X v Commissioner, Community Services Commission

[1999] NSWADT 26

CITATION:	Dayton v Director General, Department of Education & Training [1999] NSWADT 26
DIVISION:	Equal Opportunity
APPLICANT:	Marie Dayton
RESPONDENT:	Director General, Department of Education & Training
FILE NUMBER:	142 of 1997
HEARING DATES:	04/19/1999; 04/20/1999
SUBMISSIONS CLOSED:	04/20/1999
DATE OF DECISION:	20 April 1999
BEFORE:	R Bartley AM - Judicial Member M Luger - Member J Strickland - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	Disability Discrimination - Employment -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: In person Respondent: K Nomchong of Counsel instructed by Crown Solicitor's Office
ORDERS:	1. Complaint dismissed. 2. No order as to costs.

1 On 11 March 1997 the Anti-Discrimination Board (ADB) received a complaint from Marie Dayton (the Complainant) alleging discrimination on the ground of disability against the employer, the Department of Education & Training Co-ordination (the Respondent).

2 The Complainant appeared for herself. Ms K. Nomchong, instructed by Mr Salpeter, appeared for the Respondent.

3 The documentary evidence exceeded three hundred (300) pages. Oral evidence was given by the Complainant and Mr James Shaw, Operations Manager, Workcom Services, Adult Migrant English Service, for the Respondent.
4 There was general agreement between the parties as to the facts.

5 The Respondent over the relevant period conducted the Adult Migrant English Program, the purpose of which was to provide workplace based training for students in accordance with their needs having regard to the program guidelines.

6 The Complainant was first employed as a teacher on a temporary basis under contract by the NSW Adult Migrant English Service (AMES) in 1982.

7 In April 1996 the Wyong Shire Council obtained a grant from the Commonwealth Department of Employment, Education, Training & Youth Affairs for the purpose of carrying out Literacy and Numeracy Training for the staff within the Council.

8 AMES was engaged to provide this training. The Complainant was the Trainer supplied by AMES to deliver this program. She commenced duties on 11 June 1996.

9 Whilst various matters were traversed in the hearing, the essence of the complaint revolved around the period of 23 January 1997 to 10 March 1997 (the date the Complainant made her complaint to the Anti-Discrimination Board).

10 In late January 1997, the Complainant told Ms Wise, her immediate supervisor, that she was unable to use public transport to travel to work because of a disability, and she produced to Ms Wise a Medical Certificate dated 23 January 1997 from Dr S.P. Sekules which stated:

“Ms M Dayton is, in my opinion, suffering from injured R Ulnar nerve and she is unable to do typing or carrying heavy files.”

11 This certificate played no part in the following events.

12 On 6 February 1997 the Complainant applied by fax to Ms Wise, the Principal of NSW AMES Workplace Communication Services, for three (3) days sick leave, together with a medical certificate dated 5 February 1997 from Dr Sekules, which stated:

“that Ms M. Dayton is, in my opinion, suffering from very severe anxiety and great nervous stress (time of consultation 4.50 p.m.) and will be unfit to work for 2 more days and will be fit for from Mo 10-2-97”

and a further Medical Certificate dated 5 February 1997 which stated:

“that Ms M. Dayton is, in my opinion suffering from injured L foot (eleven operations), injured back and injured R arm and hand, unable to walk more than 100 metres or climb stairs regularly or unable to type.”

13 Ms Wise then faxed only the second Medical Certificate of 5 February 1997 issued by Dr Sekules, and set out above, to Mr J. Shaw, and it came to his attention on or about 10 February 1997.

14 Ms Wise was located at Bankstown and Mr Shaw at Head Office at Surrey Hills. He then spoke to Ms Wise, and, to suit the convenience of all persons involved, a meeting was arranged in the office of Mr Shaw for 14 February 1997 (the Complainant was already in Sydney that day attending another meeting) between Mr Shaw, the Complainant, Ms Wise and a representative of the Teachers Federation, Ms J. Watson.

15 At the meeting Ms Shaw directed the Complainant to go on Sick Leave, pending a medical examination to ascertain her fitness for duty. He, in due course, arranged such an examination by Health Quest.

16 There was no application for leave accompanying the relevant certificate on which Mr Shaw acted. He said that he gave the direction to the Complainant as he had previously been unaware of her disability, and having regard to the duty of care (as imposed by the Occupational Health & Safety Act, 1983, NSW), he wanted to ascertain the extent of her disability, and clarify the implication of this in the Complainant’s work environment. He says he was unaware that details of the Complainant’s disability appeared in the personnel records in 1991.

17 The Complainant on the other hand stated that what Mr Shaw did was an act of discrimination. She says there was no basis in fact to send her on Sick Leave, as she was quite well and able to perform her duties. She says that no one else, who was not sick on that day, was sent home on Sick Leave. She then says that she was discriminated against within the meaning of the Act and claims $20,000 general damages (including pecuniary loss). The Respondent, relying generally on the evidence of Mr Shaw, denies she was discriminated against on the basis of a disability.

18 The Respondent further says if the Tribunal is of the view the Complainant was discriminated against, it relies on Section 54(1) of the Anti-Discrimination Act and the Public Sector Management (General) Regulation, 1996 (NSW) Clause 17, of Part 2.

19 The Respondent is also seeking professional costs of $20,000.

20 In reply, in respect of costs, the Complainant drew attention to paragraph 6 of her points of claim dated 3 March 1998, to point out she had only one complaint (see paragraph 17 above) and that all the work done by the Respondent was unnecessary.

21 The Complainant further pointed out at the time she was at work, gainfully employed, and she only provided a Medical Certificate to clarify her disability when an organisational problem had arisen. The Certificate said she had a disability, but wasn’t such that prevented one doing typing.

22 She also submitted Clause 17 of Part 2 of the Public Sector Management (General) Regulation 1996 was not a defence, as she was sent on Sick Leave before she was directed to submit to a Medical Examination under Clause 17.

TRIBUNAL’S DECISION
23 The Tribunal finds that, on the evidence at the time the complaint arose, the Complainant was suffering a disability within the meaning of the Anti-Discrimination Act, 1977 (NSW), S4, S49A.

24 The Tribunal further finds that the Complainant was sent on Sick Leave because of the production of the Medical Certificate of 5 February 1997 and not because she had a disability. The distinction is a fine one, but until Mr Shaw received the Certificate, we are satisfied he did not know of her disability. It appears to the Tribunal he carried out his duties as he was required to do under the Occupational Health & Safety Act, 1983 (NSW). He was most careful and took advice from a Senior Officer, Mr Jim Hopkins, Assistant Director of the NSW AMES.

25 On the evidence, which we accept, the Department took positive and concrete steps to assist the Complainant after the medical examination following the production of the Medical Certificate dated 5 February 1997.

26 We do not accept the fact the Complainant was sent on Sick Leave in February 1997 shows any discrimination by Mr Shaw (or inferentially the Respondent) against the Complainant under the Act.

27 We accept the submissions of Ms Nomchong for the respondent that whether or not the Complainant was sent on Sick Leave before or after Mr Shaw ordered a Health Quest medical examination is inconsequential as the intention was to clarify what the Complainant’s disability was and, as a precautionary measure, she was placed on Sick Leave (it all happened, in effect, at the same time).

28 The complaint is dismissed.

29 On the question of costs, the Complainant submitted that a careful reading of the Points of Claim reveals her claim was within a narrow ambit and, with the benefit of hindsight, the expense the Respondent had been involved in was not necessary. On the other hand, Ms Nomchong’s submissions were very powerful and we were impressed with her offer to accept minimal costs as low as $5,000 as a deterrent to unworthy claims. However, we feel this is not the case to take such a step. It is recommended in future if respondents (or applicants) are facing high costs, before these are expended, they approach the Tribunal to see if relief can be given.

30 No order as to costs.

31 We acknowledge receipt from the parties of the cases of Willis v SRA (EOC 92-455), Duggan v Shore Inn Pty Limited (EOC 92-457), IW v City of Perth (1997) ALR 696,743, SRA v Sloey & Anor (1999) NSWSC 47, P v David Jones (Aust) Pty Ltd (1995) NSWEOT (and other documents supplied by the Complainant before judgement) and cases on costs.

Dated this twentieth day of April 1999

R Bartley
Judicial Member

M Luger
Member

J Strickland
Member