk assessment. We accept and find that the evidence demonstrates that Mr van der Kooij would pose an unacceptable risk if he were a career firefighter.
Mr van der Kooij argues that a clinical test such as the NSW Test cannot demonstrate what it purports to and, in any case, it unreasonably disregards the characteristics of Mr van der Kooij that refer to his experience as a plumber, his experience as a volunteer firefighter and his abilities to identify equipment and other things in an emergency situation by means other than colour.
We find on the evidence before us that the NSW Test is a reasonable test of the abilities of an individual to undertake the firefighting role. It would not be possible to put the applicant in a real life situation as the potential risk is too high. The alternative to live field testing is to create a simulated practical environment based on colourcritical tasks. We accept Professor Dain's expert evidence in this regard that the NSW Test provides this kind of assessment and that FESA can rely on it to identify whether or not a potential applicant can safely undertake firefighting tasks.
We note FESA's argument that the taking of the NSW Test relates to arrangements made for the purposes of determining who should be offered employment and that it does not apply to the determination under this section of who should be offered employment. We also accept FESA's argument that Mr van der Kooij was not subjected to the NSW Test. Rather FESA gave him an offer which was unprecedented in that it paid for Mr van der Kooij to take the test in Sydney as a last attempt to persuade FESA that he could undertake the duties of a firefighter. He was given this chance rather than FESA applying its standard process of requiring an applicant to demonstrate their suitability at their own cost.
We therefore find that it was reasonable for FESA to conclude that Mr van der Kooij would be unable to carry out the work reasonably required to be performed as a career firefighter. We therefore dismiss the application under s 66B(1)(b) of the EO Act on the grounds that s 66Q(1) applies to FESA's conduct.
Section 66B(1)(c) of the EO Act
We find that based on the evidence, FESA did not make an offer of employment to Mr van der Kooij. We therefore dismiss Mr van der Kooij's claim under s 66B(1)(c).
Section 66A(3) and s 66B(1)(b) of the EO Act - indirect discrimination
FESA argues that if it can rely on s 66Q to excuse conduct the subject of the allegation of direct discrimination under s 66(1)(b), then Mr van der Kooij cannot rely on the indirect discrimination provisions to claim that FESA required Mr van der Kooij to comply with a requirement or condition that only people without his impairment were able to comply with. That requirement is passing the NSW Test. We find that Mr van der Kooij has not discharged his onus of establishing that the requirement to sit the NSW Test was not reasonable: see Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission and Anor (1997) 80 FCR 78 at 111 per Sackville J; Catholic Education Office v Clarke (2004) 138 FCR 121 at 145 per Sackville and Stone JJ. On that basis, the criterion in s 66A(3)(b) that the requirement was not reasonable is not met and s 66A(3) does not apply.
We accept FESA's contention that as a matter of practical effect, if FESA is able to prove the exception in s 66Q(1) to an admitted discrimination under s 66B(1)(b), which it has, a complaint of indirect discrimination under that section becomes irrelevant. If the exception is not proved, any indirect discrimination would be superfluous.
We therefore dismiss the allegation of indirect discrimination.
Conclusion
In light of our findings and reasons set out above, we make the following findings with respect to each of the issues identified above:
1)Mr van der Kooij has an impairment within s 4 of the EO Act; he is a 'strong deuteranomal';
2)Mr van der Kooij's impairment means that he would represent an unacceptable risk to himself, his fellow firefighters and the public if he were accepted as a career firefighter. This is so even though he can rely on noncolour cues for many activities. The risk is assessed on the basis of what might be an extraordinary and extremely rare set of circumstances that could require Mr van der Kooij to carry out colour-critical tasks rapidly and accurately when visibility is very poor and no one else is available to assist him. The risk may be slight but the consequences are potentially catastrophic (for example, loss of life);
3)FESA did not unlawfully directly discriminate against Mr van der Kooij under s 66B(1)(a) when it applied its selection process to him. FESA admits that it directly discriminated against Mr van der Kooij under s 66B(1)(b) in determining who should be offered employment but its action in so doing is excused by the exception provided in s 66Q(1) of the EO Act;
4)FESA did not directly discriminate against Mr van der Kooij on the ground of his impairment under s 66A(1), s 66B(1)(a) and s 66B(1)(b) when it arranged for him to sit the NSW Test;
5)FESA did not offer Mr van der Kooij employment as a career firefighter;
6)FESA had sufficient regard to Mr van der Kooij's individual characteristics and circumstances and it was reasonable for FESA to conclude that Mr van der Kooij was unable to carry out the work reasonably required of a career firefighter;
7)FESA did not indirectly discriminate against Mr van der Kooij on the ground of his impairment under s 66A(3) and s 66B(1)(b);
8)FESA did not indirectly discriminate against Mr van der Kooij on the ground of his impairment under s 66A(3) and s 66B(1)(b); and
9)not applicable.
Order
The application is dismissed.
I certify that this and the preceding [355] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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