Appeal Panel CITATION: Dayton v Director-General, Department of Education and Training [1999] NSWADTAP 5 decision revised on: APPELLANT: Marie Dayton RESPONDENT: Director-General, Department of Education and Training FILE NUMBER: 999004 HEARING DATES: 08/06/1999 SUBMISSIONS CLOSED: 08/06/1999 DATE OF DECISION: 23 August 1999 Principal Decision - Disability Discrimination in Employment DECISION UNDER APPEAL: H G Murrell SC DCJ - Deputy President BEFORE: K Raphael - Judicial Member D Toltz - Member FILE NUMBER UNDER APPEAL: 142 of 1997 DATE OF DECISION UNDER APPEAL: 04/20/1999 PRIMARY LEGISLATION: Anti-Discrimination Act 1977 Appellant: S Winters of counsel REPRESENTATION: Respondent: K Nomchong of counsel instructed by Crown Solicitor's Office 1. Appeal upheld. ORDERS: 2. Matter to be remitted to the Administrative Decisions Tribunal as originally constituted for the assessment of damages to be awarded to the Appellant. 3. The Appellant's costs of the appeal to be paid by the Respondent. 4. Costs before the Tribunal on the original hearing and on the remitted hearing to be reserved to the Tribunal. Reasons for Decision 1 The Appellant appeals from a decision of the Equal Opportunity Division of the Administrative Decisions Tribunal dated 20 April 1999 which dismissed her claim against the Respondent for discriminating against her by reason of a disability when on, 14 February 1997, she was required by Mr Shaw, an officer of the Department of Education and Training to go on sick leave pending a medical examination to ascertain her fitness for duty. The appellant also complained of discrimination in being required to attend the Health Quest medical examination. 2 The relevant finding of the Tribunal in respect of which Ms Dayton appeals was that contained in paragraph 24 and 26 of the Tribunal's decision: "24. The Tribunal further finds that the Complainant was sent on sick leave because of the production of the medical certificate of 5 February 1997 and not because she had a disability. The distinction is a fine one, but until Mr Shaw received the certificate, we are satisfied he did not know of her disability. It appears to the Tribunal he carried out his duties, as he was required to do under the Occupational Health and Safety Act, 1983 (NSW). He was most careful and took advice from a senior officer, Mr Jim Hopkins, assistant director of the NSW AMES". and "26. We do not accept the fact that the Complainant was sent on sick leave in February 1997 shows any discrimination by Mr Shaw (or inferentially the Respondent) against the Complainant under the Act." 3 The Appeal Panel was greatly assisted by the provision by both Counsel of written submissions and authorities. It is perhaps significant that there was a considerable overlap in the authorities and that both parties relied in varying ways on Australian Iron & Steel -v- Banovic & Ors [1989] 168 6CLR165, IW -v- The City of Perth [1997] 146 ALR696, State Transit Authority v. Sloey & Anor [1999] NSW SC47. In addition, the Respondent relied on Soulemizis -v- Dudley Holdings Pty Limited p[1987] 10NSWLR237 and the unreported decision of French -v- Sydney Turf Club & Anor [1999] NSW CA195. 4 The Tribunal found that there was general agreement between the parties as to the facts which were that Ms Dayton who was a part time staff member of AMES who had previously been working in Wyong had left her posting in that town and arranged a meeting with Mr Shaw at the head office of AMES together with a representative of the Teachers Federation for the purposes of discussing her future employment. Shortly before that meeting two medical certificates had been provided to AMES, one of which stated: "that Ms Dayton is, in my opinion, suffering from injured L-foot (11 operations), injured back and injured R-arm and hand, unable to walk more than 100 metres or climb stairs regularly or unable to type." 5 The finding of the Tribunal was: "at the meeting Ms(sic) Shaw directed the Complainant to go on sick leave, pending a medical examination to ascertain her fitness for duty. He, in due course, arranged such an examination by Health Quest." 6 All parties agreed that the Appellant suffered from a disability. The Appellant argued that it was impossible to distinguish between the medical certificate and the disability itself so as to say that it was the medical certificate rather than the disability which caused the Respondent to act in the manner in which it did. The idea that it is some extraneous factor that causes the actions that are later described as "discriminatory" and not a disability seems to have been drawn from such decisions on inherent disability as Christie -v- Qantas Airways [1998] 193 CLR 281 although that authority was not cited either by the Tribunal or by the Respondent in its submissions. This panel is of the view that the Tribunal was in error in making a distinction between the certificate and the disability it described. The Appellant was sent home on sick leave and required to undertake the Health Quest examination because she was a person under an admitted disability. The medical report merely evidenced that fact. 7 Having decided that the actions of the Respondent were not brought about by the disability of the Appellant, the Tribunal need not have taken the matter further but it did go on to decide that those actions were not discriminatory. 8 The Tribunal in finding that Mr Shaw did not act in a discriminatory manner towards the Appellant did not rely specifically upon the defence contained in s.54 of the Anti-Discrimination Act but appeared to combine the requirement it saw in s.15 of the Occupational Health and Safety Act 1983 (NSW) with a general approval of Mr Shaw's actions. The relevant part of s.15 states as follows: 15. Employers to Ensure Health, Safety and Welfare of their Employees (1) Every employer shall ensure the health, safety and welfare at work of all the employers' employees. 9 The proscription in this section is certainly a wide one but whether it requires a worker, who, although suffering from an admitted disability is otherwise apparently fit for work, to be sent home on sick leave and subjected to a Health Quest examination must be open to considerable doubt. 10 The Appeal Panel accepts the submissions made by Ms Winter that s.54 of the Anti-Discrimination Act is only a defence or an exemption. It does not come into play unless discrimination is established. The Panel is of the view that sending the Appellant home on special sick leave and requiring her to undertake the medical examination was an act of discrimination in that the Appellant as a person otherwise fit for work was treated on that day less favourably than any other person who might have been interviewed about their employment record who did not have the disability evidenced by the medical certificate. The Appeal Panel is of the further view that this discrimination is not exempted by s.54 because the wording of s.15 of the Occupational Health & Safety Act could have been complied with without sending the Appellant home and declining to provide her with work until after the results of a Health Quest medical examination were known. There was no suggestion raised in the proceedings nor in the appeal that the Respondent was complying with some specific obligation under, for example, the Public Sector Management Act Regulations, causing it to act in the way it did. Had that been the case the s.54 defence may well have been successful. 11 Having decided that the actions of the Respondent were discriminatory and that therefore the appeal should succeed this Appeal Panel must decide what steps it should take. 12 Section 114 of the Administrative Decisions Tribunal Act 1977 114. Appeals on Questions of Law (1) If an appeal under this part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel; (c) an order made in substitution for an order made by the Tribunal. 13 It was urged upon us that if the Appeal Panel decided the appeal in favour of the Appellant it should make an order in substitution for the order made by the Tribunal. Such a decision would have the attraction of bringing this lengthily fought matter to an end. However, the effect of a finding in favour of the Appellant would be to require this Appeal Panel to consider the making of an order in her favour for damages. That would require an investigation of the Appellant's particular circumstances which was not readily obtainable from the Judgment of the Tribunal itself. The Appeal Panel would not have the benefit of hearing the Appellant or any other witnesses. It is obvious from the papers with which we have been provided that the original Tribunal did do that and would be in a position to speedily make a decision upon damages if the matter was remitted to it. This Appeal Panel believes that that is the most appropriate course of action. 14 Finally, the question of costs was debated both at the Tribunal and before this Appeal Panel. Both parties urged us to make an award of costs in their favour should they be successful. Although it is not the general policy of the Administrative Decisions Tribunal to award costs to parties other than in exceptional circumstances there does appear to be some very limited acceptance of the notion that a party should not be robbed of the fruits of his or her victory by having to pay the costs of bringing the action. This notion applies where the likelihood is that the damages to be awarded will be small. Certain admissions regarding the likely size of the damages award were made by Ms Winter on behalf of the Appellant and with these, the Appeal Panel would tend to agree. It is to be remembered that in this case the Appellant originally brought her claim without legal assistance. It is not unreasonable that having lost the claim she should seek some legal assistance to prosecute the appeal. The Appeal Panel believe that having won the appeal and having had to have her claim remitted to the Tribunal for further consideration she should be awarded her costs of the appeal. We were told from the Bar Table of the existence of "calderbank" letters which might have some affect on any general order as to costs and this Appeal Panel reserves to the Tribunal the question of costs in relation to both the original and the subsequent hearing. The Appeal Panel's orders are: 1. Appeal upheld. 2. Matter to be remitted to the Administrative Decisions Tribunal as originally constituted for the assessment of damages to be awarded to the Appellant. 3. The Appellant's costs of the appeal to be paid by the Respondent. 4. Costs before the Tribunal on the original hearing and on the remitted hearing to be reserved to the Tribunal. 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.