Ware v OAMPS Insurance Brokers Ltd

[2005] FMCA 664

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARE v OAMPS INSURANCE BROKERS LTD [2005] FMCA 664

HUMAN RIGHTS – Disability discrimination – dismissal from employment – applicant suffering Attention Deficit Disorder and depression – work performance also affected by alcohol abuse and poor interpersonal relations – applicant issued warnings – applicant on graduated return to work after hospitalisation – demotion and dismissal following absences from the workplace – demotion and dismissal discriminatory as a peremptory reversal of consideration given to the applicant by reason of his disabilities.

Disability Discrimination Act 1992 (Cth), ss.5, 6, 11, 15, 123
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), s.5

Addis v Gramophone Company [1909] AC 488
Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Boreland v Brambles Security Services Limited [2000] NSWADT 147
Catholic Education Office v Clarke [2004] FCAFC 197
Coleman v Commissioner of Police (2001) EOC 93-133
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1
Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95
Gilroy v Angelov (2000) 181 ALR 57
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Hinchliffe v University of Sydney  [2004] FMCA 85
Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721
Horne & McIntosh v Press Clough Joint Venture (1994) EOC 92-591
IW v City of Perth (1997) 191 CLR 1
Leonard v Youth Hostel Associations of Australia (1995) ECO 92-763
Leslie v Graham [2002] FCA 32
Purvis v State of New South Wales (Department of  Education and Training) (2003) 78 ALJR 1
Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 88 ALR 621
Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987
Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134
Styles v Secretary, Department of Foreign Affairs and Trade (1988) 84 ALR 408
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Trindall v NSW Commissioner for Police [2005] FMCA 2
Waters v Public Transport Corporation (1991) 173 CLR 349

Applicant: JIRRA COLLINGS WARE

Respondent: OAMPS INSURANCE BROKERS LTD

File Number: SYG2245 of 2004

Judgment of: Driver FM

Hearing dates: 18-19 May 2005

Date of Last Submissions: 15 June 2005

Delivered at: Sydney

Delivered on: 29 July 2005

REPRESENTATION

Counsel for the Applicant: Mr Searle

Solicitors for the Applicant: Hunt & Hunt

Counsel for the Respondent: Miss R M Henderson

Solicitors for the Respondent: Bamford Associates

ORDERS

1. The respondent shall pay general damages to the applicant in the sum of $10,000. 

2. The respondent shall pay special damages to the applicant calculated by reference to the termination benefits that Mr Ware would have received, if he had been given notice of termination on 20 October 2003, pursuant to clause 11 of his employment contract, had he not been demoted on 13 September 2003 and dismissed on 26 September 2003, plus 20 per cent of the unreimbursed cost of Mr Ware’s consultations with Dr Mastoianni from 13 September 2003 to date.

3. The respondent shall pay interest up to judgment on the damages awarded pursuant to orders 1 and 2 at the rate of 10.5 per cent from 26 September 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2245 of 2004

JIRRA COLLINGS WARE

Applicant

And

OAMPS INSURANCE BROKERS LTD

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. Jirra Ware is a former employee of OAMPS Insurance Brokers Limited. He brings these proceedings under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). A complaint of disability discrimination in employment was terminated by a delegate of the President of HREOC on 18 June 2004. Mr Ware suffers from Attention Deficit Disorder. He alleges that OAMPS discriminated against him in his employment because of his disability by changing the terms and conditions of his employment, by terminating his employment and by subjecting him to other detriments. He alleges both direct disability discrimination contrary to s.5(1) of the Disability Discrimination Act 1992 (Cth) (“the DDA”) and also indirect disability discrimination contrary to s.6 of the DDA. He asserts that OAMPS breached s.15(2)(c) and (d) of the DDA. He also relies upon ss.11 and 123 of the DDA.

2. The background facts relevant to the terminated complaint are set out in a letter from the delegate of HREOC to Mr Ware’s solicitor dated 18 June 2004.  OAMPS acquired the company Mr Ware previously worked for on 1 October 2001.  Mr Ware claims that after OAMPS assumed ownership of the company his volume of work increased and he was given very little support.  He states that he found it difficult to cope and he submitted his resignation in September 2002 but he was persuaded to stay and his salary was increased to $80,000 per annum plus commission.  As a result of an internal restructure he was given an assistant, but he claims that the assistant was kept busy with her own portfolio of clients and offered little practical support to him.  In early 2003 OAMPS transferred Mr Ware to a technical/marketing role.  Mr Ware claims that he was not consulted about the change, nor was he provided with an outline of his role and responsibilities.  He states that due to the high volume of work and unrealistic time frames, he struggled to meet deadlines and complete tasks.  As a result of these pressures, and other personal problems, he states that he sustained psychological damage and also developed a drinking problem.  He had a tendency to consume alcohol at lunch time on Fridays which was affecting his work.  He states that he negotiated with his manager that he would not return to work after lunch on Fridays and he would make up the time during the week or on weekends.

3. Mr Ware sought medical assistance in May 2003 and this led him to being diagnosed with a medical condition and being admitted to hospital on 5 June 2003[1].  He states that the nature of his illness was known to his manager and colleagues.  Mr Ware states that in early July 2003, while he was on leave, he received an email from the Parramatta branch manager, Mr Don Crocker, which contained criticisms of his work, advice that he would be placed on probation when he returned to the office and a list of restrictions that would apply to his duties.  He claims that he had not previously been informed that there were issues with his performance.  Mr Ware returned to work on 14 July 2003, initially for three days a week.

   [1] Incorrectly stated in the letter to be 5 May 2003

4. Mr Ware states that at a meeting in the workplace on 17 September 2003 Mr Crocker advised him that he was to be demoted to the position of internal account executive for disciplinary reasons.  The new role was to commence on 22 September 2003. 

5. Mr Ware states that he took sick leave on 22 September 2003 due to his depressive illness and he obtained a medical certificate from his treating psychiatrist.  He claims that he had no opportunity to provide the medical certificate to OAMPS as he received written advice on

   
   

   26 September 2003 that his employment had been terminated. 

6. OAMPS denies unlawfully discriminating against Mr Ware on the ground of disability and disputes that Mr Ware’s medical condition was the reason for the decision to change the conditions of his employment or the decision to terminate his employment.  OAMPS asserts that the company provided a great deal of support to Mr Ware at the time when he appeared to be experiencing personal problems which impacted on his work performance.  OAMPS states that there was an arrangement in place whereby Mr Ware left work early once a fortnight to visit a psychiatrist, and management was unaware of the nature of his medical condition until he provided a medical certificate in June 2003. 

7. OAMPS states that Mr Ware was transferred to a technical/marketing role in late January 2003 because he had expressed a preference for more involvement in technical matters as opposed to customer related work.  OAMPS claims that the new position was offered to Mr Ware around 25 January 2003 and he confirmed the following week that he would accept the new position.  It therefore denies that there was no consultation with Mr Ware or that he had no choice about his new role.

8. OAMPS states that Mr Crocker sent an email to Mr Ware on 2 June 2003, outlining a series of concerns about Mr Ware’s performance and attitude.  The email was sent to Mr Ware’s home as he was not at work and OAMPS claims that it had not been informed of the reason for his absence or that he was in hospital.  The decision to place Mr Ware on probation on his return to work was deemed necessary because of performance and behavioural issues over the preceding 12 months.  OAMPS claims that Mr Crocker and Mr Greg Crosby had discussed issues such as attendance, punctuality and interpersonal skills with Mr Ware on several occasions.  OAMPS also suggested that Mr Ware’s failure to observe company policy and procedures had exposed the company to litigation.

9. OAMPS confirms that the decision to place Mr Ware in a position with less responsibility and lower pay was conveyed to Mr Ware in a meeting on 17 September 2003 and claims that this decision was based on the performance issues outlined above, not his disability.  OAMPS states that it was recognised that Mr Ware needed time to make adjustments to his expenditure and hence the reduction in salary was not to take effect until 20 October 2003. 

10. OAMPS states that Mr Ware did not report for work on Monday,

    
    

    22 September 2003 and did not advise his manager of the reasons for his absence.  OAMPS claims that numerous attempts were made to contact him on his mobile phone, without success, and, when no contact had been made by Friday the decision was made to terminate his employment.  OAMPS states that Mr Ware’s depressive illness was not a factor in the decision.

11. The complaint was terminated by the delegate of the President on the basis that an attempt to conciliate the complaint had been unsuccessful. 

Agreed and disputed facts

1. The following facts are agreed:

   (1)The applicant was employed by the respondent from 1 October 2001 to 26 September 2003.

   (2)The applicant was employed as an accounts executive by the respondent.

   (3)The applicant received an annual package of $65,000 (including car allowance and statutory superannuation payments) plus 10 per cent commission on new business from new clients when he commenced working for the respondent.

   (4)The applicant resigned in August or September 2002, but was persuaded by the respondent to retract his resignation.  His total package was increased to $80,000 per annum in September 2002 with effect from 1 October 2002.

   (5)The applicant’s duties were altered, without any change to the applicant’s remuneration, in early 2003.

   (6)The applicant was absent from his employment between 29 May 2003 and 13 July 2003, and was hospitalised for part of that time in the Northside Clinic.

   (7)The applicant returned to work on 14 July 2003 on the basis that he was to work three days per week: Mondays, Wednesdays and Fridays.

   (8)

   By a letter dated 13 September 2003, the applicant was demoted to the position of internal account executive with effect from

   
   

   22 September 2003. His package was reduced to $45,000 inclusive of superannuation and allowances, on the basis that the reduction in remuneration was to take effect from 20 October 2003.  By a letter dated 26 September 2003, the respondent terminated the applicant’s employment.

2. The following facts are disputed:

   (1)Whether the applicant’s duties were altered in early 2003 without any prior notice to the applicant or any prior discussion between the applicant and respondent.

   (2)Whether, as from 1 October 2002, the applicant’s package was $80,000 or whether it was $80,000 plus commission on new business for clients.

   (3)Whether the applicant had Attention Deficit Disorder during his employment with the respondent.

   (4)Whether the applicant had a major depressive illness during his employment with the respondent.

   (5)Whether the respondent was aware of the applicant’s Attention Deficit Disorder and/or major depressive illness during his employment by the respondent.

   (6)Whether, at the relevant time, the applicant had a disability within the meaning of s.4 of the DDA.

3. OAMPS further disputes that it treated Mr Ware any less favourably than other employees by reason of his disability or that it imposed on him any condition or requirement that he could not comply with because of his disability.

The applicant’s evidence

1. Mr Ware relies upon his own affidavits made on 15 July 2004, 12 May 2005 and 19 May 2005, as well as the affidavit of his estranged wife, Elizabeth Ware, made on 11 March 2005 and the affidavit of his treating psychiatrist, Dr Anthony Mastroianni made on 1 March 2005, annexed to which are the doctor’s qualifications and a psychiatric report prepared on 8 November 2004. 

Jirra Collings Ware

1. In his first affidavit Mr Ware recites his employment history and the facts which form the basis of his complaint to HREOC.  In his second affidavit Mr Ware responds to affidavits prepared by the respondent’s witnesses.  He denies being abusive towards his colleagues although he admits urinating in a waste paper bin.  He denies absenting himself from his employment in September 2003 without advising his employer and he asserts that he informed Donald Crocker of his Attention Deficit Disorder in about July 2002.  He denies he was given preferential treatment in his employment and he asserts that he addressed Donald Crocker’s concerns raised in relation to his performance of duties.  He admits taking extended lunch breaks at the Parramatta Leagues Club but asserts that a number of his co‑employees also did so and also consumed alcohol on these occasions.  He denies exposing OAMPS to the risk of litigation or causing the loss of a client.  He denies responsibility for the presence on his computer system of email correspondence containing or referring to pornographic material.

2. While denying abusive behaviour, Mr Ware admits that he may have been “very direct” in his approach with some staff but asserts that this was due to the pressure of work, coupled with his depression. 

3. I permitted Mr Searle to file in court a third affidavit by Mr Ware detailing his asserted economic loss.  In that affidavit, made on 19 May 2005, Mr Ware deposes as to the work he undertook following the termination of his employment with OAMPS on 26 September 2003.  He also deposes as to the medical consultations he undertook and the cost of them.  He claims $2,490 in medical expenses and $82,681.80 in lost earnings, taking into account his earnings since the date of his termination. 

4. I permitted Mr Searle to lead short additional oral evidence from Mr Ware.  Mr Ware states that during the latter part of 2003 he was absent from work on a regular basis because he was being treated as an outpatient at the Northside Clinic three days a week following a period as an inpatient.  He states that his working hours were adjusted to accommodate this.  He received treatment at the clinic for ten weeks commencing on 14 July.  In relation to his absences from work on 1, 8 and 12 September 2003, Mr Ware could only specifically recall that on 12 September 2003 he attended a funeral in Melbourne.  He states that he sought leave from Greg Crosby and that leave was granted.  He states that on 30 May and 2 June, when he was absent from work, he sent a SMS message to either Mr Crosby or Mr Tyler to advise of his absence.  Mr Crocker was his supervisor and Mr Crosby was also in a senior position at the time.  I accepted as exhibits Mr Ware’s employment agreement[2], his complaint and annexed documents put before HREOC[3], a leave application for 26 days leave commencing on 29 May 2003 signed by Mr Ware on 19 June 2003[4] and a reference relating to Mr Ware signed by or on behalf of Neil Tyler of OAMPS dated 29 September 2003[5].

   [2] exhibit A1

   [3] exhibit A2

   [4] exhibit A3

   [5] exhibit A4

5. Under cross-examination Mr Ware was an impressive witness.  He had an excellent recall of detail and gave no hint of attempting to evade any question or give a false answer.  He admitted that he had had trouble in his personal life and it was this that led him initially to seek help from a psychologist who later referred him to Dr Mastroianni with a preliminary diagnosis of Attention Deficit Disorder.  He admitted seeking help with anger management, specifically in relation to his interpersonal skills.  He admitted binge drinking on occasions.  He first sought help from a psychologist in the first half of 2000.  He admitted that at this time, while there were problems in his personal life, he was not having work problems.  He stated that he received medication for his Attention Deficit Disorder.  He stated that he took the medication. 

6. Mr Ware agreed that in the latter part of 2002 his remuneration had been increased but said that this was a restoration to the position he had been in before his former employer was taken over by OAMPS.  He stated that he believed he was entitled to commission after that point of about $5,000 although none had been paid.  He admitted that between October 2001 and September 2002 his duties generally stayed the same and said that while he felt stressed, he felt under control and felt that he was coping.  He agreed that nevertheless it was possible that he may have resumed binge drinking in mid 2002.  He admitted being counselled by Mr Crocker and being sent on a supervisor’s training course to help with his interpersonal skills.  He denied any specific allegation of rude or obnoxious behaviour by him.  He agreed that his binge drinking had recommenced by October 2002.  He admitted a conversation with Mr Crosby relating to the desirability of him not returning to work after long lunches but denies the terms of the conversation asserted by Mr Crosby.  He conceded that Mr Crocker had not endorsed his absence from work on such occasions.  He admitted marital problems from 2001, around the time of the birth of his first daughter[6].  He admits that he was rebuked in July 2003 for not satisfactorily carrying out insurance endorsement work.  He admits that he still had alcohol problems and still took long lunches early in 2003.  He agreed that OAMPS had arranged for his work to be more office based at this time and that those arrangements were still in place in June 2003 when he entered hospital.  He admitted that his father died in May 2003 and that he also lost two half brothers at around the same time.  He admitted that at this time his marriage had broken down and his wife and daughter had moved out of the family home and that his wife had obtained an apprehended personal violence order.  He agreed that he had had two serious motor vehicle accidents prior to his entry to hospital and that he had been charged by the police.  He also admitted driving an unregistered motor vehicle and driving while his licence was suspended.

   [6] 21 August 2001

7. Mr Ware accepted that the employment conditions he was placed on following his released from hospital were fair.  He agreed that he was counselled by his employer in mid September 2003 and that he did not return to the workplace thereafter.

8. Mr Ware denied ever being reprimanded by Mr Crocker for being rude to other staff.  He stated that when he entered hospital in June 2003 his medication was in part increased and was also augmented.  He insisted that at this time he was required to use his annual leave as he had exhausted his sick leave entitlements. 

1. In re-examination Mr Ware said that while he did return to the workplace inebriated after “long lunches” he was not the only employee to do so.  He asserted that five or six of his fellow employees also drank regularly on such occasions.  He states that he did not drink alone, but with colleagues or clients.  He states that other employees also returned late from work on Friday afternoons.  To his knowledge, no other employees were counselled, had their duties altered, were demoted or had their employment terminated.  He said that Mr Crosby suggested to him that he should not return to the office inebriated.  He states that he was directed not to return to the office after a Friday long lunch and that he worked on weekends to more than make up for lost time. 

2. In additional cross-examination relating to his third affidavit Miss Henderson asked Mr Ware about the work he undertook for an organisation called D & W Hospitality Consulting.  Mr Ware explained that this was a partnership he undertook with his wife and that the documents annexed to his third affidavit set out the amount earned by him by arrangement between that partnership and clients of the partnership.  Miss Henderson put to Mr Ware that his latest evidence as to his earnings contradicted statements he had made to Dr Mastroianni on various occasions.  Mr Ware explained that the doctor’s records of those conversations simply indicated his thoughts at that time, whereas the evidence he now presented set out what had actually happened.  Mr Ware stated that the evidence he presented was complete and accurate and provided all documents that were readily available to him.

3. Mr Ware admitted that on 24 October 2003 he was told of the possibility of obtaining employment with GIO on a salary package of over $100,000.  In re-examination he stated that he had been asked to supply a curriculum vitae to GIO which he did but he was not asked to come for an interview and was never offered a job. 

4. Miss Henderson also asked Mr Ware about his medical expenses.  He admitted that health benefits would have been claimed in respect of those medical expenses.  He also admitted that he would have still needed to see Dr Mastroianni if he had not been dismissed by OAMPS but asserted that the consultations would not have needed to have been so frequent.  In re-examination Mr Ware stated that the amounts claimed in his affidavits for medical expenses were amounts unreimbursed from Medicare or any private health insurance. 

Elizabeth Ware

1. Elizabeth Ware is the estranged wife of Mr Ware.  She remains married to him but lives apart.  Mrs Ware deposes that her husband is a good and caring partner and that she had enjoyed a good relationship with him.  She states that he began having difficulties in his family life when he commenced working for OAMPS.  She deposes that he worked long hours and was initially denied an office when other employees of equal status had one.  She deposes that in July 2002 Mr Ware told her that he had been commended on his work in doing a presentation.  She corroborates Mr Ware’s resignation in September 2002 which was later retracted.  She deposes that in April 2003 Mr Ware became distressed and depressed following the alteration of his job description.  She deposes as to a conversation she had with him at this time about his long working hours.  She deposes that on a number of occasions she met her husband for lunch at a pub close to the OAMPS premises and that “many people” from the office would also be present, including Greg Crosby. 

2. Mrs Ware deposes that her husband was directed not to attend work by his doctor and that he was absent from work between May and July 2003.  While Mr Ware was away from work she had a conversation with Don Crocker and obtained from him by email a sick leave form.  She deposes that Mr Crocker told her that Mr Ware’s sick leave would not cover all the period of absence and that he would have to use his annual leave.

3. Mrs Ware deposes as to a further conversation with Mr Crocker on 27 June 2003 when she discussed with Mr Crocker Mr Ware’s return to work following his release from hospital and the need for him to attend an outpatient’s clinic three days a week on Tuesdays, Thursdays and Saturdays.  She deposes that Mr Crocker in this conversation expressed some unhappiness about Mr Ware returning to work before he was “better” and said that his job would need to change and there would need to be an agreement entered into.  She deposes to further conversations relating to Mr Ware’s return to work with Mr Crocker on 30 June 2003 and 3 July 2003. 

4. Mrs Ware deposes that the demotion of Mr Ware in September 2003 had a detrimental effect on Mr Ware and the family.  She was at this time expecting her second child.  She deposes that Mr Ware was “devastated”.  She deposes that after the demotion Mr Ware did not attend work any longer and that on or about 24 September 2003 he was directed by his treating doctor to take more time off work.

5. Mrs Ware deposes that she gave birth to her second child on 17 October 2003 and that she ceased working for a period of three months thereafter.  During that period she and Mr Ware had to rely on their savings and neither was in employment.  She denies that Donald Crocker said to her that Mr Ware’s behaviour was “appalling” or that it had caused “considerable exposure” to OAMPS.  She denies other statements attributed by Mr Crocker to her in paragraph 26 of Mr Crocker’s affidavit.

6. Under cross-examination Mrs Ware contradicted her husband in stating that their marital problems began earlier than the birth of their first child on 21 August 2001.  She asserts that the problems began after Mr Ware’s former employer was taken over by OAMPS.  She admitted that her knowledge of the cause of the problems experienced by Mr Ware was based upon what he had told her.  She also admitted that she believed Mr Ware was under pressure at work because of his long working hours but that she acted on a belief in the truth of his statements that he was spending long hours at work because he needed to in order to get his work done.  She admitted discussing with Mr Ware the possibility of him resigning from work as a way of obtaining increased pay. 

7. Miss Henderson asked Mrs Ware when she became aware of Mr Ware’s drinking problems.  She said that this was in late 2001.  She insisted that Mr Ware was put under an obligation to use his recreation leave at the time he was in hospital in 2003. 

8. In re-examination Mrs Ware stated that as well as speaking to her husband about his employment issues she had obtained some knowledge from speaking with other OAMPS employees including Neil Tyler. 

Dr Tony Mastroianni

1. Dr Mastroianni is a consultant psychiatrist who has been treating Mr Ware for several years.  Annexed to his affidavit made on 1 March 2005 is his curriculum vitae and a report concerning Mr Ware.  I accepted at the trial from the curriculum vitae that Dr Mastrionanni was qualified to give opinion evidence.  In his report, Dr Mastrionanni states that Mr Ware has a disability arising from a depressive illness, in addition to being diagnosed as suffering from Attention Deficit Disorder.  Dr Mastrionanni states that Mr Ware suffered a depressive episode in late 2001.  This was after Mr Ware had first been referred to see him in March 2000 with a history that was consistent with a diagnosis of Attention Deficit Disorder since childhood, social anxiety and alcohol abuse.  He states that Attention Deficit Disorder is a neurophysiological condition starting in childhood that impairs concentration, executive cognitive function, planning and organisation skills and an ability to inhibit impulses.  The severity of this disorder diminishes in adulthood.  Dr Mastrionanni states that, since receiving treatment from 2000 onwards, Mr Ware has remained very motivated to improve himself and manage his Attention Deficit Disorder.  He was always compliant with medication and attended counselling on a regular fortnightly basis to help manage his anxiety, anger, communication skills and self esteem.

2. Dr Mastrionanni reports that Mr Ware has used alcohol to reduce his social anxiety throughout his adulthood, especially after the demise of a sporting career in early adulthood.  Alcoholic binge drinking was a significant part of his presentation when he first sought psychiatric treatment in 2000.  Dr Mastrionanni reports that Mr Ware appeared subsequently motivated and committed to reducing his alcohol use.  As a result, he was able to maintain lengthy periods of either abstinence from or controlled use of alcohol during 2001 and early 2002 (prior to the emergence of his depression).  He reports that underlying marital difficulties were often inflamed during times of alcoholic intoxication. 

3. Dr Mastrionanni reports on the history of Mr Ware’s depressive illness and its sequelae.  He confirms that Mr Ware first presented with symptoms of a major depressive illness in late 2001.  Symptoms included pervasive depressed and irritable moods, a reduced ability to cope with work stress, reduced energy, social withdrawal and a reduced interest in his usual activities.  Symptoms did not improve despite regular counselling.  Dr Mastrionanni introduced a trial of medication which produced an improvement.

4. Dr Mastrionanni recounts family issues impacting upon Mr Ware’s condition as well as work stress reported around August 2002.  He increased Mr Ware’s anti-depressant medication in September 2002 and mood difficulties stabilised.  Dr Mastrionanni reports that by early 2003 Mr Ware reported significant anxiety at work.  This was associated with frequent alcoholic binges.  Dr Mastrionanni also reports marital problems including the apprehended violence order obtained by his wife in April 2003.  He also mentions a motor bike accident suffered by Mr Ware in May 2003 and the death of a half brother.

5. Dr Mastrionanni refers to Mr Ware’s hospitalisation at the Northside Clinic in June 2003.  He confirms the increase at that time of Mr Ware’s medication, and the positive impact of the removal of work stress.  At the same time he reports that Mr Ware feared his return to work and his ability to cope with its stressors.  Dr Mastrionanni reports on the depressive impact of Mr Ware’s return to work, in particular following the letter of demotion in September 2003.  He reports that Mr Ware’s depression persisted despite the birth of his second daughter in October 2003.  He reports that Mr Ware’s depressed mood was perpetuated by his perceived sense of failure for having lost his job following the termination of his employment in September 2003, fears about his family’s financial position and his ongoing marital problems.  He reports on Mr Ware’s slow improvement during 2004 and improved position currently. 

6. Dr Mastrionanni states that Mr Ware’s prognosis is uncertain.  He states that his depressive illness is in remission but that his prognosis will depend upon his ability to remain abstinent from alcohol abuse and his ongoing efforts to address anxiety and anger issues.  He reports that Mr Ware is currently fit for work.

7. Dr Mastrionanni offers the following opinion as to the causes of Mr Ware’s depressive condition:

   It is my opinion, within reasonable medical certainty from the information available to me, that his depressive illness and disability were precipitated and perpetuated by several important factors including his chronic marital difficulties, his alcohol abuse disorder, his low self esteem and chronic need to be validated by others instead of himself, the deaths of his father and brother, and work related stressors (especially in the period late 2002 to late 2003).  It is impossible to quantify the contribution of each factor. 

8. Dr Mastrionanni also ventures the opinion that the perceived lack of support and eventual termination of his employment by OAMPS during Mr Ware’s workplace re-integration did, on the balance of probabilities, exacerbate and prolong his depression and its sequelae as well as cause financial hardship. 

9. Dr Mastrionanni states that Mr Ware attended on 54 occasions with him between October 2002 and September 2004 with each session costing an average of $190, of which $100 was reimbursed by Medicare. 

10. Under cross-examination, Dr Mastrionanni stated that Mr Ware abstained from the use of alcohol between the time of his admission to the Northside Clinic in mid 2003 until 2004, when significant new alcohol abuse occurred.  He also stated that while it was not his responsibility to certify Mr Ware’s fitness for work in September 2003, Mr Ware had difficulties at the time which meant that he was unfit at that time for full time work.  He was, nevertheless, fit to undertake the reintegration programme that had been arranged for him.  Dr Mastrionanni stated that he saw Mr Ware on 16 September 2003, at which time Mr Ware had received the letter of demotion sent to him.

11. I asked Dr Mastrionanni some questions about depression in general and the condition of Mr Ware.  Dr Mastrionanni stated that depression can be a disorder in its own right or a symptom of some other disorder.  He said that in the case of Mr Ware the depression was a condition in its own right.  The condition emerged at the time of the period of significant alcohol abuse that Dr Mastrionanni was aware of in late 2001.  He said there was no direct link between the depression and Mr Ware’s Attention Deficit Disorder.  In his opinion, if there had been a link, the depression would have occurred much earlier.  He said that Attention Deficit Disorder makes people more prone to depression but does not necessarily cause it.  He did not consider that alcohol was the cause of the depression either, although it was associated with it.  He considered that while some work problems were reported by Mr Ware in 2001 these were in themselves insufficient stressors to account for the severe depression.  In the doctor’s opinion, the depression occurred independently of any particular external stimulus, although he stated under re-examination that work stressors would exacerbate the condition.  He considered that the demotion letter received by Mr Ware in September 2003 was an important factor in the exacerbation of the depression at that time.

12. Mr Ware’s evidence was completed by the tender of a bundle of leave records (exhibit A5), a bundle of documents relating to OAMPS’ business (exhibit A6) and two emails dated 5 June 2002 (exhibit A7) and 9 July 2002 (exhibit A8).  These were evidence of superior work performance by Mr Ware at the time.

The respondent’s evidence

1. OAMPS relies upon affidavits by Donald William Crocker made on 10 August 2004, Neil Paterson Tyler made on 27 April 2005 and Gregory Crosby made on 29 April 2005.

Donald William Crocker

1. Mr Crocker is the manager of OAMPS with relevant knowledge relating to these proceedings.  At the relevant time he was the manager of the North Parramatta branch of OAMPS.  He deposes as to Mr Ware’s employment details.  He deposes as to Mr Ware’s employment performance and personal behaviour.  Mr Crocker says that he reprimanded Mr Ware on 1 February 2002, 2 June 2003 and on several other occasions between January and September 2002.  He asserts that Mr Ware was rude and abusive to fellow staff members.

2. Mr Crocker deposes that in early October 2002 Mr Ware remained at a hotel all afternoon and returned to the office inebriated.  This was the occasion on which he urinated in the wastepaper bin. 

3. Mr Crocker deposes that on a number of occasions he warned Mr Ware by telephone that his drinking was “unacceptable”.  He deposes that Mr Ware’s job description was changed from account executive to technical/marketing and that Mr Ware’s workload was reduced at the same time.  He deposes that Kerry Banwell, a fellow employee, had complained in August or September 2002 that she did not want to work with Mr Ware as he was rude and “has Attention Deficit Disorder”.  Mr Crocker states that this was when he became aware for the first time that Mr Ware had this disorder.  He deposes that Mr Ware confirmed his condition in approximately October 2002 but stipulated that the information was strictly confidential.

4. Mr Crocker deposes that he arranged for Mr Ware to have his own office after he complained that he could not concentrate on his work due to distractions from other staff.  Mr Crocker deposes that Mr Ware was the only person in his position to have an office of his own. 

5. Mr Crocker deposes that Mr Ware did not earn any commission income during his employment.  Mr Crocker deposes that he did not consent to Mr Ware taking off Friday afternoons after “long lunches”.

6. Mr Crocker deposes as to further reprimands given to Mr Ware between November 2002 and January 2003 and as to more “late lunch” problems in January 2003.  He deposes as to unsatisfactory work performance between February and June 2003.  He states that Mr Ware became “uncaring and disinterested” in his work.  He deposes as to unexplained absences from work on 30 May 2003 and 2 June 2003.  He deposes as to unsatisfactory performance exposing OAMPS to a potential liability and causing the loss of a client in mid 2003.  He deposes that following his return to work Mr Ware failed to attend work on 1, 8 and 12 September 2003 without explanation.  On 13 September 2003 Mr Ware was demoted.  There were further unexplained absences on 22 and 24 September 2003. 

7. I permitted Miss Henderson to lead short additional oral evidence from Mr Crocker.  She asked him about “long lunches” and the workplace attitude to them.  Mr Crocker stated that there were instances of tolerated long lunches but the degree of toleration was “fairly restricted”.  He said that if he became aware of someone taking long lunches he would “have a word to them”.  He said that Mr Ware consistently took long lunches and that some others also did (including Mr Tyler).  He said that in addition to Mr Ware, there were instances of other employees being reprimanded in writing for taking excessive long lunches and that one other employee had received written warnings and that his work had suffered.  He had since left OAMPS.

8. Under cross-examination Mr Crocker accepted that clause 6 of Mr Ware’s employment agreement (exhibit A1) covered sick leave.  He also accepted that clause 10 of the agreement dealt with settlement of disputes and that that procedure had not been followed in the case of the termination of Mr Ware’s employment.  He was taken to clause 11 dealing with notice of termination and agreed that that notice had not been given.  He agreed that by acting prior to the expiry of the employment contract on 1 October 2003 OAMPS had been able to avoid paying termination benefits to Mr Ware but denied that this was a consideration in the timing of the termination of his employment.  Mr Crocker stated that he had made the decision to terminate Mr Ware’s employment in consultation with Mr Romano (a HR manager with OAMPS).

9. Mr Searle challenged Mr Crocker on a number of aspects of his affidavit and he resisted attacks upon his credibility.  He stated that Mr Ware had a “fiery tempter” and that it never occurred to him that this might be associated with a disability.  He stated later that he had drawn no link in his own mind between Mr Ware’s employment problems and his health problems.  This was so notwithstanding paragraph 4 of his letter to Mr Ware dated 14 July 2003 setting out the conditions for his return to work following his hospitalisation.

10. Mr Crocker was questioned at length by Mr Searle about Mr Ware’s absences from employment.  Mr Crocker insisted that the absences he referred to in his affidavit as supporting disciplinary action were unexplained and unauthorised.  He conceded that the absences may have been explained after the event and that leave might have been granted for them after the event.  He denied that there had been any contact with him on the dates of the absences referred to to explain the absences.

1. Mr Crocker conceded that the documents annexed to his affidavit did not directly support the allegations against Mr Ware contained in paragraphs 24 and 25 of his affidavit.  He nevertheless maintained that Mr Ware had put OAMPS at risk through his handling of the two insurance covers referred to.

2. Mr Crocker stated that he met Mr Ware on 15 September 2003 to counsel him concerning his demotion.  There was one other person in attendance.  He conceded that he had not offered counselling to Mr Ware through the HR area of OAMPS but stated that this was always available as was made clear in the employee handbook. 

3. In relation to the absences from the workplace which Mr Crocker gives as the reason for Mr Ware’s dismissal, Mr Crocker conceded that a medical certificate had been received from Dr Mastroianni stating that Mr Ware was unfit for work for the relevant period.  However, Mr Croker stated that he had not seen the letter prior to the dismissal. 

4. Mr Crocker was asked about paragraph 30 of his affidavit.  He stated that the “straw that broke the camel’s back” leading to the demotion of Mr Ware were the absences from work on 1, 8 and 12 September 2003.  He accepted that annual leave may have subsequently been granted for these absences but stated that the absences had not been explained “at branch level”.  Mr Crocker had not seen any link between those absences and Mr Ware’s medical condition.  Mr Crocker also stated that a factor in the demotion decision was pornographic email received by Mr Ware on his office computer, although that was not made clear in his affidavit.

5. Mr Searle asked Mr Crocker about the absence of other employees from work on “long lunches”.  He accepted that Vanessa Leahey had taken long lunches excessively and stated that she had been reprimanded.  He also stated that Ken Scott was a “continual offender” who had been reprimanded.  He also stated that Neil Tyler had taken long lunches excessively.  He denied that any of the other employees named by Mr Ware took excessive long lunches, with the exception of Phil Reithburger, who had been reprimanded, and who had not taken such long lunches as Mr Ware.  He stated that two employees had been known to return to work drunk and that they had been reprimanded.  He did not consider that their work had suffered.  He stated that Mr Ware was not unique in his conduct in this regard but that there were stronger obligations upon him because of the potential adverse impact on clients.  He stated that Mr Ware was the only employee that he knew had been receiving pornographic emails and that this came to light during the long period of Mr Ware’s absence in hospital because email was automatically diverted to Mr Crocker.

6. I asked Mr Crocker questions about his reasons for the demotion and dismissal decisions.  He agreed with me that the absences referred to in paragraphs 29 and 31 of his affidavit were very important factors but he said that they were not the only factors.  He regarded the problems concerning Mr Ware encountered prior to his hospitalisation in mid 2003 as having continuing relevance and also took into account the pornography issue.  He stated however that the pornography issue was a relatively minor one which would not in itself have led him to dismiss Mr Ware. 

7. I asked Mr Crocker why there appeared to be no assessment of the performance of Mr Ware against the five conditions imposed upon him when he returned to work following his hospitalisation, as set out in the letter dated 14 July 2003.  Mr Crocker said that this was because there was no work undertaken in order for an assessment to be made.  In further cross-examination by Mr Searle, Mr Crocker said that a factor in this was that Mr Ware was working part-time following his release from hospital.  Another factor was his absences from the workplace at other times.  I asked Mr Crocker why there was no mention about unexplained and unauthorised absences in the letter dated 14 July 2003.  Mr Crocker said that the issue was so fundamental that it did not need to be specifically mentioned in that letter[7].

   [7] There is a general reference to “attendance” in the letter dated 26 September 2003.

Neil Paterson Tyler

1. Mr Tyler deposes that he has known Mr Ware since the 1990s and deposes as to changes in employer that led ultimately to the acquisition of the business by OAMPS.  Mr Ware was initially employed as an external account executive, which role was continued within OAMPS for a time.  He deposes that Don Crocker changed Mr Ware’s position to be an internal position reducing his client contact.  He deposes as to a strong relationship with Mr Ware.  He deposes that following the takeover by OAMPS Mr Ware’s demeanour and ethic were good.  However, he deposes that Mr Ware’s ability to achieve results deteriorated over time.  He deposes that Mr Ware tried to take on too much and assist everyone.  He deposes that Mr Ware became upset by his inability to complete all his work or his inability to complete work to the standard he required of himself.

2. Mr Tyler deposes that while he was aware, before the OAMPS takeover, that Mr Ware took medication, he did not know what it was for.  He was not aware at any time that Mr Ware suffered from depression.  He deposes as to Mr Ware sleeping in the office and increasing alcohol consumption.  He deposes as to Mr Ware’s behaviour “intimidating” female staff.

3. Mr Tyler ventures the opinion that Mr Ware’s problems came about as a result of his move from a small office to a big office and as a result of Mr Ware coming to the view that his job was unrewarding and unrecognised. 

4. I permitted Miss Henderson to lead short additional oral evidence from Mr Tyler.  He stated that on occasion he went to lunch with Mr Ware and that this might be between two to six times a month.  They drank on such occasions but not always.  He denied returning to work inebriated himself.  He said that “external staff”[8] had no specific time constraints on their attendance at the workplace.  Other external staff included Mr Crosby.  Staff would sometimes take a long lunch break.  Some staff would take a long lunch break more regularly than others.  He was not aware of any staff other than Mr Ware being adversely affected in their employment as a result of taking long lunches and drinking alcohol.

   [8] staff who dealt with clients

5. Under cross-examination Mr Tyler impressed me as an honest and frank witness.  He admitted that while he did not become directly aware of Mr Ware’s depression until some time in 2003, another employee had earlier commented on depression and linked the condition to Mr Ware. 

6. Mr Tyler was asked about paragraph 7 of his affidavit.  He said that he was dependent upon what the female staff member involved told him.  He said that there had been a clash between Mr Ware and a female staff member.  He said that there was friction between the two.  Based upon what he was told he believed that Mr Ware’s response had been abnormal.  He had intended to refer to only one incident at this point in his affidavit.

7. Mr Tyler was shown exhibit A4 and agreed that this was the reference he had provided for Mr Ware and that he believed it was true at the time he made it. 

8. In re-examination Mr Tyler said that he could not be sure that Mr Ware’s “explosions” were limited to one incident with Ms Banwell.  He said that he believed that other female employees felt uncomfortable or intimidated around Mr Ware.

Gregory Crosby

1. Mr Crosby commenced employment with OAMPS on 1 May 2000 as sales manager, broking.  He deposes that Mr Ware’s work role changed in around July 2003 to a research position.  He deposes that he did not agree to Mr Ware not returning to work after lunch on Fridays.  He deposes as to a conversation he had with Mr Ware on 23 December 2002 concerning “long lunches”.  He also deposes as to a conversation he had with Mr Ware on 24 January 2003 about his relations with his assistant, Alison Kerr.  He deposes that on another occasion he told Mr Ware that his behaviour was “not acceptable”.  He deposes that on this occasion Mr Ware raised his voice, stood up and glared at him in a manner which made him feel personally threatened.  He deposes that Mr Ware never advised him of any illness.

2. I permitted Miss Henderson to lead additional short oral evidence from Mr Crosby.  He was asked whether there was a culture of long lunches in 2002 and 2003 at OAMPS.  He said that there were certainly occasions involving a few individuals (perhaps two or three) who on irregular occasions took long lunches and drank alcohol.  He said that the work of some of these employees (in addition to Mr Ware) did as a result suffer. 

3. Under cross-examination Mr Crosby said that other employees who sometimes drank at long lunches were Ken Scott, Neil Tyler and Phil Reithburger.  He was asked whether he took long lunches and he said occasionally he did and that he would drink alcohol.  He also admitted that Michael Twogood and Vanessa Leahey occasionally attended such long lunches but were not regular attendees.  He felt that the work of Ken Scott had suffered and that Neil Tyler’s work had also suffered although to a lesser extent.  He was the supervisor of Neil Tyler and not Mr Scott.  He was Mr Ware’s supervisor in 2002 and 2003 and he sought in that role to monitor, help and encourage him.

4. Mr Crosby denied ever agreeing to Mr Ware not returning to work on Friday afternoons.  He said that he had asked Mr Ware to call him if he got “caught out” on occasions.  He said that he had stressed that it was not an “open invitation” not to return to work on Friday afternoons.

5. Mr Crosby was shown annexure A to his affidavit, which was a record of incidents occurring in January 2003.  Mr Crosby was asked about his record and said that it was not a complete record of all incidents.  Mr Crosby said that he ceased recording incidents because he had referred the issue to Mr Crocker and that Mr Crocker had indicated that he would take some action.  He recalls saying to Mr Crocker that things were not improving but said that he got little feedback from Mr Crocker.

6. Mr Crosby was asked whether, following his report to Mr Crocker, he regarding the problem as Mr Crocker’s.  He stated that he got the impression that Mr Crocker would handle it.  He said that he reported his concerns to Mr Crocker both before and after January 2003.  He had not raised the issue with the HR area of OAMPS although a Mr Rob Romano had spoken to him after Mr Ware had left OAMPS. 

7. The respondent’s evidence was completed with the tender of exhibit R1, which is a memorandum to Mr Crocker from Mr Scott dated 16 February 2004 relating to the insurance cover referred to paragraph 25 of Mr Crocker’s affidavit.

Submissions

1. I invited written submissions from the parties.  Mr Searle prepared written submissions that were filed on 1 June 2005. 

2. Mr Searle’s written submissions are very lengthy and substantially comprise a survey of the evidence as he sees it.  It is unnecessary for me to recite those submissions here.  Mr Searle deals with each of the facts disputed between the parties and submits that, by reference to the evidence, they should be resolved in favour of Mr Ware.

3. In response to a request from me, Mr Searle deals specifically in his submissions with the decision of the High Court in Purvis v New South Wales (2003) 78 ALJR 1. Mr Searle makes the following submissions:

   In Purvis, a student suffered intellectual disabilities that manifested themselves as aggressive behaviour. As a result of repeated acts of violence against the staff and other students, the school suspended the student and eventually expelled him. The school attributed its decision to the student’s violent behaviour and its concern for the health and safety of the staff and other students.

   The High Court found, by majority, that there was no contravention of the DDA. In reaching its conclusion, the construction of s.5 of the DDA was central. The court found that two issues arose for consideration in s.5. Firstly, whether or not treatment was “because of” disability. However, this question did not determine the separate, comparative, second question of how would the alleged discriminator treat or have treated a person without the disability in the relevant circumstances. This in turn raised the question of what were the “relevant circumstances”.

   The appellant argued that the appropriate comparator was another student without the disability and who did not behave in the way in which the student allegedly discriminated against did behave. This proposition was accepted by the minority of McHugh and Kirby JJ who at 78 ALR 1 at 23, paragraph [19] held:

   Discrimination jurisprudence establishes that the circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground are to be excluded from the circumstances of the comparator.

   This was not accepted by the rest of the High Court. Gleeson CJ held that a p.5, paragraph [11], the comparison required by s.5(1) of the DDA was with “violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. … The required comparison is with a pupil without the disability; not a pupil without the violence.”

   Justices Gummow, Hayne and Heydon reached the same conclusion in paragraphs [214], [223], [224] and [229] on pages 38, 39 and 40. The comparison to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability “in circumstances that are the same or not materially different”.

   The circumstances attending the treatment given (or to be given) to the disabled person must be identified and then a comparison made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.  In this process, their Honours found, it would be artificial to exclude from consideration circumstances because they are identified as being connected with that person’s disability; in any case, there was no basis in the wording of the statute for excluding such circumstances.

   In short, s.5(1) requires comparison with a person without the disability in the same position in all material respects as the aggrieved person.

   The case for the complainant failed, in the view of the majority, because the conclusion reached about the reason for the treatment (the suspension and then exclusion) were seen as determinative of the question of less favourable treatment. The circumstances surrounding the student’s treatment were not identified, nor was there any determination of how a person without a disability would have been treated in circumstances the same or not materially different.

   The judgment of Gummow, Hayne and Heydon JJ at [236] made the point that distinctions between motive, purpose or effect do not assist in determining whether or not discrimination occurred “because of disability”. The central question will always be, Why was the aggrieved person treated as he or she was? While motive, purpose or effect all bear on this question, it is ultimately a question of fact in a given case.

   The minority judgment of McHugh and Kirby JJ at paragraphs [160] and following support the view that while motive is a factor the question for the court must be what the real reason for the act was. This approach has been adopted also by the Full Federal Court in Forbes Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004) at paragraph [63] and should be followed by this Court.

   Gleeson CJ found that the question before the court was the lawfulness of the conduct of the school and with the true basis of the decision to suspend and then expel the student. At paragraph [14] of his decision, His Honour the Chief Justice determined that the expressed and genuine basis for the decision was the danger to other pupils and staff constituted by the pupil’s violent conduct and the responsibilities of the school to those people.

   His Honour continued at [15]:

   In identifying and considering the basis of, and/or the legitimacy of, a decision, for the purpose of measuring the conduct of an alleged discriminator against the requirements of the Act, it is proper, and may be necessary to have regard to the objects of the Act as defined in s3, and to the scope and purpose of the legislation. [However] it is not contrary to the scheme and objects of the Act to permit a decision maker to identify a threat to the safety  of other persons for whose welfare the decision maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision.

   In other words, where a decision maker is acting on the basis of a legal duty to provide for the physical welfare of others there will be no contravention of the Act.

   His Honour Callinan J also suggested that the definition of disability did not cover behaviour that would constitute criminal or quasi-criminal behaviour: at [271].

   Neither of these two criteria applies to the matter presently before this Court.

4. I also asked Mr Searle to deal with the decision of the Full Court of the Federal Court in Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95. Mr Searle makes the following submissions concerning that decision:

   This Court has also asked it be addressed on the application, if any, of the decision of the Full Court of the Federal Court in Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004). In that matter, the Full Court drew on an analysis of Purvis in reaching their conclusion.

   The Full Court determined, at paragraph [65], that a finding of unlawful discrimination could properly have been made only if:

   i)the treatment accorded to the appellant was because of her disability; and

   ii)that treatment was less favourable than that which would have been accorded the relevant comparator.

   The Full Court found, at paragraphs [66] and following, that the court at first instance had not made any finding that the treatment complained of was “because of” the disability. The court at first instance had failed to address a question required to be answered by the legislation if a finding of unlawful discrimination was to be made. The decision was therefore affected by an error of law.

   It is submitted that in the matter presently before this Court, the decision of the High Court in Purvis has clear application. The decision of the Full Federal Court in Forbes, however, is not applicable otherwise than set out above.

5. After surveying the evidence Mr Searle makes the following submissions as to how this case should be resolved:

   The applicant submits that the actions of the respondent in

   i)changing the applicant’s duties, increasing his workload and depriving him of the benefit of an assistant to which he had had access;

   ii)placing restrictions upon the applicant’s work duties not justified by the applicant’s health or by any operational need of the respondent;

   iii)unilaterally setting criteria against which his performance is to be judged;

   iv)not providing him with any opportunity to fulfil those criteria;

   v)demoting the applicant and drastically reducing his remuneration on stated bases for which there is no evidence;

   vi)not providing the applicant with any realistic or fair timeframe in which to comply;

   vii)not judging the applicant against the set criteria but on some other basis not stated to the applicant in a way that would permit an attempt at compliance;

   viii)deciding to terminate the employment substantially on the basis of absences from work when each were justified and covered by leave entitlements

   constitute discrimination on grounds of disability in contravention of the DDA, as follows:

   Disability discrimination

   The DDA renders unlawful discrimination on the ground of disability in various circumstances, including in the context of employment. Relevantly, section 15(2) of the DDA provides:

   15  Discrimination in Employment

   …

   (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.

   Discrimination by an employer against one of its employees is relevantly unlawful if the employer discriminates against the employee in the terms or conditions of the employment of the employee (s.15(2)(a)), by denying the employee access, or limiting the employee’s access to promotion, transfer or training, or to any other benefits associated with employment (s.15(2)(b)) or by subjecting the employee to “any other detriment” (s.15(2)(d)) or by terminating the employment relationship (s.15(2) (c). 

   The expression “terms and conditions of employment” in s.15(2)(a) is not restricted to the matters contained in the contract of employment, but is designed to encompass all demands, requirements, benefits and concessions in the actual employment which the employee must comply with or can accept: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55. Similarly, the expression “any other benefits associated with employment” is not limited to legal entitlements of employees, but extends to any advantage or opportunity generally provided by an employer to an employee: Leonard v Youth Hostels Association of Australia (1995) ECO 92-763 at 78,651. 

   The word “detriment” for the purposes of s.15(2)(d) has a broad meaning and can include an disadvantage of any kind, as long as that disadvantage is significant in the sense of being not trivial: Leonard v Youth Hostels Association of Australia (1995) ECO 92-763 at 78,651.  The term “detriment” is wide enough to encompass financial disadvantages and any other limitations of the type of work undertaken by an employee.  For example, in Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [44], the Tribunal found that the actions of the employer in denying an employee access to overtime constituted a “detriment” even though it caused no financial loss due to the receipt of workers compensation payments. Detriment is not be measured by financial loss alone. Loss of opportunity, particularly when it contributes to insecurity or other suffering is also “detriment” within the meaning of the legislation.

   It is submitted that the actions of the respondent in changing the applicant’s duties as described in the Description of Events document.

   Imposing work restrictions on the application from 14 July 2003 constitute unlawful discrimination in the terms and conditions of his employment, in denying him access, or limiting access, to benefits associated with employment and/or in subjecting him to other detriments as follows:

   a)The work restrictions imposed on the applicant from severely limited the type of work that could be undertaken by the applicant. These restrictions constituted different terms and conditions of employment and a detriment for the purposes of ss.15(2)(a) and (d).

   b)As a result of the work restrictions, the application was unable to perform duties associated with his employment commensurate with his standing and experience, for the purposes of s.15(2)(b).

   c)As a result of the restrictions placed on his employment and the distress, anxiety and other difficulties it caused to the applicant, the applicant was placed at further risk of the depression from which he already suffered. 

   d)The actions of the respondent outlined in the 13 September 2003 also caused detriment in relation to his employment for the purposes of s.15(2)(d).

   It is submitted that the applicant was clearly discriminated against for the purpose s.15(2) of the DDA in the sense that he has been subjected to terms and conditions of employment less favourable than those afforded to other employees. He was denied access to the benefits of employment such as his usual remuneration and the potential for earning commission and was subject to other detriments in his employment by the respondent.

   Whether that discrimination is unlawful depends upon the discrimination being “on the ground” of the applicant’s disability either as constituting direct or indirect discrimination as defined in the DDA.

   Direct discrimination

   The applicant submits that the conduct of the respondent in placing restrictions upon his work constituted direct discrimination for the purposes of ss.5(1) and 15(2) of the DDA. Direct discrimination is defined in s.5 of the DDA which provides as follows:

   Direct discrimination relevantly occurs in the following circumstances:

   a)An employee is treated less favourably in the terms and conditions of employment, in denying or limiting access to promotion, transfer or training, or to any other benefits or by subjecting the employee to any other detriment (s.15(1));

   b)The less favourable treatment occurred “because of” or “on the ground of” the employee’s disability (s.15(1) and s.5(1)) in the sense that at least one of the reasons for the treatment was the employee’s disability (s.10);

   c)The employee is treated “less favourably” when compared to how the employer treats or would have treated a person without the disability (s.5(1)).

   To demonstrate that the relevant treatment took place “because of” or “on the ground of” a person’s disability requires an examination of the real reasons or grounds for the conduct: IW v City of Perth (1997) 191 CLR 1 at 63 and Purvis v Department of Education (2003) 78 ALJR 1 at [166] and also [236]. Section 10 of the DDA makes clear that the disability need only be one of the reasons for the relevant conduct. It is enough if the unlawful consideration played “a causative part” in the decision of the alleged discriminator: IW v City of Perth (1997) 191 CLR 1 at 63.

   Direct discrimination will also extend to circumstances in which a person is discriminated against on the ground of a “characteristic” imputed or appertaining generally to persons of a nominated ground of discrimination: see, for example, Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 at [168]. If it is imputed that a person with a particular disability is unable to perform work, then the person will have been discriminated against “because of” or “on the ground of” the disability: see Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [52].

   The actions of the respondent in imposing restrictions upon the work of the and other conduct constituted treatment which was less favourable than the respondent treats or would have treated a person without the applicant’s disability in circumstances that are the same or not materially different: s.5(1). For example in Trindall v NSW Commissioner for Police [2005] FMCA 2 (5 February 2005) the imposition of work restrictions on the applicant were held to be unlawfully discriminatory in that they were known to be unnecessary and were imposed ‘on the ground of’ or ‘because of’ the disability: paragraphs [168] to [170].

   The proper comparator is a person who does not have ADD and depression, but would have a position and responsibilities within the respondent equivalent to that of the applicant (“the comparator”): see the approach in Purvis v Department of Education (2003) 78 ALJR 1.

   There is ample evidence before the Court for it to be comfortably satisfied that the treatment of the applicant was less favourable than the manner in which the respondent would have treated another employee without the disabilities of the applicant:

   a)In September 2002, the applicant had resigned because the respondent failed to provide to him adequate support to enable him to cope with the considerable growth in the volume of his work: paragraph (3) of the Description of Events document.

   b)When his duties altered in about April 2003 (paragraph (9) of the Description of Events document) although he liked the duties the failure to provide proper support to him resulted in the difficulties highlighted by the applicant at p5 of the Description of Events document, the end of paragraph (9) and paragraph (10). This is consistent with his evidence in cross-examination.

   c)Specifically, the changes to the applicant’s work duties in or about April 2003, including the loss of the use of an assistant caused the applicant to not be able to meet deadlines, complete tasks in an organised and comprehensive manner, and communicate information in a timely and effective manner: Description of Events, paragraph (9). This change also deprived him of the opportunity to earn the commission component of his remuneration: Description of Events, paragraph (8).

   d)The applicant was expected to meet his budget but no budget was ever provided to him, despite repeated requests. In addition, the applicant was never given any clear direction as to his responsibilities: Description of Events, paragraph (10) (ii)

   e)No job specification reflecting the changed role was ever provided to the applicant: Description of Events, paragraph (10) (iii).

   f)From April 2003 until the termination of employment, the applicant was expected to complete tasks within unrealistic timeframes: Description of Events, paragraph (11).

   g)The content of (a) to (f) above in the applicant’s evidence was never contradicted in evidence or challenged in cross-examination.

   h)After the applicant’s return to work after his hospitalisation and treatment for depression, the respondent imposed, without any discussion or consultation, work restrictions on the applicant as set out in the July 2003 letter(s) at Annexure “C” to the affidavit of Jirra Ware dated 15 July 2004, a letter dated 14 July 2003, and Annexure “B” to the affidavit of Jirra Ware dated 13 May 2004, the same letter dated 8 July 2003.

   i)The evidence does not support any contention (nor did the respondent advance any) that the work restrictions imposed upon the applicant were reasonable or necessary having regard to the applicant’s condition or any operational requirement of the respondent.

   j)The work restrictions comprised a significant and unilateral alteration (and downgrading) of the applicant’s duties and also of his status and autonomy in the organisation: see the applicant’s evidence contained in the document entitled Description of Events at paragraph (9) as to his duties before hospitalisation and at (19) for his restricted duties thereafter. See also the July letter(s).

   k)It is clear that the respondent through Mr Crocker would have dismissed the applicant from employment because of certain conduct. The evidence shows that this conduct was entirely caused by the disabilities from which the applicant suffered. Instead of dismissal at this time, and in recognition of his illness, these restrictions were imposed.

   l)Consequently, the restrictions were imposed by the respondent “on the ground of” or “because of” the applicant’s disabilities.

   m)Towards the end of paragraph 5 of the letter (prior to the enumerated restrictions) Mr Crocker indicates that failing the rules set down for the applicant “could ultimately end in dismissal”. It is only “could”, not “will”.

   n)By letter dated 13 September 2003 from Mr Romano, Group Human Resources Manager for the respondent, (at paragraph 3) it is stated that the applicant has not been able to produce the expected satisfactory results, meet agreed timeframes or display a positive approach to the earlier implemented measures (the work restrictions) designed to assist him. As a consequence, the applicant is further demoted in terms of his role and duties and also has his remuneration reduced from $80,000.00 (plus commission) to only $45,000.00 to be effective from 20 October 2003.

   o)In cross-examination, Mr Crocker indicated that the applicant’s performance had not been measured by the respondent against the criteria set down for him in the July letter. Mr Crocker explained that this was because  (due to the work restrictions) the applicant had not been able to perform sufficient work in order to be so assessed. In other words, the applicant had his remuneration slashed because he could not “produce the expected satisfactory results” even though his severely restricted duties ensured that this was so. This confirms the evidence of the applicant at paragraph (20) of the Description of Events document that the restrictions placed upon him made the performance of his duties “impossible.” It is also significant that no examples were given (either by way of document or oral testimony by Mr Crocker) of any failure by the applicant to “meet agreed timeframes” in respect of duties performed between July 2003 and 13 September 2003.

   p)From about 10 September 2003, the applicant was not fit for work due to his continued illness.  See the letter of Dr Mastroianni dated 24 September 2003 (Annexure “B” to the affidavit of Jirra Ware dated 14 July 2003) indicating that on this date the applicant had not been fit for work due to depression for two weeks and would likely not be fit for work for another two weeks. This explains the absences from work on 22 and 24 September 2003 complained of in the affidavit of Mr Crocker at paragraph 31. In any case, the leave records of the respondent show that on these days the applicant was credited with valid sick leave.

   q)The applicant in his evidence states that his employment was terminated before he could provide this letter of Dr Mastroianni to his employer: paragraph 15 of the affidavit of Jirra Ware dated 14 July 2004, and paragraph (22) of his evidence in the document entitled Description of Events.

   r)Mr Crocker in his oral evidence says he did not receive the letter prior to the termination of the applicant’s employment. Significantly, he also stated that even if he had it would not have changed his view or his recommendation to the respondent to terminate the applicant’s employment.

   s)However, the evidence of Dr Mastroianni indicates that the respondent did in fact receive the letter of 24 September and knew its content prior to the termination of employment. See the report of Dr Mastroianni at page 4, paragraph three, fourth sentence from the end of the paragraph: “OAMPS Pty Ltd terminated Mr Ware’s employment after receiving my medical certificate in late September 2003.” Dr Mastroianni was not challenged on this evidence. Nor has the respondent brought evidence from Mr Romano to the contrary.

   t)The letter from Dr Mastroianni is addressed to Mr Romano. The evidence of Mr Crocker is that Mr Romano was the more senior person in the organisation with whom he dealt in relation to issues with the applicant. Mr Crocker conceded that Mr Romano could have received the letter. On the basis of the evidence, the court should be comfortably satisfied that the respondent did in fact receive this letter before terminating the applicant’s employment.

   u)By letter dated 26 September 2003, the respondent terminates the applicant’s employment because of his failure to respond to the contents of the letter dated 13 September 2003 (which letter does not in its  terms call for any response from the applicant), and also because of his unsatisfactory “attendance and commitment to the company”. This is despite the fact that each absence was explicable and justified, apart from attendances at funerals by the applicant’s disability, and covered by leave entitlements. In addition, the respondent has not shown that the absences of the applicant did or would cause any real difficulty or prejudice to the respondent such that by reference to the respondent’s activities its actions could be judged to be reasonable.

   v)It is submitted that this Court should be comfortably satisfied that each of the actions taken by the respondent were “on the ground of” or “because of” the applicant’s disability. The “real reason” disclosed by the evidence is that the employer took the steps it did  because of its perception of the applicant’s conduct, work performance and absences from work. To the extent that this perception was valid (and it is also submitted that as set out in these submissions in part the perception of the respondent was not valid) it was a direct result of and attribute of the applicant’s disability.

   w)It is submitted that the respondent would not have treated another comparable employee without the applicant’s disabilities in this way. There is no evidence that any other comparable employee was, or in circumstances that are not materially different would have been, treated in this way.

   The inherent requirements defence set out in s.15(4) of the DDA, if invoked by the respondent, would not provide a complete answer to the present application. Section 15(4) provides only the conduct in contravention of s.15(1)(b) or s.15(2)(c) is not rendered unlawful if the person is unable to carry out the inherent requirements of the particular employment. That is, a respondent may only rely upon the inherent requirements defence where the claim concerns a refusal to employ or dismissal from employment, not where discrimination has taken place concerning the terms and conditions of employment, benefits of employment or other detriments: see Coleman v Commissioner of Police (2001) EOC 93-133.

   In any case, the respondent has not to date asserted that the applicant could not fulfil any inherent requirement of the employment.

   The evidence does not support any contention that the applicant was unable to return to his pre-hospitalisation duties. Nor does the evidence disclose any necessity on the part of the respondent to impose the restrictions outlined in the July letter(s).

   The applicant had been in hospital with his illness. On the advice of his doctor, a gradual reintegration to his usual hours of work was proposed, which would also permit him to undertake an outpatient clinic to monitor his depression for ten weeks. The applicant would attend work three days a week. This was accepted by the respondent. See the evidence of Jirra Ware at paragraph (16) of the document entitled Description of Events; the affidavit of Elizabeth Ware at paragraphs 13 to 15; and also the oral evidence of Dr Mastroianni.

   It is unchallenged evidence that the applicant returned to work on Monday 14 July 2004, and that he undertook the outpatient clinic from that week on Tuesdays, Thursdays and Saturdays. A ten week period would run up until the end of September 2004.

   Upon his return from hospital, and although the respondent did make an adjustment in favour of the applicant regarding days and hours of work, the respondent nevertheless discriminated against the applicant in failing or refusing to investigate what duties he could perform and instead unilaterally determining to subject the applicant to the work restrictions contained in the July 2004 letters. 

   This is contrary to the proper and fair approach. 

   The respondent does not contend that it had no alternative but to do this. There is no suggestion that the applicant was not good at performing the role and duties that he had up until this time. For example, see Exhibits “A7” and “A8” wherein the applicant’s work is praised by Mr Crocker and the evidence of Mr Neil Tyler.

   Regarding the performance of his duties, the letters of July 2004 refer to an “exposure to legal action” but contain no details which would have permitted the applicant to respond. The letter also contains an allegation of lying against the applicant, which is also not particularised. The letter of 13 September 2004 refers to “possible professional indemnity exposures to the company” but once more this is not particularised. In paragraphs 24 and 25 of his affidavit, Mr Crocker deals with this subject matter. The applicant in his reply affidavit of 13 May 2005 denies Mr Crocker’s assertions. The applicant was not challenged on this evidence.

   In respect to the Kruusmagi Crash Repairs issue, there is nothing to substantiate that the respondent was “forced” to pay the money. Indeed, the material tendered by the respondent indicates that there is a denial of liability by the respondent. Any settlement must be seen as a purely commercial decision and not one forced upon them by any act or omission of the applicant.

   It was always open for the respondent to contact the applicant to discuss what may be suitable duties and to obtain more information about his health if necessary.  The respondent did not do so.

   The work restrictions which were imposed upon the applicant were unfair, relevantly discriminatory and unlawful. 

   In light of these circumstances, it is open to the Court to find that respondent sought to exploit the circumstance of the applicant’s medical condition to deny him benefits derived from his employment and ultimately seek to have him removed from his employment. 

   For these reasons, the applicant submits that the respondent has directly discriminated against the applicant for the purposes of ss.5(1) and 15(2) of the DDA.

   Indirect discrimination

   Further, and in the alternative, the applicant submits that the conduct of the respondent constituted indirect discrimination for the purposes of the DDA. Indirect discrimination occurs in circumstances dictated by s.6 of the DDA which provides as follows:

   6  Indirect disability discrimination

   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 the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

   In short, indirect discrimination relevantly occurs in the following circumstances:

   a)An employer requires an employee to comply with a requirement of condition;

   b)The requirement or condition is one which a substantially higher proportion of persons without the disability are able to comply with;

   c)The requirement or condition is not reasonable and the employee is unable to comply with the requirement or condition. 

   The starting point in determining whether there has been indirect discrimination is the identification of the relevant "requirement or condition" to which a complainant has been subject: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1, per Sackville J at 24. Having regard to the objects of the Act, these words should be construed broadly so as to cover any form of qualification or prerequisite related to the employment: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Dawson J at 185; Waters v Public Transport Corporation (1991) 173 CLR 349 , per Dawson and Toohey J at 393 and McHugh J at 406.

   A requirement or condition will have been imposed if a person or body intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if the services are to be acquired, used or enjoyed: Waters v Public Transport Corporation at 407, per McHugh J.

   In Trindall v NSW Commissioner for Police [2005] FMCA 2 (5 February 2005) this Court reiterated the view taken in Hinchliffe v University of Sydney [2004] FMCA 85, wherein the Court adopted the description by Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987:

   The concept of a "requirement or condition" with which the aggrieved person is required to comply involves the notion of compulsion or obligation. See the definition of "require" and "requirement" in the Macquarie Dictionary, 3rd edition, and the definition of "condition" which includes the following:

   "A circumstance indispensable to some result; a pre-requisite; that on which something else is contingent...something demanded as an essential part of an agreement"

   and whether a "requirement or condition" within s6 has been imposed within the context of the Disability Discrimination Act will take its colour from the particular setting in which it is said a prohibition against discrimination created by the Act has been infringed by indirect discrimination.

   The expression "requirement or condition" in s6 of the DDA should be construed broadly to include any form of qualification or pre-requisite, although the actual requirement or condition needs to be formulated with precision: Catholic Education Office v Clarke [2004] FCAFC 197 at [103].

   In the present case, the “requirement or condition” is the requirement by the respondent for the applicant to fulfil his work duties without adequate support to meet the increased workload, in the period prior to September 2002. After the changes to his work duties in April 2003, the requirement or condition imposed by the respondent was for the applicant to perform the new work duties without:

   i)the use of an assistant;

   ii)a set budget;

   iii)clear direction as to his responsibilities;

   iv)a job specification.

   The applicant was also required by the respondent to complete tasks within unrealistic timeframes.

   After his return from hospitalisation, the requirement or condition is the restrictions outlined in the July letter(s) combined with the requirement to “produce the expected satisfactory results” and “meet agreed timeframes”. This requirement was described by the applicant as “impossible” which is, in essence, confirmed by Mr Crocker in cross-examination: see paragraph 128 (o) above.

   The decision to terminate the employment of the applicant was taken because of his “attendance and commitment to the company”. The requirement or condition imposed here by necessary implication, and supported by the evidence of Mr Crocker to this Court, was that the applicant was required to attend his place of work even if not medically fit to do so.

   Substantially higher proportion – s.6(a):

   The next step in determining whether there has been an act of indirect discrimination under s6 of the DDA is to identify whether a "substantially higher proportion of persons without the disability comply or are able to comply" with the requirement or condition.

   In order to determine this question, it is necessary to identify an appropriate base group, against which it can be said that a substantially higher proportion of persons without the disability are able to comply with the requirement or condition: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Deane and Gaudron JJ at 178-9; Dawson J at 187.

   The selection of a base group will involve a mixed question of fact and law and will vary, according to the factual context Commonwealth Bank v HREOC (1997) 150 ALR 1 at 42, per Sackville J. The selection of the base group should be calculated to reveal the significance, if any, of the particular disability to compliance.

   In the present case, the base group would consist of other employees of the respondent. The base group provides a pool against which the significance of the applicant's disability can be measured. If all (or even most) of the employees in the base group except the applicant are able to comply with the requirement or condition, and the only material difference between those persons and the applicant is the applicant's disability, then the requirement of a substantially higher proportion in s.6(a) of the DDA will be met.

   Having regard to the various requirements or conditions imposed upon the applicant by the respondent, it is submitted that this Court should be comfortably satisfied that a substantially higher proportion of employees without ADD and depression (and the consequent unfitness for work) would be able to comply with the requirements. This is, of necessity, a hypothetical exercise in that no other employee had such requirements or conditions imposed upon them.

   Not reasonable – s.6(b):

   The next step in determining whether there has been an act of indirect discrimination under s.6 will be to consider the reasonableness of the requirement or condition.

   The reasonableness of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case: Commonwealth Bank v HREOC (1997) 150 ALR 1 at 33, per Sackville J. The test of reasonableness "is less demanding than one of necessity, but more demanding than a test of convenience": Secretary, Department of Foreign Affairs and Trade v Styles and Anor (1989) 88 ALR 621 at 634 per Bowen CJ and Gummow J; Waters v Public Transport Corporation at 395 per Dawson and Toohey JJ.

   In Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408 at 429, Wilcox J considered the approach to determining reasonableness in the context of the then s.5(2) of the Sex Discrimination Act 1984 (Cth) which was in almost the same terms as s.6 of the DDA.

   Justice Wilcox said that first, it is necessary to `ascertain the reasons underlying a respondent's insistence upon the relevant requirement or condition' and then ask `whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified.'

   In the Full Court, Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621 at 634 agreed with the Wilcox J approach and said:

   As Wilcox J held ... the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. We agree. The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All of the circumstances of the case must be taken into account.

   If the Wilcox J test is the proper test to apply then the Court should first determine the reasons the respondent insisted on the requirement or condition. Then, having determined the reasons for the insistence of the requirement, then the Court must then consider whether the requirement can be objectively justified in all the circumstances.

   In the present matter, the reasons advanced by the respondent are unclear, but appear to be an amalgam of allegations of poor performance (which are particularised only in two matters, for which the applicant has advanced an unchallenged explanation) and certain conduct (long lunches, drinking) which on the evidence appear to largely be restricted to early 2003, and absences from work (apart from attendance at funerals all related to his disability), all of which are explained and covered by valid leave entitlements. The work restrictions placed upon the applicant do not appear to have been justified on any basis.

   The issues relevant to the question of reasonableness were also canvassed by in Waters v Public Transport Corporation (1991) 173 CLR 349.

   The majority judgments of Brennan, Deane, Dawson, Toohey and McHugh JJ applied the test differently to Wilcox J.

   Brennan J at 378 said the reasonableness of the requirement or condition:

   . . must be determined by reference to the activity ... in which the putative discriminator is engaged. Provided the purpose of the activity ... is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity....

   There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity ...; secondly, whether the activity could be performed.... without imposing a requirement or condition that is discriminatory ... or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity ... and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable.

   In the present matter, no evidence has been brought to establish any operational necessity for the actions of the respondent by reference to its activities.

   Returning to Waters, Dawson and Toohey JJ stated at 395 that:

   Reasonableness …  is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like.

   Again, the respondent has brought no evidence to show there was or would have been any costs, in terms of money or efficiency, of accommodating the needs of the applicant by providing him with time off work as and when needed.

   The applicant submits that whether the Wilcox approach is applied, or whether the approach of the majority of the High Court in Waters is applied, this Court will be comfortably satisfied that the conditions imposed by the respondent on the applicant were not reasonable having regard to the circumstances of the case.

   Applicant not able to comply – s.6(c):

   The evidence was that the applicant was not able to comply with the requirements or conditions imposed by the respondent.

1. As to the appropriate remedy to be granted, Mr Ware seeks a declaration and damages for economic and non economic loss.  Mr Searle makes the following submissions on the issue of loss:

   Non-economic loss

   The applicant is entitled to damages for the distress, hurt and injury to feelings caused to him by the conduct of the respondent towards him in the various ways specified above.

   The principles to be applied when assessing damages in circumstance of a finding of unlawful discrimination are generally based on the principles applied in assessing damages in tort.  In Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47, for example, Lee J said (at 63):

   It seems to me that there are sound reasons for treating an action under the Act as an action in tort and this, of course, permits a wider claim to damages being made than if the action is in contract.  Hurt to feelings is recognised in many torts (defamation, negligence, malicious prosecution to mention but three) and I see no reason why a tort of discrimination should not allow for that factor.  Discrimination in many circumstances is capable of causing injury in a real sense to the feelings of the person discriminated against.  Where, as here, the Act defines as unlawful, discriminatory conduct of the kind expressed in the Act, and empowers the Tribunal to award ‘damages not exceeding $40,000 by way of compensation for any loss or damages suffered by reason of the respondent’s conduct’, I consider that the proper conclusion is that tortious liability has been created for conduct of the nature of which contemplates injury to personal feelings, and that damages therefore ought to be recoverable. 

   Damages should be assessed on torts based principles by placing the applicant in the situation she would have been in had the discrimination not occurred: Gilroy v Angelov (2000) 181 ALR 57 and Leslie v Graham [2002] FCA 32 at [80] per Branson J. General damages awards compensating for injured feelings should not be so low as to diminish respect for the public policy of the legislation: see Horne & McIntosh v Press Clough Joint Venture (1994) EOC 92-591 at p77,179.

   Common law damages for breach of contract do not take into account mental anguish and similar effects: Addis v Gramophone Company [1909] AC 488. However there is no warrant for so restricting the award of damages for "loss and damage" under s.46PO(4)(d): Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256, Stephenson v Human Rights and Equal Opportunity Commission (1995) 61 FCR 134 at 142-143.

   The task of the Court is quantifying a claim for general damages for non-economic loss will inevitably involve making of a broad assessment of the distress and hurt caused to an applicant. As Wilcox J put it in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 256:

   But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible to mathematic calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures.  But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages.  It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact.  To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage.

   The applicant clearly suffered very significant injury to his feelings and emotional and psychological distress as a result of the conduct of the respondent constituting unlawful discrimination. This case warrants an award of damages that properly reflects the extent of that damage. 

   Economic loss

   The applicant claims damages for economic loss he has suffered as a result of the gap in his earnings between what he did in fact earn and what he would have earned but for the discrimination: see, for example, Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [101].

   In this matter, the applicant submits that the Court can ascertain the loss of earnings by reference to the applicant’s evidence contained in his affidavit of 19 May 2005. As the applicant was employed on $80,000.00 (without factoring in any commission), the total amount that would have been paid to him between the date of termination at 19 May 2005 was some $131,282.00. The applicant has made significant efforts to mitigate this loss and has done so in the amount specified at paragraph 8 of the affidavit of the applicant dated 19 May 2005.

   Although in cross-examination there did appear to be a record of earnings in May 2004 not included in the documentary material attached to his affidavit of 19 May 2005, the material provided to this Court is sufficient to quantify the economic loss occasioned to the applicant by the conduct of the respondent as that missing amount is in the same order as other records included in evidence before this Court.

   There was some challenge to the evidence of the applicant regarding the costs of his medical treatment. The applicant estimates the cost of consultations with Dr Mastroianni after the Medicare rebate as being $50.00 per session.

   In the penultimate paragraph of the report of Dr Mastroianni the total cost of each consultation is specified as being $190.00 with $100.00 reimbursed by Medicare, leaving the applicant to pay $90.00 for each consultation. The total cost contained in the report of Dr Mastroianni is in the order of $4860.00.

   While not all of this amount would be referable to the unlawful discrimination by the respondent, it is submitted that, on the basis of the evidence before this Court it would be comfortably satisfied that a substantial proportion is so referable.

2. Miss Henderson prepared written submissions that were filed on 10 June 2005.  Miss Henderson’s written submissions also substantially deal with her view of the evidence in this matter which I need not recite here.  Miss Henderson submits that no case of direct or indirect disability discrimination has been proven as follows:

   Direct discrimination

   (a)     The disability

   Dr Mastroianni gave evidence that the applicant has suffered from Attention Deficit Disorder since his childhood, and that in late 2001 the applicant developed Major Depression, a biological illness which arose spontaneously and was not connected with stressors in his life.

   (b)    The circumstances, the comparator

   The circumstances which must be considered by the Court, for the purpose of determining whether the applicant was treated less favourably than an employee without the applicant’s disability, include the behaviour of the applicant. In Purvis[9] a majority of the High Court rejected an argument that, because in that case the behaviour was attributable to the disability, behaviour did not form part of the relevant circumstances.

   [9]     Purvis v New South Wales (2003) 217 CLR 82 at [11] per Gleeson CJ, [222]-[224] per Gummow,

   Hayne and Heydon JJ and [273] per Callinan J.

   The comparator is an employee who behaved as the applicant did. He or she is therefore an employee of the respondent who, over a period of 21 months:

   ·was rude and abusive to other employees, “exploded’ at and intimidated other employees, had a fiery temper and could be overbearing and aggressive towards other employees;

   ·returned from lunch on many occasions late and inebriated, and on one occasion urinated into an office wastebin while inebriated;

   ·failed to attend meetings with clients on two occasions and failed to attend team meetings;

   ·lied to his/her manager about having arranged renewal of policies, and exposed his/her employer to potential professional indemnity claims by failing to effect renewals;

   ·absented himself/herself from work without explanation;

   ·carried out tasks assigned to him/her poorly; and

   ·breached the respondent’s policy regarding obscene material on electronic media.

   (c)     Less favourable treatment

   Purvis[10] indicates that the relevant question is how, in those circumstances, the employer would have treated an employee without the applicant’s disability.  Gleeson CJ was of the opinion that the relevant circumstances include the respondent’s responsibility for the welfare of others[11], which in the present case would mean the respondent’s other employees.

   [10]    Purvis v New South Wales at [225]

   [11]    Purvis at [14] per Gleeson CJ

   The answer to the question is self-evident: any employee who behaved as the applicant did would undoubtedly have been treated as the applicant was treated.[12]

   [12]    See Forbes v Australian Federal Police [2004] FCAFC 95 at [80]-[81]

   The applicant was required to prove that the respondent treated him less favourably than it would have treated another employee who behaved as he did.[13] He has failed to do so. His case, at its highest, addressed only a very limited part of the circumstances which the Court is required to take into account: he gave evidence that other employees consumed alcohol at lunch and sometimes returned late, and that as far as he was aware they were not disciplined for doing so. The evidence before the Court does not establish that those employees were treated more favourably than the applicant: Mr Crocker, who was responsible for the management of the branch, gave evidence that those persons were reprimanded and were given written warnings. As the applicant acknowledges, Mr Crocker also pointed out that “no other employee was in the same category as the applicant in this regard”.[14]

   [13]    Forbes at [10]

   [14]    Applicant’s submissions, para. 77

   (d)    Because of the person’s disability

   Given the answer to (c), it is unnecessary to answer the “central question …. why was the aggrieved person treated as he … was”.[15] However, the answer is that the applicant was treated as he was because of his unsatisfactory work performance, his interpersonal problems with other staff, and his attendance record.[16]

   The motives of the respondent are at least relevant to, and possibly determinative of this issue.[17] Mr Crocker, who made the decisions about the applicant’s change of duties in February 2003, his demotion and his eventual termination withstood all suggestions in cross-examination that he had been motivated by the applicant’s disability, or that he had attributed any of the applicant’s behaviour to Attention Deficit Disorder or Major Depression. At the time when he took the decision to terminate the applicant’s employment, Mr Crocker had not seen Dr Mastroianni’s 24 September 2003 letter. He said that did not, in any case, think that depression caused the applicant to behave as he did.

   Indirect discrimination

   (a)     The relevant base group

   The respondent agrees with the applicant that the relevant base group of persons to be considered when deciding whether the applicant was subjected to indirect discrimination is the other employees of the respondent.[18]

   (b)    The requirement or condition

   “The relevant requirement or condition must be one imposed not only on the applicant but also on the class of other persons to whom the applicant is to be compared”.[19] It will be “facially neutral … and imposed on a class of persons who are not disabled as well as the applicant”, but be one “which potentially might adversely upon the applicant by reason of [his]disability.”[20]

   The applicant has not identified any requirement or condition which falls within the above description. No requirement or condition of that nature has emerged in the course of the evidence.

   It is the applicant’s task to prove that indirect discrimination occurred[21], and he has failed to do so.

   [15]    Purvis at [225]

   [16]    See Crocker annexures D, E, G and Ware 15 July 2004 annexures C, D and E

   [17]    See the analysis of Purvis in Forbes at [69]

   [18]    See applicant’s submissions at para. 161

   [19]    Hinchliffe v University of Sydney [2004] FMCA 85 at [106]

   [20]    Hinchcliffe at [109], citing Waters v Public Transport Corporation (1991-2) 173 CLR 349

   [21]    Hinchcliffe at [102]

3. Miss Henderson also makes submissions on the assessment of damages in the event that some liability is established.  She submits as follows:

   In the light of the matters addressed above, the question of calculating damages does not arise. For completeness, however, the following matters would be relevant to any assessment of damages in this matter:

   ·The applicant makes a bare assertion that his remuneration at OAMPS, had he not been terminated, would have been $131,282.[22] He has not assisted the Court by providing any details of his calculations. The amount may represent gross earnings, whereas only net earnings can be claimed. The applicant’s remuneration was to be reduced to $45K per annum from 20 October 2003; the applicant has apparently made no allowance for the possibility that the Court may find that the demotion decision was not discriminatory.

   ·The invoices from “D&W Hospitality Consulting”[23] offered as evidence of income earned by the applicant do not constitute independent substantiation D& W Hospitality Consulting is a business owned by the applicant and his wife, and the invoices were prepared by the applicant’s wife. Moreover, they cover a period which falls short of the period when the applicant told Dr Mastroianni he was working;

   ·References in Dr Mastroianni’s notes to the applicant deciding to be a house husband, and to concentrating on building a new house – all of which were put to the applicant in cross-examination – indicate that the applicant made less than satisfactory efforts to find suitable employment after his termination;

   ·The applicant’s claim for reimbursement for 30 sessions of treatment by Dr Mastroianni, said to be attributable to discriminatory treatment, is excessive. Annexure A to these submissions is a list of the dates of the applicant’s sessions with Dr Mastroianni from 2001 to April 2005[24]. It provides no support for an inference that the applicant required an additional 30 sessions.

   [22]    Ware 19 May 2005 para.8

   [23]    Ware 19 May 2005 annexure A

   [24]    Counsel for the respondent foreshadowed during the hearing that the respondent would examine the

   summonsed records of Dr Mastroianni for the purpose of responding to this aspect of the applicant’s claim, and that a note of the dates of the applicant’s attendances would be prepared.

4. Mr Searle prepared written submissions in reply that were filed on 15 June 2005.  In his submissions in reply Mr Searle notes that:

   ·Miss Henderson has not taken issue with his approach to the construction of the DDA;

   ·Miss Henderson has not taken issue (directly) with his analysis of the disputed questions of fact;

   ·Miss Henderson has not disputed that Mr Ware had Attention Defecit Disorder and a major depressive illness during his employment with OAMPS and does not dispute that OAMPS was aware of these conditions during the employment;

   ·Miss Henderson does not contest that these illnesses constitute a disability within the meaning of s.4 of the DDA;

   ·Mr Searle submits that Miss Henderson has not dealt with the concession made in cross-examination of Mr Croker that the dispute resolution clause in the contract of employment could be invoked by either party to the contract and was not invoked. 

5. In the balance of his submissions in reply Mr Searle joins issue with Miss Henderson on the legal and factual issues which remain disputed between the parties.

The legislation

1. Sections 5(1), 6, 11, 15(2) and 123 of the DDA provide as follows:

   Section 5(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.

   Section 6

   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 the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

   Section 11

   For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

   (a)the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

   (b)the effect of the disability of a person concerned; and

   (c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

   (d)in the case of the provision of services, or the making available of facilities–an action plan given to the Commission under section 64.

   Section 15(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.

   Section 123

   (1)If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

   (a)that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

   (b)that the director, servant or agent had the state of mind.

   (2)Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

   (3)If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:

   (a)that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

   (b)that the servant or agent had the state of mind.

   (4)Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.

   (5)If:

   (a)a person other than a body corporate is convicted of an offence; and

   (b)the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

   the person is not liable to be punished by imprisonment for that offence.

   (7)A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

   (a)the knowledge, intention, opinion, belief or purpose of the person; and

   (b)the person's reasons for the intention, opinion, belief or purpose.

   (8)A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.

   (9)A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

Reasoning

1. I make the following factual findings relating to the disputed questions of fact.  First, there is no doubt on the evidence that Mr Ware’s duties were altered in early 2003.  Written notification of those duties was given by Mr Crocker to Mr Ware by email on 7 February 2003.  This was after OAMPS had decided to alter Mr Ware’s duties.  However, under cross-examination Mr Ware agreed that in early 2003 Mr Crocker talked to him about alleged unsatisfactory performance and told him that his duties would be changed.  I find that there was some discussion between Mr Crocker and Mr Ware about the need for new duties before Mr Ware’s duties were changed but that the specific notification of the new duties occurred in writing after Mr Crocker decided to change the duties.  Mr Ware made no complaint about his new duties.  Indeed, he accepted under cross-examination that he liked his new duties and performed them up to the time when he was hospitalised in mid 2003.  Further, it appears from Mr Searle’s own review of the evidence that Mr Ware’s duties were not in fact changed until April 2003.  Mr Ware therefore had two months to consider his position and make representations to his employer if he was dissatisfied.

2. Mr Ware’s employment agreement is in evidence: exhibit A1.  On 1 October 2002 Mr Ware’s remuneration was increased from $65,000 to $80,000.  It is clear from the evidence of both parties that a critical factor in the decision of OAMPS to agree to that increase was complaints from Mr Ware of his inability to earn commission income because of the nature of his work.  It appears to have been accepted by both parties that Mr Ware had minimal capacity to earn commission income and hence an increase in general remuneration was justified.  Nevertheless, Mr Ware’s employment agreement was not amended to exclude his entitlement to receive commission income for new business should he be able to secure any.  I find that from 1 October 2002, Mr Ware’s remuneration package was $80,000 plus commission on new business for clients.

3. I accept, from the evidence of Dr Mastroianni, that Mr Ware, at all material times, had Attention Deficit Disorder and that Mr Ware also suffered from a major depressive illness independently of his Attention Deficit Disorder during his employment with OAMPS. 

4. Some staff at OAMPS knew or suspected that Mr Ware suffered from Attention Deficit Disorder and depression.  Mr Tyler knew that Mr Ware had suffered from Attention Deficit Disorder prior to the takeover of the business by OAMPS.  Under cross-examination Mr Tyler admitted being made aware directly of Mr Ware’s depression during 2003 and having discussed his condition with another employee earlier.  Mr Crocker had several discussions with Mrs Ware about Mr Ware’s condition while Mr Ware was hospitalised in mid 2003.  OAMPS was aware that Mr Ware was consulting a psychiatrist (Dr Mastroianni) during 2003 and received medical certificates.  OAMPS agreed to a regime of a graduated return to work following Mr Ware’s discharge from the Northside Clinic and agreed to arrangements for him to continue to visit the clinic as an outpatient during working hours.  In his letter to Mr Ware dated 14 July 2003 Mr Crocker referred to Mr Ware’s “illness”.  On Mr Crocker’s own evidence he was aware that Mr Ware suffered from Attention Deficit Disorder in October 2002 and was aware that he suffered from depression at least by 4 June 2003 when he was told that by Mr Ware.  I find that OAMPS was aware that Mr Ware suffered from both Attention Deficit Disorder and depression by June 2003.

5. The question of whether, at the relevant time, Mr Ware had a disability within the meaning of s.4 of the DDA is a mixed question of law and fact. Although there is no concession on the point by OAMPS the question is not seriously disputed in Miss Henderson’s written submissions. “Disability” is defined in s.4 of the DDA to mean, relevantly, a total or partial loss of a person’s bodily or mental functions, or a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour. I have already accepted, based upon the evidence of Dr Mastroianni, that Mr Ware suffered at all material times from disorders of the mind being Attention Deficit Disorder and an independent depressive illness. I find that both conditions are disabilities for the purposes of the DDA.

6. The substantial issues to resolve remain whether OAMPS treated Mr Ware any less favourably than other employees by reason of his disabilities or whether OAMPS imposed upon Mr Ware any condition, requirement or practice that he could not comply with because of his disabilities.

The direct discrimination claim

1. Mr Ware asserts that he was discriminated against directly by OAMPS by being dismissed from his employment and by subjecting him to detriments, namely demotion, the unilateral imposition of changed duties and work restrictions, the removal of his assistant, and in the manner of his performance assessment. In his written submissions Mr Searle seeks to rely not only upon ss.15(2)(c) and (d) of the DDA but also ss.15(2)(a) and (b). This is not acceptable. At the commencement of the trial on 18 May 2005 I required Mr Searle to identify what paragraphs of s.15(2) Mr Ware relies on. He limited the case to one based upon paragraphs (c) and (d). The applicant cannot change his position after the evidence has been presented.

2. There is no real dispute between the parties as to the correct legal principles to be applied.  These are reasonably well set out in Mr Searle’s written submissions.  What divides the parties is whether a case of discrimination has been established on the facts.

3. Critical to the resolution of this dispute is the identification of an appropriate comparator.  No actual comparator has been offered so the appropriate comparator must be a hypothetical one.  The question of the appropriate identification of a comparator in cases of direct disability discrimination has been a vexed one.  On the authority of the decision of the High Court in Purvis it is necessary to identify a hypothetical comparator who did not suffer from Mr Ware’s disabilities but who exhibited the same behaviours.  I find that the proper comparator is:

   a)an employee of OAMPS having a position and responsibilities equivalent of those of Mr Ware;

   b)who did not have Attention Deficit Disorder or depression; and

   c)who exhibited the same behaviours as Mr Ware, namely poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance, but with a formerly high work ethic and a formerly good work history.

4. I discount as a factor the fact that Mr Crocker became aware, when Mr Ware was hospitalised in mid 2003, that Mr Ware had received pornographic material by email on his work computer.  Mr Crocker conceded under cross-examination that he did not regard that issue in itself as critical, and there is no mention of it in the disciplinary correspondence which issued in July and September 2003.

5. Mr Ware asserts that OAMPS breached ss.15(2)(c) and (d) of the DDA. Leaving aside the dismissal, which I will return to later, Mr Ware asserts that he suffered a detriment through the unilateral changing of his duties, the removal of his assistant, the placement of restrictions upon his performance of duties, the setting of criteria against which his performance was to be judged, and not providing him with any opportunity to fulfil those criteria on any realistic, or fair timeframe, and through demotion. I accept that Mr Ware’s duties were changed unilaterally by OAMPS in early 2003 but I do not accept that this constituted a detriment. As I have already noted, Mr Ware did not object to the change in duties. On the contrary, he expressed happiness with them. The change in duties reflected his employer’s concern with his work performance and was a measure to better fit Mr Ware’s duties with his capacity. It was not a detriment.

6. The removal of Mr Ware’s assistant at about the same time was a detriment but could not constitute less favourable treatment by reference to the nominated comparator.  Mr Crosby told Mr Ware on 24 January 2003 that the way he treated his assistant was unacceptable.  I accept from Mr Crosby’s affidavit and cross-examination that Mr Ware had abused his assistant.  OAMPS had a duty to protect its staff from such abuse.  I have no doubt that OAMPS would have acted in the same way in relation to the hypothetical comparator.  There was no discrimination.

7. I also accept that the imposition of work restrictions on Mr Ware from 14 July 2003 was also a detriment in that it was made clear to Mr Ware that if he failed to meet his employer’s requirements, he could expect further disciplinary action, including dismissal.  Again, however, the action of OAMPS was not discriminatory by reference to how the comparator would have been treated in the same or similar circumstances.  It is clear from Mr Crocker’s letter to Mr Ware dated 14 July 2003 that Mr Ware would have been dismissed, by reason of his behaviour, if he did not suffer from his disabilities.  Mr Crocker refers to Mr Ware’s excessive drinking and his belief that Mr Ware had lied to him concerning an important insurance contract.  Mr Crocker also referred to the fact that he had cause to speak to Mr Ware over a long period of time in regard to other indiscretions including loss of time and unsatisfactory performance.  Mr Crocker said:

   In normal circumstances, the foregoing would result in immediate dismissal.  However, a number of your colleagues have persuaded me that you should be given the opportunity to redeem yourself.  They are convinced that these problems were as a result of your illness and not your lack of professionalism.

8. I accept the respondent’s evidence as to Mr Ware’s declining work performance, his mercurial and fiery temperament, his drunkenness and offensive behaviour, his unauthorised absences, his neglect of duties and, ultimately, his untruthfulness to Mr Crocker.  Mr Ware had breached the trust and confidence essential to the employment relationship between him and OAMPS.  Over a period of at least six months Mr Ware had given OAMPS sufficient cause to dismiss him summarily.  The hypothetical comparator in the same circumstances would have been dismissed by 14 July 2003.  In the circumstances, the imposition of conditions upon Mr Ware’s employment was not less favourable treatment: it was more favourable treatment.

9. I do not accept that unrealistic work demands were placed upon Mr Ware by OAMPS.  The evidence of Mr Ware and his wife was that Mr Ware had substantial personal problems (including marital problems) which I find were a factor in his deteriorating work performance.  The evidence of Mr and Mrs Ware was not consistent on the cause or timing of their marital problems.  I prefer the evidence of Mr Ware.  He showed greater insight into his condition than his wife, who appeared unduly anxious to support her husband’s claims through her evidence.  Mr Ware’s marital problems became significant following the birth of his first child.  Over time, Mr Ware suffered other personal difficulties which adversely impacted upon him, including the death of his father and half brothers.  Mr Ware’s work ethic had been good but I accept the respondent’s evidence that during 2003 Mr Ware’s work performance declined and he became disinterested in his work.  This may well have been a result of his bouts of depression.  The cause of that depression is unknown.  Dr Mastroinanni was unable to nominate Mr Ware’s work stressors as a cause.  Mr Crocker and Mr Crosby were well aware that Mr Ware was, during 2003, finding it increasingly difficult to cope with his work.  This was not because the work demands placed upon Mr Ware were unreasonable but because Mr Ware’s capacity to perform his duties was declining.  His duties were modified twice in order to assist him (and no doubt, in order to protect OAMPS from potential damage through the inefficient performance of more onerous duties).

10. I find that the demotion of Mr Ware on 13 September 2003, with effect from 22 September 2003 (with a reduction of salary to $45,000 with effect from 20 October 2003) was directly discriminatory.  Mr Romano’s letter to Mr Ware dated 13 September 2003 refers to Mr Ware’s graduated return to work in a reduced capacity and his being relieved of a range of responsibilities by Mr Crocker.  The letter then states:

    It is disappointing that despite the measures taken, together with the support structures put in place to assist you, you have not been able to produce the expected satisfactory results, meet agreed timeframes or display a positive approach to the measures instigated to assist you.

11. This is expressed to be the reason for the demotion.  However, Mr Crocker, under cross-examination, admitted that there had been no assessment of Mr Ware’s performance against the stipulated criteria set out in his letter of 14 July 2003.  He said that this was because no work had been done against which performance could be assessed.  Importantly, at paragraph 30 of his affidavit Mr Crocker states that the reason for Mr Ware’s demotion was his failure to attend his place of employment or give a valid or reasonable explanation for his lack of attendance.  Mr Crocker sought to retreat somewhat from that position under cross-examination but agreed that it was the “straw that broke the camel’s back”.  Mr Ware was absent from the workplace on 1, 8 and 12 September 2003.  Mr Ware was granted access to his annual leave entitlement for those absences subsequent to the absences.  On one of those days Mr Ware had been attending a funeral.  Miss Henderson in her submissions concedes that, to that extent, Mr Crocker was mistaken in his evidence that there had not been a reasonable explanation for Mr Ware’s absence.  Mr Ware could not recall the reason for his absences on the other two days but it is probable that Mr Ware was struggling to cope with his graduated return to work following hospitalisation with serious disabilities. 

12. Mr Crocker had, probably against his better judgement, been persuaded to keep Mr Ware on following his release from hospital.  He set out very clearly in his letter dated 14 July 2003 the criteria against which Mr Ware would be judged.  There was no assessment done by reference to those criteria before Mr Ware was demoted.  Mr Ware was not given a fair opportunity to prove himself by reference to the criteria against which he was meant to be judged and against which he was not judged.  He was punished by demotion for three absences from the workplace which were respectively approved by the granting of leave but for which Mr Ware did not have prior approval.

13. There was no mention, in Mr Croker’s letter of 14 July 2003, of any obligation on the part of Mr Ware to ensure there were no unauthorised absences from the workplace.  For a long time, Mr Ware had been in the habit of adopting a rather relaxed attitude to his attendance, especially following drinking bouts.  These absences were never authorised by OAMPS but they were for a long time tolerated.  There was a culture within the workplace of “long lunches” being tolerated provided that it was kept within reasonable bounds.  Mr Ware’s habit was not kept within reasonable bounds and he was counselled about it.  It was a factor in Mr Crocker’s mind in imposing work restrictions on 14 February 2003.  The letter instructed Mr Ware that he was not to consume alcohol during working hours, including lunch times. It beggars belief that there would be no mention of unauthorised absences in the conditions set out in that letter to which Mr Ware was made subject if it was to be the predominant consideration concerning the future treatment of Mr Ware. 

14. I find that Mr Ware was treated less favourably than the hypothetical comparator would have been in the same or similar circumstances.  There is an initial logical hurdle to overcome here, in that the hypothetical comparator would have been dismissed by 14 July 2003.  In my view the proper approach is to treat Mr Ware as being placed in the same position as an employee under probation and subject to a written warning.  If the hypothetical comparator had had the same work restrictions placed upon him as had Mr Ware, it is reasonable to suppose that those work restrictions would have reflected the concerns of OAMPS and that the hypothetical comparator’s performance would have been judged against the criteria stipulated.  In the case of Mr Ware, the employer, having accepted his return to work on a restricted basis, having regard to his disabilities, treated him unfavourably by demoting him by reference to a factor about which no notice was given in the letter of 14 July 2003 setting out the conditions which Mr Ware must meet and the criteria against which his performance would be assessed.  I find that the hypothetical comparator would not have been treated in that way.

15. Accepting, as I do, that Mr Ware was demoted because of his non attendance at the workplace, the question then is whether Mr Ware was demoted because of his disability.  It is not necessary for Mr Ware to prove that OAMPS intended less favourable treatment because of his disabilities: Waters v Public Transport Commission (1991) 173 CLR 349 at [359] per Mason CJ and Gaudron J[25].  Motive may nevertheless be relevant to determine whether or not an act is done “because of” a disability: see Purvis at [236]. The question is why was Mr Ware demoted? Was it because of or by reason of his disabilities?

    [25] See also Purvis at [160]

16. At the time Mr Ware was demoted, Mr Croker knew that Mr Ware suffered from Attention Deficit Disorder and depression.  He knew that he was progressing through a graduated return to work following a period of hospitalisation.  I gained the strong sense from Mr Croker’s evidence under cross-examination that he was “fed up” with Mr Ware and regretted the generous view that he had taken in his letter of 14 July 2003.  Mr Ware’s absences from the workplace provided Mr Croker with what he regarded as sufficient cause for demotion but the real reason for the demotion was that Mr Crocker had exhausted his capacity to accommodate Mr Ware’s condition.  To my mind, this establishes a sufficient causal link between the less favourable treatment and Mr Ware’s disabilities.  I find that in demoting Mr Ware, OAMPS treated Mr Ware less favourably than it would have treated a person without the disability by reason of Mr Ware’s disabilities. 

17. I also find that OAMPS discriminated against Mr Ware in terminating his employment on 26 September 2003.  That letter, like the letter of 13 September 2003, was written by Mr Romano but Mr Crocker acknowledged that it was he who made the decision.  That letter identifies areas of concern with Mr Ware’s personal behaviour and professional neglect that had earlier been identified on 2 June 2003 and 7 July 2003.  To that extent there was nothing new justifying dismissal.  More importantly, the dismissal letter contradicts the letter of 14 July 2003 which told Mr Ware that, although his performance merited dismissal, he would not be dismissed and any future dismissal decision would be based upon his future performance.  That letter stated:

    “Jirra, I sincerely hope that you take these guidelines seriously and understand the need for their strict nature.  I also hope that you understand the disappointment that I feel.  I reiterate that any breach of the rules set out, or of any of the other rules that were agreed to on our original employment contract, will result in me recommending to Head Office that your employment will be terminated.”

    The employment contract (like the letter) is silent on the question of unauthorised absences from the workplace.

1. The dismissal letter also refers to the demotion letter of 13 September 2003.  That letter informed Mr Ware that his performance between 14 July 2003 and 13 September 2003 merited demotion, not dismissal.  The dismissal letter continues:

   Although having been handed this letter personally by Don Crocker, to date you have not responded to its contents.  However, since this time your behaviour, especially in relation to attendance and commitment to the company and your position, has continued to be unsatisfactory.

2. This appears to be the expressed reason for the dismissal. 

3. The fact is that after being handed the demotion letter, Mr Ware consulted Dr Mastroianni.  I accept Dr Mastroianni’s evidence that Mr Ware suffered a major depressive episode as a direct consequence of being demoted.  Following the demotion decision Mr Ware was medically unfit to work, a fact that Dr Mastroianni subsequently verified by the provision of a medical certificate.  Under cross-examination Mr Crocker accepted that, while he took into account his pre-existing concerns about Mr Ware, important factors were the absences from the workplace referred to by Mr Crocker in paragraphs 29 and 31 of his affidavit.  The absences referred to in paragraph 29 were the absences that Mr Crocker used to justify the demotion decision.  They could hardly be used to justify the dismissal as well.  The only absences referred to in paragraph 31 of Mr Crocker’s affidavit were two absences on 22 and 24 September 2003. 

4. I find that the absences of Mr Ware on 22 and 24 September 2003 provided Mr Crocker with what he saw as the appropriate opportunity to terminate Mr Ware’s employment.  Mr Crocker admitted under cross-examination that by acting when he did, OAMPS avoided the need to pay termination benefits to Mr Ware[26].  He denied that that was a factor in his decision.  I do not believe him.  By 26 September 2003, Mr Crocker had decided that Mr Ware had to go.  One wonders why Mr Crocker did not simply wait for Mr Ware’s contract to expire and pay the termination benefits that Mr Ware would have then received[27].  The contract was due to expire on 1 October 2003.  However, Mr Crocker was unwilling to wait.  In my view, the reason why Mr Crocker asked as he did was because OAMPS, in the demotion letter of 13 September 2003, rather unwisely represented to Mr Ware that his contract would be renewed.  That representation came about because the letter stated that Mr Ware’s salary would be reduced with effect from 20 October 2003, nearly three weeks after the expiration of the then current contract.  Mr Crocker saw an expedient means of avoiding the need to renew Mr Ware’s contract and took it.

   [26] In fact OAMPS undertook to pay Mr Ware two weeks salary in lieu of notice extending beyond the date of expiry of his contract of employment.

   [27] Thirteen weeks remuneration in lieu of notice pursuant to clause 11.4.1 of the employment contract

5. To the extent that the termination decision was based upon Mr Ware’s absence from the workplace on 22 and 24 September 2003, this was less favourable treatment than the hypothetical comparator would have received in the same and similar circumstances because of Mr Ware’s disabilities, for the same reasons as I have found the demotion decision was discriminatory.  The absences were properly explained after the event and a medical certificate was provided.  The hypothetical comparator would not have been dismissed for two days absence for which sick leave was subsequently granted.  On no view could those absences warrant summary dismissal pursuant to clause 12 of the employment contract, which provides:

   The Company can end the Executive’s employment immediately if he/she:

   12.1Commits any serious breach of this Agreement;

   12.2 Engages in wilful or deliberate behaviour that is inconsistent with the continuation of this Agreement.

   12.3 Engages in conduct that causes imminent and serious risk to the health or safety of a person or the reputation, viability or profitability of the OAMPS Group’s business.

   12.4 Is intoxicated at work to the extent that he/she is unable to perform his/her duties;

   12.5 Refuses to carry out a lawful and reasonable instruction;

   12.6 In the course of his/her employment engages in:

   12.6.1 theft;

   12.6.2 fraud;

   12.6.3 assault

6. To the extent that the termination decision was based upon pre-existing concerns about Mr Ware’s performance and behaviour, it was clearly discriminatory.  Mr Ware’s performance and behaviour were influenced by his disabilities.  Mr Crocker had previously accepted that while Mr Ware’s performance and behaviour merited dismissal, he would not dismiss Mr Ware summarily, having taken into account his disabilities.  Those pre-existing problems either merited dismissal or they did not.  Mr Crocker had accepted (grudgingly) that no summary dismissal action would be taken.  Mr Ware would be given the chance to prove himself by reference to specified criteria.  He was not given a reasonable opportunity to prove himself and he was not assessed against those criteria.  The factors which Mr Crocker said, under cross-examination, he took into account in dismissing Mr Ware were the very factors which, in his letter of 14 July 2003, Mr Crocker told Mr Ware would only lead to his dismissal if he failed to meet the designated performance criteria.  The hypothetical comparator would have been judged against those criteria.  Mr Ware was not judged against those criteria essentially because Mr Crocker changed his mind.  In dismissing Mr Ware, Mr Crocker recanted the consideration that he gave Mr Ware by reference to his disabilities.  The dismissal was therefore because of those disabilities.

The indirect discrimination claim

1. I have found direct discrimination in respect of the demotion and dismissal decisions.  There can be no indirect disability discrimination in respect to those same decisions because direct and indirect disability discrimination are mutually exclusive: Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721.

2. There as no indirect discrimination in relation to the other conduct complained of, namely, the variation to Mr Ware’s duties in early 2003, the removal of his assistant and the imposition of restrictions on 14 July 2003.  To the extent that any condition, requirement or practice was imposed upon Mr Ware, it was a reasonable response by the employer to Mr Ware’s declining work performance and poor behaviour.  In addition, Mr Ware could, and did, comply with those conditions, requirements and practices, at least up until 14 July 2003.  He conceded that he liked the variation of his duties in early 2003 and performed them.  Given his behaviour, he could hardly have contested the removal of his assistant.  He conceded that the conditions imposed on 14 July 2003 were reasonable.  It is impossible to say whether or not Mr Ware was able to comply with those conditions as his performance was never assessed by reference to them.

3. The indirect disability claim fails.

Assessment of loss and damage

1. Mr Ware seeks damages for both non economic and economic loss.  I accept the principles by which loss should be assessed set out in Mr Searle’s written submissions.  I accept Mr and Mrs Ware’s evidence that Mr Ware suffered significantly as a result of his demotion and dismissal.  More particularly, I accept the evidence of Dr Mastroianni that Mr Ware’s demotion and dismissal caused a significant deterioration in his condition, at the very time when it was starting to recover following his hospitalisation.  I will award Mr Ware the sum of $10,000 as general damages for non economic loss.  That is the same amount that I awarded in Trindall, in comparable circumstances.

2. As to economic loss, Mr Ware should receive the termination payments that he would have received if his contract of employment had been terminated by notice pursuant to clause 11 of the employment contract.  OAMPS was entitled to take advantage of that clause at any time and no reasons for termination were required.  Clause 11.6 states that the parties agree that termination pursuant to the clause shall be taken to be because of redundancy.  OAMPS, in its letter to Mr Ware dated 13 September 2003, had represented to him that he could expect continuing employment at least until 20 October 2003.  OAMPS was not entitled to summarily disappoint that expectation.  Therefore, notice of termination could not have been given until 20 October 2003.  It follows that the damages Mr Ware should receive is his remuneration of $80,000 pa between 26 September 2003 and the expiration of the 13 week notice period after 20 October 2003, less the two weeks remuneration in lieu of notice that OAMPS undertook to pay and which I assume was paid by OAMPS.  The parties can calculate the precise figure.

3. In calculating the termination payments payable to Mr Ware, no account needs to be taken of commission that Mr Ware might have earned.  He asserts that he did earn commission during the period of his employment of around $5,000 but has not been paid it.  I have found that, pursuant to the terms of his employment, Mr Ware was entitled to receive commission payments in addition to his other remuneration.  Mr Ware is entitled to receive any commission payments he can quantify, pursuant to his employment contract.  It does not need to be assessed as damages for unlawful discrimination.  No contractual claim was made in these proceedings.  If the parties cannot agree on what, if any, commission payments should be made to Mr Ware under his employment contract, Mr Ware can sue for them in a court of competent jurisdiction.

4. Mr Ware should also receive as damages for economic loss part of the unreimbursed cost of consulting Dr Mastroianni. Mr Ware’s condition was aggravated by the demotion and dismissal decisions.  Mr Ware conceded under cross-examination that he would have had to consult Dr Mastroianni anyway even if he had not been demoted or dismissed, but asserted that more consultations were required because of the aggravation of his condition.  I accept that evidence. It is impossible to quantify precisely how many consultations are attributable to that aggravation.  An assessment of loss in the circumstances is arbitrary.  I will allow 20 per cent of the unreimbursed costs of the consultations as damages for economic loss. Once again, the parties can calculate the precise figure.

5. I will not make a declaration as it serves no purpose where monetary compensation is awarded and the means of calculating the required payment is clear without a declaration.  Mr Ware should receive interest up to judgment at the rate of 10.5 per cent, which is the rate that I applied in Trindall at [189]. Interest is payable from 26 September 2003 when Mr Ware’s cause of action was complete.

6. I will hear the parties as to costs.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  29 July 2005