Appeal Panel CITATION: Opera Australia Limited -v- Carr [1999] NSWADTAP 6 decision revised on: APPELLANT: Opera Australia Limited RESPONDENT: Gregory William Carr FILE NUMBER: 999006 HEARING DATES: 08/06/1999 SUBMISSIONS CLOSED: 08/06/1999 DATE OF DECISION: 6 August 1999 Principal matter - application for leave to appeal out of time DECISION UNDER APPEAL: H G Murrell, DCJ - Deputy President BEFORE: R Bartley - Judicial Member L Nemeth de Bikal - Member FILE NUMBER UNDER APPEAL: 39 of 1997 DATE OF DECISION UNDER APPEAL: 01/08/1999 PRIMARY LEGISLATION: Anti-Discrimination Act 1977 Appellant: J Robinson, of counsel REPRESENTATION: Respondent: S Winters, of counsel ORDERS: 1. Application refused 2. Applicant is to pay the respondent's costs of the application as agreed or assessed within 14 days. Delivered Ex Tempore 1 Pursuant to section 113(3)(b) of the Administrative Decisions Tribunal Act 1997, the applicant seeks an extension of the 28-day period within which it should have made an appeal to the Tribunal against a decision of the Tribunal for which written reasons were given on 8 January 1999. The notice of appeal should have been filed by 5 February 1999. It was not filed until 28 May 1999. 2 Since 1979, the respondent has been employed by the applicant as a trumpet player. Between July 1989 and June 1996 the respondent suffered eleven seizures, three of which occurred in the workplace. At times he also suffered pain in his back and shoulders. 3 In about 1988 perspex sound screens were installed in the orchestra pit in front of the trumpet section and to the right of where the respondent played as first trumpet player. They were designed to reduce the noise impact of the trumpet and percussion sections on the other members of the orchestra. Between 1988 and 1994 the size of the screens was increased. As a consequence, the respondent believed that he had to play more strenuously in order to be heard by other orchestra members, particularly during performances of Turandot. 4 There was a history of dispute between the applicant and the Musicians Union of Australia involving complaints of unacceptable noise. The matter was taken to the Australian Industrial Relations Commission, and in 1995 or 1996 an agreement was reached which provided for changes to the orchestra pit. There was no evidence before the Tribunal as to the practical impact of this agreement. 5 On 17 July 1996 the applicant wrote to the respondent, referring to a workers compensation claim which he had made in connection with his seizures. The applicant expressed concern that as a result of a seizure the respondent might injure himself or other staff members. Relying on "the occupational health and safety legislation", the applicant required that the respondent take leave without pay. 6 Prior to the hearing before the Tribunal in December 1998, the respondent's status did not change. On 19 July 1996 Dr Pierce, the respondent's rehabilitation specialist, wrote to the applicant in the following terms: "I believe that (the respondent's) low back pain, episodes of loss of consciousness and pain in the right shoulder appear to be mainly precipitated by his orchestral playing of the trumpet and these symptoms are made excessively worse during high intensity performance . . . the only real options he has at the moment to reduce these symptoms is to reduce the intensity and frequency of playing. Perspex barriers only cause him to increase his intensity even further and therefore aggravate the symptoms. With lighter workload I believe that his symptoms would decrease significantly." 7 On 7 August 1996 the applicant wrote to the respondent, stating that it had received legal advice that the respondent should not be permitted to return to work until his workers compensation claim had been resolved, and stating that the applicant was unable to comment on the effect which the screens had on brass players. 8 The respondent made a complaint of disability discrimination, which was referred by the President of the Anti-Discrimination Board to the Equal Opportunity Tribunal. The matter was listed for hearing in February 1998, but in December 1997 the hearing date was vacated because the respondent, who had been self-represented, had just obtained legal representation. Subsequently, the matter was listed for hearing on 7 December 1998. 9 At the hearing the applicant relied on section 54 of The Anti-Discrimination Act, which provides: "54 (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act, . . ." The applicant contended that if the respondent experienced a seizure at work he would pose a safety risk to himself and others. 10 Section 15(1) of the Occupational Health and Safety Act 1993 provides that: "Every employer shall ensure the health, safety and welfare at work of all his employees." Section 16 (1) of that Act provides: "Every employer shall ensure that persons in his employment are not exposed to risks to their health or safety arising from the conduct of his undertaking while they are at his place of work." Section 53(a) provides a defence to proceedings for an offence against the Occupational Health and Safety Act where it is "not reasonably practicable" for an employer to comply with the relevant provision of the Act. The Occupational Health and Safety Act is a codification of the laws relating to industrial safety. 11 In dealing with the applicant's argument on section 54(1), the Tribunal referred to Burrows v The New South Wales Commissioner of Police (1994) EOC 92-654, and apparently relied on Kitt v The Tourism Commission (1987) EOC 92-196. At 14 the Tribunal stated: "The Tribunal finds that the generality of (the submission about safety risk to others) and the lack of specific evidence which would demonstrate the reality of risk to other employees if Mr Carr should have a seizure in the workplace does not enable the Tribunal to make an objective assessment of the necessity for the respondent to require the complainant to be placed on leave without pay in order to comply with the general provisions of subsections 15 and 16 of the Occupational Health and Safety Act. The Tribunal accordingly rejects the defences brought by the respondent under section 54(1) of the Act." 12 The Tribunal found that the complaint of disability discrimination was substantiated. At 17, the Tribunal stated: "The wrong perpetrated on Mr Carr needs to be corrected so that he is reinstated to an active role in the Opera Australia orchestra as the associate principal trumpet player. Such reinstatement should have conditions applied which reduce the adverse impact on him. The Tribunal is not able from the material before it to determine under what playing conditions in the orchestra pit Mr Carr should be effectively reinstated. It may be necessary for Opera Australia to make modifications to the conditions in the opera pit as they affect the brass section to reduce as much as possible the risk of Mr Carr suffering a seizure." 13 The Tribunal granted relief under section 113 of the Anti-Discrimination Act. Inter alia, the Tribunal ordered that the respondent: "Forthwith reinstate the complainant to an active role as associate principal trumpet player in the Opera Australia orchestra on terms consistent with the terms applicable to that position." Section 113(1)(b)(ii) enables the Tribunal to make an order enjoining a respondent from continuing or repeating any unlawful conduct. Section 113(1)(b)(iii) enables the Tribunal to order a respondent "to perform any reasonable act or course of conduct" to redress any damage. 14 The applicant seeks to appeal the Tribunal's decision on two principal bases. (1) Because of the provisions of sections 15 and 16 of the Occupational Health and Safety Act the Tribunal should have found that a section 54 defence was established. (2) The order for reinstatement could or should not have been made. 15 The evidence before the Appeal Panel clearly establishes that the applicant's delay in seeking to appeal was occasioned by the applicant's then legal representatives rather than by the applicant itself. Initially, the applicant's legal representatives erroneously sought to appeal to the Supreme Court. The respondent's legal representative advised the applicant's legal representatives of the correct appeal process, but they chose to ignore that advice until enforcement was threatened. It was not until recently that the applicant's legal representatives advised the applicant itself of their error, and at that stage the applicant elected to obtain different legal representation. 16 The Appeal Panel should allow an extension of the 28 day appeal period if satisfied that failure to extend the period will work an injustice between the parties: Gallo v Dawson (1990) 93 ALR 479. To determine whether a strict application of the rule as to time will work an injustice, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. It is important to consider the applicant's prospects of success on appeal and to bear in mind that, upon the expiry of time for appealing, the respondent has a vested right to retain the judgment unless the application is granted. 17 In this case, the applicant has established an adequate explanation for the delay, i.e. error on the part of its legal representatives and failure by those legal representatives to keep the applicant informed about the status and progress of any appeal. 18 The respondent relies on his vested right to retain the judgment and opposes the application, principally on the basis that the proposed appeal lacks a real prospect of success. 19 We turn to consider the merits of the applicant's s 54(1) argument. In our view, the Tribunal's approach to this issue demonstrates no error of law. The apparent application of the Kitt decision was correct. In relation to s54, the evidentiary onus was on the applicant, and the Tribunal correctly identified the lack of evidence adduced to support the applicant's s54 contention. 20 As to the contention that the Occupational Health and Safety Act enables discrimination against a disabled employee because, in effect, the employee's disability represents a general health problem for the employee in the workplace, that proposition is rejected. If correct, it would disentitle most employees from establishing a workplace disability discrimination claim. 21 In relation to the reinstatement order, the applicant argues that the order must have been made in the purported exercise of the power in section 113(1)(b)(iii) but was beyond that power because the Tribunal could not have been satisfied that the order was "reasonable". The Tribunal referred to the possible need for workplace modification but could not assess whether such modification could occur. Further, any requirement for appropriate workplace modification was uncertain, and therefore unenforceable. 22 The Appeal Panel accepts that the reinstatement order must have been made under section 113(1)(b)(iii). Initially, we were troubled by the Tribunal's reference to the possible need for workplace modifications to accommodate the applicant. However, on reflection, we consider that these remarks by the Tribunal were an aside. We note that the order itself does not refer to any requirement for workplace modification. Consequently, the order itself is not uncertain. In our view it was reasonable to make an order which directly reversed the ongoing consequences for the respondent of the applicant's act of discrimination, i.e. placing the respondent on unpaid leave. 23 The making of an order under section 113(1)(b)(iii) was discretionary, and the applicant has not established that the discretion was improperly exercised.. 24 It follows that it is the Appeal Panel's view that the proposed appeal lacks merit. 25 This is a jurisdiction in which it is particularly important that complaints be resolved quickly and clearly. Leave to appeal out of time should not be granted liberally. 26 In relation to costs, the respondent contends that the s88 requirement of "special circumstances" is established. The respondent was awarded costs in the first instance. The applicant has not sought to challenge that costs order. The respondent advised the applicant's legal representatives of the correct appeal procedure, and they chose to ignore that advice. The applicant concedes that the respondent is entitled to costs if he succeeds on this application. 27 The application is refused. The applicant is to pay the respondent's costs of the application as agreed or assessed within 14 days of today. 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.