Watts v Australian Postal Corporation
[2014] FCA 370
FEDERAL COURT OF AUSTRALIA
Watts v Australian Postal Corporation [2014] FCA 370
Citation: Watts v Australian Postal Corporation [2014] FCA 370 Parties: ANDREA WATTS v AUSTRALIAN POSTAL CORPORATION File numbers: VID 1293 of 2011
VID 1082 of 2012Judge: MORTIMER J Date of judgment: 11 April 2014 Catchwords: HUMAN RIGHTS – Disability discrimination in employment – proper construction of “reasonable adjustment” – characteristics of appropriate comparator – whether respondent failed to make reasonable adjustments for employee following work-related psychological injury – whether failure to make reasonable adjustments had the effect that the applicant was treated less favourably – whether the respondent’s discriminatory conduct caused the applicant’s loss – applications allowed in part. Legislation: Acts Interpretation Act 1901 (Cth) s 23
Administrative Appeals Tribunal Act 1975 (Cth) s 42C
Australian Human Rights Commission Act 1986 (Cth) s 46PO
Disability Discrimination Act 1992 (Cth) ss 4, 5, 6, 10, 11, 15, 18, 21A, 21B, 29A
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth)
Federal Court of Australia Act 1976 (Cth) s 23
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 19, 37, 40, Part VIII
Trade Practices Act 1974 (Cth) s 82
Convention on the Rights of Persons with Disabilities arts 2, 5(3)Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22
Browne v Dunn (1893) 6 R 67
Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Commonwealth v Baume (1905) 2 CLR 405
Cosma v Qantas Airways Ltd (2002) 124 FCR 504; [2002] FCAFC 425
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91
Ewin v Vergara (No 3) [2013] FCA 1311
Gaffney v RSM Bird Cameron (A Firm) [2013] FCA 661
Hall v A & A Shieban Pty Ltd (1989) 20 FCR 217
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202
Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Murphy v Overton Investments (2001) 112 FCR 182; [2001] FCA 500
Nagarajan v London Regional Transport [2000] 1 AC 501
Nojin v Commonwealth (2012) 208 FCR 1
Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; [2012] HCA 46
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Quinn v Overland (2010) 199 IR 40; [2010] FCA 799
R v Inhabitants of Whitnash (1827) 7 B & C 596 at 599; 108 ER 845
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Regents of University of California v Bakke (1978) 438 US 265
Smith v Department of Education and Communities [2013] NSWADT 162
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
Waters v Public Transport Corporation (1991) 173 CLR 349
X v Commonwealth (1999) 200 CLR 177; [1999] HCA 63Oxford English Dictionary (online edition)
Productivity Commission, Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004)
Spigelman JJ, “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224Date of hearing: 14 –17 October 2013; 22 November 2013 Date of last submissions: 22 November 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 303 Counsel for the Applicant: Ms S Keating Solicitor for the Applicant:
AED Legal Centre
Counsel for the Respondent: Ms R Nelson Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1293 of 2011
BETWEEN: ANDREA WATTS
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
11 APRIL 2014
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.Between 29 June 2010 and 26 October 2010, by not making reasonable adjustments for the applicant to perform her work as a bid manager, the respondent contravened s 15(2)(b) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
2.The respondent re-credit to the applicant 50% of any sick leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
3.The respondent re-credit to the applicant 75% of any recreation leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
4.The respondent re-credit to the applicant 100% of any long service leave entitlements used by the applicant during the period 29 June 2010 to 26 October 2010.
5.On or before 4.00pm on Friday 2 May 2014, each party file and serve any further proposed orders or variations to these orders they submit are appropriate in light of the Court’s findings and reasons, together with any submissions they wish to make on orders as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1082 of 2012
BETWEEN: ANDREA WATTS
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
11 APRIL 2014
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.Between 27 October 2010 and 21 April 2011, by not making reasonable adjustments for the applicant to perform her work as a bid manager, the respondent contravened s 15(2)(b) of the Disability Discrimination Act 1992 (Cth).
THE COURT ORDERS THAT:
2.The respondent re-credit to the applicant 50% of any sick leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
3.The respondent re-credit to the applicant 75% of any recreation leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
4.The respondent re-credit to the applicant 100% of any long service leave entitlements used by the applicant during the period 27 October 2010 to 21 April 2011.
5.The respondent pay compensation to the applicant, in the sum of $10,000.
6.On or before 4.00pm on Friday 2 May 2014, each party file and serve any further proposed orders or variations to these orders they submit are appropriate in light of the Court’s findings and reasons, together with any submissions they wish to make on orders as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1293 of 2011
VID 1082 of 2012
BETWEEN: ANDREA WATTS
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
MORTIMER J
DATE:
11 APRIL 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION AND SUMMARY
There are applications for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth), in respect of alleged contraventions of the Disability Discrimination Act 1992 (Cth) (the DDA). There are two proceedings, covering different periods of time, which have been heard and determined together. The first proceeding concerns allegations against the Australian Postal Corporation (Australia Post), the respondent to both proceedings, in respect of conduct between June 2010 and 26 October 2010. The second proceeding concerns allegations against Australia Post in respect of conduct between February 2011 and 29 July 2012, as well as allegations of the continuation of the discrimination alleged in the first proceeding. In that sense, there are allegations of unlawful discrimination by Australia Post from the period of June 2010 through to 29 July 2012.
The following summary reflects the findings I have made on the evidence. The applicant, Ms Watts, is a bid manager for Australia Post. Throughout the events which have led to this proceeding, Ms Watts has remained employed by Australia Post. She is, on the evidence, a competent and conscientious employee. In April 2008, Ms Watts suffered a psychological injury as a result of an incident concerning her non-selection for a leadership training program offered by Australia Post. This led to her lodging a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for compensation (Australia Post being regulated under the federal workers’ compensation scheme). She had some significant time away from the workplace. In October 2008, she returned under a return to work program, although her workers’ compensation claim remained unresolved. After her workers’ compensation claim was resolved by consent in the Administrative Appeals Tribunal in December 2009, and while she was still occupying a position in Australia Post’s workplace, as part of her return to work program, in February 2010 Australia Post moved to manage her return to her position as a bid manager under different arrangements. Australia Post had a policy described as a “Non-work related medical restrictions policy”. How and why Australia Post decided to change the management of Ms Watts’ working arrangements by reference to this policy is an important aspect of the facts in this case and is the subject of findings below at [210]-[225]. I shall refer to this policy of Australia Post as simply “the policy”.
Ms Watts was not cooperative with Australia Post’s decision to manage her under the policy, and did not agree with its imposition on her. Through its employees in its human resources area, Australia Post sought to have Ms Watts produce specific medical reports or advice about whether she was fit to return to her pre-injury role as a bid manager, and what medical restrictions or modifications might be required. It sought permission to speak to her treating doctor. It sought permission to speak to her treating psychologist. Ms Watts resisted these requests for various reasons, which I refer to in more detail later in these reasons for judgment. There was an effective impasse for several months, at least until mid-May 2010, but Ms Watts remained in the workplace under the arrangements in place since October 2008. In mid-May 2010, Australia Post directed Ms Watts to take sick leave and not attend for work on the basis that it was not satisfied she was fit to perform her role as a bid manager, and there were no modifications or restrictions it considered were reasonably available to allow her to do so. It would not, apparently, permit her to continue in the position she had been occupying as part of her return to work program.
Australia Post engaged in much correspondence, by letter and email, with Ms Watts about its need for further and more detailed medical information. Initially, some events outside Ms Watt’s control conspired to delay the provision of medical advice to Australia Post from Ms Selvi, Ms Watts’ treating psychologist. When it was provided, those responsible in Australia Post management found Ms Selvi’s advice unhelpful and unsatisfactory. Australia Post continued to pursue the matter, but not with any urgency. It did not seek to give Ms Watts any formal directions to attend for independent medical assessments, as it was clearly entitled to and could have done. It did not allow her to continue in the modified position she had been successfully performing until May 2010.
Delay, prevarication, lack of cooperation, stubborn adherence to process and some obstinacy on both sides all contributed to two years passing without Ms Watts returning to work. She used up her sick leave, her annual leave and from 4 August 2011 had to take leave without pay.
During this period, on 26 October 2010 Ms Watts lodged her first complaint under the DDA with the Australian Human Rights Commission. The principal allegation was that, after her treating psychologist gave Australia Post a report in June 2010, Ms Watts should have been able to return to work, and transition back into her position as a bid manager, because there were reasonable adjustments available for her to continue at work. That complaint was terminated on 28 September 2011, and on 21 November 2011 Ms Watts issued the first proceeding in this Court.
Eventually, on 13 October 2011 Australia Post gave Ms Watts a formal direction to attend for a psychiatric medical examination with an independent psychiatrist (Dr Hollander). This direction was given as a precursor to reliance on Australia Post’s disciplinary processes if Ms Watts refused to comply with the direction. Ms Watts eventually complied with the direction and attended to see Dr Hollander. Dr Hollander produced a report stating Ms Watts was fit to return to her pre-injury duties in her role as bid manager, and could perform the inherent requirements of that position. He advised a graduated return to work program over four months. Australia Post accepted these recommendations, as did Ms Watts, and they were implemented. Her return to work was successful and she is back performing the role of bid manager. Her supervisor, Mr Psarologos, gave positive evidence about the way she performs her role.
Why this could not have happened two years ago remains, on the evidence, something of a mystery. The most likely explanation seems to be too much intransigence on both sides.
Then, on 24 October 2012 Ms Watts lodged a second complaint with the Commission, dealing with Australia Post’s continuing refusal to allow her to return to work after she had been directed to take leave. The second complaint was terminated on 6 December 2012, and on 14 December 2012 Ms Watts issued the second proceeding in this Court.
For the reasons I set out below, I find that Australia Post contravened the DDA by engaging in unlawful discrimination on the ground of Ms Watts’ disability; namely, her disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour, within the meaning of s 4(1) of the DDA. The contraventions occurred between May 2010 and April 2011, on the basis of a failure by Australia Post to make reasonable adjustments for Ms Watts so she could remain at work. She was denied the ability to attend work, exercise her skills, be able to use her sick and recreation leave as she chose, all of which are benefits associated with her employment. She is entitled, with some qualifications, to compensation consisting of the re-crediting of her leave and other entitlements, with effect from June 2010 because that is consistent with her case at trial. She is not entitled to compensation for loss of income for the period after 21 April 2011, which includes the period she was on leave without pay, as I have found there was no unlawful discrimination by Australia Post during this time. She is also entitled to general damages, which I have fixed in the sum of $10,000.
JURISDICTION
It is not contentious that this Court has jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) to deal with the two proceedings, arising out of two complaints made to the Commission by Ms Watts.
RELEVANT ASPECTS OF THE DISABILITY DISCRIMINATION ACT
The DDA, like other anti-discrimination legislation (whether state or federal), represents a compromise by the Parliament between the protection and advancement of the right to equality of treatment and opportunity enjoyed by people with disabilities, and the interests of other groups in the community who interact with people with disabilities and whose conduct, though it might be discriminatory, Parliament makes a legislative choice to exempt from compliance with prohibitions on discrimination.
The fact of this compromise was recognised in Waters v Public Transport Corporation (1991) 173 CLR 349 at 362-363 per Mason CJ and Gaudron J, at 409-410 per McHugh J. Legislative compromises of this nature may be reflected in statutory language which is deliberately opaque. Writing extra-judicially, then Chief Justice Spigelman observed:
The concept of attributing an intention to a legislature poses a number of problems. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court.
(Spigelman JJ, “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224 at 225-226.)
The statutory language of the DDA is an example. The facts of this case, and the parties’ respective arguments, call for the resolution by interpretation of several aspects of that opaqueness. In doing so, the Court should remain faithful to the text, context and purpose of the legislative scheme, although application of this guidance in a scheme which is inherently a compromise requires reconciliations on which reasonable minds might differ. There are constructional choices to be made. The Court must make them trying as best it can to remain close to the language Parliament chose to use, in the context it chose to use it, and applying the legislative purpose, objectively ascertained.
The applicant’s claims concern amendments to the DDA made by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth), which introduced s 5(2) of the DDA, incorporating a new characterisation of what “discrimination” means for the purposes of the DDA.
The explanatory material stated that the amendments were designed to implement the recommendations of the Productivity Commission, themselves in part a consequence of the High Court’s decision in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62. The Commission’s recommendations are found in its Review of the Disability Discrimination Act 1992 (Report No 30, 30 April 2004) where it observed (at Overview, pp XL-XLI):
A reasonable adjustment duty
Until recently, it had been presumed that the DDA obliged affected organisations to make ‘reasonable adjustments’ to accommodate the needs of people with disabilities. Although the term ‘reasonable adjustment’ does not appear in the DDA, various features of the Act seemed to imply such an obligation. However, a recent High Court decision questioned this presumption and appears to have narrowed significantly the protection that the Act was previously thought to provide.
The Commission considers that substantive equality is a sound basis for disability discrimination legislation. It therefore endorses the concept of reasonable adjustment as a means to this end, and recommends that it be included explicitly in the Act as a stand alone duty. This would mean that failure to provide reasonable adjustment could itself be unlawful discrimination and the subject of a complaint.
The Commission makes this recommendation provided that the duty is always subject to the unjustifiable hardship defence. ‘Reasonable adjustment’ should be defined to exclude adjustments that would cause unjustifiable hardship. This safeguard is necessary to ensure that adjustments are likely to produce net benefits for the community, and do not impose undue financial hardships on the organisations required to make them.
Even in the absence of an explicit reasonable adjustment duty, there are strong grounds for ensuring that the unjustifiable hardship defence applies to all areas of the Act, including: education after enrolment; employment between hiring and firing; and administration of Commonwealth laws and programs. Some people are opposed to the Australian Government having recourse to this defence, presuming that it has greater resources at its disposal. But any government expenditure has an opportunity cost, and to devote resources to making adjustments that do not have net community benefits is just as wasteful as it is in any other area covered by the DDA.
The DDA should also require that unjustifiable hardship be included in all disability standards introduced under the Act, including current draft standards.
Who pays?
Any obligation to make adjustments raises the vexed question of who should pay for those adjustments: the organisations concerned, or the community more broadly. There are good arguments for both to be involved (box 5). In some cases, the costs can be spread across different groups. For example, the costs of accessible public transport might be met partly by transport providers (through lower earnings), their customers (through higher fares) and by taxpayers (through subsidies). But in other cases organisations might not be able to pass on the costs.
Two approaches could be adopted to help broaden the obligation to fund adjustments. The Commission is recommending that:
• the unjustifiable hardship test also require that consideration be given to efforts taken by the organisation to access financial and other assistance. This would mean that the organisation could not use ignorance of existing programs as a defence.
• the Australian Government review existing arrangements for funding adjustments and consider portable access grants to support participation in employment and education.
Section 5(2) of the DDA deals with the subject matter of the Commission’s recommendations. It provides:
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b)the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
The definition of “reasonable adjustment” is critical to the disposition of the issues in this proceeding. The explanatory material (see Explanatory Memorandum, Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) at [28]-[29], [35] (2008 Explanatory Memorandum)) acknowledges the concept of “reasonable adjustments” is drawn from the Convention on the Rights of Persons with Disabilities, although the term in the Convention is “reasonable accommodation”. Article 2 of the Convention defines reasonable accommodation in the following terms:
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
Australia became a party to the Convention on 17 July 2008. It acceded to the Optional Protocol to the Convention on 21 August 2009, which became effective in Australia on that date. Article 5(3) of the Convention provides as follows:
In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
Although the phrase chosen by the Parliament is slightly different, it is clear that these amendments were made in pursuance of Australia’s international obligations under the Convention. If there is a constructional choice, a construction of s 5(2), and those provisions designed to interact with it, which is consistent with those obligations should be preferred, insofar as the text and context otherwise allow: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 at [97] per Gummow and Hayne JJ; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [247] per Kiefel J; SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 at [59].
This approach is important when the breadth of the statutory definition of “reasonable adjustment” is considered. Section 4 of the DDA defines “reasonable adjustment” in the following terms:
an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.
Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.
Similarly, the range of disabilities covered by the DDA, evident from the definition of “disability” in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that “disability” manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.
There is one relevant qualification to the breadth of what can constitute an “adjustment” for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.
It will be noticed that the definition of “reasonable adjustment” in s 4 uses the singular, and s5(2) uses the plural. For the purposes of the operation of s 23 of the Acts Interpretation Act 1901 (Cth), in my opinion the DDA exhibits a contrary intention. The use of the plural in the provision which imposes an enforceable obligation conveys an intention to capture the variety of circumstances, and the variety of disabilities, which may need to be accommodated. More than one adjustment may be necessary. More than one option may be available. The use of the plural is consistent with the imposition of an obligation that may require several steps, alternatives, processes or modifications for one person. The use of the plural allows for that possibility.
The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. I deal with these provisions in more detail at [35] and [57] below. One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.
A further construction issue posed by s 5(2)(a), relevant to the current proceeding, is how the phrase “does not make, or proposes not to make” should be construed. The first part of the phrase is clear enough: it concerns the factual situation at the time a Court assesses whether s 5(2) has been contravened. It directs attention to whether, as a matter of fact at that time, reasonable adjustments have been made. The second part directs attention to a (negative) position of the alleged discriminator, and also involves some speculation about the future. One construction question is whether the second part of the phrase is to be determined only by reference to the subjective intentions of the discriminator. Ordinarily, motive (that is, the reason a person has herself or himself for achieving an object, or seeking to achieve an object) is not relevant in determining why a person acted as she or he did for the purposes of establishing discrimination: see Purvis 217 CLR 92; [2003] HCA 62 at [148]-[166] per McHugh and Kirby JJ.
In Nagarajan v London Regional Transport [2000] 1 AC 501 at 511, Lord Nicholls of Birkenhead said:
For the purposes of direct discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign.
In my opinion, two points should be made about the construction of the phrase “proposes not to make” in s 5(2)(a). First, it is not directed to intention or motive. It requires an objective judgement about the position taken by the alleged discriminator. It should not be regarded as intending an assessment of the discriminator’s subjective and ongoing state of mind. Consistently with the approach in Purvis 217 CLR 92; [2003] HCA 62, the statute requires a determination, as a matter of fact at the point in time when the discriminator’s conduct is challenged, of what the discriminator’s position in fact is.
Second, it is intended to identify a different factual situation from the phrase “does not make”. The latter looks to what has or has not been done by the time of complaint, in circumstances where the complainant says something should have been done. If, in a given factual situation, the time for making reasonable adjustments has not yet been reached (for example, because the disabled worker has not started a job, has not returned to work, or there is an anticipatory refusal by the discriminator) then that is one circumstance in which the second part of the provision has work to do. It will also have work to do when there is continuing discrimination at the time a claim comes to be determined: in that situation both limbs may be engaged on the facts.
Further, s 5(2) as a whole must be construed in a way that allows it to operate in a practical way in the workplace, and in the educational and other settings with which the Act deals. Adjustments may be simple, but also complex. Not only complex because of technical or technological requirements, but also perhaps because of personnel and workplace requirements. Time may be needed to implement them. Part of the work to be done by the second limb is to allow for the position of a discriminator who recognises her or his legal responsibilities, but the implementation of adjustments requires a period of time. In those circumstances, it cannot be said, consistently with the proper construction of the provision, that a discriminator “proposes not to make” reasonable adjustments. The period of time during which it might be said, in a given factual situation, that a discriminator has acknowledged her or his legal obligation and is pursuing implementation cannot be fixed in advance. Invariably it will be fact dependent. Delay may, after a period, indicate lack of genuine recognition of the legal obligation and make available the inference that the discriminator’s position is that it “proposes not to make” the adjustment. On the other hand, delay may be accounted for by the unavailability, for example, of an adjustment where the adjustment is a practical, technological adjustment.
In other words, subject to circumstances of continuing discrimination, the two parts of the phrase are intended to be able to address different factual situations. That is particularly apparent from the use of the conjunction “or” in s 5(2)(a), rather than “and”. Each can and should be given different work to do in the statute: Commonwealth v Baume (1905) 2 CLR 405 at 414.
The tense used in paragraph (a) of s 5(2) (extracted at [17] above) is in my opinion significant. Paragraph (a) is expressed in the present tense. It is suggestive of an ongoing or continuing obligation imposed by the statute on the discriminator. That is consistent with the subject matter of the provision which concerns (for example) the ability of disabled people to perform work, attend educational institutions, be provided with goods and services, and have access to accommodation on an ongoing basis.
The effect of the 2009 amendments on the two statutory exceptions to unlawful discrimination, described as “unjustifiable hardship” and “inherent requirements”, is also important for the resolution of the issues in this proceeding.
Prior to the 2009 amendments, s 4(1) required “unjustifiable hardship” to be read by reference to s 11 of the DDA. Section 11 set out a series of mandatory considerations to be taken into account in determining what constituted unjustifiable hardship. The term was then picked up in the provisions dealing with prohibitions on discrimination in particular spheres, creating (where it was picked up) an exception to the prohibition. For example, s 15(4) of the DDA formerly provided:
Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.At that time, s 15(1)(b) dealt with the terms on which persons were offered employment and s 15(2)(c) dealt with dismissal. Those were the only circumstances in which the inherent requirements and unjustifiable hardship exceptions operated.
It can be seen from the former version of s 15 that the exception of “inherent requirements” was neither separately defined nor provided for. Instead, it was left undefined and a body of authority grew up around its content: see, eg, X v Commonwealth (1999) 200 CLR 177; [1999] HCA 63; Cosma v Qantas Airways Ltd (2002) 124 FCR 504; [2002] FCAFC 425.
The 2009 amendments not only introduced the concept of reasonable adjustments, but altered the way in which the exceptions for unjustifiable hardship and inherent requirements were to operate. Aside from the introduction of s 5(2), this was achieved in relation to discrimination in the area of work by repealing those parts of provisions such as s 15 which had dealt with these exceptions, and introducing freestanding provisions to deal with inherent requirements (s 21A) and unjustifiable hardship (s 21B). For other spheres of activity (see, for example, Div 2 of Part 2 of the DDA, which includes education and access to premises), a new provision creating an exception of unjustifiable hardship was introduced: see s 29A.
Section 21B provides:
21B Exception-unjustifiable hardship
This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
Section 21B was not relied on by Australia Post in this proceeding and therefore is not directly in issue. However, its place and operation in the scheme assists in the construction, for example, of s 21A, which is in issue. The text of s 21B speaks of “avoiding the discrimination”, thus picking up discrimination as defined by both ss 5(1) and 5(2). For the purpose of s 5(2), “avoiding the discrimination” should be understood to mean making, or proposing to make, reasonable adjustments for a person with a disability.
The Productivity Commission dealt with the extension of the unjustifiable hardship defence (at 210-211):
The Productivity Commission considers that there are good reasons to extend the unjustifiable hardship test to all areas of the DDA. As a duty to make adjustments might be implied from existing provisions, an across the board unjustifiable hardship defence is required as the Act stands now to provide the necessary balance. It would seem that the Australian Government intended it to apply it universally in the first place. According to HREOC:
The second reading speech introducing the Disability Discrimination Bill indicated an intention to apply the concept of unjustifiable hardship as a general limitation on the legislation, although the drafting of substantive provisions did not fully reflect this. (sub. 143, p. 28)
If the Commission's proposal for a duty to make reasonable adjustments were adopted, an accompanying unjustifiable hardship defence would become even more important as an across the board safeguard to balance rights and obligations.
The Productivity Commission also recommended the extension of the exception of inherent requirements, from its 2009 operation in respect of hiring and dismissal, to all employment situations. The Report stated (at p 221):
The Commission concludes that the inherent requirements provisions in the DDA are important from the perspectives of employers and employees (and prospective employees). From the employers’ perspective, inherent requirements provide an important safeguard that underpins the merit principle in employment decisions. For employees, inherent requirements mean that employers cannot discriminate against them by using failure to meet non-essential requirements as a reason. Guidelines would help employers and employees to identify the inherent requirements for particular jobs.
There is, however, one legislative amendment that should be made to address an apparent anomaly in the way inherent requirements apply to some employment situations and not others. Currently, like the unjustifiable hardship defence, the inherent requirements defence is not available between the hiring and dismissal stages of employment. It does not apply, for example, in relation to promotions. No good explanation has arisen for why this is so, nor to the Commission’s knowledge is it a major issue with employers. The current lack of this defence would appear to have the unusual result, for example, that failure to meet the inherent requirements of a more senior position could not be used by an employer to refuse to promote a person. Although not a seemingly urgent issue, this matter should be addressed.
Section 21A provides:
Exception-inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a)the discrimination relates to particular work (including promotion or transfer to particular work); and
(b)because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person's past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator-the aggrieved person's performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3)For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
Opportunities for promotion, transfer and training and registered organisations
(4) This section does not apply in relation to:
(a) discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or
(b) discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).
By the use of the conditional tense, the statute contemplates that the task required by s 21A(1)(b) can be carried out hypothetically. The provision also uses the term “particular work” in identifying the position to which the concept of inherent requirements attaches. The applicant submitted that this term was to be construed in light of whatever specific section of Div 1 of Part 2 was relied upon by a given applicant to establish that particular discriminatory conduct is unlawful. In my opinion the phrase is used in a more precise way than that. Although the word “work” is chosen so that it is capable of covering all the situations with which Div 1 deals, the use of the adjective “particular” suggests Parliament intended a further level of precision to be applied to identifying the “work” said to carry inherent requirements. In my opinion, s 21A requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform, in the workplace. For example, in s 18(3), which deals with partnerships, the relevant prohibition at paragraph (b) (not excluded by s 21A(4)) relates to expulsion from the partnership. In order to assess the application of s 21A(1), it will be necessary to identify what “particular work” the disabled partner was performing, was asked to perform, or sought to perform. For example, was it to manage the human resources area of a partnership, or marketing, or client relations? That is the “particular work” whose inherent requirements must be identified.
The 2008 Explanatory Memorandum states at [72] that the newly introduced s 21A
substantially implements Productivity Commission Recommendation 8.4 to extend the defence of ‘inherent requirements’ so that it is available to employers in all employment situations.
It goes on to state (at [74]-[78]):
74. New section 21A extends the defence to all areas of discrimination in employment, except in:
- denying a person with disability access to opportunities for promotion, transfer or training
- denying a person with disability access to any other benefits associated with employment, and
- subjecting the person with disability to any other detriment.75. The purpose of the first exclusion is to ensure people with disability retain an entitlement to have the opportunity to seek a promotion or transfer on an equal basis with others. Thus an employer could not, by denying access to the opportunity for promotion or transfer, deny an employee with disability the opportunity to demonstrate that he or she can in fact carry out the inherent requirements of the job sought.
76. The second and third areas exclusions relate to instances of discrimination by an employer against a person who is already employed. In those instances, as the employee is already carrying out the inherent requirements of the job, the defence of inherent requirements would bear no meaning. That is, if the employee is carrying out the inherent requirements of the job, but is then denied access to a benefit or is subjected to a detriment by his or her employer (other than dismissal or a change in terms or conditions), it cannot be a defence to claim that the reason for the discrimination was that the employee was unable to carry out the inherent requirements of the job.
77. However, if an existing employee became unable to meet the inherent requirements of the job, the defence of inherent requirements would remain available to the employer should he or she decide to dismiss the employee or to change the terms and conditions of the employment on that basis.
78. An employer who denies an employee access to any other employment benefit or subjects an employee to any other detriment would continue to have available the defence that avoidance of the discrimination would cause unjustifiable hardship (see the general defence of unjustifiable hardship inserted by Item 60 (new section 29A)).The way these statements might be used to construe s 21A, and s 21A(4) in particular, was the subject of considerable argument in this proceeding. In particular, there was argument about the assumptions made in paragraph [76] of the Explanatory Memorandum concerning the circumstances in which the exclusion (in s 21A(4)) would be operating, when applied for example to provisions such as ss 15(2)(b) and 15(2)(d) of the DDA. The assumption is that an employee would be “carrying out the inherent requirements of the job” in all circumstances to which those provisions might apply.
The assumption in the extrinsic material is not borne out by the text of s 21A(4), read with a provision such as s 15(2) upon which it is intended to operate. Notwithstanding those passages in the Productivity Commission report about the desirability of extending the inherent requirements exception to the period between hiring and dismissal, it can be seen that the text of s 21A(4) precludes its extension other than to discrimination in the determination of who should be offered promotion or transfer, without any qualification that the employee must, at the time of discrimination, be performing the inherent requirements of her position. I return to the issue at [51] below in dealing with Australia Post’s submission on the operation of s 21A, because Ms Watts’ circumstances are an example of how an employee may not necessarily, at the time of the discrimination, be performing the inherent requirements of her position. Were it otherwise, the anti-discrimination provisions might substantially fail to achieve their objective. This is an example of where the words or asserted intention in extrinsic material should not be substituted for the text of the statute: see Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ, at 532 per Deane J, at 547 per Gaudron J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the “discriminator” (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the “discriminator” (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.
The respondent submits the reason for the more limited application of s 21A, as compared to s 21B, is that given in the Explanatory Memorandum: namely, that incumbent workers with disabilities are assumed to be performing the inherent requirements of their job, and so s 21A could never have any application to denial of benefits associated with employment, or the imposition of a detriment. It draws a comparison with s 15(2)(a) (where the s 21A exception is available), contending that an employer can change the terms and conditions it affords a disabled employee if that person is, because of the disability, no longer capable of performing the inherent requirements of the position.
One problem with this construction is it does not recognise that, as they are expressed, provisions such as s 15(2)(a) are also capable of applying to incumbent workers who are performing the inherent requirements of a position.
Second, there is no such clear distinction between the circumstances in which s 21A applies and those where it does not. For example the reference in s 21A(1)(a) to “promotion or transfer to particular work”, despite discrimination in respect of opportunities for promotion or transfer being at least partially excluded from the operation of s 21A by s 21A(4), does not reveal any clear intention to confine s 21A(4) to workers who are already carrying out the inherent requirements of a position. There is simply no textual support for that construction. Rather, it is aimed at preserving an employer’s entitlement to secure a core set of capabilities and performance from employees. An employee temporarily out of the workforce, or on modified duties, may nevertheless be able to perform to such a standard.
The consequences of reconciling the operation of s 21A with the terms of s 5(2) and the statutory concept of reasonable adjustments emerge from the breadth of s 5(2), when it is read with the definition of reasonable adjustments in s 4. Section 21A(1)(b), when read with this definition, must be construed as meaning that, if the employer makes (or were to make) all adjustments for the person that do not cause the employer unjustifiable hardship, and the disabled person cannot perform the inherent requirements of the particular work, only then does the s 21A exception apply. That construction imposes substantial obligations on employers, and may as I have observed give the concept of “unjustifiable hardship” more work to do in the legislative scheme than previously conceived. Nevertheless, the text of s 5(2) is clear, especially read with the definition of “reasonable adjustment”, and this construction is consistent with Australia’s obligations under the Convention.
There is a further construction question about the temporal operation of the definition of “reasonable adjustment” in the context of s 21A(1)(b), assuming it applies. Where s 21A posits that a person would be “unable” to carry out the inherent requirements of the particular work, even with reasonable adjustments, does the statute allow for the adjustments to enable the person within a reasonable time to perform the inherent requirements of the particular work, or does s 21A operate to except an employer from liability unless the adjustments immediately enable the person to perform the inherent requirements of the particular work?
Take an example divorced from the present proceeding. An existing employee of a multinational computer software company whose “particular work” requires constant use of a computer has a skiing accident which means she loses the use of her arms and hands. Technology is available through which she could learn to operate a computer with the use of a laser beam attached to her head. However, to have her trained in this, and able to use it effectively (including developing the necessary coordination), will take at least 6 months. It should be assumed for the purposes of the example that the use of the laser beam is a reasonable adjustment for the employee within the meaning of s 4 because the employer does not suggest it imposes unjustifiable hardship on the employer. Thus, it will be 6 months before she will be in a position to perform the inherent requirements of her pre-injury duties. Does s 21A(1) operate to except the woman’s employer from a claim of unlawful discrimination if it dismisses her because she cannot perform the inherent requirements of her position immediately on her return to work?
The protections intended to be delivered by the 2009 amendments to require accommodation for disabled people by way of reasonable adjustments would seem to be almost entirely undermined by a construction of s 21A(1)(b) which does not allow some time for the adjustment to take effect. This is consistent with the objective of substantive equality s 5(2) is intended to pursue. The expression of s 21A(1)(b) in the conditional tense supports a construction of “unable” which allows some time for the adjustment to take effect. That is not to say that any outer temporal limit (of a number of weeks or months or years) is implied into s 21A(1)(b), nor that a gloss such as “within a reasonable time” is to be implied. Nor is there a need to limit the meaning of “unable”. Rather, it is to recognise that, read in context, the prohibitions contained in Div 1 of Part 2 of the DDA are intended to facilitate, in a variety of circumstances, disabled people performing, or continuing to perform, work for which they are qualified and of which they are capable, whether by training, experience or both. In this sense, allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the “reasonable adjustments” made, subject in any given case to the unjustifiable hardship exception.
Several construction issues about s 15 are also raised by Ms Watts’ claims. Section 15 provides:
Discrimination in employment
(1)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3)Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
Section 15(2) is the applicable provision in this proceeding. The parties made competing submissions about the construction and scope of the matters dealt with in paragraphs (a)-(d) of subs (2). Subsection (2) takes as its premise an existing employer–employee relationship and deals with the treatment of employees in that context. That premise means there will be terms and conditions already attaching to the employment contract before any impugned conduct or treatment arises. The use of the verb “affords” in paragraph (a), expressed in the present tense, indicates that the conduct said to constitute discrimination could relate either to those existing terms and conditions, or to any changes proposed or made to them by the employer. That construction ensures there is no gap between the protection given by subs (1) to prospective employees and that given to existing employees. The use of the word “in” at the start of this paragraph is important: it indicates that paragraph (a) is directed to terms and conditions of employment (whether existing, proposed or changed) that are in and of themselves discriminatory. I agree with the submission of the applicant that paragraph (a) does not deal with the application of a term or condition to a given factual situation between an employer and an employee. Rather it looks to the nature and operation of the term and condition itself.
Bearing in mind that each paragraph should be given real and separate work to do (Baume 2 CLR 405 at 414; Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243; [2012] HCA 46 at [41] per French CJ, at [172] per Hayne J, at [450] per Kiefel J), when s 15(2)(b) speaks of “promotion, transfer or training”, it is dealing with matters outside the terms and conditions of employment. In my opinion, they are three specifically identified “benefits associated with employment”. They are not all benefits which necessarily have a pecuniary impact on an employee’s income. They are not necessarily benefits which are permanent. They are all matters which enhance and develop a person’s capacity and opportunity in her work. The use of the word “opportunities” in paragraph (b) indicates that these “benefits” are not to be seen wholly from the perspective of the employer (that is, benefits which increase a person’s value as an employee) nor are they to be seen wholly from the perspective of the employee (that is, benefits which bring personal achievement and satisfaction to the employee). Rather, they encompass both perspectives. Further, the use of the word “opportunities” distinguishes the breadth of this provision from the specific exception in s 21A(1)(a), which concerns selection for promotion or transfer.
There is a question as to how the phrase “other benefits associated with employment” in s 15(2)(b) should be construed, given that three specific benefits have been identified by Parliament. In an earlier time, the construction of a provision like s 15(2)(b) may have been immediately approached through the use of the ejusdem generis rule. I agree respectfully with the observations of Spigelman CJ in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 at [124]-[127], that what is called the ejusdem generis rule is but one example of a process of interpretation sometimes described as “reading down” the ambit of a term or phrase in a statute, and that the question of whether a phrase should be read down and, if so, how, is not to be approached by any mechanical application of a “rule” such as ejusdem generis.
Contemporary approaches to statutory construction may have reduced the role of these rules: cf Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [54] per Gummow and Hayne JJ. In any event, these rules are but methods by which apparent tensions, contradictions, or ambiguities in statutory language and purpose can be reconciled. The need to engage in such reconciliation as part of statutory interpretation has been emphasised as a core part of contemporary approaches to statutory construction (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]), but the language of reconciliation has been employed by courts for a long time to describe the process of interpretation: see R v Inhabitants of Whitnash (1827) 7 B & C 596 at 599; 108 ER 845 at 846 per Bayley J.
Similarly, contemporary approaches to statutory construction may reduce resort to descriptions such as “reading down”. Often “reading down” is no more than a convenient way to express a view that text, context and purpose suggest a word or phrase in a statute has particular limits around its construction. It is not that there is a broad meaning, which is then “read down”. The interpretation of statutory language does not involve arriving at a preliminary or likely construction, and then revising or revisiting that construction to fit with Parliament’s purpose, or the context of the provision and the statute. The choice as to construction is a single choice, arrived at by a variety of legitimate approaches. A circumstance where a construction is chosen which one might describe as a “reading down” is in reality the construction that the court has decided is the one the text, context and purpose of the statute, and its parts and provisions, requires. In that sense, there is no “reading down”: there is simply a conclusion as to construction.
That is, in my opinion, part of what Mahoney JA was identifying in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373-376. His Honour’s emphasis on text and context in preference to “rules” was prescient of the approach endorsed repeatedly by the High Court in the last decade: Project Blue Sky 194 CLR 355; [1998] HCA 28 at [69]-[71]; Alcan 239 CLR 27; [2009] HCA 41 at [47]; Lacey 242 CLR 573; [2011] HCA 10 at [43]-[44]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24]-[25]. His Honour observed (at 376) that the application of a “rule” such as ejusdem generis to conclude that a statutory phrase using general words should be given a limited or restricted construction is “not because, e.g. a genus has been found, but only because the legislative intention has already been seen to be that the general words are to be so restricted”.
In the context of s 15(2) of the DDA, whose function is to express prohibitions on certain conduct, with the purpose of protecting employees with a disability from discrimination during the course of their employment, in my opinion the identification of “promotion, transfer or training” is intended to do no more than provide specific examples of “benefits associated with employment” and is not intended to restrict or limit what might otherwise fall within the concept of “benefits associated with employment”. The language and context suggest, as I have observed above, a broad range of matters which could be “benefits”, including matters that employees may regard as benefits (such as new challenges or greater interaction with fellow employees) and those that employers might regard as benefits (such as temporary promotions to fill a gap) and those that both employers and employees might regard as benefits (such as training).
Accordingly, there is no reason to exclude from the concept of “benefits associated with employment” matters such as those identified by the applicant in this case: attending for work, performing work and exercising skills, using accrued entitlements at a time and for a purpose of the employee’s choosing (as would usually be the case with entitlements, within reasonable limits) and earning ordinary income. A similar approach in a different statutory context was taken in Quinn v Overland (2010) 199 IR 40; [2010] FCA 799 at [110] per Bromberg J. In another context, see also Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539; [2005] HCA 22 at [80] where Callinan and Heydon JJ stated:
It may be that in modern times, a desire for what has been called “job satisfaction”, and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work in fact should be provided.
The construction of s 15(2)(c) was not in issue in this proceeding, but the construction of paragraph (d) is important. The use of the word “detriment” within the same subsection as the word “benefit” indicates those terms should be taken as encompassing different kinds of conduct or treatment. The use of the word “other” in paragraph (d) makes clear that the three matters with which paragraphs (a)-(c) deal are regarded by Parliament in their effect on employees as forms of detriments. The purpose of (d) is to pick up matters not otherwise covered already in that subsection. In that sense, it is surplusage to construe paragraph (d) as a negative mirror of paragraph (b): the better approach is to see each paragraph as directed at different kinds of conduct or treatment.
Aside from a nexus between the identified “detriment” and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a “detriment” within paragraph (d) will have an immediate negative connotation: a “benefit” within paragraph (b) will have an immediate positive connotation. A “detriment” should not be identified solely by the negative expression of what is in reality a benefit.
Before applying these provisions to the facts, it is appropriate to now turn to Ms Watts’ claims, and Australia Post’s responses to them.
MS WATTS’ CLAIMS
Ms Watts’ disability
It is common ground that, at all relevant times, Ms Watts suffered from a “disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour”, within the meaning of s 4(1) of the DDA. The evidence showed there had been several diagnoses made of Ms Watts since October 2008. The different diagnoses were the subject of evidence from Ms Selvi and Dr Hollander. The former diagnosed Ms Watts as suffering from generalised anxiety disorder, acute stress disorder and insomnia, and Australia Post appeared on the evidence prepared to act on this diagnosis throughout the period Ms Watts complains about. After he saw Ms Watts, Dr Hollander’s opinion was that she suffered from adjustment disorder with mixed anxiety and depressed mood, and that by April 2012 her symptoms were in partial remission.
The applicant’s contention is that it is sufficient for the application of the provisions of the DDA for the Court to be satisfied that Ms Watts suffered at all relevant times from a psychological condition, which is a disability for the purposes of the DDA. Australia Post did not contend that the precise diagnosis of Ms Watts’ psychological condition affected the adjustments required or the resolution of the issues in this proceeding. It is sufficient to proceed on the basis that Ms Watts’ psychological condition involved elements of anxiety and emotional distress.
Ms Watt’s three contentions
The applicant has consistently characterised her case as having three contentions. They are put in the alternative to each other.
First contention
The applicant contends s 5(2) imposes a positive obligation on an employer to make reasonable adjustments for an employee. She submits that, between June 2010 and October 2011, Australia Post failed to discharge that obligation because in substance it relied on, and waited for, Ms Watts to provide evidence satisfactory to Australia Post of what she could or could not do, and until the evidence was satisfactory from Australia Post’s point of view, it did nothing proactive or positive in terms of making adjustments. It is inherent in this aspect of the claim being limited to a period up to October 2011 that the applicant accepts Australia Post did take some positive steps when, in mid-October 2011, it formally directed Ms Watts to attend for a medical appointment with Dr Hollander, and made arrangements for that appointment, so that Dr Hollander could assess whether she was fit to return to her role as a bid manager, and how that might be achieved.
The applicant submitted:
An employer cannot discharge its obligation under section 5(2) by shifting responsibility for determining whether reasonable adjustments can be made to the employee. Further, that the employee cannot identify a reasonable adjustment, or that an adjustment identified is not reasonable, does not alter the positive obligation on the employer to make reasonable adjustments. An employer is obliged to undertake its own enquiries and to make its own assessment as to whether reasonable adjustments can be made. An employer is not entitled to place responsibility for identifying reasonable adjustments on the worker.
Notwithstanding this submission, the applicant identified at least two reasonable adjustments which could have been made. First, to implement a return to work program. Second, to provide restricted duties in accordance with the terms of Australia Post’s non-work related medical restrictions policy.
Between June 2010 to October 2011, all Australia Post did, according to the applicant, was rigidly adhere to the terms of the policy, and attempt to force the applicant to provide information to the employer about how and when she could return to her role as bid manager. That is, Australia Post’s entire focus was on insisting Ms Watts comply with the policy. Although the applicant conceded that, during this period, Australia Post did take some steps (such as in November 2010 making an appointment for Ms Watts with Dr Hollander on 4 February 2011, and conducting what Australia Post described as an internal “reasonable adjustments assessment” in March 2011), the applicant submitted Australia Post “simply let the matter drift”, placing primary responsibility on Ms Watts herself to identify whether reasonable adjustments could be made and what they were.
Second contention
This aspect is based on a less robust construction of an employer’s obligation in s 5(2). Ms Watts contends that, in each of June 2010 and February 2011, Ms Watts identified reasonable adjustments which could be made by Australia Post to allow her to return to work, and to return to her role as a bid manager. Australia Post, it is contended, failed to make the reasonable adjustments identified.
On approximately 22 June 2010, Ms Watts provided Australia Post with a report from Ms Selvi, her treating psychologist. The report was quite general, but the applicant submitted it was sufficiently clear in its terms to indicate to Australia Post how Ms Watts’ return to work could be managed, and she submitted it indicated she could be back in her full role as bid manager after two to three months of working under some restrictions.
Then, Australia Post having asked for further clarification from Ms Selvi, in February 2011 Ms Selvi provided a second report. It was delayed because of injuries suffered by Ms Selvi in a car accident, and Ms Watts’ insistence that no-one but Ms Selvi could provide such a report to Australia Post. Australia Post at this stage did not seek to compel Ms Watts to see another medical practitioner. Ms Selvi’s second report contained more information, but still not enough to satisfy Australia Post. Australia Post’s “reasonable adjustments assessment” undertaken by employees at Australia Post in March 2011, after receipt of Ms Selvi’s second report, concluded that the adjustments recommended by Ms Selvi could not be accommodated. Ms Watts submits that, in respect of both Ms Selvi’s reports, their non-implementation by Australia Post constituted a failure to make reasonable adjustments for the purposes of s 5(2) of the DDA.
Third contention
The third aspect of the applicant’s case is a confined contention, essentially about the delay she alleges occurred in Australia Post implementing the recommendations of its own independent medical specialist, Dr Hollander. This aspect covers the period between 23 April 2012 (the date of Dr Hollander’s report) and 30 July 2012, when Ms Watts returned to work for Australia Post. The applicant accepts that, by allowing Ms Watts to return to work in accordance with the recommendations made by Dr Hollander, Australia Post discharged its obligation under the DDA to make reasonable adjustments for her disability in her employment with Australia Post. However, she contends the three-month time gap between when Australia Post was informed of the reasonable adjustments which should be made, and when Australia Post made them (by allowing Ms Watts to return to working in accordance with Dr Hollander’s recommendations) should be characterised as a failure to make reasonable adjustments for the purposes of s 5(2) of the DDA.
Less favourable treatment
Whichever of the three contentions is considered, Ms Watts submits the treatment she experienced was less favourable than another employee of Australia Post in similar circumstances. The applicant put forward two comparators. First, an employee of Australia Post in a role such as bid manager, without a disability, who has been away from work for some time but is ready, willing and able to work. Second, an employee of Australia Post in a role such as bid manager, with a different disability, who is off work because of that disability, but is ready, willing and able to return to work with reasonable adjustments.
As to the first comparator, the applicant submits Australia Post would have allowed such an employee back to work.
As to the second comparator, the applicant submits the policy would have been applied to another employee differently, by allowing that employee to return to work on restricted duties until the employee could return to their full and usual role.
In neither case, the applicant submits, did Australia Post treat Ms Watts in these ways. Instead it directed her to remain away from work.
The only reason for Australia Post’s direction that Ms Watts remain away from work was, she submits, her disability (namely her psychological condition).
Contravention of section 15(2)
The discrimination identified by the applicant was contended to be unlawful because it was prohibited by either or both of s 15(2)(b) and s 15(2)(d) of the DDA.
The applicant’s case was that Australia Post had contravened s 15(2) of the DDA, by failing to make reasonable adjustments for her disability in the way it required her to return to her position as bid manager. Given how both parties’ arguments developed by the time of final submissions, it is necessary to rehearse the way the parties’ arguments about the contravention of s 15(2) were put. The applicant’s case was put in her written outline of submissions before trial by reference to ss 15(2)(b) and (d). This reflected the way the matter was pleaded in the amended statement of claim filed on 18 February 2013. The respondent’s outline of submissions before trial did not cavil with those references. In opening at trial, the applicant’s counsel also relied on ss 15(2)(b) and (d). In her opening, the respondent’s counsel did not dispute that the respondent’s actions in preventing Ms Watts from attending work, earning income and exercising her skills could be characterised as a detriment, although she submitted Australia Post did not accept that there was a benefit to be derived from attending for work, in and of itself. Instead, the respondent relied upon the inherent requirements exception in s 21A, in particular, that the adjustments identified by Ms Watts as “reasonable adjustments”, even if they could properly be identified and implemented, would not have enabled Ms Watts to perform the inherent requirements of the bid manager role. For present purposes it is important that neither in its defence nor in submissions before trial, nor in opening the respondent’s case at trial, was it suggested by Australia Post that Ms Watts claims were to be assessed other than by reference to ss 15(2)(b) and (d).
It is fair to say that before trial, during opening and during the trial, the focus of both parties in terms of the relevant and critical aspects of the legislative scheme was on the construction and application of s 5(2), and parts of s 21A. By the time final written submissions were filed, it was clear both parties, and especially the respondent, had realised the importance of s 21A(4) and the fact that it excluded from the terms of the exception created by s 21A any discrimination referred to in ss 15(2)(b) and (d). In other words, on the applicant’s case as it was pleaded and argued, s 21A could not assist the respondent.
This led the respondent, in final submissions, to submit that Australia Post’s conduct should be characterised as, if anything, a contravention of s 15(2)(a). This then would make the exception in s 21A available to Australia Post. The applicant objected to the respondent’s introduction of s 15(2)(a) at the stage of final submissions. She submitted there was prejudice to the applicant in the Court accepting the respondent’s invitation to find that, if there was a contravention of s 15(2) by Australia Post, it was a contravention of s 15(2)(a). The prejudice was fourfold. First, the applicant had made no submission to the Court on relevant authorities dealing with the construction of the phrase “terms or conditions of employment”. The applicant submitted that construction of the same phrase, as it appears in other legislative schemes, may assist the Court in interpreting s 15(2)(a) of the DDA. Second, the applicant submitted she did not have the opportunity to call evidence with respect to the terms and conditions of her employment, including evidence about any oral terms of her employment contract, nor about whether any of the many workplace policies of Australia Post, or any relevant enterprise agreement that may have been in existence, were incorporated into her contract of employment. Third, the applicant objected to the respondent’s reliance on the new argument on the basis that the respondent had not properly identified the relevant terms or conditions of employment it said brought the respondent’s conduct within s 15(2)(a). If the respondent was allowed to proceed with this argument, the applicant submitted, it must be required to clearly articulate the relevant terms or conditions, so that the applicant could properly meet the arguments put against her. Finally, the applicant submitted that the respondent had conceded in its opening that the particular conduct in question, preventing the applicant from attending work, earning income and exercising her skill, constituted a detriment. She says now that the respondent should not be able to, after that concession, put its case differently in final submissions.
I accept those submissions. A party should be held to the case it has pleaded and run throughout a trial, unless all parties agree, or the interests of the administration of justice require otherwise: Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 per Mason CJ and Gaudron J; Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 at [305] per Keane CJ, Lander and Besanko JJ. This has been a proceeding conducted over two years, no doubt at considerable cost to both parties, who have each been legally represented on both sides. The case as substantively pleaded by the applicant is the case she put to the Court for determination, and the case the respondent sought to meet. There was little or no evidence about the contractual and employment arrangements between Ms Watts and Australia Post so as to provide an evidentiary foundation for s 15(2)(a) to be considered. That is not surprising, so far as the applicant is concerned, since her case has always been restricted to a contention that Australia Post’s conduct contravened ss 15(2)(b) and (d). That is the case she has consistently advanced and the proceeding stands or falls on the success of those contentions.
It is not in dispute that Dr Saranathan had been providing similarly worded medical certificates in respect of Ms Watts for the period she was working with Mr Schell. It is also not disputed that he continued to provide medical certificates once she was directed to go on leave by Ms Scott-Brown in June 2010 . Most of those certificates were not in evidence, but Ms Garrad’s evidence was that the certificates stated that she was fit to return to the full duties of her nominal position on reduced hours, but subject to Ms Selvi’s prescribed restrictions. This accords with emails from Ms Scott-Brown which were in evidence.
However, the certificate which was relied on by Australia Post for its contention (that Ms Watts had never been certified as fit to return to her position as bid manager) assists Ms Watts’ arguments rather than those of Australia Post. It is dated 5 May 2010 and covers a period of a month from that date. In form, it is a certificate used for workers’ compensation claims, although clearly that is not the use to which it was being put for Ms Watts. It described the injury or illness as “Mishandling of selection process for development Program. Significant Depression and Anxiety leading to Insomnia”. It describes Ms Watts’ type of work as “Bid Consultant”. It certifies that she is “Fit for modified duties” from 5 May 2010 to 2 June 2010, with restrictions specified as “5-7.35 hours per day, Mon-Fri. RTW must take into consideration Andrea’s medical and psychological needs as specified in the letter from Muradiye Selvi”. It sets a next review date of 3 June 2010. I infer Dr Saranathan was aware Ms Selvi would shortly be supplying a report to Australia Post. The evidence is that 7.35 hours per day is full-time hours. This medical certificate was contemplating Ms Watts could work full-time hours. It placed no inflexible restrictions on the way she needed to perform her work, but rather advised her employer to “consider” Ms Watts’ medical and psychological needs as Ms Selvi described them.
There is nothing in the contents of this certificate which could support a contention that Ms Watts’ treating GP was advising she could not remain at work with reasonable adjustments, or which supported the need for a direction that she stay away from work on sick leave. Quite the contrary. That is why s 5(2)(b) is made out — without Australia Post supplying those reasonable adjustments, the effect was that Ms Watts was unable to return to her position as bid manager.
A final point should be made about the analysis required by s 5(2). The focus of s 5(2) on the effect of not making reasonable adjustments, as distinct from the focus of s 5(1) on the reason for a person’s treatment, means that it is unclear what role s 10 of the DDA has to play in any application of s 5(2). In my opinion, it may be very little, but that is not a matter I need to decide in the present case.
Section 5(2)(b) requires, as I have outlined, an effect of the failure to make reasonable adjustments to be identified. That is a factual question. Here, the effect I have identified on the evidence is twofold. First, the failure to make reasonable adjustments prevented Ms Watts from returning to her role as bid manager when Australia Post wanted her to do so in and from February 2010. In turn, the second effect was that Australia Post directed her to remain away from work, using up her leave, as it was not satisfied she could return to her position as bid manager. Those effects of Australia Post’s failure to make reasonable adjustments continued for so long as Ms Watts was willing and ready to return to work, and resulted in less favourable treatment of Ms Watts than a comparator employee.
Nevertheless, in my opinion there was a point at which, on the facts of this case, those effects of Australia Post’s failure to make adjustments ceased. There came a point at which it was not Australia Post’s refusal to modify temporarily Ms Watts’ working hours, or alter temporarily the contents of the role she was performing, that was keeping her away from work. There came a point at which it was not Australia Post’s refusal to modify temporarily how Ms Watts could deal with workplace stressors or workload pressures that was keeping her away from work. Rather, there came a point at which what was keeping her away from work (and compelling her to use up her leave or take leave without pay) was her own lack of cooperation with her employer, and thus her own willingness and readiness to return to work. That point was reached when, having had a long list of questions about why she needed to see Dr Hollander answered, Ms Watts still refused to see him.
The first appointment for Ms Watts to see Dr Hollander was scheduled for 4 February 2011. As I set out at [184] above, Ms Watts had communicated some concerns to Australia Post about the necessity for this appointment, and suggested that it be postponed. This, it must be remembered, was prior to Ms Watts providing Australia Post with the second report by Ms Selvi, on 21 February 2011. At this stage, Ms Watts was asking Australia Post to accept Ms Selvi’s advice and recommendations. These events also occurred in the context of Australia Post undertaking a “reasonable adjustments assessment”, which I describe in more detail at [192]-[196] above. However, by April 2011, the “reasonable adjustments assessment” process within Australia Post had concluded, Ms Watts had provided Ms Selvi’s second report to Australia Post and been told by Ms Scott-Brown that the report was unsatisfactory for its purposes. Yet, Ms Watts still refused to attend an appointment with Dr Hollander. In my opinion, it is at this point, in late April 2011, that Ms Watts’ lack of cooperation and lack of willingness and readiness to return to work resulted in the effect that Ms Watts was kept away from work. It was no longer Australia Post’s failure to make reasonable adjustments which had the effect of keeping Ms Watts away from work.
In making this finding, I have relied on the following evidence. First, Ms Watts’ refusal, in writing to Australia Post on 21 April 2011, to see Dr Hollander at her scheduled appointment on 29 April 2011 (to which I refer in more detail at [197] above). Second, her continuing refusal, I infer, between April and October 2011, to cooperate in securing an appointment with Dr Hollander. Third, following a formal written direction to Ms Watts that she attend an appointment with Dr Hollander, made by Australia Post on 13 October 2011, Ms Watts’ continued unwillingness to attend appointments made for her with Dr Hollander, demonstrated by her ongoing debate with Australia Post about the lawfulness of its direction, and her insistence that appointments made for her with Dr Hollander be rescheduled (set out at [198]-[201] above).
Although the direction to take leave remained in place, the period between 21 April 2011 when Ms Watts refused in writing to see Dr Hollander, and when she in fact did see him in late April 2012, was a period out of the workplace because of Ms Watts’ lack of cooperation. It was no longer the effect of Australia Post’s failure to make reasonable adjustments for her psychological condition. It was the effect of her own, uncooperative, decision-making. By this stage she was not, I find, willing and ready to return to work. She had become, for her own reasons (about which I need not and do not make any findings) fixated on securing a resolution to her return to work on her terms and only on her terms. That resolve only broke down when she was faced with the possibility of losing her employment due to non-compliance with her employer’s direction, and even then she complied under much protest.
If Ms Watts had complied in a timely fashion with Australia Post’s request to be independently assessed by Dr Hollander, then what occurred in April 2012 through to July 2012 would, I am prepared infer and to find, have occurred in April 2011 through to July 2011. Ms Watts could have been back at work by the end of July 2011 instead of the end of July 2012.
Accordingly I find there was discrimination within the meaning of s 5(2) of the DDA between 18 May 2010 and 21 April 2011, but not between 21 April 2011 and when Ms Watts returned to her bid manager position on 31 July 2012.
Was the discrimination unlawful?
In my opinion there were contraventions of s 15(2)(b) of the DDA as contended by the applicant. The matters Ms Watts has identified (see [66] above) are benefits associated with her employment. They are the kinds of matters that an employee would usually enjoy and secure through attendance at the workplace and participation as a productive member of a workforce. Bearing in mind that these terms are to be seen neither from the exclusive perspective of the employer or the employee, these are positive outcomes an employee could ordinarily expect to enjoy and receive from attendance at work. Since they are essentially positive matters, they are within s 15(2)(b) rather than s 15(2)(d), in my opinion.
In her applications and consolidated amended statement of claim dealing with both proceedings, the applicant nominated a variety of dates on which she alleged the unlawful discrimination began. However, by the time of trial and in final submissions, it was clear that she sought relief in respect of loss from June 2010 through to 30 July 2012. That is the case to which Australia Post responded. I have taken the reference to June 2010 to mean the direction given to Ms Watts on 29 June 2010 that she take sick leave and remain away from work. Accordingly, despite my finding that there was discrimination from 18 May 2010, it is not appropriate on the applicant’s case as it was articulated at trial to grant any relief for the period 18 May to 28 June 2010.
CONCLUSIONS ON APPLICANT’S SECOND ARGUMENT
Given my findings on the first argument, it is not necessary to determine the narrower ground relied on by the applicant, in relation to the periods June 2010 – February 2011, and February 2011 – June 2012. This ground is based on Ms Watts having identified reasonable adjustments through the two reports by Ms Selvi, and so dates from the time of Ms Selvi’s first report.
For reasons I have outlined above, the adjustments were available from before the time Ms Scott-Brown decided that the policy should be applied to Ms Watts. There was no attempt by Australia Post to replicate how Ms Watts was working with Mr Schell within the bid management team, nor to approach Ms Watts (and Ms Selvi) to see how Ms Watts might restart working in the bid management team with the kind of transition that resulted in her successfully working with Mr Schell. There has been no suggestion that any of the kinds of adjustments proposed (including those rejected by Australia Post in its internal assessment in March 2011) imposed unjustifiable hardship on Australia Post, nor could that reasonably be suggested. The failure to make reasonable adjustments had the effect required by s 5(2)(b) but, as I have explained above, only until April 2011, and not thereafter. Those findings apply equally to the applicant’s second argument and do not alter the period over which there was unlawful discrimination.
CONCLUSIONS ON APPLICANT’S THIRD ARGUMENT
Similarly, this much more confined argument need not be determined in light of the findings I have already made. I have already found that, between Dr Hollander’s report and Ms Watts’ return to work in July 2012, reasonable adjustments were available in Australia Post’s workplace for Ms Watts. I have also found those adjustments had always been available. There was no vagueness about them which was not inherent in the kinds of adjustments they were. Neither Ms Selvi nor Dr Saranathan ever expressed any of their recommendations in absolute terms. No-one suggested Ms Watts could never be subject to a tight deadline for the first three months. The recommendation was to “avoid” them. These kinds of qualitative recommendations are to be expected when one is dealing with a psychological condition and a transition back into the role in which the illness previously arose. Dr Hollander’s report in a sense recognised this, including recognising what Ms Watts was, and had always been, capable of doing.
However, if I am wrong about my conclusions on the first and second argument, then in my opinion it is clear that there was no unlawful discrimination by Australia Post in the period after it received Dr Hollander’s report.
The phrase “does not make … reasonable adjustments” should, as I have observed at [30] above, be construed as incorporating some time for consideration and implementation of reasonable adjustments by the discriminator. That, in a sense, is why the alternative of “proposes not to make reasonable adjustments” is present. A discriminator would no doubt be considered to be “proposing” to make reasonable adjustments if, over a short period of time, it had accepted its legal responsibility to do so and was planning and arranging implementation of them. That is the situation in this proceeding, certainly by Australia Post’s letter of 21 May 2012. In that letter, Australia Post states that it received Dr Hollander’s report on 9 May 2012. The interval between 9 and 21 May is the kind of period the legislation contemplates for a discriminator to accept legal responsibility and consider implementation. This scheme must be given a practical effect.
DOES THE EXCEPTION IN SECTION 21A APPLY?
For the reasons I have set out above, it is clear that s 21A(4) excludes s 21A from having any operation in relation to discrimination which is unlawful by reason of ss 15(2)(b) or (d).
I have already expressed my reasons why it is not appropriate to consider the submission that the application of the policy to Ms Watts involved any change in the terms and conditions of her employment, such as to engage s 15(2)(a) and therefore s 21A.
LOSS AND DAMAGE
Section 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) empowers the Court to grant relief when it is satisfied there has been unlawful discrimination by a respondent. Relevantly, it provides:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
…
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
…The provision grants plenary power to the Court to make orders “as it thinks fit”. In particular, subs 4(d) provides the Court with a “wide discretion as to the amount of compensation the Court may order for loss or damage suffered because of unlawful discrimination”: Ewin v Vergara (No 3) [2013] FCA 1311 at [601] per Bromberg J. The Court’s exercise of that discretion is to be governed by the text of the relevant statute: Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ. The principles relevant to the assessment of damages in tort may be of assistance (see Hall v A & A Shieban Pty Ltd (1989) 20 FCR 217 at 239 per Lockhart J, at 281 per French J), but only to the extent that they do not conflict with the words of the statute: Ewin [2013] FCA 1311 at [604] per Bromberg J.
An order for compensation may be made for “any loss or damage suffered because of the conduct of the respondent”. Phrases such as “by reason of”, “because of” and “by virtue of” require a “practical application of causation principles”: Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213. A phrase like “because of” “implies a relationship of cause and effect” between the unlawful conduct of the respondent and the damage incurred by the applicant: see Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 321 per Lockhart J; Ewin [2013] FCA 1311 at [605].
The parties have agreed on the calculations of specific loss of leave entitlements, income while on unpaid leave and loss of opportunity of bonuses, filing a spreadsheet reflecting that agreement.
The applicant submitted an appropriate way to compensate her for the loss of her leave was to order that Australia Post re-credit it. Australia Post did not submit there was no power to make such an order. I am satisfied there is power to make such an order under either s 46PO(4) or under s 23 of the Federal Court of Australia Act 1976 (Cth). Since I have found that one of the benefits which Ms Watts has been denied is the choice to use her sick and recreation leave as she needed or chose to, orders to re-credit that leave most closely reflect the kind of compensation which is consistent with my findings. It will, as much as an order operating on past conduct can, restore Ms Watts to the position she would have been in, had the unlawful discrimination not occurred. There should be a discount of 50% in respect of her sick leave re-credit, to take into account the likelihood that Ms Watts would have accessed quite a lot of her sick leave, even if she had returned to the bid management team. The evidence about her past use of sick leave during her return to work predominantly with Mr Schell after October 2008 supports this finding.
There is no evidence about the pattern of Ms Watts’ use of recreation or annual leave other than that, based on the amount she had to her credit and available to be used during 2010-2012, she did not previously take all her leave entitlements annually. There should be a discount of 25% applied to annual leave to be re-credited, on the basis she would have used some of that leave. If Ms Watts had entitlements to long service leave, they should be wholly re-credited, because there is no evidence to suggest she would otherwise have accessed that leave.
Ms Watts may have been entitled to compensation for loss of income during any period of unlawful discrimination where she had to take leave without pay. However, on the evidence it appears that she did not use up her paid entitlements until 4 August 2011. Since I have found there was no unlawful discrimination after 21 April 2011, Ms Watts is not entitled to compensation for loss of income.
If I was wrong in the conclusions I have reached at [241] to [268] above about when the effects of Australia Post’s failure to make reasonable adjustments cease, and therefore when the discrimination ceases, I would in any event have found that Ms Watts failed to mitigate her losses, or failed reasonably to avoid further damage by way of economic loss, by her lack of cooperation with her employer in attending for a medical examination with Dr Hollander on and from April 2011.
In my opinion, Ms Watts’ conduct was unreasonable in not attending to see Dr Hollander promptly after she was requested to do so by Australia Post, and after all her extensive questions about why she needed to do so had been answered. The evidence discloses no good reason at all for her prevarication about appointments made on her behalf. Her subsequent conduct in April 2012 attending for and participating responsibly in an appointment with Dr Hollander can only be explained, I find, by her finally realising her employment itself was in jeopardy because of her lack of cooperation. Australia Post should not have had to reach a point in its working relationship with Ms Watts where it had to resort to such a direction, but her lack of cooperation finally brought the matter to that level. The evidence discloses that none of the reasons she initially gave for not attending with Dr Hollander ended up in fact operating as impediments to her attendance.
In the context of other statutory compensation schemes, a failure reasonably to avoid damage has been held to justify refusal to order compensation even though the contravention may have continued for longer than the period covered by the award of compensation. The relevant authorities mostly concern s 82 of the Trade Practices Act 1974 (Cth) (TPA). For example, in Murphy v Overton Investments (2001) 112 FCR 182; [2001] FCA 500 at [47], Branson J held (RD Nicholson J agreeing):
an applicant will not recover under s 82 of the TPA loss or damage which he or she could reasonably have avoided (Finucane vNew South Wales Egg Corporation (1988) 80 ALR 486 per Lockhart J at 519; Leigh Enterprises vTranscrete Pty Ltd (1984) ATPR 40-452 per Fitzgerald J at 45,234; Brown v Jam Factory Pty Ltd (1981) 53 FLR 340 per Fox J at 351). While the authorities speak of a duty to mitigate loss, the basis of that duty is to be found, in my view, in the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered “by conduct of another person”. Where any loss or damage could reasonably have been avoided, it is, in the context of s 82 of the TPA, to be regarded not as loss or damage suffered by reason of the conduct of another, but loss or damage suffered by reason of the unreasonable conduct of the applicant.
Section 46PO(4)(d) is expressed in terms similar to s 82 of the TPA. It provides that the Court may make “an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent”.
A similar approach was taken to an equivalent compensation provision by the New South Wales Administrative Decisions Tribunal in Smith v Department of Education and Communities [2013] NSWADT 162.
In my opinion, between April 2011 and April 2012, any economic loss suffered by Ms Watts was not because of the conduct of Australia Post: it was because of her unreasonable and to my mind inexplicable lack of cooperation in attending Dr Hollander for a medical examination when asked.
The applicant sought to have an amount awarded in respect of her superannuation entitlements. What that order might be was not specified by the applicant.
There is no evidence before the Court about Ms Watts’ superannuation entitlements, nor what occurred to them between May 2010 and April 2011, given she was on some form of leave during that time. The applicant, having failed to adduce any evidence about whether she has sustained a loss of entitlements of this nature, or to quantify them, has failed to discharge her burden of proof in relation to this category of loss and no award should be made.
Ms Watts also claimed by way of compensation an order that Australia Post pay her bonuses she maintained she would have earned had she been at work as a bid consultant. The amounts were calculated by reference to bonuses previously paid to Ms Watts. Australia Post submitted that there should be no compensation for lost bonuses because Ms Watts has not proven she would have been entitled to such bonuses. Ms Psarologos’ evidence was that only employees with a performance rating of about 3 and above were awarded bonuses. After her return to work in July 2012, his evidence was that Ms Watts was given a performance rating of 2 for the 2012/13 year. I accept that evidence. In my opinion, even if she had been at work for those two years (and, contrary to my findings, was subject to unlawful discrimination for that whole time), it is likely on the whole of the evidence that Ms Watts would have been working at less than her full capacity for much of the time, and that she may have had periods where she had ongoing difficulties at work affecting her performance. There was evidence that had occurred in the period between her return to work in 2008 and her direction onto sick leave in May 2010. For example, Mr Schell annexed to his affidavit a series of emails from Ms Watts between 12 February 2009 and 16 July 2009 where Ms Watts sought reductions to her working hours from time to time. I am not prepared to find on the balance of probabilities that she would have had a performance rating at 3 or above such as to entitle her to a bonus.
Finally, Ms Watts is entitled to compensation for the stress, anxiety and disruption the unlawful discrimination has caused. In her own evidence, Ms Watts describes the effect of Australia Post’s conduct on her in the following way:
I was willing and able to return to my work as a Bid Consultant (on a graduated adjusted basis) during the whole period from the provision of the first Selvi report until my actual return to work in 30 July 2012.
The long delay in providing a return to work program for me has had a terrible effect. I felt rejected and sidelined. My life was put on hold for over two years and I was unable to apply my skills as a Bid Consultant. The long drawn-out delay did nothing to assist me in my recovery from the psychological injury which had given rise to the need for a return to work program.
The way I was treated was humiliating and disrespectful. I have been a very good and loyal employee of the Respondent. I consider that I have performed well for Australia Post. I have never been subject to discipline for poor performance or misconduct. I have never come close, apart from the threats made to me because of my resistance to another medical examination by Dr Hollander.
She was not cross-examined on this evidence and I accept it, to the extent it relates to events until April 2011.
In a report annexed to her affidavit given in this proceeding, Ms Selvi describes the effect of Australia Post’s conduct on Ms Watts, as she observed Ms Watts, in the following way:
I have had the opportunity to work with Ms Watts over an extended period of time and feel confident in my assessment of her as a highly motivated and enthusiastic woman who’s primary goal over this period of time has been to return to her former position with Australia Post. … Ms Watts prides herself and values the work ethos …. Her sense of self worth and self esteem revolve around her ability to work as a valued member of society. She places great worth and value on her ability to work and be productive. These are values that she has voiced throughout the time that I have been working with her.
…
Having had extensive experience with injured workers, I am acquainted with how difficult it is to motivate workers after an injury to make the attempt to return to work. Both medical treatment providers, the employer and insurance companies must invest in vast resources to motivate injured workers back to work and have to deal with serious barriers. In respect to Ms Watts she has been keen and motivated to get back to work within 3 months of her injury, her attitude about returning to her former position with Australia Post was the same from the start …It was anticipated in early 2010 that psychological intervention with Ms Watts would reduce by mid 2010 and end within few months as she was making great progress at work and had further anticipated that once pending mediation took place and some legal issues resolved that she would be back at her pre injury position and that her life would return to normal.
Unfortunately this is not what happened. The decision taken by Australia Post in early 2010 to consider Ms Watts’s medical restrictions as ‘Non Work Related Medical Restriction’ caused a major regression in her overall mental health and emotional stability and seriously impacted upon her sense of self-esteem and self-confidence. She was concerned and worried about loosing her job and not having the opportunity for gainful employment. She was confused, agitated and felt a sense of injustice about what she was going through.
…
It is my opinion that Ms Watts suffered … psychological turmoil and emotional distress for over 20 months as she waited with feelings of helplessness and hopelessness not knowing about the direction of her vocational future which she felt were in the hands of Australia Post.This part (as well as other parts) of Ms Selvi’s affidavit was subject to an objection by Australia Post. After hearing submissions and following some concessions on behalf of the applicant, this part and some other parts were admitted. Thereafter, Ms Selvi was not cross-examined on it. I accept her evidence in these paragraphs.
In her second report of February 2011, Ms Selvi also described the effect of the unlawful discrimination on Ms Watts, as she had observed it:
Throughout my involvement with Ms. Watts, which has extended over a period of two and half years I have found her always to be highly motivated to help herself overcome her predicament and she took an active part in all areas of her rehabilitation. In particular she has always been dedicated and motivated for a viable return back to her job which she enjoys and values as the most important thing in her life.
Having gained substantial benefit from for psychological rehabilitation Ms Watts used the opportunity to negotiate a return back to Australia Post and by late October 2008 she was back at work with a vision to gradually return to her pre injury position and normal working hours.
Over the course of the next 12 months Ms Watts condition in respect to psychological health continued to improve as she increased her working hours and was gradually taking on more responsible duties.
Despite the workplace stressors in respect to her return to work plans, Ms Watts used the strategies she had developed in her psychological sessions to cope with these and focus on trying to improve the quality of her life and return to her full time employment at her usual occupation.
In fact, as stressful as it was for Ms Watts to have to deal with, she was preparing for mediation which she accepted was a vital step towards recovery and the opportunity to move on in her career which was very important to her.
Ms Watts was progressing very well and it was anticipated that by mid 2010 she would be working normal hours and possibly at the same level of work which she was performing before her injuries. However, work place issues relating to ‘NON WORK RELATED MEDICAL RESTRITIONS’ made in early 2010, unfortunately halted both her vocational and psychological rehabilitation.
Ms Watts attended her sessions during this period very distressed and once again disillusioned about the way she was being treated, she simply wanted to get on with her life and her job at work but expressed that she felt victimised and hurt by what was happening. She once again was exhibiting symptoms of anxiety and the sleep problems which had resolved, had once again become a problem.
Given her level motivation and determination despite the new stressors which confronted her, she was able to cognitively reappraise her situation and developed coping strategies to allow her to remain at her job and to gradually work towards her goals of increasing her hours and meeting the inherent requirements of her pre injury position.
Hence, on the 16th of June 2010 Ms Watts was cleared to continue to work six hours each day performing the duties which she had been performing while she had been back at her job which she had reported was a an A05 level.
I also accept Ms Selvi’s evidence to the extent she observed a tangible effect on Ms Watts from Australia Post’s conduct and a regression in terms of the symptomatology of her psychological condition. However, throughout this period Ms Watts also presented a determined, sustained and forceful opposition to Australia Post’s management of her return to work. That is evident in all the correspondence before the Court. There was also evidence of Ms Watts attending meetings with Australia Post in which at least some Australia Post employees had asserted she was somewhat overbearing. She was dealing regularly and productively with her union representatives. Most importantly of all, her evidence to the Court was, and her representations to Australia Post were, that at all times throughout this period she was ready, willing and able to return to work (with appropriate modifications). This is not an employee who was so wholly undone by the treatment of her employer that she was unable to work. Quite the contrary. Further, I find Ms Watts has a great deal of strength of character and dealt reasonably well with the way Australia Post treated her, preferring to stand her ground and insist on what she believed she was entitled to. By the time she saw Dr Hollander, his opinion was that her psychological condition was in partial remission and her health had improved. Further, I find that some of her distress and anxiety was of her own making: that is, by reason of her uncooperative and stubborn approach to her employer’s requests for information. Not all her distress and anxiety was caused by the unlawful discrimination.
For those reasons, and taking into account my finding that the compensable period is 18 May 2010 to 21 April 2011, I do not consider a large award for distress, hurt and humiliation is justified. I award her $10,000 for this head of compensation. Since the second proceeding included allegations of a continuation of the discrimination alleged in the first proceeding, as well as new discrimination after February 2011, I consider it appropriate to award the compensation in the second proceeding.
In the originating applications filed for each proceeding, further non-pecuniary orders were sought. Some, such as orders seeking that the applicant be returned to work in her pre-injury role with the respondent (sought in the first proceeding filed on 13 December 2011, prior to Ms Watts’ return to work in July 2012) and orders that the respondent organise and pay for a mediation between Ms Marshall and the applicant, are no longer relevant to the proceeding. Others, such as orders that the respondent reimburse the applicant for costs associated with obtaining medical information, an order that staff of Australia Post who work with Ms Watts undertake disability awareness training, and an order for a formal written apology from Australia Post to Ms Watts, were not pursued in written submissions or at trial and, on that basis, I do not propose to make those orders.
No declarations were sought by the applicant in her originating applications. However, given that the Court has allowed the applicant’s claim only in part, in my opinion it is appropriate to grant declarations with respect to the precise dates of contravention of the DDA by the respondent, in each proceeding as applicable.
The parties will be given a short period of time in which to prepare proposed orders reflecting my reasons, including proposed orders as to costs.
I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 11 April 2014
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