Power v Aboriginal Hostels Limited [2003] FCA 1475

FEDERAL COURT OF AUSTRALIA

Power v Aboriginal Hostels Limited [2003] FCA 1475

Discrimination in employment on the basis of disability – imputed discrimination – comparison with person without disability – inherent requirement – how to be applied with imputed disability

Disability Discrimination Act 1992 (Cth) ss 3, 4, 5, 15(2), 15(4) Federal Court of Australia Act 1976 (Cth) s 24, s 25

Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133 X v Commonwealth of Australia (2000) 200 CLR 177 DARCY POWER v ABORIGINAL HOSTELS LIMITED S 402 of 2003 SELWAY J 12 DECEMBER ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 402 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: DARCY POWER

APPELLANT

AND: ABORIGINAL HOSTELS LIMITED

RESPONDENT JUDGE: SELWAY J

DATE OF ORDER: 12 DECEMBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Appeal allowed. 2. Order of the Federal Magistrate of 3 March 2003 set aside. 3. This matter be remitted for further hearing by the same Federal Magistrate in accordance with these reasons. 4. The costs of this appeal to be costs in the cause to be determined by the Federal Magistrate. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 402 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: DARCY POWER

APPELLANT

AND: ABORIGINAL HOSTELS LIMITED

RESPONDENT

JUDGE: SELWAY J

DATE: 12 DECEMBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 The appellant was an employee of the respondent. He was employed on probation. Prior to the conclusion of the period of probation his employment was terminated. He commenced proceedings in the Federal Magistrates Court alleging that the termination of his employment was the result of unlawful discrimination by the respondent contrary to s 15 (2) of the Disability Discrimination Act 1992 (Cth) ('the DDA'). The learned Federal Magistrate dismissed that application on the basis that 'whatever discrimination the respondent committed against the appellant was excused by the operation of section 15(4) of the DDA'. The appellant appeals to this Court pursuant to s 24(1)(d) Federal Court of Australia Act 1976 (Cth) ('the FCA'). On 29 August 2003, the Chief Justice of this Court directed that the appeal should be heard by a single Judge: s 25(1A) of the FCA. For the reasons given below I am of the view that the appeal should be allowed for the purpose of setting aside the decision of the learned Federal Magistrate and remitting the matter to him for further consideration in accordance with these reasons. 2 There would seem to have been a number of issues of fact that were in contention before the learned Federal Magistrate which he has resolved. The relevant facts can now be summarised as follows: (a) The appellant suffered from a serious episode of clinical depression in the mid 1990s whilst employed by the Salvation Army. (b) The respondent operates a number of hostels throughout South Australia where it provides accommodation for Aboriginal persons. In particular, it operates the Luprina Hostel at Dudley Park. Accommodation is provided at that hostel to Aboriginal persons who are visiting Adelaide to receive medical treatment or who require crisis accommodation. Given the nature of the services offered at the hostel there is a requirement that staff be available at the hostel on a 24 hour basis. (c) On 23 November 2000, the respondent commenced employment as assistant manager of the Luprina Hostel. He was employed on a part-time basis working 32 hours per five day week. It was a condition of his employment that the respondent 'sleep over' at the end of some of his shifts and during the period of such sleep overs that he be available to answer the telephone and perform some other duties. (d) The appellant was unhappy with various aspects of his employment. He thought that the after hours obligations were unduly onerous, particularly as he was only employed on a part-time basis. He thought that he was being underpaid. He also had an uneasy relationship with his immediate superior. It would seem to be accepted that the appellant's unhappiness with these matters affected both his health and his work performance. (e) The appellant was absent from work on account of ill health from 26 March 2001 to 17 May 2001. He was diagnosed as suffering from 'an adjustment disorder with anxiety and depression'. (f) There was a review of the appellant's work performance on 12 April 2001. At that meeting he was informed that his performance needed to improve. It would also seem to be clear that the employer was of the view that his absence on account of ill health was related to the appellant's unhappiness with his working conditions. In the result the appellant's probation was extended to 23 June 2001. (g) As part of the usual administrative process in relation to employees on probation, the appellant was required by the respondent to see Dr Ducrou for the purpose of obtaining a medical report. He did so. Dr Ducrou reported that the appellant was medically capable of performing all of the duties of the job that had been specified. (h) Dr Ducrou was then contacted by an employee of the respondent, Mr Weigold. That employee informed Dr Ducrou that the appellant had recently been diagnosed as suffering from clinical depression. As a result of that further information, Dr Ducrow modified his opinion as follows: 'Dear Aboriginal Hostels I initially examined Darcy Power for a pre employment assessment on 17 May 2001. He initially indicated he had one episode of depression, due to racial abuse, which resolved with treatment. His supervisor Elmer Weigold, has informed me that he has required 5 weeks sick leave in the last 6 months, due to recurrent depression, aggravated by his extended work hours - on call 24 hours. I consider this depression will recur - especially if working on call. He would need excess sick leave if employed full time with extended call. He may be more suited to a job with office hours only - 9 - 5 - on work days. His recurring depression would render him unfit for full time work involving on call work, due to excess sick leave entitlements.' (i) Mr Weigold made an honest mistake in informing Dr Ducrou that Mr Power had recently suffered from depression. In doing so Mr Weigold imputed to the appellant a disability that the appellant did not have. (j) The appellant returned to work on 18 May 2001, the day after his examination by Dr Ducrou. He remained at work, without any further absences due to illness until his employment was terminated on 17 June 2001. It would appear that his work performance was satisfactory during that period. (k) On 17 June 2001, his employment was terminated by Mr Warrior, the regional manager of the respondent. It is possible that his employment would have been terminated because of concerns about work performance, but that was not the actual basis for termination. Nor was it the reason given for it. The reason was that Dr Ducrou had given his opinion that the appellant's depression would recur which rendered him unfit for the job. 3 The question before the learned Federal Magistrate was whether the actions of the respondent were in breach of s 15 DDA. Subsections (2) and (4) of that section provide: '(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. … (4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the grounds 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 these requirements, require services or facilities that are not required by persons without the disability and the provisions of which would impose an unjustifiable hardship on the employer.' 4 Clearly enough the appellant was dismissed. The reason given for that dismissal was because he was suffering from depression. 'Disability' is defined in s 4 of the DDA to include a disorder that 'affects a person's…emotions' that 'is imputed to a person'. Plainly enough the imputation by Mr Weingold, by Dr Ducrou and by Mr Warrior that the appellant was suffering from depression falls within the definition. As the Federal Magistrate properly found, the dismissal was 'on the ground' of disability. 5 The next question is whether the respondent discriminated against the appellant. 'Discrimination' is defined in s 5 of the DDA as follows: '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 disabilities. …' 6 The meaning of this definition has recently been considered by the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 202 ALR 133 ('Purvis'). The majority held that the definition required a factual comparison with the treatment that would have been given to a person without disability in circumstances that were the same or not materially different from those of the disabled person. As it was explained by Gummow, Hayne and Heydon JJ at 185-186, at [223]-[225]: 'In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different. In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability? Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.' 7 It is not clear that the learned Federal Magistrate carried out this comparison. Rather, he would seem to have proceeded with an analysis of the subjective basis for the decision by the respondent. For example, the Federal Magistrate said at [88] of his reasons: 'It is not open to an employer to discriminate against an employee on the basis of temporary medical conditions that would resolve with time or with reasonable changes being made to work processes. Examples of this are an employee who is absent from work, for some weeks, because of glandular fever or an employee who contracts a skin disorder by reason of exposure to a particular chemical in the work place, which can be readily substituted by the use of another substance, which does not have the same adverse consequences for the employee concerned. Clearly, it would be unlawful for the employee concerned in these examples to have his employment terminated because of the disability suffered.'