Karen June Logan v The State of Western Australia (Ministry of Justice)

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

ANDREW BEECH

No. H 99/47

Number of pages - 52

PERTH, 27-31 March, 17-18, 20 April 2000 (hearing), 12 September 2000 (decision)

#DATE 12:09:2000

Appearances

Ms J Stevens instructed by Marks & Sands Lawyers for the Complainant

Ms C Thatcher and Ms J Pritchard instructed by the Crown Solicitor for the State of Western Australia for the Respondent

Order

See paragraph 9. Determination

ANDREW BEECH

1. INTRODUCTION

This is an inquiry pursuant to s.79(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA") into a complaint by Karen June Logan against the State of Western Australia, by whom she was employed within the Ministry of Justice until late 1997.

By letter dated 24 February 1999 the Acting Disability Discrimination Commissioner referred, pursuant to s.76 of the DDA, the complaint by Ms Logan to the Human Rights and Equal Opportunity Commission ("the Commission") for inquiry.

The complaint by Ms Logan (made by letter dated 16 February 1998) was, in summary, first, that the respondent dismissed her from her employment because she could not restrain prisoners because of her disability, and, secondly, did not consider her application for employment as a stores/laundry officer because she could not restrain prisoners because of her disability. Ms Logan had, for some years, worked as a prison officer for the respondent at Bunbury Regional Prison ("Bunbury Prison"). In mid to late 1997 Ms Logan applied for a newly created position of stores/laundry officer at Bunbury Prison.

It is common ground that on 20 November 1997 the complainant was dismissed from her employment with the respondent. The respondent also admitted that the dismissal was on the grounds her disability. The disability referred to has been described in medical reports tendered into evidence as "multi-level, lower lumbar, degenerative disc disease" (see Exhibit G, report of Dr Batalin dated 11 September 1996). The respondent says her disability meant that Ms Logan was unable to restrain prisoners and that the ability to restrain prisoners is an inherent requirement of the job of a prison officer.

The respondent also admitted that Ms Logan was not considered for the then newly created position of stores/laundry officer for the same reason, namely that her disability meant that she was unable to restrain prisoners. It said that the ability to restrain prisoners was also an inherent requirement of the job of stores/laundry officer.

From this skeletal outline of the facts the central issues in this inquiry can, I think, be identified. The respondent's conduct in, first, dismissing the complainant and, secondly, not considering her for the stores/laundry position amounts to disability discrimination. In each respect, the respondent treated Ms Logan "less favourably, in circumstances that are the same or are not materially different, than [it] treats or would treat a person without the disability" because of the complainant's disability within the meaning of s.5 DDA. This was accepted by the respondent in the course of the inquiry. In the light of that admission by the respondent, the claim of indirect discrimination need not be considered. The issue is whether the admitted discrimination was unlawful.

The respondent contends that its conduct, referred to above, was not unlawful discrimination because Ms Logan's disability meant that she would be unable to carry out one of the inherent requirements of her employment, as well the employment for which she applied, namely the ability to restrain prisoners. More specifically, the respondent contended that it was an inherent requirement of her employment that she could restrain prisoners without undue risk to herself and to others and that Ms Logan could not carry out that requirement. Thus the issues central to this inquiry include the identification of the "particular employment" (within the meaning of s.15(4)(a) of the DDA), the identification of the inherent requirements of the particular employment, and whether or not Ms Logan was able to carry out those inherent requirements.

2. THE EVIDENCE

A large volume of evidence was admitted in this inquiry. The taking of evidence took some 7 days. In addition a large number of witness statements, some quite lengthy, were admitted as exhibits. There were also a substantial number of documentary exhibits received. There were, on the other hand, relatively few issues on which there was a direct conflict of oral evidence. Few, if any, of such issues are central to the critical issues in the inquiry. Where there is a direct conflict of evidence on a matter of real significance I will identify and resolve that conflict in making the factual findings which follow.

It is neither necessary nor desirable that a comprehensive outline of all of this material be provided in these reasons. Rather, I will attempt to outline the relevant history, as it developed and identify the areas of evidence relevant to the issues in the inquiry, as I perceive them.

2.1 Background facts

In May 1986 Ms Logan commenced work as a trainee prison officer. For the first 12 weeks as a trainee she undertook a prison officer training program at the Academy at Woorooloo. This course included a 5 day segment on "Prisoner Management and Restraints Training". There was some focus, in submissions, on the question of how substantial the training in relation to restraints was. There was also evidence of a range of restraint techniques. These included both physical and non-physical methods of restraining and techniques involving one or several prison officers. This is something to which I will return.

After completing 9 months on probation Ms Logan became a permanent prison officer and worked at Canning Vale Prison.

In early 1987 Ms Logan injured her back at work. While bending down in the kitchen in the prison she got pain across her lower back and down her leg. She was off work for about 9 months.

In or about late 1989 she suffered a recurrence of her back injury. This occurred while she was bending down checking underneath some vehicles. She was away from work for about 2 months as a result.

By about 1993 Ms Logan moved to the Bunbury Regional Prison where she worked as a shift prison officer.

On about 5 or 6 August 1996 Ms Logan suffered another recurrence of her back injury. This occurred while she was getting out of her car. After having reached over to the glove box to get her wallet she experienced a sharp pain in her lower back and pain radiating into both legs.

She was then off work until about 16 December 1996 when she commenced a return to work programme.

On 11 September 1996, at the request of the respondent, she was seen by a specialist orthopaedic surgeon, Mr Nick Batalin. A report from Mr Batalin dated 11 September 1996 is part of Exhibit G. Mr Batalin had been provided with a document entitled "Physical Requirements of Prison Officer Duties". That document was annexure A to the statement of Mr Trevor Scorer. Mr Scorer has been working within the Ministry of Justice since February 1993 and is currently the manager of the Employee Welfare and Rehabilitation Unit of the Ministry of Justice. He explained that the document referred to above had been created after discussions between employees of the Ministry of Justice in around 1993.

I will not set out the document in detail but it included, under the heading of "Prisoner Restraints", the following:

"Prison Officers are required to respond to emergency/prisoner disturbance situations and physically restrain aggressive or violent prisoners. Physical requirements may include warding off blows, physically holding and manoeuvring a prisoner, or application of restraints techniques or equipment in a way that minimizes injury to all parties involved. This is considered one of the most physical tasks, and is unpredictable in its time and place".

In his report of 11 September 1996 Mr Batalin stated that activities such as restraining of prisoners, repetitive twisting and bending could adversely affect Ms Logan's back.

From the time of the recurrence of her back injury in 1996 until this inquiry Ms Logan has regularly seen her general practitioner Dr Peter Rae.

In about late October 1996 the respondent referred Ms Logan to a rehabilitation service provider named Advanced Personnel Management. The relevant officer was Ms Jennifer Wilkes, who gave evidence at the inquiry. (In 1996 Ms Wilkes was known by her maiden name of Schurmann however I will refer to her as Ms Wilkes throughout this decision). Ms Wilkes interviewed Ms Logan on or about 25 October 1996. In the course of that interview Ms Logan stated that among the normal work duties associated with her work as a shift prison officer was "restraining prisoners where necessary". During the interview she told Ms Wilkes that "given her current physical limitation she would find difficulty with the standing and walking requirements in her normal position". Ms Logan also said that she would "need to be fit to handle any security situations before returning to her prison officer position".

Ms Logan agreed, in cross-examination, that she had said things to this effect to Ms Wilkes.

During November and early December 1996 steps were taken to devise a rehabilitation programme so as to allow Ms Logan to attempt a gradual return to normal work duties.

In his report dated 28 November 1996 to Ms Wilkes, Dr Rae observed that Ms Logan had, by that date, been off work for almost 4 months with only moderate improvement in symptoms. He noted that she was well motivated to return to work. I would add that Ms Logan's motivation to return to work emerges consistently from the evidence of all those in contact with her during 1996 and 1997. Dr Rae also made suggestions for appropriate physical precautions for the proposed return to work programme. Finally, he stated that it was "reasonable to think that if [Ms Logan] is not able to return to full duties within the next 3 months then it is unlikely that she will ever regain that level of fitness".

On 12 or 13 December 1996 a meeting occurred between Ms Logan, Mr Keith Flynn, the Superintendent of Bunbury Prison, Mr Dan Millard, an officer of the Employee Welfare Unit of the Ministry of Justice, Mr Stephen Sandilands, also of the Employee Welfare Unit, and Ms Wilkes. Mr Phillip Giblett, a prison officer at Bunbury Prison and a representative of the Western Australian Prison Officers' Union ("the Union") may also have been present.

The evidence of both Mr Sandilands and Mr Millard was to the effect that the representatives of the Ministry of Justice emphasised to Ms Logan that her return to work would occur only in the event that her back problem improved sufficiently to enable her to carry out her duties and, further, that a return to work programme generally lasted only for 3 months. Although the possibility of extensions was discussed, it was made clear that rehabilitation programmes were necessarily of finite duration and, if there was insufficient improvement, an officer might be required to be reviewed by a Medical Board. That evidence was not challenged and I accept it.

Shortly after this meeting Ms Logan commenced a graduated return to work rehabilitation programme. The programme involved her working a steadily increasing number of hours per week performing limited duties assisting the officer responsible for stores at the prison. On the material available, the programme appears to have been professionally devised and implemented. No suggestion to the contrary was made.

Ms Logan agreed, during cross-examination, that when she commenced the return to work programme she understood that she was performing duties which were not part of a designated job but which had been contrived for her. As it was put by a number of witnesses, she was performing "supernumerary" duties.

Exhibit C is a letter from Dr Rae that, on its face, was dated either 13 January 1997 or 13 April 1997. Dr Rae said in evidence that his notes suggested that he had written to Ms Wilkes on 13 January 1997 and there was no note of any letter on 13 April 1997. On that basis I conclude that Exhibit C was most likely dated 13 January 1997.

That letter stated that Ms Logan had mentioned the possibility of full time employment in prison stores. Dr Rae expressed strong support for such a possibility noting that it gave job and task flexibility "...without the contingency of prisoner constraint [sic - restraint]". On the basis of Dr Rae's evidence, I consider that the reference to the contingency of prisoner restraint was one which had come from his discussions with Ms Logan. In other words, by January 1997 Ms Logan had mentioned to Dr Rae that the position as a shift prison officer involved the potential need to restrain prisoners. That is consistent with it having also been mentioned by Ms Logan to Ms Wilkes at their initial meeting.

There was ongoing regular contact between Ms Logan and Ms Wilkes. By around mid-February 1997 Ms Logan told Ms Wilkes that she did not feel she had the physical capacity to return to her pre-injury position of prison officer. She also told Ms Wilkes that she was keen to pursue permanent employment in the stores should such a position be made available.

On 13 February 1997 Dr Rae wrote to Ms Wilkes. In his letter he expressed the view that if a permanent position in stores became available it would be an ideal solution to Ms Logan's problems. He also commented that Ms Logan was not going to be able to work again in the full capacity of a prison officer.

On 20 February 1997 Ms Logan saw Mr Batalin again. He commented that she should not return to work which would subject her back to repetitive bending or heavy lifting, but that he saw no contra-indication for work as a light store person on a full time basis.

During this period, and independently of Ms Logan's situation, the staffing arrangements at the Bunbury Prison had been under review. In particular, a proposal for the creation of a new position developed. To put this in context it is necessary to say something about personnel arrangements at Bunbury Prison.

2.2 Bunbury Prison

A site plan of the Bunbury Prison was tendered in evidence. From the plan it can be seen that a number of buildings and other structures are contained within a razor wire perimeter fence. There are four blocks within which prisoners are housed. These were described as C block, self care units, minimum security and maximum security. There is a kitchen, canteen and dining room in which meals are prepared and taken. There is a separately fenced industrial area. That area has a number of workshops including workshops for mechanics, carpentry, metal work, maintenance, grounds, vegetable preparation and a boot shop. There is also a market garden outside the perimeter fence.

Employees within the prison may be categorised as shift prison officers, industrial officers and others.

2.2.1 Shift prison officers

As the name suggests, shift prison officers would work, over a period of months, on various shifts. Some of the shifts included working in cell blocks, gatehouse control or sallyport as well as working as workshop disciplinary officers. In each case, the shift prison officer would have responsibility for various duties within the area of his or her roster. For example, some shift prison officers would open up prison cells in each block each morning. A shift prison officer who was working in the cell blocks would be responsible for supervising the prisoners in that block going to and from meals, to the workshop area and so on. Three officers would normally be attached to C Block, where there might be more than 80 prisoners.

Ms Logan was a shift prison officer until her injury in August 1996.

2.2.2 Industrial officers

Evidence was led that in 1997 there were about 20 industrial officers employed at Bunbury Prison. Of these, about half were what is termed Group 1 industrial officers, the other half Group 2 industrial officers. Group 2 industrial officers had a trade qualification. So, for example, a qualified mechanic would work in that capacity in the workshop. Group 1 industrial officers did not have any trade qualification. These positions were traditionally filled from the ranks of prison officers, often when a prison officer wished to stop working the 12 hour shifts then associated with shift prison officer work.

Group 1 industrial officers had the primary responsibility for the discipline of prisoners in the industrial area with assistance provided, at times, by workshop disciplinary officers. These were shift prison officers with the responsibility for patrolling the workshop area.

One industrial officer had responsibility for each of grounds, maintenance, mechanics, metal work, the boat shop and vegetable preparation. In the carpentry workshop there were two industrial officers, one of whom was said by Mr Giblett to be "disciplinary", the other being a qualified carpenter.

2.2.3 Other employees

The third category of employees at the prison were those appointed under the Public Sector Management Act 1994 (WA) ("the Public Sector Management Act") pursuant to section 6 of the Prisons Act 1981(WA) ("the Prisons Act"). This included people in administration and others such as nurses or those involved in forensic case management.

2.3 Stores/laundry position

Prior to 1997 the duties of the laundry officer at Bunbury Prison had been coupled with the duties of canteen officer. The increasing prisoner numbers led to an increasing load on both the canteen and laundry functions. Evidence was led that the officer who occupied the canteen/laundry position spoke to Mr Giblett, which led to the position being reviewed at a meeting between that officer, Mr Giblett, Mr Flynn and Mr Williams. Mr Flynn then applied to his department to employ an additional industrial officer and to redistribute the duties. The idea was that the laundry duties would be removed from the canteen officer and a new position would be created of stores/laundry officer. That officer would be in addition to the existing stores officer, as well as performing the laundry duties. The existing stores officer position was retained, although that officer's duties no longer included stock control.

By some time in early 1997 approval for the funding of the new position was obtained. By 7 February 1997 Mr Millard made reference in an internal memo to a potential new position of stores/laundry officer which might be coming up.

By some time early in 1997 Ms Logan was aware of the proposed creation of the new stores/laundry position. On the evidence above, that was probably by about January or February 1997, but undoubtedly by April 1997.

In mid April 1997 Ms Wilkes performed a work site evaluation report in relation to the proposed new position. In the report she recorded the outcomes of a meeting at Bunbury Prison on 14 April 1997 between Ms Logan, Mr Flynn, Ms Wilkes, Mr Gerry Archer, a human resources manager of the respondent, and Mr Juha Kuronen, the stores supervisor at Bunbury Prison.

Because the report provides a convenient summary of the new position, I set out in full the job summary which was as follows:

"JOB SUMMARY

Responsible for assisting Stores Officer in the operation of the Stores Department to ensure appropriate stock levels are maintained for the prison and accurate records of goods and services received by the prison and distributed throughout the prison are maintained. Also responsible for supervising the operation of the medium and minimum security laundries. Supervises prisoners working in the store and laundries. Required to liaise with other prison staff, including management, as required".

There were task breakdowns of each of the stores and laundry components as follows:

"Task 1 - Stores

Store duties to comprise 50% of work duties. Required to perform general store keeping duties, maintain accurate records of stock within the prison, process requisition forms, complete ledgers and maintain necessary inventory and data sheets. Paper work duties are performed while seated at a desk, involving writing and telephone liaison. Receives goods arriving into prison and delivers goods to departments in prison. Check deliveries against order forms. May be required to handle some goods (smaller boxes only), however, generally supervises prisoner(s) to unload goods within the prison. Instructs and supervises prisoner working within the Store Department, to prepare orders and carry out stock take. Drives flat top truck into prison to deliver stock to various locations.

.....

Task 2 - Laundry

Laundry duties to comprise 50% of position. Supervises and instructs prisoners (2 to 6) working within the Medium and Minimum Security section laundries, to ensure the laundry operates appropriately and to ensure hygiene levels of prisoner clothing. Responsible for maintaining a tidy, clean and safe working environment. Checks stock levels within laundry and makes stock orders as required. Stock is stored on open shelving. May occasionally handle goods, although able to instruct prisoners to perform lifting and carrying of stock from vehicle into laundry. Liaise with other prison staff as required".

By this time, an issue as to whether the new position required an ability to restrain prisoners had already emerged. Mr Flynn and Mr Archer stated at a meeting on 14 April 1997 that the position of stores/laundry officer required an ability to restrain prisoners. The report prepared by Ms Wilkes reflects that Ms Logan disputed this. Ms Logan said that she had discussed the issue with her union representative and was informed that industrial officers are not required to restrain prisoners and may utilise their 2-way radios to call for assistance if it is necessary to restrain a prisoner.

On 10 April 1997 Mr Flynn signed a job description form for the proposed new position. The key responsibilities were to ensure all goods and services required by the prison are recorded in the correct manner, and to ensure that the medium and minimum security section's laundry effectively maintained prisoner clothing hygiene levels. Included in the general duties were duties first, to ensure compliance with the Prisons Act, Regulations, Executive Directors Rules and other lawfully issued orders; secondly, to maintain discipline of prisoners under the control of the officer; and thirdly, to account for the location of prisoners under direct control until handed over to a relieving officer.

2.4 Further facts

On 21 April 1997 Ms Wilkes wrote to Dr Rae, enclosing a copy of the work site evaluation report and sought comments on Ms Logan's physical ability to undertake the duties set out above in task 1 - stores and task 2 - laundry within that report. Comments were also sought on Ms Logan's ability to assist in the restraint of prisoners if required. A similar letter was sent from Ms Wilkes to Mr Batalin.

On 28 April 1997 Dr Rae responded to the letter. He observed that experience had shown that Ms Logan was well motivated to work and had managed the stores position well, and that there was no reason that she would not also handle the laundry position well. He commented that he didn't think Ms Logan should be expected to be able to restrain a prisoner, adding that it was "highly likely that in this matter the union is correct, in that the position does not require her to". The latter comment is a reference to the issue which had, by then, emerged (and which was apparent from the work site evaluation report) as to whether the new position had as one of its requirements an ability to restrain prisoners. Of course, Dr Rae's views in relation to that question are not of any real assistance. He is a medical practitioner and did not have any firsthand knowledge of the requirements of the proposed position. What is more relevant is his observation that Ms Logan should not be expected to be able to restrain a prisoner.

In re-examination, counsel for the complainant asked Dr Rae to explain his understanding of the requirement of restraint at the time he had written the letter. He said that he had, at that time, understood restraint to be a physically very demanding activity and one which could be "a daily risk factor". Dr Rae was unable to say where that understanding had come from. In particular, he did not suggest that there was anyone other than Ms Logan who might have been the source of such an understanding.

On 2 May 1997 Mr Batalin commented that Ms Logan's ability to assist in restraining prisoners would probably be impaired and that it was inadvisable for her to participate in any violence or scuffles. He commented that he saw no contra-indication for performing the duties outlined in task 1 and task 2 of the work site evaluation report.

By late May 1997 there were a series of internal memoranda within the Ministry of Justice on the question of whether prison industrial officers were required to be able to restrain prisoners. Legal advice was also sought, in this regard, from a solicitor at the Ministry of Justice.

An argument was put by counsel for the complainant which suggested that the assertion by the respondent of a need for all industrial officers to be able to restrain prisoners was something other than a genuine position. It was to rebut that suggestion that evidence of the seeking and obtaining of legal advice, referred to in the previous paragraph, was adduced and received by the respondent. Insofar as the complainant (by her counsel) may have been suggesting that the Ministry of Justice, and, in particular, Mr Flynn, asserted that the requirement to restrain prisoners was a requirement of the position of industrial officer only so as to preclude Ms Logan from the stores/laundry position, I am unable to accept such a suggestion. I am satisfied that the position adopted in this regard, throughout 1997, by the respondent was genuinely held by it. The view of the Ministry, including Mr Flynn, was, and is, that industrial officers are all prison officers under the Prisons Act and must all be able to restrain prisoners to ensure they can perform their statutory powers and obligations.

In coming to this conclusion I have taken into account Ms Logan's evidence that in March 1997 she had a discussion with Mr Flynn at which he said to her words to the effect that he wanted to get rid of her. In his evidence Mr Flynn denied having ever said anything to that effect, commenting that Ms Logan was a valued and respected officer and that he would not have wanted to get rid of her. Resolving this conflict of evidence was not easy. Neither version of events seems to me to be inherently improbable. On the whole, each witness gave their evidence in a way which gave me no reason to doubt their veracity. However, in limited respects there were topics in relation to which I could not accept the evidence of each of Ms Logan and Mr Flynn. In Ms Logan's case, she said in her evidence-in-chief that by 6 months after her dismissal she was fit to have gone back to work. In cross-examination it was put to her that for a time extending well past 6 months after her dismissal she continued to obtain workers' compensation. It then seemed to me that Ms Logan began to equivocate from the position she had put plainly in her evidence-in-chief. Further, when it was put to Ms Logan in cross-examination that for the whole period in which she claimed workers' compensation it was integral to the receipt of that compensation that she remained medically unfit to do the job she had most recently occupied, Ms Logan said that she had not understood this to be the case. In these respects, I do not accept Ms Logan's evidence.

Mr Flynn asserted in his evidence that he was unable to recall whether his letter requesting that Ms Logan be referred to the Medical Board was done at his instigation or at Ms Logan's request. The evidence relating to the Medical Board will be discussed later in this decision. It seems to me quite plain from the evidence that Ms Logan at all times stated her desire to remain employed within the Ministry of Justice, albeit in the then proposed stores/laundry position. I find it difficult to accept that Mr Flynn was unable to recall whether Ms Logan had asked to be referred to the Medical Board. Such a request would have been entirely inconsistent with Ms Logan's conduct throughout 1997.

However, in the end, I am unable to be satisfied that a conversation of the kind alleged by Ms Logan, that is that Mr Flynn said to her words to the effect that he wanted to get rid of her, did occur. In any event, a finding of such a conversation would, it seems to me, be of very limited significance to the issues in the case. In particular, it would not alter the conclusion reached above that Mr Flynn and others within the Ministry of Justice were genuinely of the view in 1997 that all industrial officers needed to be able to restrain prisoners to ensure that they could perform their statutory powers and obligations. That view was by no means confined to Mr Flynn. Rather, it was a view held and expressed by a number of officers in different parts of the Ministry of Justice (many of whom had little or no involvement with Ms Logan as an individual) and a view on which legal advice was sought and obtained.

The Ministry's position in regard to the need to be able to restrain prisoners had been clarified by late June 1997. On 27 June 1997 a meeting was held at Bunbury Prison between Ms Logan, Ms Wilkes, Mr Brian Williams, the Deputy Superintendent of the Prison, a Union representative and Mr Millard. At that meeting Mr Williams advised that the Ministry's position was that it was necessary for an industrial officer to be able to restrain a prisoner if required. Mr Williams also advised that the prison would take steps for Ms Logan to be referred to the Medical Board with Ms Logan continuing her stores duties in the meantime. At the meeting it was suggested by Mr Millard that Ms Logan should consider alternative employment and that he and Ms Wilkes could assist in finding alternatives. Ms Logan said that she wanted to wait for the outcome of the Medical Board before considering alternative employment options.

On 30 June 1997 Mr Flynn wrote to the Executive Director of the Ministry of Justice requesting that Ms Logan be referred to a Medical Board under regulation 5 of the Prison Regulations (Annexure G to Exhibit F). On 13 August 1997 the Ministry of Justice wrote to the Commissioner of Health requesting the convening of a Medical Board to examine Ms Logan. Enclosed with the letter dated 13 August 1997 was the document entitled "Physical Requirements of Prison Officer Duties" referred to previously. By the end of August 1997, the hearing of the matter by the Medical Board had been scheduled for 26 September 1997.

In the meantime a further report from Mr Batalin had been obtained. In his letter of 5 August 1997 to Mr Millard he stated that Ms Logan's condition, which he described as multi-level lower lumbar degenerative disk disease, meant that she would be unsuited for full time duties as a "normal prison officer" and that this was likely to be on a permanent basis.

It appears that during September 1997 Ms Logan was on annual leave for about 3 weeks.

In the preceding months, steps had been taken to advertise the stores/laundry position. The position was initially advertised on 30 July 1997. The initial advertisement referred to the position as a laundry instructor. A subsequent advertisement then occurred, giving the position its correct title of "laundry/stores officer".

Subsequent to the first advertisement it was discovered that the salary nominated in the advertisement had been incorrect and had been lower than the correct salary. The position was corrected by a new advertisement on 27 August 1997. Both Mr Flynn and Mr Williams gave evidence that the new advertisement was placed, correcting the salary, in the light of recent experience. Evidence was led that not long before this advertisement was placed, a position had been advertised at the wrong salary and a complaint had been received from a person who said that had he known of the correct salary he would have applied for the position. Mr Giblett, however, sought to suggest in his evidence that the placement of a new advertisement (with a consequent extension of the closing date for applications) was unusual and that publication of a correction to the earlier advertisement would have been sufficient. In that light, it was suggested on behalf of the complainant that the position had been re-advertised because Ms Logan had been the only person that responded to the first advertisement and Mr Flynn wanted somebody other than Ms Logan to get the job. I am unable to accept that suggestion. I accept the evidence of Mr Flynn and Mr Williams that the position was re-advertised for the reason that they gave.

Each of the advertisements identified, as the sole essential selection criterion, that the applicant be a permanent prison officer.

In a letter to the Medical Board dated 22 September 1997, Dr Rae outlined Ms Logan's medical history and described her return to work in December 1996. Dr Rae said that the return to work was a great success psychologically, commenting that the position in stores gave Ms Logan ideal employment. He also said that "she is not fit, however to take on general prison officer duties". After having made reference to the issue as to whether an ability to restrain was necessary for the position, he commented that Ms Logan "could assist if the need arose but it is not the sort of position she should be in every day". He concluded by saying that "I would strongly contend that Karen is fit for the job she has been doing this year in stores but not for general prison officer duties".

The Medical Board met on 26 September 1997 and prepared a report that day. The report described Ms Logan as having been unable to continue work as a prison officer and having been shifted to a position as a stores officer. It continued "...she has coped well in that position and feels she can manage all the duties involved. After reviewing the medical evidence we accept that Ms Logan is unfit to work as a prison officer. She has proven that she is capable of performing all her current duties".

It is, I think, important to clarify the evidence regarding the relationship between the duties Ms Logan was performing as part of her rehabilitation programme and the new stores/laundry position. Both Dr Rae and the Medical Board appear to have held the view, during 1997, that Ms Logan was already substantially performing the duties required of the proposed stores/laundry officer. Certainly Dr Rae said in his evidence that he understood Ms Logan to be performing a substantive actual job, as opposed to a collection of duties which had been devised for her. In my view, the evidence establishes quite clearly that this was not the case. Rather, the duties performed by Ms Logan during 1997 were supernumerary. They were "contrived" in late 1996 as part of the return to work programme.

The Medical Board was not asked for its view in relation to the proposed stores/laundry position, nor was it provided with any information about the duties of that position.

This comment is not intended as a criticism of Dr Rae or the Medical Board. Doubtless what Dr Rae and the Medical Board stated was based upon their understanding of the position. The point of significance is that the fact that Ms Logan had continued to perform the limited duties given to her was of limited assistance in assessing her capacity to perform the more substantial duties required of the new position of stores/laundry officer.

In October 1997 a representative of the Union requested, by a letter to the Director General of the Ministry of Justice, that the Ministry defer any action on the Medical Board recommendation, that is, that "...Ms Logan is unfit to work as a prison officer". Following that request a meeting was held on 14 October 1997 between representatives of the Ministry of Justice at which it was resolved that the Ministry's position would be maintained, that is, the Medical Board's recommendation should be implemented. Ms Logan was advised of this decision shortly afterwards. As a result, Ms Logan's employment terminated on 20 November 1997.

Also at around this time, Mr Williams considered the applications for the new stores/laundry position. There were two applicants: Ms Logan and Mr Roy Van Leeuwin (a prison officer at Bunbury Prison). Mr Williams applied the advertised criteria of permanent prison officer, and by then had medical advice to the effect that Ms Logan was unable to perform the duties of a prison officer. He therefore determined that there was only one applicant who met the essential criteria. Mr Van Leeuwin's application was successful.

Following a request from an officer of the Government Employee Superannuation Board ("GESB"), Dr Rae wrote a report dated 8 December 1997 in relation to Ms Logan. In that report Dr Rae commented that Ms Logan was unfit to pursue employment as a prison officer. He also commented that taking into account Ms Logan's lack of educational qualifications, her physical impairments and her age that the likelihood of her being able to find a job of similar specifications anywhere else was practically non-existent so that "to all intents and purposes she is totally and permanently disabled".

By letter dated 23 December 1997 the GESB advised that it had approved payment of a disability benefit to Ms Logan.

Through most of 1998 there were ongoing efforts to investigate the possibility of alternative employment and re-training. These efforts were not successful.

In late 1998 Ms Logan's workers' compensation claim against the State of Western Australia was settled.

There was some evidence that prior to the appointment of a new officer to the stores/laundry position Mr Van Leeuwin had been placed in the position of acting stores/laundry officer. Mr Flynn was unable to be specific about precisely when this occurred saying that it was after negotiations with the Union to approve the creation of the position. This would seem to be, at the latest, by 30 July 1997 when the first advertisement was placed.

There were other issues on which substantial evidence was led which I will deal with later in these reasons. These include the duties, day to day tasks and terms and conditions of employment of a prison officer; the duties, day to day tasks and terms and conditions of the new stores/laundry position and of industrial officers generally; the respondent's systems for dealing with injured prison officers and industrial officers; the training of both categories of officers; evidence regarding a number of other prison officers with injuries or other disabilities, and the steps taken by the respondent in relation to those officers.

3. THE COMPLAINANT'S CLAIMS OF DISCRIMINATION

In the amended points of claim the complainant puts the claim of discrimination in a variety of ways. Not all of these appeared to have been pursued at the inquiry. At least as I understood it, counsel for the complainant put the discrimination case essentially on the basis that each of the following matters amounted to unlawful direct discrimination:

(a) the dismissal by the respondent of the complainant from her position as prison officer;

(b) the refusal of the respondent to "accommodate" Ms Logan's disability (by putting in place alternative work arrangements which will be spelled out later in these reasons);

(c) the refusal by the respondent to "transfer" Ms Logan from her position as a prison officer to an industrial officer occupying the newly created stores/laundry position;

(d) alternatively to (c) above, the refusal by the respondent to consider Ms Logan's application for the newly created stores/laundry position.

Counsel for the complainant also argued that:

(e) the requirement of the respondent that the complainant be able to restrain prisoners in order to occupy a position as an industrial officer amounted to indirect discrimination pursuant to s.6 of the DDA and was in breach of s.15(1)(b) of the DDA;

(f) the respondent unlawfully harassed the complainant in relation to her disability in breach of s.35 of the DDA.

For reasons which I will explain further below, it seems to me that the claims in paragraphs (a) and (d) above are the core claims of discrimination in this case.

4. DISMISSAL FROM POSITION AS A PRISON OFFICER

4.1 The law

As is mentioned earlier in these reasons, it was conceded by the respondent that in dismissing Ms Logan from her position as a prison officer it engaged in disability discrimination within the meaning of s.5 of the DDA. The issue before me is therefore whether that discrimination was, in the circumstances of this case, unlawful. The respondent argued that its conduct was not unlawful discrimination, by operation of s.15(4) of the DDA. Section 15 of the DDA provides as follows:

"15 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 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."

It can be seen at once that s.15(4) operates only in relation to s.15(1)(b) and s.15(2)(c). In other words, it operates in relation to the question of to whom employment is offered and to dismissal of employees. Thus it potentially applies to the discrimination alleged by the complainant referred to in paragraphs (a) and (d) above.

The respondent accepted that it bore the onus of satisfying me that its discrimination had lost its prima facie unlawfulness by operation of s.15(4) (see X v Commonwealth (1999) 167 ALR 529, at [19] and [30]).

In X v Commonwealth the applicant had been discharged from the army after a blood test showed that he was HIV positive. The Commissioner who heard the inquiry into his complaint of discrimination rejected the Commonwealth's contentions based upon s15(4) of the DDA. The Commissioner drew a distinction between "the tasks or skills for which a soldier is specifically prepared" and all other features of employment which were mere "incidents of it". In particular, in the Commissioner's view, deployment of a solider to a specific location or in particular circumstances was an incident of the employment and not one of its inherent requirements.

The majority of the High Court found that the approach of the Commissioner involved an unduly narrow construction of the notion of inherent requirements in s.15(4).

Gummow and Hayne JJ explained (at [101]) that s.15(4)(a) applies only "if the person would be unable to carry out [the inherent] requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated". The reference to inherent requirements "invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral" (at [102]).

Their Honours explained that in considering the application of s.15(4)(a) the reference both to inherent requirements and to the particular employment make it necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also:

"... those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee make expose others" (at [103]).

Thus, their Honours continued, the inquiry that was required:

"... was an inquiry about what were the requirements of the particular employment. As we have said, that would begin by identifying the terms and conditions of service which revealed what the army required of the appellant, not only in terms of tasks and skills, but also the circumstances in which those tasks were to be done and skills used. From there the inquiry would move to identify which of those requirements were inherent requirements of the particular employment" (at [105]).

At [109] their Honours explained that an employee must be able to perform the inherent requirements of particular employment "with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment". Deciding what is a reasonable degree of risk to others involves difficult questions of fact and degree which their Honours could not resolve (in the light of the way the matter had been approached at first instance).

McHugh J delivered a separate judgment which is, with respect, also very helpful in understanding the operation of s.15(4).

His Honour suggested (at [32]) that "carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment". He goes on to state (at [33]) that "employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context... It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment."

His Honour explained the approach to determining the inherent requirements of the particular employment (at [37]) as follows:

"Unless the employer's undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgement of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment".

His Honour then went on to explain the relationship between ss.15(4)(a) and (b). Section 15(4)(a) is not, alone, a defence in isolation from s.15(4)(b). Rather, for s.15(4) to apply the employee:

"...must have been discriminated against because he or she was:

(a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also

(b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide."

(McHugh J at [38-39], Gummow and Hayne JJ agreeing at [104]).

X v Commonwealth was a case where the employer alleged risk to other employees arising from the appellant's disability. In that context, McHugh J set out (at [43]) the issues that will ordinarily arise in determining whether the disability prevents the employee from carrying out the inherent requirements of the particular employment:

"1. By reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer? In determining whether there is relevantly a real risk, the Commissioner will have to consider:

(a) the degree of the risk;

(b) the consequences of the risk being realised;

(c) the employer's legal obligations to co-employees and others, whether arising from a common law duty of care, occupational health and safety statutes, or other aspects of the employment regulatory regime;

(d) the function which the employee performs as part of the employer's undertaking;

(e) the organisation of the employer's undertaking.

2. If the answer to question 1 is no, then the disability does not prevent the employee carrying out any inherent requirement of the particular employment. If the answer to question 1 is yes, however, it will be necessary to determine under s15(4)(b) whether the employee could carry out the work safely with the assistance of "services or facilities" which the employer could provide without unjustifiable hardship".

It was accepted by counsel for the complainant that X v Commonwealth establishes that the ability to perform the duties of a particular employment without unreasonable or undue risk to the safety of others is an inherent requirement of every employment. However it was argued that the same cannot be said of the ability to perform the duties of the employment without undue risk to oneself. In my view, that submission must be rejected. It seems to me that the reasoning of the High Court in explaining the need for an employee to be able to perform the duties of a job without undue risk to the safety of others applies equally to the need for an employee to be able to do so without undue risk to himself or herself. Both are, in the language used by McHugh J (at [37]), essential in a legal sense. Moreover, Gummow and Hayne JJ expressed the proposition with reference to a need for reasonable safety "to the individual concerned and to others with whom that individual will come in contact" (at [109]).

In determining whether an employee poses an unreasonable risk to her own safety one must have regard to the employer's legal obligations to the employee, arising both under the common law duty of care in tort and under the occupational health and safety statutes. That, it seems to me, follows from paragraph [43] of McHugh J's judgment quoted above, when applied to the present context in which there are said to be risks not only to fellow employees but to the employee herself. (See also per Callinan J at [172]). It is, in this context, relevant to note that the common law demands in practical terms a high standard of care from an employer (see, for example, Council of the Shire of Wyong v Shirt (1981) 146 CLR 40; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18).

In this sense I accept the submission put on behalf of the respondent that the question of whether an employee poses an unreasonable or undue risk to herself or others, in the context of s.15(4), must "dovetail" with the employer's common law and statutory duties to provide a safe system of work and to take reasonable precautions to avoid hazards to employees. Section 15(4) ought not be construed so that an employer is found to have unlawfully discriminated by failing to allow an employee to continue working (notwithstanding a disability) when to allow her to so continue leaves the employer open to being liable for damages for having negligently placed the employee at risk of injury (because of the disability).

4.2 Is the ability to restrain prisoners an inherent requirement of the position of prison officer?

In my view it is an essential feature or defining characteristic of the employment of a prison officer that she be able to restrain prisoners without undue risk to herself and fellow employees. I set out below a number of matters which I have taken into account in coming to that conclusion.

Section 15(4) requires the identification of the inherent requirements of the particular employment. Logically, therefore, the first step is to identify the relevant "particular employment". Employment as a prison officer plainly encompasses being, at least, a disciplinary or shift prison officer. In this context, it is either employment as a prison officer in Western Australia or employment as a prison officer at Bunbury Prison. However, it is unnecessary to decide that question in that, on either view, I have come to the conclusion that it is an inherent requirement of the particular employment that a prison officer be able to restrain prisoners.

The judgment of McHugh J in X v Commonwealth at [37], set out above, suggests that, in identifying the inherent requirements of the particular employment, one ought have regard to the terms of the employment contract, the nature of the business and the manner of its organisation.

The evidence suggests, and both counsel agreed, that a prison officer's terms of employment are to be found in the Prisons Act and the Gaol Officers Award of 1968 ("the Award") (annexure A to Mr Flynn's statement - Exhibit F). The Award itself says nothing of assistance for present purposes.

A prison officer is engaged in accordance with s.13 of the Prisons Act. An officer is required to take an oath of engagement which includes promises to "do my utmost in the performance of my duty as a prison officer to maintain the security of every prison in which I serve and the security of the prisoners and the officers employed at the prison" (see s.13(2)(b)) and to "uphold the Prisons Act 1981 ... and the regulations, rules and standing orders made under that Act from time to time" (see s.13(2)(c)).

Ms Logan took an oath of engagement in 1986.

A prison officer has the powers and duties set out in s.14 of the Prisons Act, which provides that every prison officer:

"(a) has a responsibility to maintain the security of the prison where he is ordered to serve;

(b) is liable to answer for the escape of a prisoner placed in his charge or for whom when on duty he has a responsibility;

...

(d) may issue to a prisoner such orders as are necessary for the purposes of this Act, including the security, good order or management of a prison, and may use such force as he believes on reasonable grounds to be necessary to ensure that his or other lawful orders are complied with".

The express power for a prison officer to use force to ensure compliance by prisoners with lawful orders of prison officers was a matter emphasised by counsel for the respondent. Certainly, it is, at the least, a strong factor in favour of a finding that the ability to restrain prisoners is an inherent requirement of the position of a prison officer. A number of other matters seem to me to point in the same direction.

Regulation 3(3) of the Prisons Regulations 1982 (WA) provides that a prison officer is engaged to the prison service generally, and not to any particular prison.

The "business" of the employer in this case is the administration of prisons in accordance with the Prisons Act and Prisons Regulations. Prison officers are the persons charged with the primary duty of maintaining security and order in the prisons.

The way in which Bunbury Prison is organised also supports the conclusion that an ability to restrain prisoners, where necessary, is an inherent requirement of the position of prison officer. Without attempting to recount all of the evidence I would observe that there is a relatively small number of prison officers on duty at a given time and many occasions arise in which one or two prison officers may be alone with a number of prisoners.

The shift system at Bunbury Prison requires all prison officers to be available for the full range of shifts. There was evidence of temporary accommodation of injured prison officers by allocating to them shifts, with union concurrence, which minimised prison contact. It was clear on the evidence that such arrangements were temporary only. As McHugh J observed in X v Commonwealth (in [37] quoted above), in Qantas Airways Limited v Christie (1998) 193 CLR 280 ("Christie"), Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. For similar reasons, in my view, a superintendent of a prison is not obliged to restructure the shift system in order to accommodate a prison officer who is unable to restrain prisoners without undue risk to the safety to herself or fellow employees. This conclusion is also relevant to the claim that the failure to "accommodate" Ms Logan was unlawful discrimination. I will deal with that claim below.

In Allen v State of Western Australia [2000] WASCA 221, a claim by a prison officer of negligence by his employer was dismissed at trial. That decision was affirmed on appeal. The following conclusions, upheld on appeal (at [13]), are equally apposite to the evidence regarding shift prison officers at this inquiry:

"The employer is in the prison business: without prisoners there is no business. It is almost impossible to provide work with no prisoner contact. Furthermore, those jobs with minimal prisoner contact are highly sought after as `time out' positions by all prisoner officers. Plainly, prison officers doing shifts with prisoners would fairly expect not to be excluded from such positions and indeed, it is obviously essential for their good health that they have time out and that is the arrangement which has been made with the relevant union".

Counsel for the complainant laid considerable emphasis on the fact that the training and culture of prison officers was that force was only to be used as a last resort, that prison officers should not engage in physical confrontation when alone with prisoners and that physical violence was rarely experienced at Bunbury Prison. In that context the particular profile of many of the prisoners at Bunbury Prison, as sex offenders, was said to make violent confrontation less likely. It was also said that training in the use of physical restraints occupied only a relatively small part of the training course for prison officers.

In my view, those matters are not sufficient to undermine the conclusion that the ability to restrain prisoners is an inherent requirement of being a prison officer. The potential for conflict to escalate into violence is ever present. To my mind, it inheres in the notion of a prison. It cannot be predicted when occasions will arise where a need to physically restrain a prisoner will be required. Nor can such occasions always be limited to situations where other prison officers can attend in time to remove the need for a particular prison officer to be involved. For disciplinary prison officers at least, the ability to deal with situations where a need arises to physically restrain a prisoner is essential to being able to fulfil the inherent requirements of the particular employment.

I have also taken into account the evidence that both the complainant and respondent appear to have considered that the need to restrain prisoners was a requirement of being a prison officer. The document entitled "Physical Requirements of Prison Officer Duties" with its reference to prison restraints was outlined earlier in these reasons. It has been used within the Ministry of Justice since about 1993. In early 1997 Ms Logan told both Ms Wilkes and Dr Rae that restraining prisoners where necessary was part of her duties as a prison officer.

4.3 Was Ms Logan able to restrain prisoners without undue risk to herself and others?

Having found that the ability to restrain prisoners is an inherent requirement of the duties of a prison officer, it is necessary to consider whether Ms Logan was unable to carry out that inherent requirement. As Gummow and Hayne JJ made clear in X v Commonwealth, "inability must be assessed in a practical way but it is inability, not difficulty, that must be demonstrated" (at [101]).

I have already found that the ability to perform duties without undue risk to other employees or to oneself is an inherent requirement of every employment.

In my view, the evidence compels the conclusion that Ms Logan was, in 1997, unable to restrain prisoners without undue or unreasonable risk to herself and other employees.

In a number of reports and letters during 1997 Dr Rae expressed the view that Ms Logan should not be expected to restrain prisoners. These include his letters of 28 April 1997 and 22 September 1997 (Exhibit 8 and Exhibit A). Counsel for Ms Logan suggested that these letters must be viewed in the light of Dr Rae's evidence (referred to above) as to his understanding of the nature and extent of the restraint required.

Against this, the respondent pointed to the simple fact that Dr Rae never certified Ms Logan as being fit to return to normal prison officer duties.

Dr Rae agreed, in cross-examination, that Ms Logan's symptoms and history meant that she was at a greater risk than the ordinary person of having a significant exacerbation of severe pain arising from physically restraining a prisoner.

Mr Batalin's views were to the same effect. The Medical Board also reached the conclusion that Ms Logan was not fit for duties as a prison officer.

In the light of all the evidence I am satisfied that the need to physically restrain a prisoner would have involved Ms Logan in a significantly greater risk of exacerbating her back problem than would be the case for the ordinary person.

It was argued on behalf of the complainant that, nonetheless, the risk posed to Ms Logan by the potential need to restrain prisoners was not an unreasonable or undue one. It was said that age related degenerative problems in the back affects a significant proportion of the population and so everyone faces various degrees of risks of back problems. Further, it was submitted that, on the medical evidence, an exacerbation arising from the need to restrain a prisoner would not have "crippled" Ms Logan, but merely produced substantial pain and a significant period off work. Finally, it was said that there was no medical evidence to suggest that she would have been unable to complete any necessary restraint of prisoners, thus suggesting that her back problems in no way endangered fellow employees.

I am unable to accept these submissions. In my view, an employer who is aware that a particular employee has an existing medical condition which makes that employee particularly vulnerable to exacerbating that condition by performing what I have found to be an inherent requirement of the position is entitled to view the prospect of the employee suffering substantial pain and a significant period off work as amounting to an undue, unreasonable or unacceptable level of risk. It seems to me that to come to any other conclusion would be to require the employer to expose itself to the prospect of a claim in negligence by the employee. For example, it might later be said that the employer was negligent in selecting for the vulnerable employee a shift which gave rise to an increased prospect of the need for physical confrontation. The risks to the vulnerable employee of injury or aggravation of a pre-existing problem are plainly `real and not far-fetched or fanciful' (cf Council of the Shire of Wyong v Shirt (1981) 146 CLR 40).

Further, a person with a known vulnerability to injury in the event of physical confrontation might be expected to be inclined to hold back if a confrontation occurs. An employer who is aware of a special vulnerability on the part of a particular employee might later be subject to a claim by a fellow employee in such circumstances, and is entitled to take that prospect into account in determining whether the risk arising from an employee's disability is an undue or unreasonable risk.

Although it is by no means decisive, it may be worth noting that Ms Logan herself expressed the view to Ms Wilkes that she did not feel she had the physical capacity to return to the position of prison officer. Counsel for Ms Logan suggested that this evidence should be viewed as possibly involving an attempt by Ms Logan to increase her prospects of obtaining the stores/laundry position which was a more attractive position to her. If I accepted that argument, questions might well arise as to what effect that might have upon any relief claimed by Ms Logan. However it is unnecessary to make a finding in this regard because, quite apart from the evidence of what Ms Logan said about the topic, for the reasons set out above I have reached the view that Ms Logan was unable to restrain prisoners without an undue risk to herself or other prison officers.

4.4 Other prison officers

In support of the argument that any risk arising from Ms Logan having to restrain prisoners was not an undue or unreasonable one, counsel for the complainant led considerable evidence regarding illness or injury on the part of other prison officers. For reasons to which I now turn, that evidence seems to me to be of very limited assistance in determining this case.

A large volume of material in the nature of medical reports and certificates relating to more than 20 other prison officers and industrial officers was tendered on behalf of the complainant. Questions were asked of Dr Rae, Mr Batalin and Mr Flynn regarding the medical conditions of these officers. The medical reports and certificates were tendered and received on the basis that they constituted material in the possession of the respondent, rather than as being evidence of the truth of their contents.

It is convenient to begin by considering how such evidence may be relevant to the issues in this inquiry. Counsel for the complainant sought to use this evidence in a number of ways. First, she argued that discrimination against Ms Logan could be demonstrated by showing that Ms Logan had been less favourably treated than people with objectively similar (or not materially different) disabilities. However s.5 of the DDA does not call for a comparison between people with like disabilities. Rather, it requires a comparison of the treatment of a person with a disability and persons without the disability. In any event, the fact that discrimination occurred is not in issue. The issue for this inquiry is whether the discrimination was unlawful.

Secondly, in the context of s.15(4), counsel for the complainant argued that a consideration of the medical information available regarding other prison officers was relevant to assessing whether any risk of injury to Ms Logan arising from the potential need for her to engage in prisoner restraint was an undue or unacceptable degree of risk. In effect, counsel invited me to take account of the medical information in the possession of the respondent regarding various officers, and combine that with expert opinions received in this inquiry from Mr Batalin or Dr Rae, to conclude that a certain degree of risk was acceptable to the respondent. She submitted that the respondent is deemed to have accepted whatever risks emerge from the material in its possession, even if the respondent had not realised the significance of material in its possession. In support of these submissions it was also said that discrimination need not be intentional or knowing.

I am unable to accept these submissions. The issue in this case is the operation of s.15(4) of the DDA. There is, it seems to me, a distinction between accepting different levels of risk for different people (which is what counsel for the complainant invites me to conclude has happened here) and the respondent simply having made different assessments as to the level of risk of each relevant individual, which seems to me to be the appropriate conclusion on the evidence before me.

This is not to suggest that material relating to the medical condition of other prison officers could not be relevant at all. It may be relevant in a number of ways. First, if it were demonstrated that a number of people were engaged in a particular employment and were not able to comply with what an employer said was an inherent requirement of that employment, plainly this would undermine the employer's contention. No argument of this kind was made in the inquiry. Nor is there any evidence to support such an argument, given that the material was tendered only for the purpose of demonstrating that it was in the possession of the respondent, and not as evidence of the truth of its contents. In any event, the material tendered does not seem to me to support any conclusion that a number of people would be unable to comply with the requirement of being able to restrain prisoners.

There are two other ways in which the material may be relevant. If the information in an employer's possession suggested that a number of people could not comply with what it says to be an inherent requirement, but the employer did nothing about it, the employer's contention as to what is an inherent requirement would be significantly undermined. Further, if an employer took no or no adequate steps to see whether employees were able to comply with what it said was an inherent requirement of a position, again the employer's contention would be undermined.

I have considered the substantial material tendered by the complainant regarding other officers at Bunbury Prison. In my opinion the evidence does not undermine the respondent's assertion that the ability to restrain prisoners is an inherent requirement of the position of a prison officer. At the most, from the perspective of the complainant's arguments, there may have been one or, perhaps, two instances where arguably the respondent ought to have obtained, but did not obtain, definitive medical advice on whether an officer was physically capable of restraining prisoners without undue risk. However, even on that view I do not consider these to have been such clear cases as to undermine the consistently held position of the respondent, supported by the evidence referred to earlier in these reasons, that prison officers are required to be capable of restraining prisoners. The relevance of this evidence to industrial officers (as distinct from shift or disciplinary prison officers) will be dealt with later in these reasons.

The evidence before me also established that an initial medical examination takes place when a person becomes a prison officer. After that, the respondent does not have any ongoing system of medical examination of prison officers to ensure that they remain physically capable of doing the job, including being able to restrain prisoners. In this regard, the respondent relies substantially upon "self reporting" by officers. Mr Flynn suggested in his evidence that an officer's duty under s.12(b) of the Prisons Act to "report to the superintendent every matter coming to his notice which may jeopardize the security of the prison" requires prison officers to advise him of any medical condition which jeopardises a prison officer's ability to perform his role. Mr Giblett expressed a similar view.

Throughout 1997 the respondent had received consistent medical advice that Ms Logan was unable to perform her duties as a prison officer. That cannot be said of any of the other prison officers in respect of whom medical material has been tendered by the complainant. None of the records of any of those officers included medical advice that the prison officer was permanently unable to carry out their duties as a prison officer.

For the reasons set out above, I have come to the view that Ms Logan was unable to carry out the inherent requirement of being able to restrain prisoners without undue risk to herself or other employees.

4.5 Section 15(4)(b) - services or facilities

The next question which arises is whether there were services or facilities, not required by persons without a disability, the provision of which would enable the complainant to carry out that inherent requirement and the provision of which would not impose an unjustifiable hardship on the employer (s.15(4)(b) of the DDA).

The complainant suggested, through her counsel, that relevant "services or facilities" which might have been provided to her included placing her in an area of the prison where it was known that there would be less likelihood of a requirement for restraint and not requiring her to rotate through the normal roster of a prison officer. In my view, however, that does not constitute "services or facilities" for the purpose of s.15(4)(b). Section 15(4)(b) obliges an employer to provide services or facilities which enable an employee with the disability to carry out the inherent requirements of the particular employment so long as the provision of those services or facilities does not impose an unjustifiable hardship on the employer. The re-arrangement of employment arrangements of the sort contended by the complainant would not have enabled Ms Logan to carry out the inherent requirement of restraining prisoners. It would have in fact avoided the need for her to comply with that requirement. That is not what is contemplated by s.15(4)(b). As Gummow and Hayne JJ put it in X v Commonwealth (at [102]) the "requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work". The analogy with the bidding system in Christie, explained earlier in these reasons, is apposite again here.

Other matters suggested on behalf of the complainant would not, in my view, so diminish the risk involved in Ms Logan having to restrain prisoners that it could no longer be said to be an undue or unreasonable risk. The provision of a personal alarm and a hand held radio would not eliminate the real risk that circumstances may arise in which Ms Logan was required to restrain a prisoner (or prisoners) and that she or fellow officers could be put at risk.

For these reasons, I find that the respondent's dismissal of the complainant from her employment as a prison officer was, by the operation of s.15(4), not unlawful discrimination.

5. REFUSAL TO "ACCOMMODATE" MS LOGAN'S DISABILITY OR REFUSAL TO TRANSFER

In my view these arguments can be dealt with very briefly. The essence of the argument put on behalf of the complainant suggested that the respondent should have "accommodated" Ms Logan's disability by putting in place alternative work arrangements. These arrangements have been identified previously. It was suggested that the respondent should have taken account of the complainant's disability in allocating her shifts as a prison officer, or in giving her additional support of other prison officers. For reasons which have already been articulated, it seems to me that the respondent was under no obligation to do these things. The comments of Gummow and Hayne JJ in X v Commonwealth (at [102] quoted above) seem to me to dispose of any such argument. Further, the analogy with the bidding system in Christie seems again to apply here.

Next, it cannot be argued that the respondent discriminated against Ms Logan by refusing to "transfer" her from her position as a prison officer to the newly created stores/laundry position. It was not a question of a transfer. The evidence makes it quite clear that the newly created stores/laundry position, like all other positions within the prisons system, was to be advertised and filled on merit. No prison officer had any right to be transferred to the position. The position was advertised, applications received and then considered.

In that light the real ground of complaint, if there be ground for complaint, by Ms Logan is in the refusal by the respondent to consider her application for the newly created stores/laundry position. It is to that that I now turn. In doing so it is convenient to begin by considering in more detail some aspects of the employment of industrial officers within the prison system in Western Australia.

6. REFUSAL TO CONSIDER APPLICATION FOR STORES/LAUNDRY POSITION

6.1.        The role and status of industrial officers

The Prisons Act contemplates two kinds of officers working within a prison: prison officers engaged under s.13 and officers appointed, pursuant to s.6(3) of the Prisons Act, under the Public Sector Management Act. An issue emerged in this inquiry as to where, during 1997, industrial officers fitted into that scheme.

Section 6(3) of the Prisons Act provides as follows:

"There may be appointed under and subject to Part 3 of the Public Sector Management Act such officers, other than prison officers engaged under section 13, as are required for the purpose of this Act".

In my view the evidence establishes beyond any real doubt that industrial officers were, as at 1997 and for some time earlier, prison officers engaged under s.13. My reasons for coming to this conclusion are as follows.

A number of witnesses called by the respondent gave evidence that the respondent has for many years considered industrial officers to be prison officers who are engaged under s.13 of the Prisons Act. It was argued on behalf of the complainant that the evidence of Mr David Seal, Manager of Workplace Reform in Prisons within the Ministry of Justice, together with a letter dated 29 June 1998 from Mr John McColl, the Associate Director of Prison Operations within the Ministry of Justice (Eexhibit 10), supported a conclusion that industrial officers had not been engaged under s.13 but, rather, were appointed under the Public Sector Management Act pursuant to s.6(3) of the Prisons Act. I do not accept the complainant's submission. In my view, the evidence referred to suggests that industrial officers were engaged under s.13 but that there had been some cases where no oath of engagement (as required by s.13) had actually been taken. Contrary to submissions on behalf of the complainant, that fact would not thereby have converted an industrial officer to having been appointed under s.6 of the Prisons Act. There was no evidence of industrial officers having been so appointed. It simply meant that there had been a failure to comply with a statutory formality. What legal consequences, if any, would flow from that does not need to be considered in this context.

As was explained above, not all industrial officers were former shift prison officers or qualified as such. Grade 2 industrial officers were people with trade qualifications.

Mr Flynn said in his evidence that the position regarding the qualification of, and criteria for, industrial officers changed over time. He gave evidence that the respondent sought to avoid the duplication of resources arising from the need to have prison officers to maintain security and safety in the industrial areas. Thus, over time, industrial officers were appointed who, as an essential requirement of their positions, were appointed as prison officers qualified to also carry out the duties and responsibilities of prison officers. The timing of these suggested changes was not entirely clear, but Mr Flynn's evidence seemed to suggest that the change had occurred by 1996. However, in about 1995 or 1996 Mr Gerry Jackson was employed as an industrial relief officer. This position did not require, as an essential criteria, that Mr Jackson be a permanent prison officer.

Mr Seal said in his evidence (as did Mr Giblett) that during 1997 there was a review of industrial officer classifications pursuant to the Enterprise Bargaining Agreement ("EBA") entered into between the respondent and the Union. The EBA was registered on 5 May 1997. That review is ongoing and has continued since 1998.

In 1998 the respondent proposed, and the Union accepted, that industrial officers should have the same training as prison officers. Up until that time the training for industrial officers had been significantly different from the training for prison officers.

Mr Williams gave evidence that a prison officer employed in 1996 to work at Bunbury Prison would have undertaken a nine month probationary officer training course initially at Wooroloo or Canning Vale Prison. The first three months consisted of residential training and then the next six months was done on the job. Detailed evidence was adduced by the respondent as to the contents of this training. Against this, evidence was given that a Group 2 carpentry shop instructor would have had one week's orientation at Bunbury Prison. That would have included some training in security, some training in the standard orders in what to bring and not to bring into prisons and orientation through the industrial area involved.

Mr Flynn explained the development of training for industrial officers. In around 1992, while he was at Roebourne Prison, he caused a pilot program to be introduced enabling industrial officers to become trained as prison officers, thereby improving their prospects of promotion. When he went to Bunbury Prison he encouraged his industrial officers to do the same although it was not mandatory. This led to increased flexibility in the workforce.

Mr Flynn said that the reason that such training was not mandatory for industrial officers was largely based on the convenience of the Ministry of Justice. He explained that shift officers can be employed in batches of 20 people and trained in such groups. On the other hand, the industrial positions tend to arise on an individual basis so training one individual would be more difficult.

Mr Flynn further explained that some aspects of a shift prison officer's training would never be used by an industrial officer. It would, he said, have been a waste of training time and money to provide industrial officers with training for things they would not normally encounter because in reality their jobs were different day to day.

Mr Flynn identified Mr Kuronen, a stores officer, as the only industrial officer at Group 1 or Level 1 who had not previously been a shift officer. Before coming to Bunbury Prison Mr Kuronen had occupied a stores type position at Casuarina Prison and was employed under the Public Sector Management Act or its predecessor.

A number of witnesses called by the respondent gave evidence to the effect that being able to restrain prisoners is an inherent requirement of employment as an industrial officer within the prison.

Mr Flynn said in his statement (Exhibit F) that he considers it an essential requirement of being a prison officer to be able to restrain prisoners when and if the need arises and that that requirement exists irrespective of whether or not the prison officer is occupying a position as an industrial officer. He went on to state that in managing the Bunbury Prison he relies on the ability of all prison officers, including industrial officers, to be able to restrain prisoners and manage them in accordance with the Prisons Act and Regulations. If he could not rely on industrial officers to carry out the duties of prison officers when and if the need arises it would be necessary to engage a considerable number of extra prison officers to ensure prison security and safety.

Mr Williams expressed the view in his written statement (Exhibit E) that it is very important that both prison officers and industrial officers be physically capable of restraining prisoners because in their every day work they come into contact with prisoners. Industrial officers work closely with prisoners and are responsible for giving them orders with which they must ensure compliance. Further, industrial officers often work in environments where there are tools or equipment available which could be used as weapons. If a prison officer or industrial officer was unable to restrain prisoners this would ultimately pose a security risk for the prison. In addition, both the officer concerned, other officers, staff and members of the community working in the prison, and other prisoners would be at risk of injury if a prison officer or industrial officer was not physically able to restrain prisoners. If possible, officers seek to avoid confrontation. However this is not always possible.

Mr Seal also expressed the view that industrial officers generally work very closely on a day to day basis with prisoners and often in an environment where there are tools and equipment which could be used as weapons. In that light it is important that industrial officers are able to deal with prisoners and to respond effectively to resolve a conflict. He said that an industrial officer requires the physical ability to restrain prisoners as well as a knowledge of and training in how to deal with prisoners in ways that avoid the need to resort to a physical response.

6.2 What is the "particular employment"?

If, as the respondent argued, the "particular employment" is employment as a prison officer in Western Australia (or employment as a prison officer at Bunbury Prison) then the complainant was unable to carry out an inherent requirement of that employment. I have already so found in coming to the conclusion that dismissal of the complainant as a prison officer was not unlawful discrimination. However, if the "particular employment" is more narrowly delineated it is then necessary to identify the inherent requirements of that particular employment.

The respondent's submission was that because an industrial officer was a prison officer under the Prisons Act the position of industrial officer therefore has the same inherent requirements. A premise of that submission is that the "particular employment" of all shift prison officers and industrial officers is engagement under s.13 of the Prisons Act. I have already found that industrial officers were engaged under s.13. However, that finding does not, in my view, determine the question of what the particular employment is for the purposes of s.15(4). It is possible that two employees may have common statutory obligations in performing their contract of employment, but nonetheless have different contracts of employment with different duties and tasks to be performed. It could not then be said, necessarily, that the two employees had the same "particular employment". In other words, in my view it is necessary to have regard to all of the terms of a contract of employment, not solely those arising from an applicable statute, to identify the "particular employment" for the purposes of s.15(4).

In Christie the question was whether Mr Christie's employment with Qantas had been terminated for a reason proscribed by s170DF of the Industrial Relations Act 1988 (Cth). Sub-section (1) of that section prohibited termination for reasons including the employee's age. However sub-section (2) provided that sub-section (1) did not prevent age from being a reason for terminating employment if the reason was based on the "inherent requirements of the particular position".

Thus the statutory context in Christie was substantially similar, although not identical, to s.15(4) of the DDA. In Christie, Gummow J commented that "the `particular position' emphasises that the sub-section is directed to the precise case in question, not to a general class of persons of which the employee comprises one member" (at [101]).

It seems to me that the same reasoning applies, possibly with more force, to the reference in s.15(4) DDA to the "particular employment".

That approach to the identification of the "particular employment", for the purposes of s.15(4), seems to me to be consistent with the approach taken in X v Commonwealth. The passage from the judgment of Gummow and Hayne JJ at [105], quoted above, supports that approach. So too, in my view, does McHugh J's analysis of the scope of the appellant's employment (at [62] - [67]). In that part of his judgment, his Honour identified the scope of the appellant's employment, present and future, as a critical factor for determination, but found that the Commission had not undertaken the necessary factual analysis. Because no allocation to any particular branch or unit had occurred by the time of the appellant's discharge, the scope of his employment could not be narrowed in that way. His Honour found that the precise content of the particular employment was a question for the Commission to determine and that this had not occurred.

Thus, it seems to me, I must identify the scope of the contract of employment of the successful applicant for the position of stores/laundry officer in order to determine what the "particular employment" is.

The evidence available in order to perform that task is quite limited. The contractual relationship between the successful applicant for that job and the respondent was not the subject of any direct evidence. Nor, indeed, was there evidence of the precise content of the contractual relationship between a shift prison officer and the respondent. It was simply accepted by both counsel that, in the latter case at least, the contract of employment was simply to the effect that a prison officer, upon taking oath of engagement, becomes employed to perform the duties of a prison officer in accordance with the Prisons Act, and with the rights and obligations created by the Award. Can that be equally said of the terms and conditions of employment of the successful applicant for the position of stores/laundry officer? If it can, then the "particular employment" is the same as has already been considered.

The respondent argued that all officers engaged under s.13 of the Prisons Act, whether in positions as shift prison officers or industrial officers, are employed on the basis that they will work as prison officers under s.13, in whatever capacity they are commanded and anywhere within Western Australia. The respondent therefore contended that an industrial officer with a trade qualification in, for example, carpentry, working as an industrial officer in the carpentry workshop at Bunbury Prison could be commanded, as a matter of contract between employer and employee, by his employer to work as a shift prison officer.

The respondent relied upon regulation 3(3) of the Prisons Regulations in this context. However I do not consider that regulation 3(3) determines the question. It may well mean that an officer can be ordered to move from one prison to another. However in my view it does not mean that the employer can order a carpenter employed in the carpentry workshop to work as a prison officer. There is an air of unreality about such a proposition. Many industrial officers are not qualified to work as shift prison officers (for example, Mr Kuronen and the trade qualified Group 2 industrial officers). Counsel for the respondent suggested that industrial relations and other realities would probably preclude such conduct from ever occurring. However, there seems to me to be a real question as to whether the contractual relationship between employer and employee would permit such an occurrence (quite apart from any industrial relations constraints on the employer's orders to the employee).

The answer to that question would turn, in large measure at least, upon the precise communications which constituted the contract of employment of the relevant industrial officer. There is, in that regard, very little evidence.

The precise content of discussions or documents constituting the employment contract of the successful applicant for the stores/laundry position is not at all clear from the evidence. The advertisement of the position describes it as a position as "stores/laundry officer at Bunbury Regional Prison". The duties are stated to be the carrying out of all duties associated with the efficient running of the laundry and stores. The job description form also described the office and its responsibilities and is summarised earlier in these reasons.

In the absence of clear evidence, it seems to me reasonable to conclude that these documents would constitute part of the contract of employment of the successful applicant for the position of stores/laundry officer.

I am unable to identify anything in the content of those documents which would be sufficient to empower the respondent, as the employer of the successful applicant for the stores/laundry position, to direct that person to work as a shift prison officer or indeed as an industrial officer outside of the stores/laundry position. Nor am I able to be satisfied from any other evidence at the inquiry that the respondent is so empowered.

For these reasons I conclude that the "particular employment", for the purposes of s.15(4), is employment as the stores/laundry officer at Bunbury Prison.

That conclusion by no means removes the significance of the fact that the successful applicant for the stores/laundry position would be engaged as a prison officer with the duties set out in ss.12 to 14 of the Prisons Act. That fact is relevant to the identification of the inherent requirements of the position, to which I now turn.

6.3 What are the inherent requirements of the particular employment of stores/laundry officer?

The day to day tasks contractually provided for are, I think, summarised reasonably accurately in Ms Wilkes' work site evaluation report which is quoted at length above. It can be seen at once that the contractual tasks of a stores officer are different from that of a disciplinary or shift prison officer in that, in the latter situation, one of if not the primary focus of the day to day duties is the management of prisoners per se.

However, that is by no means the end of the matter. It is plain from the High Court's decision in X v Commonwealth that one must have regard to where, when, in what circumstances and with whom those tasks are to be performed (at [106]). Both the stores and laundry roles require a degree of prisoner contact. Prisoner contact in the laundry role was considerably more substantial.

The laundry component of the position involves day to day regular supervision of up to six prisoners. The evidence is that these prisoners would be medium or minimum security prisoners. The prisoners selected for the laundry would, on the evidence, be chosen bearing in mind the likelihood that they would be working on their own for a lot of the time. As at 1997 there would have been prisoners working seven days a week in the laundry. The stores/laundry position was for Monday to Friday. Thus it was contemplated that on weekends the prisoners in the stores/laundry position would not have any direct supervision. A degree of supervision would come from occasional visits from roving disciplinary prison officers. Further, the stores/laundry officer was, by definition, only spending about half of her or his time in the laundry. So while the officer was engaged in stores duties, the prisoners in the laundry would also be unsupervised (apart from roving prison officers).

Mr Flynn's evidence was to the effect that the need for the stores/laundry officer to be able to restrain prisoners arose from the general view (held by him and upon which he had obtained advice from the Ministry of Justice) that all industrial officers were prison officers under the Prisons Act and therefore must be able to restrain prisoners. He did not suggest that he had specifically analysed the position of stores/laundry officer to come to the view that it required an ability to restrain prisoners.

The respondent led evidence to the effect that all industrial officers must be able to restrain prisoners, and as to the reasons that that is important (outlined above). That position is undermined, to some degree, by several matters. As was acknowledged, such has not always been the position. There remains within the prison system a number of industrial officers who are not qualified prison officers. Group 2 industrial officers are not, generally, qualified prison officers, but have a trade qualification. In each of the boot shop and metal shop there was, in 1997, a single Group 2 industrial officer with, respectively, 17 and 12 prisoners under his supervision. Each was entirely on his own apart from roving officers dropping in from time to time. A phone or radio could be used to call for help if necessary.

Mr Jackson was employed as an industrial relief officer not long before 1997. He was not required to be qualified or trained as a prison officer. Mr Kuronen was the stores officer. He was not a qualified prison officer, nor did he have a trade qualification. There was substantial evidence regarding an injury he received to his shoulder. Counsel for the respondent appeared to accept that there was nothing in the material put before the inquiry to establish that the respondent took any steps to satisfy itself, when Mr Kuronen returned to work, that Mr Kuronen was capable of restraining prisoners. This is not a matter on which I put substantial weight, however it may be seen as not coincidental that the position Mr Kuronen occupied was one which, in reality, involved little prisoner contact.

The differences in training of industrial officers and prison officers, as at 1997 and prior to that, reflected, at least in part, a recognition of the difference in the reality of the day to day tasks involved in those jobs.

The duties set out in the job description form are summarised above. These duties included, as point 2, a duty to maintain discipline of prisoners. This was suggested by Mr Giblett to be unusual. He contrasted the position, in this regard, with the job description for an industrial officer in the market garden (Exhibit D). I note, in that context, what appears to be an earlier draft of the job description form provided to Ms Wilkes (annexure KK to Exhibit N) which omitted point 2 - the duty to maintain discipline of prisoners. In any event, as was suggested in a question by counsel for the respondent, the inclusion of the duty to maintain discipline of prisoners seems to add nothing of substance to the duty at point 1 (common to all industrial officer positions) of ensuring compliance with the Prisons Act and Regulations and other lawfully issued orders. In that light, the successful applicant for the stores/laundry position did not have materially different duties, as regards the control of prisoners, than other industrial officers, including Mr Jackson, Mr Kuronen and the officers in the boot shop and metal shop referred to above.

While engaged in duties in the laundry, the stores/laundry officer had duties under s.14 of the Prisons Act as well as having taken an oath in terms summarised earlier in these reasons. That fact, combined with contact with prisoners is, the respondent argued, sufficient to compel the conclusion that the ability to restrain prisoners is an inherent requirement of the employment as stores/laundry officer.

I am not persuaded that that is so. I do not doubt that it would be desirable for anyone whose employment involved regular contact with prisoners to have a physical capacity to restrain prisoners if the need arose. That desirability is reinforced if the employee has a statutory duty to do her utmost in the performance of her duties to maintain the security of the prison and has the statutory power to use such force as she believes on reasonable grounds to be necessary to ensure that her lawful orders are complied with. Similarly, as Mr Giblett said, it is desirable that all industrial officers be trained to restrain prisoners because it is possible that the need may arise.

However, in my view it is a question of degree whether there is, in a particular employment, sufficient prospect of a need arising for the exercise of the statutory power to use reasonable force so that it can be said to be an inherent requirement of the employment that the person be able to restrain prisoners. The existence of the statutory powers and duties does not of necessity, without more, compel the conclusion that ability to restrain is an inherent requirement. An employee may have such statutory power and duties but be in an employment which means the occasion for exercise of such power is, in practical terms, nil. I do not suggest that that is so in this case. The point is made to explain my view that questions of degree are involved.

That questions of degree are involved seems to me to be supported, albeit by analogy, by the analysis of McHugh J in X v Commonwealth at [42], where there is reference to the relevance of the degree and circumstances of contact between the employee and others.

The evidence suggests that employment as the stores/laundry officer involves contact with prisoners which is significantly more limited in nature, extent and circumstances, than that entailed by employment as a shift prison officer. In the laundry part of the job, contact is limited to a small number of prisoners in a particular environment, that is, the laundry. The prisoners are, for reasons mentioned earlier, unlikely to be the most difficult to manage and supervise. The stores role involves contact with prisoners which is even more limited.

The prospect of circumstances arising where the stores/laundry officer needed to physically restrain a prisoner seems to me to be very substantially lower than for a shift prison officer.

On the evidence before me, I am not satisfied that physical capacity to restrain prisoners is truly "essential" or "necessary to ensure the adequate performance of the employment" (per McHugh J in Christie at 310) of the stores/laundry officer.

In coming to this view I have taken into account the evidence of the respondent's witnesses regarding the reasons why it is important that all industrial officers be able to restrain prison officers. I have sought to give (as McHugh J said ought be done, in X v Commonwealth at [37]) appropriate recognition to the business judgment of the respondent in organising its undertaking and in regarding this or that requirement as essential to the particular employment. However, as McHugh J said, in the end, it is for the Commission, not the employer, to determine whether or not a requirement is inherent in a particular employment.

Consistent with that, the fact that the advertisement itself stated, as an essential criterion, that a person be a permanent prison officer is not, in my view, determinative of the inherent requirements of the employment. In Christie, Brennan CJ, Gaudron J and McHugh J all held that a stipulation within the contract between employer and employee is not conclusive of whether a requirement is inherent in the employment (at 284, 294-5 and 310). I am unable to identify any compelling reason for that requirement when, in 1997, there were industrial officers who were not qualified prison officers (and, indeed, not otherwise trained in restraining prisoners) occupying the positions of industrial officers in stores, the boot shop and the metal shop, and in the latter two cases with more prisoners than were working in the stores or laundry.

For the reasons set out above I conclude that the respondent has not discharged its onus of proving that it was an inherent requirement of the position of stores/laundry officer that the holder of that position be physically able to restrain prisoners. In that light, the respondent's discrimination in refusing to consider the complainant for that position amounted to unlawful discrimination.

In light of this finding there is no need to consider the claim of indirect discrimination.

7. CLAIM OF HARASSMENT

The remaining part of the complainant's claim is harassment. The complainant complains that the respondent has contravened s.35(2) of the DDA in a variety of ways particularised in paragraph 15 of the amended points of claim.

Section 35(2) provides as follows:

"35 Harassment in employment

...

(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."

The complainant says that the respondent, through Mr Flynn, harassed her in relation to her disability in various ways which may be summarised as follows:

(a) Mr Flynn informing the complainant that he would ensure that she would be dismissed as a result of a forced attendance to the Medical Board;

(b) by insisting that she work outside the stores office and telling her that if she didn't like it she could leave;

(c) by requesting that she take leave so that they could arrange the position without her presence;

(d) by placing Mr Van Leeuwin in the position of acting stores/laundry officer before the position was advertised.

One or two additional matters, not included in the points of claim, were raised in closing submissions as constituting harassment. I will dispose of those very briefly. The additional matters relied upon either did not, on my earlier findings, occur or in my view are plainly incapable of constituting harassment.

A number of arguments were raised on the part of the respondent as to why the harassment claim must fail. However, in the light of my factual findings, it is not necessary to deal with all of those arguments.

Of the conduct alleged by the complainant to constitute harassment, in my view, only the final allegation, of placing Mr Van Leeuwin in the position of acting stores/laundry officer was conduct which actually occurred.

I do not need to decide whether a single discrete act of this kind could constitute harassment. The ordinary meaning of the word "harass" would seem to involve persisting or repeated conduct. In any event, the conduct of placing Mr Van Leewuin in the position of acting stores/laundry officer cannot, on the evidence I have heard, be said to amount to harassment.

For these reasons I find that there has been no contravention by the respondent of s.35 of the DDA.

8. RELIEF

I move now to consider the consequences of my earlier finding of unlawful discrimination by the respondent in refusing to consider the complainant's application for the stores/laundry position.

Section 103(1) of the DDA provides that after holding an inquiry the Commission may:

"...

(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;

...

(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".

The complainant submitted that substantial damages should be awarded.

Guidance as to the approach to be taken in quantifying damages is provided by the decision of the Full Federal Court in Hall v Sheiban Pty Ltd (1989) 85 ALR 503. In that case (which was a sex discrimination case, with the relevant legislation providing corresponding powers as apply here) Wilcox J explained that tort provides the closest analogy and will often be a useful test although it is not to be applied slavishly. Generally speaking, his Honour said that the correct way to approach the assessment of damages is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which she was placed by reason of the conduct of the respondent.

As French J said in the same case, the focus should be on the requirement of the legislation that the loss or damage be "by reason of" the conduct complained of. The same point applies here, although the legislation requires that the loss or damage be suffered "because of" the conduct complained of.

In that way, it seems to me that the matter is to be approached similarly to issues of causation in a claim by a person who suffers damage by the misleading conduct of another in contravention of s.52 of the Trade Practices Act 1974 (Cth) (as to which see Wardley Australia v State of Western Australia (1992) 175 CLR 514).

In summary, therefore, my task is to apply a commonsense concept of causation to determine what loss and damage was caused by the respondent's unlawful discrimination.

In the revised particulars of detriment filed in March 2000 the complainant claims damages for components including:

(a) past loss of income;

(b) future loss of income, and superannuation benefits;

(c) damages for stress, depression and loss of enjoyment of life.

The particulars of detriment claim on the alternative bases of loss of income as a prison officer or as an industrial officer. On my findings, it is, of course, only the latter which is relevant.

In the course of the parties' presentation of final submissions I invited them to provide supplementary written submissions in relation to the particulars of detriment and damages issues generally. The parties did not file any further submissions. In that light, I will proceed on the basis that the net figures referred to in the particulars of detriment provided to me are supported by the evidence. That was a specific topic on which supplementary submissions were invited.

The particulars of detriment accept that the effect of workers' compensation payments received by the complainant was that she suffered no loss of income up to about April 1999. The particulars then suggest past income to have been lost in an amount of approximately $16,000.00 with a claim for future income of about $240,000.00, and an additional amount of $22,000.00 for lost superannuation benefits.

Those claims are put on the basis that the complainant lost, as a result of the unlawful discrimination of the respondent, all of the income she would have earned as an industrial officer occupying the stores/laundry position.

On the findings I have made above, that cannot be said to be the case. The unlawful discrimination, as I have found it, was constituted by the respondent's failure to consider Ms Logan's application for the position of stores/laundry officer. Plainly, in that light, it cannot be said that the discrimination caused her to lose the entirety of the income to be derived from that job.

The DDA imposes a statutory duty not to discriminate unlawfully when considering an application for employment. The applicant thereby has a correlative right to have the application considered without unlawful discrimination.

Thus, what must be valued for present purposes is the opportunity to have been considered for the stores/laundry position without unlawful discrimination. That exercise is, necessarily, a difficult one involving a degree of speculation. A number of factors must be taken into account, including the probability that it would have been realised and value of the opportunity had it been realised.

The approach to be taken to the assessment of the value of a lost chance or opportunity has been considered in cases in the High Court, including Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. I will apply the approach taken in those cases to the present issues. For a recent example of the application of these principles in a discrimination case, see Commonwealth v HREOC and Peacock [2000] FCA 1150, at para [54] and following.

There is very little evidence to assist in the process of assessing the probability that Ms Logan's application for the stores/laundry position would have been successful. The respondent led no evidence as to how two competing applications would have been dealt with. The only stated essential criterion was "permanent prison officer". I have already found that that criterion incorporated matters which I have found not to be inherent requirements of the position of stores/laundry officer. Other criteria are identified as desirable in the advertisement. There is nothing of substance in the evidence to assist me in how those criteria might have been applied as between the two competing applicants.

Another foundation of the way the complainant's damages claim is formulated is that it assumes that the complainant would have continued working through to 65. That appears to have been her stated intention. However, that, in itself, can be only of limited weight. It is difficult for anyone to predict with confidence what will occur over the next 15 years. The respondent tendered (as Exhibit W) some information demonstrating the age at which a number of female employees at the prison have resigned or had their contract expired. That evidence supports the conclusion that it is unusual for an officer to remain in employment at the prison through to an age of 65.

Further, the evidence suggests that there is some danger of a recurrence of Ms Logan's back problems and that such recurrence might anyway have prevented her to continue to work through to the age of 65.

A third foundation of the formulation of the complainant's damages claim is that all of the income which would have been earned through the stores/laundry position has been "lost" as a result of the discrimination because the complainant is and will remain unable to get any other paid work. Evidence was led of some attempts by Ms Logan to find other work or to develop other skills (with assistance from Ms Wilkes and others). Unfortunately, there is support in that evidence for a suggestion that Ms Logan may be unlikely to obtain any substantial other work. However, that is a long way from being able to conclude that she should be given damages on the assumption that she will not obtain any further paid work through to the year 2013.

Taking all these matters into account, and doing the best I can with the limited material available, I would award damages of $35,000.00 as compensation for the value of the lost opportunity to be properly considered for the stores/laundry position.

There was evidence that Ms Logan suffered stress and some depression as a result of the events in late 1997. It is, of course, difficult to dissect the dismissal from the position as prison officer (which I have found to be not unlawful) from the consequences of the refusal to be considered for the stores/laundry position.

Section 103(4) expressly allows for relevant damages to include humiliation and injury to a complainant's feelings.

I would award an amount of $3,000.00 for this head of damage.

There was some suggestion that costs should be awarded against the respondent. Legal expenses are not specifically provided for in the DDA. In addition, s.103(1)(iv) of the DDA does not extend to legal costs incurred by a complainant (AMC v Wilson (1996) 68 FCR 46 per Heerey J at 66 in relation to analogous provisions in the Racial Discrimination Act 1975 (Cth)). Accordingly I make no award for costs.

9. DETERMINATION

Pursuant to s.103 of the DDA I make the following declarations:

(a) the respondent unlawfully discriminated against the complainant in breach of s.15(1)(b) of the DDA in failing to consider the complainant's application for the position of stores/laundry officer on the basis of her disability;

(b) that within 28 days of the date of this decision the respondent pay to the complainant:

(i) the sum of $35,000.00 compensation for the lost opportunity to be properly considered for the stores/laundry position; and

(ii) the sum of $3,000.00 compensation for humiliation and injury to feelings.

I certify that this and the preceding fifty-one pages (51) pages are a true copy of the Reasons for Decision of Inquiry Commissioner Andrew Beech.

Hearing Solicitor:

Date: 12 September 2000