CITATION: Oreb -v- Discovery Clothing Company Pty Ltd [2001] NSWADT 48 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Nila Oreb RESPONDENT Discovery Clothing Company Pty Ltd FILE NUMBER: 001043 HEARING DATES: 29/11/2000 30/11/2000 SUBMISSIONS CLOSED: 12/05/2000 DATE OF DECISION: 03/26/2001 BEFORE: Rice S - Judicial Member; Antonios Z - Member; Jowett T - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Tate v Rafin and Wollongong District Cricket Club Inc [2000] FCA 1582. APPLICANT REPRESENTATION: S Winter, barrister RESPONDENT K Eastman, barrister ORDERS: 1. Pursuant to s113(a) of the Anti-Discrimination Act the complaint is dismissed.; 2. Pursuant to s114(1) of the Anti-Discrimination Act, and having regard to s114(2), each party shall pay their own costs. Decision 1 For the reasons we give below, the complaint is dismissed. Complaint 2 Ms Nila Oreb complained to the Anti-Discrimination Board that she was discriminated against in employment, on the ground of her disability, by being dismissed. Ms Oreb brought to the Board's attention a letter dated 4 December 1996 she received from her employer, the relevant part of which says: In view of the operating requirements of the business, and your ongoing condition, we are no longer able to leave your position vacant. Accordingly we have no alternative but to terminate your employment with the Company. 3 The President of the Board was unsuccessful in attempting to resolve the complaint by conciliation, and referred it to this Tribunal for inquiry. 4 The complaint alleges conduct which, if established, would be a contravention of s49D(2)(c) of the NSW Anti-Discrimination Act ( AD Act ): (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: . . . (c) by dismissing the employee 5 Under s49B(1)(a) a person discriminates directly against another person "on the ground of disability if, on the ground of the aggrieved person's disability . . . the perpetrator: (a) 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" 6 Under s49B(1)(b) a person discriminates indirectly against another person "on the ground of disability if, on the ground of the aggrieved person's disability . . . the perpetrator: (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 . . . 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." Inquiry 7 At the inquiry Ms Oreb and the respondent employer, Discovery Clothing Company Pty Limited ('Discovery'), were represented by counsel. The founder and Chief Executive Officer of Discovery is Mr Danny Avidan. 8 Discovery does not dispute that Ms Oreb's employment was terminated on 4 December 1996. At issue is the reason for the decision to terminate her employment. 9 The Tribunal heard evidence from Ms Oreb, and documents were tendered on her behalf. For Discovery, statements of two officers of the company were tendered, as were reports of two experts who examined Ms Oreb. Ms Oreb did not require any of the witnesses for Discovery for cross-examination. Disability 10 Discovery has raised as a threshold issue whether, at the relevant time, Ms Oreb had a disability as defined by section 4 of the AD Act . 11 Under s4, disability means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 12 It is not necessary for us to decide whether Ms Oreb's symptoms were those of a disability as defined because, even if they were, we are of the opinion that Ms Oreb was not treated less favourably on the ground of that disability. 13 Were it necessary for us to decide whether Ms Oreb's symptoms were those of a disability as defined, we would be reluctant to do so on the available evidence, which we outline in the following paragraphs. 14 Ms Oreb gave evidence of her physical health in the period 5 June 1996, when she commenced leave from her employment due to her illness, to 4 December 1996 when her employment was terminated. 15 Ms Oreb's evidence is that after acute symptoms on 5 June which caused her to not attend work, and to seek medical assistance, over the following months she suffered "panic attacks". The panic attacks were characterised by physical symptoms of "tightness in her chest", "lack of breath", "sweating", "feeling unwell", and "stomach tightening". They were characterised by mental symptoms of "lack of concentration", "inability to remember things", "constant anxiety", "not coping", and "wanting to shut herself away from the world". 16 Further, Ms Oreb relied on medical reports and certificates. A series of medical certificates from her treating medical practitioner, Dr Z. Oreb, covering the period June to November 1996, record a diagnosis of "Mental Stress / Anxiety / Depression". 17 On 3 September 1996 Dr Z Oreb said in a medical report, apparently to an insurer, that Ms Oreb's "symptoms and signs are consistent with severe mental stress, anxiety and depression". 18 On 15 August 1996 a consultant psychiatrist H. Phillip Greenberg said in a report to Dr Z Oreb that Ms Oreb "has developed a depression state with marked anxiety". On 1 October 1996 Mr Greenberg wrote a letter to Ms Oreb's income protection insurer Mercantile Mutual Insurance. He said I would answer your questions as follows: 1. Depressive State with anxiety symptoms. 19 The Tribunal has not been provided with a copy of the letter to which Mr Greenberg was responding, but we infer from the whole of the letter, particularly in the context set by his letter of 15 August 1996, that Mr Greenberg was stating his view as to Ms Oreb's then current condition. Later in the letter, at the paragraph numbered 5, Mr Greenberg says "Ms Oreb remains in a markedly depressed and anxious state". 20 Further in that letter Mr Greenberg refers to Ms Oreb's "depressive and anxiety symptoms". He says: Ms Oreb has been in terms of your definition, Totally Disabled from the 5 June 1996 and will remain so until at least the 5th December 1996. 21 The Tribunal is unaware of the terms of the definition of Totally Disabled which are, we presume, those of Mercantile Mutual Insurance. 22 In contesting Ms Oreb's claim that she suffered a disability as defined, Discovery relied on a report from Mr Anthony Cole, a clinical psychologist, and from Dr Allan White, a consultant psychiatrist. 23 Reporting to Discovery's workers compensation insurer in October 1996, Mr Cole said: Ms Oreb's self-reported problems at the recent work place reflect situational related anxiety. From her description of symptoms in June this year she was experiencing an anxiety state. Ms Oreb impressed as a stress prone person and currently she is reporting moderate anxiety and severe depressive symptoms. There was no evidence of post-trauma reactions or panic attacks. 24 Reporting to Ms Oreb's income protection insurer in December 1998, Dr White said: Ms Oreb developed symptoms typical of Panic Disorder in 1996. (p12) It is likely that she suffers from mild Panic Disorder with Agoraphobia in remission. (p19) Panic Disorder is a constitutional or intrinsic biological psychiatric disorder (ie a genetically related brain disorder) which affects vulnerable individuals. (It has) extremely unpleasant panic symptoms: panic, palpitations, nausea, shortness of breath, sweating, feeling that you are going to die etc. (p15) Ms Oreb has been mentally ill and suffering significant psychiatric distress since 1996. (However as) Ms Oreb does not describe having undertaken the . . . protocol for Treatment Resistant Mental Illness . . . it is my view that Ms Oreb does not fulfil the criteria for an incapacitating mental illness. (p15) 25 In his report Dr White criticised Ms Oreb's treatment regime for both the Panic Disorder and the mental illness/psychiatric distress. In his view both could have been treated effectively at an earlier stage. Nevertheless, to the extent that he was able in December 1998 to give an opinion at Ms Oreb's health during the second half of 1996, Dr White's view was as quoted above: "symptoms typical of Panic Disorder" and "mentally ill and suffering significant psychiatric distress". 26 Dr White offers some expert opinion as to the effect on a person of Panic Disorder and psychiatric distress. Without evidence of this kind a Tribunal would not be able to decide whether the symptoms complained of amount to a disability as defined for purposes of the AD Act . Whether and how a disorder etc "affects" a person's thought processes etc is, for example, a crucial question in deciding whether there is a disability as defined in part (e) of the definition. 27 By inference from the material available to us, and having regard to decisions in other tribunals on this issue to which we were referred in submissions, we would incline to the view that Ms Oreb's symptoms were, at least in terms of part (e) of the definition, those of a disorder or illness which affected her thought processes, perception of reality, emotions or judgment. A finding to that effect would, however, require evidence of expert medical opinion directed to that issue. 28 In light of the view we take as to less favourable treatment we do not need to pursue the question further. 29 We assume that Ms Oreb's symptoms at the relevant time were those of a 'disability'. The 'ground' of the dismissal 30 For conduct to be discriminatory within the meaning of the AD Act (s49B) it must be "on the ground" of the person's disability. 31 Ms Oreb says that she was dismissed on the ground of her disability. She points to the terms of the letter of dismissal, quoted in paragraph 2 of this decision, and says that reference there to her "ongoing condition" is reference to her disability. 32 It was submitted for Discovery that contrary to the submission for Ms Oreb, reference in the letter to a "condition" should not be taken to equate with reference a disability. It was submitted that Mr Avidan had no knowledge of the disability Ms Oreb claimed to have had, and could not have acted "on the ground" of her disability of which he was unaware. 33 Discovery relies on the evidence of Mr Avidan, available to us by way of his written statement which is in evidence. 34 To a considerable extent the decision we must make in this matter depends on Mr Avidan's evidence of his belief and state of mind. In relation to this evidence we say at the outset that Mr Avidan was not cross-examined on his statement and, having regard to the considerations in s73 of the ADT Act, we are satisfied that Ms Oreb, through her counsel, had the opportunity to cross-examine Mr Avidan had she wished to do so. Ms Oreb, through her counsel, did not suggest in submissions that we should not believe Mr Avidan's statement, or that we should not accept as true the matters he states. We have been given no reason not to accept as true and to rely on Mr Avidan's statement. On one occasion, described below, we have preferred an earlier statement by Mr Avidan to his statement in his evidence. 35 It was submitted for Discovery that Mr Avidan "did not know before 5 June 1996 and was not informed at any time between 5 June and 4 December 1996 of the applicant's disability". It is said therefore that "he cannot have treated the applicant on the grounds of a disability". In oral submissions it was said that Mr Avidan knew only that Ms Oreb was "sick" and "unwell", and "the nature of a disability" was not known to Discovery or Mr Avidan. 36 The submission is not supported by the facts as we find them. Mr Avidan says in paragraph 14 of his statement that he was advised in "early June 1996" that Ms Oreb "had gone on stress leave". He says in paragraph 19 of his statement that while Ms Oreb was on sick leave he "saw the workers compensation certificates she provided". We infer from this that Mr Avidan knew that Ms Oreb's absence was due to stress, as he had been advised in June, and more particularly to "Mental Stress / Anxiety / Depression" as reported in the medical certificates. 37 If, as we assume, these are symptoms of a disability, then Mr Avidan was aware of Ms Oreb's disability on and before 4 December 1996, and his reference to her "ongoing condition" is a reference not merely to her being "unwell", but to her suffering the symptoms we have assumed amount to a disability. 38 It is not necessary therefore for us to decide as a matter of law whether an alleged discriminator must be aware, as submitted for Discovery, of the specific type of disability suffered, or whether it is sufficient that an alleged discriminator is aware only of the fact that a person is disabled due to some unspecified cause. On this point we would not have found helpful the Federal Court decision relied on in submissions for Discovery, Tate v Rafin and Wollongong District Cricket Club Inc [2000] FCA 1582. In that case the evidence was clear that the alleged discriminator was unaware of the fact, or even of any indication, that the person had a disability, and it is unsurprising that the Court said that in such circumstances it is "impossible to say" that the conduct was "on the ground of" the disability. More than one reason 39 Under s4A of the AD Act , if: (a) an act is done for 2 or more reasons, and (b) 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 this Act, the act is taken to be done for that reason. 40 Mr Avidan says in paragraph 21 of his statement: My reason for terminating her (Ms Oreb's) employment is clearly stated in the letter of 4 December. Foremost in my mind were the operational requirements of Discovery. 41 The relevant terms of that letter are set out in paragraph 2 of this decision. 42 He further says, in paragraph 22: whatever Ms Oreb's disability I did not terminate her employment because of that . . . I deny that Ms Oreb's employment was terminated because of a disability. 43 In his statement Mr Avidan invites us to accept both the "clearly stated" terms of his letter of 4 December 1996, and his recollection on 23 November 2000, as an explanation of his reasons for dismissing Ms Oreb. 44 To the extent that Mr Avidan's recollection in 2000 of what he had in mind in 1996 appears to be inconsistent with the terms in which he actually expressed himself in the 1996 letter, we prefer to rely on the terms in which he expressed himself in the 1996 letter. 45 In our view the complainant is correct in submitting that Discovery gave two reasons for terminating the complainant, so s4A (of the ADA) is relevant. One of the reasons given by the respondent for dismissing the complainant was her 'ongoing condition' being a reference to her disability. 46 Mr Avidan says in his statement that the "operational requirements of Discovery" were "foremost" in his mind when terminating Ms Oreb's employment. This might be so, but it is enough to make the termination the subject of scrutiny under the AD Act that Ms Oreb's disability was one of the reasons, which in our view was the case. Same circumstances 47 To make a finding that the termination of her employment on the ground of that disability was discriminatory, we must be satisfied, pursuant to s49B(1)(a) of the AD Act , that Ms Oreb was treated less favourably than in the same circumstances, or in circumstances which are not materially different, Discovery treats or would have treated a person who does not have that disability. 48 What are the circumstances within which the comparison in s49B(1)(a)is to be made? 49 The evidence shows that the following circumstances of Ms Oreb's dismissal are not in dispute. i. Ms Oreb was an employee. ii. Ms Oreb was a senior employee on whom the success of the business had depended to a considerable degree. iii. Ms Oreb was an employee with skills and experience which were difficult to replace. iv. Ms Oreb had been absent from work for six months. v. Ms Oreb's absence was due to her symptoms which we assume were a disability as defined. 50 A further circumstance is disputed. Had Ms Oreb advised Discovery she did not intend ever returning to work at Discovery? 51 There is no direct evidence that Ms Oreb at any stage before her dismissal indicated that she did not intend ever returning to work at Discovery, despite cross-examination of Ms Oreb, and submissions for Discovery to that effect. 52 Mr Avidan's evidence is that "(i)t was clear that Ms Oreb had no immediate plans of returning to work" (emphasis added). His letter of 4 December 1996 refers only to "the operating requirements of the business, and (her) ongoing condition". 53 The only statement which indicates that Ms Oreb's intention before her dismissal might have been to not return at all is in Mr Cole's report to the worker's compensation insurer on 7 October 1996. Mr Cole says "Ms Oreb stated that she has not returned to work and does not wish to do so". The real meaning of this statement is open to interpretation, and we are unaware if this report of Ms Oreb's view was ever conveyed to Discovery or Mr Avidan; knowledge of it is not reflected in Mr Avidan's evidence of what he understood to be the case. 54 Some time was spent during the inquiry attempting to identify when a document headed "Return to Work Force Rehabilitation Plan" came to the attention of Discovery or Mr Avidan. It was prepared by Ms Oreb's treating psychologist, Ms Ina Vukic, and is dated 21 November 1996. 55 Even if Mr Avidan was aware of its terms when he decided to terminate Ms Oreb's employment, and we cannot decide on the evidence whether he was, the document does not say or suggest that Ms Oreb did not intend ever returning to work at Discovery. 56 The document says only that "return to . . . Discovery . . . needs to be placed aside for the time being – probably for at least a year " (emphasis added). Consistently with this, on 26 November Ms Vukic, in a report to Dr Z. Oreb, recommended that medical certificates be endorsed, in part, "special duties . . . as part of return to workforce rehabilitation plan. The latter would need to exclude a plan to return to Discovery Group at this stage " (emphasis added). 57 Ms Oreb said in her evidence that she did not say anything to Discovery about when she might return to work. There is no evidence that Ms Oreb did say anything to Discovery about when she might return to work. There is however sufficient evidence before us of material from which Mr Avidan might reasonably have formed his own view that Ms Oreb was not returning to work in the near future. 58 Mr Avidan says in his evidence that that is what he thought, and an alternative proposition has not been put to him. It may have been indicated, in his mind, by the series of medical certificates; it may have been indicated by reports to him of Ms Oreb's correspondence in relation to pay entitlements. He seems to say (para 19 of his statement) that the passage of time was an indication to him: "After six months it was clear to me that Ms Oreb was not prepared to return to work at Discovery." 59 Whatever the reason for his belief, Mr Avidan's statement now as to his understanding at the time is clearly consistent with the circumstances at the time, and there is no evidence which gives us reason to disbelieve him. 60 The evidence supports Mr Avidan's statement in November 2000 that he was of the view, in December 1996, that Ms Oreb did not intend returning to work in the immediate future. A circumstance of Ms Oreb's dismissal to be added to the list in paragraph 49 above is therefore that vi. her employer believed that Ms Oreb did not intend to return to work in the immediate future. 61 Mr Avidan says that Ms Oreb had indicated that she was "seeking an alternative position". Ms Oreb, through her counsel, submitted that there was no evidence before us that Ms Oreb had been seeking an alternative position before she was dismissed. 62 As was the case in relation to Mr Avidan's understanding as to Ms Oreb's intention of returning to work, we start from the position that that is what Mr Avidan says understood to be the case. Unless Mr Avidan's statement is inconsistent with other reliable evidence, or for some reason implausible, we accept Mr Avidan's evidence. 63 Mr Cole reported to Discovery's workers compensation insurer on 7 October 1996 that Ms Oreb "indicated that she has received a number of alternative offers from other employers and is considering the offers". 64 Ms Vukic reported to Discovery's workers compensation insurer on 31 October 1996 that a "Rehabilitation Plan would need to seek alternative options for her to return to the work force". 65 There is no evidence that these reports were known to Mr Avidan before 4 December, or at all. But it is possible that they were. We don't know, and we don't know on what basis Mr Avidan formed the view that Ms Oreb was seeking other employment. But as there is no evidence that suggests he could not reasonably have had this view, or that he should not be believed now when he says that that was his view, we cannot do other than accept it to be the case. 66 Consequently, a further circumstance of Ms Oreb's dismissal to be added to the list in paragraph 49 above is that vii. her employer believed that Ms Oreb had been seeking other employment. 67 Ms Oreb, however, submitted that circumstance of having been absent for six months cannot be a circumstance for purposes of the comparison which must be made with a hypothetical employee. Her counsel said in oral submissions that 'absence from work for six months' cannot be a circumstance for purposes of a comparison because no-one could be absent from work for six months for a reason other than disability. The comparison, it was submitted, must therefore be made with a person not absent for 6 months. 68 Absence for six months was in our view, on the evidence, clearly a material circumstance in this matter, and the comparison must be with a person in that situation. 69 In written submissions Ms Oreb acknowledged that there are circumstances in which a person could be absent from work for six months for reasons other than disability, but said that in each case the reason for absence renders the circumstance materially different as a basis for comparison. 70 We agree with the submission that a comparable circumstance would be when a person is absent for 6 months without leave. It was submitted however that such a circumstance is materially different because Ms Oreb gave notice of her absence and the reason for it, and provided certificates to explain her absence, neither of which would be the case if a person was absent without leave. They are differences, but in our view they are not material differences. It was not, on his evidence, material to Mr Avidan that Ms Oreb had given notice of her reason or had explained it by way of regular certificates. What was material about her circumstances were her absence for six months, however explained, and the likelihood of her continuing absence. 71 Similarly we agree that a comparable circumstance would be when a person is absent for 6 months on leave to which they were entitled, such as parenting, long service, or accrued holiday leave, or approved leave without pay. It was again submitted that such circumstances are materially different because in each of them a person, if dismissed because of the absence, can make a claim for a remedy, either directly for breach of parenting leave provisions, or more generally for unfair dismissal. 72 Rather than being a point of difference, the fact that there might be a remedy is a point of similarity with Ms Oreb's circumstances: she seeks a remedy for the dismissal in this jurisdiction and had a right to do so in another. 73 Even if it is a difference, the availability or not of a remedy is not in our view a material difference. What was material to Ms Oreb's circumstances was her absence for six months and the likelihood of her continuing absence, whatever the consequence in law might be for the employer if she was dismissed. 74 Ms Oreb makes no suggestion as to what a comparable circumstance is, if it is not a person absent for six months for a reason other than disability. Comparators are available which are not, in our view, materially different. The comparison for purposes of assessing 'less favourable treatment' is with a person absent for six months for a reason other than disability. Less a favourable treatment 75 In the circumstances described, Discovery dismissed Ms Oreb. The simple question under s49B(1)(a) is: how did Discovery treat, or would Discovery treat, a person without a disability in the same circumstances? 76 Ms Oreb offers no evidence of Discovery actually having treated in any way a person without a disability in the same circumstances. She need not do so. She is able to rely on the words of s49B(1)(a) which allows consideration of how Discovery "would" act. 77 Ms Oreb asserts that, in the same circumstances, Discovery "would treat" a person without a disability more favourably than it treated her. She offers no evidence from which we might draw an inference to this effect, but raises the issue as one to be addressed. We proceed on the basis that a complainant is entitled to raise the question for a respondent to answer in the course of our inquiry, although there might be an argument that there is an onus on a complainant to satisfy the Tribunal as to whether a respondent would act in a particular way. 78 In response to the issue of how Discovery would treat a person without a disability in the same circumstances Mr Avidan says, in effect, 'in the same way'. He says in his statement I would have taken the same action for any member of my staff who had been on leave for 6 months who indicated that they were not returning in the immediate future and were seeking an alternative position. 79 As we observed above, Mr Avidan was not cross-examined, and no submission was made that we should not believe Mr Avidan's statement. We have been given no reason to doubt that Mr Avidan would have done as he says he would have done. 80 Ms Oreb having asserted that Discovery treated her less favourably that it would treat a person without a disability in the same circumstances, we accept Mr Avidan's evidence that that is not the case. There is no evidence to the contrary, or from which we could draw an inference to the contrary. Direct Discrimination 81 We assume that Ms Oreb had a disability as defined by the AD Act . 82 We find that Discovery dismissed Ms Oreb on the ground of her disability. 83 We do not find that in dismissing Ms Oreb on the ground of her disability, Discovery treated her less favourably than they would have treated a person without that disability in the same or similar circumstances. 84 We are therefore not satisfied that Discovery discriminated against Ms Oreb within the meaning of s49B(1)(a) of the AD Act . 85 It is not necessary for us to consider the availability in the circumstances of the defence under s49D(4) of the AD Act of an employee's inability to carry out the inherent requirements of employment. Indirect discrimination 86 During the inquiry we raised for consideration the possibility that the facts indicated a contravention of s49B(1)(b): indirect discrimination. We had thought that the terms of the letter of 4 December 1996 might suggest that "the operating requirements of the business" involved a requirement with which Ms Oreb, because of her "ongoing condition", was unable to comply. 87 It was submitted orally for Ms Oreb that this was the case. 88 It was submitted for Discovery that the complaint made was one of direct discrimination, and that it had never been pleaded otherwise. 89 In our view a complaint is sufficient for purposes of the AD Act if it alleges a contravention of the Act (s88(1)); it need not, and often could not be expected to, specify whether direct or indirect discrimination is complained of. If in the course of the Tribunal's inquiry into the complaint it becomes apparent that the facts alleged might amount to indirect discrimination, then the Tribunal cannot ignore that possibility. That the possibility was not foreseen or was not provided for in any pre-trial steps is a procedural matter which, in the interests of fairness, might need to be addressed by appropriate procedural arrangements. But it does not preclude the Tribunal in its inquiry from looking at the facts in light of applicable law, in this case s49B(1)(b) of the AD Act . 90 It was submitted for Discovery that no evidence relevant to a claim for indirect discrimination had been led by Ms Oreb. In reply it was submitted for Ms Oreb that "no particular evidence is necessary in a case such as this to establish indirect discrimination". 91 Although not led for that purpose, there was evidence before us which was relevant to issues to be addressed in assessing the occurrence of indirect discrimination as defined. Were it not for the reasoning below, however, which in our view precludes the possibility of as finding of indirect discrimination in the circumstances, it might have been necessary to request further relevant evidence from the parties. 92 If, as was raised as a possibility by the Tribunal and submitted for Ms Oreb, the requirement with which Ms Oreb had to comply was that an employee return to their usual duties after an absence of 6 months, the issues under s49B(1)(b) are these. 93 Is such a requirement one with which Ms Oreb was unable to comply. The answer is clearly 'yes'. 94 Is such a requirement one with which a substantially higher proportion of people who do not have the disability comply or are able to comply? In the absence of empirical evidence, our own experience leads us to the view that that is the case. A substantially higher proportion of people without the disability, than of people with the disability, do or could comply with a requirement to carry out Ms Oreb's duties. 95 Is such a requirement not reasonable having regard to the circumstances of the case? 96 The requirement must be shown to be unreasonable. Again we proceed on the basis that a complainant is entitled to raise the question for a respondent to answer in the course of our inquiry, although the terms of s49B(1)(b) more clearly place an onus on a complainant to show that the requirement is unreasonable in the circumstances. 97 We heard extensive evidence from Ms Oreb as to the importance of her position in Discovery's business. She agrees that Discovery were unable to satisfactorily replace her skills on a temporary basis during her absence. 98 There is evidence from Ms Oreb of both the very important role she played in Discovery's business, and the difficulty of finding someone to act in her position on a temporary basis. Those circumstances support the reasonableness of a requirement that an employee return to duties after 6 months. There is no evidence which demonstrates that such a requirement was unreasonable in the circumstances. 99 We are not satisfied that a requirement that employees return to their duties after six months absence is not reasonable in the circumstances. 100 Ms Oreb's inability to comply with that requirement is not therefore, in the circumstances, indicative of discriminatory conduct within the meaning of s49B(1)(b) of the AD Act . Orders 1 Pursuant to s113(a) of the Anti-Discrimination Act we dismiss the complaint. 2 Pursuant to s114(1) of the Anti-Discrimination Act, and having regard to s114(2), each party shall pay their own costs. 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.