Number of pages - 20
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
PETER JOHNSTON (Inquiry Commissioner)
PERTH, 24-27 July 1997 (hearing), 24 February 1999 (decision)
The complainant represented himself assisted by Mrs A Eyden.
The respondent was represented by Mr P Macliver and Ms J Lord of the Australian Government Solicitor's Office.
The complainant, Mr Clinton John Eyden, lodged with the Human Rights and Equal Opportunity Commission ("the Commission") on 23 November 1995 a complaint under the Disability Discrimination Act 1992 ("the Act"). He claims that he was advised on 6 November 1995 that he had been successful in an application for temporary employment with the respondent, the Australian Protective Service ("APS"), as an Assistant Protective Service Officer ("APSO") and that he would be required to attend a one week training course at Port Hedland starting on 13 November 1995. He was not permitted to attend the training course and, on 23 November 1995, the respondent advised that he could not be employed because of his condition of colour perception deficiency. According to the respondent Mr Eyden failed to meet the required medical standard relating to colour vision. He alleges discrimination in the area of employment within sections 5 and 15 of the Act. Attempts to resolve the matter by the Disability Discrimination Commissioner ("the Commissioner") were unsuccessful and on 20 February 1997 the complaint was referred to the Commission for inquiry under section 76(1) of the Act.
Since similar issues were raised in this complaint to those in another matter referred for inquiry, Alan Crombie v Australian Protective Service ("Crombie"), I directed that evidence common to each complaint concerning whether persons affected by colour perception deficiency were able to perform the inherent requirements of employment as officers in the APS should be heard concurrently.
2. THE ISSUES
The essential issues for determination are:
(a) Whether the respondent engaged in discrimination on the ground of disability for the purposes of sections 5(1) and 15(1) of the Act:
(i) in relation to the arrangements it made for the complainant to attend an interview at Port Hedland on 6 November 1995 and undertake the training course preparatory to him commencing employment as an APSO; and
(ii) in refusing to offer him employment as an APSO on the ground of his colour visual deficiency.
(b) Whether, if it has so discriminated, the conduct of the respondent is not unlawful because it may rely on section 15(4) of the Act as a justification for its refusal.
(c) If the respondent did act unlawfully as alleged, what compensation or other remedy should be provided to the complainant.
3. THE LEGAL FRAMEWORK
The provisions of the Act, so far as they are relevant, read:
5(1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
15(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability ...:
(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.
15(4) Neither paragraph (1)(b) .... 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 employer,....and all other relevant factors that it is reasonable to take into account, the person because of his other 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.
4. THE EVIDENCE
The evidence in Crombie (see above) concerning whether colour deficient persons can carry out the inherent requirements of employment as officers in the APS is also relevant to this complaint. Therefore, where appropriate, cross-reference is made to it in these reasons.
4.1 Evidence for the complainant
4.1.1 The complainant
Mr Eyden provided evidence to the Commission, both by way of written statement and orally. The Commission also received in evidence correspondence and a Schedule summarising his claim for losses.
In his written statement the complainant said he had become aware at some time before November 1995 that applications had been called for positions with the APS. He had decided to apply for a position as an APSO. This was initially a temporary position for a three month term. He had received a phone call from a women officer at the APS centre in Port Hedland requesting him to attend an interview with Mr Garry Duscher and Mr John Smith on 6 November 1995. At the time he was conducting his own tyre and repair business in Jurien Bay. In order to attend the interview he travelled by car to Perth (about 250km) and then proceeded to fly to Port Hedland. He attended the interview with the two APS officers on the following Monday. The interview had taken about a half to three quarters of an hour. He had then been directed to attend a medical examination with Dr Bowater, a Commonwealth Medical Officer in Port Hedland. Dr Bowater in his report noted that Mr Eyden failed the medical standard insofar as he was visually colour deficient. According to Mr Eyden's account, Dr Bowater had expressed sympathetic observations which encouraged Mr Eyden to think that his failing the standard might not necessarily be fatal to his employment with the APS. He had returned to Perth by plane and driven back to Jurien Bay. There he accepted an offer for the sale of his business which he claimed was considerably lower than its true value. He then proceeded to move everything he owned to Port Hedland and drove to Port Hedland in order to commence employment on 30 November 1995.
The complainant said that when he reached Port Hedland his parents informed him that his position was under review due to the colour deficiency noted in the medical report. It was not, however, until several weeks later, on 23 November 1995, that he received a letter informing him that a final decision had been made not to employ him in the APS. Having moved to Port Hedland and having sold his business, he was unemployed with no income. This lasted for a period of about six weeks. He then obtained temporary employment with a tyre business in Port Hedland. During that time, he made attempts to have the decision overturned.
In oral expansion of his written statement the complainant indicated that his mother had telephoned him towards the end of October 1995 and advised him of the details of a position open with the APS in Port Hedland. He was at that time the owner-operator (as he saw it) of a business, Jurien Bay Tyre and Auto. From evidence he later gave in cross-examination it would appear that the financial arrangements in relation to the original purchase of the business and for later improvements to it were conducted by Eyden Holdings Pty Limited, a company of which his parents were the directors. At the time of purchase he had completed his apprenticeship as a motor mechanic.
Mr Eyden said that he had sent a written application to the APS. As a result of a phone call from the APS he was advised to attend an interview with Messrs Duscher and Smith. At the interview he was told he would have to attend a one week training course. He was advised by Mr Smith that, generally, he had been found acceptable and was qualified for the job. He was given a letter from Mr Smith addressed to him dated 6 November 1995. The letter indicated that he would be offered a position subject to satisfactory medical, police, and security checks. He was asked to attend a medical examination with Dr Bowater and that was arranged for that afternoon. Nothing was mentioned at the time about colour vision. At the medical examination, Dr Bowater, in filling in the relevant part of the medical form ticked a box to indicate that Mr Eyden did not meet the medical standard relating to colour vision. Doctor Bowater informed the complainant that he was colour deficient. He had made comments indicating that colour deficiency in regard to certain occupations need not be a bar. Mr Eyden was informed that the results would be sent off to the APS. He did not, however, contact Mr Duscher or Mr Smith concerning the medical results.
Mr Eyden then returned to Jurien Bay where arrangements were made, mainly by his father, to sell the business to a Mr Ian Manns. The business had been advertised prior to the complainant applying for the job with APS and Mr Manns had been the only person to express interest in its purchase. The business had been advertised for sale at $45,000 and after negotiations was sold to Mr Manns and his wife for $36,500. This was confirmed in a statutory declaration by Mr Manns produced by the complainant (Exhibit C4). The complainant then drove to Port Hedland (a distance of approximately 1700 kilometres) with his belongings, arriving there on 10 or 11 November 1995. During the time he was travelling his parents had been notified by Mr Duscher that the position was not available because of the complainant's colour deficiency. Mr Eyden discovered this when Mr Eyden arrived in Port Hedland. Mr Eyden said he had phoned the APS in Port Hedland and was advised he was not to attend the training course the following week. He understood the position was under review and that he would have to wait for final confirmation of the result.
Some weeks later he received a letter dated 6 December 1995 confirming that he was not to be appointed. However, the letter had been addressed to Jurien Bay and had been delayed in getting to him. The letter informed him that no further action will be taken with his application. He tried to have this overturned at higher levels, including making representation to the Ombudsman, but these efforts were not successful. After several weeks he had taken a temporary position at Tom's Tyres in Port Hedland. Ultimately, he instituted his complaint to this Commission.
In his correspondence with the APS Mr Eyden had indicated that he was prepared to undertake a practical test in the form of a colour paint chart in order to indicate that he could discriminate between colours to a sufficient degree to carry out the responsibilities of the job. His degree of colour deficiency was relatively mild. He held, for example, a crayboat master's licence at level 5, which allowed him to operate a crayboat subject to some restrictions on hours. He said he was quite able to pick out red and green channel markers even during the night. His qualifications as a motor mechanic required him to deal with workshop safety matters such as handling fire extinguishers. At the close of his evidence he gave a demonstration that showed he could effectively distinguish between the colours of differently coloured auto-electrical wires assembled in a bunch (Exhibit C7), as part of his motor mechanic employment. Since his non-appointment by APS he had undertaken, besides the job at Tom's Tyres, a position on a cray-fishing boat for several months. This had terminated because the employment was seasonal.
Until Mr Eyden had received the final letter from the APS he had not, however, regarded the decision relating to his non-appointment as final. On 23 November 1995 he had instituted this complaint by way of a letter to the Commissioner.
In relation to compensation, Mr Eyden sought to be reimbursed for what he claimed as loss of value arising from the sale of his business, travel expenses relating to his attendances in Port Hedland, costs of running his business in Jurien Bay until it was taken over by Mr Manns, loss of income while unemployed and due to the lower level of remuneration he had received whilst employed in the tyre business in Port Hedland compared to what he would have earned as an APSO, and other living and accommodation expenses while he resided in Port Hedland pending the outcome of the final determination of his position with APS.
He supplied a summary of these items and gave details of expenditures that had been made to improve the business in Jurien Bay. Finally, he claimed $50,000 for the disappointment and disruption to his life.
4.1.2 Mrs Andrea Eyden
Mrs Eyden, the mother of the complainant, said she had received a phone call from a women officer at the APS office in Port Hedland. As a result, arrangements had been made for the complainant to attend an interview with Messrs Duscher and Smith. Subsequently, on 10 November 1995, Mr Duscher had come around and told her of the problem about her son's failure to pass the medical. He subsequently telephoned and said that the complainant would not be able to start the course because of his colour deficiency. She said that Mr Eyden had instituted appeals to the Ombudsman and to the Commissioner. These representations were made on or about 23 November 1995 following a communication from Mr Duscher that the decision regarding her son was final.
4.2 Evidence for the respondent
4.2.1 John Smith
Mr John Smith, the APS business manager of the Western Region in 1995, gave evidence by way of written statement (Exhibit R1) and orally. He told the Commission that in order to cope with an influx of detainees from another detention centre, the APS had advertised for short-term temporary APSOs to take up additional positions at Port Hedland. There was no guarantee, however, that staffing levels would continue at the November 1995 level.
He said that he and Mr Duscher had been quite impressed with Mr Eyden in the interview which had taken place at Port Hedland. At the end of the interview the complainant had been told that he would be required to have medical, police, and security checks. If he failed them the offer of employment would be withdrawn. The complainant had not mentioned there was any medical condition which might affect the position. Colour blindness or colour deficiency had not been raised at any time during the interview. A pro forma contract had been prepared and given to him. The document did not expressly state that the temporary employment was conditional upon police, security and medical clearances. On the Monday following the interview Mr Smith became aware that Dr Bowater had assessed Mr Eyden as not meeting the medical visual standard.
4.3 Other relevant evidence given in the Crombie hearing
4.3.1 Alan Crombie
Mr Crombie had been employed at level of a PSA (the equivalent of an APSO) for a period of 4 years up till April 1996 at the Port Hedland Immigration Centre. He had failed the colour vision test prior to his engagement. This had not been noticed at the time of his appointment. The error was noticed some time later. Following union representations a decision had been made by the APS to allow him to continue in his employment at the basic level but not to appoint him to a higher position. During the four years he was with the APS he had been able to perform the tasks required of him in that position without any problem due to his colour deficient vision. Fellow officers who also gave evidence, including Mr Alan Ackroyd and Ms Darlene Connors, confirmed that in their experience he had not had any difficulties carrying out the functions of a PSA. These included dealing with the alarm panel and other jobs requiring identification of lights, such as recharging radio batteries.
4.3.2 Mr Graeme Fry
Mr Fry, Assistant Secretary, Core Operations and Client Services with the APS, told the Commission that the Commonwealth had adopted a public service structure which distinguished at the lower levels between general service officers who provided skills of a more technical kind and administrative service officers who tended to undertake the clerical work. The PSA position occupied by Mr Crombie was introduced to provide a lower level of guarding at the general service officer level. It had been thought appropriate to use PSAs at the Port Hedland Centre to reduce the cost to the Department of Immigration, the Department in charge of the facility. It was also a fact that the people detained there at the time when APS first provided officers were considered to be of low risk.
Mr Fry also explained that from time to time the APS had to meet "surge" requirements whereby they would have to move officers from one location to another to undertake special protective security needs as they arose. Regarding PSAs at Port Hedland, some were posted there on a periodic posting of three to five years while others were permanently stationed at Port Hedland. Officers were liable to be transferred anywhere in Australia and had in fact been transferred from Port Hedland to other locations.
Regarding the requirement that PSAs should have normal colour vision, Mr Fry stated:
Certainly one of the primary reasons for having colour vision is identification of people or items. For example, if you've got a group of people in a crowd situation and they are all/may be of similar colour hair and the same ethnic origin quite often the only way you're going to identify who a particular person is, is by the colour of the clothing they are wearing. The problem in a close environment, for example like Port Hedland, or in a situation like we had at the Parliament House riot, if you were to seize the wrong person you can actually inflame the situation rather that diffuse the situation. Certainly in other areas you could have a bomb threat. A person may ring up and say, 'I have left an explosive device in a red bag or a blue bag?' This happens on a regular basis unfortunately at airports, diplomatic missions. We have to go and search for a specific thing.
He explained that such situations might involve all APS officers (including PSAs) if they were at the particular facility. He also explained that there may be circumstances in which it was necessary to give a description of a vehicle to the police for identification. This could include descriptions of the people in the vehicle as well as the vehicle itself. If, for example, only a partial identification of a registration number had been made, identification of the colour and make of the car would narrow the decision-making down.
Regarding the possibility that an officer might have to work with bombs, Mr Fry stated that even though a person may not be trained in bomb appraisal all officers were trained to search and look for suspect devices. If a suspect device was found a bomb appraisal officer would be called.
He also advised that around September 1995 the organisational structure of the APS had changed with the office of PSA being abolished and a new designation introduced. This was Assistant Protective Service Officer, the position for which Mr Eyden had applied.
Regarding Mr Crombie's performance, Mr Fry said that he never received any report suggesting that Mr Crombie's colour blindness had affected his abilities to perform his job. The problem was that Mr Crombie was not able to pass the general medical standard which applied throughout the APS. Mr Fry was not aware that any tests had been made to determine whether Mr Crombie could perform the specific duties of his employment. There was no need to make accommodations in Mr Crombie's case because, as a PSA, he was always under supervision.
In relation to colour identification, Mr Fry stated that he could not give an accurate percentage of the times when it would be necessary to identify a person by the colour of their clothing, and maintained that such an ability would certainly be relevant. When trying to differentiate between two people, colour might be the only thing to indicate a difference. Similarly with car identification, colour could narrow down the number of vehicles of a particular type.
When asked whether colour identification problems might affect the result in court proceedings where an APS officer was required to give evidence, Mr Fry stated that the outcome could affect the APS. Its officers were charged out to client departments and organisations and cost more than private security personnel. A loss of credibility could therefore affect the acceptance of the APS to clients. When asked how often officers might be required to appear in court, Mr Fry responded that six appearances in a year would be exceptional.
Questioned by Mr Eyden about whether the APS used particular forms of visual testing such as spotting people in line-ups to see if an applicant could possibly distinguish between red and green, Mr Fry responded that there had to be a medical standard set. It would have to be substantiated by medical opinion. As to whether there could be a more practical test in actual situations rather than looking at colours in a book (that is, the Ishihara plates) he said that the standard was something more scientific than just doing practical tests.
4.3.3 Mr Lawrence Gardiner
Mr Gardiner was a Superintendent in the APS who was the officer in charge of training of officers of the National Centre in Canberra. He considered colour perception an important criteria for persons in training courses. This was because of the need to deal with colour coding relating to explosives, fire fighting equipment, counter terrorist responses, x-ray scanning of packages at airports and identification of persons.
Colour coding was important for the identification of explosives in respect of bomb response training. Basic awareness of the colour systems was important not only for the protection of the officers themselves but also members of the client organisation and of the public. Incidents had occurred such as at airport facilities where articles of a hazardous nature had been identified simply by their colour coding. Also, the training relating to crowd control included recognising individuals and making reports which could involve the colour of the shirt of a particular person. This would be relevant to law enforcement requirements such as prosecutions. There would be a need to make an accurate and detailed report of an incident. This was also true of motor vehicle identification. Training at the Canberra National Centre in fire protection required an ability to distinguish between different kinds of fire extinguishers relevant to different kinds of fires. Colour differentiation was also relevant to persons carrying out x-ray screening duties for packages, as at airports or residences of important Commonwealth officials. The training also had to accommodate the needs of the APS in relation to surge situations where officers might have to be moved around Australia. In some security situations premises did have multi-coloured alarm panels. Colour coding was also used in relation to training equipment such as weapons. Hand guns, for example, were distinguished on the basis of colours of handles to indicate whether live or dummy ammunition was being used.
Asked whether an applicant for a position could attend a course to ascertain whether he could comply with the safety aspects, Mr Gardiner said that it could have been possible. The position was, however, that if an individual could not meet the prescribed selection criteria he or she would not be allowed to attend the course. This was "purely on technical grounds from the point of view of the inability to meet the criteria". The criteria was applied across the board in effect without reference to an individual's personal capacity.
In cross-examination Mr Eyden put it to Mr Gardiner that a colour deficient person, depending on the particular diagnosis, could distinguish between the colours of a fire extinguisher in a practical course; hence such a person might be able to identify the extinguishers correctly without a problem. In response Mr Gardiner stated: "what I'd say would be that in our training requirements we accepted the best advice offered by the fire services and as you know fire services and symbols quite frequently... do change colour-coded systems."
He then suggested that if a colour coding system changed a colour deficient person might have difficulty with the new colours. Asked whether the person could not then be re-tested to see if he could pick out those colours Mr Gardiner replied that if there was a recorded colour deficiency in relation to a specific colour only the medical reports would be looked at. In other words, they "would probably fall back to again, a management criteria". Pressed by Mr Eyden that colour deficient persons could distinguish relevant colours the witness again indicated that there would be reliance upon medical advice. If that was not favourable then the possibility of training would not be considered. There could be many officers applying for a training course who have to be screened. He stated:
It wouldn't be practical for the Australian Protective Service to offer individual further testing to all those officers if they didn't meet the criteria of the strict requirements. I do recognise there are varying degrees of colour perception levels where an officer could recognise sometimes green or whatever. Our circumstances were if the medical service indicated that the individual was unacceptable, then that's as far as it would go with us. We wouldn't go any further in the training arrangements. They either met the criteria or they didn't.
4.3.4 Dr Robert Scott
Dr Robert Scott, an occupational physician, submitted a report to the Commission dated 20 July 1997. In compiling the report, Dr Scott had access to various medical reports that had been compiled in relation to Mr Crombie. He had seen a report of an ophthalmic surgeon, Dr Nagle, dated 20 June 1997 which was tendered to the Commission. In his report, Dr Scott also had regard to a report dated 24 August 1992 by Dr M Klein, Senior Medical Officer with the Commonwealth Department of Health (also made available in evidence), and agreed with the comments and reasoning therein. He felt the observations made by Dr Klein were correct about colour deficiency.
In his report, Dr Scott states:
On 24 August 1992 Dr M Klein, Senior Medical Officer, Occupational Medicine, within the Australian Government Health Service, wrote to Mr G Ryan, Manager, Administration, APS, explaining, in some detail, the subject of colour vision, and addressing the question: Is the colour vision standard fair and reasonable? I agree with these comments and reasoning.
As a consequence of the above I have no difficulty in affirming that colour defective vision, as diagnosed in the standard, is, and should be, a bar to employment in the subject positions - ie such a defect does not allow an applicant to meet the standard.
As an Occupational Physician I then turned my attention to the question of whether normal colour vision, in a real-life situation, is necessary in the positions under discussion. I again refer to Dr Klein's memo of 24 August 1992.
Dr Scott had himself visited three sites in the ACT operated by the APS. This led him to state that "the results of my visits to these three areas was to confirm, in my mind, the correctness of the current medical standard for officers in the APS. That is to say, it is my opinion that normal colour perception, as described in the standard, is required". In concluding that the medical standard was necessary to the performance of the duties of officers of the APS, he had had regard to the duty statements of those officers.
The day before giving his evidence Dr Scott had visited the immigration centre at Port Hedland where Mr Crombie was engaged and had been shown around the facility. In the light of that this visit he had prepared a supplementary report dated 23 July 1997 which was tendered in evidence (Exhibit RU). It referred to a number of situations at Port Hedland involving colour identification such as changing batteries, fire boards, camera panels, fire alarms and hand-held radios. He had again concluded that normal colour perception was essential in carrying out the duties of an officer in two main respects. The first was the ability to detect colour on control boards and panels and the second was in relation to the ability to identify individual persons. He said that the matter of identifying colours of clothing could be affected by lighting conditions, bad weather, or in emergency situations where one does not have the time to concentrate. He also thought that the same would apply in relation to any requirements to identify vehicles. Asked whether his opinion was that the duties of officers of the APS required normal colour vision in particular at Port Hedland, he said that he believed that to be correct.
In cross-examination Dr Scott conceded that under good conditions it would be possible to see whether a particular light was illuminated and whether it was flashing or continued in a particular way. With respect to the camera panel monitor he conceded the red and green lighting was labelled. With respect to the re-charging of batteries when a light changed from red to green and whether he could distinguish the change, Dr Scott (who is himself colour deficient) said: "not easily and I tried to put myself into the situation where, if there had some form of disturbance and one was using one's mobile phone considerably and then was wanting to replace the battery in a hurry, I would think there could well be difficulty with a person with colour defective vision". He agreed that he was talking about degrees of difficulty, adding that it depended upon the critical nature of the operation. When asked whether a person of the colour deficiency from which Mr Crombie suffers would be able to perform his duties as a PSA if alterations were made to the workplace, he replied:
I would want to know what alterations were considered, where they would be and under what circumstances and whether that person then would be limited in the duties as described of those two designations that you mention.
In terms of his principal report, he was asked whether he had been asked to comment on the standard which applied and whether it was a reasonable standard or not, to which he replied:
on the medical findings that I was provided with in terms of Mr Crombie and Mr Eyden, it is, that the standards which were set with which I agreed were then applicable to those two people and would in my opinion rule them out if I were asked to say were they able to carry out the duties of those two functions.
He agreed, however, that he had not met Mr Crombie and not tested him personally in any of the situations or circumstances. He also confirmed to the Commission that he had not been asked to assess, in relation to specific tasks, what modifications might need to be made to accommodate Mr Crombie's deficiencies.
Cross-examined by Mr Eyden, Dr Scott was asked whether, instead of just being tested on Ishihara test plates and failing, it would be possible that someone such as himself and Mr Crombie could have been put in circumstances where they could actually identify the colours and show that they were quite capable of not misinterpreting colours in a practical sense. Dr Scott replied that he would have had difficulty in the circumstances of charging the battery in a hurry. He said "if I were given time to really look, concentrate, think about it and make a bit of a calculated guess but as for just saying, take it and swap over, no, I would have problems." In other circumstances he said that he would have difficulty.
In response to a question from the Commission he said that if asked if someone was wearing a red t-shirt in a crowd he might well have difficulty depending on the saturation of red in the t-shirt. This was because colour vision is dependent upon saturation, brilliance and hue. In re-examination he said it was possible for people with colour deficiencies to use cues to assist themselves but suggested there was a slightly greater risk of accidents, for example, in relation to identifying changes in traffic lights. He stressed that in sub-optimal environments where, for example, light was poor and a person did not have much time there would be difficulties in identification of cars. Asked by the Commission whether the requirements of the standard might be unduly stringent, Dr Scott disagreed and said that was why Dr Klein had said it was fair and reasonable and justifiable, and why he (Dr Scott) had agreed with him.
4.4.5 Report of Dr Klein
The report of Dr Klein dated 24 August 1992 was also tendered by the respondent. It was provided in response to a request for a review of the use of the Ishihara plates given the existence of other tests. Since it has figured importantly in the respondent's case the Commission has given close consideration to the following extracts:
Is the colour vision standard fair and reasonable?
The current colour vision standard for Protective Services Assistants and Protective Services Officers is that colour vision must be within normal limits. This is presently assessed as having two or less errors using the Ishihara Test Plates.
When considering relaxing the standard of colour vision a number of questions should be asked and these should be systematically answered before a considered opinion can be made. Obviously the first is whether or not colour vision is required at all. How often is colour vision required? How many colours are required to be identified? What accuracy does the process require? Are there non-colour cues that colour defective people can use? What are the consequences of a mistake? Are positions available that do not require colour vision? Can adjustments be made to contract the need for colour vision?
In the case of PSAs and PSOs colour vision is required for recognition in the following tasks which are examples of the need for colour vision but do not include every instance where colour vision is needed:
Colour coded passes
Colour coded alarm indicators
Colour coded files
Colour coding on VDUs used in security applications
Person/clothing description and identification
Motor vehicle description/identification
Colour vision is required on a daily basis in most PSA/PSO positions. The number of colours required to be identified is numerous and the differences in colour often small. The speed at which colours have to be identified varies but the situation of pass recognition at peak periods such as the start of the day and return from lunch requires a fast and accurate interpretation.
Colour vision defective persons are slower at colour recognition, make more mistakes and often try to conceal the anomaly. The lighting conditions under which recognition is required are not always optimal. Poor internal lighting is often the source under which recognition is required.
The accuracy of determining colours is critical. Certain colours on passes allow access to certain areas and not others. This needs to be quickly and accurately determined. With pass recognition large numbers of people literally walk past the observation point without stopping. Any breach of the access requirement needs a fast decision made and immediate action taken. Accuracy is required in other areas of colour recognition, however speed is not as important and time would be theoretically available to use non-colour cues such as writing on files, alarm panels and VDU screens. Other cues such as flashing areas on VDU screens would also assist the colour defective person. However, there is no doubt that these employees would be far less efficient in performing their duties. As an example, for random checks of offices to determine whether files have been left out inappropriately a person with normal colour vision can simply look through a window or doorway and look at the colours of the folders. A colour defective person may need to actually look through the pile and read the security classifications written on them.
Colour defective persons under stressful conditions are less likely to give accurate colour interpretations in such instances as describing colouration of persons, clothing and motor vehicle when involved in a security breach.
The consequences of making a mistake with colour perception should be well known to the Australian Protective Service. In this review it would be suffice to say that the potential is there for a disastrous situation to occur.
After speaking to managerial staff at the Australian Protective Service it would appear that placing people with defective colour vision in a select small number of positions not requiring critical colour vision is not practical. Persons are often required to rotate positions and provide relief manning at other positions and establishments.
After weighing up the evidence of the review on the colour vision standard it seems unlikely that any easing of the current requirement for normal colour vision would be advisable. Conversely, it could be said that the standard should be more strongly tested by testing for blue vision defects albeit that they are extremely rare. The current testing procedure only detects defects with red/green vision (Emphasis added).
The Commission would comment that despite Dr Klein's assessment that the potential is there for a disastrous situation to occur, there is little in his report to suggest he is writing from other than a highly generalised and theoretical perspective. His report appears to be addressed to severely affected persons, for example, his illustration of a person having to determine whether a pile of files have been left out inappropriately. His categoric assessment that employees with colour deficiency could be far less efficient in performing these duties stands at odds with the experience of the APS concerning Mr Crombie.
5. SUBMISSIONS OF THE PARTIES
5.1 Submissions of the complainant
Mr Eyden submitted that the matter was basically one of fairness relating to persons with colour deficient vision. In his case there had been no reasonable practical testing procedure to ascertain whether or not he actually could perform the duties of an APSO at Port Hedland. The respondent had relied on a general medical standard which could not determine whether or not he could do what the job required. He had had no chance to show that despite his failing the Ishihara test (which he claimed was crude) he was not so colour deficient that he could not carry out the requirements of the position. If tested as to his actual ability to do specific tasks, he would have accepted his non-appointment if he failed. Overall, it came down to whether he, as an individual, could perform the requested duties.
He also submitted that, although Mr Crombie's complaint raised issues going beyond those of whether a colour deficient person could meet the requirements of a PSA/APSO, the fact that Mr Crombie had been able to function efficiently as a PSA helped to confirm his (Mr Eyden's) contentions.
Regarding the various items of compensation that he claimed, he submitted they were fair and reasonable.
5.2 Submissions of the respondent
5.2.1 Preliminary issue: section 15(1)(a)
As the complainant was not legally represented, the Commission raised with Mr Macliver whether some aspects of the matter could fall within section 15(1)(a) of the Act as well as section 15(1)(b). If so, it would foreclose reliance by the respondent on section 15(4) so far as section 15(1)(a) was engaged. Could a failure to acquaint an applicant for an advertised position like Mr Eyden, that his having a particular condition like colour deficiency absolutely precluded him from making a successful application, amount to discrimination in relation to the "arrangements" preceding the making of an offer? If the respondent was constrained by a medical standard so that it was futile for the complainant to undertake steps, such as presenting for an interview, because of his having a particular disability, that, on one view, could be regarded as involving discrimination on the ground of disability in relation to the "arrangements" made to consider the complainant for a particular position of employment. Looked at in that way, the adoption of the medical policy could constitute a breach of section 15(1)(a). The situation in the present case was aggravated, arguably, by reason of the failure of the respondent adequately to disclose the colour vision standard so that the complainant was induced to enter into the arrangements for possible selection unaware that, unlike applicants not affected by his disability, he was already pre-ordained not to be offered employment.
In response, Mr Macliver submitted that section 15(1)(a) could have no application to the circumstances; rather the matter was one falling within paragraph (b) of section 15(1). That being the case, section 15(1)(a) was over taken by section 15(1)(b), so that section 15(4) clearly became relevant.
5.2.2 Response to complainant's contentions
In respect of Mr Eyden's claim that the duties of a PSA/APSO were not as broad as those of a PSO (as considered in Mr Crombie's case) and, hence, the vision standard need not be so stringently applied, the respondent's position was that the base requirements, as disclosed by Mr Smith's evidence, still meant a PSA or its equivalent classification, an APSO, had to be able adequately and safely to perform duties such as guarding, screening access, patrols, monitoring alarms and responding to security incidents. Effective colour vision was still essential.
With respect to Mr Eyden's contention that relying simply on the Ishihara test was too crude a process to establish whether or not a person with only a mild visual impairment could carry out the inherent requirements of the position, the respondent relied on the expert evidence of Doctors Klein and Scott (and, in the latter case, the witness's personal experience as well). It was submitted that the Commission should accept their experience and expert evaluation over the assertions by a lay person, Mr Eyden, that, if practically tested, he might have been able to perform the necessary tasks of the job despite his impairment. Their expert evidence was that persons with colour deficiency would not always be able to identify colours directly. Given the responsibility of an APSO for protecting persons, the consequences of a mistake could be drastic, particularly in an emergency situation. Though perhaps a rare case, the responsibilities of officers of the APS were such that adopting a stringent preclusive standard like the Ishihara test was justified.
As to compensation if an adverse finding were made against the respondent on the issue of discrimination, Mr Macliver submitted that the complainant has been put on notice by the job advertisement that he would have to satisfy "stringent medical standards" yet had made no further inquiries from the APS before flying to Port Hedland for the interview. Further, once he had become aware that he had not passed the medical standard for vision, he had not addressed any inquiry about how that might affect his application. Instead, he had returned to Jurien Bay and had proceeded to make arrangements to finish up his tyre business and sell.
The respondent also challenged the calculations of alleged actual losses claimed by Mr Eyden. This was with regard to the sale of his business, the cost of travel to Port Hedland by motor vehicle, loss of income or wages when forced to seek alternative employment in Port Hedland and other items such as accommodation expenses (given he was staying with his parents) and extra expenses, including higher electricity charges for air conditioning.
As to compensation for hurt, disturbance and distress, the respondent's submission was this should only be very small, having regard to comparable awards by the Commission.
6. DISCUSSION OF LEGAL ISSUES AND RELEVANT FINDINGS
6.1 Findings relevant to section 15(1)(a)
As mentioned above, because the complainant was not legally represented I put to Mr Macliver the possibility that the complaint was capable of falling within both paragraphs (a) and (b) of section 15(1). Though the respondent disagreed with that proposition, in my view it is open to me to consider this complaint as not only based on section 15(1)(b) of the Act but also section 15(1)(a). Section 15(1)(a) may be read to embrace acts or omissions by a potential employer that occur in the antecedent pre-offer stage that have an exclusionary effect in terms of foreclosing an employment opportunity to a person with a disability.
In some cases, and this is probably one of them, there may be a merger or overlap between the elements necessary to establish a breach of both paragraphs (a) and (b) of section 15(1). In this instance there was a common disqualifying policy based on the medical standard but it can be seen to have had an independent if perhaps incidental effect rendering the arrangements concerning the interview sterile. The complainant was deprived of any possibility of a non-discriminatory consideration. Causally, because he was not given reasonable notice of the standard (which I find to be the case), he acted to his detriment in proceeding with his application. Section 15(4) has no role to play in those circumstances.
I find that the relevant "treatment", for the purposes of the definition of "discrimination" in section 5 of the Act, was the advertising by the respondent of the job opportunity for which Mr Eyden applied, together with making arrangements for him to be interviewed without disclosing the relevant bar to appointment, and the interview process, including the making of an offer of appointment to him contingent on passing his medical examination. These matters also constituted the "arrangements" within section 15(1)(a) of the Act. Implicit in the respondent's pre-engagement dealings with the complainant, and thus part of the respondent's treatment of him (through not adequately made known to him), was the fact that as a colour deficient person there was no prospect for him to succeed in his application. Any application he might make in response to the advertisement was predestined to be rejected once it was known that he could not meet the colour vision standard. His act of applying was susceptible of being treated differently from applications by these without his disability.
Although the fact that he would not be considered as eligible for appointment did not become evident until Mr Eyden was medically examined by Dr Bowater, it was inherently inbedded in the procedures that led up to him attending at Port Hedland for interview. I do not consider the fact that the complainant was informed of the need to pass a medical examination as sufficiently specific to put him on notice that his application would be rejected on the ground of his visual disability. By not clearly disclosing to the complainant that because of the standard there was a bar on his potential appointment, the respondent compounded the effect of its exclusionary policy. Unaware that his application had no chance of succeeding, the complainant incurred expenses that he could have avoided if he had known of the bar.
This does not mean that notice of the colour vision bar should have been included in the advertisement. But where, as in this case, an applicant is about to expend time and money in order to attend an interview personally, it would have been reasonable and appropriate to acquaint the applicant with relevant information, such as that relating to the stringent medical standards expected of officers in the APS. The position might be different in the situation where a person does not need to attend at a distant location.
Though there was a faint suggestion in the evidence for the respondent (statement of Mr Smith, Exhibit R1, paragraphs 11 to 14) that Mr Eyen could have been interviewed by telephone, I am satisfied that the arrangements made by the respondent's officer were made with the knowledge that he would personally attend in Port Hedland and be available for medical examination in that town. I am therefore satisfied on the evidence that the respondent did discriminate against the complainant within the meaning of section 5 of the Act, and further, that this discrimination occurred in the course of arrangements made for the purpose of determining whether he should be offered appointment as an APSO with the respondent. Accordingly, I find the respondent has acted unlawfully in breach of section 15(1)(a) of the Act. In that regard section 15(4) of the Act does not provide a defence.
I should make it clear that this breach only covers the events between when the complainant became aware of the advertisement calling for applications up until when he completed the interview and medical examination process, including his return to Jurien Bay on 6 November 1995.
Having found that in respect of the preliminary dealings between the parties there was a discrete breach of section 15(1)(a) I will address the issue of appropriate remedies separately below. I should add that if I were of opinion that there had been no separate breach under this head, the damages payable in respect of this breach would be cumulative with those otherwise payable for breach of section 15(1)(b). I should also add that I am satisfied that the conduct of the respondent which I regard as giving rise to a breach of section 15(1)(a) also constitutes, alternatively, a breach of section 15(1)(b) in any event.
6.2 Findings relevant to section 15(1)(b)
The next question is whether the respondent has breached section 15(1)(b). In that respect I make the following findings.
The complainant, induced by an advertisement published by the respondent, applied for a position as an APSO in Port Hedland in late October 1995. He was advised by an officer of the APS to attend an interview on 6 November 1995 in Port Hedland. He drove to Perth and caught a commercial flight to Port Hedland. On 6 November 1995 he was interviewed by Messrs Duscher and Smith, officers of the APS. He was advised that, subject to meeting the necessary medical, police and security checks, he would be appointed to the position for which he had applied. At the close of the interview he was informed by letter that he would have to attend a week's training course the following week.
He then attended, on the afternoon of 6 November 1995, a medical examination by Dr Bowater. He failed to pass the Ishihara test which was prescribed as the appropriate colour vision standard by the APS. Dr Bowater indicated to the complainant that he did not meet the standard. The complainant formed an impression that there might be a discretion in the relevant senior APS officers to waive that requirement. I can find no foundation for such a belief, however. What is clear is that he made no further inquiry to ascertain his situation arising from his failure to pass the standard. Though he had little time to do so in Port Hedland, in my view he was put on notice by Dr Bowater of the possibility of a problem arising over his colour deficiency. Even if he was not able to inquire further that day, I find he unreasonably assumed he still had a good chance of selection and appointment. He should have made inquires about the matter as soon as possible. The failure to do so is relevant to the matter of any compensation that might arise if the respondent breached section 15(1)(b).
I further find that the complainant returned to Jurien Bay by flying back to Perth on the evening of 6 November 1995 then driving back to Jurien Bay. There he put in train, with the assistance of his parents, the closing of his tyre business. This was effected by his father concluding negotiations with Mr Manns for the sale and purchase of the business. The price accepted was $36,500, being $8500 less than the asking price of $45,000. Mr Manns had made the only offer for the business. The complainant then packed his goods and drove to Port Hedland, leaving his mother to manage the tyre business pending the hand-over to Mr Manns.
The parties were in dispute as to the actual distance the complainant would have travelled, the complainant claiming 1750 km, the respondent 1589 km. While the latter figure might approximate the shortest distance by road map it is reasonable to assume that there were further necessary turnings and deviations along the way. I am prepared to accept 1650 km as a reasonable estimate.
The complainant on reaching Port Hedland received advice he would not be appointed on account of failing the colour vision standard. That standard had been imposed as a result of expert medical advice, including the report of Dr Klein. The complainant was also advised he was not to commence the training course. He made efforts to have the matter reconsidered by way of what he describes as an "appeal" but by letter dated 6 December 1995, he was finally advised officially that his application had been refused. Six weeks after arriving at Port Hedland on the second occasion he obtained employment in Port Hedland as a tyre fitter.
In the light of the above findings I am satisfied that as an employer, the respondent treated the complainant less favourably than applicants who did not have his colour deficiency disability, and thereby, in refusing to appoint the complainant to the position of an APSO by reason of him not meeting the stipulated colour vision standard, discriminated against him on the ground of his disability, contrary to section 15(1)(b) of the Act.
6.3 Consideration of section 15(4)
Whether the respondent's action was unlawful turns on whether it is excused by virtue of section 15(4) of the Act.
In that respect, I make the following further findings. The "inherent requirements of the particular employment" of an APSO at Port Hedland at the end of 1995 included being able to carry out efficiently such tasks as reading alarm panels, recharging phone batteries, and identifying persons. In such cases, identification and description using colour references would be important and facilitate the performance of the function. As an officer in the APS could be transferred to another post in a "surge" situation, other identification functions would be required of such an officer. These would include identifying packages and bags at airports (possibly containing dangerous items), describing fleeing motor vehicles and crime suspects, or picking out persons in a riot situation. Other duties involving colour identification, such as giving evidence at a prosecution, could also be entailed.
However, as I concluded in my reasons in Crombie, I am not satisfied on the basis of the evidence led for the respondent that the complainant would not have been able to carry out the inherent requirements of the particular employment (which I regard in this instance as a three month appointment at the Port Hedland Immigration Centre). It is clear that Mr Crombie had, at that time, been discharging functions of the same kind as and equivalent to those Mr Eyden would be required to perform if appointed. It is apparent from the evidence of the officers of the respondent who worked with or supervised Mr Crombie that there was no occasion on which it was found he could not do what was required of him.
For reasons which I have explained at greater length in my reasons for decision in Crombie, although I place great weight on the expert evidence and reports of Drs Scott and Klein, their views exhibit an absolute and unqualified certainty which is not consistent with the actual performance by Mr Crombie of his duties.
As to Mr Eyden himself, he demonstrated to me that he was able to make adequate colour differentiations as in the case of the bunch of coloured wires (Exhibit C7) at least in a tribunal setting. I do not regard myself, as a lay person, as able to draw inferences from that demonstration that he could, for example, sufficiently identify a fleeing car by night (to use a paradigm example put forward by the respondent). But, taken along with the fact that Mr Eyden was able to meet the colour demands of other employment such as auto mechanic, it does lead to a reasonable inference that Mr Eyden's colour deficiency did not substantially inhibit his colour identification in ordinary circumstances.
The respondent, however, has stressed that in a case where public safety is entailed, the judgement of the complainant's ability to perform the inherent requirements of the employment must be made in the light of his capacity in extreme conditions. This may be accepted. But, taken at its highest, I am not satisfied on the basis of the medical evidence that Mr Eyden could not carry out the tasks that would have been required of him as an APSO. Given that this evidence was markedly at odds with what Mr Crombie was able to do without apparent difficulty, I am not persuaded either way as to whether the complainant could meet the inherent requirements or not.
The point in the end comes down to the central claim made by the complainant. It was that the sole reliance by the respondent on the Ishihara test was not a reasonable basis in his case for assessing him as incapable of carrying out the inherent requirements of the particular employment. No opportunity was provided to the complainant to show otherwise. The complainant might well have failed a test devised by the respondent that was based on the kind of actual tasks or occurrences an appointee might encounter (even if somewhat unlikely or extreme). Nor was evidence led, except in the most general terms through Mr Gardiner, to show that individual testing of the complainant would have entailed unjustifiable financial or other hardship. I am not persuaded that there would have been unjustifiable hardship if some practical test, in addition to the Ishihara test, had been administered to the complainant prior to any offer being made to him.
The Commission is, therefore, left in a situation where it cannot be satisfied that the respondent has made out its defence under section 15(4). It follows that the discrimination engaged in by the respondent in withdrawing its offer of employment to the complainant was unlawful.
The complainant claims the following amounts by way of compensation:
Loss on sale of business $8500
Travel to Port Hedland $1750
Employment of staff in order to take up position $1750
Week's accommodation paid to appointees $1080
Travel and relief staff relating to interview $1380
Loss of 6 week's income while unemployed $6000
Loss of income for 3 months not employed with APS $7200
Removal fee for travelling back to Perth $1750
Additional costs of living at Port Hedland $1800
Travel/accommodation Jurien-Perth for hearing $ 750
Costs associated with representation from Port Hedland $1200
Faxes, phone, bookkeeping etc $1000
In addition, the complainant claims $50,000 for personal suffering which he states is "conservative".
The Commission notes that although the complainant was advised prior to hearing that items claimed by way of compensation would need to be substantiated, very little in the form of receipts, accounts and so on was provided to it. The complainant did file a statement (Exhibit C5) which expanded on his claim in some respects but it also largely contained assertions rather than proof. There is nothing before the Commission to show, for example, how much was actually paid to replacement staff to mind the business while he was absent. The same can be said about proving any discrepancy between the remuneration paid to an APSO (no figures having been provided) and what he earned as a tyre fitter in Port Hedland (though he did provide to the Commission a statement from Toms Tyre and Brakes Port Hedland that the base wage for an adult tyre fitter was $366.10 per 38 hour week).
Nevertheless, the Commission is prepared to take reasonable notice of basic facts and apply an approximate rule of thumb to items it considers properly attributable to the respondent's breach(es) of the Act.
Having said this, the Commission notes that various of the above items are insupportable or overinflated, somewhat in the nature of an "ambit" claim. For instance, the cost of a week's accommodation at Port Hedland that would have been provided by the APS was never a cost paid by the respondent. To award compensation for it would represent a windfall. Similarly, there is necessarily an overlap between claiming compensation while out of work and 3 months' loss of salary that he would have earned as an APSO. Nor are any costs of the complainant or his parents associated with pursuing this complaint and attending the hearing claimable.
Furthermore, I agree with submissions made by Mr Macliver that the complainant was largely the cause of any loss he might have incurred arising from the sale of the tyre business in Jurien Bay. He should have waited until it was clear that the failing of the visual standard would not prevent his employment by APS. In any event, there was no reliable evidence presented as to the value of the business. The fact that the business was advertised at a certain price is no true guide as to its worth. The claim for $8500 is disallowed.
The Commission is satisfied that the following amounts of compensation should be allowed.
Firstly, in respect of the initial breach of the Act, causing Mr Eyden to travel unnecessarily to Port Hedland for interview, I find that $300 for motor vehicle travelling expenses and meals and $150 for any expenses arising from his absence from the business is reasonable. No claim was expressly made for airfares. It is clear, however, that these were not met by APS. It would appear that in later correspondence between the parties, the respondent offered to make reimbursement for those costs. I have taken that into account in the directions I make at the conclusion of these reasons.
I also am of the view that $1000 is appropriate as general compensation for the inconvenience and disruption of attending the interview, and the shock and disappointment that was occasioned by the announcement that the offer was withdrawn.
With respect to the breach arising from the refusal to engage him, at least without giving him a chance to prove he, as an individual, could satisfy the inherent requirements of the employment, I consider the respondent should pay $825 for vehicle cost of travel from Jurien Bay to Port Hedland (1650 km x $.50), $400 for relief staff for the week he was away in Port Hedland expecting to start the training course, $250 general costs of travelling and $100 for other general expenses such as faxes and phone calls.
In addition, I would allow 3 weeks at $400 (i.e. $1200) loss of income, and $300 general extra living costs, while he was unemployed in Port Hedland awaiting the clarification of his situation. Whilst the complainant may have sold his business prematurely and thus contributed to his unemployment in the long run, I am of the opinion that it was reasonable for him to spend several weeks in Port Hedland seeking to have his situation clarified. Undoubtedly, poor communications between Jurien and Port Hedland aggravated things in the first place, but the whole unfortunate imbroglio would have been avoided if there had been a clear warning to the complainant about the absolute bar the visual standard presented.
I would disallow all other items of special damage, including an allowance for extra cost of living expenses in Port Hedland other than during the 3 weeks he was waiting the outcome of his "appeal". Any other costs such as airconditioning were necessarily incurred while he stayed there and would appear to have been paid by his parents in any event.
Finally, I find the complainant should be paid $3000 general compensation for hurt, disappointment, stress and anguish suffered by reason of the withdrawal of the offer. This is additional to the amount of $1000 general damages allowed above.
The complainant claimed he was shattered by the refusal of the position and that it will have a devastating effect on his future. I do not think that is the case. He impressed me as a capable, presentable, quick witted young man (as demonstrated by his astute questioning of witnesses). He should be able to pick up his bundle and forge a future for himself. The amount of $4000 overall (consisting of the two separate amounts) may be compared to the amount of $8000 general damages awarded in Crombie. In the latter case Mr Crombie endured ongoing frustration and disappointment over several years due to the colour vision bar on his advancement in the APS. In the present case, Mr Eyden, though looking forward to a career in the APS, had no guarantee that had he been appointed to the temporary APSO position it would have been extended beyond the initial three month engagement.
It is also relevant to take into account that the offer of employment was only for a temporary position and that, had he taken it, his colour vision deficiency might have proven a problem to his continued employment. As Mr Eyden himself conceded, there was a possibility that, if properly tested he might not have been able to carry out all the inherent requirements of the employment.
For the reasons set forth above I declare that the respondent has unlawfully discriminated against the complainant on the ground of disability firstly in the arrangements that were made for the purpose of determining whether he should be offered employment, and further in determining that he should not be offered employment, contrary to paragraphs (a) and (b) of section 15(1), respectively, of the Disability Discrimination Act 1992 (Cth).
I further direct that the respondent should pay to the complainant as compensation the sum of $3525 for special damages, calculated as set forth above, and the sum of $4000 (comprising amounts of $1000 and $3000) for shock, hurt and disappointment: that is, a sum of $7525 in total.
Finally, I direct that in addition to the above compensation, upon receiving from the complainant satisfactory information or documentation substantiating the costs of his airfares relating to his attendance at the interview, the respondent should reimburse him for those costs.