Varas v Fairfield City Council

[2008] FMCA 996

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VARAS v FAIRFIELD CITY COUNCIL [2008] FMCA 996

HUMAN RIGHTS – Disability discrimination in the course of employment – whether applicant imputed with a mental disability that she did not have considered – whether applicant suspended, required to attend mental health assessments and dismissed because of imputed disability considered.

Disability Discrimination Act 1992 (Cth), ss.4, 5, 10, 15
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH, 46PO

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603, (2002) 118 FCR 395
McManus v Scott-Charlton (1996) 70 FCR 16
Purvis v State of New South Wales (2003) 217 CLR 92
Thompson v IGT (Australia) Pty Limited [2008] FCA 994

Applicant: MONICA VARAS

Respondent: FAIRFIELD CITY COUNCIL

File Number: SYG 393 of 2007

Judgment of: Driver FM

Hearing dates: 5-9 May & 14-16 July 2008

Delivered at: Sydney

Delivered on: 19 September 2008

REPRESENTATION

Counsel for the Applicant: Ms K Edwards

Solicitors for the Applicant: Heywards Solicitors

Counsel for the Respondent: Ms K Eastman

Solicitors for the Respondent: Leigh Virtue & Co

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 393 of 2007

MONICA VARAS

Applicant

And

FAIRFIELD CITY COUNCIL

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Monica Varas was formerly employed by the Fairfield City Council as a library assistant. She was suspended from that employment in May 2006 and required to attend psychological and/or psychiatric assessments. Her employment was terminated on 4 October 2006. Ms Varas believes that in suspending her, requiring her to attend medical assessments and in terminating her employment, the Council discriminated against her unlawfully contrary to ss.5 and 15 of the Disability Discrimination Act 1992 (Cth) (“the DDA”). Ms Varas does not believe that she suffers from any disability but contends that the Council imputed to her a disability of a histrionic personality disorder exhibiting violent and dangerous behaviour. Ms Varas contends that because of the imputed disability, she was suspended, required to attend the assessments and ultimately dismissed.

2. The Council denies imputing any disability to Ms Varas.  The Council contends that Ms Varas was excluded from the workplace, referred for medical assessments and terminated because of a long series of problems in the workplace stemming from the behaviour of Ms Varas.

3. The proceedings are brought before the Court pursuant to an application filed on 7 February 2007 under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). A delegate of the President of HREOC terminated a complaint pursuant to s.46PH(2) of the HREOC Act on 11 January 2007. The complaint was terminated as there was no reasonable prospect of the matter being settled by conciliation. A further attempt at mediation in this Court was unsuccessful.

The evidence

1. Ms Varas relies upon amended points of claim filed in court on 7 May 2008 and upon five affidavits by herself made on 28 June 2007, 7 February 2008, 22 April 2008, 2 May 2008 and 16 June 2008.  The affidavits of 7 February 2008, 2 May 2008 and 16 June 2008 are responsive to affidavits filed on behalf of the Council.  The affidavit of 22 April 2008 augments her first affidavit in certain particulars and is also responsive to certain of the Council’s evidence.  I also received a medical report and oral evidence from three witnesses called by Ms Varas.

2. In her first affidavit Ms Varas deposes as to her employment history with the Council commencing on 7 March 1983.  Ms Varas deposes as to what she describes as a commendable employment history although safety issues at the Council’s libraries was a continuing concern for her.  She deposes as to difficulties encountered with others in the workplace and interpersonal conflicts.  She also deposes as to her menopause during 2004 and 2005 and the attendant symptoms.  She deposes as to her use of leave, including sick leave.  Ms Varas deposes as to her consultations with Ms Pauline Nolan, a psychologist from February 2005.  Ms Varas deposes as to her fear of working night shifts due to security concerns and alleged pressure exerted upon her to work night shifts under threat of termination of employment.  Initially, paragraph 54 of the affidavit, introducing a psychological assessment of Ms Varas was not read.  However, during the course of cross-examination of Ms Varas, counsel for Ms Varas changed her position and I received that paragraph and the exhibits referred to in it.

3. Ms Varas deposes as to the events of May 2006 resulting in her suspension from employment and her referral for a clinical assessment.  She deposes as to an interview with a clinical psychologist, Mr Henry Luiker.  Ms Varas deposes as to further conversations about the assessment of her and her employment future.  She deposes as to her referral to see a Dr Korner.  Finally, Ms Varas deposes as to the assessment of her by Mr Luiker, her complaint to HREOC, the suspension of her salary and the termination of her employment.  She also deposes as to her economic and non economic loss.

4. Under cross-examination Ms Varas:

   ·agreed that there was no reference to a histrionic disorder in her letter of termination;

   ·agreed that there was no reference to a disability and that she did not believe the reasons given by the Council for her termination;

   ·agreed that she thought a supervisor, Ms Hall, wanted to be rid of her because of issues raised concerning security;

   ·stated that she thought Ms Hall thought she was mad;

   ·agreed that after her dispute with the Council arose, she required the Council to communicate through her lawyer rather than directly with her;

   ·stated that she attended one consultation with Dr Korner, failed to attend another and that a third was cancelled by the Council;

   ·conceded that she declined to co-operate with Dr Korner;

   ·agreed that she knew she had been directed to see Dr Korner and agreed that she knew the consequences of non-compliance with that direction;

   ·denied that she found it convenient to be on paid leave while suspended;

   ·denied that there were repeated occurrences of unacceptable behaviour by her towards other staff;

   ·agreed that she had consented to see Mr Luiker and had seen him;

   ·denied that paragraph 40 of her affidavit reciting an asserted conversation between her, Ms Hall and Ms Reardon was a fabrication but stated that her reference to Ms Hall saying, “we are not happy with this report then we will send you to another then another doctor and after that if necessary” occurred on 9 May 2006 before she had seen Mr Luiker;

   ·changed her evidence as to the statement by Ms Hall when I pointed out that Ms Hall could not express unhappiness with the report before Ms Varas had seen the doctor who had produced the report;

   ·conceded that she took her full entitlement of sick leave during her employment;

   ·disagreed that she took sick leave particularly on a late shift;

   ·accepted that the commendations she referred to in her affidavit included recognition given to all employees for certain purposes and employment references;

   ·could not recall problems of her use of sick leave identified in 1984[1];

   [1] Exhibit R1

   ·could not recall being counselled in 1989 although she had signed a document relating to the counselling[2];

   [2] Exhibit R2

   ·could not recall a further counselling event in 1989[3], although she agreed her handwriting was on the document;

   [3] Exhibit R3

   ·agreed that an incident had occurred relating to an alleged inappropriate e-mail in 1997[4];

   [4] Exhibit R4

   ·could not recall an issue of unsatisfactory performance having arisen in 1998[5];

   [5] Exhibit R5

   ·did recall other incidents in 1998 and 2001;

   ·could not recall an issue in respect of which a final warning letter was sent[6];

   [6] Exhibit R9

   ·conceded that Ms Hall had shown her support and encouragement[7];

   [7] Exhibit R10

   ·accepted that she had been sent warning letters and had been warned of the termination of her employment based upon performance issues;

   ·denied that she had been transferred from Wetherill Park Library to the Cabramatta Library because of unsatisfactory performance;

   ·asserted that she had never seen a document upon which her signature appears prior to the present proceedings[8];

   [8] MFI R11

   ·denied that in April 2002 she had acknowledged to Ms Hall that she needed to improve her performance;

   ·accepted that Mr White was an easy going, approachable, responsive and fair supervisor although she stated that she had some problems with him concerning the refusal of leave;

   ·denied that she had yelled at Mr White and asserted that it was not appropriate for Mr White to question her about her reasons for taking annual leave;

   ·denied that she threatened Mr White and said that she felt he was picking on her;

   ·agreed that she had apologised to Mr White for bypassing him in relation to a complaint;

   ·accepted that there were a series of complaints between staff during 2004 and that she was off sick a lot;

   ·confirmed that she could remember reading but not signing the document at pages 55 to 57 exhibited to the affidavit of Andrew Ian White;

   ·stated that she had agreed that she would benefit from seeing a psychologist in relation to issues arising from her menopause and had wanted to see a female psychologist;

   ·agreed that she had seen Ms Nolan between around 3 February 2005 and 24 February 2005 and that she had discussed a range of issues with Ms Nolan;

   ·agreed that Ms Nolan was to provide her with assistance rather than to provide a report to the Council;

   ·asserted that information in Ms Nolan’s notes of her consultation with Ms Varas had been disclosed;

   ·asserted that information in the report by Ms Nolan commencing at page 86 to the exhibits to Ms Varas’ affidavit[9] contained confidential information given to Ms Nolan by Ms Varas;

   [9] separately marked as Exhibit A2

   ·agreed that that report made no mention about her relationship with her father but asserted that Ms Nolan had shared her clinical notes with others;

   ·agreed that Ms Nolan did not give her any written report following her consultations with her;

   ·agreed that Ms Nolan had made no diagnosis of her in 2005 and that she had not asked for any assessment;

   ·agreed that she did not know if Ms Nolan had spoken to anyone at the Council about her;

   ·asserted that the issues discussed with Ms Nolan in her counselling sessions were referred to in Mr Luiker’s report;

   ·asserted that in the report of Mr Luiker at page 95 of the exhibits to her affidavit, Mr Luiker referred to matters that were only disclosed by her to Ms Nolan but conceded that those matters were not included in Ms Nolan’s notes, and agreed with me that if they were disclosed by Ms Nolan to Mr Luiker, Ms Nolan would have had to rely upon her memory;

   ·refused to answer a series of questions put by counsel to her concerning issues raised by Ms Varas with her supervisors in confidence about her co-workers;

   ·asserted that she was afraid of being sacked by Ms Hall and asserted that she was ultimately sacked based upon a decision of Ms Hall;

   ·conceded that in the incident with Ms Hall on 10 January 2005 she was not physically thrown out of Ms Hall’s office but asserted that she was subjected to verbal abuse;

   ·asserted that she had asked Ms Hall whether she should resign and that Ms Hall had threatened that she would make her life miserable;

   ·agreed that she had waited approximately two months to raise with Ms Hagerty her concern about Ms Hall threatening staff with sacking for misfiling books;

   ·in response to a question from me, conceded that the evidence in the first two lines of her affidavit at paragraph 15 was incorrect and that the statement attributed to Ms Hall had been made to a group of staff, including Ms Varas;

   ·conceded that the asserted statement was not made directly to her but that she had heard it;

   ·in relation to the incident at the library on 25 February 2005, asserted that a woman on drugs had grabbed her by the neck and demonstrated a pushing motion with an open hand to show what the woman had done;

   ·confirmed that she had taken leave as workers compensation benefits following the incident and that she had made a police report about the incident;

   ·agreed that if staff were fearful of working with another staff member, those concerns would need to be acted upon;

   ·agreed that the first diagnosis of histrionic personality disorder appeared in Mr Luiker’s report;

   ·denied that she had just made an assumption that Ms Hall had read Mr Luiker’s report[10];

   [10] note that Ms Nolan provided an updated report in the light of Mr Luiker’s report appearing at page 111 of the documents exhibited to Ms Varas’ affidavit

   ·confirmed that Mr Luiker gave his report to Ms Nolan;

   ·asserted that she had over many years expressed dissatisfaction with security at the Council’s libraries and, in particular, had pressed her view that security guards should be provided to protect staff working on late shifts;

   ·denied that her description of a “siege” at the Whitlam Library in 1996 was inaccurate although conceded that the incident had also involved the Cabramatta Community Centre next door to the library;

   ·conceded that she had failed to follow security instructions to leave the premises after late shifts in the company of other staff members and to wear a personal security alarm on late shifts but asserted that she only failed to wear a personal security alarm when the one allocated to her had been faulty;

   ·conceded that she had been counselled in relation to her failure to follow security procedures;

   ·conceded that she was not directly involved with a later incident in which a man had been found dead in a library toilet but said that she had seen his body be removed;

   ·asserted that she would have seen her general practitioner, Dr Yensen, following the security incidents referred to in her affidavit;

   ·conceded that she had not worked at the Fairfield Library since 1996;

   ·could not recall when blood tests would have been taken to confirm her menopause;

   ·asserted that she had seen her present general practitioner in 1997 for depression; and

   ·asserted that her termination payment[11] was inaccurate in that it showed only her base salary and not her superannuation entitlement and shift allowances.

   [11] Exhibit R18

5. In re-examination Ms Varas stated that she consulted her general practitioner in 2006 between the time of her asserted suspension and the time of her termination in order to seek his help in obtaining answers from the Council as to why the Council was acting against her.  She clarified that when she had declined to provide translation services to an elderly Spanish lady she had spoken to her daughter in Spanish and explained that she was not qualified as a translator and was not qualified to translate a document that they had asked her to translate.  She further explained the procedures for the allocation of personal security alarms and explained how the alarms could be tested to make sure they worked properly.  She stated that if a personal security alarm was faulty, the person to whom the fault needed to be reported would not be available on late shift and a report would have to be made the following morning.  Finally, Ms Varas clarified that she had sought to be referred to a psychologist with Christian faith in order to deal with spiritual issues and she stated that she was troubled by her father’s death because her father had shot himself after suffering heart attacks and strokes.

6. Counsel for Ms Varas tendered a report from Dr Stephen H Allnutt and related correspondence[12].  I accepted Dr Allnutt as an expert witness.  Dr Allnutt in his report provides opinions about Ms Varas’ mental health and the diagnosis of histrionic personality disorder in light of the history recounted to him by Ms Varas and the documents he was provided with.  Dr Allnutt expresses the opinion that Mr Luiker’s diagnosis of histrionic personality disorder may not be reliable.  Dr Allnutt ventures the opinion that Ms Varas suffers from a psychiatric disorder characterised primarily by depression and anxiety.  Dr Allnutt was cross-examined on his report.  He conceded that the oral history given to him by Ms Varas had not included numerous incidences of problems in the workplace between 1983 and 2005 and that Ms Varas had not mentioned her use of sick leave.  Neither had she reported her father’s suicide.  Dr Allnutt stated that the history given to him was to the effect that Ms Varas had worked in the same building throughout her employment with the Council and that there had been no significant incidents or complaints until 2005.  He had not been given the termination letter sent to Ms Varas.  He agreed that there had been no psychiatric diagnosis of any disorder prior to Ms Varas’ termination and that a further investigation of her by a psychiatrist would have been advisable.  He explained that a personality disorder is a psychiatric condition established usually in early adolescence and characterised by problems in inter-personal relations generally and not restricted to the workplace.  Non workplace relationships would need to be investigated in order to be confident of a diagnosis of a personality disorder.  The diagnosis would have also required objective evidence which might have required consultation with persons other than Ms Varas.

   [12] Exhibit A3

7. Ms Varas called two additional witnesses. The first of those was Ms Joan McPake who is Ms Varas’ case manager with Mission Australia. In her oral evidence in chief, Ms McPake stated that her job was to assist people to deal with obstacles in the way of them re-entering the workplace. She gave evidence that Ms Varas presented with depression, anxiety, low self-esteem and low self-confidence.  She first saw Ms Varas on 12 December 2007. She has seen her about five times since then. Ms Varas was referred to a psychologist (Lynette Bartlett). Counsel for Ms Varas tendered the activity statement evidencing Ms Varas’ dealings with Ms McPake[13].

   [13] Exhibit A4

8. Under cross-examination Ms McPake stated that she had been approached to give evidence about a month previously.  She said that Ms Varas had appeared to be very worried about the present legal proceedings.  She denied that the legal proceedings themselves were a barrier to Ms Varas obtaining employment and reiterated that those barriers were her depression, anxiety and low self esteem.

9. Ms Varas also called her former general practitioner, Dr Sidney Yenson, as a witness.  He had prepared an affidavit which I received.  Exhibited to that affidavit are Dr Yenson’s clinical notes.  It became apparent that those notes were derived from two separate files, one relating to his general consultations with Ms Varas and the other relating to workers compensation claims.  He deposes as to his observations about Ms Varas’ psychological state at various times. 

10. Under cross-examination Dr Yenson stated that he has no specialist qualifications in psychology.  He is a general practitioner.  Ms Varas had been his patient until March 2007.  Prior to that date he was her principal general practitioner and he was not aware of Ms Varas consulting other general practitioners.  He confirmed that in April 1986 Ms Varas presented as nervous and irritable but he could not recall the circumstances.  He notes that at that time Ms Varas was referred to a specialist (Dr Lim) and stated that that was probably because of depression.  Although he did not have now any written report from Dr Lim, his notes record Dr Lim as diagnosing a personality disorder and reactive depression.  His notes had also recorded the word “hysterical” being used by Dr Lim but that did not accord with Dr Yenson’s observations.

1. Dr Yenson confirmed that his notes recorded Ms Varas as presenting with depression and anxiety in May 1998, for which he prescribed an anti-depressant.  He could not recall any reason being given for the depression.  He confirmed that in August 1991 Ms Varas was referred to a psychiatrist (Dr Tsang) for depression.  He confirmed that there was no record of that referral.  He confirmed that there was no record of work problems in July 1994, although there was in January 1997.  There was no reference to work problems in February 1997, although there was a record of “harassment” in July 1998.  There was a record of referral to Dr Tsang in July 2000 and references to stress at work and home.  Ms Varas had requested the referral.

2. Dr Yenson’s notes record a back injury in 2002 for which Ms Varas received workers compensation benefits.  He made recommendations for Ms Varas’ return to the workplace.  He was taken through his notes relating to 2004 and agreed that there was no record of a discussion about stress at work in 2004.  His notes record Ms Varas as being menopausal in July 2005.  His notes also record Ms Varas reporting an incident at the library on 26 February 2005.  He did not see her again until 6 May 2005.  He made no note of Ms Varas seeing a psychologist over that period.  He records a further workers compensation period during that year.  His notes record Ms Varas as feeling better on 18 March 2005 and he recommended a return to work with no front desk duties on 31 March 2005.  On 2 May 2005 he agreed that Ms Varas could try front desk duties but stated that she should not undertake night duties.  On 22 July 2005 he agreed to a graduated return to night duties.  He agreed that his notes, for the balance of 2005 and the early part of 2006, related to apparently non work related medical problems but Ms Varas had reported problems at work on 23 May 2006.  He confirmed that on 31 May 2006 he saw Ms Varas who had referred to a meeting with the Council and reported that she was hopeful of getting a new job with the Council.  He could not recall any discussion about Ms Varas being referred to a psychiatrist.

3. In re-examination, Dr Yenson stated that he did not record in his notes every detail of issues that were discussed with Ms Varas. 

4. The applicant’s case was completed by the tender of the following documents:

   ·       A1 -  Medicare report;

   ·       A2 – Report from Pauline Nolan;

   ·       A3 – Report from Dr Allnutt;

   ·       A4 – Centrelink Activity Agreement;

   ·       A5 – Group certificates for 2005 and 2006;

   ·       A6 – Handwritten note by Ms Nolan;

   ·A7 – E-mail from Ms Joannidies to Ms Costigan, 13 February   2008;

   ·       A8 – Tax invoice to Ms Hagerty, 18 April 2005;

   ·       A9 – Psychological assessment report re Ms Varas;

   ·       A10 – E-mail from Ms Nolan to Ms Hagerty, 18 March 2005;

   ·       A11 – E-mail from Ms Hagerty to Ms Nolan, 8 April 2005

5. The respondent Council relies on its points of defence filed on 13 May 2008 and the following affidavits:

   a)the affidavits of Anne Norma Hall sworn on 30 August 2007 and 23 May 2008;

   b)the affidavit of Andrew Ian White sworn on 26 September 2007;

   c)the affidavit Jennifer Mary Wilson sworn on 18 October 2007;

   d)the affidavit of Vanvilay Pathammavong sworn on 30 August 2007;

   e)the affidavit of Jennifer Ann Harris sworn on 28 September 2007;

   f)the affidavit of Janire Hagerty sworn on 23 May 2008;

   g)the affidavit of Fiona Joannidies sworn on 23 May 2008; and

   h)the affidavit of Deborah Sandars sworn on 23 May 2008.

6. Various paragraphs of these affidavits were not read.  A number of objections to the affidavits were raised by counsel for the applicant but I received the portions of the affidavits that were read subject to submissions.

7. The Council does not rely on an affidavit prepared by the psychologist Ms Nolan but does rely on exhibits PN1, PN2 and PN3 to that affidavit.  The Council had also obtained a medical report from a Dr Roberts upon which it does not rely. 

Vanvilay Pathammavong

1. Ms Pathammavong worked with Ms Varas for in excess of 20 years.  She deposes as to one incident involving Ms Varas in the first half of 2006 when, in response to her asking Ms Varas to take a telephone call, Ms Varas used the “f” word. Under cross-examination, Ms Pathammavong conceded that this was the only negative incident involving Ms Varas that she had deposed to.  Counsel for Ms Varas put to Ms Pathammavong Ms Varas’ version of the incident but Ms Pathammavong rejected that version.  Ms Pathammavong was somewhat diffident as a witness but firm in her evidence.  She accepted that Ms Varas apologised to her after the incident but stated in re‑examination that that only occurred after Ms Varas had been called into Ms Hall’s office. 

Jennifer Wilson

1. Ms Wilson worked with Ms Varas for about five years.  She deposes as to various incidents involving Ms Varas.  In her affidavit, she paints a negative picture of Ms Varas’ character and employment performance.  Under cross-examination Ms Wilson agreed that she had deposed to four incidents of which particulars were given.  She conceded that she had not identified any complaints made about her by Ms Varas and nor did she identify any complaints she had made about Ms Varas.  She agreed that she had only deposed as to one incident concerning a member of the public.  She resisted attacks upon her credibility.  She stated that she had been interviewed by Ms Nolan along with some other employees at the library about Ms Varas. 

Andrew Ian White

1. Mr White is the customer services librarian at the Whitlam Branch of the Fairfield City Council Library and has around 20 years experience in the library field.  He has been employed with the Council since January 1996.  He was Ms Varas’ direct supervisor during 2005 and 2006.  Ms Varas worked under the management of Mr White from the end of April 2002.  Mr White deposes as to concerns he had about Ms Varas’ use of sick leave and other issues raised by staff about her and issues raised by Ms Varas about other staff.  Annexed to his affidavit is what he describes as a chronological journal detailing discussions between Mr White, Ms Varas and other staff about those issues between 31 March 2004 and 29 March 2006.  The typed chronological entries were generally, but not always, prepared within a day or two of the relevant discussions from handwritten diary notes.  Also annexed to Mr White’s affidavit is a document prepared by him as Ms Varas’ manager detailing concerns regarding her behaviour towards other staff and the public, her work ethic and her absenteeism.  Other documents annexed to Mr White’s affidavit are e-mail correspondence relating to staff disputes involving Ms Varas, a file note dated 31 March 2004 concerning Ms Varas’ absenteeism, a discussion paper dated 2 January 2005 documenting a meeting between Mr White, Ms Varas and Janire Hagerty concerning a range of issues of concern about Ms Varas, a letter detailing the outcome of that meeting and a file note dated 25 February 2005 concerning three incidents at the Whitlam Library.  Mr White denies any disability discrimination against Ms Varas during her employment.

2. Under cross-examination Mr White denied that there was a particular social or drug problem involving persons frequenting the Whitlam Library.  He stated that incidents involving such people were rare after 1998.  He was asked about his reasons for preparing his chronology of discussions involving or about Ms Varas and said that the document had been prepared for a variety of reasons relating to his concerns about Ms Varas.  He could not recall whether he gave copies of the document to anyone but thought he might have provided a copy to the human resources section of the Council.  Mr White gave evidence that he saw his role as attempting to help Ms Varas in the workplace.  Mr White was asked about the performance appraisal (FADS appraisal) of Ms Varas in December 2005 and said that he could not recall finalising an appraisal for that year.  He had no copy of any such appraisal.  He did not recall discussing any pay increase with Ms Varas.

3. Mr White was asked about the incident at the library when a patron assaulted Ms Varas.  He denied he was trying to blame Ms Varas for the incident referred to in paragraph 18 of his affidavit but admitted that his description of the incident was based on what the patron rather than what Ms Varas had said to him about it.  He stated that there was CCTV footage of the incident, which he gave to the police.  In relation to paragraph 20 of his affidavit, Mr White denied any knowledge of Ms Varas’ complaint to HREOC prior to her termination in October 2006. 

4. Mr White said that he did not know of the diagnosis of histrionic personality disorder until recently but he admitted having a discussion with Ms Nolan about Ms Varas in March 2005.  He knew Ms Nolan had been engaged to prepare a report for the Council and he understood that the task was to see how the library management could assist Ms Varas in the performance of her duties.  He denied discussing Ms Varas’ mental health with Ms Nolan.

Fiona Joannidies

1. Ms Joannidies is a librarian employed by the Council at the Whitlam Library.  In May 2006 she was Ms Varas’ support person and attended meetings with her.  She deposes as to a conversation with Ms Anne Hall on or about 8 May 2006.  She deposes as to a meeting she attended on 9 May 2006 in Ms Hall’s office with Ms Varas and Ms Belinda Reardon.  She deposes that during the meeting Ms Hall asked Ms Varas to see a psychologist to be assessed.  Ms Varas said that she had already seen the Council’s counsellor and Ms Hall said that she wanted Ms Varas to be assessed, not just counselled.  She deposes that when Ms Varas asked what she was being assessed for, Ms Hall said it was in relation to her behaviour.  Ms Joannidies deposed that Ms Hall did not say it was because of a “violent personality” or that Ms Varas was “dangerous”.  Ms Hall had said that she had a number of complaints from staff about Ms Varas’ behaviour.  Ms Joannidies asked Ms Hall what would happen following the assessment and Ms Hall answered that “they” would need to see what the report was and whether there would be any recommendation.  Ms Hall told Ms Varas that she was not to attend work but would continue to be paid her full salary.   Ms Hall told Ms Varas that she was not to talk to others about this.  Ms Joannidies deposes that Ms Hall did not suggest at the meeting that Ms Varas had a mental illness or a personality disorder. 

2. Ms Joannidies deposes that on 31 May 2006 she attended a meeting with Ms Varas and a psychologist (whose name she does not recall) and with Ms Reardon.  She deposes that at the meeting the psychologist said that there was nothing wrong with Ms Varas and that she was not mentally ill.  He said that she had a personality that did not fit in.  Ms Joannidies deposes that the psychologist did not say that Ms Varas had a histrionic personality disorder.  She deposes that Ms Reardon said that Ms Varas would need to attend a further assessment.  Ms Varas had asked why she needed to go to another assessment because she had done what she had been asked.  Ms Varas was upset at the meeting.  Ms Reardon again asked Ms Varas to attend a further assessment but Ms Varas would not commit.

3. Under cross-examination Ms Joannidies confirmed her evidence.

Jennifer Ann Harris

1. Ms Harris is a senior library assistant and has been employed with the Council for approximately 23 years.  She currently works on the customer service desk at the Wetherill Park Library and had previously worked at the Fairfield branch. 

2. Ms Harris deposes as to her experiences during 2005 when she worked with Ms Varas at the Whitlam Library under the management of Mr White.  She was concerned about rumours circulated by Ms Varas and confronted her about a particular rumour which Ms Varas raised with her and which related to her.  She deposes that Ms Varas became verbally abusive.  She also deposes as to a conversation with Anne Hall in which she denied being fearful of losing her employment because of Ms Hall.  This had been raised by Ms Hall following a report to her by Ms Varas.

3. Under cross-examination Ms Harris confirmed her evidence.  She resisted attacks upon her credibility.  She admitted that there was a general degree of gossip among library staff but she denied gossiping about Ms Varas.

Deborah Sandars

1. Ms Sandars is currently the Executive Manager, City Services at the Council and her responsibilities include library services.  She deposes as to the role played by Ms Belinda Reardon in relation to human resources issues and states that Ms Reardon resigned on 11 May 2007 with the intention of moving interstate.  She deposes that on 28 September 2006 she made the decision to terminate Ms Varas’ employment with the Council.  She denies that Ms Reardon took that decision and states that Ms Reardon did not have the authority to terminate Ms Varas.  Ms Sandars deposes that by 28 September 2006 she had considered that Ms Varas had frustrated her employment with the Council because of her refusal to engage in direct communication with management and her refusal to provide relevant correspondence or communications relating to her medical condition and absence from work.  Annexed to her affidavit is the letter of termination she sent to Ms Varas on 4 October 2006.

2. Under cross-examination Ms Sandars was asked about her knowledge of disability discrimination and gave answers indicating a general working knowledge.  She had undertaken EEO training within the last two to three years.  She was aware of Ms Varas’ complaint to HREOC. 

3. Ms Sandars stated that her reference to “management” in her affidavit was a reference to herself, Ms Reardon and Ms Hall.  She was concerned at Ms Varas’ refusal to communicate with her in particular.  She denied that the direction given by Ms Hall to Ms Varas on 9 May 2006 not to communicate with staff prevented her with communicating with library management or human resources.  She conceded that, on the basis of what Ms Varas put in her first affidavit, there appeared to be examples of direct communication between her and Ms Reardon from 26 May 2006.  She conceded that Ms Varas was absent from work at the direction of the Council between and May and September 2006 but stated that her concern about a failure to provide relevant correspondence relating to her absence from work was interrelated with her medical condition.

4. Ms Sandars stated that she became concerned about “excessive” sick leave taken by Ms Varas based upon information provided by Mr White.  She conceded that staff were entitled to take sick leave if sick and that the use of sick leave entitlements did not mean an employee was unable to do his or her job.  She does not suggest that Ms Varas was not sick when on sick leave. She admitted seeing the report of Mr Luiker but said that she could not make a decision on Ms Varas’ future based upon that report and required a psychiatric opinion.  She denied seeing Mr Luiker’s report itself but admitted seeing comments about it from the human resources section.  She denied involvement in the decision to suspend Ms Varas.  She denied taking Mr Luiker’s assessment into account.

5. Ms Sandars was asked about the reference in the termination letter to the asserted inability of Ms Varas to undertake the inherent requirements of her job. She denied that this related to the DDA and said, rather, that it related to Ms Varas’ behaviour in the workplace. She stated that the letter had been prepared with the benefit of legal advice as to its content. She stated that she did not give to the Council’s legal advisors Ms Varas’ complaint to HREOC and that she only became aware of that complaint following the termination decision.

6. I asked Ms Sandars what had changed following Mr Luiker’s assessment because she had given evidence that she could not make a decision on Ms Varas’ employment without the benefit of a psychiatric assessment and that assessment was not obtained.  She said that the critical factor was Ms Varas’ refusal to communicate directly with the Council. 

Janire Hagerty

1. Ms Hagerty is the human resources business partner at the Council.  She deposes as to a conversation she had with Ms Varas in January 2005 when Ms Varas made an allegation that Ms Hall had threatened to sack staff on the spot if they left a book on the shelf out of order.  She deposes that she spoke to Ms Hall about the allegation on or about 12 January 2005.  She admits apologising to Ms Varas when she spoke with her again about the issue on 12 January 2005.

2. Ms Hagerty deposes as to a meeting on or about 2 February 2005 with Ms Varas and Mr White.  The issue of sick leave was discussed at the meeting.  Ms Varas agreed to see a psychologist.  Ms Hagerty arranged an appointment for Ms Varas to see Ms Nolan.  Ms Hagerty had a discussion with Ms Nolan about Ms Varas in February 2005.  Ms Nolan stated that she had promised Ms Varas that she would not disclose personal information.  Later, Ms Nolan contacted Ms Hagerty to recommend that Ms Varas see a psychotherapist. 

3. Under cross-examination Ms Hagerty recognised an invoice from Ms Nolan to the Council for a report from her in February2005.  She was shown a copy of what purported to be that report[14] and admitted seeing parts of it previously.  She also recognised an e-mail from Ms Nolan to her[15].  She stated that the Council engaged Ms Nolan to provide services to assist Ms Varas to manage her sick leave better.  She was shown a further e-mail string involving Ms Nolan and referring to Ms Varas and Mr White[16].  She acknowledged the e-mail referred to the report and a discussion with Mr White.  She did not know whether Ms Nolan’s report was given to Ms Hall.  She could not recall discussing it with Ms Hall or Ms Reardon.  She believed the report was placed on a human resources section file. 

   [14] which became exhibit A9

   [15] which became exhibit A10

   [16] which became exhibit A11

4. Ms Hagerty agreed that Mr Luiker had provided services to the Council but could not recall when. 

Anne Norma Hall

1. Ms Hall is the manager of Library and Museum Services at the Council.  She has been so employed since approximately 1995 and had been employed with the Council since 1990.  She deposes in general terms as to Ms Varas’ behaviour in the workplace and her “poor work ethic”.  She deposes that in the early part of 2006 these issues convinced her and others in the human resources section that Ms Varas should undergo a psychological assessment.  She bore in mind the duty of care that Council owed to other staff who had complained about Ms Varas.  She had discussed the issues with Ms Sandars before taking action. 

2. Ms Hall also deposes as to the process of asking all library staff who had worked with Ms Varas over various periods of time to provide information of their experiences with Ms Varas in the workplace.  The selected staff were interviewed separately by Ms Nolan.  On the basis of her report provided following those interviews the decision was made to require Ms Varas to attend the psychologist for examination and consideration of treatment options.  It was also decided to stand Ms Varas down on full pay pending the assessment.  A meeting was called for the psychologist to give feedback to Ms Varas on 9 May 2006 in private.  Afterwards, there was a meeting between Ms Joannidies, Ms Reardon and Ms Hall when Ms Varas was informed of the further action to be taken.  Ms Hall deposes that the psychologist’s report recommended that Ms Varas receive a further assessment by a psychiatrist.

3. Ms Hall deposes as to the difficulties that were encountered in seeking to have Ms Varas attend on a psychiatrist.  She denies any unlawful discrimination.  She denies that her relationship with Ms Varas deteriorated in early February 2005.

4. Ms Hall deposes as to disciplinary action taken against Ms Varas in 2002 and as to various incidents. 

1. I permitted counsel for the Council to clarify various aspects of Ms Hall’s affidavits orally.  Ms Hall stated that the meeting on 9 May 2006 was a meeting with Ms Nolan and Ms Varas and that there was a further meeting with Ms Varas, Ms Joannidies, Ms Reardon and herself.  She stated that she had never seen Ms Nolan’s report but had been told of the recommendation in it.  She stated that annexure E to her first affidavit, which is a list of concerns about Ms Varas, was not her document.  It had been given to her by the human resources section after the conduct of interviews between Ms Noland and staff.  She was not “formally” interviewed but had spoken to Ms Nolan and Ms Reardon about Ms Varas in early April 2006.  She had had no other contact with Ms Nolan.

2. Under cross-examination Ms Hall stated that she had only read Ms Varas’ first affidavit, to which she responded in her second affidavit.  She confirmed that she was aware of medical appointments arranged for Ms Varas between May and October 2006.  She confirmed that it was she that made the decision to suspend Ms Varas and that she had her first meeting with Ms Nolan around April 2006.  She stated that Ms Nolan’s role was to interview Ms Varas to find out why she was behaving as she was for the purpose of supporting her at work.  She stated that she wanted to know what the problem was and that she was not expecting an opinion detailing a mental condition.  She stated that she had been told of Ms Nolan’s report by Ms Reardon but was not told the details of it.  She was told it was confidential.  She was aware that the Council had commissioned a further report from Mr Luiker.

3. In response to a question from me, Ms Hall stated that she did not regard the suspension decision as a disciplinary action.  Neither did she agree that the suspension decision was a response to a medical issue.  She stated that she just wanted to get Ms Varas away from the workplace and to deal with behavioural issues.

4. Under re-examination Ms Hall said that, pursuant to an agreement with the union, staff were given a salary increment for the 2005-2006 year without the need for a FADS performance assessment.

Submissions

1. Both parties, through their counsel, made written and oral submissions.  Initial written submissions by the parties were substantially overtaken by the ending of a cross-claim involving Ms Nolan and a refinement of the applicant’s claim in her amended points of claim.  Both parties filed amended written submissions in court on 16 July 2008.  The applicant asserts unfair and different treatment in relation to:

   a)the suspension of work from 9 May 2006 until 4 October 2006[17];

   b)the requirement to attend medical assessments[18]; and

   c)the termination of her employment on 4 October 2006[19].

   [17] pleaded at paragraphs 41-46 of the amended points of claim

   [18] ibid

   [19] pleaded at paragraphs 58-65 of the amended points of claim

2. The applicant asserts that she was subjected to these allegedly discriminatory acts because the Council had relied on, or had regard to, a diagnosis of her as suffering from a histrionic personality disorder.  The applicant asserts, and submits that the medical evidence confirms, that she does not suffer from that disorder. 

3. The applicant submits that the purported reasons for terminating her employment (failure to communicate directly with the Council and failure to comply with reasonable directions) have no proper legal basis and that the real reason was the applicant’s imputed disability.  Further, the applicant submits that if, as is asserted by the respondent, it did not impute to her the alleged disability, there was no basis upon which she could be required to attend medical appointments. 

4. The applicant’s case is one of alleged direct disability discrimination.  Unusually, she asserts that she is her own comparator.  The applicant says that there is no need for a hypothetical comparator because she had behaved in the same way before and after the alleged diagnosis, subject to changes in her behaviour arising from menopause and asserted security concerns which developed in 1996 and were at their height shortly after 25 February 2005 when the applicant was assaulted at work.  The applicant asserts that her behaviour, over 23 years, in relation to her use of sick leave, her customer service, her interactions with other staff and other issues in relation to her performance at work did not really change whereas the manner in which she was dealt with by her employer did change.  The applicant submits that the appropriate approach to the question of a comparator is to compare how the applicant was treated before the alleged diagnosis and after the diagnosis.

5. The applicant asserts that as early as 30 April 2004[20] but no later than 10 May 2006[21] the Council had received and was aware of a diagnosis of histrionic personality disorder.  Ms Sandars had read Mr Luiker’s summary report at least which was provided on 3 July 2006.  Ms Sandars had read that summary before deciding to terminate Ms Varas’ employment.  Although Ms Hall made the decision to suspend Ms Varas it was clear from her evidence that she relied heavily on advice from Ms Reardon.  Ms Reardon had access to the reports of Ms Nolan and Mr Luiker.  Ms Sandars also relied upon information from Ms Reardon in making her decision to terminate Ms Varas’ employment.  The applicant submits that:

   a)Ms Hall’s decision to suspend her was based in part upon the diagnosis of Ms Nolan;

   b)Ms Reardon’s decision to require Ms Varas to attend medical appointments was based, in part, upon the diagnosis of Ms Nolan and/or Mr Luiker; and

   c)Ms Sandars’ decision to terminate the employment of Ms Varas was based on the diagnosis of Ms Nolan and/or Mr Luiker.

   [20] based on the report of Ms Nolan signed on 30 April 2006

   [21] based on the report of Mr Luiker dated that day

6. As to causation, the applicant submits that there is no real doubt that the actions of the Council were undertaken because of the imputed disability.  She points to disciplinary action taken against her because of her behaviour prior to 2005 and the markedly different approach taken by the Council from 2005 on.  She submits that the second report of the psychologist, Ms Nolan, was flawed and that the Council knew that that report, produced in March 2006, was flawed because it required Ms Varas to attend a further assessment with Mr Luiker. 

7. The applicant submits that, having received a “suitable” diagnosis from Mr Luiker, the Council proceeded to treat her as if she had a mental illness by requiring her to submit to a further assessment by Dr Korner.  Following her refusal to co-operate further and her complaint to HREOC her employment was terminated.

8. The applicant submits that her own evidence and that of Dr Yenson and Ms McPake should be accepted.  She submits that the evidence of Ms Sandars is crucial in respect to the termination of her employment and establishes a link between that decision and the diagnosis, through Ms Reardon.  The applicant submits that the evidence of Ms Hall is relevant to the issue of suspension and that the evidence of Ms Varas should be preferred to the evidence of Ms Hall.  She submits that the evidence of Ms Joannidies supports Ms Varas’ account, in particular in relation to the meeting held on 31 May 2006.  To the extent that they conflict, the applicant submits that her evidence and the evidence of Ms Joannidies should be preferred to that of Ms Hall.

9. The applicant also makes submissions in relation to damages.

10. In its submissions, the Council agrees generally with the issues to be resolved by the Court.  As to the imputation of a disability, the Council submits that the evidence does not support a conclusion that Ms Nolan purported to diagnose the applicant with a mental illness known as histrionic personality disorder.  Counsel concedes that the diagnosis was made by Mr Luiker in his report dated 28 May 2006.  That report was not provided to the Council until 5 June 2006.  Both psychologists recommended that Ms Varas be referred to a psychiatrist for a further opinion.

11. The respondent submits that there is no evidence that a histrionic personality disorder is associated with characteristics of “violent and dangerous behaviour”.  Further, the respondent submits that there is no evidence of violent and dangerous behaviour by Ms Varas.

12. The respondent submits that there is no evidence to support a finding that Ms Varas was suspended because of an imputed disability.  The evidence of Ms Hall on this is said to be important and Ms Hall denies the version of the conversation relied upon by Ms Varas.  The respondent submits that Ms Varas was suspended because of her behaviour which had been the subject of counselling and investigation.

13. The Council accepts that Ms Varas was asked to attend Mr Luiker (and did so) and was directed to attend Dr Korner.  Council submits that the very reason Ms Varas was directed to attend Dr Korner was to obtain a reliable medical assessment and that that requirement does not support the contention that the Council imputed a disability to Ms Varas.  Further, the Council submits that the requirement to attend medical assessments was reasonable. 

14. As to the termination, the Council accepts that Ms Varas’ employment was terminated on 4 October 2006, based upon the decision of Ms Sandars made on 28 September 2006.  The reasons for the termination are set out in the letter dated 4 October 2006.  Counsel submits that there is no evidence that the termination of employment was because of an imputed disability.  It was not possible for the respondent to form a view about whether Ms Varas had a disability until it had received an assessment from a psychiatrist.

15. The respondent also makes submissions in relation to loss and damage.

The legislation

1. “Disability” is defined in s.4 of the DDA to mean:

   "disability" , in relation to a person, means:

   (a) total or partial loss of the person’s bodily or mental functions; or

   (b)   total or partial loss of a part of the body; or

   (c)   the presence in the body of organisms causing disease or illness; or

   (d)   the presence in the body of organisms capable of causing disease or illness; or

   (e)   the malfunction, malformation or disfigurement of a part of the person’s body; or

   (f)    a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

   (g)   a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

   and includes a disability that:

   (h)     presently exists; or

   (i)      previously existed but no longer exists; or

   (j)      may exist in the future; or

   (k)     is imputed to a person.

2. Section 5 of the DDA provides:

   (1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

   (2)   For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

3. Section 10 provides:

   If:

   (a)   an act is done for 2 or more reasons; and

   (b)   one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

   then, for the purposes of this Act, the act is taken to be done for that reason.

4. Section 15 of the DDA provides:

   (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:

   (a) in the arrangements made for the purpose of determining who should be offered employment; or

   (b)   in determining who should be offered employment; or

   (c)in the terms or conditions on which employment is offered.

   (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:

   (a) in the terms or conditions of employment that the employer affords the employee; or

   (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

   (c)   by dismissing the employee; or

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

   (3)   Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.

   (4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

   (a)   would be unable to carry out the inherent requirements of the particular employment; or

   (b)   would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

Reasoning

1. The amended points of claim raise a number of issues other than disability discrimination.  However, the relief claimed by Ms Varas is based upon the alleged unlawful discrimination and I have restricted my consideration to that matter.  I accept that the following issues arise for determination in this case:

   (1)Did the Council impute a disability, histrionic personality disorder, to the applicant at material points of time between 9 May 2006 and 4 October 2006?;

   (2)Was the Council’s decision to stand down the applicant on 9 May 2006 an act of direct disability discrimination within the meaning of ss.15(2)(a) and 5 of the DDA?;

   a)was the applicant subject to a detriment in the terms and conditions of her employment;

   b)was a reason for the decision the imputed disability;

   c)was the applicant treated less favourably than a person without the imputed disability was or would have been treated in the same circumstances;

   (3)Was the Council’s direction that the applicant attend psychological and psychiatric assessments from 9 May 2006 an act of direct disability discrimination within the meaning of ss.15(2) and 5 of the DDA;

   a)was the applicant subject to a detriment in her employment;

   b)was a reason for the direction the imputed disability;

   c)was the applicant treated less favourably than a person without the imputed disability was or would have been treated in the same circumstances;

   (4)Was the Council’s decision to terminate the applicant’s employment with effect on 4 October 2006 an act of direct disability discrimination within the meaning of ss.15(2) and 5 of the DDA;

   a)was a reason for the decision the imputed disability;

   b)was the applicant treated less favourably than a person without the imputed disability was or would have been treated in the same circumstances;

   (5)If the Court answers any of (2), (3) or (4) affirmatively, what loss or damage did the applicant suffer for each of (2), (3) and (4) above, if the Court finds any or all of the incidents contravened the DDA.

2. I accept that a histrionic personality disorder may be a disability for the purposes of the DDA on the basis that it is a disorder, illness or disease that affect’s a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour.

3. Ms Varas’ claim is one of direct disability discrimination in relation to the imputed disability of histrionic personality disorder.  The points of claim add the assertion that the disability was associated with an imputation of violent or dangerous behaviour but I do not consider that both allegations need to be proved in order for Ms Varas to succeed.  The parties appear to be in agreement that Ms Varas did not exhibit violent or dangerous behaviour, although some staff reported to Ms Nolan when they were interviewed in 2006 that they were, for various reasons, afraid of Ms Varas. 

4. The issue of a comparator in this case is unusual in that Ms Varas asserts that she is her own comparator. Section 5(1) of the DDA requires a comparison to be made between the way in which Ms Varas was treated by reference to the asserted imputed disability and the way in which a person without that imputed disability is or would be treated in circumstances that are the same or not materially different. The assumption is that in a claim under the DDA, the comparator will be someone other than the claimant – either an actual or a hypothetical person. Ms Varas asserts that she is her own comparator because her behaviour was generally consistent throughout her long period of employment with the Council, whereas the manner in which she was dealt with by the Council changed markedly during and after 2005. While the approach is novel, upon reflection, I think that it is an approach which is open under the DDA. To put the proposition another way, the proposed comparator is an actual employee (namely Ms Varas) who:

   a)exhibited the same behaviours;

   b)occupied the same position and performed the same duties;

   c)demonstrated the same work performance; and

   d)was not imputed with the disability (prior to 2006).

5. I have dealt with this case on the basis of that comparison.  As will become apparent, that basis of comparison presents some practical difficulties, when considering the issue of dismissal in particular, but it was the basis of comparison chosen by the applicant, and is permissible.

6. I have also proceeded on the basis of the well known distinction between behaviour, and a disability manifested by a like behaviour: Purvis v State of New South Wales (2003) 217 CLR 92. The distinction is relevant both in relation to the comparison and in relation to causation. The behaviour of the comparator must be part of the comparison. There must also be a causal link between the disability (actual or imputed) and the impugned conduct. If the true basis for the conduct complained of is the behaviour, and not the disability (actual or imputed) or if the conduct would have been the same, regardless of the disability (actual or imputed) having regard to the behaviour, then the conduct will not be unlawfully discriminatory under the DDA.

Did the Council impute to Ms Varas the disability of histrionic personality disorder at any material time?

1. There is no direct evidence (apart from the expressions of belief in Ms Varas’ own affidavits that the Council imputed to her the asserted disability.  I am invited to infer that such an imputation is made by reason of reference to the disorder in psychological reports available to the Council, and consultation between decision makers and staff who had access to all or part of those reports.  On 30 April 2006 the psychologist Pauline Nolan signed a report requested by Ms Belinda Reardon, then the HR Business Partner at the Council, about Ms Varas.  That report was prepared following interviews conducted by Ms Nolan with a number of staff who worked with Ms Varas.  Ms Nolan already knew Ms Varas because she had provided counselling to her in 2005.  That dual role placed Ms Nolan in a sensitive and possibly compromised position, as it would have been difficult for Ms Nolan to exclude from her mind the knowledge gained about Ms Varas as a client.  In fact, references to that prior knowledge were included in reports Ms Nolan prepared for the Council.  In her 2006 report[22] Ms Nolan refers to Ms Varas’ presentation in 2005 as indicating:

   … that she suffered some emotional disturbance which was likely to have originated in the family setting and not from the work setting.  Her problems were chronic in nature, needing ongoing psychotherapy.

   [22] exhibit A2

1. The report refers to the concerns of library management about Ms Varas’ behaviour which is described as “impervious to workplace intervention”.  There was also management concern for the welfare of colleagues of Ms Varas who reported fear of her.

2. Ms Nolan records that the staff she interviewed presented a consistent picture of Ms Varas displaying disturbing and harassing behaviour in the workplace.  Those behaviours consisted of causing malicious gossip, threatening colleagues with disciplinary action, constantly reporting apparent work performance issues to management while not completing her own work, tantrums if challenged and very poor and hostile customer service.  Staff reported to Ms Nolan a pattern of behaviour of Ms Varas becoming over intimate and then threatening.  There was also reference to Ms Varas’ sexuality.

3. After referring in detail to the concerns expressed to her by Council staff working with Ms Varas, Ms Nolan presented the following conclusions:

   The picture of Monica’s behaviour reported is extremely concerning.  She appears to be acting in a paranoid, hostile and destructive manner on a very regular basis.  Many interventions have been tried over the years with no effect.  Many staff are going to work in an atmosphere of fear and silence.  They are suffering increased illness and personal attacks as a result.

   Monica’s behaviour is consistent with a personality disorder which is very difficult to treat.  Generally people with this disorder have no insight regarding the suffering brought to other[s].  They are totally self absorbed and all energies go into manipulating and manoeuvring those around them. They particularly thrive on causing conflict around them, are inappropriately intimate and use information to attack others.

   Respondents are correct in their assessment of Monica’s situation which is quite fragile.  Any attempt to address the situation would move her sense of structure and the world she maintains via the above behaviours.  Nonetheless, it is not acceptable for Monica to continue in this or probably any workplace as her behaviour constitutes a risk to the safety of others.  Many staff have suffered over a long period of time and all possible management strategies and support have been offered to no avail.  This behaviour is well outside the normal range that managers should be expected to handle.

4. Ms Nolan’s report contained the following recommendations:

   1.Due to the fragile nature of Monica’s psychological structure and the high risk of reprisal action needs to planned and very carefully.  Of particular concern is the safety of other staff.  Those who were able to be interviewed are to be commended for their courage in coming forward in such circumstances, and they may need particular protection.

   2.It is recommended though that that action to remove Monica from the workplace is necessary due to the extremely adverse negative effects she has upon others and that all attempts at performance management have failed to date.  Unfortunately, it appears that Monica is not capable of changing her approach and the workplace is not an appropriate setting in which to do this in any case.

   3.It is recommended that a meeting be held with HR and Anne Hall, Library Manager, to plan and co-ordinate the next course of action.  Counselling, training and performance management are contra indicated in this case. 

   4.It is highly recommended that Council seek legal advice in this case also.

5. Ms Reardon gave no evidence but I accept that the report was received by her.  I also accept that the report was discussed with Ms Hall. 

6. Ms Nolan did not give a diagnosis of a histrionic personality disorder in her report.  However, she did conclude that Ms Varas’ behaviour was consistent with a personality disorder which is very difficult to treat.  It is indisputable that the Council had, over a considerable period of time, grave concerns about Ms Varas’ behaviour.  That was why Ms Nolan was engaged.  The fact that the Council engaged a psychologist suggests that the Council considered that the issue might be a medical one, rather than an ordinary disciplinary one.  Ms Varas had, in previous years, been the subject of various disciplinary action.  In my view, it is plausible, and I accept, that, on the basis of this report by Ms Nolan, the Council imputed to Ms Varas a personality disorder of some kind.

7. On 28 May 2006 another psychologist, Mr Henry Luiker, signed a confidential psychological assessment of Ms Varas that had been requested by the Council[23].  The report was based upon an interview with Ms Varas conducted by Mr Luiker.  The report details the history of workplace conflict discussed at that interview, Ms Varas’ personal history and psychological testing undertaken by Mr Luiker.  He offers a diagnosis of a personality disorder which shows specific traits of a histrionic personality disorder.  Mr Luiker provided details of that diagnosis and concluded that the disorder was a chronic psychological condition which pre-existed the commencement of her employment at the Fairfield Council. He made the following recommendation:

   This type of psychological condition from which Ms Varas suffers – a histrionic personality disorder – is not responsive to counselling or psychotherapy.  Her complaints are also unlikely to be responsive to medical intervention.  A change in work setting is also unlikely to be helpful as her problem behaviours (investigation report, Pauline Nolan, 27 February 2006) arise from her personality.  It is difficult to be positive about any intervention in this case.

   [23] Exhibit MV27 to Ms Varas’ first affidavit, at pp90-107

8. This report was provided by Ms Nolan to Ms Reardon in a letter dated 5 June 2006[24].  Ms Nolan states in the letter that the outcome of the assessment indicates that Ms Varas has a histrionic personality disorder. 

   [24] Exhibit MV 27 at pp108-109

9. Ms Nolan provided the following recommendations to Ms Reardon:

   1.Psychiatric assessment proceed and if diagnosis and prognosis is confirmed a medical retirement could be offered to Monica.

   2.Monica continued to be suspended on full pay while these processes are continuing.

   3.Support to victims as required.

   4.After the matter is resolved a debriefing should be provided for the library staff especially due to issues of guilt that are likely to surface.

10. At page 110 to the exhibit MV 27 to Ms Varas’ first affidavit is a note of feedback meeting concerning Mr Luiker’s psychological assessment with the Council administration. The document records:

    As explained by Mr Luiker on 31 May 2006, Monica Varas has a histrionic personality disorder and hypochondriasis. 

    In an updated report from Ms Nolan dated 28 June 2006, which was requested by Belinda Reardon[25], Ms Nolan recorded the history of the psychological assessment and investigation of Ms Varas from February 2005 until 27 June 2006.  Ms Nolan records that the assessment by Mr Luiker of Ms Varas on 10 May 2006 indicated that Ms Varas has a histrionic personality disorder and hypochondriasis.  She further records that on 26 May 2006 she met with Dianne Lucas (HR Manager for the Council) and Belinda Reardon and they discussed Mr Luiker’s assessment (which was not then signed but was apparently known to Ms Nolan who worked with him).  It was decided at that meeting to arrange for a psychiatric assessment of Ms Varas “due to the serious implications for Monica of the psychological assessment”.  Ms Nolan records that at the feedback meeting on 31 May 2006 Mr Luiker explained his assessment to Ms Varas and he reported that Ms Varas fully accepted his description of her condition as histrionic personality disorder and hypochondriasis.  Ms Nolan records that on 27 June 2006 Belinda Reardon requested a summary report from PNA (the firm through which Ms Nolan and Mr Luiker provided their services) and also written feedback to give to Ms Varas.  Among other things, Ms Nolan recommended that medical retirement was the most appropriate option for Ms Varas:

    …as her condition is chronic and not likely to be treatable; hence she has little control over her inappropriate behaviours.  Council is keen to treat Monica in a supportive way rather than go to disciplinary action due to their HR philosophy and that Monica is a long term employee.

    [25] page 111 to exhibit MV27 of Ms Varas’ first affidavit

11. None of the participants at the meeting on 26 May 2006 gave evidence.   However, there is nothing in Ms Nolan’s final report to Ms Reardon to suggest that the Council did not accept Mr Luiker’s diagnosis.  The Council acted throughout the relevant period on the advice of Ms Nolan and Mr Luiker and the circumstantial evidence is that Mr Luiker’s diagnosis was accepted.  Mr Luiker apparently believed that it had also been accepted by Ms Varas at the feedback meeting on 31 May 2006.  I find that the Council imputed to Ms Varas the disability of histrionic personality disorder on and from 26 May 2006.

Did the Council unlawfully discriminate against Ms Varas by standing her down on 9 May 2006?

1. Ms Hall was responsible for the decision to suspend Ms Varas from 9 May 2006.  Nothing turns on whether the action was a suspension or a stand down.  Ms Varas was removed from the workplace on full pay.  I accept Ms Hall’s evidence that this was not a disciplinary action but one taken with the health and welfare of staff (including Ms Varas) in mind.  Ms Varas claims that she was suspended because of the imputed disability.  An immediate difficulty with that claim is that there was at that time no diagnosis of histrionic personality disorder.  Ms Nolan had referred in her report of 30 April 2006 to an unspecified personality disorder but her report was primarily directed to the reported behaviours of Ms Varas and the impact of those behaviours on other staff.

2. There was a conflict of evidence between Ms Hall and Ms Varas about what was said at a meeting between them on 9 May 2006 when Ms Hall told Ms Varas of her suspension.  Neither witness gave thoroughly reliable evidence.  Ms Varas in her first affidavit gave a highly misleading account of her employment history, intending to present herself as a valued employee.  In cross-examination, she was forced to admit a series of incidents over many years and disciplinary action taken against her at various times prior to 2005, culminating in a final written warning.  On the other hand, the evidence of Ms Hall was marred by her poor recollection and confusion which was exposed during cross-examination.

3. Ms Joannides attended the meeting on 9 May 2006 as the support person for Ms Varas.  I found her evidence of what occurred at that meeting reliable and I accept it.  On the basis of Ms Joannides’ account I make the following findings in relation to the meeting on 9 May 2006 and the decision of Ms Hall to suspend Ms Varas:

   a)Ms Hall had decided to take action because of Ms Varas’ behaviour and her perceived duty of care towards other staff;

   b)Ms Hall asked Ms Varas to attend a psychologist for an assessment – this was not for the purpose of counselling Ms Varas (which had occurred in 2005) but for the purpose of the Council obtaining an assessment about Ms Varas;

   c)Ms Hall told Ms Varas that the assessment was related to her behaviour; and

   d)Ms Hall said that what happened after the assessment would depend upon what was in the report, including any recommendation.

4. Ms Hall was aware of Ms Nolan’s 2006 report and had discussed it with Ms Reardon, who also attended the meeting on 9 May 2006.  Ms Hall was acting on the advice of Ms Nolan in proposing that Ms Varas attend a psychologist so that a further report could be provided to the Council.  The meeting on 9 May 2006 followed a private discussion between Ms Nolan and Ms Varas earlier the same day.

5. I accept Ms Hall’s evidence that her focus at this time was on the behaviour of Ms Varas and the impact that that behaviour was having on other staff.  She was not motivated by any particular belief about Ms Varas’ mental condition. It is clear that she was following the recommendation of Ms Nolan which she had discussed with Ms Reardon.  While Ms Nolan had referred to Ms Varas having a personality disorder it was not identified and the focus of Ms Nolan’s report was on Ms Varas’ behaviour and the impact on other staff.  With the benefit of hindsight, Ms Varas has come to believe that Ms Hall acted because she had imputed to her a violent personality but that subjective recollection is not supported by any other evidence.  I reject it.

6. I find that Ms Varas was not suspended because of an imputed disability (which was not at that time identified) but because of her behaviour, and the perceived duty of the Council to protect its staff.  The concerns of staff about Ms Varas had been reported to Ms Nolan in sometimes dramatic form but their fears and concerns were genuinely held.  In particular, I found the evidence of Jennifer Harris compelling.  She had been seriously disturbed by the highly inappropriate and unpredictable behaviour of Ms Varas.

7. The Council had a duty to protect its staff from harm.  The concerns expressed by staff to Ms Nolan, as reported by Ms Nolan (and as reiterated by some in their evidence in these proceedings) compelled action by the Council because of its duty as an employer towards its employees.  The Council acted in pursuance of that duty and not because it had imputed to Ms Varas a disability.  This aspect of the applicant’s claim fails on the facts.

Did the Council unlawfully discriminate against Ms Varas by requiring her to attend psychological and psychiatric assessments from 9 May 2006?

1. On 9 May 2006 Ms Varas was asked to attend Mr Luiker on 10 May 2006.  She complied with that request.  On 28 June 2006 Ms Varas was directed to attend a psychiatrist, Dr Korner, on 7 July 2006.  She attended but declined to co-operate with him.  Ms Varas refused to comply with a further direction to attend Dr Korner given on 14 August 2006 for an appointment on 18 August 2006.  Ms Varas also asserts that she was required to attend Ms Nolan but I reject that aspect of her claims.  Ms Varas was not interviewed by Ms Nolan for the purposes of her 2006 report.  Her attendances on Ms Nolan in 2005 were voluntary and for her own purposes.  Ms Varas did attend at least one debriefing meeting with Ms Nolan but that was not for the purposes of any assessment.

2. The decisions to refer Ms Varas to Mr Luiker and Dr Korner were made by Ms Hall in consultation with Ms Reardon.  Ms Sandars gave evidence that she did not have a specific role in relation to the requirements for Ms Varas to attend on Mr Luiker and Dr Korner.  The request to attend Mr Luiker was made at the meeting on 9 May 2006 by Ms Hall.  The request was also made in writing by letter dated 8 May 2006[26].  Relevantly, the letter states:

   Whilst we are waiting for the report following your assessment, we would ask that you limit your contact with Council staff.  Should you wish to discuss this process, please contact Belinda Reardon… Please note that you will not be required to attend work during this process and you will continue to remain on full pay until further notice.  It is envisaged that we will receive the report by Friday, 19 May 2006, at which time we will contact you to arrange a meeting to discuss the outcome.

   A summary report of our concerns that have been discussed with you today will be outlined in writing and mailed to your home address.  This summary report provides more detail in relation to the inappropriate workplace behaviours that have been discussed with you on a number of occasions and have been detailed in the letter of 25 February 2005. 

   [26] exhibit MV18 to the first affidavit of Ms Varas. The letter was apparently given to Ms Varas on 9 May 2006.

3. That request was made after consultation with Ms Reardon and Ms Nolan and in the knowledge of Ms Nolan’s report.  Ms Hall was acting on the advice of Ms Nolan in proposing that Ms Varas attend on Mr Luiker so that a further report could be prepared.  No evidence is available from either Ms Nolan or Mr Luiker, apart from their reports.  The request for Ms Varas to attend Mr Luiker was the “next course of action” referred to by Ms Nolan in her report[27].

   [27] see [79] above

4. It is plain, in my view, that the action of the Council in requesting Ms Varas to attend Mr Luiker was for the purpose of obtaining a further report to gain additional insight into her condition.  The stimulus for that request was the report of Ms Nolan and the concerns the Council had about Ms Varas’ behaviour.  At the time the request was made, there was no specific diagnosis of Ms Varas’ condition.  There was no diagnosis of a histrionic personality disorder. 

5. I find that the referral to Mr Luiker was not because of a disability of histrionic personality disorder imputed to Ms Varas by the Council.  Rather, it was a further action taken because of the Council’s concerns about Ms Varas’ behaviour.

6. On 28 May 2006 Mr Luiker signed his report.  Ms Nolan provided the report to the Council by letter dated 5 June 2006.  As noted earlier, it was at this point that the diagnosis of a histrionic personality disorder was made known to the Council.  Ms Nolan recommended a psychiatric assessment.  Ms Varas asserts, and I accept, that she was directed by letter from the Council to attend an appointment with Dr Korner on 16 June 2006.  The context was a recommendation that the Council consider medically retiring Ms Varas.  It is plain that the psychiatric assessment was to be obtained for the purpose of considering whether Ms Varas should be retired on medical grounds.  At this stage, Ms Varas engaged lawyers who wrote to the Council on 13 June 2006 setting out her concerns in relation to her treatment.  It is apparent that by this stage Ms Varas was concerned about the future of her employment.  It was probably because of that concern that she declined to co-operate with Dr Korner at the appointment she attended on 16 June 2006.  The second direction was given in writing by the Council on 28 June 2006 to attend an appointment on 7 July 2006[28].  Ms Varas did not comply with that direction.  A further direction was given in writing by letter dated 14 August 2006 to her solicitors[29], for an appointment on 18 August 2006.  Once again, Ms Varas did not comply. 

   [28] Exhibit MV19 to Ms Varas’ first affidavit

   [29] Exhibit MV23 to Ms Varas’ first affidavit

7. I have already found that, having received Mr Luiker’s report and having acted on Ms Nolan’s recommendations, the Council did impute to Ms Varas the disability of a histrionic personality disorder.  The Council was seeking the security of a psychiatric assessment before acting on the recommendation for a medical retirement.  However, the Council had made no decision to retire Ms Varas and would not have been in a position to take that decision without a psychiatric diagnosis.  Ms Varas remained on full pay and it cannot be assumed that Dr Korner would have confirmed the diagnosis and would have provided an assessment sufficient for the Council to retire Ms Varas on medical grounds.  That was merely a possibility.  Another possibility was that Dr Korner would not have supported the diagnosis.  The medical evidence now available, which is relied upon by Ms Varas[30], does not support the diagnosis. 

   [30] see the discussion earlier of the evidence of Dr Allnutt and Dr Yenson

8. In Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603[31] at [68] and [69] Madgwick J said:

   It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.

   The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 450.

   [31] (2002) 118 FCR 395

1. Similar issues arose in Thompson v IGT (Australia) Pty Limited [2008] FCA 994. The applicant in that case objected to seeing a psychiatrist when called upon to do so by his employer. At [38] Goldberg J noted that the applicant was not a doctor and whether it was appropriate or necessary for the applicant to have a psychiatric assessment or to have a meeting with a psychiatrist was a matter ultimately for the doctors to determine. Having regard to the applicant’s history in that matter, Goldberg J did not consider the employer’s request to be unreasonable. At [48] – [52] his Honour said:

   The following principles are well established.  An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer.  In McManus v Scott‑Charlton (1996) 70 FCR 16, Finn J said at 21:

   The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer:  see Australian Telecommunications Commission v Hart (1982) 65 ALR 41; Bayley v Osborne (1984) 4 FCR 141; for a different view on the matter of reasonableness see 10 Halsbury’s Laws of Australia, ‘Employment’, par 165‑265, but cf W B Creighton, W J Ford and R J Mitchell, Labour Law (2nd ed, 1993), pars 8.2‑8.8. …

   The ‘standard or test’ of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621‑622:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.  In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.

(Emphasis added). 

…

The need for some such limitation is patent:  employment does not entail the total subordination of an employee’s autonomy to the commands of the employer.  As was said by the President in Australian Tramways Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:

‘A servant has to obey lawful commands, not all commands.  The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets.  The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.’

There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this.  These need not be laboured here although they are of no little significance in the resolution of this case.

It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely. In Victoria, duties are cast upon employers by the Occupational Health and Safety Act 2004 (Vic). Section 21 provides:

“(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.”

(2)Without limiting sub‑section (1), an employer contravenes that sub‑section if the employer fails to do any of the following –

…

(d)provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;

(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.”

Section 22(1) provides:

“An employer must, so far as is reasonably practicable

(a)monitor the health of employees of the employer; and

(b)monitor conditions at any workplace under the employer’s management and control; and

(c)provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety.”

In Blackadder v Ramsay Butchering Services Pty Ltd (2002) 118 FCR 395, Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work on reinstatement. …

Those observations of Madgwick J were not disturbed on appeal to the Full Court of the Federal Court and finally on appeal to the High Court, which upheld Madgwick J’s decision in whole:  (2005) 221 CLR 539. 

As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’s disability in relation to the workplace in which the employee works.

As I noted earlier, s 15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work.  It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work.  It follows, in my view, that there are circumstances in which a requirement to provide medical information to one’s employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment.

1. Further, at [54] his Honour said:

   In my opinion, it was reasonable, and probably necessary, for the respondent in this case to find out more about the applicant’s condition, which included the obtaining of a report from a psychiatrist, especially having regard to the unexplained absences. 

2. I reach the same conclusion in this case. The Council had serious and well founded concerns about the behaviour of Ms Varas. Those concerns were confirmed by two psychologists, Ms Nolan and Mr Luiker. In addition, Ms Varas’ use of sick leave was a concern. A reliable psychiatric assessment was reasonably required for the Council to decide upon further action. I find, on this basis, that although the Council’s directions for Ms Varas to attend Dr Korner were because the Council had imputed to her a histrionic personality disorder (and hypochondriasis) the requests were reasonable in the circumstances and did not constitute a detriment for the purposes of the DDA.

Did the Council unlawfully discriminate against Ms Varas by terminating her employment with effect from 4 October 2006?

1. Ms Sandars made the decision to terminate Ms Varas’ employment on 28 September 2006 with effect from 4 October 2006.  The purported reasons for the termination are stated in the letter of termination dated 4 October 2006[32].  Those reasons are:

   a)her refusal to allow any communication between herself and the Council and her refusal to sign the authority the Council had requested to enable a report to be obtained from Dr Korner;

   b)Ms Varas’ inappropriate behaviour in the workplace and excessive sick leave demonstrating an asserted inability to fulfil the inherent requirements of her position; and

   c)the Council did not specifically rely on earlier disciplinary action against Ms Varas but the Council specifically reserved its position in relation to those earlier disciplinary matters.

   [32] Exhibit MV25 to Ms Varas’ first affidavit

2. Ms Sandars conceded that the letter was prepared with legal assistance. 

3. In my view, the first purported reason for the termination was contrived.  Ms Varas had asked the Council to communicate through her solicitors rather than directly with herself.  Following the report of Mr Luiker, Ms Varas had seen her employment as being placed under threat (that was indeed consistent with the recommendation by Ms Nolan that the Council consider medical retirement) and Ms Varas had made a complaint to HREOC.  Clearly, Ms Varas saw herself at that point as being in a legal dispute with the Council and acted on legal advice in requesting that communications be put through her solicitors.  Ms Reardon had received and responded to correspondence from the solicitors.  Ms Lucas’ letter to Ms Varas’ lawyers dated 6 July 2006 followed an earlier letter from Ms Reardon to the solicitors seeking confirmation that the solicitors had authority to act on her behalf and must be taken to be an acknowledgement of acceptance by the Council of that authority because it responds to questions put by the solicitors that Ms Reardon had said in her earlier letter would be answered once the Council had confirmed the solicitors’ authority. Direct communication between Ms Varas and the Council when she had engaged solicitors to represent her, and that engagement had been acknowledged by the Council, was an unreasonable requirement to place on Ms Varas because it undermined the position of her solicitors, who needed to control the process of Ms Varas’ dealings with her employer in order to protect her interests.  In a letter dated 29 September 2006 to the General Manager of the Council, Ms Varas’ solicitors had reviewed events earlier that month and at paragraph 8, noted that Ms Reardon had refused to disclose to them who the Council’s lawyer was.  The solicitors requested that if the Council was using a legal practitioner, future correspondence should be between that practitioner and Ms Varas’ solicitor.  That was a reasonable request.  The claim in the termination letter that Ms Varas’ refusal to communicate directly with the Council constituted a repudiation of her employment contract is nonsense.  As a reason for termination it is entirely contrived. 

4. The Council’s directions to Ms Varas to attend on Dr Korner were, as I have found above, reasonable. The second direction was communicated to her solicitors by letter dated 14 August 2006.  The letter advised that if Ms Varas did not comply with the direction, disciplinary action would be considered[33].  Ms Varas failed to attend that appointment arranged for 18 August 2006.  Curiously, however, the Council did not rely on the failure of Ms Varas to attend on Dr Korner as directed, in the termination letter.  Rather, the Council asserted that her refusal to sign on authority for the Council to obtain a report from Dr Korner constituted a repudiation of her employment contract.  That request was made on 8 September 2006.  There is no evidence of any refusal by Ms Varas to sign the authority requested and Ms Varas gave evidence that she signed and returned the authority on 28 September 2006.  There is no record of the authority now existing.  It appears, therefore, that Ms Sandars assumed that the failure by Ms Varas to provide the requested authority between 8 September and 28 September 2006 constituted a refusal to do so. 

   [33] exhibit MV23 to the first affidavit of Ms Varas

5. In my view, the Council’s letter confuses the refusal by Ms Varas to attend appointments with Dr Korner with the assumed refusal to sign the authority.  In her affidavit Ms Sandars sought to broaden this complaint into an alleged refusal to provide “relevant correspondence and/or communication” relating to Ms Varas’ medical condition and absence from work.  Under cross-examination, however, Ms Sandars could not point to any specific refusal to provide “relevant correspondence”.  She was unaware of anyone in the Council receiving the requested authority for Dr Korner’s report.  Her evidence provided no real support for the assertion in the termination letter. This was also a contrived reason for the termination.

6. The other possible reason for the termination was the “issues” which gave rise to the suspension, namely inappropriate behaviour in the workplace and excessive sick leave.  The termination letter does not specify whether those issues were treated as supporting disciplinary action or action based on a medical assessment.  The Council had previously accepted the advice of Ms Nolan that a psychiatric assessment be obtained for the purpose of considering medical retirement.  As I noted above, the Council reasonably required that assessment before deciding upon further action.  It needed a reliable medical assessment.  The assertion in the letter of termination that Ms Varas had demonstrated an inability to fulfil the inherent requirements of her position might, hypothetically, have been supported by the psychiatric assessment, if it had been obtained, but it was not obtained.  There was nothing in the reports of Ms Nolan and Mr Luiker in themselves which supported a conclusion that Ms Varas was unable to fulfil the inherent requirements of her position.  If there had been, the termination decision could have been made at the time the suspension decision was made.  Nothing had changed in the interim apart from receipt of the report of Mr Luiker and the recommendation that a report be obtained from Dr Korner.  Critically, Mr Luiker had diagnosed Ms Varas as having a histrionic personality disorder and hypochondriasis.  This, in my view, puts in context the assertion that Ms Varas was unable to perform the inherent requirements of her position by reference to inappropriate behaviour in the workplace and excessive sick leave.  I find that the assertion made by the Council in the termination letter of inability to perform the inherent requirements of the position was made because the Council had imputed to Ms Varas those disabilities.  I find that the Council terminated Ms Varas’ employment because it had imputed to her those disabilities and because the Council formed the view that Ms Varas was frustrating the procedure the Council had put in place to confirm those disabilities and to decide upon the medical retirement of Ms Varas.

7. The ultimate issue is whether, in terminating Ms Varas’ employment in these circumstances, the Council discriminated unlawfully against Ms Varas contrary to s.5 and s.15(2)(c) of the DDA. The Council acted as it did because it perceived that Ms Varas was frustrating its attempts to obtain the psychiatric assessment it needed in order to consider medical retirement. Ms Nolan had noted in her updated report dated 28 June 2006 that the Council was “keen to treat Monica in a supportive way rather than go to disciplinary action due to their HR philosophy and that Monica is a long term employee.” It was in that context that Ms Nolan had recommended medical retirement. All that was missing in order for the Council to proceed with that medical retirement was a supportive report from Dr Korner. The Council was frustrated in its efforts to complete the process leading to medical retirement and hence reverted to dismissal, purportedly (but artificially) for the reasons given in writing. A part of the reason, however, was the disability imputed to Ms Varas, based upon the report of Mr Luiker and the recommendation from Ms Nolan, which had established the path towards medical retirement that the Council was proceeding on.

8. The amended points of claim at paragraph 38 plead that Ms Varas was dismissed on the ground of the imputed disability.  I am inclined to the view that the process of termination, based upon the letter of 4 October 2006, was unfair.  However, Ms Varas does not claim that she was unlawfully discriminated against by being dismissed unfairly.  She does not allege that, but for the imputed disability, she would have been dismissed fairly.  She claims that, but for the imputed disability, she would not have been dismissed at all.  Prior to these proceedings, Ms Varas brought unfair dismissal proceedings against the Council under State law immediately after her dismissal.  For some reason unknown to me, those proceedings were discontinued.  Those proceedings may have had merit, but it is unnecessary and inappropriate for this Court to make any finding of unfair dismissal, except to the extent necessary to determine whether a fair process would have lead to the same outcome for the purpose of considering the claim made in these proceedings.

9. The critical question is whether, in terminating her employment, the Council treated Ms Varas any less favourably than she would have been if she had not been imputed with the disability.  She was not imputed with the disability before June 2006.  Ms Varas, prior to 2005, had been subjected to disciplinary action because of her behaviour and because of what was perceived to be her excessive use of sick leave.  At one point this had reached the stage of a final written warning.  Exhibit R9 is a letter dated 3 October 2001.  The letter states, relevantly, that the warning related to Ms Varas’ poor customer service, and had followed counselling and an earlier formal warning.  Ms Varas was subjected to further disciplinary action in 2002 at Wetherill Park Library in relation to customer service.  There were further incidents in 2003, 2004, 2005 and 2006, including staff complaints about Ms Varas, relating to her behaviour and use of sick leave.  In particular, staff became very concerned about Ms Varas’ unpredictability and verbal abuse.  Staff were justifiably concerned about Ms Varas’ inappropriate intimacy and intrusion into their personal lives.  Some became fearful of her.  The matters recorded by Ms Nolan in her 2006 report compelled the removal of Ms Varas from the workplace.

10. It is at this point that the comparator chosen by Ms Varas (namely herself) presents difficulties.  Ms Varas was not dismissed prior to 2006 when she was not imputed with a disability, although she was subjected to disciplinary action that might have resulted in dismissal.  She was dismissed in 2006 after she was imputed with a disability and because of it.  On Ms Varas’ analysis of the facts she was thus treated less favourably because of the imputed disability, on the basis that her behaviour and work performance did not change significantly over time.  That comparison is, however, too simplistic.  The comparison must be by reference to the same time period and the same (or not materially different) circumstances.  There were important events in 2005 and 2006 that need to be considered in the comparison.  Ms Varas’ behaviour did vary over time, for better or worse.  So did her work performance.  Both declined significantly during 2005.  A crisis was reached early in 2006 that compelled some action by the Council.

11. The report of Ms Nolan in February 2006 had sent the Council down a path of medical assessment rather than disciplinary action but, in the absence of that report, and the report of Mr Luiker, and the diagnosis, it is reasonable to assume that the Council would have considered further disciplinary action against Ms Varas because of its concerns about her behaviour, based upon the complaints of staff.  Her excessive reliance upon sick leave would have been further investigated.  It is, in my view, extremely likely that, in the light of the earlier counselling and warnings given to Ms Varas, further disciplinary action would have culminated in her dismissal in 2006.  There is no reason to believe that a fair disciplinary process would have taken any longer than the ultimately flawed process of medical assessment and review that was undertaken.  In other words, the outcome would have been the same.  Perhaps ironically, if Ms Varas had co-operated with the medical process put in train, she would possibly have secured a medical retirement rather than a dismissal but she was not treated less favourably in the circumstances that transpired, because of the imputed disability.

1. I conclude that the termination of Ms Varas’ appointment (while it might arguably have been unfair, or unlawful on some other basis) was not unlawfully discriminatory pursuant to the DDA.

2. I will order that the application be dismissed.

3. I will hear the parties as to costs.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 September 2008