IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
JOHN NADER QC
Number of pages - 25
LISMORE, 24-26 March 1999 (hearing), 26 May 2000 (decision)
Larry Laikind of the Disability Discrimination Legal Advocacy Service for the Complainant.
Maurice Swan of the Australian Government Solicitor for the Respondent.
Commissioner Nader found for the Complainant awarding her $12,000.
JOHN NADER QC
This matter came to the notice of the Disability Discrimination Commissioner ("the Commissioner") by means of a letter of complaint dated 8 May 1995 from Mrs Nerilie Humphries ("the complainant") to the Human Rights and Equal Opportunity Commission ("the Commission").
This complaint has had a relatively complex history before this Commission and the Federal Court and this history is summarised below.
The complaint lodged by Mrs Humphries against the Commonwealth Department of Education, Employment, Training ("DEET", now "DEETYA") alleged direct and indirect discrimination and harassment in employment. Mrs Humphries complained that she suffered discrimination and harassment on the basis of her visual disability while employed by DEET between February 1993 and July 1995 as an Administrative Services Officer class 1 ("ASO 1").
Efforts to conciliate the complaint were unsuccessful and on 30 January 1997 the Commissioner referred the matter to the Commission for inquiry under section 79(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA").
The inquiry was conducted by Commissioner Charlesworth and her decision was handed down on 19 December 1997.
The relevant findings made by Commissioner Charlesworth can be summarised as follows (these will be set out in more detail below):
1. The respondent directly discriminated against the complainant by reason of her disability in the terms and conditions of her employment as follows:
1.1 The failure to provide adequate equipment for the complainant to be able to word process properly and to contemplate higher duties was discriminatory;
1.2 The failure to allow the complainant access to further training that would have helped her in promotion applications was discriminatory;
1.3 The manner in which confirmation of the complainant's employment was made contingent on her performance of the full 21 ASO1 competencies was discriminatory;
1.4 The termination of the complainant's employment was connected to the acts of direct discrimination described above.
2. The complaints of indirect discrimination and harassment were not made out.
3. Commissioner Charlesworth did not determine the appropriate remedies as it was agreed at the hearing that submissions on relief would be made following the Commissioner's findings on the question of discrimination and harassment.
Commissioner Charlesworth's decision was reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by Justice Kiefel at the instigation of the Commonwealth: The Commonwealth of Australia v Nerilie Anne Humphries and others (1998) 86 FCR 324.
Justice Kiefel found that errors of law had been shown with respect to the conclusions of unlawful discrimination in findings 1.1, 1.2 and 1.4 above because Commissioner Charlesworth had failed to answer the questions posed by section 5(1) of the DDA. Justice Kiefel found that no errors of law were disclosed in the finding of unlawful discrimination in relation to 1.3 above, that is, the manner in which confirmation of the complainant's appointment was made contingent on her performance of the full ASO1 competencies. Her Honour was of the view however that that determination could not stand alone and remitted the entire matter to the Commission for determination according to law.
I was authorised to conduct the inquiry pursuant to the order of Justice Kiefel and I heard the matter in Lismore on 24, 25 and 26 March 1999. I have set out in detail below the way in which the matter proceeded before me.
2. BACKGROUND FACTS AND FINDINGS OF COMMISSIONER CHARLESWORTH
Justice Kiefel summarised the background facts and the findings of Commissioner Charlesworth's concerning Mrs Humphries' work-history as follows.
Mrs Humphries is visually impaired, having approximately five per cent of normal vision. She has however been able to work in the past and was able to type and read using a magnifying glass prior to her appointment at DEET. Mrs Humphries was first appointed by DEET in February 1993 as an administrative services officer Class 1 (ASO1) on a temporary basis. She received a permanent appointment on 13 October 1993, having achieved high results in the public service examination. A condition of the appointment was a six month probationary period. This was later extended in May 1994 for about six months.
During the period of Mrs Humphries' employment DEET was undergoing restructuring and this had been known to staff since about 1993. This ultimately led to Mrs Humphries joining the Commonwealth Employment Service in August 1994. Prior to her commencement in that position Mrs Humphries took four weeks leave in July 1994 on the grounds of work-related stress and then took, on average, one day per week leave in September and October 1994. In August 1994 Mrs Humphries was referred to the Commonwealth Rehabilitation Service so that a return-to-work program could be developed for her. However she took compensation leave again in November 1994. In January 1995 the Commonwealth Medical Officer ("CMO") reported Mrs Humphries was unfit for work and certified for three months' leave on that basis. He further advised that she would not be fit for full time work on her return but that she could work part-time. Mrs Humphries' employment was terminated on 3 July 1995, after a report from the CMO advised that she did not meet medical fitness requirements. That report, in turn, had relied upon advices from Dr Doughty, an occupational physician who examined Mrs Humphries in April 1995.
Work History - Findings
Failure to provide equipment
A few months after Mrs Humphries obtained a permanent appointment DEET referred her to a specialist because of her complaint of eye strain. The specialist recommended that DEET contact the Royal Blind Society "regarding appropriate visual aids and possibly a workplace assessment". Mrs Humphries had, in her temporary position, apparently undertaken tasks other than word processing. Competence in the use of a word processor was however a requirement of an ASO1.
It is convenient at this point to refer to the Commissioner's findings generally with respect to the initial steps undertaken when Mrs Humphries joined DEET.
The evidence concerning the commencement of Mrs Humphries' employment and the very early period of it was somewhat sketchy. Witnesses were generally not able to recall much of what had occurred. The Commissioner considered that there was "remarkably little discussion of how Mrs Humphries would be inducted into the work place ...". No witness could recall any plans for an assessment of Mrs Humphries' needs, even when it became obvious that no other support was being offered. The little evidence that there was, that it would have been standard procedure to direct some such enquiry, was not accepted by the Commissioner as having occurred, given the lack of any specific evidence on the point. The Commissioner concluded:
"The rather haphazard attention that was paid to Mrs Humphries' needs to become a functional member of the workplace before she began work set the scene for later events."Another observation made by the Commissioner at this point is also of some importance, particularly with respect to the later termination of employment. The Commissioner accepted that Mrs Humphries was a good and conscientious employee and that, at the time she commenced employment with DEET, there was no doubt she was able to undertake full time work.
Although no assessment of Mrs Humphries' needs was ever undertaken, magnifying glasses and a "CCTV", a machine that enlarges text onto a screen, were obtained for her. Difficulties were then encountered in providing the appropriate software for her use. The local computer network administrator identified the appropriate product, which magnified computer text on screen, but attempts to obtain it were hindered by delays in approval for ordering the software. The next delay encountered was in having it installed. Once installed it became obvious that a standard computer screen was inadequate. The network administrator said that she asked at least three times in a three month period to be able to purchase a larger monitor. The reason given for not providing it was a reluctance to approve funds, which appeared to have stemmed from the refusal of the Area Director to approve purchases because of the impending restructure of the Area Office. The cost involved was some $1000. It was never supplied. At this point in the reasons the Commissioner noted that Mrs Humphries disputed this evidence, saying that the attempt to obtain the larger screen took place in August or September 1993 and the freeze of funds did not occur until November or December 1994. This was not resolved on the findings, save that the Commissioner at a later point in the reasons did not accept that there was such a difficulty with funding. In the meantime other tasks were attempted to be found for Mrs Humphries.
Another problem was encountered with Mrs Humphries obtaining an anti-glare screen to obviate flickering on the monitor of her CCTV. Such screens were not expensive and in common use. Another employee loaned Mrs Humphries a screen but it broke after a short period and was never replaced. There was considerable dispute about whether there had been a request for a screen. Apart from Mrs Humphries it seems only one witness, the computer network administrator, recalled this as having been an issue.
In relation generally to the difficulties in obtaining equipment and the reason for it, the Commissioner noted the evidence of the Corporate Services Manager in the Area Office who could not recall specific requests for equipment or reasons for the delay involved. She did point to a number of likely reasons not uncommon in administration, such as an inability to discuss issues with the person having authority; priorities; budgets and the constraints which impending restructuring placed upon the purchase of new equipment. She said that the purchase of computer equipment was being closely watched and the Director of the Area Office had made an early decision to stop purchasing equipment.
In relation to the employment with DEET, the Commissioner then found as follows:
The Commissioner then went on to deal with what followed as a result of this failure to provide equipment. Both Mrs Humphries and Ms Massey had given evidence that Mrs Humphries' position had become difficult because of the continued requests she was making. The Corporate Services Manager however had taken a somewhat different view of the matter, implying that Mrs Humphries was ready to accuse people of harassment when "advisory feedback" was given and was inclined to blame others for her difficulties. Another consequence adverted to in relation to not obtaining the equipment was that Mrs Humphries often did not have sufficient work to do and this caused her some stress.
"On the basis of the evidence presented to me, I find that there was a failure by DEET to provide Mrs Humphries with appropriate equipment to perform her work at the Area Office. I accept Mrs Humphries' and Ms Massey's evidence [the computer network administrator] that repeated efforts were made to obtain an anti-glare screen. No plausible justification was provided for the failure to provide it. The costs involved in purchasing a large screen to enable zoom text to function were not excessive for DEET as the employer. Indeed it seems extraordinary that DEET effectively undermined the value of the purchase of zoom text by failing to provide equipment on which it would work. Even if there were a purchasing freeze in place (and I do not accept that there was), the appropriate course would have been for Mrs Humphries' managers to seek an exception in this case."
In relation to Mrs Humphries' later employment at the CES, unsatisfactory attempts to obtain proper equipment were again made. A member of the disability access support unit had written a report but for some reason was not permitted to observe Mrs Humphries in her workplace or consult with her. In about October 1994 she was loaned a synthesiser by the support unit which did not work properly and she regularly asked for it to be repaired. In addition to being hampered in her ability to undertake word processing she could not undertake other tasks which required access to the mainframe computer. Attempts to obtain equipment to allow this access were again unsuccessful. There were reasons given but no one could recall the precise reason. This appears to have occurred at a time close to when Mrs Humphries ceased work in November 1994.
Specifically, the Commissioner concluded that Mrs Humphries again suffered discrimination in the terms and conditions of her employment with DEET on the basis of her disability in these terms:
"the failure to provide adequate equipment for her to be able to word process properly and to contemplate higher duties through using the mainframe computer at both the Area Office and the CES was discriminatory. Mrs Humphries was not given the chance to demonstrate her ability and competence because her special needs were not taken into account".With these conclusions the Commissioner went on to point out that the office seemed unprepared to cope with the special needs of employees such as Mrs Humphries and the initial interest in assisting a disabled employee waned quickly; there was no workplace assessment of her needs undertaken and no support program anticipated. In her view Mrs Humphries' reasonable requests for support and equipment were handled in such a diffident fashion that she became seriously stressed.
There was other evidence which the Commissioner appears to have drawn on to support the view arrived at, that DEET's failure to ensure Mrs Humphries' equipment was, in the circumstances of this case, discriminatory. A Ms Sharyn Winter had given evidence that she had worked for DEET. She likewise had a visual disability which left her with five per cent vision. She had worked for the Australian Public Service for almost ten years and had progressed through the promotional system. She had received assistance on her joining in 1992 and although no workplace assessment was carried out equipment was provided, although some of it took eight months to arrive. She had had support from other staff and prompt repair of equipment and access to the mainframe computer. She had undertaken higher training. The observation that the Commissioner made was that the different experiences were explained by Ms Winter and Mrs Humphries having worked in different DEET offices.
Failure to allow access to training
There was evidence of some reluctance to provide Mrs Humphries with training when she requested it whilst at the Area Office of DEET. The original basis given was that she was a temporary worker but this was altered to concerns about how to accommodate her disability. Eventually she did undertake three training courses. The relevant denial of opportunity concerned computer training.
The supervisor of Mrs Humphries who was called to give evidence confirmed that Mrs Humphries' lack of training in computer skills would render her ineligible for higher duties. The Inquiry Commissioner then observed:
"DEETYA however did not offer any explanation why Mrs Humphries was not admitted to training to increase her computer skills.The finding by the Commissioner was to this effect:
I accept Mrs Humphries' uncontradicted evidence that she sought and was denied training in areas that would have allowed her advancement, such as computer skills. Mrs Humphries was prepared to do the existing courses and was confident she could cope by listening to them and by later studying the notes."
"Second, the failure to allow Mrs Humphries access to further training that would have helped her in promotion applications, constituted direct discrimination on the basis of her disability. Management in the Area Office did not accept that Mrs Humphries could do the training courses and made little effort (compared for example with the efforts made to assist Ms Winter's training) to accommodate her."Appointment subject to competencies
Mrs Humphries was told by Ms Ryan, a supervisor at the CES and formerly the Area Office Training Manager at DEET, that she was required to complete the 21 ASO1 competencies before her position could be confirmed. Ms Ryan said in her evidence before the Commissioner that it was not unusual to use the competencies as benchmarks for confirmation. Mrs Humphries said that she had prepared the first competency in detail, but was not tested on it, but Ms Ryan could not recall being told that she was ready for testing. The rehabilitation service case worker, Ms Malcolm, attempted to ascertain whether all the competencies were necessary for probation to be confirmed and Ms Maxwell, a supervisor, said that she had not previously heard of the completion of probation being dependent upon satisfaction of the competencies. She was also of the view that Mrs Humphries could have more readily demonstrated her ability with respect to them had she had the proper equipment. The Commissioner went on at this point:
"From the evidence I received, I find that requiring Mrs Humphries to pass a test on all 21 competencies at the ASO1 level was unusual and was a decision made on the basis of her disability".The probation period with respect to Mrs Humphries' position was extended twice in the latter part of 1994 and was to have been the subject of monthly reports by Mrs Humphries' supervisors, dealing with her performance and training needs and providing her with assessment or "feedback", but they were not done in time. Those for the months of August, September and October were not received until November (not long before she left) and this prompted a suggestion that the probation period be extended again, although Ms Malcolm had suggested the period be reduced.
Ms Malcolm explained that the problems surrounding Mrs Humphries' return to work seemed insurmountable. She had attempted to devise a program which would enable Mrs Humphries to work part time, but this meant that Mrs Humphries could not have her permanent appointment confirmed and probation completed. The prospect of what appears to be a simple solution was eventually lost, despite attempts to progress matters and to organise meetings to that end. Whilst critical of DEET's response to the attempt to put a program in place, Ms Malcolm said that she did not think the frustration of her endeavours was deliberate. She referred to apparent lack of organisation. The Inquiry Commissioner then continued:
"Ms Malcolm has worked in Occupational Therapy for seventeen years. In answer to my question about how often she had encountered a situation like that of Mrs Humphries', she responded that it was an unusual case, because she did not seem able to achieve a resolution."And ultimately concluded:
"Third, I consider that the manner in which confirmation of her appointment was made contingent on her performance of the full 21 ASO1 competencies at the CES was directly discriminatory. There was no adequate evidence produced to me that this requirement was generally imposed on other ASO1 employees, and in Mrs Humphries' case it appeared a direct result of her disability."Termination of employment
The Commissioner accepted Mrs Humphries' evidence that she became distressed by the treatment she received at the workplace. Her husband said that from late 1993 she would return from work in an emotional state and would be unable to sleep well. By November 1994 her stress condition was so severe that she took further leave and did not return.
Dr Doughty examined Mrs Humphries on 18 April 1995 having been referred by the Commonwealth Medical Officer. He concluded that she was unable to do any work that entailed rapid reading and that she could only read slowly with visual aids. It is necessary to set out this part of the Commissioner's findings, given submissions later made:
"...Dr Doughty did not in fact assess Mrs Humphries' ability to type or read with visual aids. His report nevertheless made a number of contentious assumptions about her abilities in the work place. At the hearing Mrs Humphries demonstrated her ability to read fluently from a document with visual aids. Dr Doughty's report also noted that, in his opinion, Mrs Humphries was unlikely to be employed again on a 'commercially viable basis'. Dr Doughty's evidence in cross examination indicated some inaccuracies in his report. For example, Dr Doughty stated that Mrs Humphries had not been commercially employed between 1970 and 1993. In fact, Mrs Humphries had been self employed and commercially employed between 1978 to 1987 working very long hours."A psychiatrist who saw Mrs Humphries in late 1996, and who diagnosed her as suffering from a form of post-traumatic stress disorder, consistent with victimisation, was at odds with Dr Doughty's assessment that Mrs Humphries suffered from a form of personality disorder. The Commissioner then reasoned:
"The inaccuracies in and the tone of Dr Doughty's report indicate that it was an unsatisfactory basis for termination of Mrs Humphries' employment. I accept that the stress suffered by Mrs Humphries was largely caused by her treatment in the workplace. Mrs Humphries began working with DEET as a capable and confident woman. After less than two years, she sustained a great level of anxiety. There was a direct connexion between the lack of appropriate equipment and the continual barriers to confirmation and the stress and inability to work of Mrs Humphries."And determined:
"Fourth, I consider that the termination of Mrs Humphries' employment with DEET was connected to the acts of direct discrimination I have described above. As I have noted, the discrimination on the basis of her disability wore Mrs Humphries down and caused stress at traumatic levels. DEET should have addressed the root causes of the stress rather than simply terminating Mrs Humphries' employment. The termination was brought about by and thus on the grounds of Mrs Humphries' disability. For the reasons prescribed above, I do not think that s 15(4) applies in these circumstances."Other complaints made both of direct and indirect discrimination, were not accepted by the Commissioner as referable to Mrs Humphries' disability and they form no part of the application for review."
3. THE LEGISLATION
The relevant statutory provisions are as follows.
Section 3 states that the objects of the DDA are as follows:
The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
Section 5 provides as follows:
5. Disability discrimination
(1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Section 6 provides as follows:
6 Indirect disability discrimination
For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
Section 11 provides as follows:
11 Unjustifiable hardship
For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.
Section 15 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
(e) 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.
Section 35 relevantly provides as follows:
35 Harassment in employment
(1) It is unlawful for a person to harass another person who:
(a) is an employee of that person; and
(b) has a disability;
in relation to the disability.
(2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed and
(b) has a disability;
in relation to the disability.
4. FINDINGS OF JUSTICE KIEFEL
Commissioner Charlesworth found that the complainant had suffered direct discrimination (defined in section 5 of the DDA). In referring to indirect discrimination (defined in section 6 of the DDA) she said:
"It was not clear to me which incidents Mrs Humphries alleged involved indirect discrimination. As I understood her case, it was essentially one of direct discrimination."
As noted above, Justice Kiefel concluded that Commissioner Charlesworth had made certain errors of law as a result of which she, Justice Kiefel, ordered that the "entire matter must be remitted to the Human Rights and Equal Opportunity Commission for determination according to law." I am the Commissioner authorised to conduct the inquiry pursuant to the order of Justice Kiefel.
I turn now to consider the reasons and findings of Justice Kiefel.
4.1 Failure to provide equipment
Justice Kiefel found that Commissioner Charlesworth's finding, that the failure to provide equipment to enable the complainant to undertake tasks appropriate to her work status was discriminatory, was reached by reference to a number of factors:
1. failure, in the first place, to undertake any assessment of Mrs Humphries' needs;
2. delays (and failure in one instance) in obtaining equipment that was eventually identified as necessary, which were not satisfactorily explained;
3. general lack of support, or interest by many of those involved in management to act more positively; and
4. failure to take into account Mrs Humphries' needs. The Court observed that the Inquiry Commissioner appears also to have been influenced by standards which DEET had set for itself and its employees, which were not met.
Justice Kiefel noted that Commissioner Charlesworth rejected an argument that DEET had done what it could to support the complainant in the workplace. She noted the Commissioner's summary of findings in this regard:
"As I have stated above, there was no acceptable excuse for DEET's failure to ensure that Mrs Humphries had access to equipment that enabled her to function on the same basis as any other ASO1..."
and went on
"...The experience of Ms Winter at DEET's Gold Coast Office indicates different results in dealing with disabled employees. In some DEET offices, management took its obligation to treat employees with a disability in a non-discriminatory way seriously and purchase the necessary equipment."
Justice Kiefel said that Commissioner Charlesworth had reasoned to a conclusion of discrimination based upon DEET's failures to meet Mrs Humphries' needs. However, her Honour noted that save for the failure to provide the larger screen, the findings were of delay, not refusal. Her Honour said that so far as concerned any reason for that delay, Commissioner Charlesworth did not expressly reject the evidence given for DEET - unless one were to read the reference to "no plausible justification" being provided as incorporating all findings that the explanations lacked credibility. However, Justice Kiefel said that, in context, the finding would appear to be one that the Commissioner was not satisfied that the excuses offered were sufficient. This would conform with the later reference to there being "no acceptable excuse for DEET's failure".
Her Honour found that Commissioner Charlesworth had failed to consider the comparison that should be undertaken pursuant to section 5 of the DDA. I emphasise here that her Honour said that the comparison in this case must be as between Mrs Humphries, with her needs to enable her to function as an ASO1, and other ASO1s who are not disabled, but who have reasonable needs for work equipment. The Commissioner did not undertake that comparison. Justice Kiefel noted that the only direct comparison made by Commissioner Charlesworth was with another disabled employee, which seems to have confirmed the Commissioner in her view that there was no satisfactory excuse for the failure to provide the equipment.
I interpolate here that I have emphasised the passage declaring the comparison to be made in this matter because of its significance to the outcome of the case.
It is relevant to note that at the hearing of this matter I directed that I would allow the complainant, if she wished to do so, the opportunity to develop the argument that failure on the part of the respondent to provide suitable equipment was conduct that amounted to indirect discrimination. The complainant advanced this argument at some length in her written submissions and the respondent addressed the issue in reply.
However, as will be seen later in these reasons, without that seemingly categorical assertion by her Honour emphasised above I would have considered the issue of indirect discrimination further. What that consideration would have led to I have not determined.
Of course, I am bound by the ruling of Justice Kiefel. The question is what precisely was the ruling. Did her Honour intend that, on the facts as found by Commissioner Charlesworth, the case was one of direct discrimination and the correct comparator was as her Honour expressed it in the emphasised passage? Or, did her Honour say no more than, given that Commissioner Charlesworth decided to treat the matter as one of direct discrimination, she should have used the comparator defined in the emphasised passage?
Justice Kiefel was aware of all the relevant facts. They were set forth in the reasons of Commissioner Charlesworth. Justice Kiefel, in the light of those facts, asserted without qualification that the case was one of direct discrimination. Her Honour did not say that the Inquiry Commissioner, having treated the case as one of direct discrimination, had made an inappropriate comparison. In fact, her Honour said that the Commissioner had fallen short of making any comparison. Her Honour said:
"The Commissioner's reasoning, to a conclusion of discrimination, relies, essentially, upon DEET's failures to meet Mrs Humphries' needs."
Although the Commissioner had made reference to another disabled employee, it is quite clear from the terms of Justice Kiefel's reasons that she did not regard the Commissioner as having used that employee as a comparator in the relevant sense. The effect of Justice Kiefel's reasons was that, apart from saying that the case was one of direct discrimination, no comparison had in fact been made - the Commissioner has simply relied on the fact that Mrs Humphries' needs had not been met.
Why then, if Kiefel J had not intended to declare a legal rule governing the case on the undisputed facts before her, did her Honour say without qualification that the comparison "must be" as she stated it? I think it is because her Honour intended to make a statement of the relevant law for the case.
It is not without significance that Commissioner Charlesworth's rejection of indirect discrimination as basis for deciding the case was not said by Justice Kiefel on review to have been incorrect. Commissioner Charlesworth, in her reasons, had noted the claim of indirect discrimination but rejected it. That rejection - if it were wrong - was not corrected on review. Justice Kiefel, knowing all the found facts, did not regard the Commissioner to have been wrong in so ruling. If that went per incuriam there is nothing that suggests it to me. I take the fact that Justice Kiefel did not say that Commissioner Charlesworth was wrong in that very important respect to be an omission made advisedly. I infer from that omission that Justice Kiefel herself did not consider the case to be one of indirect discrimination.
This Commission is bound by statements of law made by Justice Kiefel. I consider the emphasised passage to which I have made reference to be a statement of law. Unless the Federal Court reviews and qualifies what Justice Kiefel said in that respect, the case cannot be treated as one of indirect discrimination.
Her Honour pointed out that in addition to making an inquiry based upon the correct comparison, there was another inquiry to be made, namely, an inquiry as to the reason for any discriminatory treatment. It is not enough that there is an unfulfilled need arising from the disability in question. There would have to be a finding that it was the complainant's disability that brought about the less favourable treatment, or caused it to occur: that is, that the less favourable treatment was because of the disability: HREOC v Mount Isa Mines Ltd (1993) 46 FCR 301, Lockhart J at 321-2. Her Honour pointed out that the evidence of reason may be express evidence, or it may be inferred, especially where no other reason is evident.
Justice Kiefel said that the question which arose for her to decide was whether the conclusion reached by the Inquiry Commissioner must, in any event, have followed from her findings. Her Honour concluded that one would not be forced to an affirmative answer if one were to ask the question whether, having regard to the findings made, preferential treatment would have been given to a non-disabled officer's request for equipment. Justice Kiefel also pointed out that the "failure" to provide equipment referred, principally, to findings of delay in providing equipment, and that the only refusal adverted to concerned the large screen. The Court said that if the conduct, in each respect, had amounted to a plain refusal, it may have been possible to infer that other non-disabled employees might not have encountered similar refusals.
In the result, the Court found that the findings of Commissioner Charlesworth left both the question of the comparison to be made, and the question as to the reason for any different treatment, unanswered: that the mere finding that DEET's performance and the explanations offered were unsatisfactory did not provide those answers.
The Court acknowledged that unreasonable refusal to assist an employee may amount to wrongful conduct in a particular case. However, section 5 does not permit the question, whether there is discrimination, to be answered in the affirmative every time an employer has failed to assist a disabled employee. As has been pointed out above, the questions that must be answered require more.
In summary, the Justice Kiefel found that the Inquiry Commissioner had not addressed the questions posed by the section, namely:
1. whether the treatment received was different, and if so,
2. what was the reason for any such treatment.
The answering of those questions was necessary to a conclusion of discrimination. Therefore the Court found that errors of law were disclosed and remitted the matter for determination by the Commission.
4.2 Failure to allow access to training
The Court then turned to consider the finding of Commissioner Charlesworth that the failure to allow the complainant access to further training that would have helped her in promotion applications constituted direct discrimination on the basis of her disability.
Section 15(2)(b) of the DDA provides that it is unlawful to discriminate by denying or limiting the employee's access to promotion or training. Justice Kiefel said that on that topic one is able to infer, from the Commissioner's findings, that the treatment of the complainant was different from that which would have been given to other employees. It seems implicit in the reasoning that training would normally be provided as a matter of course.
The DDA requires an inquiry into the reasons for any such different treatment. The reasons of the Inquiry Commissioner do not disclose such an inquiry. The Court said that the Inquiry Commissioner appeared to have rejected the contention that management in the Area Office did not accept that the complainant was able to do the courses on the basis that she believed that she could do them.
Again, the Court pointed out that it did not necessarily follow that DEET's treatment was because of Mrs Humphries' disability, in the sense referred to above. The alternative view open was that it was based upon a genuine belief as to the level of her ability. I understand Justice Kiefel to have accepted that the Inquiry Commissioner correctly identified the treatment of Mrs Humphries in this respect as being different from that of other employees to the detriment of Mrs Humphries, but that the second question concerning the reason for such different treatment was not considered.
The Court said that it would be necessary to remit the matter for determination of this question also.
4.3 Appointment subject to competencies
The Inquiry Commissioner found that the manner in which confirmation of the complainant's appointment was made contingent on her performance of the full 21 ASO1 competencies at the CES was directly discriminatory. Justice Kiefel found that no error of law was disclosed in relation to this finding.
4.4 Termination of employment
The Court found that Commissioner Charlesworth had not addressed the appropriate questions with respect to the cessation of Mrs Humphries' employment. The Inquiry Commissioner had found upon the evidence that she accepted that Mrs Humphries' inability to continue work was stress-related. The Court said, however, that a conclusion that Mrs Humphries' inability to work was stress-related does not answer the question as to the reason for her dismissal, a matter section 15(2) of the DDA requires to be answered.
As I understand it, the answer concerning the reason for her dismissal, in order to assist Mrs Humphries, must affirm, not only that she was unable to work by reason of stress-related illness, but also that the illness itself was the result of adversely different treatment accorded by her employer because of her visual disability.
5. THE PROCEEDINGS BEFORE ME
I heard the matter at Lismore, NSW, on 24, 25 and 26 March 1999. In compliance with Justice Kiefel's order I was to determine the entire matter according to law. As the complainant had been given a full opportunity to be heard by Commissioner Charlesworth, I did not think that procedural fairness required me to allow the parties to be heard again as to matters of primary fact. I did say, however, that if I was persuaded that there had been a failure to adduce some evidence on the part of the complainant by reason of her being unrepresented before Commissioner Charlesworth I would entertain an application to allow the evidence to be adduced. Commissioner Charlesworth had the benefit of hearing and observing the witnesses, therefore, in general, I accept her conclusions of fact. It is my task, in accordance with the order of Justice Kiefel, to apply the correct law to the facts as found as well as to such other factual inferences that should properly be drawn from the found facts.
Counsel for the respondent submitted that Justice Kiefel had remitted all aspects of the four allegations on which the respondent was found liable by Commissioner Charlesworth. In support of this contention the respondent drew my attention to the following statement of Justice Kiefel (at page 335):
"I have not dealt with other grounds stated by the Commonwealth which sought to review the findings of fact themselves."
The respondent submitted that this statement indicates that her Honour did not reject the ground of review relating to the findings of fact made by the Commissioner, simply that her Honour found a sufficient number of defects to remit the matter anyway and it was therefore not necessary for her to deal with the other grounds. After hearing submissions from both parties about this issue, I decided that I would allow the respondent the opportunity to put before me its submissions concerning the findings of fact made by Commissioner Charlesworth. In my view the respondent had the procedural onus in this respect as the complainant already had the advantage of a favourable finding in relation to those matters. Accordingly I advised the parties that I would accept the findings of fact made by Commissioner Charlesworth unless the respondent persuaded me that I should not accept those findings of fact.
During the course of the hearing before me the complainant was given the opportunity to draw my attention, by reference to the findings of Commissioner Charlesworth or the evidence adduced before her, to the evidence it relied on in order to make out the her case. The respondent was, of course, given the opportunity to respond. At the conclusion of the hearing I made directions for the parties to provide further written submissions in this regard. Accordingly the complainant provided written submissions on 23 April 1999 and the respondent provided its submissions on 25 May 1999. Submissions in reply were provided by the complainant on 24 June 1999 and by the respondent on 30 July 1999. Within these submissions the parties referred me to relevant aspects of the original transcript of proceedings before Commissioner Charlesworth, the appeal books prepared by the respondent for its application to the Federal Court, and the findings of Commissioner Charlesworth. The parties also included submissions concerning remedies should a finding be made in favour of the complainant. I have given careful consideration to all of these matters in coming to my conclusions.
Leaving aside for the moment the question of appointment subject to competencies, there is no basis in the evidence for concluding that any discriminatory treatment by the respondent was on the ground of, or because of, the complainant's disability. Indeed, it was most unlikely that the reason for that treatment was her disability. One can only observe that not only is there a complete lack of any positive evidence that the cause of the various adverse matters referred to was the complainant's disability, but there are no circumstances from which such a conclusion might be inferred.
It inevitably follows that the complaint with respect to all grounds except the ground of "appointment subject to competencies" must fail. The fact that the complainant may have been treated unfairly by not having been given that measure of support that one would expect of a Commonwealth Government instrumentality is of no avail in these proceedings without evidence, circumstantial or direct, that the failure to give that support was "on the ground of the other person's (Mrs Humphries') disability".
I mention as an aside - because I have explained why I cannot consider this as a case of indirect discrimination - that I should not be thought to be saying that the missing element would not have been required to be satisfied in a case of indirect discrimination. Sections 5 and 6 do no more than define two distinct kinds of discrimination. Section 15 states the essential elements of unlawful discrimination in employment. It is section 15 that contains the requirement that the ground of discrimination must be the employee's disability. I can readily envisage cases of indirect discrimination in which the unreasonable requirement is grounded on reasons other than the employee's disability.
It should be remembered too that many of Mrs Humphries' complaints were not about requirements or conditions imposed upon her but concerned facilities and opportunities denied to her. Indirect discrimination as defined in section 6 of the DDA involves a requirement to "comply with a requirement or condition". For the reasons I have previously given, I have not considered this aspect.
In respect of "appointment subject to competencies", for the reasons given by Commissioner Charlesworth, with which I agree and which were not found to be in error, I find that the complaint is made out.
I now turn to consider the appropriate remedy in respect of that last mentioned subject matter of complaint, namely, that Mrs Humphries' appointment was made contingent on her performance of the full 21 ASO1 competencies at the CES. I think it must be an award of damages; nothing less would be adequate in the circumstances of this case.
It is necessary to consider the effect that that particular discriminatory conduct had upon Mrs Humphries, but it must be done in the light of her circumstances at the relevant times. I accept, as I must, that much of the conduct of the respondent, found by Commissioner Charlesworth to be detrimental to Mrs Humphries, was not itself discriminatory in the statutory sense, however, in my opinion it influenced adversely the mental condition of Mrs Humphries, and it had a significant effect in conditioning her to be more vulnerable to the proven discrimination than she would otherwise have been. In assessing damages the Commission must take the injured person as s/he is at the time of the injury. The fact that the other conduct found by Commissioner Charlesworth to have been detrimental to the complainant was not in fact discriminatory in the relevant sense does not detract from the fact that that other conduct had the effects on her which were elaborated in the reasons of Commissioner Charlesworth. Nothing in Justice Kiefel's findings suggest otherwise.
There is no scientific method of calculating general damages: it must rest in the informed judgment of the Commission aided by experience of like cases. In another case, in which a complainant might have been a less vulnerable individual less disposed to suffer from the effects of the discriminatory conduct than was Mrs Humphries, the award of damages would have been less that I propose in this case.
I think an amount of $12,000.00 would be a proper award.
Having found the complaint of Mrs Humphries substantiated in respect of making the confirmation of her appointment contingent on her performance of the full 21 ASO1 competencies at the CES, I now make the following declaration pursuant to section 103(1)(iv) of the DDA.
I declare that the respondent should pay to the complainant damages by way of compensation in an amount of $12,000.00 on or before 28 days from the date of publication of this decision.
DATED THIS DAY OF MAY 2000
The Hon. John Nader QC