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 2012
Judge:
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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Watts v Australian Postal Corporation [2014] FCA 370
Case
[2014] FCA 370
Decision Date
CaseChat Overview and Summary
In the case of Watts v Australian Postal Corporation, the plaintiff, Ms Watts, brought a claim against Australia Post for unlawful discrimination under the Disability Discrimination Act 1992. Ms Watts alleged that Australia Post failed to make reasonable adjustments to accommodate her psychological condition, which led to discrimination. The dispute reached the Federal Court of Australia, where Justice Bromberg was tasked with determining the legal issues and the outcome of the case.
The primary legal issues in this case involved the interpretation of the Disability Discrimination Act and the extent to which Australia Post was required to make reasonable adjustments for Ms Watts. The court needed to determine whether Australia Post had discriminated against Ms Watts by failing to make adjustments as required by the Act, and if so, the duration of such discrimination. Additionally, the court had to consider whether Australia Post's actions were covered by an exception under section 21A of the Act.
Justice Bromberg concluded that Australia Post did fail to make reasonable adjustments for Ms Watts, resulting in unlawful discrimination. The court found that these adjustments were available and feasible from before Ms Scott-Brown decided to implement the policy affecting Ms Watts. The court emphasised that Australia Post did not attempt to replicate Ms Watts' working style or consult with her regarding a suitable transition back into the bid management team. The court also noted that there was no evidence suggesting that the proposed adjustments would impose unjustifiable hardship on Australia Post. The period of unlawful discrimination was found to be until April 2011, after which adjustments were eventually made. The court further concluded that there was no unlawful discrimination after Australia Post received a report from Dr Hollander in May 2012, as the period between receiving the report and implementing the adjustments was reasonable.
The court's findings led to the conclusion that Australia Post had indeed discriminated against Ms Watts, but only for a limited period. The court also considered whether the exception in section 21A of the Act applied, but did not find it applicable in this case. The final orders of the court would reflect these findings, addressing the unlawful discrimination period and any other relevant matters stemming from the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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?