Nos. H97/35and H97/135
Number of pages - 22
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
H. CHARLESWORTH
LISMORE, 3, 4, 5, 12 June 1997 (hearing), 19 December 1997 (decision)
#DATE 19:12:1997
#ADD 08:01:1998
Appearances
The complainants in person
Mr M Swan, of the Australian Government Solicitor for the respondent
Order: orders made
H. CHARLESWORTH
1. Introduction
This is an inquiry pursuant to section 79(1) of the Disability Discrimination Act ('the Act') into a complaint by Mrs Nerilie Humphries against the Commonwealth Department of Education, Employment, Training and Youth Affairs ('DEETYA').
Mrs Humphries lodged her complaint with the Human Rights and Equal Opportunity Commission ('the Commission') on 9 May 1995 alleging direct and indirect discrimination and harassment pursuant to sections 5, 6, 15 and 35 of the Act. The complaint was referred to the Commission for inquiry by the Disability Discrimination Commissioner on 14 April 1997 pursuant to section 76 of the Act. The inquiry was conducted by the Commission in Lismore 3, 4, 5 June 1997 and by telephone conference on 12 June 1997.
Mrs Humphries complains that she suffered discrimination and harassment on the basis of her visual disability while employed by the Department of Education, Employment and Training (DEET, now DEETYA) in Lismore between February 1993 and July 1995.
2. The law
The relevant provisions of the Act are:
Objects
3. The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Disability discrimination
5(1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Indirect disability discrimination
6 For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Unjustifiable hardship
11 For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.
Discrimination in employment
15(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Neither paragraph (1) (a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.
(4) Neither paragraph (1) (b) nor (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.
Harassment in employment
35 (1) It is unlawful for a person to harass another person who:
(a) is an employee of that person; and (b) has a disability;
in relation to the disability.
(2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed and (b) has a disability;
in relation to the disability.
3. The facts
The following facts are not in issue between the parties. Mrs Humphries is visually impaired. She suffers from a degenerative condition known as dominant optic atrophy, an hereditary condition, and has approximately five per cent of normal vision. In 1993-4 Mrs Humphries was able to type and read using a small magnifying glass. Mrs Humphries has been employed in a variety of workplaces. She had been a clerical worker, a telephonist and a kitchen worker in Sydney. She had also run small businesses in Lismore. In 1992, Mrs Humphries was a home worker.
In 1992 Mr Humphries was the marketing officer for a firm called 'Personnel Employment' or 'PE', which specialised in placing people with disabilities in employment. In the course of his work he identified a possible position for a visually impaired employee at DEET's Northern New South Wales Area Office in Lismore. Mrs Humphries was employed by DEET in February 1993 as an Administrative Services Officer Class 1 (ASO 1) for an initial period of three months. She worked as a receptionist-telephonist. Her probationary period was extended to a nine month period until Mrs Humphries received a permanent appointment as an ASO 1 on 13 October 1993 after having attained a score of 434 out of a possible 444 in the Public Service Exam. On 29 October 1993, the Commonwealth Medical Officer (CMO) confirmed that Mrs Humphries met the health standards for appointment. In December 1993 DEET referred Mrs Humphries to Dr Lisa Cottee, an opthalmicophthalmic surgeon, after Mrs Humphries complained of eye strain. Dr Cottee recommended that DEET contact the local Royal Blind Society 'regarding appropriate visual aids and possibly a workplace assessment.'
One condition of Mrs Humphries' appointment was a six month probationary period. In May 1994, Mrs Humphries was advised that the probation would be extended for a further six months to enable continued assessment of her conduct and work performance, particularly in view of the amount of leave taken by Mrs Humphries.
During the period of Mrs Humphries' employment, DEET underwent major restructuring. In mid-1994 'Area Coastal', based at Mt Gravatt in Queensland, took over the functions of the former Northern NSW Area Office. Rumours of a possible restructuring of the Area Office had begun to circulate a year earlier, causing significant stress among the staff working there. All staff from the Area Office were offered the opportunity to have a work placement at the Commonwealth Employment Service (CES) or a Student Assistance Centre (SAC) to determine where they would be best suited after the restructure. Mrs Humphries had a short placement at both places. She then opted to join the CES in August 1994.
Mrs Humphries took four weeks compensation leave in July 1994, citing work-related stress, and then approximately an average of a day a week in September-October 1994. In August 1994, Mrs Humphries was referred to the Commonwealth Rehabilitation Service (CRS) by the Brisbane DEET office in order to develop a 'return to work' program. Her CRS case worker was Ms Alexis Malcolm. She began extended compensation leave on 21 November 1994, citing work-related stress. In January 1995, the CMO found that Mrs Humphries was unfit for work and gave her three months sick leave. He stated that Mrs Humphries would not be fit for full time work on resumption of her duties, but that, subject to an assessment of an occupational physician, she would be able to work part time. Mrs Humphries' employment was formally terminated on 3 July 1995, after a report from the CMO stated that Mrs Humphries did not meet the medical fitness requirements for appointment. The CMO relied on advice from Dr Patrick Doughty, an occupational physician, who had examined Mrs Humphries on 18 April 1995 and prepared a report dated 25 April 1995.
4. The evidence
The evidence presented to me was very detailed, covering a great range of incidents over a two year period. Rather than rehearse all the detail of the incidents, I have summarised the most important events (from the perspective of the Act) that emerged at the hearing.
4.1 The basis of Mrs Humphries' employment
There is disagreement between the parties as to the original basis of Mrs Humphries' employment and the measures that were taken to support her in the workplace. Mrs Humphries testified that she first heard of the possibility of working at DEET through her husband, Mr Terry Humphries. Mrs Humphries stated that she understood that she was being employed under some type of special employment program for the visually disabled, although the nature of the program was never clear to Mrs Humphries, nor it seems to any of her managers or co-workers. Mr Humphries gave an account of a meeting he had had with Mr Peter Tanner, Managing Director of Personnel Employment (Mr Humphries' employer) and Ms Ros Irwin, the Corporate Services Manager in the Area Office around September 1992. He testified that, at the end of the meeting of which the agenda was the placement of intellectually disabled persons, Ms Irwin had raised the possibility of employing a visually impaired person because there was a new employment program for persons with visual disabilities in DEET. This account was confirmed by Mr Tanner.
Mr John Mills, who was in charge of computers in the Area Office at the time Mrs Humphries joined it, testified that there had been an informal office meeting several months before Mrs Humphries began work in February 1993 at which Ms Irwin had canvassed the idea of a vision-impaired worker coming to the Office. This was confirmed in the testimony of Ms Sue Ryan (then Training Manager in the Area office) and Ms Kathy Gray (then Personnel Officer in the Area office). Indeed, Ms Ryan recalled a series of meetings to allay staff concerns and to prepare staff for the adjustment necessary to accommodate Mrs Humphries.
Personnel Employment ('PE') did not handle employment of visually impaired persons. Mr Humphries stated that he himself negotiated some days after the meeting in a personal capacity with Ms Irwin about employing his wife. Mr Humphries stated that he explained to Ms Irwin that the job would not necessarily be supported by PE and Mr Tanner stated that he also had made this clear to Ms Irwin. Mr Humphries stated that Ms Irwin told him that a lift was about to be installed in the building where the Area Office was located and that it would be best for Mrs Humphries to start when this had been completed. Ms Irwin took leave in early 1993 and Mr Humphries stated that she asked him to keep in touch with her replacement about the starting time.
In cross-examination, Mr Swan, for DEETYA, put to Mr Humphries that DEET expected Mrs Humphries to be supported by PE. Mr Humphries denied this, stating that he had made the situation quite clear. Mr Humphries retained some hope that his own employer, PE, might provide support for Mrs Humphries, but after consideration, Mr Tanner decided that this was not possible. He communicated this decision to Mr Humphries about a week before Mrs Humphries began her job.
An interview took place with Ms Kim Ayscough, the acting Corporate Service Manager in early 1993 and Mrs Humphries began in February 1993 on a temporary contract. Ms Irwin stated that Ms Ayscough had been somewhat surprised to receive a telephone call from Mr Humphries to arrange Mrs Humphries' starting date, although Mr Humphries stated that Ms Ayscough seemed to know what was going on. Ms Irwin testified that she herself was surprised when Mrs Humphries introduced herself while Ms Irwin was on leave, saying that she had begun working at DEET.
Ms Irwin had little recollection of the events surrounding Mrs Humphries' employment. She recalled vague discussions with Mr Humphries about employing people with disabilities, but nothing more specific. Although Ms Irwin could not recall much about her contact with Mr Humphries, she stated that she understood that Mrs Humphries' placement would be supported by PE. Ms Sue Ryan also had a similar understanding. Ms Irwin agreed that there had been general office discussions about employing a person with a visual disability. Ms Irwin could not recall the conversation with Mr Humphries about waiting for the lift to be installed, although she did not deny that it could have taken place.
From the evidence presented to me, there seems to have been remarkably little discussion of how Mrs Humphries would be inducted in to the workplace. No witness could recall any concrete plans for assessment of Mrs Humphries' needs. Even if there was a genuine belief that PE would support Mrs Humphries in the workplace, no one working in DEET seems to have pursued enquiries about the nature of the support PE may or may not have offered. It must have emerged very quickly that in fact PE was not providing support, and nothing seems to have been done about this. When asked by Mr Swan whether she had given any direction or guidelines to anyone about attending to Mrs Humphries' needs, Ms Irwin replied:
I honestly can't recall. I can't imagine why I wouldn't have and I can't imagine why I would have, frankly.
Mr Swan then asked
'It would have been standard?'
and Ms Irwin replied
'Yes, it would have been standard procedure.' [Transcript at 291]
Despite this suggestion that there would have been special attention paid to Mrs Humphries' needs as of course, very little evidence emerged to support this claim. I find that there was no real attempt to assess Mrs Humphries' needs. The rather haphazard attention that was paid to Mrs Humphries' needs to become a functional member of the workplace before she began work set the scene for later events.
I heard evidence from Ms Mary Maxwell, former Finance Officer in the Area Office and later Mrs Humphries' temporary supervisor at the CES, that Mrs Humphries was a good worker in the Area Office and handled the job well. Ms Irwin also stated that she found Mrs Humphries a bright woman, interested in her work and that Ms Irwin had on a number of occasions given positive feedback to Mrs Humphries about her work as a telephonist. I accept that Mrs Humphries was a good and conscientious employee and that, at the beginning of her employment at DEET, there was no question that she was able to work full time.
4.2 Work in the Area Office
Mrs Humphries gave evidence of a series of incidents in the Area Office which she considered discriminatory and/or harassing on the basis of her disability. I will now briefly describe the most important of these for which evidence was led at the hearing.
(i) Failure to provide appropriate equipment
Mrs Humphries testified that no workplace assessment of her needs was undertaken after she commenced work at DEET, and I received no evidence to contradict this. Mrs Humphries stated that Ms Ayscough, Acting Corporate Services Manager, and Mr Chris Lane, her immediate supervisor, were understanding and helpful. Mr Lane purchased magnifying glasses for her and arranged the hiring of a CCTV, a machine that enlarges text onto a screen. The CCTV was later purchased for Mrs Humphries.
An ASO 1 was expected to have word processing competence. Mrs Humphries described her attempts to be able to word process. Mrs Humphries' evidence was confirmed by Ms Annette Massey who was the local area computer network administrator when Mrs Humphries joined the Area Office and who was in the same office for a year afterwards. Ms Massey spoke of 'the absolute frustration of actually trying to get Nerilie functional in the office.' She testified that she made a series of attempts to purchase appropriate equipment for Mrs Humphries after the first month of her employment at DEET. Ms Massey identified 'Zoom Text' as an appropriate product for Mrs Humphries because it magnified computer text on the screen. Ms Massey said that there was delay in both obtaining approval from her supervisor, Ms Irwin, for the funds to purchase Zoom Text (approximately $900) and, after it was purchased, in having it installed on a computer that Mrs Humphries could use. After some time, Ms Irwin approved the computer being sent to Sydney to have Zoom Text installed.
Immediately after installation, it became apparent that a standard computer screen was inadequate for Zoom Text. Ms Massey testified that she sought permission from Ms Irwin at least three times over about three months to purchase a larger monitor for Mrs Humphries. Ms Massey said that Ms Irwin was reluctant to approve funds for this (the cost would have been around $1500) and a larger screen was never bought. Ms Irwin did not recall all of Ms Massey's requests but she testified that the Area Director, John Milne, refused to approve the purchase because of an impending restructure of the Area Office. Mrs Humphries has argued that the rejection of her attempt to gain a larger screen was in August or September 1993, and that a purchasing freeze only came into effect in November or December 1994. In any event, because of these technical problems, Mrs Humphries and others looked for tasks for her to do that did not involve using a computer screen.
Mrs Humphries obtained information about a product, 'Goldmaster voice synthesiser' -- a type of talking computer -- through her husband. Mr Humphries arranged for it to be borrowed, at no cost to DEET, and Ms Irwin was informed of this.
Mrs Humphries sought an anti-glare screen to reduce the flickering of the monitor on her CCTV which caused headaches and nausea. A colleague lent Mrs Humphries a screen, but it broke after a short period and was never fixed or replaced. She stated that she asked her supervisor, Ms Rhonda Hawkins, Ms Kathy Gray, Ms Annette Massey and Mr Chris Lane for a new screen. Ms Gray had no memory of ever being asked for a screen. Ms Massey did recall this as an issue. Mrs Humphries stated that Ms Hawkins informed her a request for a screen for her had been rejected by Ms Irwin. Ms Irwin had no memory of any request for an anti-glare screen for Mrs Humphries. She said that, in any event, approval of the purchase of small items (the cost was approximately $55) would have been someone else's responsibility. Ms Irwin stated that there was an ample supply of such screens in the store room at the Area Office and that if Mrs Humphries had wanted one, it could have been provided. There was some dispute about whether such a supply existed, but, even if it did, it is clear that Mrs Humphries never received one.
Ms Irwin was unable to recollect much about the requests for special equipment. When asked why there was delay in getting equipment for Mrs Humphries, Ms Irwin said:
I can't think of what reasons there would be. All I can say is that there would have been reasons ... numerous ones; inability to have been able to discuss the issue with John [Milne] [Area Director], there could have been other priorities. ... [I]t wasn't just a question of people putting in purchase orders and simply being approved. There were budgets that had to be lived within and negotiated with the regional managers. [Transcript at 337]
Ms Irwin stated that she left much of the day to day management of the sections to their heads. When asked by Mr Swan whether the impending restructuring had placed constraints on the purchase of new equipment, Ms Irwin stated that the constraints were not formal ones, but that a close watch was placed on the purchase of computer equipment. She stated that Mr John Milne, the Director of the Area Office, had made an early decision to stop purchasing equipment.
On the basis of the evidence presented to me, I find that there was a failure by DEET to provide Mrs Humphries with appropriate equipment to perform her work at the Area Office. I accept Mrs Humphries' and Ms Massey's evidence that repeated efforts were made to obtain an anti-glare screen. No plausible justification was provided for the failure to provide it. The costs involved in purchasing a large screen to enable Zoom Text to function were not excessive for DEET as the employer. Indeed it seems extraordinary that DEET effectively undermined the value of the purchase of Zoom Text by failing to provide equipment on which it would work. Even if there were a purchasing freeze in place (and I do not accept that there was), the appropriate course would have been for Mrs Humphries' managers to seek an exception in this case.
The failure to provide appropriate equipment for Mrs Humphries had an effect on her relationship with her managers. Mrs Humphries testified about her relationship with Ms Irwin. She said that it had started off quite well, but deteriorated as Mrs Humphries continued to make requests for assistance. Ms Massey confirmed that the relationship was 'strained' because of Mrs Humphries' embarrassment about the extra requests she seemed to be making. At one stage, Mrs Humphries asked for an advocate (Mr Lane) to accompany her to a meeting with Ms Irwin, but that this request was refused. Ms Irwin in turn testified that Mrs Humphries had seemed hostile to her and accused Ms Irwin of harassment when she tried to give her 'advisory feedback'. Ms Irwin said:
.... my observation of Nerilie was that if something was wrong, it was something that had been done to her. ... [I]t didn't seem to me that Nerilie had a preparedness to see that sometimes the things that we say and the things that we do have consequences and it was more in the sense of 'Someone's done this to me.' rather than, 'What have I done that's actually contributed to this?' [Transcript at 303]
Another consequence of Mrs Humphries' difficulty in obtaining appropriate equipment was the fact that she often did not have enough work to do. Ms Ryan testified that there was a problem both at the Area Office and later at the CES in finding sufficient work. This was a cause of some stress.
(ii) Denial of opportunities for training and for acting in higher duties
Mrs Humphries stated that she asked to be trained in the Area Office, but was told that as a temporary employee, she was not eligible. When Mrs Humphries pointed out that other temporary workers in the office were being trained, she testified that she was told that there were concerns about how to accommodate her disability. In the end, Mrs Humphries did three training courses while at Area Office -- one for Trainee Employment Officer preparation, one in cross cultural awareness and one in equal employment opportunity. It is clear that Mrs Humphries was not trained in DEET's computer or other systems, although she stated that she applied for this training. Her attempts to do training were not disputed by DEETYA.
Mrs Humphries' lack of computer skills meant that she was not considered eligible to be given higher duties. She testified that her supervisors, Ms Kathy Gray, Ms Rhonda Hawkins and Ms Jenny Smith told her that she would not be able to do ASO 3 level higher duties because of her disability. The only one of these supervisors to appear as a witness, Ms Gray, stated in her evidence that because Mrs Humphries had not completed training in computer skills she would not be eligible for higher duties. DEETYA, however, did not offer any explanation why Mrs Humphries was not admitted to training to increase her computer skills.
I accept Mrs Humphries' uncontradicted evidence that she sought and was denied training in areas that would have allowed her advancement, such as computer skills. Mrs Humphries was prepared to do the existing courses and was confident she could cope by listening to them and by later studying the notes.
(iii) Public service exam
In July 1993, Mrs Humphries applied to sit the Public Service exam in order to obtain a permanent position. She received practice papers and soon realised that she was unable to sit a written exam because of her visual disability. Mrs Humphries testified that she asked on many occasions whether there were not alternative ways to sitting the exam. She approached Ms Irwin, Ms Kathy Gray and Mr Chris Lane who all told her that no alternative was available, but that she could take extra time to do the exam. Mr Humphries then contacted Public Service Recruitment in Brisbane and ascertained in a phone call that she could do an oral exam. Mrs Humphries testified that both Ms Irwin and Ms Gray were cross with her for contacting Public Service Recruitment. Mrs Humphries testified that Ms Irwin tried to talk her out of doing the oral exam, saying that it was very hard. Ms Irwin could recall discussions with Mrs Humphries about the difficulty of the oral exam, but denied that she had tried to talk Mrs Humphries out of doing it. Mrs Humphries sat the oral exam and did extremely well, attaining a score of 434 out of a possible 444.
Ms Irwin testified that, on hearing Mrs Humphries had passed the test, she congratulated her (though Mrs Humphries denied this). Ms Gray confirmed that Ms Irwin had been 'ecstatic' at the result. In contrast, Mrs Humphries complained that belittling remarks were made to the effect that the oral exam made it easy for a disabled person to do well. Ms Irwin stated that she went immediately to see the Area Director, John Milne, to arrange for a permanent appointment. Ms Irwin stated that Mr Milne (who was not called as a witness) was reluctant to take this course of action both because of the impending restructuring of the Area Office and because he did not feel Mrs Humphries was suitable for the work in the office. Mrs Humphries in fact became a permanent employee of DEET on 13 October 1993.
From the evidence presented to me, I accept that, had DEET's officers been more aware of their obligations under the Act they may have made greater efforts to support Mrs Humphries' attempts to sit the Public Service Exam. They should have expected that the Public Service would not insist on onerous exam conditions for a person with a visual disability. At the same time, I did not receive adequate evidence that this episode was based on disability.
(iv) TEO exercise
In mid-1993 Mrs Humphries applied to become a Trainee Employment Officer (TEO) so that she could become an interviewing officer at the CES. She stated that she was discouraged from the application by Ms Irwin who argued that she did not have the skills for it. Ms Irwin agreed that she expressed some reservations about Mrs Humphries working at the CES where work was very much computer-based. Also, when Mrs Humphries raised the possibility of having a co-interviewer to record for her, Ms Irwin stated that she did not think this would be a reasonable request.
A joint selection committee was established for the selection of TEOs. Mrs Humphries was interviewed in August 1993. Mrs Humphries claimed that Ms Irwin, a member of that committee, had influenced the committee against Mrs Humphries' application. In her evidence, Ms Sue Ryan pointed out that the committee was convened by the Merit Protection Review Agency and that there was no possibility of influence by a member of the department.
On the evidence presented to me, I am unable to conclude that Mrs Humphries' failure to be appointed to a TEO position was based on her disability. I do accept, however, that Ms Irwin's reservations about Mrs Humphries' capacity to do the work of a TEO because of her disability indicate an inaccurate assessment of Mrs Humphries' abilities that is relevant to the overall picture.
(v) Probation process
Mrs Humphries' probation was extended for six months in May 1994 on the grounds that she had taken excessive sick leave and that more time was needed to assess her capacities. Mrs Humphries testified that she considered a significant basis for extension of probation was two incidents that were mentioned on her probation report in April 1994. One incident referred to was about confidentiality in dealing with the press and one an issue of workplace relations. I understand that Mrs Humphries argues that the handling of these matters and the failure for proper counselling on them constitutes a form of harassment on the basis of her disability. Also, the probation extension was discriminatory.
Even if I accept completely Mrs Humphries' account of the incidents (and I note that they were contradicted in Ms Irwin's evidence) I cannot discern any element of harassment or discrimination on the basis of Mrs Humphries' disability in them. Taking Mrs Humphries' evidence at its highest, the incidents indicate at most some managerial insensitivity.
Another issue raised by Mrs Humphries was the regularity of the probation reports. At the Area Office, Mrs Humphries requested a one, two and three month report from her supervisor. Ms Irwin agreed that a three month report would be standard, but in fact Mrs Humphries did not receive a report until six months. Again, I did not receive adequate evidence to suggest that this unfortunate delay was in any way connected with Mrs Humphries' disability.
4.3 The move from the Area Office
In mid 1994, all DEET employees at the Area Office were redeployed. Mrs Humphries testified that, unlike everybody else in the office, she was not given a choice as to where she would go. Mrs Humphries had temporary placements at both the CES and the SAC. She stated that in her temporary placement at the SAC, she was the only temporary person required to work, the others being required to simply observe. Mrs Humphries found the work at the SAC physically difficult causing eye and wrist strain. She ultimately requested a position at the CES.
Mrs Humphries pointed to the fact that she was the only Area Office staff member for whom a work placement report was sought as evidence of discrimination. Ms Ryan stated in her evidence that this was part of the process of ensuring that Mrs Humphries was appropriately supported. I accept Ms Ryan's evidence on this point.
Ms Ryan testified that the committee established to redeploy staff as a result of the restructuring (consisting of three managers and three union representatives) designed an ASO1 position in the newly created Regional Development Unit of DEET specifically for Mrs Humphries. The position was designed to use Mrs Humphries' communication and negotiation skills, but because ASO 1s were being phased out in DEET, it did not have a career structure attached to it. Ms Ryan stated that Mrs Humphries apparently was not interested in the position because she was keen to go to the CES, with the aim of being an interviewing officer. At the hearing, there was some suggestion by Mr Humphries, on behalf of his wife, that in fact Mrs Humphries had wanted this position, but it was not made clear why she did not take it up.
On the evidence I received, I am unable to find evidence that Mrs Humphries was treated less favourably on the basis of her disability in the move from the Area Office. I accept that Mrs Humphries was stressed by the move from Area Office, but it seems clear that the move was very stressful for all employees.
4.4 Work at the CES
Mrs Humphries made a successful Comcare claim in July 1994 and on her return to work at the CES in August 1994 was assigned a counsellor, Ms Alexis Malcolm, through the Commonwealth Rehabilitation Service (CRS).
When Mrs Humphries began her work at the CES, Ms Sue Ryan and Mr John Milne had a talk with her, encouraging her to put aside past distress about her treatment at the Area Office. Mrs Humphries was upset by this conversation, believing that it did not acknowledge the real distress she had undergone. Ms Ryan saw it as necessary for her to begin with a clean slate, and also because Ms Ryan believed the anxiety issues were being dealt with through professional counselling.
(i) Failure to provide appropriate equipment
Mrs Humphries' supervisors at the CES were Ms Sue Ryan and, while Ms Ryan was on leave in October 1994, Ms Mary Maxwell. Some rather unsatisfactory attempts to obtain proper equipment for Mrs Humphries were made. Mr Alec Morgan of the Disability Access Support Unit ('DASU') wrote a report, but apparently he was not allowed to observe Mrs Humphries in her workplace or to consult with her. Mr Morgan recommended that:
"In light of the successful nature of the loan of our computer to Nerilie, I would be keen to see her employer provide her with similar equipment as to enable an increase in the range of her workplace duties."
In approximately October 1994, Mrs Humphries was loaned a Keynote Gold Voice Synthesiser -- a 'talking' computer -- by DASU. Mrs Humphries testified that it was very old and that many of the raised numbers and letters were worn off, which severely affected its utility. She also stated that it crashed regularly. Mrs Humphries claimed that she regularly asked for the computer to be repaired.
Of Mrs Humphries' time at the CES, Ms Maxwell said that she considered that Mrs Humphries had the skills to be trained as an interviewer. She stated that because Mrs Humphries did not have access to the mainframe computer, she was hampered in being able to move to other positions in the office. Ms Maxwell testified that her attempts to obtain equipment to allow Mrs Humphries to have access to the mainframe computer were unsuccessful. Ms Maxwell said that she had spoken to Mr Michael Robinson, Manager of Financial Services at Area Coastal and Mr John Milne at some time between September and November 1994 about the purchase of proper equipment for Mrs Humphries. She said that there always seemed to be reasons for not purchasing the equipment, although she could not recall the precise reasons given.
(ii) Probation issues
At the CES, Mrs Humphries was told by Ms Sue Ryan that she needed to complete the 21 ASO 1 competencies in order for her position to be confirmed. Ms Ryan stated that it was not unusual for the competencies to be the benchmark for confirmation. Mrs Humphries stated that she prepared the first competency in great detail, but was never tested on it by Ms Ryan. Ms Ryan could not however recall Mrs Humphries telling her she was prepared for testing on one of the competencies. Ms Malcolm, the CRS case worker, made efforts to see whether completing the full 21 competencies was really necessary for probation to be confirmed. Ms Maxwell indeed testified that she had never heard that passing the ASO 1 competencies was part of the normal practice for completing probation for an ASO 1 and was unaware of anyone ever been required to do them for probation. She also stated that, had Mrs Humphries had the proper equipment, Mrs Humphries could have more easily demonstrated the competencies.
From the evidence I received, I find that requiring Mrs Humphries to pass a test on all 21 competencies at the ASO 1 level was unusual and was a decision made on the basis of her disability.
While at the CES, Mrs Humphries' probation period was twice extended. On 4 August 1994, Sandy Nix, the Human Resources Manager in the Brisbane Office wrote to Mr Michael Robinson stating that:
Issues: in the process of reviewing the file it has come to my attention that we may not have instigated to facilitate a full assessment of Mrs Humphries' conduct and work performance during this additional probationary period. Accordingly, I would like the following action to be taken. Mrs Humphries' work performance should be closely monitored and Mrs Humphries should be advised of her expected performance standards. Regular feedback sessions should be conducted between Mrs Humphries and her supervisor to ensure that performance standards are met.
These should be documented on a monthly basis. Mrs Humphries in conjunction with her supervisor should complete an individual development plan to highlight training needs. Identifying training needs should be addressed as a matter of priority during the extended probation. Any incidents of poor performance or attendance should be brought to Mrs Humphries' attention and documented with a purpose of finalising a probation report. Any absences should be discussed with Mrs Humphries to validate the reasons for absences and the appropriateness of granting leave.
Any leave which is in doubt should be discussed with myself before recommendations are made. The completion of this action together with the probation report will assist the delegate in making a full and fair judgment on the completion of the probationary period. [Transcript at 258]
When Mrs Humphries joined the CES, she received a letter from Mr Robinson setting out the requirement that her supervisors at the CES do monthly probation reports. The reports were not done on time. The reports for August, September and October 1994 reached Mrs Humphries in late November, just before she left the CES. Because the reports were so late, Mrs Humphries received a letter on 10 November 1994 from Sandy Nix stating that the probationary period would be extended again, despite the recommendation of Ms Alexis Malcolm that the period be reduced.
Ms Malcolm testified about the effect on Mrs Humphries of the two extensions in her probation period. She pointed out that if the probation reports had been done in a timely manner, either her appointment would have been confirmed or else there would have been a clear decision to terminate the employment, reducing the uncertainty and stress all round.
Ms Malcolm testified that she tried to organise a return to work program with reduced hours, so that Mrs Humphries could get her energy back. She was informed that if Mrs Humphries worked part time, then she could not apply to have her appointment made permanent. Ms Malcolm said:
So it was kind of like a circle we could not solve. So we had to get her passing the probation but that was five months ahead and I knew that Nerilie couldn't work full-time for 5 months and get the probation happening, so I wanted her to be part-time but if she did that she couldn't get probation anyway. [Transcript at 232-233]
Ms Malcolm's final report dated 9 August 1995 was critical of the DEET response to her attempts to organise a useful return to work program. In her evidence, Ms Malcolm said:
I would've liked to have had Nerilie on a part-time return to work program, for there to be ongoing counselling and so on, regular meetings with the supervisor and myself and a clear decision as to whether the competencies were a part of it or not and to be able to get that independent development plan up and running fairly quickly and moving ahead rather than it seemed to be always, you know, come for a meeting and it was still this far away because someone still has to write it or it had to be checked by somebody else- those sorts of things. We just couldn't pull it in and get it happening. [Transcript at 234]
In cross-examination, Ms Malcolm said that, while she initially had hopes of a successful return to work:
With the repeated attempts to get things moving and to get probationary reports happening and clarification of different issues -- the competency issue; it took a long time for the computer to come around and then there were problems with the computer. It was all of those things together that I felt it was slipping away, that there being a good solution was slipping away, because through that there were all these things that set Nerilie back or distressed her. [Transcript at 250]
Ms Malcolm testified that in December 1994, she asked several times for there to be a round table meeting with all involved, and including a person from head office in Brisbane. This request was turned down, according to Ms Malcolm because it was too difficult to get people down from Brisbane.
Ms Malcolm did not think that there was an attempt to deliberately frustrate Mrs Humphries' return to work. She said:
I don't suspect that at all. But I felt like the department wasn't able to pick it up and do something with it and it ... wasn't prepared to say, "This is a mess-up. ... something's messed up here and we've got different people giving all these different instructions and different people setting different rules and so on and we need to clean it up." [Transcript at 261]
Ms Malcolm has worked in occupational therapy for 17 years. In answer to my question about how often she had encountered a situation like that of Mrs Humphries, she responded that it was an unusual case, because she did not seem able to achieve a resolution.
4.5 Ms Sharyn Winter
While working at the CES office, Mrs Humphries came into contact with Ms Sharyn Winter, who worked at DEET's Southport Office. Ms Winter had a visual disability that left her with five per cent vision. Ms Winter testified that she has been working now for the Australian Public Service for almost ten years. She has progressed through the system, beginning as a youth trainee and being promoted to ASO3 in March 1996. She joined DEET in April 1992. Ms Winter described the training she had been given when she first joined DEET, progressing from the switchboard and mail, working on the front counter and then being trained to interview. Although no workplace assessment was done, on her arrival at DEET, Ms Winter was asked what equipment she had in her previous job in the Department of Defence. Her supervisor then ordered it for her, apparently without any problems, although some of the equipment -- a CCTV -- took eight months to arrive.
Ms Winter used a monocle, supplied by her office and costing approximately $100. Before the CCTV arrived, Ms Winter worked on the switchboard and used a standard computer, looking at it very closely and taking regular breaks. Ms Winter had access to the mainframe computer. Ms Winter had done TEO training, half of it with a group and half of it one on one. She testified that she has found her managers and supervisors very supportive. They have acted promptly with repair of equipment. The office disability officer took a close interest in Ms Winter's situation. Ms Winter has not been required to demonstrate formally the competencies for her position.
After Ms Winter visited Mrs Humphries at the CES, Mrs Humphries asked Ms Mary Maxwell, her supervisor for the same type of monocle that Ms Winter had. Ms Maxwell stated that she asked Mr Michael Robinson of the DEET Area Coastal office for one. The request was refused.
From the evidence, it is clear that Ms Winter has been able to make a good career for herself in DEET. Her disability appears to have been coped with in a very supportive and positive manner. Mrs Humphries and DEET of course attribute different significance to Ms Winter's evidence. Mrs Humphries argues that Ms Winter's experience indicates that the disability they share is no barrier to a satisfying career, and that similar effort by DEET in her case was all that was required. DEET, on the other hand, argues that Ms Winter is proof that DEET treats employees with a visual disability on a non-discriminatory basis and implies that Mrs Humphries' problems are caused by her personality rather than her disability.
Ms Winter and Mrs Humphries worked in different DEET offices and I consider this explains their different experiences. From Ms Winter's evidence, it seems that a supportive and pro-active approach to responding to an employee's disability is necessary. This of course depends very much on the attitude of managers within an office. The support described by Ms Winter did not appear to be present in either the Area Office or the CES when Mrs Humphries worked there.
4.6 The effect on Mrs Humphries
Mr and Mrs Humphries both gave evidence about the stress suffered by Mrs Humphries because of the workplace situation. Mrs Humphries said that she did not find the imminent restructuring stressful, indeed she regarded it as an opportunity for change in her situation. She was, rather, distressed by her treatment. Mr Humphries stated that from late 1993, Mrs Humphries would return from work in an emotional state and would not be able to sleep well. In November 1994, Mrs Humphries' stress condition was so severe that she took further leave and never returned to the workplace.
Mrs Humphries was sent by the CMO to an occupational physician, Dr Patrick Doughty, who examined her on 18 April 1995. On the basis of an interview in his rooms, Dr Doughty concluded that Mrs Humphries was unable to do any work that entailed rapid reading and that with visual aids she could only read quite slowly. Dr Doughty did not in fact assess Mrs Humphries' ability to type or read with visual aids. His report nevertheless made a number of contentious assumptions about her abilities in the workplace. At the hearing Mrs Humphries demonstrated her ability to read fluently from a document with visual aids. Dr Doughty's report also noted that, in his opinion, Mrs Humphries was unlikely to be employed again on a 'commercially viable basis.' Dr Doughty's evidence and cross examination indicated some inaccuracies in his report. For example, Dr Doughty stated that Mrs Humphries had not been commercially employed between 1970 and 1993. In fact, Mrs Humphries had been self-employed and commercially employed between 1978 to 1987, working very long hours.
Dr William Wilkie, a psychiatrist who has a particular expertise in the area of workplace stress and harassment, saw Mrs Humphries on two occasions in late 1996. He diagnosed Mrs Humphries as suffering from a form of post-traumatic stress disorder (PTSD) (although he noted that technically, according to the standard manual of psychiatric diagnosis, the DSM-IV, Mrs Humphries' condition did not fit into the category of PTSD) or severe anxiety symptoms associated with her workplace. He testified that her symptoms were consistent with being victimised. He had found Mrs Humphries a warm empathetic person, and strongly rejected the suggestion in Dr Doughty's report of 25 April 1995 that Mrs Humphries was suffering from a 'narcissistic personality disorder'. Dr Wilkie saw the appropriate treatment as extensive psychotherapy. He also noted that an apology would be an important factor in Mrs Humphries' recuperation
The inaccuracies in and the tone of Dr Doughty's report indicate that it was an unsatisfactory basis for termination of Mrs Humphries' employment. I accept that the stress suffered by Mrs Humphries was largely caused by her treatment in the workplace. Mrs Humphries began working with DEET as a capable and confident woman. After less than two years, she sustained a great level of anxiety. There was a direct connection between the lack of appropriate equipment and the continual barriers to confirmation and the stress and inability to work of Mrs Humphries.
5. Conclusions
Mrs Humphries has alleged that, as an employee of DEET, she has suffered direct and indirect discrimination as well as harassment on the basis of her disability. Are these claims made out under the Act? The relevant provisions of the Act are set out above.
5.1 Direct discrimination
Under the Act, direct discrimination occurs when a person is accorded less favourable treatment than another person because of the first person's disability 'in circumstances that are the same or are not materially different' (section 5(1)). The Act specifies that 'circumstances in which a person treats ... another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with the disability' (section 5 (2)). The test is an objective one and does not depend on a discriminatory intent. Section 15(2) of the Act prohibits discrimination in the terms and conditions of appointment. I also note that the objects of the Act expressed in section 3; include the object of ensuring "as far as practicable, that person with disabilities have the same rights to equality before the law as the rest of the community."
I consider that Mrs Humphries suffered direct discrimination in the terms and conditions of her employment with DEET on the basis of her disability in a number of ways.
First, the failure to provide adequate equipment for her to be able to word process properly and to contemplate higher duties through using the mainframe computer at both the Area Office and the CES was discriminatory. Mrs Humphries was not given the chance to demonstrate her ability and competence because her special needs were not taken into account.
While particular managers and co-workers may have shown some understanding of Mrs Humphries' needs, management in Mrs Humphries' workplace generally seemed either oblivious to or irritated by Mrs Humphries' situation. The DEET Lismore Office seemed unprepared to cope with the special needs of an employee with a severe visual disability from the time Mrs Humphries commenced her employment. The initial interest expressed by Ms Irwin in having a visually disabled employee seems to have waned very quickly. There was uncontradicted evidence presented by Mrs Humphries that no workplace assessment of her needs was undertaken when she first arrived. No support program was anticipated before her arrival or developed when she arrived.
As it is clear that Ms Irwin (and Ms Ayscough who acted in her position) were aware of Mrs Humphries' disability before she began work, I find it significant that Ms Irwin had no recollection of a program to help Mrs Humphries become a productive member of the Area Office team. In her evidence, Ms Irwin stated that she had a long standing interest in equal opportunity matters and she had won a state-wide award in 1992. She had attended many Equal Employment Opportunity (EEO) training courses. Ms Irwin's extensive training in EEO matters and consciousness of the need for the provision of appropriate equipment to people with a disability makes the failure to ensure that Mrs Humphries had the appropriate equipment all the more striking.
Mrs Humphries' reasonable requests for support and equipment appear to have been handled in such a diffident fashion that she became seriously stressed. The evidence of Ms Sharyn Winter, whose every technological need seems to have been responded, demonstrates that DEET was capable of making appropriate accommodation for similarly disabled employees. In his final submissions, Mr Swan, for DEETYA, sought to cast doubt on some of Mrs Humphries' allegations of failure to supply appropriate equipment for her. He pointed out the low cost of a number of items she had requested and asked why DEET would have cavilled at such an expense. I agree with Mr Swan that the refusal to purchase minor items for Mrs Humphries does not seem consistent or rational, but I note that Mrs Humphries' evidence on this point was supported by other reliable witnesses.
I note that DEET's own EEO National Program and Action Plan 1994-6 (which came into operation in July 1994) states that it aims:
To ensure that members of the EEO groups [including people with a disability] are treated equitably, without discrimination in employment processes or practices, so that all DEET staff have an equal opportunity to achieve their full potential. To provide members of EEO groups with career advancement training, flexible working arrangements, and focussed EEO programs, emphasising specific outcomes that will allow them greater prospects of career advancement. (at 7)
The Objectives of the Program include the elimination of unjustified discrimination and the enabling of EEO groups 'to compete for promotion and transfer and pursue careers as effectively by other staff by addressing unjustified barriers in terms of process, prejudice or cultural norms.' Even if one only considers the period after July 1994, I heard little evidence that indicated these admirable standards were implemented in this case.
Mr Swan, for DEETYA, argued that DEET did everything it could to support Mrs Humphries in the workplace. I cannot accept this contention. As I have stated above, there was no acceptable excuse for DEET's failure to ensure that Mrs Humphries had access to equipment that enabled her to function on the same basis as any other ASO 1. The experience of Ms Winter at DEET's Gold Coast office indicates that different management styles produced different results in dealing with disabled employees. In some DEET offices, management took its obligation to treat employees with a disability in a non-discriminatory way seriously and purchased the necessary equipment.
Mr Swan also suggested that Mrs Humphries could have taken more steps than she did to ameliorate her situation, for example, by arranging a workplace assessment herself. But the Act does not place the onus of accommodation of a disability on the person with the disability. Mrs Humphries was working for the first time in the public service, on the lowest rung of the DEET scale. She could not be expected to do more than she did (which was in any event quite considerable) to draw the attention of management to her needs.
An alternative argument put by Mr Swan was that the provision of all the necessary equipment for Mrs Humphries would have imposed an 'unjustifiable hardship' on DEET. Mr Swan argued that although section 15(4) of the Act provides two 'defences' for employers who discriminate on the basis of a person's disability in offering employment or in dismissing an employee -- that the person's disability would preclude them from carrying out the 'inherent requirements' of a particular job or that the performance of the inherent requirements of the job require services or facilities to be supplied that would impose an 'unjustifiable hardship' on the employer -- the 'defences' should be read as applying to all parts of section 15, including limiting promotional opportunities. The rationale for this interpretation was that otherwise section 15 could be read to impose an obligation on an employer to provide all the services or facilities that would enable an employee with a disability to carry out the inherent requirements of a higher position to which the disabled person seeks promotion. Mr Swan referred to this as an 'absurd' result.
On the basis of this interpretation of the Act, Mr Swan submitted that it could not be said that it was unlawful for DEET to fail to provide equipment and technology for Mrs Humphries because these were necessary only if she wished to seek promotion to a higher position. In my opinion, the interpretation for which Mr Swan contends is untenable. The Act clearly provides relatively limited scope for the 'defences ' in section 15 (4). The Act only requires non-discrimination on the basis of disability in allowing access to promotion opportunities; it does not mandate that a person with a disability be promoted whatever the job entails. Reading the section 15 (4) 'defences' into section 15 generally would, as Mr Swan acknowledged, go against the spirit of the Act and undermine its objects, set out in section 3.
In any event, even if Mr Swan's interpretation were correct, I am satisfied that Mrs Humphries' performance of her ASO 1 duties was hampered by the failure to provide adequate equipment, and that the equipment was not simply necessary to enable her to be promoted. Moreover, there was no evidence led to suggest that the provision of equipment would have constituted an unjustifiable hardship on a large national employer such as DEET. The fact that another DEET office was able to supply Ms Winter with all that she needed to perform at a satisfactory level also makes Mr Swan's contentions difficult to accept. The amounts involved in purchasing the appropriate equipment were not large.
Another argument put by Mr Swan was that the stress undoubtedly suffered by Mrs Humphries was due, not to discriminatory treatment, but to the generalised stress in the workplace as a result of the restructuring process. Clearly, the restructuring of DEET that took place during the period of Mrs Humphries' employment put considerable stress on all staff. Indeed Ms Irwin gave evidence that the restructure caused about half the Area Office's Staff to leave. What emerged from the evidence presented to me was a picture of general tension and uncertainty in which the management seemed quite unable to respond to the needs of a visually impaired worker. In my view, the general stress caused by the DEET restructure cannot excuse the failure of DEET to provide appropriate training or technology for Mrs Humphries. From the time of the initial hiring of Mrs Humphries to the end of her employment, DEET seemed quite unprepared for responding to the needs of visually disabled employee. While the generally stressed work environment at the Area Office and later at the CES may have contributed to the failure to respond to Mrs Humphries' needs and the inappropriate way she was treated, I find that the major factor was Mrs Humphries' disability.
Second, the failure to allow Mrs Humphries access to further training that would have helped her in promotion applications constituted direct discrimination on the basis of her disability. Management in the Area Office did not accept that Mrs Humphries could do the training courses and made little effort (compared for example with the efforts made to assist Ms Winter's training) to accommodate her.
Third, I consider that the manner in which confirmation of her appointment was made contingent on her performance of the full 21 ASO 1 competencies at the CES was directly discriminatory. There was no adequate evidence produced to me that this requirement was generally imposed on other ASO 1 employees, and in Mrs Humphries' case it appeared a direct result of her disability.
Fourth, I consider that the termination of Mrs Humphries' employment with DEET was connected to the acts of direct discrimination I have described above. As I have noted, the discrimination on the basis of her disability wore Mrs Humphries down and caused stress at traumatic levels. DEET should have addressed the root causes of the stress rather than simply terminating Mrs Humphries' employment. The termination was brought about by and thus on the grounds of Mrs Humphries' disability. For the reasons described above, I do not think that section 15(4) applies in these circumstances.
5.2 Indirect discrimination
Under section 6 of the Act, indirect discrimination occurs when a person with a disability is required to comply with an unreasonable requirement or condition with which a disproportionate number of people with the disability will be unable to comply. Thus, for example, if the Public Service Exam could only have been done in written form, it could have been argued to constitute an unreasonable requirement with which most people with Mrs Humphries' disability could not comply and a form of indirect discrimination on the basis of disability. It was not clear to me which incidents Mrs Humphries alleged involved indirect discrimination. As I understood her case, it was essentially one of direct discrimination.
5.3 Harassment
Section 35 of the Act prohibits harassment in relation to a disability in employment. Mrs Humphries alleged that she suffered harassment on the basis of her disability in her treatment by various supervisors and managers. This included a reprimand by Ms Irwin of Mrs Humphries for speaking to the press, Ms Irwin and Ms Gray's behaviour over the Public Service Exam incident, the insistence that Mrs Humphries complete all ASO 1 competencies, and Ms Irwin's alleged undermining of Mrs Humphries' attempt to gain a TEO position.
The notion of harassment is not defined in the Act, and I have been unable to find any authority on the matter. Harassment would include behaviour that does not otherwise fall within the definitions of direct or indirect discrimination. It would cover, for example, abuse or disparaging comment about a person's disability. I did not find evidence of harassment on the basis of disability in this case. As noted above, some of the alleged harassment at least was, if Mrs Humphries' evidence is accepted, poor personnel management and I could not find a connection to Mrs Humphries' disability. Other alleged incidents of harassment constitute direct discrimination and these are dealt with above. Mrs Humphries alleged that Ms Irwin and Ms Gray had made disparaging remarks to the effect that the oral version of the Public Service Exam made it easy to do well, but there was no other evidence to support it. Indeed, Mrs Humphries and Ms Irwin agreed that the latter had initially said that the oral exam was much harder. For these reasons, I do not find that the claim of harassment has been made out.
6. Relief
It was agreed at the hearing that submissions on the appropriate relief would be made subsequent to my findings on the question of discrimination and harassment. I propose to consider the appropriate relief taking into account the evidence already before me and any further submissions the parties wish to make with respect to the nature of any remedies and the matters which I may take into account having regard to section 103 of the Act. Section 103 provides that:
(1) After holding an inquiry, the Commission may: (a) dismiss the complaint the subject of the inquiry; or
(b) if it finds the complaint substantiated - so find and make a determination which, if appropriate, may include any one or more of the following:
(i) a declaration that the respondent had engaged in conduct, or committed an act, that is unlawful under a provision of Part 2 of this Act and should not repeat or continue such unlawful conduct;
(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(iii) a declaration that the respondent should employ or re-employ the complainant;
(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(v) a declaration that the respondent should promote the complainant;
(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;
(vii) a declaration that it would be inappropriate for any further action to be taken in the matter.
(2) A determination of the Commission under subsection (1) is not binding or conclusive between any of the parties to the determination.
(3) The Commission may, in the making of a determination under subsection (1), state any findings of fact upon which the determination is based.
(4) The damage referred to in paragraph (1) (b) includes injury to the complainant's feelings or humiliation suffered by the complainant.
I will make directions with respect to the filing of submissions, separately.
7. Mr Humphries' complaint
Mr Terry Humphries lodged a complaint with the Commission on 21 July 1995, arguing that he has sustained harm through the discrimination against and harassment of his wife on the basis of her disability. He argues that, by virtue of the stress imposed on his close relationship with his wife and his anguish at her suffering during and since her employment by DEETYA, he should be considered a 'person aggrieved' under section 69 of the Act, and hence able to make a complaint in his own right.
Mr Humphries relies on the decision of the Full Federal Court in Cameron v. Human Rights and Equal Opportunity Commission (1993) 119 ALR 279 to support his claim. At issue in Cameron was whether Dr Cameron, a white New Zealander, could complain about racially discriminatory behaviour towards Fijian Indians. Although the Court decided that Dr Cameron could not be considered a 'person aggrieved' by discrimination against Fijian Indians, the Court took a broad approach to interpreting the standing provision in racial discrimination cases. In particular, Justice French said:
It is at least arguable that derivative or relational interests will support the claim of a person to be 'aggrieved' for the purposes of the section. ... A close connection between two people which has personal or economic dimensions, or a mix of both, may suffice. The spouse or other relative of a victim of discrimination ... may be a person aggrieved for the purposes of the section. [section 22 of the Racial Discrimination Act 1975]. (289)
The Racial Discrimination Act uses the term 'person aggrieved' only in section 22, which deals with standing to make a complaint. The term is undefined and is not on its face confined to persons who have actually suffered discrimination themselves. It should be noted that the provisions of the Disability Discrimination Act with respect to the definition of an aggrieved person differ from those of the Racial Discrimination Act at issue in Cameron. Section 5 of the former Act provides:
For the purposes of this act, a person discriminates against another person "aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
I note that sections 6-9 of the Act also use the term 'aggrieved person' as a synonym for a person with a disability. Section 69 of the Act prescribes who may lodge complaints. It states:
(1) A complaint in writing alleging that a person has done an act that is unlawful ... may be lodged with the Commission by:
(a) a person aggrieved by the act: (i) on that person's own behalf; or
(ii) on behalf of that person and another person or other persons also aggrieved by the act; ...
The question is whether the term 'person aggrieved' in section 69 of the Act is wider than the term 'aggrieved person' in ss 5-9. Mr Swan, for DEETYA, argued that section 5 provided an exhaustive definition of the terms 'aggrieved person' (section 5) and 'person aggrieved' (section 69). The difference between the Act on the one hand and the RDA and the SDA on the other on this point supports Mr Swan's contentions, although it seems curious that the three Acts should differ on this point. I find that section 69 of the Act does not allow Mr Humphries to make a complaint separate to that of Mrs Humphries.
Even if I am wrong on this issue of statutory interpretation, while there is no question that Mr Humphries has a much greater interest in this case than an ordinary member of the public, I think it is relevant here that, unlike in Cameron, the issue of alleged discrimination has been fully agitated in Mrs Humphries' complaint. Mr Humphries' complaint does not add any new or different material except as to the effect of the alleged discrimination against his wife on him and on their relationship. In other words, his complaint is relevant only to the remedies that might be awarded. I will take the personal distress of Mrs Humphries, including the effect on her family life, into account in the remedies I award, and I do not consider that I have the power under the Act to make separate provision for the distress to Mr Humphries.
