IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: GRAEME INNES AM No. H97/160 Number of pages - 15
DATE OF HEARING: 26 November 1997; 9, 10 and 11 February 1998 DATE OF DECISION: 15 July 1999 PLACE: CANBERRA #DATE 15:07:1999
Dr Chris Bell of The Welfare Rights and Legal Centre Ltd, for the Complainant
Mr Tom Howe instructed by Mr Tony Burslem of the Australian Government Solicitor, for the Respondent
Judgment for the Complainant.
GRAEME INNES 1. INTRODUCTION
This is an inquiry pursuant to section 79(1) of the Disability Discrimination Act 1992 (Cth) ("the Act") into a complaint by Ms Natasha Rees against the Australian Agency for International Development ("AusAID").
Ms Rees lodged her complaint against AusAID under the Act with the ACT Human Rights Office (an agent of the Human Rights and Equal Opportunity Commission ("HREOC")) on 13 September 1995. Ms Rees has Occupational Overuse Syndrome ("OOS") which - at that time - affected the amount she could operate a computer using either a keyboard or a mouse. She alleges that AusAID directly discriminated against her on the basis of her disability by failing to proceed with its offer to her of a Senior Officer Grade C position in its Statistical Analysis and Research Section ("STARS"). At the time of the alleged conduct Ms Rees was employed at the Australian Bureau of Statistics ("ABS").
Conciliation of this complaint was unsuccessful. On 12 May 1997 the Disability Discrimination Commissioner referred the matter for public inquiry by the Commission. The Commission conducted a public inquiry into this complaint on 26 November 1997 and 9,10 and11 February 1998.
2. STATUTORY PROVISIONS
The relevant provisions of the Act are sections 5, 11 and 15.
Section 5 of the Act, which defines direct discrimination, provides:
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.
5(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 11 of the Act provides a non-exhaustive definition of unjustifiable hardship:
11. For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.
Section 15 of the Act concerns discrimination in employment, and provides:
15(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
15(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
15(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.
15(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.
According to the terms of section 15(4) of the Act, an employer will not be liable for discriminating against an applicant or an employee if it can be established that the applicant/employee would be unable to carry out the inherent requirements of the job or that an unjustifiable hardship would be imposed on the employer if it is required to provide services or facilities to enable the applicant/employee to carry out the inherent requirements of the job.
3. SUMMARY AND CHRONOLOGY OF EVENTS
Ms Rees was employed with the ABS as an Administrative Service Officer Grade 6 ("ASO6"). On 16 February 1995 AusAID advertised the position of Senior Officer Grade C ("SOG C) level in STARS. Ms Rees applied for this position along with several other applicants and - after going through a selection process including an interview - on 29 June 1995 was informed orally that her application was successful.
On 3 July 1995 Ms Rees spoke with the Director of STARS, Mr Binayak Ray, and informed him that she had commenced a Graduated Return to Work Program ("GRTW") due to a temporary impairment which affected the amount of time she could spend on a computer. On receiving this information, AusAID sought advice from the Public Service Commission ("the PSC") on the issue of medical fitness for promotion. After seeking advice from the PSC and discussing the situation with Ms Rees on two occasions, AusAID Director of STAFF, Mr Rodney Tinning, wrote to Ms Rees on 20 July 1995 informing her that AusAID proposed to cancel the offer of promotion, pursuant to section 50G of the Public Service Act 1922 (Cth), pending receipt of medical advice. Mr Tinning qualified this cancellation by stating that:
"This procedure is merely a technicality and will in no way pre-empt our decision to proceed or otherwise with your promotion to AusAID. A final decision will be made on receipt of your medical advice."
On the same day, Ms Rees promotion was formally cancelled.
On 24 July 1995, Ms Rees provided AusAID with a letter from her then treating doctor, Karen Pahlow. According to Dr Pahlow, Ms Rees' condition dates back to 6 September 1994 and has improved to such an extent that she can use a computer for up to one hour each day. Dr Pahlow was unable to comment on Ms Rees' prognosis but states that she would be in a better position to comment on the length of time Ms Rees could sustain on a computer after four to six weeks of increasing keyboard use. AusAID wrote to Ms Rees on 3 August 1995, informing her that it would not be proceeding with the offer of promotion on the basis of the contents of Dr Pahlow's letter and the duties of the position which required a significant amount of computer work. AusAID further commented that it was not possible to avoid use of the computer by rearranging the duties of the position.
On 14 August 1995 Ms Rees lodged a Grievance pursuant to Regulation 83 of the Public Service Regulations. Ms Therese Mills, an officer of AusAID, investigated the grievance and she presented her report on 22 September 1995. It concluded that:
"...it may now be appropriate to ask Ms Rees to provide another medical report from her doctor (as it is now 8 weeks after the previous report from Dr Pahlow) for reconsideration by the delegate.
AusAID will need to ascertain from Mr Ray what is a reasonable period of time for Ms Rees to become fully operational, and what reasonable adjustments he can make without "unjustifiable hardship" on him or others in STARS. These requirements will need to be matched with Ms Rees GRTW plan and associated medical advice. If everyone's needs can be accommodated, it is recommended that Ms Rees be promoted from the order of merit. If not, then it will be apparent that although AusAID has done everything in its power to achieve a satisfactory resolution for Ms Rees, the promotion should not proceed."
Pursuant to this recommendation, AusAID considered another medical report from Dr Pahlow, dated 6 October 1995. Dr Pahlow reported that Ms Rees was currently using a computer keyboard for two hours each day and that she had been using a voice activated computer.
On 12 October 1995 Ms Rees provided AusAID with comments on her current medical condition, which in part provide:
"I have increased the time that I spend on keyboard work to two hours per day. In addition, I have been using a voice activated computer, which has enabled me to further increase my computer use to over three hours per day.
I would be able to do any amount of computer work if I had a voice activated computer, that would enable me not to use a keyboard."
On 20 October 1995 Ms Rees was informed by letter that AusAID was not proceeding with her promotion to the position of SOG C. AusAID made this decision after considering Dr Pahlow's report, comments Ms Rees provided on her medical condition and the workload requirements of the STARS. AusAID trialed the voice activated system known as "DragonDictate" ("DD") but formed the view that it was a slow and cumbersome way of manipulating spreadsheets. AusAID further decided that DD was incompatible with the information technology environment at AusAID.
4. APPLICABILITY OF THE UNJUSTIFIABLE HARDSHIP DEFENCE
AusAID admitted that Ms Rees had a disability in terms of the Act, and that it had discriminated against her on the ground of that disability. However, it sought to argue the defence of unjustifiable hardship. This necessitated a determination of which of the paragraphs in sections 15 (1) and (2) the complainant could rely upon. I decided to determine this as a preliminary issue, because the decision would have a major impact on the evidence to be called and the length of the hearing. My reasons for this preliminary decision, made on 10 February 1998, were as follows.
4.1 Submissions on behalf of Ms Rees
Ms Rees submitted that the alleged unlawful conduct fell within the terms of section 15(2)(d) of the Act. That provision proscribes discrimination by an employer or a person acting or purporting to act on behalf of an employer, against an employee, "by subjecting the employee to any other detriment". Section 15(2)(d) refers to detriment not specifically covered by the other provisions of section 15(2).
Ms Rees submitted that she was not offered a position of employment with AusAID but was offered a transfer of duties and promotion from one Commonwealth Agency to another. She submitted that the refusal to appoint her to the position of SOG C at AusAID was a refusal to proceed with her transfer and not a termination of her employment. Her submissions rule out the applicability of section15(2)(b) of the Act, as the alleged conduct complained of is not denying or limiting her access to promotion, but "stopping her performance of the position." The complainant cited Holdaway v. Qantas (1992) EOC 92-395 in support of these submissions.
4.2 Submissions made on behalf of AusAID
AusAID contended that the offer to Ms Rees of the position of a SOG C in STARS was an offer of employment in terms of section 15(1)(b) of the Act. Accordingly, AusAID claim it is open for it to rely on the defence available in section 15(4) of the Act.
AusAID submitted that whilst the ABS and AusAID have no independent legal status apart from the Commonwealth, they are separate and distinct agencies which have personnel management autonomy. These agencies in effect have independent control over recruitment, discipline, salaries and administration. Following this line of reasoning, AusAID contended that it made Ms Rees an offer of employment whilst she was an Administrative Service Officer Level 6 at the ABS.
In the alternative, AusAID contended that the requisite duties of the positions of SOG C and ASO 6 at AusAID and the ABS respectively, differed to such an extent as to justify the application of section 15(1)(b) of the Act. AusAID cited Holdaway's case (supra) in support of this interpretation.
When a Commonwealth public servant applies for employment with another Commonwealth Department, the public servant, although formally remaining employed by the Commonwealth, is effectively applying for a position of employment with a different employer. I agree with the submissions made on behalf of AusAID that for all intents and purposes AusAID is a different employer to the ABS as both agencies have the power to employ, dismiss and manage personnel. Whilst the two organisations have no separate legal status, for all practical purposes they are separate organisations. This is supported by the Administrative Arrangements Order made by the Governor-General on 11 March 1996, and updated on 9 October 1997 and gazetted on those dates. The ABS is a Bureau established by its own piece of legislation. AusAID is an agency, with a degree of autonomy, within the Department of Foreign Affairs and Trade. Departmental Secretaries have the capacity, pursuant to the Public Service Act, to promote and transfer within their own Departments, but not within other Departments. Each Department or agency controls its own personnel functions such as recruitment, discipline, administration and payment of salary and allowances and leave approvals.
Further, each Department or agency is now entitled to negotiate its own certified agreements and Australian Workplace Agreements that further highlight the independence and autonomy of each Department and agency.
The complainant contended that the offer of a promotion by AusAID in this case did not constitute an offer of employment as the complainant did not change her employer (the Commonwealth). Such an interpretation is not supported by the definition of "employment" and the express recognition in subsection 15(4) that paragraph 15(1)(b) applies to existing employment relationships. Moreover, such an interpretation would, in the case of a Commonwealth employee transferring or being promoted within or between Commonwealth agencies, lead to an absurd result that could not have been contemplated by Parliament. Finally, if this view were not to be followed the merit principle that operates within the Commonwealth Public Service would be seriously compromised, as applicants with disabilities from inside the Public Service would be treated differently from applicants with disabilities outside it. On the basis of this reasoning, it is not necessary for me to consider the different nature of the employment Ms Rees was undertaking at the ABS in the position of ASO 6 and the nature of employment Ms Rees would have undertaken as a SOG C at AusAID.
The next issue to consider is whether Ms Rees, having been offered and having accepted the position of SOG C at AusAID, actually commenced employment at AusAID. On one construction the employment relationship commenced at the end of June 1995 when the complainant was verbally offered the position. This is not, however, a construction which I favour.
In my view employment would have commenced when a contract of employment was signed by the parties or when the complainant commenced to work in the position. If it did commence at the end of June 1995 then the withdrawal of the offer or cancellation of the promotion under the Public Service Act would fall squarely within the ambit of section 15(2)(c) of the DDA, the dismissal provision.
Therefore the section 15(4) defence would still be available to the respondent. However, as I have indicated, I favour the view that an offer was made and then withdrawn before an employment relationship began. The offer of employment, and its acceptance, constituted part of the negotiations, as did the meeting with Mr Ray to discuss a start date. Whilst employment may have been confirmed and then cancelled, the employment relationship for the purposes of section 15 would not commence until employment actually started. Therefore, subsection 15(1) is relevant. Further, based on my findings that ABS and AusAID are different employers subsection 15(2) cannot be applied and the questions of statutory interpretation raised in the submissions of both parties become irrelevant.
The construction of this Act conforms with that of similar legislation dealing with different grounds of discrimination and with state discrimination legislation. Subsection 15(1), referring as it does to "persons", deals with issues arising prior to the commencement of the employment relationship. Subsection 15(2), referring as it does to "employees", deals with issues occurring after the employment relationship has commenced. This is clear from the words of the statute.
Based on my previous findings that the employers are different and that the employment relationship had not commenced subsection 15(2) is simply not applicable to this case.
5. WHAT CONSTITUTE THE INHERENT REQUIREMENTS OF THIS JOB
Having determined that the defence contained in subsection 15 (4) is able to be argued by the AusAID in this case, and noting the respondent's admission that they did discriminate against the complainant, I must next determine whether or not Ms Rees could carry out the inherent requirements of the job. In order to do this I must determine what the relevant inherent requirements were. The relevant position documentation, in describing the duties and selection criteria for the position, provides as follows:
"AUSTRALIAN INTERNATIONAL DEVELOPMENT ASSISTANCE BUREAU
GENERIC SELECTION CRITERIA
SENIOR OFFICER GRADE C
Proven initiative and effectiveness at directing the resources of a Sub-section/Unit, sound appreciation of public service, management policies, such as EEO, ID, FMIP and OH& S
Sound oral and written communication skills, representational and interpersonal skills, teamwork capacity.
Demonstrated ability in the analysis formulation, implementation and review of policy program and resource management matters
Knowledge of current information technology systems together with an awareness of their potential application in the workplace.
Understanding of relevant social, economic and cultural issues affecting development co-operation delivery and effectiveness."
The specific duties for the position are-
1. Manage the work of the Sub-section responsible for provision of development assistance statistical information and services for Australian publications, users in Australia and international reporting.
2. Supervise the preparation and ensure the incorporation of relevant and updated statistics in AIDAB and other Government publications, including Budget Related Paper No. 2, the Foreign Affairs and Trade Annual Report, the AIDAB Statistical Summary, the Details of Australian ODA Expenditure and Country Papers.
3. Review statistical classification, methods of compilation, presentation and the adequacy, uniformity and reliability of AIDAB's statistical services. Critically review theory, methods of work and presentation of data and continuously examine the analyses undertaken for adequacy and applicability.
4. Assist with the design, development, establishment and maintenance of AIDAB's statistical data bases.
5. Provide guidance on interpretation and classification of development co-operation; on methods of analysis to be employed; and on the interpretation of the results of studies carried out.
6. Participate in discussions with official and voluntary development co-operation agencies on their needs for statistical information and on improving statistical research.
7. Liaise with all other areas of AIDAB, other Departments, the Development Assistance Committee (DAC) of the Organisation for Economic Co-operation and Development (OECD), the United Nations Development Programme (UNDP), the World Bank and other domestic and international organisations on aspects of statistical matters concerning Australia's development co-operation program.
8. Prepare briefs or statistical inputs to briefs, answers to Parliamentary questions and enquiries, and undertake statistical analyses for policy formulation purposes.
9. Participate in the development of statistical procedures for periodical evaluation of Australia's development co-operation programs and organise the analysis of the information collected."
This material indicates that, whilst the use of computers for statistical data input and analysis is important, it is not paramount. Further, it indicates that the person is managing the section in which these tasks are carried out, and thus has responsibility for ensuring that these tasks are done, rather than necessarily doing them. In the specific duties only duties numbered two and four would seem to specifically relate to the input and manipulation of data. However, evidence at the hearing painted a very different picture.
Violetta Kuenne, who was acting in the position at the time Ms Rees applied, stated that about 80% of her day was spent at the computer, maintaining the two files which provided the information for the respondents two annual publications - the disbursement file and the commitment file. She stated that part of that work was carried over from her previous position, so that a new appointee to the position would have had to do this work for about 70% of their day. She said that she had to transcribe the data from hard copy into the disbursement and commitment files. She said that the two files were the respondent's main databases, and that they were not set out in a user-friendly manner.
Ms Kuenne stated that she entered the data using her numeric keypad as well as her "qwerty" keyboard. She said that there was no spare capacity in the section to have the data entered by someone else - it was the responsibility of the ASO 6 (her substantive position) and the SOG C.
There were two ASO 3 positions in the section whom she said had no spare capacity for data entry, although she agreed that they could have been trained to enter the data.
Graham Nichols, the branch head at the time, also gave evidence.
He stated that in the particular section in question there was a director, who was a SOG B, the SOG C position under discussion in this case, and three or four ASO 5's and one ASO 4. This was a much higher staffing level than that which Ms Kuenne described, and I can only assume that at the relevant time the section was under-staffed either numerically, or in terms of the seniority level of staff members.
Mr Nichols stated that the director of the section, the SOG B, spent most of their time involved with in the research side of the section. The data manipulation and statistical analysis was the responsibility of the SOG C.
Mr Nichols stated that the data input was done at the SOG C level because of the need for timely input of the data, and the importance of its accuracy to the organisation. He said that at the time Ms Rees applied for the position more importance was placed on the "nuts and bolts" manipulation of the data than on the statistical analysis. He also stated that the person's supervisory skills were important - the section needed someone with the statistical analysis and data manipulation skills, and the ability to transfer them to more junior staff.
Mr Nichols painted a picture of a section where this type of supervision had been lacking because there was no-one substantively in the SOG C position. He described the need for the SOG C person to carry out the data manipulation hands-on at first, but with a longer term view of becoming more involved in the statistical analysis. He agreed that 70% of the SOG C's time on data manipulation was not an efficient use of a staff member at this level.
Mr Nichols explained that he had commissioned a study of AusAID's statistical analysis function to determine how staff could be used more efficiently. When Ms Rees had been selected it was planned that she should work closely with the consultant who had carried out the study to make the section operate more efficiently.
In summary, Mr Nichols indicated that in the short and medium term the SOG C would need to be involved in the "hands-on" data manipulation, but it was planned for this to change in the long term. This was supported by the minute drafted by Mr Ray, the SOG B in the section, dated 13 October 1995, which was tendered in evidence. This minute assessed the overall computer use (including writing) by the SOG C as 80% of the day at that time of year, dropping to 50% in other parts of the year.
The "inherent requirements" provision of the Act was considered by the full Federal Court in Commonwealth of Australia v. Human Rights and Equal Opportunity Commission and X (1998) 152 ALR 182, in which a broad construction of the meaning of "inherent requirements" was evident. This case has been heard by the High Court and is awaiting decision. The case of Qantas Airways Limited v Christie (1998) 193 CLR 280 also bears some relevance, although the High Court's consideration of the phrase related to a different statute, being section 170DF of the Industrial Relations Act 1988 (Cth).
From all of the evidence set out above, even though the selection criteria would indicate otherwise, the task of data input described is clearly an inherent requirement of the work to be done by the part of the section of which the SOG C position for which the complainant was selected was in charge. In the X's case Burchett J held (at pp. 188-189):
"The inherent requirements of a particular employment are not to be limited to a mechanical performance of its tasks and skills ... a narrow construction of [inherent requirements] would have serious consequences for employers and third persons. I do not think Parliament intended the section to be construed so as to have those consequences. It is to be borne in mind that the decision whether a person would be unable to carry out the inherent requirements of the particular employment must be reached taking into account all ... relevant factors that it is reasonable to take into account... If operations, at least operations at the core of employment, cannot be carried on safely or satisfactorily, its inherent requirements are not being met in a practical sense which would accord with the context".
Accepting such a broad interpretation, the input of data must be an inherent requirement despite the minimal importance placed on it in the selection criteria. In the same case Drummond J held :
"[T]he sub-section [section15(4)(a)] cannot be read as drawing a dichotomy between the inherent requirements of a job and the employer's operational requirements for that job. Section 15 deals with employments offered by employers, ie with work activities that form part of each employer's business or organisational operation. The word ´inherent' in section 15(4)(a), in my opinion, limits the exemption created by the sub-section to those requirements of a particular position the satisfaction or fulfilment of which will directly, as opposed to remotely, further or aid in the furthering of the particular employer's operations".
This again confirms my assessment that data input is an inherent requirement, as the carrying out of that task is clearly directly related to the operations of AusAID.
In Christie's case the tests for determining the inherent requirements of a position set by various judges differed, but for the purposes of these facts data manipulation would seem to fall within all of the tests. Brennan CJ held (at p.284) that in determining what is an inherent requirement "a stipulation in a contract of employment is not necessarily conclusive" and that the question must also be "answered by reference to the function which the employee performs as part of the employer's undertaking". Gaudron J, in stating the test in practical terms put it this way (at p.295): "ask whether the position would be essentially the same if that requirement were dispensed with". Gaudron J also found that a requirement cannot be "created" by stipulating that something is essential when it is not but that if a requirement is, in truth, essential, it is irrelevant if it derives from the terms of the contract or the conditions governing the employment relationship.
McHugh J stated that what is an inherent requirement is that which is essential to the performance of a particular position. Kirby J held that what constitutes an inherent requirement of the particular position is that which is "permanent and integral".
Whilst Ms Kuenne was acting in the position the manipulation of data was taking up to 70% of her day. However, this must be taken in the context that she was acting in the position and apparently covering her own ASO 6 position as well, that the section was under-staffed, and that there were plans afoot to change the way in which this data was input.
Clearly, therefore, the ability to input data was an inherent requirement for the SOG C position. However, had staff levels been appropriate, had both the SOG C and the ASO 6 position been filled, and had the restructuring plans been implemented, the amount of time spent on this task by the SOG C, the input of data each day would have been much lower than 70%.
It was submitted on behalf of the complainant that when Ms Rees won the position, AusAID - after becoming aware of her disability - should have made some attempt at job redesign. Such an action would not only have addressed the issues raised by her disability, but would have advanced the plans outlined by Mr Nichols.
Ms Rees' rehabilitation provider, Nicola Postai, gave evidence that she attended the initial meeting with AusAID in company with Ms Rees. At that meeting - at which Ms Kuenne explained the tasks of the position - the SOG B in the section was not present, and they were unable to gain a broader view of the position and AusAID's requirements. Ms Postai was surprised that she was not consulted further by AusAID, as this would have been usual practise.
It is unfortunate that such action did not occur, or that at least some assessment of the actual inherent requirements of the job was not carried out. Such an assessment may or may not have altered AusAID's eventual decision, but would have meant that it was much better informed.
It is impossible to assess accurately how much the percentage of the day used for the inputting and manipulation of data would have decreased. A conservative estimate - had all of the changes to which I have referred been put in place - would be
between 25% and 50% of the SOG C's day. For the purposes of my determination, therefore, it would still constitute an inherent requirement of the position, but at a much lower level than asserted by the respondent. I have used the figure of 50% for the balance of this decision.
According to the decisions in X and Christie (supra) discernment of inherent requirements is essentially a question of fact, requiring an examination of job tasks having regard to the context in which the job is performed. The evidence set out above, and the conclusions I have drawn from it, provide that context. However, the assumption that the respondent made - that the task of data input would take up 70% of Ms Rees day - was flawed, for the reasons I have set out. The core operations of that part of the section - the data input - could still be achieved with work in that area by the SOG C at 50%.
I have not considered what were the other inherent requirements of the position, as there seems to be no dispute about whether the complainant could carry them out.
6. COULD MS REES CARRY OUT THIS REQUIREMENT?
The next question to be answered is whether Ms Rees could carry out the particular requirement - data entry and manipulation for up to 50% of the working day. As a result of her disability, OOS, she was unable to do so using a computer keyboard. Ms Rees and Dr Pahlow's evidence is that as at June 1995 - just before the original decision was made - she was using the keyboard for up to 1 hour a day, and that as at October 1995 - when the second decision was made - she was using the keyboard for up to 2 hours a day. There was evidence that after this time the complainant did not continue in fulltime work. I have not taken this into account. This is firstly because it post-dates the decisions that the respondent made regarding the complainant. Secondly, I accept the complainant's submissions on the point - that she changed doctors and attempted to address her OOS using another treatment regime which she may not have done had she moved to AusAID. Also, the stress caused by AusAID's decisions and the withdrawal of the position that she had won impacted on her OOS. I, therefore, accept Dr Pahlow's evidence as to the amount Ms Rees could use a keyboard for the purposes of my decision.
Use of a computer for one to two hours a day would not have been sufficient for Ms Rees to carry out the relevant inherent requirement of the position. However, she argued that she could have achieved a longer time by using the DD system. She was using such a system in her current job, and called Mr David Horwitz, the IT Manager for Auscript and a widely recognised authority on DD in Australia, to support this contention.
Mr Horwitz asserted that, given the evidence as to the software and hardware in use in the AusAID computer environment, DD should have worked efficiently. He stated that the difficulties raised by AusAID could have been easily resolved by increasing the amount of memory in the machine on which DD was run, and by correcting the interface with the sound card.
He asserted that AusAID would not have had the problems that they did installing DD if they had requested assistance from someone who knew the software. Mr Horwitz agreed that the AusAID network standards would have had to be changed to accommodate DD, but said that this was the case for any new piece of software.
Mr Horwitz was of the view that DD would have been almost as efficient in the manipulation of data in a "windows" or "non-windows" environment. He agreed that, as compared to an experienced numeric keypad user, there would have been an efficiency loss in the entry of numbers. He described it as significant, but this was based on a 70% of the day use assessment.
In cross-examination, Mr Horwitz agreed that there were problems with compromising network standards, but he said that these had to be balanced against the benefits gained from DD by people with limited typing abilities and disabilities. He said that if large numbers of people were going to use DD then the network standards could be changed. He said that if DD was loaded on a personal computer ("PC") then any clash would mean that the PC would not work, not the whole network.
AusAID also called various witnesses with IT expertise.
The first was John Walker, an employee in the respondent's IT section who had been asked to test DD. He explained that the respondent's IT standards are set, and all PC's are configured the same way, to make problem diagnosis easier. He said that the soundcard necessary for DD was not compatible with these settings. He explained that to change AusAID network standards to accommodate DD would lessen efficiency and limit choices of software used. Also, loading of DD on one PC could compromise AusAID's international databases.
He stated that he had advised - after about 3 days testing - that to continue would compromise AusAID standards, and he was directed not to go further. He did not seek outside assistance to determine if the conflict could be resolved.
The next witness was Michael Parkinson, an information Management Consultant. He prepared reports for the respondent on the issue in 1997.
He explained that some time would have been required to set up DD on an AusAID PC. He further believed that the data entry task using DD would have been significantly slower.
Mr Parkinson agreed that, in making his assessment, he did not have a detailed knowledge of either the AusAID applications or DD. However, he did have the assistance of AusAID technical staff. He concluded that DD could be run by AusAID but with some qualifications.
Garry Smith, who had worked in IT at the time DD was tested, then gave evidence. He is now Senior Manager of IT at International Developments Projects Australia.
He stated that AusAID had tried hard to incorporate DD on to the network, but that conflicts with AusAID standards had become insurmountable. He explained that the AusAID networks and database are large and complex, stretching throughout Australia and internationally. In mid-1995 the network was in the process of being expanded and tested and much change was taking place.
Mr Smith said that as well as a large amount of resources to get DD up and running, it would have required continuous resourcing. He explained that his assessment was that the only way to run DD was to have two sets of standards in the AusAID network. He stated that consultants on the product could not be found, but that they were not really necessary because the problems related to AusAID's internal programs.
All of this evidence must be assessed in the context of s 15 (4) (b) of the Act. I must also consider the inherent requirement established, and the fact that Ms Rees could do one to two hours computer work a day using the keyboard.
Firstly, I note Ms Rees' evidence that little or no opportunity was given to her to indicate how she would operate in the AusAID environment. She had experience of OOS, having taken actions to deal with it in her previous job. She also had, at least by the time the decision was made in October, experience of DD. Whilst correspondence was obtained from her and her medical practitioners no discussion took place in which she was included as to how she might carry out the job given the impact of her disability. At the meetings to discuss the position with Ms Rees, Ms Kuenne explained the job tasks in detail, but Ms Rees neither visited the environment nor had the chance (following such a visit) to explain how she would operate in it. Subsection 15(4) requires that her training and experience must be taken into account, and the fact that it was not means that I must make some assumptions when assessing whether the respondent is able to make out the defence of unjustifiable hardship.
It is clear from the evidence that Ms Rees could not have carried out the necessary amount of work for the position on computer - around 50% of her day for data manipulation plus perhaps a further 10% for other computer tasks - using a mouse or a keyboard. The next question is whether she could meet that requirement using a combination of keyboard and DD, as Dr Pahlow's evidence indicated that use of the mouse was not viable for her at that time.
I am satisfied, based on the evidence of Ms Rees, Dr Pahlow, and Mr Horwitz, that Ms Rees could have achieved this requirement. In forming this view I have taken into account that the requirement I have set for data input and manipulation is lower than that set by the respondent. I also accept Ms Rees' evidence that she could do up to two hours keyboard work a day, plus any amount of further work using DD. She had commenced working with DD in her current job, and had an understanding of how it worked.
Mr Horwitz gave evidence that Ms Rees' input of data may have been somewhat less efficient, but suggested methods by which this could be minimised, such as the use of a "grid" to overlay tables and spreadsheets. Further, if there were parts of the work where keyboard use was much more efficient, Ms Rees could have used the keyboard for data manipulation and taken up part of her two hours. For other computer activities, where data manipulation was not required, she could have used DD more exclusively.
Over an eight-hour day - which is more than the required working hours for a Commonwealth public servant - two hours of keyboard use constitutes 25%. I note that Ms Kuenne gave evidence that she was working much longer days, but this was probably a symptom of the under-staffing in the section. Given the assessment of 60% computer use, Ms Rees would only have been required to use DD for about two and a half-hours each day. Of course, if she were able to use it for longer than that she could minimise her keyboard use, and maximise the chances of recovering from her OOS.
Mr Parkinson and Ms Kuenne and AusAID's IT employees gave evidence that DD was much less efficient for data input and manipulation. However, where there is conflict here I have accepted the evidence of Mr Horwitz because of his much greater experience with DD.
Ms Kuenne had not used it at all, and so her assessment of "discrete speech" necessary to use voice recognition systems was purely theoretical. Mr Parkinson and the IT staff were learning to use DD while they were testing it for AusAID, so their assessment could only be based on a small amount of experience.
I note the respondent's submission that, as Mr Parkinson's assessment of efficiency with DD was not challenged in cross-examination I should apply the rule in Browne v. Dunn and not lightly depart from it. However, Mr Horwitz's evidence on the point is so much more soundly based that it outweighs such considerations. Furthermore, the Commission is not bound by the rules of evidence.
AusAID, in its submissions, further asserts that Ms Rees could not carry out the inherent requirement of the position because, even assuming total use of DD, the postural static load placed on her would have caused the exacerbation of her OOS. Ms Rees accepts, in cross-examination, that she could not use a computer for five hours a day even employing DD.
This argument is based on several false assumptions. It assumes that keyboard use and DD use would not be combined, thus causing posture change; that all computer work would require looking from paper to screen thus minimising neck and head movement; and that Ms Rees would not alter her sitting posture. Any or a combination of all of these actions would minimise postural static load.
Ms Rees could not carry out the inherent requirement for the position without the use of DD. Therefore the respondent is able to make out the first limb of the subsection 15(4) defence. However, this on its own is not enough for the respondent to be able to avoid the allegation of unlawful discrimination, because Ms Rees argues that, if services or facilities had been provided to her in the form of a DD system, she would have been able to carry out the inherent requirements. Such a system, whilst potentially also beneficial to a person without her disability, would not be required by such a person. I must therefore assess whether the provision of DD for Ms Rees would cause the respondent unjustifiable hardship pursuant to s 11 of the Act.
7. UNJUSTIFIABLE HARDSHIP
The assessment of circumstances under section 11 of the Act is a matter that must be determined on the facts of each case. Sir Ronald Wilson, the then President of the Commission, in Scott v. Telstra (1995) EOC ¶92-717), analysed the section and indicated that it envisages, by its wording, that a degree of hardship will ensue to the respondent, but in order for the test to be made out that level of hardship must be, in all of the circumstances, unjustifiable.
In order to assess unjustifiable hardship I must take all factors into account. Section 11 lists certain areas that I should consider, but the list is not exclusive.
The consideration of benefits is not limited to benefits obtained by the complainant. Certainly Ms Rees would have benefited from the installation of DD as she would have been able to carry out the job which she had won on merit and to which, prior to the respondent being aware of her disability, she had been offered appointment. I do not accept the respondent's submission that this benefit would have been minimal, as it was only a promotion of one level from her current position. It would have allowed the progress of her career into a different organisation where she could have gained new skills and different experiences.
Secondly, the benefit of Ms Rees' arrival in AusAID should be considered. She won the position because of the skills that she would have brought to the organisation, and Mr Nichols in his evidence indicated how her presence would have facilitated the re-structuring of the section, and increased AusAID's capacity for statistical analysis.
Thirdly, other employees would have benefited from the installation of DD on the AusAID network. These would include employees with disabilities, employees whose typing skills were not good, and employees generally as they would have the option of an alternate means of access to the AusAID computer network.
Fourthly, AusAID's adoption of this means of access to their computer network could have led to its broader acceptance in the community, thus spreading these benefits to people both with and without disabilities.
Finally, AusAID's role in co-ordinating the distribution of Australian aid in overseas countries must be considered. One of AusAID's target groups in these countries is people with disabilities. The availability of an access tool for people with disabilities on the AusAID computer network would raise awareness of such access issues amongst AusAID employees, and provide them with a better understanding of an issue relevant to members of one of their client groups.
These benefits must be weighed against the detriments. The first of these relates to the non-standardisation of the AusAID network. AusAID aimed to have their network standard and all PC's configured in exactly the same way so that they could spread small IT resources across a large interstate and international network.
Whilst such an aim has theoretical merit, it is often more of an ideal than a reality. Such an approach, if strictly followed, would seriously limit the introduction of all sorts of useful one-off computer applications. However, it is a detriment, and must be weighed against the benefits set out above.
Secondly, for Ms Rees to use DD it could have been run on a specially-configured PC set up for her, with greater memory capacity and other alterations. This, while non-standard, could have been done by AusAID according to their evidence. But it would have to have been linked to the database on the AusAID network. The detriment of such linking is the risk of what damage may have been done by such a PC. Mr Horwitz gave evidence that if there was a conflict between the network and the PC it would be the PC that would not work. Mr Parkinson's evidence, however, and the evidence of AusAID's IT staff, seemed to suggest otherwise.
An assessment of that evidence suggests to me that there was some risk of this occurring, but the risk and potential damage was difficult to quantify. This must be considered as a detriment, but it is hard to weigh when it is in such general terms.
Thirdly, different macros would need to be developed to run DD, and their impact on the network would have to be assessed. Mr Horwitz suggested that the user could write their own macros, but Mr Parkinson felt that there was a greater need for testing. It would seem that any new application interacting with a network would require some degree of testing, and this too must be considered as a detriment. But it would be a one-off process, as such macros could be used by other users of DD. Such testing would also have to be carried out for any new application.
Fourthly, Mr Parkinson stated that there was potential for conflict between DD and other add-ons on the network. He said there would be a need for continued testing which would have resource implications. Also, because voice recognition software was relatively new in 1995, it was not then accepted as part of industry standards. This has now changed, and as a result the concern for the respondent is lessened. However, I must weigh that concern as it stood at the time of the decision.
Mr Parkinson also expressed the concern that the addition of DD may lessen the adaptability and flexibility of the network. This concern, too, would be lessened by its later adoption as part of broader industry standards. But again, it must be assessed as it stood at that time.
Finally, it is important to consider the cost of DD. AusAID spent about $12,000 on its purchase of five packages. This is a significant amount, but not large in the context of the budget of such a Commonwealth Government organisation. Further, AusAID committed to the purchase and so the funds could not be regained.
Subsection 15(4)(b) is not a matter I have to consider in the context of this case. Subsection 15(4)(c) has been addressed above, and subsection 15(4)(d) is not relevant to an employment complaint.
In summary, I must weigh the benefits against the detriments listed. The installation of DD on the AusAID network would certainly have caused hardship in terms of the need for increased resources, the non-standardisation of the network, the risk of conflicts between applications, and the possibility of damage to the network or databases.
All of these factors are significant hardships, but without clearer evidence than was available of their likelihood, I cannot find them to be unjustifiable. Whilst the IT manager at the time suggested that testing of DD occurred over 6 months, Mr Walker indicated that he was directed to stop after 3 days. No significant expertise on DD was drawn on, and although this may be justified by saying that the issues lay within the AusAID network, I am not persuaded that such expertise would not have addressed many of the perceived problems.
Further, the benefits to be gained were far greater than those relating to Ms Rees directly. There were benefits to AusAID, to other employees, and to the broader community. Considering all of these issues, I am not satisfied that the installation of DD on the AusAID network would have caused unjustifiable hardship in terms of section 11 of the Act.
I find that AusAID discriminated against Natasha Rees on the ground of her disability in breach of the Act, and that AusAID were unable to make out their claim that not to so discriminate would have caused them unjustifiable hardship.
I direct that the parties provide me with submissions on the quantification of specific damages: in particular, the salary difference between the position of a SOG C and that of an ASO 6. The complainant's submissions on this matter should be provided to the Commission and the respondent within two weeks of the date of these Reasons for Decision and the respondent's submissions two weeks after the receipt of the complainant's submissions. I will then provide my Reasons for Decision in relation to relief granted.
DATED THIS DAY OF 15 JULY 1999