Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lonie v LiveBetter Services Limited [2023] NSWCATAD 60 Hearing dates: 28 and 29 November 2022 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member K Stubbs, General Member Decision: 1. The complaint is substantiated. 2. The respondent is to pay the applicant $10 000 for general damages within 28 days of the date of this order. 3. The parties are to file and serve any evidence and submissions as to the appropriate rate of pay and level of superannuation the applicant would have been paid had she been employed by the respondent within 28 days of the date of this order. 4. The parties are to indicate in their submissions whether they seek to be heard or whether they consider that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: HUMAN RIGHTS – discrimination on the ground disability – discrimination in work - discrimination against an applicant – in the arrangements the employer makes for the purpose of determining who should be offered employment – employer's determination who should be offered employment – unable to carry out inherent requirements- require services or facilities – impose unjustifiable hardship. Legislation Cited: Anti-Discrimination Act 1977 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42 Coleman v Commissioner of Police [2001] NSWADT 34 Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 Commissioner of Police, NSW Police v Zraika [2005] NSWADTAP 1 Dell v Dalton (1991) 23 NSWLR 528 Hall v Sheiban (1985) ALR 503 Holdaway v Qantas Airways Limited (1992) EOC 92-395 Green v Department of Family and Community Services [2013] NSWADT 193 King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; 286 ALR 149 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 Zraika v Commissioner of Police, New South Wales [2004] NSWADT 67 X v Commonwealth [1999] HCA 63;(1999) 200 CLR 177 Category: Principal judgment Parties: Kirstie Lonie (Applicant) LiveBetter Services Limited (Respondent) Representation: Counsel: M McKenney (Applicant) A Hartnett (Respondent) Solicitors: Nevin Lenne Gross (Applicant) Ovartis Lawyers (Respondent) File Number(s): 2022/00017366 REASONS FOR DECISION 1. Ms Kristie Lonie had previously had a heart attack and stent inserted, neck and lumbar pain, shoulder bursitis and tendonitis and hernia in the right groin area (physical disabilities). She applied for a Disability Support Worker (DSW) role with LiveBetter Services Limited (LiveBetter). As part of the recruitment process, Ms Lonie was required to attend a pre-employment physical functional assessment with Mr Hemsley, Exercise Physiologist at Konekt Australia Pty Ltd (Konekt). 2. Ms Lonie was assessed by Mr Hemsley as being able to perform the inherent requirements of the DSW role without the need for any adjustments. Ms Baker, who is the Head of Human Resources received an email from Ms Southern, Recruitment Advisor which pointed out Ms Lonie's physical disabilities. On receipt of the email, Ms Baker considered the email, the report by Mr Hemsley together with the Job Dictionary and determined to not offer Ms Lonie the DSW role on the basis that she 'presented a significant risk to LiveBetter'. 3. Ms Lonie's claim before the Tribunal is that LiveBetter failed to employ her as a DSW on or around 18 March 2021 on the ground of her disability in contravention of s49D(1)(a) and (b) of the Anti-Discrimination Act 1977 (NSW) (the Act). 4. LiveBetter relied on the exception in s49D(4)(a) and (b) of the Act, that Ms Lonie would have been unable to carry out the inherent requirements of the DSW role or would in order to carry out those requirements, require services or facilities, the provision of which would impose an unjustifiable hardship on it. 5. On 29 April 2021, Ms Lonie made a complaint of disability discrimination with the President of the Anti-Discrimination Board (ADB) alleging that she had been discriminated against by the respondent in employment on the grounds of disability. On 19 January 2022, the President's delegate decided to refer the complaint to the Tribunal pursuant to section 93C(b) of the Anti-Discrimination Act 1977 (the Act). 6. For the reasons set out below, the Tribunal has decided that LiveBetter did contravene s49D(1)(b) and has failed to make out the defence in s s49D(4). Statutory framework Discrimination 1. The long title of the Act explains that it is an Act 'to render unlawful …discrimination in certain circumstances and to promote equality of opportunity between all persons'. The principles of interpretation applying to legislation such as the Act includes recognition that it is remedial and beneficial legislation that should be given a 'fair, large and liberal interpretation' AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42 at [24] and the cases noted there. 2. It should also be noted that disability discrimination differs from other forms of discrimination such as sex, race and age as it inevitably pivots attention on the admitted difference. The focus is not on equal treatment but on recognising that there may be a need to do something different so that the person with the disability can be treated the same as everybody else. Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [198]-[203], [207] per Gummow, Hayne and Heydon JJ. 3. Ms Lonie alleges in the particulars of claim dated 7 April 2022 that LiveBetter contravened ss49D(1)(a) and (b) of the Act, which states: 49D(1) It is unlawful for an employer to discriminate against a person on the ground of disability-- (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment … (4) Nothing in subsection (1) (b) or (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 that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth. 1. LiveBetter relies on s49D(4) set out above as a complete defence to Ms Lonie's claim. 2. Disability includes past, future and presumed disability: section 49A. The form of discrimination alleged by Ms Lonie includes direct and indirect discrimination as set out in s49B(1)(a) and 49B(1)(b) of the Act. Ms Lonie submitted that the direct discrimination was the decision to not employ based on a future presumed disability taken without a proper basis. In the alternative that she was indirectly discriminated against because she satisfied the pre-employment assessment it was unreasonable for the employer to apply rules and policies with which she could not comply. 3. Section 49B of the Act states: (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 1. Section 49C sets out what constitutes unjustifiable hardship: In determining what constitutes unjustifiable hardship for the purposes of this Part, 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. 1. Section 4A of the Act explains that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for that reason. 2. There was substantial amount of evidence before the Tribunal that post-dated the decision by LiveBetter to not employ Ms Lonie, made on 18 March 2021 including the report of Dr Diaz, the evidence of Dr Adegbaju, Ms Hogg, Mr Richie and evidence from Ms Lonie about the work she performed following LiveBetter's decision to not employ her. 3. There was no dispute that for the purpose of s49D(4), the relevant date of the alleged discrimination was 18 March 2021 but there was dispute as to whether the Tribunal could consider any evidence post-dating the alleged discriminatory conduct and if so, for what purpose. 4. In Zraika v Commissioner of Police, New South Wales [2004] NSWADT 67, the Tribunal found that Mr Zraika did not meet the required vision standards required by the New South Wales Police Force as he had an amblyopia in his left eye, meaning that he could only count fingers held up in front of his left eye. The Tribunal at first instance found that the respondent had not made out its defence that Mr Zraika was unable to carry out the inherent requirements of the particular employment and that Mr Zraika was unable to carry out the inherent requirements of the particular employment with the provision of services or facilities or that it would impose unjustifiable hardship on the New South Wales Police Force to provide services or facilities to Mr Zraika. 5. On appeal, in Commissioner of Police, NSW Police v Zraika [2005] NSWADTAP 1, the Appeal Panel held that a respondent could lead evidence at the Tribunal in regard to the identification of the inherent requirements it did not have before it at the time of the alleged discriminatory conduct and that the applicant could not carry out the inherent requirements or would have required services of facilities that would have imposed unjustifiable hardship on the employer at [15]-[16]. 6. This is self-evidently correct as s116 of the Act requires the Tribunal to apply the provisions of the Administrative Decisions Review Act 1997 (ADT Act) and the Civil and Administrative Tribunal Act 2013 to these proceedings, however the Act prevails over any provisions to the extent of any inconsistency. 7. Pursuant to s 63 of the ADR Act, the Tribunal is required, in determining an application for an administrative review, to decide what is the correct and preferable decision having regard to the material before it. (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 1. As in administrative review matters, in discrimination matters the Tribunal is to decide the matter based on the relevant factual material before it at the time of its decision. This may include material that was not before the employer at the time it made the decision. 2. The Tribunal must ultimately determine in this case whether LiveBetter's conduct was discriminatory and whether LiveBetter has proved the defence in s49D(4) at the relevant time the decision was made. We therefore do take into account evidence that post-dates 18 March 2021. Evidence 1. Ms Lonie relied on: 1. Statement of Kirsti Lonie dated 18 March 2022 2. Statement of Fiona Hogg dated 25 March 2022 3. Report of Dr Comfort Adegbaju dated 6 April 2022 4. Reply statement of Kirsti Lonie dated 9 May 2022 5. Statement of Tyler Richie dated 3 July 2022 1. Live Better Services relied on: 1. Statement of Tegan Baker dated 4 May 2022 2. Statement of Dr Uthum Dias dated 5 May 2022 1. There was a limited factual dispute between the parties as to the acts said to constitute discrimination. LiveBetter's case was that it did not employ Ms Lonie because of her disabilities but it relied on the complete defence in s49D(4). There was a lack of exactness as to what the specific inherent requirements of the DSW role were. 2. There was a large factual dispute between the parties as to whether: 1. Ms Lonie was or would have been able to perform the inherent requirements of the DSW safely; and 2. if Ms Lonie was not able to perform the inherent requirements safely, whether the provision of services or facilities would have imposed an unjustifiable hardship on LiveBetter. Ms Lonie 1. Ms Lonie is a 48 year old woman who at the time of hearing was employed as a DSW. She supports a young woman with behavioural problems. She worked about 60 hours per fortnight and had recently commenced to look after another client once a week. 2. As a DSW with Infinity, Ms Lonie described her role as being required to: 1. Lift a wheelchair in and out of a car with an approximate weight of 20 kg. This requires manoeuvring the wheelchair into the car. Often there is another person to assist with this role if needed. 2. Immobile patients are moved with an electric lifter, some clients have a hoist in their room to assist with movement. 3. Personal care is undertaken and squatting and crouching occurs for no more than 10 minutes a day. 4. Dressing clients is the most physical part of the job, 5. Making beds does not involve overhead lifting or leaning forward as the beds are adjustable. 1. At the time Ms Lonie applied for a role with LiveBetter, she was employed by Mercy Health in Albury as a Hospital Assistant on a casual basis. Ms Lonie stated that this role required her to wash walls and prepare meals. In carrying out the role she had to be climbing stairs. 2. Ms Lonie also has a family business with her husband called Lonies Management Services. She has worked in the business as an assistant tradesperson from 2000 onwards. Ms Lonie's evidence was that she performed heavy manual labour work such as plastering, painting, tiling, grouting, cleaning, labouring, gardening, construction of decks, pergolas and sheds, concreting, carpentry, repairs and renovations. 3. From 2000 onwards Ms Lonie also had other roles that were part time or casual in nature, including as a Personal Care Assistant at Westmont Homestead and as an Operating Room Assistant at Albury Wodonga Health. 4. In November 2012 she suffered a heart attack, subsequently had a stent inserted and took three weeks off work. She has a history of family heart disease. Ms Lonie was assessed by her cardiologist Dr Bissessor a few months prior to March 2022 and was informed that she did not need another review for two years. 5. In 2018 she experienced physical pain as a result of constant physical work doing bathroom renovations and she took pain relief medication in the morning and night. Mr Lonie's evidence was that she had never sustained a workplace injury. 6. During cross examination, Ms Lonie stated that she had in the past had intermittent shoulder pain and lower back pain after working the day tiling and grouting or whipper snipping, however that did not prevent her working. She also experienced neck and lumbar pain when painting ceilings. Ms Lonie put these aches and pains down to her age and strenuous physical work. Ms Lonie stated that the most physically straining work she had ever done was at the Mercy Hospital cleaning operating rooms. 7. Ms Lonie applied for the DSW role with LiveBetter and on 4 February 2022 attended an interview with two managers. She informed the interviewers that she wanted a casual role as she wanted flexibility to be able to accept and reject shifts as she was at that time working in her business and had a job at the Mercy Hospital. 8. On 21 February 2022, Ms Lonie attended at Konekt for a pre-employment physical assessment. The assessment included an interview and the performance of activities such as using a high step for 3 minutes, lifting 10 to 15kg floor to waist and bilateral lifting of 20kg. Ms Lonie found this assessment hard but she was able to complete it. 9. On 18 March 2022, Ms Lonie received the letter from LiveBetter informing her that she had been unsuccessful due to presenting 'a significant risk to LiveBetter'. 10. Ms Lonie denied that she was not able to safely satisfy the inherent requirements of a DSW role due to her current or present health conditions. 11. Ms Lonie stated that LiveBetter's rejection of her employment application based on her prior medical history caused her to feel distressed and anxious. She was demotivated about career prospects, particularly about applying for jobs in the disability support services sector. 12. Ms Lonie calculated lost earnings based on income she actually earned as an estimate of the average income she would have received had she been employed as a casual. She estimated 20 hours per week. Ms Hogg 1. Ms Hogg is a Hotel Services Supervisor and worked with Ms Lonie when she was a Hospital Assistant at the Mercy Health in 2021. Her evidence was that Ms Lonie worked over 8 hours a day. 2. In her opinion the level of physicality of hospital assistants and personal carers is similar. Ms Lonie's duties included emptying rubbish that weighed about 10kg, cleaning walls and bathrooms which involved some reaching and squatting, pushing and pulling trolleys with food and drink trays, carrying trays by hand that weighted up to a few kilos as well as mopping and changing beds. Ms Lonie was required to be constantly on her feet and walking. During cross examination, Ms Hogg stated that Ms Lonie's duties also included vacuuming, sweeping and wiping. Dr Adegbaju 1. Ms Lonie first saw Dr Adegbaju, General Practitioner on 12 January 2021. Dr Adegbaju gave broad evidence that Ms Lonie was in good health and that her employment as of 6 April 2022 did not constitute a risk to her health. She did not consider that the role with LiveBetter would pose a risk to her health. 2. Dr Adegbaju saw Ms Lonie on 25 March 2022, which is 7 days following receipt of the letter from LiveBetter informing her that she was considered to be a significant risk to the organisation. She reported that Ms Lonie discussed the psychological and emotional impact on her and reported that she had lost confidence in herself, displayed low self-esteem, low mood and lack of motivation. Mr Richie 1. Mr Richie is the Chief Operating Officer of Infinity. Mr Richie's evidence was that Ms Lonie's position description at Infinity is very similar to the position description at LiveBetter. Ms Lonie was working at Infinity as a DSW from September 2021 for a period of about 8 months, when she resigned from the role. 2. Mr Richie's evidence was that he was not Ms Lonie's direct line manager and that she had 3 different Team Leaders but that he did attend the homes in which Ms Lonie worked and reviewed the shift reports. Mr Richie interviewed Ms Lonie for the role and was confident that he could confirm that she performed the work set out in the LiveBetter Job Description. Mr Richie did not provide a copy of Infinity's DSW Job Description but attached a copy of the LiveBetter Job Description to his statement. Ms Baker 1. Ms Baker has the role as Head of Human Resources of LiveBetter. She's been employed since 2015 and oversees the recruitment function. She has reviewed hundreds of pre employment medical reports such as the one from Konekt during her employment. She was not medically qualified but was aware of occupational health and safety obligations. 2. All new potential employees are required to undertake and satisfy a number of pre employment checks before they are offered a contract of employment. This includes a pre employment medical assessment. The pre employment medical assessment is usually undertaken by a specialist such as Konekt. Konekt provides information for LiveBetter to consider when undertaking their risk assessment. Once received, the pre employment medical assessment is reviewed in conjunction with other relevant documents. 3. Once all of the documents have been assessed, Ms Baker would determine whether the person can meet the inherent requirements of the position they have applied for, and if the applicant undertaking those duties would cause a risk to themselves, their fellow employees or the clients of LiveBetter. Job Interview 1. On 4 February 2022, Ms Lonie attended an interview for the role. In evidence were the notes of the two persons who interviewed Ms Lonie. They both recommended that she be progressed subject to pre-employment checks including a pre-employment Medical Assessment. It is not in contest that Ms Lonie indicated that she was interested in a casual role with Live Better. 2. During the interview, Ms Lonie was asked 'do you have a health condition or other limitations that may safely affect your ability to undertake the inherent requirements of the role?' To which Ms Lonie answered 'no'. 3. The notes from the interview demonstrate that both interviewers considered her responses as 'good' and recommended that she progress in the recruitment process. There were no questions about pre-existing medical conditions. One of the questions was: What is your understanding of the day to day duties of a support worker. Ms Lonie answered: teaching life skills, cleaning, meal preparation, community access, shopping, upholding rights, making a positive impact on someone's life. 4. Ms Lonie was judged as 'very good' for that response by one of the interviewers and 'average' by the other interviewer. Job Task Dictionary 1. A Job Task Dictionary had been developed to assist with pre employment and preplacement health assessments, which is used as part of the fitness for work screening to ensure that employees have sufficient fitness to perform the inherent requirements of the role and to assist with injury management. 2. The Job Task Dictionary also outlines a range of duties performed for each role in the organisation. It includes a brief description of each position and description of the physical task demands of each role as well as a description of the psychological demands of each role. 3. The Job Task Dictionary identified the physical demands of the Disability Support Worker Role as: Physical demands of a disability support worker may vary depending on the clientele that a support worker is working with. Some clients have high physical needs and support workers may find themselves having to complete more self-care and ADL (activities of daily living) tasks such as transfers and toileting and showering with an increased amount of physical effort. Working with clients who have high physical needs may involve a DSW having to squat, bend and push or pull more often in their role than other support workers. Other clients may be physically capable of completing most tasks by themselves, however behaviour challenges may require support workers to utilise self-protection or are required to quickly move out of the way from unsafe behaviour if it occurs to ensure their own safety. It is essential that when employed as a disability support worker, an employee can complete all required physical demands as they may be placed with any type of clientele and therefore will need to ensure they meet all inherent requirements of the job role. Physical Demands Frequency and Load if Relevant Rare Occasional Frequent Constant Repetitive Reaching with arms above shoulder height X Reaching with arms at shoulder height X Arms reached out below shoulder X Fine motor utililsation for typing and writing notes X Gripping Looking up and down X Looking from side to side X Sitting X Standing X Getting in and out of a vehicle X Walking X Walking briskly X Running X X < 20m >20m Step climbing X Squatting/lunging X X Bending X X Twisting X Pushing at waist height X X X 20kg 15kg 10kg Pulling at waist height X X X 20kg 15kg 10kg Lifting floor to waist X X 10kg 5 kg Lifting waist to shoulder height X 5kg Lifting above shoulder height X 5kg Isometric hold X Up to 30kg Carrying (up to 20 meters) X X 15kg 10kg Job Description 1. The job description for the DSW sets out details about LiveBetter as well as details of the position including key position responsibilities and personal specifications. 2. Live Better is described as one of the largest regionally based providers of community services in Australia employing approximately 1500 staff delivering a range of aged, disability, carer and clinical services. 3. The position description runs to 4 pages. It includes 6 paragraphs about the organisation which relevantly states that it employs approximately 1500 staff with an annual revenue of more than $90 million. Under the heading 'our values' there is reference to encouraging team work. 4. The Disability Services team in which a DSW is employed provides services under the National Disability Insurance Scheme (NDIS) and through state based funding. The key responsibilities of the DSW are to provide direct customer care. DSWs are required to work with customers one on one or in a group setting and alongside other DSWs. 5. The role of the DSW is to aid, direct and support care for adults living with a disability within group homes, day programs, vocational training and providing support in clients' homes. A DSW is also expected to provide support in external environment such as shopping centres, doctors surgeries and in recreation areas. Many of the customers live with some level of intellectual or behavioural disability and many clients, in addition, have a physical and/or a psychiatric disability. 6. The relevant core responsibilities of the position include: 1. Contribute to developing, following and implementing programs that support customers in developing skills associated with daily living and to increase their capacity to be part of the community. 2. Support customers in their chosen program to progress towards their individual goals and ensure they meet their requirements under their NDIS plan. 3. Provide support to customers for require assistance with daily living. 1. Ms Baker included a summary of the physical demands on DSW from the Job Task Dictionary. The specific tasks referred to were: 1. Transferring clients who have high physical needs. 2. Daily living activities such as toileting and showering (involving squatting, bending, pushing, pulling. 3. Behavioural challengers may require utilising self-protection or moving quickly. 1. Ms Baker listed her concerns about the following tasks: 1. Manoeuvring wheelchairs. 2. Assisting to secure customers to transport. 3. Providing urgent physical assistance to a client who has a medical episode. 4. personal care, domestic assistance, and medication administration. Pre-employment Medical Assessment 1. On 22 February 2022 Ms Lonie attended the pre-employment Medical Assessment with Konekt. The pre-employment Medical Assessment information consent form (consent form) and the report were in evidence. The attendance at the pre-employment Medical Assessment with Konekt was a requirement of LiveBetter. 2. The consent form stated: The pre-employment assessment is performed to determine whether the duties required by your proposed position represent a health risk to yourself, or whether in performing these duties you would pose a safety risk to other employees. … The pre-employment assessment is being undertaken as your proposed employer has a duty of care not to expose you or others to a risk of injury in the workplace. Following the assessment, an opinion will be provided to your proposed employer as to your suitability for the proposed position. It will also be necessary to advise your proposed employer as to whether any modifications or limitations to your occupation/duties need to be made in order for you to safely perform those duties. The opinion will include a consideration of whether there might be a future risk that you will sustain or exacerbate an illness or injury. The questions that you will answer as part of the assessment aim to ensure that … you would be able to fulfil the inherent requirements of the position you're applying for …Therefore, should the assessor determine that your proposed occupation represents a health risk to yourself or a safety risk to others, then they will inform your proposed employer of this finding. If this risk is determined to be significant it will mean you will not be considered suitable for employment in the proposed position. If it is determined that a risk can be reduced or managed by placing limitations or restrictions upon the type and nature of the work that you would perform, then the proposed employer will be advised of the limitations or restrictions. If those proposed limitations or restrictions are considered reasonable and practical by the proposed employer, then employment may be offered to you within these appropriate limitations or restrictions in place. However, all decisions about whether you will or will not be employed will be made by the proposed employer, not by Konekt. 1. In the pre-employment standard questionnaire, Ms Lonie disclosed that she takes various medication as a result of having the heart attack and subsequent stent in November 2022. She answered no to the question as to whether she experiences chest pain. She also disclosed that she is a smoker, that she has asthma and that she has a history of heart disease. 2. Ms Lonie was asked whether she has ever had an illness or injury that prevented her from working for more than a week. Ms Lonie answered 'yes' as a result of the heart attack and stent and that now she had fully recovered. 3. Ms Lonie was asked whether she had ever had a hernia. Ms Lonie answered 'yes' but said that she did not have any current symptoms from the hernia. 4. She was asked whether she had any allergies. She answered 'yes'. She was asked whether it was an allergy that could be reasonably expected to be exposed to in her role. She answered 'no'. 5. Ms Lonie was asked whether she had ever had a shoulder injury or shoulder tendonitis? She disclosed that she had bursitis and tendonitis in her right shoulder about 6 months ago and that the problem was caused or made worse by work. She reported that she did not have any current symptoms or troubles. 6. Ms Lonie stated that she had experienced back pain in the last 10 years and that she last felt the pain 1 to 5 years ago. That she has had 1 to 2 episodes and the pain lasted days to weeks but that it did not affect her employment. 7. The back pain was made worse by work but that she did not change her job as a result of the pain and that she had no current pain. She reported that she did not recall whether she had pain down the legs past the knee but that there was no pins and needles or numbness down the legs or muscular weakness in the legs lasting more than a day. 8. Ms Lonie was asked whether she had 'neck pain, neck strain, fractured neck vertebrate or whiplash'. She answered 'yes' and stated that she last had pain more than 5 years ago. 9. Ms Lonie was asked whether she had 'any lumps or bumps around her wrist, hands or feet'. She answered 'yes', on her left foot but that it was no longer present. 10. Ms Lonie was asked whether she had any difficulties with the following activities: 1. Running 100 metres. 2. Walking one kilometre. 3. Kneeling/crouching. 4. Standing for two hours. 5. Turning head rapidly. 6. Concentrating. 7. Climbing a ladder. 8. Sitting for two hours. 9. Lifting or bending. 10. Gripping firmly with both hands. 11. Reading ordinary prints. 12. Repetitive movement of arms. 1. Ms Lonie answered 'no' to all those questions. 2. Ms Lonie told Mr Hemsley that she last saw the specialist in regard to the stent and heart attack in October 2020. No damage was detected and that she effectively manages the condition with medication. 3. Ms Lonie explained that she has seasonal asthma, and that the last episode occurred four years ago. As to shoulder bursitis/tendonitis, it first appeared three to four years ago, that it is managed with physiotherapy, that she is careful to not overuse the shoulder. Neck pain same as lumber pain, managed with rest overnight. Ms Lonie was required to demonstrate a range of motions, including; cervical neck, thoracic lumbar spine, lower limb. She was assessed as functional for all motions. No comments as to any abnormality were made by the assessor. 4. She was assessed as to strength, flexibility, core strength/stability, neurological testing, balance upper limb. She scored the top mark (from 1 to 5) for the assessment. It is recorded that there was no pain or restriction. 5. She scored the top mark for core strength and stability (bilateral integration test, balance, stability). She satisfied the 'slump test (neural canal testing)' and balance exercises. Her cardiovascular fitness was below average. Her postural tolerance (seated reaching, reaching overhead, dynamic stooping, dynamic bilateral kneeling, dynamic unilateral kneeling, dynamic unilateral kneeling) was not restricted. 6. Ms Lonie was able lift the maximum weight; waist to floor (15kg), waist to shoulder (15 kg), waist to overhead (7kg), balanced carrying (20 kg), push/pull (70 kg). 7. Mr Hemsley found that Ms Lonie was suitable for the proposed DSW position. He was of the opinion that there were no restrictions for the proposed role. In response to the question: 'Medical history. Current and prior history with all reported injuries or illness. And their effect on the candidates ability to perform the proposed role'. Mr Hemsley responded: 'Heart attack, November 2012. Managed with medication Nil ongoing issue. Neck and lumbar pain, occasional pain late in day if completing intense physical activity, relieved with rest overnight. Nil issue in proposed role. Right shoulder, bursitis, tendonitis, nil ROM deficit managed with physiotherapy. 16 March 2021 1. On 16 March 2021 at 4.43 pm, Ms Southern, Recruitment Advisor, sent an email to Ms Baker and Mr Brand in regard to Ms Lonie's medical review: Are you able to review the attached medical for Kristi Lonie? I have concerns that she has lower lumbar pain, neck pain and bursitis and tendonitis in her right shoulder, and it was noted less than six months ago it was hurting and is currently being treated with massage and physio. Kristie also has a hernia in her right groin area that has not been treated. That could be a potential risk at a later stage. I worry that we could be exacerbating the injuries. 1. Ms Baker states at paragraph 23 that following receipt of the email from Ms Southern, she met with Mr Brand on 16 March 2021. Mr Brand is a Senior Recruitment Advisor. Ms Baker recalls going through the Konekt assessment with Mr Baker. 2. Ms Baker 'was somewhat surprised' that Mr Hemsley had recommended that Ms Lonie was suitable for the position with no restrictions because of her pre-existing medical conditions which were; heart attack and stent, neck and lumbar pain, shoulder bursitis and tendonitis and hernia right groin. 3. Ms Baker was unsatisfied with the physical capacity issues identified in the Konekt report, although there was no identification of any specific part of the assessment performed with which she was unsatisfied. She formed the view that employment of Ms Lonie in the role of DSW posed a significant risk to herself, fellow employees and clients of LiveBetter. She formed the view that Ms Lonie would be unable to fulfil the inherent requirements of the position. After coming to this conclusion, she considered with Mr Brand whether there were reasonable adjustments that could be made to accommodate the pre-existing medical conditions identified. 4. She considered the heavy manual handling requirements of the DSW role and concluded that it was not practicable for LiveBetter to make adjustments to the role. She considered the repeated manual handling of clients, regular use of loading wheelchairs, prolonged walking, crouching, bending and twisting which included manoeuvring wheelchairs and assisting to secure customers for transport and provision of urgent physical assistance was required. 5. Ms Baker concluded that an adjustment would be to create a 'highly modified unfunded supernumerary role' for Ms Lonie on an ongoing basis. This would be a modified role that excluded many of the essential functions of the DSW role. 6. In evidence but not attached to Ms Baker's statement is a document on LiveBetter letterhead called WHS Risk Assessment & Control Form. The date and time of the assessment is recorded as 16 March 2021 at 2.15pm. It is identified that Ms Baker is a Lead Assessor with Mr Brand. 7. The hazard identified is "a number of potential risks have been identified on the PEM of candidate Kirsty Lonie, who has applied for employment in the position of disability support worker." The potential risks are identified as heart attack, asthma, smoking, hernia, allergies, right shoulder bursitis & tendonitis, lower back pain, neck pain, lump/bump left foot, positive slump test, cardiovascular fitness. 8. Step 3 documents the hazards, their level of risk the controls put in place to control those hazards and the revised risk score. 9. Ms Baker did not explain the document and no submissions were made as to what the outcome of the Risk Assessment was. Doing the best we can, it seems that the most serious risks identified were heart attack which had the number 1 in the column C which we consider to mean Critical Consequence and smoking which is listed as 2 in the C column as Major Consequence. The other potential risks are listed as 3 – Moderate Consequence or 4 – Minor Consequence or 5 – Minimal Consequence. There are also another two columns with the letters L and S. 10. In Step 4 – 'Close-Out' there is a question 'has a maintenance request been logged?' the answer is 'no'. The other questions are blank. 11. Ms Baker stated that LiveBetter obtains its funding and revenue from the Commonwealth, mainly through the NDIS and that this funding is for services provided in a package to each client. The funding is essentially allocated to each client for the required services and translates into a certain number of hours of support worker assistance for each client and as such, LiveBetter was not in March 2021 or now in a position to create a special modified DSW role. 12. Ms Baker stated that she reached this conclusion based specifically on the untreated hernia, shoulder bursitis and tendonitis and neck and lumbar pain, all of which were confirmed as being made worse by work or physical activity. She stated unequivocally that she believed that Ms Lonie fundamentally was unable to safely perform the role. Ms Baker made reference to an employer's obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) to provide a safe workplace. 13. Ms Baker concluded that Ms Lonie could not safely perform the inherent requirements of the role without posing a risk of aggravation or injury, based on the physical requirements of the role. She did not consider it appropriate to contact Ms Lonie or Mr Hemsley in determining to not employ Ms Lonie as she had significant material and information before her. 14. During cross examination, Ms Baker stated that it was the medical history of Ms Lonie experiencing recent pain and an untreated condition (hernia) that concerned her. Ms Baker confirmed that as stated in the letter to Ms Lonie on 18 March 2021, that Ms Lonie presented a significant risk to LiveBetter. 15. On 18 March 21, Ms Baker wrote to Ms Lonie informing her that she was not successful in her application for the role. In the letter it was stated: following review of your pre employment medical assessment results, it has been identified that your employment in the position of a DSW would present a significant risk to LiveBetter. 1. Following Ms Lonie's application to NCAT, Ms Lonie and LiveBetter agreed for Ms Lonie to attend on Dr Dias. Dr Dias 1. Dr Diaz is an Occupational Physician, he examined Ms Lonie on 23 November 2021 via zoom video conference. Dr Diaz explained that he sees about 5 DSWs a month who have injuries and has been in practice for over 15 years. Dr Diaz explained each medical condition: 1. Ms Lonie had a heart attack in November 2012 after a day of heavy physical work in her family building and maintenance company. She took herself to the hospital. A stent was placed in her left anterior descending artery. Over the past 9 years she has presented to the hospital around 3 times suffering from chest pain, but on each occasion the incident was not cardiac in nature. Ms Lonie has a history of heart disease and is a heavy smoker. She sees her cardiologist on an annual basis. 2. In 2017, Ms Lonie developed pain and discomfort in her right shoulder which she attributed to heavy lifting as part of the work she performed in the family business. She continues to have occasional pain in her right shoulder when she performs repetitive heavy manual handling and repetitive work involving above shoulder work. 3. Ms Lonie had neck pains 5 to 10 years ago but it resolved. She has occasional lower back pain when she performs heavy and repetitive physical work associated with the family business. 4. In 2019, Ms Lonie began to develop pain in her right groin. She attributed this pain to heavy and repetitive physical work associated with the family business. Ms Lonie avoids performing tasks that involve heavy lifting whilst bending and twisting of her lower back and torso. 1. Dr Diaz found that Ms Lonie's spine, limbs, spine, shoulders and groin were normal to inspection and she had a full range of movement. Dr Diaz did not disclose any doubt that Ms Lonie was pain free and asymptomatic at the time of the consultation. At this time she was working as a DSW at Infinity a minimum of 30 hours per week. 2. Ms Lonie's role required her to provide services to physically and intellectually disabled NDIS clients with aspects of self-care including toileting, showering, mobility, grooming, eating and dressing. She also provided domestic support such as cleaning and cooking. She took clients to doctor appointments and social outings. She often performed overnight shifts. 3. Dr Diaz's opinion was that the right shoulder condition and the untreated hernia would be at increased risk of aggravation and exacerbation if she was required to carry out the inherent requirements of the DSW role such as repetitive pulling and pushing of clients with impaired mobility to assist with mobility transfers, self-care tasks, repetitive and prolonged overhead work with associated pulling and pushing (particularly with toileting, showering and dressing tasks) repetitive and prolonged kneeling, squatting and crouching assisting clients with self-care tasks) as well as cleaning and cooking. 4. Dr Diaz's opinion was that if Ms Lonie was to perform the inherent requirements of the role, the risk of aggravation and exacerbation to the right shoulder condition and the untreated hernia was assessed as 'medium to high'. 5. Dr Diaz was of the opinion that Ms Lonie could perform the role but required 'restrictions to mitigate against the risk of aggravation and exacerbation' of her right shoulder and hernia conditions. Dr Diaz recommended that Ms Lonie should avoid: 1. Performing any heavy pulling or pushing duties using force greater than 10 kg; 2. Lifting any items weighting greater than 10 kg; 3. Performing any overhead or above shoulder height work with her right arm on a repetitive basis; 4. Performing tasks that involve bending and twisting of the lower back or kneeling and squatting with concurrent pulling, pushing and overhead work. 1. During cross examination Dr Diaz explained that the frequency or consistency of the duties would impact on the risk of exacerbation of the risk to injury to the shoulder. Ms Lonie's claims Ms Lonie's disabilities 1. Ms Lonie claims that her disabilities are those listed in the definition of disability in s4(a),(b) and (c), that is total or partial loss of a person's bodily or mental functions or of a part of a person's body or the presence in a person's body of organisms causing or capable of causing disease or illness or the malfunction, malformation or disfigurement of a part of a person's body. 2. Ms Lonie accepted that the disabilities were correctly characterised by Ms Baker in paragraph 23 of her statement to be: 1. heart attack and stent, 2. neck and lumbar pain, 3. shoulder bursitis and tendonitis and 4. hernia right groin. Ms Lonie's contentions 1. Ms Lonie contends that the disabilities were those in the past, future and presumed disabilities within the meaning of s49A(a) to (d). 2. Ms Lonie also contends that the respondent discriminated against her directly, that is s49B(1)(a) and indirectly, s49B(1)(b). 3. Ms Lonie contends that the respondent discriminated against her on the ground of her disabilities in the arrangements it made for the purpose of determining who should be offered employment: s49D(1)(a) and in determining who should be offered employment s49D(1)(b). 4. There is no issue between the parties that the applicant has a disability within the meaning of s4, she sought employment with the respondent and that the respondent is an employer to whom the Act applies. 5. There is substantial dispute between the parties as to the impact of the disabilities upon the capacity of Ms Lonie to perform duties of a DSW. Ms Lonie submitted that the Tribunal find that she could perform the inherent requirements of the DSW role as she performed those duties with Infinity from late 2021 to mid 2022. 6. However Ms Lonie also submitted that Dr Diaz's report of 23 November 2021 should not be used to support and justify the conclusion reached by Ms Baker on 18 March 2021. 7. Ms Lonie submitted that Ms Baker's evidence was unresponsive and unsatisfactory as it disclosed no inquiries as to the prescience or frequency or relevance of the disabilities that impacted on her capacity to carry out the inherent requirements. Ms Lonie asserted that there is always some risk of injury to any new employee but there was insufficient evidence to conclude that there was a risk to a breach to the WHS Act. 8. Ms Lonie submitted as there was no cross examination of her as to non-economic loss, her evidence should be accepted as being unchallenged. As to economic loss, there was a reasonable expectation of being offered shifts between February to September 2021. LiveBetter's Response 1. LiveBetter contends that it invokes the operation of s49D(4)(a) and (b) of the Act and submits that the defence requires a 3 step process: 1. Determination of inherent requirements of the DSW position for which the applicant applied. 2. Determination of whether it has established that she could not perform the inherent requirements of the role because of her disability. 3. Consider whether in providing the services or facilities required for her to perform the inherent requirements of the position, those services and facilities imposed an unjustifiable hardship on the respondent. 1. The respondent submitted that the inherent requirements for the DSW role were set out in the LiveBetter Job Task Dictionary and the LiveBetter DSW Position Description. 2. Despite a positive interview report and a pre-employment medical assessment by Konekt that assessed the applicant's capacity to perform the inherent requirements of the role without any adjustments, Ms Baker determined that the applicant was not able to perform the inherent requirements of the role and determined that the respondent would not employ the applicant. 3. The respondent submits that Dr Diaz's report confirms Ms Baker's opinion that Ms Lonie was not able to carry out the inherent requirements of the DSW role. 4. The respondent submits that Ms Baker's evidence that the respondent was not funded by NDIS to provide services or facilities for employees who could not carry out the inherent requirements grounds its submission that the provision of such to Ms Lonie would impose an unjustifiable hardship on the respondent. 5. The respondent referred to the judgement of Gaudron J at [36] in Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 (Qantas v Christie) and paragraphs [102]-[103] of McHugh J's judgement in X v Commonwealth (1999) 200 CLR 177 (X v Commonwealth). The respondent submitted that as set out in Ms Baker's statement, the NDIS funding is for certain number of hours of service to clients and the DSW must be able to support all clients consistent with their package. 6. The respondent submitted that the inherent requirements of the role are all of the physical demands of the role, these include pushing and pulling 10 to 15 kg at waist height frequently. That the issue is not necessarily the repetition but was dependent on the client allocated. The issue of repetition is different to the issue of frequency. 7. The contract of employment that Ms Lonie would have signed had she accepted the role would have required her to support all clients. 8. LiveBetter highlighted that Mr Richie had not exhibited a copy of Ms Lonie's Job Description at Infinity and was giving evidence as a backward looking assessment and that it does not assist the Tribunal in determining the basis of Ms Baker's decision. 9. LiveBetter accepted that Dr Diaz's evidence also post-dates Ms Baker's decision, however submitted that there was unchallenged evidence that the respondent would have had to create a new supernumerary role if it employed Ms Lonie. The respondent relied on the decision in Zraika v Commissioner of Police, NSW Police [2004] NSWADT 67 (Zraika) where the Tribunal took into account a subsequent medical report in regard to a remedy in s108 of the Act. The Tribunal has discretion to decline to make an order even if there is a finding of discrimination. 10. As to economic loss, it was submitted as this was a casual role there was no guaranteed work. Consideration on applicant's claim: s49D(1)(a)– arrangement made for the purpose of determining who should be offered employment. 1. Ms Lonie's written submissions in regard to s49(1)(a) in the particulars of claim were brief and opaque. At paragraph 21 it is submitted that the employer took into consideration non-relevant factors when it declined to progress the applicant's application for employment and that if failed to consider relevant factors such as the pre-employment assessment caried out by Konekt, the interview and NDIS screening. 2. Ms Lonie's complaint was not that she was required to attend a medical assessment but that Ms Baker acted unreasonably in rejecting the Konekt report. 3. The Tribunal is satisfied that the respondent's practice was to send all persons applying for a DSW role for a medical assessment. This requirement is set out in the Recruitment Policy and confirmed by Ms Baker. 4. The Tribunal also accepts that the decision to offer employment is entirely the respondent's. The respondent is not under any legal obligation to accept or reject the report from the external medical assessor. 5. The arrangements that were made by the respondent for the purposes of determining whether she should be offered employment proceeded through a number of steps. The medical examination was one of the last steps. It followed the interview and requirements for workplace clearances. There is no suggestion that the steps that applied to Ms Lonie were different to those that applied to other persons who applied for the DSW role. 6. S49D(1)(a) is concerned with pre-offer stage of the recruitment process. S49D(1) has three sequential elements, starting from the pre-employment stage to determining who should be offered employment to the stage determining the terms on which the employment is offered. In Holdaway v Qantas Airways Limited [1992] EOC 92-395, the New South Wales Equal Opportunity Tribunal considered that the purpose of the antecedent provision was on whether the arrangements made by the employer in determining who should be offered employment focused on 'the merit of the applicant' at 78,812. 7. In Y v Human Rights and Equal Opportunity Commission [2004] FCA 184 at [33] Finkelstein J stated that s49D(1)(a) applies where an employer discriminates before it has any knowledge of the applicant and the person with the disability will not even be considered for employment and at [34]: It is not apt to cover the situation where a particular individual is refused employment, or an interview for employment, because of that person's particular disability. In my view Y's challenge to the Commissioner's approach on this aspect could not succeed. 1. In this case, there was no arrangement in place which prevented a person with a disability from applying for a position with the employer. The applicant has not made out its case that she was discriminated within the meaning of s49(1)(a). Consideration on applicant's claim as to s49D(1)(b) – determining who should be offered employment. 1. The decision to not employ Ms Lonie was made at the end of the selection process by Ms Baker. Ms Baker's decision was made based on her consideration of the email from Ms Southern, the report from Konekt and the Job Task Dictionary which included the physical demands of the DSW role. Ms Baker made no specific reference to reliance on the Risk assessment document in her statement or during cross examination. 2. Ms Baker admits that she decided to not offer employment to Ms Lonie because she believed that she could not perform the inherent requirements of the DSW role, because of the disabilities. She considered whether any service or facilities could be provided to Ms Lonie but determined that to do so would impose an unjustifiable hardship on LiveBetter. 3. The Tribunal accepts Ms Baker's evidence and is satisfied that Ms Lonie was not offered employment with LiveBetter on the grounds of the disabilities. 4. The parties are in agreement that the correct approach in regard to this claim involves a 3 step process as set out in Coleman v Commissioner of Police [2001] NSWADT 34 at [40]; Zraika see also Green v Department of Family and Community Services [2013] NSWADT 193 at [119]. 5. This is so because s49D(4) provides a respondent a complete defence against s49(1)(b) if it can satisfy the Tribunal that the person would be unable to carry out the inherent requirements of the particular employment or that in order to carry out the inherent requirements of the particular employment, the person would require services or facilities which would impose an unjustifiable hardship on the employer. 6. The parties submit that the first question is to determine the inherent requirements of the DSW position. The second question is to consider whether the respondent has established that the applicant could not perform the inherent requirements of the DSW position. If the Tribunal finds that the applicant could not perform the inherent requirements of the DSW position, the third question is whether in providing the services or facilities required for the applicant to perform the inherent requirements of the position would impose an unjustifiable hardship on the respondent. 7. There is a question which is subsumed in this analysis which does require an expansion and that is that it may be the case that a person with the provision of services or facilities would still be unable to perform the inherent requirements of the role for various reasons including a legal or a medical reason. X v Commonwealth at [104] per Gummow and Hayne JJ. This is not an issue raised in these proceedings. 8. LiveBetter concedes that Ms Lonie was not employed because of the disabilities and relies on both limbs of s49D(4) that she was not able to perform the inherent requirements of the DSW position and that in providing the services or facilities required for her to perform the inherent requirements of the position would impose an unjustifiable hardship on LiveBetter. 9. Ms Lonie asserts that she could perform the inherent requirements of the position and submits that LiveBetter has not made out its defence in s49D(4). What were the inherent requirement of the particular employment? 1. The inquiry first commences with the identification of the terms and conditions offered and secondly the circumstances in which the applicant was required to perform the terms and conditions of service. There was no dispute that the 'particular employment' was the DSW role Ms Lonie applied for and that the terms and conditions were those within the Job Task Dictionary which includes the DSW job description summary, physical demands of the role and psychological demands of the role. Additionally to the Job Task Dictionary is a Position Description for a DSW. 2. To determine whether every single requirements in the Job Description and the Job Task Dictionary was an 'inherent requirement', the following matters are to be considered: 1. It is the inherent requirements of the particular employment and not some other type or different employment: X v Commonwealth at [102] per Gummow and Hayne JJ; 2. 'Inherent requirements' and 'particular employment' should not be interpreted narrowly: X v Commonwealth at [106] per Gummow and Hayne JJ; 3. It is always permissible to consider the employment context when determining 'inherent requirements': X v Commonwealth at [33] per McHugh J; 4. Whether a requirement is an inherent requirement should be determined based on objective facts and common sense and not mere speculation or impression: Qantas v Christie at [82] per McHugh J; 5. Inherent requirements are indispensable requirements, permanent attributes or essential elements as opposed to those that are peripheral: Qantas v Christie at [34] - [36] per Gaudron J, at [74] per McHugh J, at [104] Gummow J; at [163] per Kirby J; 6. Inherent requirements are not confined to the tasks and skills or to the terms of the contract: X v Commonwealth at [100] per Gummow and Hayne JJ; 7. A requirement may not be an inherent requirement even if is included in contract of employment: Qantas v Christie at [37] per Gaudron J, at [86] McHugh J; 8. Carrying out the employment without endangering the reasonable safety of other employees is an inherent requirement of any employment: X v Commonwealth at [32] per McHugh J; [109] per Gummow and Hayne JJ 9. Implied terms in a contract of employment such as fidelity, good faith and not endangering safety of others may be inherent requirements: X v Commonwealth [31]-[32] per McHugh J, Qantas v Christie at [107] per Gummow J; 10. Circumstances in which the employment will be carried on such as where, when, what circumstances and with whom the tasks and skills were to be used or performed can be inherent requirements: X v Commonwealth [105]-[106] per Gummow and Hayne JJ. 1. There is a distinction between inherent requirements and physical capabilities. While there may be cases where there is little distinction between the two, it is important to clearly identify those requirements or duties that must be performed as they are essential to the particular employment. 2. For example, Dr Diaz found that Ms Lonie should avoid: 1. Performing any heavy pulling or pushing duties using force greater than 10 kg; 2. Lifting any items weighting greater than 10 kg; 3. Performing any overhead or above shoulder height work with her right arm on a repetitive basis; 4. Performing tasks that involve bending and twisting of the lower back or kneeling and squatting with concurrent pulling, pushing and overhead work. 1. These physical capabilities are not inherent requirements but incapacity to perform these physical capabilities may mean that Ms Lonie is unable to perform the inherent requirements. 2. The Job Dictionary does not specifically refer to 'performing any heavy pulling or pushing duties using force greater than 10 kg', however there is a requirement for frequent push and pull at waist height of 10kg, occasional 15kg and rare 20kg. The Job Dictionary does not require a DSW to lift items weighing greater than 10kg. There is a physical demand to lift 5kg waist to shoulder height and lift floor to waist 5kg occasionally and 10kg rarely and lifting above shoulder height 5kg rarely. 3. As to 'performing any overhead or above shoulder height work with her right arm on a repetitive basis' the Job Dictionary states that reaching with arms above shoulder height is rare. There is no specific requirement to kneel and squat with concurrent pulling, pushing and overhead work. The Job Dictionary states that it is a physical requirement to frequently squat and lunge and to frequently push and pull at waist level, not overhead level. Lifting above shoulder height is rare. 4. The Job Dictionary has columns for whether the physical demands are 'constant' or 'repetitive'. These columns are empty. On one interpretation this may mean that none of the physical demands are constant or repetitive. On a different interpretation it may mean that the demands may be constant or repetitive but have not been recorded in this document. There may well be a different reason why there is no markings in these columns. As there was no specific submissions made in regard to this question of interpretation, we make no factual findings in regard to this question based on the Job Dictionary. We note LiveBetter's submission that whether there is a constant or repetitive demand will be client dependent and whether a physical demand is constant or repetitive are separate considerations. 5. Next, looking at the Job Description, the Core Responsibilities are broad, for example as set out previously: Provide support to customers who require assistance with tasks of daily living, personal care, domestic assistance and medication administration. 6. Based on the Position Description and the Job Task Dictionary we are satisfied that the following requirements were inherent to the DSW role that LiveBetter asserted that Ms Lonie could not perform. These are broadly the tasks set out in Ms Baker's statement: 1. The ability to transport clients which involved supporting clients physically and manoeuvring a wheelchair; 2. The ability to assist clients with personal care such as showering and toileting; and 3. The ability to deal with clients who may demonstrate challenging behaviour. 1. In performing these inherent requirements, Ms Lonie would be required to safety perform the physical demands set out in the Job Dictionary which are relevantly; carrying up to 20 meters 10kg occasionally and 15 kg rarely. Isometric hold up to 30kg rarely, lifting above shoulder height 5kg rarely. Lifting waist to shoulder height 5kg occasionally, lifting floor to waist 5kg occasionally and 10 kg rarely, pulling and pushing at waist height 20kg rarely, 15 kg occasionally and 10kg frequently. Rarely twisting, frequently bending, squatting and lunging and rarely reaching with arms above shoulder height. Was the applicant able to carry out the inherent requirements of the DSW Role? 1. Section 104 of the Act places the onus on proving the exception on the respondent, as such the respondent must satisfy the Tribunal that the applicant was not able to carry out the inherent requirements of the DSW role to come within the exception in s49D(4). 2. Whether or not the applicant was able to carry out the inherent requirements is a factual question. The question is not whether it would be difficult for Ms Lonie to carry out the inherent requirements, the question is whether Ms Lonie would be able to carry out the inherent requirements. Christie v Qantas at [36] per Gaudron J. 3. If, as LiveBetter contended, Ms Lonie is unable to perform the inherent requirements of the role, there must be an identification of the 'necessary causal connection' between her disability and the alleged inability to carry out the requirements. This requires 'the closest attention to the reasons' given by LiveBetter. X v Commonwealth at [109] per Gummow and Hayne JJ. 4. LiveBetter's case was that Ms Lonie could not carry out the inherent requirements safely, that is that she posed a risk to the safety to herself, to other employees and to clients. 5. In determining whether Ms Lonie was able to carry out the inherent requirements of the DSW role, regard can be had to the health and safety of co-employees and others. X v Commonwealth Gummow and Hayne JJ at [109] The extent of that risk to the health and safety is something which requires appropriate assessment. It is up to LiveBetter to demonstrate that there is a level of real risk of harm to the health and safety of Ms Lonie and other persons. An assessment of the risk should be undertaken in a practical manner and it is insufficient to assert a hypothetical or possible risk, a genuine and real assessment is required. 6. In determining whether a person poses a risk to the health and safety to themselves or to other employees or clients, regard would ordinarily be had to the degree of the risk and the consequence of it being realised. X v Commonwealth McHugh J at [41] referring to School Board of Nassau County v Arline, a United States Supreme Court decision: "There is a substantial difference between serious risk of harm (a broken arm) and a risk of serious harm (death)." 7. The degree of the risk refers to the likelihood of the risk occurring and the consequence of the risk refers to the result if the risk occurs. Any risk to the health and safety to the individual and others must be objectively assessed. The risk must be 'specifically referable' X v Commonwealth at [42] per McHugh J to those persons or things that are alleged to be at risk. 8. Inherently every person poses a risk to themselves and others at work. The person alleging that there is a 'real risk' cannot do so '…unless the degree of the risk arising from the disability is increased, or the consequences of the risk being realised are made more serious, by reference to some essential feature or defining characteristic of the particular employment': X v Commonwealth at [42]. 9. In X v Commonwealth, McHugh J at [43] set out a two step assessment: In determining whether the disability prevents the employee from carrying out the inherent requirements of the employment, the following issues will ordinarily have to be addressed: 1. By reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer? In determining whether there is relevantly a real risk, the Commission will have to consider: (a) the degree of the risk; (b) the consequences of the risk being realised; (c) the employer's legal obligations to co-employees and others, whether arising from a common law duty of care, occupational health and safety statutes, or other aspects of the employment regulatory regime; (d) the function which the employee performs as part of the employer's undertaking; (e) the organisation of the employer's undertaking. 2. If the answer to question 1 is no, then the disability does not prevent the employee carrying out any inherent requirement of the particular employment. If the answer to question 1 is yes, however, it will be necessary to determine under s 15(4)(b) whether the employee could carry out the work safely with the assistance of "services or facilities" which the employer could provide without unjustifiable hardship. 1. Whether Ms Lonie was able to perform the inherent requirements is disputed. Mr Hemsley assessed Ms Lonie thoroughly by carrying out a functional assessment and found that she could perform the inherent requirements safely without the need for assistance. 2. Ms Lonie's evidence is that she was able to safely perform the inherent requirements of a similar role as a DSW at Infinity and this is confirmed by the manager, Mr Richie. Ms Lonie was employed as a DSW at the time of the hearing. Ms Lonie's evidence was that the work she performed as a labourer for her family business was physically strenuous. Ms Hogg's evidence was that the work carried out by Ms Lonie as a Hospital Assistant at Mercy Hospital involved strenuous physical activity. 3. Ms Lonie's evidence in regard to the work she performed at Infinity was detailed and specific. At paragraph 25(a) of her statement dated 18 March 2022 she stated that while she worked as a DSW at Infinity she regularly had to manoeuvre a wheelchair in and out of a vehicle. She stated that 'there is someone there to help me if I need it'. At paragraph 25(b) she stated that she prioritises safety and adheres to manual handling requirements when required to lift and has experienced less heavy lifting compared to her work in the family business, in paragraph 25(c) she explained how immobile patients are lifted using an electric lifter and explains the process of client transfers. At paragraph 25(d) Ms Lonie stated that in the 6 months working at Infinity she has not had to do work involving prolonged squatting or crouching. Personal care such as drying a client's feet does not take more than 10 minutes a day and the work does not involve pushing or pulling as there is a need to avoid skin tears. At paragraph 26, Ms Lonie stated that the most physical past of the role is dressing clients. There are electronic beds that are height adjustable so there is no overhead lifting. 4. Ms Baker in the statement at paragraphs 36 to 38 responded to Ms Lonie's evidence. Ms Baker did not agree that the DSW role at Infinity was the same as the DSW role at LiveBetter and the most physical role is not dressing clients. 5. Ms Baker repeated that there is a need to be able to complete all physical demands of the position, that the DSW position is dependent on the needs of the customer. That customers are vulnerable and the DSW role must be performed safely. 6. Ms Baker did not engage with Ms Lonie's evidence, however these are the facts that the Tribunal must determine in assessing whether the respondent has made out its defence in s49D(4). For example, Ms Lonie describes her role at Infinity in some detail. Ms Baker states that this is not the same role as in LiveBetter but does not explain in any way how these duties are different. Ms Baker does not explain why a person may not be able to assist Ms Lonie with manoeuvring a wheelchair in and out of a vehicle if needed. 7. Ms Lonie stated that there is no pulling or pushing involved in personal care. Ms Baker does not respond. 8. Ms Lonie stated that at Infinity there are lifters and electric beds to assist with mobility. Ms Baker gives no evidence in regard to equipment available to DSWs at LiveBetter. 9. Ms Baker denied that the most physical part of the role is dressing a customer but gives very little evidence as to what she believed to be the most physically challenging work of the DSW's role is. 10. Between 16 and 18 March 2021, Ms Baker determined that Ms Lonie could not perform the inherent requirements safely by considering Ms Southern's email, Mr Hemsley's report and the Job Dictionary. 11. Ms Baker in her statement at paragraph 24 stated that she formed the view that she, together with Mr Brand were 'unsatisfied' with the physical incapacity issues identified by Ms Southern and Mr Hemsley and that Ms Lonie posed a 'significant risk to herself, fellow employees and the clients of LiveBetter.' There is no explanation as to how or in what circumstances Ms Lonie would pose a risk to fellow employees and the clients of LiveBetter. 12. Ms Baker seems to have formed the view that Ms Lonie in performing duties involving 'repeated manual handling of clients, regular use of loading wheelchairs, prolonged walking, crouching, bending and twisting' would exacerbate injuries to her lower back, neck, right shoulder and hernia in right groin. 13. LiveBetter in its submissions asserted that the Tribunal would be 'ignoring' its obligations under s19 of the WHS Act if it was to find that Ms Lonie was able to perform the inherent requirements of the DSW role. LiveBetter submitted that s49D should be read 'contextually' with s19 of the WHS Act. 14. There are legal obligations on LiveBetter, Ms Lonie, the co-employees and others arising from a common law duty of care and occupational health and safety statutes and other aspects of the employment regulatory regime to perform work safely. 15. Sections 18 and 19 of the WHS Act are provisions that place a responsibility on the person conducting the business to ensure the health and safety of workers. There duties must be met so far as is 'reasonably practicable'. 16. The nature and degree of harm that a risk may cause, how the harm can eventuate and the likelihood of that harm occurring have to be investigated or analysed through a process of risk assessment. 17. Part of the responsibility on LiveBetter is to put in place health and safety controls for all persons in regard to risks associated with hazardous manual handling. Without any evidence in regard to the controls put in place by LiveBetter, the Tribunal is not able to assess whether LiveBetter's obligations under s19 of the WHS Act would be impacted. 18. Considering the manoeuvring the wheelchair in and out of a vehicle as an example, this is a task which would possibly pose a risk of injury to any person as it involves lifting, reaching, pushing, pulling, bending and exerting high force in awkward postures. 19. Self-evidently, the common source of the risk would include the size, weight and style of the wheelchair and the type of vehicle, whether it's a car, a van, a bus or a taxi. 20. In ensuring the health and safety of its staff, LiveBetter would have considered these issues and risks prior to the provision of the service. It may well be that LiveBetter has developed operational procedures that identify the safest sequence of actions, developed checklists and provided training on safe lifting of wheelchairs. However there was no evidence before the Tribunal as to how a DSW may safely manoeuvre a wheelchair into and out of a vehicle. There is no evidence in regard to the context in which a wheelchair is to be manoeuvred into a vehicle. 21. If there is a concern about Ms Lonie being unable to manoeuvre a wheelchair safely, there is a need to assess, where, how and in what circumstances she would be required to do so. How often would that task be required to be undertaken, what is the practice in the workplace as to assistance required. 22. Considering the risk that Ms Lonie was not able to safely assist clients with personal care such as showering and toileting would likewise require an assessment of the risks as the task involves bending, twisting, lifting and awkward postures. LiveBetter led no evidence as to how clients are transferred for toileting and showering or what equipment if any are available for clients that have little mobility. 23. As to the concern about dealing with clients who may demonstrate challenging behaviour, no explanation was provided as to emergency procedures. 24. There is simply insufficient evidence before the Tribunal to consider how LiveBetter would or not be able to comply with s19 of the WHS Act if Ms Lonie was employed. 25. Section 54 of the Act provides a respondent a complete defence if an act was done if it was necessary for the person to do it to comply with s19 of the WHS Act. There is no suggestion that LiveBetter determined to not employ the applicant because it was necessary pursuant to s19 of the WHS Act. LiveBetter did not raise s54 as a defence to its conduct. 26. Dr Diaz's opinion is that in assisting clients with self-care tasks, toileting, showering and dressing tasks as well domestic duties and cleaning there is a medium to high risk of aggravation of the right shoulder condition and right inguinal hernia region. However neither the Job Dictionary or the Position Description require a DSW to perform tasks involving 'repetitive heavy pulling and pushing tasks and prolonged overhead/above shoulder height task' or 'repetitive heavy lifting, repetitive heavy pushing and pulling, prolonged kneeling, squatting and crouching and repetitive bending and twisting of the lower back/torso' pg. 12 of Dr Diaz's report, Annexure 2 to his statement. 27. The Job Task Dictionary does require a DSW to carry, lift, push and pull weight but we do not understand 10kg or even 15kg to be heavy. It is rare that a DSW would have to push or pull 20 kg. There is no indication that the requirement to lift heavy weight was required to be performed on a repetitive or prolonged basis and we would be speculating to make such as assumption. 28. The same can be said about overhead/above shoulder work height work. Reaching with arms above shoulder, bending and twisting is 'rare'. We accept that clients with higher physical needs may involve a DSW having to squat and bend more often than other DSWs and that this may occur on a prolonged or repetitive basis. 29. Dr Diaz did not express any concern for risk to any person or thing apart from a risk of aggravation and exacerbation to Ms Lonie's right shoulder and right hernia region or any concern about back or neck pain, prolonged walking or manoeuvring a wheelchair. 30. Dr Diaz's opinions did not explicitly address the facts provided by Ms Lonie and the opinion by Konekt. Ms Lonie informed Dr Diaz that at the time of assessment she was employed as a DSW and it was part of her duties to manoeuvre a wheelchair into her car. She also told him that she had not experienced any pain or injury in carrying out this duty. Dr Diaz made no findings as to this task. Nor did Dr Diaz engage with Ms Lonie in regard to the inherent requirements of the DSW role based on the information she provided to him about the work she was performing on a daily basis such as personal care and domestic duties. Dr Diaz did not provided any criticism or analysis of the medical examination and functional assessment carried out by Mr Hemsley or explain why he disagreed with his findings. 31. Unlike Dr Diaz who consulted with and only physically examined Ms Lonie (via zoom), Mr Hemsley had the benefit of conducting a functional assessment of Ms Lonie's actual capabilities. During the assessment with Mr Hemsley, Ms Lonie's cervical/neck, thoracic-lumbar spine, lower and upper limbs were measured for their range of motion. None of the results were abnormal. Specific tests were carried out to measure the strength, flexibility, core strength, stability, neurological testing, balance and upper limb testing. Ms Lonie demonstrated maximum strength in her wrists. Ms Lonie demonstrated the best outcome for core strength and stability. Importantly, the manual handling requirements were satisfied. Ms Lonie demonstrated that she was able to lift the maximum weights: waist to floor – 15kg, waist to shoulder - 15 kg, waist to overhead -7kg, bilateral carrying – 20 kg. Push/pull -70kg. 32. We also consider it relevant to take into account the evidence before the Tribunal from Ms Lonie and Mr Richie that Ms Lonie performed a DSW role with Infinity. No doubt there are differences in the role but the organisations both provide similar services in comparable circumstances to clients who have a range of physical and psychological illness. We also accept Ms Lonie's evidence in regard to the work she performed in the family business and Ms Hogg's evidence in regard to the work performed by Ms Lonie. 33. We are not satisfied that Ms Lonie was unable to safely carry out the inherent requirements of the DSW role. We prefer the evidence of Mr Hemsley and Ms Lonie, over that of Ms Baker as the former is based on objective facts based on actually carrying out the duties and the results of a functional assessment test. Mr Hemsley observed Ms Lonie perform the physical demands of the DSW role. Ms Baker's evidence, in contrast is speculative and impressionistic. She concludes that Ms Lonie would not be able to satisfy the inherent requirements of the role simply because of Ms Lonie's disabilities without regard to the specific inherent requirements of the DSW position. 34. The consequence of the risk being realised was not stated by Ms Baker but is much wider that the risk assessed by Dr Diaz as it involves risk to LiveBetter's clients and staff. The Tribunal cannot speculate as to the degree and consequence of any risk being realised without relevant evidence and material before it. On its own, Ms Baker's opinion and conclusion carries little weight. 35. Dr Diaz came to a different view to Ms Baker in regard to capacity to carry out the inherent requirements safely, however his findings do not engage with Ms Lonie's instructions or Mr Hemsley's findings. 36. Having reached the view that the inherent requirements of the role involve the tasks set out in paragraph 154 above, there is no evidence before the Tribunal that these requirements would mean that Ms Lonie would need to meet the following physical demands: 'repetitive heavy pulling and pushing tasks and prolonged overhead/above shoulder height task' or 'repetitive heavy lifting, repetitive heavy pushing and pulling, prolonged kneeling, squatting and crouching and repetitive bending and twisting of the lower back/torso''. 37. Whether or not Ms Lonie was able to perform the inherent requirements of the DSW role is a question of fact. Based on the evidence before the Tribunal, we are not satisfied that Ms Lonie was not able to perform the inherent requirements of the DSW. 38. In case we are wrong in our conclusion, we go on to consider whether Ms Lonie would have been able to carry out the inherent requirements of the DSW role with the provision of services or facilities. Would the provision of services or facilities to the applicant impose an unjustifiable hardship on the employer? 1. Where a person cannot perform the inherent requirements of the particular employment, the Act places a positive obligation on an employer to firstly identify whether a person with a disability could perform the job in question with the aid of services or facilities and secondly to then provide the person with those services or facilities if it would not impose an unjustifiable hardship on the employer to do so. 2. Section 49D(4)(b) raises two inquiries. First whether a person with a disability would be able to perform the inherent requirements of the role with services and facilities and secondly whether the provision of services and facilities would impose an unjustifiable hardship on the employer. 3. LiveBetter did not submit that had services or facilities been provided to Ms Lonie she would have still been unable to perform the inherent requirements of the role. LiveBetter submitted that had services or facilities been provided to Ms Lonie, it would have imposed an unjustifiable hardship on it. 4. In determining what constitutes unjustifiable hardship all relevant circumstances of the particular case are to be taken into account including the nature of benefit or detriment, the effect of the disability of a person concerned and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8; 286 ALR 149 at [245]-[246] per Robertson J (upheld on appeal) 5. S49C in relation to the employment of a person with a disability seeks to examine the costs of any necessary changes to the workplace or work practices and ask whether these would be significant costs or inconveniences for the employer other staff or clients balanced against particular benefits that may flow to the employer, because the employer has a commitment to employing persons with a disability or because of the person's capacities and whether the changes would provide social benefits of employment to persons with a disability generally. 6. The burden of establishing hardship rests on the party who seeks to rely on the exception. Ms Baker's evidence was that during the meeting with Mr Brand, the Senior Recruitment Advisor on 16 March 2021, she determined that the only services or facilities that could be provided to the applicant for her to carry out the role was a creation of new 'highly modified and unfunded supernumerary role' that excluded many of the essential functions of the DSW role on an ongoing basis such as absent the capacity to manoeuvre wheelchairs, assist to secure customers for transport and provide urgent physical assistance if required. 7. Ms Baker's evidence was that she did not consult with any person in coming to her decision. She did not consider any matter other than the email from Ms Southern, Konekt's report and the Job Dictionary. Ms Baker's response as to why she did not involve Mr Hemsley in the assessment was that she had plenty of information before her and she did not need to. 8. The Assessment document in evidence but not attached to Ms Baker's statement and not referred to is of little assistance. There is no explanation how the assessment could have been performed before Ms Baker received the email from Ms Southern and more importantly what the Assessment demonstrated. 9. We have some doubts that Ms Baker practically put her mind to the question of whether LiveBetter could have taken steps to avoid the discriminatory conduct by considering each of the inherent requirements of the DSW role and assessing how in a practical way, Ms Lonie could be provided with assistance as she failed to explain how in practice she considered how a service and facilities could be provided to Ms Lonie so that she could perform each of the inherent requirements she was concerned about in her evidence. 10. Assistance with heavy lifting, such as a wheelchair may well be a service that a person with a disability may require to be able to carry out the inherent requirements of the role. 11. Ms Baker's evidence in regard to unjustifiable hardship was stated as a conclusion without reference to any objective evidence. Ms Baker's evidence as set out in paragraph 209 above was to the effect that operationally LiveBetter could not allow for the DSW role to be performed in any different manner within the existing budget and funding model. Ms Baker's evidence was that there were no circumstances in which operations could be conducted differently in regard to Ms Lonie. 12. LiveBetter is a large organisation. The Job Description states that it is the largest regionally based provider of community services in Australia. It employs about 1500 staff and has an annual revenue of over $90 million with strong growth forecast. 13. LiveBetter provided no evidence as to an estimated cost or disruption or impact on operations if Ms Lonie was provided with services or facilities. There is no basis on which the Tribunal could make any factual finding as to an estimated profit impact for any period of time or whether there would be an adverse profit impact or that it would have been substantial. There was no evidence as to how much of the total revenue as a percentage the provision of services or facilities would cost. 14. The Tribunal is asked to accept that government funding for people living with disabilities (NDIS) is structured in such a manner that it would cause an organisation to rely on it as a reason for acting in a discriminatory manner against a person with disabilities. 15. That may well be the case but all the Tribunal has before it is an assertion absent any evidence. Even if the Tribunal accepts that the funding is provided for individual clients, it does not mean that LiveBetter has no control over job design. Secondly, there was no evidence as to any equipment LiveBetter utilises to assist DSW to work with clients who have less mobility. 16. The Tribunal is not satisfied that the financial circumstances and any expenditure required to be made by LiveBetter in providing Ms Lonie with services or facilities would cause it unjustifiable hardship within the meaning of s49C(c). 17. As to s49C(a) and (b), had the discrimination not taken place, Ms Lonie would have been employed by LiveBetter and would not have had to suffer discrimination and would not have had to find alternative work. The other benefit would have been to the customers of LiveBetter would have had access to a competent DSW based on Mr Richie's evidence which we accept. 18. The terms of the email from Ms Southern to Ms Baker on 16 March 2021 and Ms Baker's letter to Ms Lonie on 18 March 2021 both express a concern of a risk to LiveBetter as a result of Ms Lonie exacerbating the injuries at a later date. LiveBetter did not submit that this may well be a detriment likely to accrue to LiveBetter in the future. In any event, the medical evidence in regard to future risk is divided and the Tribunal would be speculating to find that 'detriment would be likely to accrue' on this basis. 19. Taking into account all relevant circumstances including the matters set out in s49C, we are not satisfied that providing services or facilities to Ms Lonie so that she could carry out the inherent requirements of the DSW role would impose unjustifiable hardship on LiveBetter. 20. We find that the defence of unjustifiable hardship has not been made out with the result that s49D(1)(b) of the Act did render it lawful for LiveBetter to not offer employment to Ms Lonie because of the disabilities. Remedies 1. Section 108(2) of the Act sets out the Tribunal's powers where a complaint has been substantiated in whole or in part. Section 108(2)(a) states that the Tribunal may order the respondent to pay the complainant damages not exceeding $100 000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 2. The words 'by reason of the respondent's conduct' means that the damage suffered must have 'materially contributed' to Ms Lonie's loss. Commissioner of Police, NSW Police v Mooney (No 3) [2004] NSWADTAP 22 at [35]. At [38] the Appeal Panel stated: 38 As with every other fact in issue in a case before it, the Tribunal must be satisfied on the balance of probabilities that a successful applicant in a discrimination case has sustained the economic loss he or she claims. Another way of making the same point is to say that any loss claimed by a successful applicant in a discrimination complaint must be proved with a reasonable degree of certainty (see Bonella v Wollongong City Council [2001] NSWADT 194 at [119]). That statement reflects the position at common law where a plaintiff in an action in tort or contract must prove his or her damages with reasonable certainty (see M Tilbury, Civil Remedies, Volume One: Principles of Civil Remedies (1990) at 150-151). It is self-evident that, in most cases, the Tribunal may reasonably expect an applicant to present evidence which more readily satisfies it on the balance of probabilities, or which conveys a higher degree of certainty, when his or her claim is for compensation for past loss rather than for damages for some projected future loss. 1. The onus is on Ms Lonie to satisfy the Tribunal that she has suffered economic or non-economic loss. Ms Lonie led evidence of remuneration she has earned from other sources, however this is not evidence of loss caused by the discriminatory conduct by LiveBetter. There is no evidence before the Tribunal as to how much Ms Lonie would have been paid per hour had she been employed by LiveBetter. 2. The Tribunal has found that Ms Lonie was not employed by LiveBetter because it discriminated against her on the basis of a disability. There were no concerns raised by the interview panel as to her suitability. Based on the evidence before the Tribunal, the only reason Ms Baker decided to not employ Ms Lonie was on the basis of the disabilities. The Tribunal finds that had LiveBetter not discriminated against Ms Lonie, she would have been offered employed as a DSW on a casual basis. 3. The Tribunal observes that there is in place a modern Award that covers the disability support/social work industry made under the Fair Work Act 2006 (Cth) that could provide minimum terms and conditions to an employee employed as a DSW. However it may well be that LiveBetter's contract of employment provides a salary and or superannuation that was over and above that is in the Award or there is no applicable Award. 4. The Tribunal infers that if LiveBetter employed an employee on a casual basis they would have provided some work to them so that they could assess their performance on a probationary period for at least 3 months. The Tribunal infers that at least 1 full shift per week would have been provided to Ms Lonie for a 3 month period. 5. As neither party led any relevant evidence in regard to an Award or LiveBetter's contract of employment, the parties will be provided with an opportunity to provide evidence and submissions in regard to the appropriate hourly rate of pay, superannuation and any other issue associated with employment that Ms Lonie would have been entitled to if she was employed as a casual employee at the relevant time. 6. As to non-economic loss, Ms Lonie claims that she was distressed by being denied employment as a DSW at LiveBetter and this made her lose confidence in her abilities. The Tribunal accepts Ms Lonie's evidence that there was an initial distress. There is no evidence of any medical condition going beyond the inchoate distress and disappointment that one may expect from a life set back. We accept Dr Adegbaju's evidence that Ms Lonie reported to her on 25 March 2022 that she had lost confidence in herself, displayed low self-esteem, low mood and lack of motivation. Ms Lonie was able to secure a DSW role at Infinity later in 2021 and now has another role in the disability support sector. 7. The task of assessing damages for non-economic loss is one based on assessing the nature and extent of the person's injuries. Injuries to feelings may be difficult to assess and it calls for an assessment of common sense and community standards. Hall v Sheiban (1985) ALR 503 at 543; Dell v Dalton (1991) 23 NSWLR 528 at 533; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334 [81], [95]-[118]. We would assess general damages at $10 000. 8. The Tribunal makes the following orders: 1. The complaint is substantiated. 2. The respondent is to pay the applicant $10 000 for general damages within 28 days of the date of this order. 3. The parties are to file and serve any evidence and submissions as to the appropriate rate of pay and level of superannuation the applicant would have been paid had she been employed by the respondent within 28 days of the date of this order. 4. The parties are to indicate in their submissions whether they seek to be heard or whether they consider that the Tribunal may determine the matter without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2023