CITATION: Peck v Commissioner of Corrective Services [2002] NSWADT 122 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Mark Peck RESPONDENT Commissioner of Corrective Services FILE NUMBER: 8 of 1998 HEARING DATES: 18/03/2002, 19/03/2002, 20/03/2002 SUBMISSIONS CLOSED: 03/20/2002 DATE OF DECISION: 07/16/2002 BEFORE: Ireland G - Judicial Member; McDonald O - Member; Silva A - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter Anti-Discrimination Act 1977 LEGISLATION CITED : Occupational Health and Safety Act 1983 Public Sector Management (General) Regulation 1988 Public Sector Management Act 1988 Kit v Tourism Commission (1987)11NSWLR686 CASES CITED: Waters v Public Transport Corporation (1991)173CLR349 X v Commonwealth of Australia (2000)74ALJR176 APPLICANT REPRESENTATION: A Healey, barrister RESPONDENT T Anderson, barrister ORDERS: 1. The Tribunal finds that the complaint of unlawful discrimination of the Applicant by the Respondent has been substantiated.; 2. The Tribunal orders that the Respondent pay to the Applicant by way of damages for the unlawful discrimination, an amount of $40,000.00.; 3. Leave is reserved for the Applicant to apply to the Tribunal for an order for costs, within 21 days of the date of publication of this decision. Background 1 This is an inquiry by the Tribunal into a complaint made by the Applicant, Mr Mark Peck against the Commissioner of Corrective Services. It arises out of a complaint lodged by Mr Peck with the Anti-Discrimination Board ("the Board") on 9 January 1995. On 30 January 1998 the Board referred the complaint for inquiry by the Tribunal, pursuant to section 94(1) of the Anti-Discrimination Act 1997 ("the Act"). 2 The holding of the inquiry has been delayed, at the request of the parties, pending the decision of the Appeal Panel of the Administrative Decisions Tribunal in a complaint of Mr Anthony Maxwell against the Commissioner of Corrective Services. The Appeal Panel delivered its decision on 18 July 2001. That decision reported at (EOD)[2001] NSW ADTAP 21 "The Maxwell decision" will be referred to at length later in this decision. 3 The complaint in this inquiry relates to the rejection by the Respondent of Mr Peck's application to be employed by the Respondent to the position of Overseer Catering at the Respondent's minimal security establishment at St. Heliers Correctional Centre. Mr Peck alleges that the Respondent discriminated against him in rejecting his application for employment on the ground of his disability, in breach of section 49B(1)(a) and section 49D(a) and (b) of the Act. 4 Mr Peck applied for the position, on or about 2 July 1995, in response to an advertisement in the Sydney Morning Herald. The advertisement described the position as Overseer Catering, and stated that the essential requirements for the position "must meet prison officer entry requirements". The other essential requirements related to experience and certification in commercial cookery. 5 Mr Peck was interviewed by the Department and subsequently was informed, in an informal manner, that he was the successful Applicant. Five days later on 10 August 1995 he was advised by the Department that he was offered the job pending a criminal record check and a medical examination. He was also advised that it was likely that he would be required to attend a training course at the Department's Training Academy. In preparation for the training course, Mr Peck purchased training clothing and equipment, which he would need at the Training Academy. 6 On 23 August 1995 Mr Peck attended the offices of HealthQuest, a division of the Central Area Health Service, where he was presented with a HealthQuest Form, "Request for Service" which had been sent to HealthQuest by the Respondent. That form requested HealthQuest to carry out a pre-employment health assessment of Mr Peck. The form described the position for assessing Mr Peck as "correctional officer". Mr Peck was also requested by the Nurse at HealthQuest to complete a form "Health Assessment for Employment". In completing that form, Mr Peck described the job that he had applied for as "prison officer". The evidence shows that the term "correctional officer" and "prison officer" are used synonymously by the Respondent. 7 Mr Peck was examined by Dr Mahadev, the Senior Medical Officer at HealthQuest. Dr Mahadev stated that he tested Mr Peck against what was required of a person to be appointed as a correctional officer. He said that he had visited prisons and had knowledge of the requirements of the work of prison officers and that he had guidelines from the Respondent on the requirements for vision, hearing, physical fitness and psychological state and that he tested against those standards. In particular, Dr Mahadev stated that he considered that he needed to assess the Applicant's capacity for physical exertion and the ability to supervise inmates and ensure containment. He emphasised the need for an Applicant to have capacity for vigilance and physical exertion in order to supervise inmates and maintain containment. 8 Dr Mahadev also stated that he tested the Applicant against the job specification for prison officers that was set out on the third page of the document "Request for Services" that HealthQuest received from the Respondent. The requirements for the position of "prison officer" in that document, lays stress on the need for a high degree of physical and mental fitness to ensure the effective discharge of custodial duties and it specifies the demand for long standing, walking, climbing, sudden physical exertion, as in confrontation or restraint of prisoners, manual dexterity, riot control and driving. 9 Dr Mahadev said that at the time he examined the Applicant he did not have a copy of the St. Heliers Correctional Centre, statement of duties for the position of Overseer, Catering. That document specifies the responsibility of the overseers of catering in the running of the jail catering service and kitchen. The latter part of the document contained a statement of additional duties, "the overseer caterer will also perform the following: · participate within the management of the inmates within the area, supervision and control of inmate movements and activities within and outside the correctional centre; · supervision of staff ensuring that they are providing the full range of area management programs, ensuring completion of all daily operational issues and assuming the duties of "officer in charge"; · maintenance of the safe and secure management of inmates; · interact with inmates on a formal and informal basis." The list contains other items of duties which might be required which do not relate specifically to supervision of inmates. 10 After observing Mr Peck and conducting some physical tests, Dr Mahadev completed the form "Health Assessment for Employment" by writing comments against the various headings in the form. Dr Mahadev's comments in relation to the Applicant's condition contained no adverse result except against the Items "Lower Limbs and Joints, Reflexes, Feet". Dr Mahadev made the comment "left knee slight limitation, flexion – 100% shortening of leg, 5cm". Against the item "Squatting", Dr Mahadev commented "unable to squat fully – stiff left knee". At the end of that form under the heading of "Comments", Dr Mahadev stated: "Await Dr Laird's report regarding condition of left knee and capacity for physical exertion." On an accompanying sheet Dr Mahadev made the following relevant comments: "Was prescribed built up heel (shoe) but found it uncomfortable – Gait steady, noticeable limp, unable to squat fully. Bends fully touching toe." 11 Dr Mahadev was unable to complete the assessment as he needed to obtain information from Dr Lindsay Laird, an Orthopaedic Surgeon. Dr Mahadev required a report from Dr Laird as he had operated on the Applicant in August 1986 and had post-operatively treated the Applicant. The Applicant's left leg was severely injured in an accident in 1976 when he was knocked down by a motor vehicle. At that time the Applicant was 11 years of age. 12 Dr Laird was unable to examine the Applicant when he called at his surgery to lodge the application for the report to Dr Mahadev. Dr Laird supplied a written report to HealthQuest on 28 August 1995 in which he described the operation that was carried out on the Applicant in August 1986. The report states: "Subsequently, in April 1988 the tibial plate was removed from his knee. I saw him in July 1993 with some left buttock pain and some left thigh pain. It was noted that his problem with his left knee showed that the knee was quite stable. He had full extension and 90 degrees of flexion. However degenerative changes were obviously causing some increasing discomfort in his knee. I saw him on the last occasion on 22 July 1993. He had some evidence of some left sided sciatic pain. I advised him to give consideration to having some further investigations if these symptoms increased. This man continues to have some on-going disability. His left knee is now stable but the degenerative changes are increasing. I have no doubt that ultimately at some stage in the future he will come to joint replacement. I am not aware as to whether his sciatica is continuing or not." 13 Dr Mahadev stated that after receiving Dr Laird's report, he formed an opinion that the Applicant was unfit to carry out the duties of the position of correctional officer. He stated: "In addition to being unable to carry out the inherent requirements of the position, the complainant's employment in the position would, in my opinion, be inconsistent with the employer's obligations under the Occupational Health and Safety Act 1983 in that both he and other persons would be exposed to the risk of injury, and in the case of the Complainant himself, serious injury, than the risk arising from the employment of a person who is fit to carry out the duties of the position of correctional officer." 14 Dr Mahadev then discussed the Applicant's case with Dr Gapper, the Director of HealthQuest. Dr Gapper agreed with the opinion of Dr Mahadev and on 5 September 1995, Dr Mahadev, on behalf of Dr Gapper, wrote to the Applicant informing him: "You were considered unable to safely meet the job demands of the position applied for. The deciding factors were the nature of the duties of the particular position and your residual disabilities following fractured left fema." 15 On the previous day, 4 September 1995, Dr Mahadev had issued to the Respondent a form headed "Health Assessment Certificate". On that certificate Dr Mahadev had ticked the box entitled "unfit for employment in this position". The Applicant, on 20 September 1995, lodged an appeal to the Medical Appeals Panel, against the decision of HealthQuest. 16 At the request of the Medical Appeals Panel, on 16 November 1995, Mr Peck attended the surgery of Dr John Goldie, formerly the Senior General Surgeon at the Royal Prince Alfred Hospital, Sydney, and a Surgical Consultant to the Medical Appeals Panel. Dr Goldie conducted an examination of Mr Peck, examined the x-rays of Mr Peck's leg that was supplied through Dr Laird and provided a report to the Medical Appeals Panel. In that report Dr Goldie concluded: " Ex a mination: He weighed 90kgs. He had a normal gait. He could squat till the left knee reached 100 degrees. There was 3cm of shortening in the left leg. The left thigh measured 48cm, the right 50cm. Knee flexion was limited at 100 degrees. The knee joint was stable and the ligaments in tact. There was no crepitus. There were scars over the interior thigh and the upper calf. Diagnosis: He had shortening in the left leg and degenerative changes in the left knee following injury. There has been corrective surgery with a good recovery. Ten years have elapsed since the surgical procedure and he has maintained stability. He has minimal symptoms and there is a minimal loss of agility. I would regard him as fit for the position for which he is an Applicant, ie, catering supervisor and cook. He presents as a fit man and his lack of agility should not interfere with his capacity to carry out other tasks which could be required of him in the position for which he applies." 17 In his evidence Dr Goldie confirmed that after being shown the statement of duties for Overseer Catering, that he considered that the Applicant was able to meet the requirements of that position. When shown the document "Job Demands/Requirements of Prison Officers" Dr Goldie confirmed that he considered that the Applicant was capable of carrying out those duties. 18 On 19 December 1995, the Chairman of the Appeal Panel wrote a letter to the Applicant which stated: "Your medical file has been carefully reviewed, with reports from your Orthopaedic Surgeon who you nominated, and from the Panel's Surgical Consultant, and on the basis of the available medical evidence, the Panel is of the opinion that the assessment of HealthQuest was appropriate at the time of your examination. Your Appeal is therefore disallowed." 19 The Applicant described how when he received this letter he was totally devastated and dumbfounded and was in shock. He said that he couldn't understand why the outcome of the Appeal wasn't favourable when the examination with Dr Goldie had gone so well. He was extremely upset and distressed when he was advised that there was no further avenues open to him to take further the adverse decision of the Medical Appeals Panel. 20 There is no evidence before the Tribunal as to the actions taken by the Respondent, consequent upon the decision of the Medical Appeals Panel. The Applicant's amended Points of Claim state: "The Respondent did not recommend the complainant for the position of overseer catering, St. Heliers Correctional Centre, (See section 26 Public Sector Management Act 1988 )." 21 The Respondent in its amended Points of Defence, admitted this statement. The Tribunal has proceeded on the basis of the statement in the amended Points of Claim. Accordingly there is no evidence before the Tribunal as to what consideration, if any, was given by the Respondent to the decision of the Medical Appeal Panel that the Applicant was considered medically unfit for the position of overseer catering. 22 On 9 January 1996, the Applicant lodged with the Board a complaint that the Respondent had discriminated against him in rejecting his application for employment, on the ground of his disability. The Board considered that the complaint by Mr Peck included a complaint against the Central Area Health Service as well as the Department of Corrective Services. Subsequently the Applicant did not proceed against the Central Area Health Service and the Tribunal has not given consideration to that part of the original complaint. 23 It is against this background that the Tribunal has been requested to inquire into the Applicant's allegation of discrimination arising out of the failure by the Respondent to appoint him to the position of overseer catering. The Ability of the Applicant to Fulfil the Position of Overseer Catering 24 At the time of his application for the position, the Applicant was thirty (30) years old. For the past eleven (11) years he had worked as a kitchen hand and then a cook at the Morisset Hospital, Psychiatric Hospital which included patients detained under the Mental Health Act and it also had a security unit. He held appropriate trade qualifications for those positions. He had won a TAFE award for outstanding excellence in New South Wales for hospitality and tourism. His position at the Morisset Hospital required him to work for over eight (8) hours each day cooking for 300-500 patients. For most of his working hours he was standing on his feet. In addition to working sixty (60) hours per week at the Morisset Hospital, he worked in a part-time position as a cook in a Restaurant. The Applicant considered that he had a high degree of physical fitness. He walked and jogged about eight (8) kilometres each day and sometimes he walked to work and back, a distance of six and a half (6.5) kilometres return trip, in addition to his daily 8km jog. He said that he worked out at the gym six (6) nights per week, where on two (2) nights he would work on chest and bicep exercises, 2 nights a week he worked on his back and triceps and 2 nights a week he worked on his legs and shoulders. 25 The Applicant described his job at Morisset Hospital as requiring him to stand up, walk, run, clean and wash up. He stated that in August 1995, he was working at the Morisset Hospital in a position that originally employed four (4) staff and as a result of cost cutting, he was then performing the position on his own. He said that he had not had time off because of his left leg condition except for two (2) sick days soon after the surgery in 1986. He said that he had had no problem with his leg in performing his duties at Morisset Hospital or in the restaurant where he worked on Friday and Saturday nights and on occasions during the evening on weeknights. 26 The Tribunal observed Mr Peck to be of strong and robust physical stature. He appeared to walk freely and without a pronounced limp. He did not have a gait. He demonstrated to the Tribunal that he could squat fully on his right knee but when squatting on his left knee, his left knee would not flex beyond a 90 degree angle. 27 Dr Mahadev stated that he tested Mr Peck against the criteria for the job requirements of the position of a correctional officer. He did not have regard to the specific job description for the position of Overseer Caterer. In considering Mr Peck's fitness for the position of a correctional officer, Dr Mahadev stated that he considered the position involved a high level of physical and mental fitness in order to maintain supervision and containment and the welfare of inmates under the care of the prison officer. He stated that in relation to the limited ability of Mr Peck to squat, he considered Mr Peck has a disability of the left knee with degenerative changes and the left knee joint is a critical joint and that Mr Peck would be at risk working in a hostile environment as a Chef, where Mr Peck would be responsible to safe-guard other persons working in the kitchen. He said that if Mr Peck had an injury involving the left knee, it would be more severe than an injury suffered by an average person. He said that he was afraid for Mr Peck, especially if somebody "clobbered his leg with something". 28 Dr Mahadev also said that he was concerned that Mr Peck, if he were running across a paddock, might fall in a hole and he would be injured. He said that he considered Mr Peck more at risk than the average person. He stated that his loss of 40 degree movement of the left knee made Mr Peck less agile and that Mr Peck needed agility to adequately perform the position. 29 Dr Mahadev agreed that his initial concerns that there would be further degenerative change in Mr Peck's left knee, have not been realised. This was established by a later report from Dr Goldie who, after studying statements of Dr Mahadev and Dr Gapper, which were supplied to him by the legal representatives of Mr Peck, Dr Goldie reported on 12 April 2000, that his findings in November 1995 were unchanged and "there is nothing to suggest that there has been any deterioration in his condition since that time. He presents as a physically fit man and his major problem is lack of agility." In that report, Dr Goldie continued, "Concern has been expressed that an opinion by Dr Laird which suggests that he might need a left knee replacement in the future. The present findings, which suggest that the likelihood of this being advised is very remote, and it may never be advised. I would not regard that prospect as being any reason to assess him as suffering from a prospective major impairment." Dr Goldie concludes, "I have read the description of the duties of the position for which he applied. I would not consider him significantly vulnerable to any serious risk in a threatening situation." Dr Mahadev stated that having read the reports of Dr Goldie in November 1995 and April 2000, he did not consider that Dr Goldie's opinions influenced him to change his opinion that Mr Peck was unfit to perform the role of a correctional officer. 30 On the question of Mr Peck's limited agility, Dr Mahadev, when asked to comment on whether Mr Peck when compared to a person who would pass the fitness test, could climb a back yard fence or a wall up to a height of five (5) feet, stated that Mr Peck would be less able to perform such tasks quickly compared to a person with no problem with his knee. He stated that Mr Peck would take some time to climb a wall as his knee flexion was limited. Dr Mahadev also stated that he would not recommend a person with Mr Peck's condition, to undertake pivoting activities or high impact activities or twisting and turning while weight bearing, such as in confrontation. Dr Mahadev considered that if Mr Peck was presented with an inmate who was behaving in a violent and aggressive manner, Mr Peck might have to take evasive action which might involve crawling or kneeling or squatting postures to evade the prisoner, and that Mr Peck's lack of agility would make him vulnerable in those circumstances. 31 Evidence was presented to the Tribunal from two senior officers of the Respondent. The Commander of the Security Investigation Branch which supervises inmates in prisons stated that he considered that the need for persons employed in positions of Overseer needed to be able to carry out the full range of duties of a correctional officer. He considered that the ability to carry out correctional duties was a primary and essential part of the role of an Overseer. This witness had previously been the Governor of St. Heliers Correctional Centre. He said the second responsibility of the Overseer Catering role is the performance of the vocational trade that is assigned to that position. He stated that the environment of the prison kitchen is an environment "with inmates where there are knives and other tools and equipment that could be used as weapons and tools of escape and that the Overseer in the kitchen has to be as vigilant and some times more vigilant as a correctional officer per se working on a security post in the centre.". He said that all positions, whether as Overseer or correctional officer, must be able to respond and carry out the duties of a correctional officer when deemed necessary and that is the reason why in the job description for the Overseer Caterer there is a requirement that the officer perform other duties as directed by the Governor and Deputy Governor. 32 This witness described the St. Heliers Correctional Centre as a minimum security prison, which in 1995 catered for all classifications of minimum security prisoners. He stated that an Overseer is called on a regular basis to conduct escorts to Hospitals and to conduct inner jail escorts when in times of shortages of prison officers there is a need to transfer prisoners who are unruly to a maximum security institution. He also said that there are occasions when, at a minimum security institution, there is a need to chase inmates. He agreed that there is no standard for correctional officers to test their ability to run. He also stated that when a correctional officer is injured and returns to duty, the officer is not submitted to a HealthQuest examination before returning to duty nor is there testing of the fitness of correctional officers after serving for long periods of time. The only fitness test imposed during service is for correctional officers who wish to join a specialised unit. The witness agreed that once the initial HealthQuest medical assessment is met on employment, a correctional officer is not required to undergo any further medical assessment as to fitness to perform the duties of a correctional officer. 33 The other departmental witness was a Senior Assistant Superintendent who has worked at 14 different locations including St. Heliers Correctional Centre. He worked at that Centre in 1995 and 1996. This witness had performed the duties of a kitchen Overseer in a situation where he managed 28 inmates within that work environment. He confirmed the evidence of the previous witness that the role of an overseer had a primary responsibility as a correctional officer, whose main objective is to maintain security and safety. At another correctional centre where he was the kitchen overseer, the kitchen was closed for almost a week during a riotous occasion. At a minimum security centre such as St. Heliers, there are 8 staff on duty to manage 260 prisoners, it is likely that an Overseer Caterer would be asked to perform other custodial duties. At the St. Heliers Centre there would be 8-12 inmates working within the kitchen and they would prepare lunches and evening meals. The Overseer Caterer would be on duty to supervise the work of the inmates in the kitchen. This officer explained that if an emergency situation arose at the Centre there might be a need to utilise the services of the Overseer Caterer, in which event the kitchen would be closed down. There are normally 8 correctional officers on duty at the St. Heliers Centre and the Overseer Caterer would only be called on to perform correctional duties outside the kitchen in emergency situations. During the first twelve months probationary period of an overseer, to complete the training of the overseer, he could be called on to assist in more routine searches and other routine correctional duties at the Centre. Because of the two shifts that are worked in the Centre's kitchen, there would be at least a period of two and a half hours in the morning and a similar period in the afternoon when there would be no other staff in the kitchen with the Overseer Caterer. The officer also stated that in his opinion there was no difference in terms of the supervision and control of inmates in the kitchen of the Centre or in a wing or in the yards of the Centre. The need for supervision and vigilance is the same in the kitchen as it is in the other parts of the Centre. The witness summed up his view of the position of Overseer Caterer by describing it as a correctional officer in a defined risk area and rather than being rotated every day to a different place at the Centre, the role is within the kitchen and in performing that role the Overseer Caterer is performing a security job. 34 The Senior Assistant Superintendent stated that there was no fixed retirement age for correctional officers and that he has a number of staff who are over 50 years of age whose knowledge and experience is invaluable. He stated that their management skills and experience counterbalances their diminished physical prowess. He stated that he would not back a more mature aged officer against a young inmate in a hundred yard sprint during a chase. He stated that in chasing prisoners an officer is expected to be realistic so that if you haven't caught them in the first 50 or 60 yards you are not likely to catch the absconder. He stated the experienced aged officer would be likely to thwart an escape and so avoid the need to chase the absconder. 35 The consideration of the duties of the position of Overseer Caterer and Mr Peck's ability to fulfil those duties is an issue, which will be dealt with later in this decision. Claims of the Applicant 36 The claims of the Applicant can be reduced to the following propositions: · The Respondent discriminated against the Applicant, on the ground of the Applicant's disability, by treating the Applicant less favourably than it would have treated a person who did not have a disability who applied to be appointed as an Overseer Caterer in circumstances that were similar to the circumstances of the Applicant. The claim is one of direct discrimination under section 49B(1)(a) of the Anti-Discrimination Act 1997 (the Act). · The discrimination was unlawful and was in breach of section 49D(1)(b) of the Act, in that the Respondent being an employer discriminated against the Applicant on the ground of his disability in determining who should be offered employment. · The Respondent, in seeking to establish that the discrimination of the Applicant was not unlawful, has failed to establish under section 49D(4) of the Act, that after taking into account the matters specified in that sub-section, the Respondent because of his disability, would be unable to carry out the inherent requirements of the position of Overseer Caterer at the St. Heliers Correctional Centre or would in order to carry out those requirements have required services or facilities which could only be provided by the Respondent in terms that would impose unjustifiable hardship on the Respondent. 37 The Respondent has formally admitted the following matters which assist in consideration of the claim: · At all material times the Applicant had a disability as defined in the Act; · That at all the material times the Respondent was an employer within the meaning of the Act and in particular within section 4B of the Act. 38 In addition, the Respondent did not present evidence to the Tribunal, nor did the Respondent submit that it was part of its defence, that section 49D(4)(b) applied in relation to the employment of the Respondent that is, that the Respondent would require services or facilities in order to be employed which are not required by persons employed by the Respondent who do not have a disability; or that the provision of such services or facilities would impose unjustifiable hardship on the Respondent. It should be added, that the Applicant also did not in the presentation of its case, suggest that sub-section (b) of section 49 D(4) was applicable to the Applicant's circumstances. 39 This is not a case that requires a determination by the Tribunal of the conflicting medical opinions concerning the fitness of the Applicant to perform the position of Overseer Caterer at the St. Heliers Correctional Centre. Clause 1 of Regulation 7 of the Public Sector Management (General) Regulation 1988 provides that a person may not be appointed to an officer's position before the person's fitness to carry out the duties of the position has been confirmed by a health assessment. It was not suggested that the Department of Corrective Services is not bound to observe that regulation. Rather, it is submitted by the Applicant, that the consideration of a health assessment in accordance with Clause 1 of Regulation 7 is but one facet in the consideration that must be made by the Department Head in considering under section 26(1) of the Public Sector Management Act 1988, whether to make an appointment at officer level in the New South Wales Public Service. 40 It is submitted by the Applicant that Clause 7 of the 1988 Regulation operates concurrently with the provisions of the Act and in particular with section 49D(1)(b) of the Act so that the head of the Department of Corrective Services is obliged to consider the assessment by HealthQuest that Mr Peck was unfit for the position as only one of the factors to be taken into account in making an appointment under section 26(1) of the Public Sector Management Act 1988. This proposition is extended to oblige the head of the Department of Corrective Services to have regard to the requirements of the Act, and to refrain from discrimination on the ground of disability and in that respect the circumstances relating to Mr Peck would oblige the head of the Department to have appointed Mr Peck to the position. 41 The issues arising from the propositions of the Applicant were dealt with at length by the Appeal Panel of the Tribunal in the Maxwell case, the circumstances of which were not, in material respects dissimilar to the circumstances before this Tribunal. The Appeal Panel determined at paragraph 58: "In our opinion the Commissioner, and any other Department Head, has an obligation to comply with section 41D(1)(b) and other relevant parts of the Act when making employment decisions, including exercising the power to make recommendations to the Governor pursuant to section 26 of the Public Sector Management Act 1988. Our principal reason for reaching this conclusion is that it is apparent from the terms of the relevant legislation that it was the intention of parliament that the Department Heads, like all other employers in New South Wales (except those expressly excluded), should not discriminate against people on the ground of disability when making decisions about who should be offered employment." 42 The effect on public sector employers, of the decision in Maxwell, is stated clearly in paragraph 64 of that decision: "64. When determining whether an Applicant for a position is fit to perform the duties of that position, a department head, like all other employers, is permitted to discriminate on the ground of disability if the Applicant is unable to perform the inherent requirements of the job (see section 49D(4). Thus public sector employers, like private sector employers, are subject to the device chosen by the legislature to balance the desire of an employer to engage employees who are capable of performing the job, with the right of people with a disability to secure employment. Any action taken by a Department Head pursuant to his or her powers in clause 6 of the 1966 regulations must be directed and performed in accordance with laws of general application, including those governing discrimination on the ground of disability." 43 Were it not for the defences raised by the Respondent, the Tribunal would apply the Maxwell decision to the circumstances of Mr Peck's complaint. The propositions raised by the Respondent in this inquiry require the Tribunal to re-examine a number of the issues considered and dealt with in the Maxwell decision. 44 Before dealing with these defences, it is necessary to set out the terms of the relevant provisions that apply in considering Mr Peck's complaint. Relevant Statutory Provisions Affecting the Complaint Anti-Discrimination Act, 1977 49B What constitutes discrimination on the ground of disability: "1. A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 or who does not have such a relative or associate who has that disability, or….." 49D Discrimination against Applicants and employees "(1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) … (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." 45 Section 54 of the Act provides: Acts Done Under Statutory Authority 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, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act; Section 26(1) Public Sector Management Act 1988 "(1) A Department Head shall, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, have regard to: (a) the nature of the duties of the position, and (b) the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties." Section 7 Public Sector Management (General) Regulation 1988 "7. Pre-placement health assessments 1. A person may not be appointed to an officer's position before his or her fitness to carry out the duties of the position has been confirmed by a health assessment. 2. The health assessment is to be in the form considered necessary by the appropriate Department Head. This may include (but not limited to) anyone or more of the following: (a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make him or her unfit to carry out the duties of the position; (b) a medical examination by a medical practitioner approved by the Department Head; (c) an examination by a medical practitioner, an optometrist or other appropriately qualified health care professional, approved by the Department Head, of a particular aspect of the person's health likely to detrimentally affect his or her capacity to carry out the duties of the position." The Defences Raised by the Respondent 46 The Respondent's propositions can be divided into two groups: 1. The proposition that in two respects the decision in Maxwell should not be followed by the Tribunal. These two aspects are: (a) that Regulation 7 of 1988 Regulations does not operate concurrently with the provisions of the Act. Regulation 7 should be considered a pre-condition to eligibility for appointment as an officer in the public service and applying the reasoning adopted by Lee J in Kit v Tourism Commission (1987)11NSWLR686, a decision by a Department Head not to appoint a person to a permanent position in the New South Wales Public Service, because that person had failed the medical examination required by section 66 of the Public Service Act 1979 , could not constitute unlawful discrimination on the ground of physical impairment; (b) That the decision of the Appeal Panel in Maxwell, that section 54 (1)(b) of the Act, did not exclude the actions of the Department Head from the operation of the Act, should not be followed by this Tribunal. 2. Alternatively to the propositions in 1 above, if it is necessary for the Tribunal to consider the application of section 49D(4) of the Act to this complaint, the Applicant was unable to carry out the inherent requirements of the position for which he applied to the Respondent and in considering the inherent requirements of the position it was relevant for the Tribunal to determine that it was an inherent requirement for the position that Mr Peck be a person whose fitness to carry out the duties of the position had been confirmed by a health assessment made pursuant to Clause 7 of the 1988 Regulations. 47 Each part of the first proposition, if accepted by the Tribunal, would require the Tribunal to depart from the decision on those issues made by the Appeal Panel in Maxwell. 48 The second proposition was one left open by the decision in Maxwell. It appears that this issue was not argued in Maxwell. The Appeal Panel in commenting that the argument was available to the Respondent, stated: "This was the proper route open to the Commissioner in this case, rather than to argue that he was not amenable to section 49D(1)(b) of the Act because of the requirements of clause 6 of the 1996 Regulation." The Examination of the Defences Raised by the Respondent 49 The first proposition of the Respondent requires the Tribunal to determine that Regulation 7 has the same force and effect as section 66 of the Public Service Act 1979 and that the decision in Kit which held that the requirement of section 66 was a precondition to the appointment of a person to the Public Service, should be followed by this Tribunal, in preference to the decision of the Appeal Panel in Maxwell which held that Regulation 6 of the Public Sector Management (General) Regulation 1996 did not operate as a pre-condition to an appointment and that regulation would operate, and should be applied consistently, with the provisions of the Act to oblige the Commissioner when making an appointment under the Public Sector Management Act 1988 to have regard to the requirements of section 49B and section 49D(1)(b) of the Act. 50 Consideration by the Tribunal of the proposition by the Respondent in this complaint required the Tribunal to review the decision of the Appeal Panel in Maxwell. That decision is a comprehensive decision which reviews the history of the public service legislation in New South Wales so far as it affects appointments to the Public Service in this State and the manner in which the anti-discrimination legislation operates to oblige a Department Head in the Public Service to have regard to that legislation in making an appointment to the Public Service. 51 The decision in Maxwell traces the development in the public sector legislation from the provisions of section 66 of the Public Service Act 1979 and Regulation 6 of the 1996 Regulations made under Public Sector Management Act 1988 (the latter clause being in similar but not identical terms to Clause 7 of the 1988 Regulations under the Public Sector Management Act 1988). 52 Section 26(1) of the Public Sector Management Act 1988 is broader in its requirements for determining the merit of an Applicant for appointment to the Public Service, than the provision of section 66 of the Public Service Act 1979, which was the subject of the decision in Kit. Section 66 provided that: "a person is not eligible for permanent appointment to the Public Service unless he satisfies a medical examination as to his health, as provided by the regulations." 53 Lee J found in Kit that the reason why section 66 would operate to exclude from admission to the Public Service an Applicant who failed to pass the examination required by the Section, irrespective of section 49Q of the Anti-Discrimination Act , is that section 66 is a special provision applying to all applicants for permanent appointment in the Public Service, "and the provisions of the Anti-Discrimination Act cannot override it so as to render it nugatory." If the two Acts are inconsistent in their provisions as to their appointment to positions in the Public Service then the maximum "generalia specialibus non derogant" would apply to preserve the operation of section 66. But I do not think that there is inconsistency. Whilst ever the Plaintiff could not show that he had become eligible for appointment pursuant to section 66, he could not be appointed to a permanent position because the Section states that he could not." 54 This provision can be contrasted with the section 26(1) of the Public Sector Management Act 1988 which requires the Department Head in determining the merit of the person eligible for appointment, to have regard to a number of factors, of which "the abilities" of the person is only one. It is clear that in determining the factor referred to as "abilities" that the Department Head is obliged by Clause 7 of the 1988 Regulations, made pursuant to the Public Sector Management Act 1988 , to obtain a pre-placement health assessment of the Applicant. It is in that context of the legislative scheme that under sub-paragraph 1 of Clause 7 of the Regulation the Applicant may not be appointed to an officer's position before the person's fitness to carry out the duties of the position has been confirmed by a health assessment. 55 In Maxwell, the Appeal Panel held that notwithstanding the obligatory terms of sub-paragraph 1 of clause 6 of the 1996 regulation, the Department Head was obliged, in an appropriate case, to override the stringency of that sub-paragraph where it was necessary to apply a provision of the Act, to prevent the Applicant from being unlawfully discriminated against, where otherwise, the Department Head would apply an adverse pre-placement health assessment of the Applicant and determine that the Applicant was unable to be appointed to the position in the Public Service to which the Applicant had applied. The Appeal Panel in Maxwell considered the regulation making power provided in the Public Sector Management Act 1988 and stated: "The Public Sector Management Act 1988 says nothing about pre-appointment medical examinations, except for the reference in section 102(2)(a) to the fact that the regulations may make provision for 'the medical examination and standards of medical fitness for the appointment of persons to positions in the Public Service.' That regulation making power must be read subject to section 102(4), which stipulates that 'the Regulations are not capable of altering or affecting any duty that is required to be performed by or under any Act." 56 The Appeal Panel came to the following conclusion: "Having considered, at some length, the scheme set out in the relevant public service legislation and in the disability discrimination provisions of the Act, it is necessary to determine how they interact. In our opinion, the Commissioner, and any other Department Head, had an obligation to comply with section 49D(1)(b), and the other relevant parts of the Act, when making employment decisions, including exercising the power to make recommendations to the Governor pursuant to section 26 of the Public Sector Management Act 1988 …….. The result in this case is different to that in Kit because the two legislative schemes changed markedly since 1987." 57 The decision in Maxwell then proceeds to state a number of reasons which support its conclusion that the Commissioner is obliged to comply with section 49D(1)(b) of the Act. Included amongst these reasons is the following: "Clause 6 of the 1966 Regulation effectively renders the Department Head the ultimate decision maker, subject to the Governor's power of appointment in section 25 of the Public Sector Management Act 1988 concerning a person's fitness to perform the functions of the position for which he or she is an Applicant. A natural reading of Clause 6 supports this conclusion. It is further supported by section 102(4) of the Public Sector Management Act which provides that the Regulations made pursuant to that Act are not capable of altering or affecting any duty that is required to be performed by or under any Act. Section 49D(1)(b) imposes a duty on all employers in New South Wales, other than those expressly excluded by section 49D(3), or excluded pursuant to sections 54, 55 or 56, not to discriminate on the ground of disability when making hiring decisions ……… In this instance there is no express exclusion of the duty cast upon employers by section 49D(1)(b) of the Act and, for the reasons we have given, it is not possible to imply that a Department Head should be free of the duty cast upon all other employers. When determining whether an Applicant for a position is fit to perform the duties of that position, a Department Head, like all other employers, is permitted to discriminate on the ground of disability if the Applicant is unable to perform the inherent requirements of the job (See section 49D(4)). Thus public sector employers, like private sector employers, are subject to the device chosen by the legislature to balance the desire of an employer to engage employees who are capable of performing the job, with the right of people with a disability to secure employment. Any action taken by a Department Head pursuant to his or her powers in Clause 6 of the 1996 Regulation must be directed and performed in accordance with laws of general application, including those governing discrimination on the grounds of disability." 58 The decision in Maxwell proceeded to examine six reasons why, in the view of the Appeal Panel, the proposition which was put to this Tribunal by counsel for the Respondent, should not be upheld. It is the view of this Tribunal that for the reasons expressed by the Appeal Panel in Maxwell, the operation of Regulation 7 of the 1998 Regulations in the context of section 26(1) of the Public Sector Management Act cannot be equated to the effect and operation of section 66 of the earlier Act. It is the view of this Tribunal that the decision of Maxwell, with respect to the Appeal Panel, is correct and that Regulation 7 and section 26(1) of the Public Sector Management Act 1988 operate in conjunction with the provisions of the Act, to oblige the commissioner, and other Department Heads, to give effect to the anti-discrimination provisions of the Act in determining the merits of an applicant for a position in the Public Service. 59 Secondly, the Respondent submits that Clause 7 of the 1998 Regulations (Regulation 7) is by virtue of its terms, mandatory. If considered in isolation, it requires the Commissioner and other Department Heads, to obtain confirmation of an applicant's fitness to carry out the duties of the position of an officer in the Public Service, in order to appoint the person to the position. Confirmation is to be determined by a health assessment which, under sub-clause 2 of Regulation 7, is to be in the form considered necessary by the Department Head. As in this case, the health assessment usually takes the form of an assessment by a medical officer of HealthQuest following receipt of a form "The Request for Services" which describes the name of the position. In this case the position applied for by Mr Peck was described on the Request for Services form as "Correctional Officer". Dr Mahadev carried out the health assessment of Mr Peck for the position of correctional officer. Dr Mahadev stated that at the time of his examination he was not supplied with a statement of duties for the position, described on the statement of duties as "Overseer Catering". Dr Mahadev proceeded to examine Mr Peck for fitness to carry out the duties of a correctional officer and he reported his findings, based on his knowledge and experience of prison officer requirements. 60 The Respondent submitted that the requirements of Regulation 7 imposed on the Commissioner an obligation to be satisfied as to the fitness of the Applicant by obtaining a health assessment, rendered lawful the conduct of the Commissioner, in accepting or refusing to appoint a person to a position in the public service to which section 26(1) of the Public Sector Management Act 1988 applied, where by the application of the Act, that conduct would constitute unlawful discrimination of the Applicant. 61 This result followed, according to the Respondent, by the application of section 54(1)(b) of the Act, which renders lawful the actions of the Commissioner in relying on the assessment of HealthQuest that Mr Peck was unfit to carry out the duties of a correctional officer. Compliance with the requirements of Regulation 7, was a necessary requirement imposed on the Commissioner in order to qualify Mr Peck for the appointment to the position of Overseer Catering. 62 Under section 109 of the Act, the Respondent bears the onus of establishing that the conduct of the Respondent falls within section 54(1). 63 In Maxwell, the Appeal Panel considered and rejected a similar submission by the Respondent. 64 The Appeal Panel gave two reasons for its view, that subsection (b) of section 54(1) of the Act, in its application to Regulation 6 of the 1966 Regulations and to the Public Sector Management Act 1988, did not operate to render the discriminatory conduct of the Commissioner, lawful. 65 The first reason of the Appeal Panel, applied the views expressed by Mason CJ and Gaudron J (Deane J agreeing) in Waters v Public Transport Corporation (1991)173CLR349, to the effect that exclusion provisions such as section 54(1), when considered in its context in the Act, should be given a narrow rather than a wide construction. At page 369, their Honours said: "On the other hand, and depending upon context, a reference to what is necessary to comply with 'a provision of … in the other Act' can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision. … If the relevant words fall to be construed in isolation we would favour the wide construction of them. When par. (e)(ii) is construed in its context in the Act, however, it appears to us that the narrow construction is the preferable one." 66 The Appeal Panel, applying a narrow construction to section 54 (b), proceeded to hold that as the Commissioner had been found to be obliged to comply with section 49(D)(1)(b) of the Act, in exercising his power of making an appointment under section 26(1) of the Public Sector Management Act 1988 the Commissioner was not obliged, to comply with the requirements of the 1996 Regulations . 67 In its second reason, the Appeal Panel found that the Commissioner was obliged to comply with section 54D(4) of the Act in making an appointment pursuant to section 26(1) of the Public Sector Management Act 1988. Section 54D(4) required the Commissioner to determine whether the Applicant for the position was fit to carry out the duties of the position, after stipulating the inherent requirements of the position and considering a health assessment under Regulation 6 and considering the other relevant matters specified in section 54(D)(4) of the Act. 81. "The determination which the Commissioner was required to make concerning compliance with Clause 6 of the1966 Regulation and laws of general application such as section 49(D)(1)(b) of the Act was far more elaborate than his pass/fail response to the HealthQuest examination. 82. As the Commissioner, in this case, did not exercise his powers and obligations under the relevant public service legislation according to the law, it was not open to him to argue that his actions were excluded from the operation of the Act by reason of the operation of section 54. It was only open to the Commissioner to argue that his actions fell within section 54 when it was necessary for him to act as he did in order to comply with the specific requirements of another Act, or piece of delegated legislation, and he did in fact act in accordance with that other statutory requirement." 68 The Appeal Panel placed the exemption in section 54(1)(b) in a context which required the actions necessary to comply with other statutory provisions, to be considered as part of the obligations of the Commissioner to comply with the specific requirements of section 26(1) of the Public Sector Management Act, and not, as contended by the Respondent, to be construed and applied in isolation without reference to the broader obligations. 69 It is not clear to the Tribunal that the interpretation and application of the judgments of the members of the High Court in the Waters case can be given the narrow construction applied by the Appeal Panel to the application of section 54(1)(b) to Regulation 6, or to Regulation 7 of the 1988 Regulations in the context of the requirements of the Public Sector Management Act 1988 for the appointment of an Applicant to a position under that section. The approach of the Appeal Panel leaves little or no scope for the operation of section 54(1)(b) in its application to Regulation 6 or Regulation 7. The extract of the judgments of Mason CJ and Gaudron J relied on by the Appeal Panel, draws a distinction between an act necessarily done in order to comply with a specific statutory requirement, on the one hand, and an act done to comply with a direction made by a Minister in the exercise of a discretion pursuant to a statutory power. The judgment was directed at the latter situation as one, which did not come within the exemption from anti-discrimination legislation provided by provisions such as section 54(1)(b) of the Act. 70 In the view of the Tribunal, it does not follow that the narrow construction adopted by the Appeal Panel in Maxwell for consideration of the application of section 54(1)(b) has the effect of excluding the application of the exemption granted by that provision. A reading of the full text of the judgments of the Justices of the High Court in Waters, does not necessarily support the view that section 54(1)(b) would not apply to exempt from the operation of section 49D(1)(b) of the Act, the non-selection by the Commissioner of a person who, by reason of the application of the specific requirements of Regulation 7 failed to satisfy a specific fitness test. The specific requirement of Regulation 7 in the context of the application of the decision of the High Court in Waters, can be contrasted with the ratio of that decision, that the exemption in that case did not apply to an act done to comply with a direction made in the exercise of a ministerial discretion. 71 A justification for this distinction is found in the following passage in the decision of McHugh J in Waters: "In other words, the corporation contended that, since section 39(e)(ii) took an act outside the operation of the Act if it was necessarily done in order to comply with the provisions of another Act, nothing in the Act made the direction of the minister unlawful. This argument is not without force. But in the end the question is whether, in enacting section 31(1) Parliament intended that the Minister could give directions, which had the effect of converting an otherwise unlawful act of the corporation, into a lawful act. Now, as I have said, it is axiomatic that, in conferring a power such as section 31, Parliament does not intend to authorise the giving of directions to perform acts which are unlawful. It is but a short step to infer that in the absence of plain intention, Parliament, in conferring such a power, does not intend the recipient of the power to authorise acts which, but for the directions, would be unlawful. And in the absence of a contrary legislative indication, it is an inference which could be drawn. Consequently, in my opinion, Parliament cannot be taken to have authorised the Minister to give directions to the Corporation to perform acts which but for the directions would be a breach of the Act. The present case is altogether different from one where the Minister has a statutory duty to give the direction .[emphasis added] 72 For reasons of comity, it is appropriate that this Tribunal follows the decision of the Appeal Panel in Maxwell on this aspect of the application of section 54(1)(b) of the Act in its examination of the complaint of Mr Peck. In so doing, the Tribunal has some hesitation, in not applying the exemption provided in that sub-section to the operations of Regulation 7 of the 1988 Regulations. It seems to the Tribunal that the approach taken by the Appeal Panel leaves little scope for the application of section 54(1) of the Act to exempt from the operation of the Act, acts done under specific statutory authority. 73 There is one other approach to this aspect of the complaint, which gives weight to the conclusion that it is not appropriate to apply section 54(1)(b) of the Act, to exempt the actions of the Commissioner from the operation of the Act. 74 Regulation 7, which gives rise to the exemption, is made pursuant to the regulation making power in section 102 of the Public Sector Management Act 1988. Section 102(2)(a) provides that regulations may be made for the medical examination and the standard of medical fitness for the appointment of persons to positions in the Public Service. That power is subject to section 102(4) of the Public Sector Management Act 1988 which provides: "The regulations are not capable of altering or affecting any duty that is required to be performed by or under any Act ."[emphasis added] 75 In dealing with the first submission of the Respondent in this inquiry, the Tribunal has found that the Commissioner was obliged by the application of section 26(1) of the Public Sector Management Act 1988 to ensure that in making an appointment to a position in the Public Service, the Commissioner did not unlawfully discriminate against the Applicant in breach of the Act. This duty to avoid discrimination, is a duty required to be performed under the Act, and by reason of the application of section 102(4) of the Public Sector Management Act 1988 , Regulation 7 cannot alter or affect that duty. In other words, the operation of Regulation 7 is subservient to the overriding obligation of the Commissioner not to exercise his powers under section 26(1) of the Public Sector Management Act in a manner which would unlawfully discriminate against an Applicant, in breach of the Act. When considered in this manner, Regulation 7 by virtue of the limitation imposed by section 102(4) of the Public Sector Management Act, 1988 , must be read down so that its requirements cannot operate as an act done to comply with the regulation unless the requirement of the regulation is qualified so that the act itself conforms with the requirements of the Act. 76 It is the view of the Tribunal that this is the more appropriate reason for holding that section 54 (1)(b) of the Act has no application to the requirement of Regulation 7, as that regulation must be qualified to conform to the overiding requirements of the Act under which the Commissioner is obliged to observe the provisions of the Act when making an appointment to a position in the Department of Corrective Services. Application of Section 49D(4) of the Act 77 Ms Anderson, Counsel for the Respondent, conceded, in her submissions to the Tribunal, that subject to the three propositions concerning the application of the Act to the circumstances of the non-appointment of the Applicant to the position, in the terms of section 49B(1)(a) of the Act, the Respondent had discriminated against the Applicant as it treated him less favourably than it would have treated a person in the same circumstances, who was not disabled. The Tribunal has decided that it does not accept the first two propositions advanced by Ms Anderson. It becomes necessary to consider the third of Ms Anderson's propositions, which relates to the manner in which Regulation 7 and section 49D(4) of the Act, inter-relate. 78 The Respondent asserts that the inability of the Applicant to satisfy a health assessment of his fitness for the position, as prescribed by Regulation 7(1), constitutes an inability to carry out the inherent requirements of the position and, in accordance with section 49D(4) of the Act, the discrimination of the Applicant by the Respondent is not rendered unlawful under section 49D(1)(b) of the Act. 79 In the Maxwell decision, the Appeal Panel, as noted earlier, stated that it was open to the Commissioner to argue that Mr Maxwell's failure to satisfy the pre-appointment health assessment required by Clause 6 of the 1996 Regulation, constituted an incapacity on Mr Maxwell's part to perform the inherent requirements of the position for which he had applied (para 72). 80 The Appeal Panel in the Maxwell decision dealt at length with the inherent requirement exception in section 49D(4) of the Act. The Tribunal would summarise the relevant aspects of the section arising from the statements by the Appeal Panel, as follows: (1) It is a matter for the Tribunal to determine what were the inherent requirements of the position; (2) The Tribunal is required to assess the inherent requirements of the position by an objective examination. This includes giving "appropriate recognition to the business judgment of the employer in organising its undertaking and regarding this or that requirement as essential to the particular employment" [per McHugh J in X v Commonwealth of Australia (2000)74ALJR176 at 182]. (3) "The reference to 'inherent' requirements invites attention to what are the characteristics or essential requirements of the employment opposed to those requirements that might be described as peripheral." [per Gummow and Hayne JJ in X's case at page 193]. (4) Having identified the inherent requirements of the position it is then necessary for the Tribunal to determine whether, because of his disability, the Applicant was unable to perform those inherent requirements (per Maxwell para 97). (5) In determining the ability of the Applicant to perform the inherent requirements, section 49D(4) of the Act stipulates the Tribunal take into account the Applicant's "past training, qualifications and experience relevant to the particular employment .. and all other relevant factors that it is reasonable to take into account." (6) "The search [for the elements to be taken into account under section 54D(4)] is for a causal relationship between disability and being unable to carry out the inherent requirements of the employment. Secondly, the provision applies only if the person would be unable to carry out those requirements. No doubt inability must be assessed in a practical way but it is inability, not difficulty that must be demonstrated …." [per Gummow and Hayne JJ in X's case at 191-192]. (7) Regard is to be made to the remarks of McHugh J in X's case [at page 185], "in determining whether a person with a disability is able to carry out the inherent requirements of a particular employment, regard can be had to the health and safety of co-employees and others." At page 185 McHugh J also stated that: "The degree of risk is relevant in determining whether X is able to carry out an inherent requirement of the employment, namely, the requirement not to expose others to a real risk of harm to their health or safety." In considering how this assessment of risk should be undertaken, Gummow and Hayne JJ in X's case [at page 194] said: "As we have said, inability to perform must be assessed practically. In particular we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment …. Much would turn on the nature and size of the risks that are said to arise." 81 The Tribunal has taken into account each of these factors in making its assessment of the ability of Mr Peck to perform the position of Overseer Caterer in accordance with the statement of duties prescribed by the Respondent. 82 The statement of duties, when considered in isolation from other evidence, does not emphasis the correctional officer responsibilities of the position. The emphasis in the statement of duties is on those functions that relate to carrying out the duties of an Overseer in the jail kitchen. In relation to those duties, reference is made to the Overseer's responsibility to the Senior Overseer, for the security of all plant and equipment in the kitchen "paying particular attention to kitchen knives and small plant that can be used as weapons and/or instruments for escape or assaults on officers and other prisoners." Under the heading "The Overseer Caterer will also perform the following", the statement of duties refers to the Overseer Caterer participating in the management of inmates within the area and the supervision and control of inmate movements and activity within and outside the correctional centre and refers to the maintenance of the safe and secure management of inmates and concludes "other duties as directed by the Governor and/or Deputy Governor". 83 The form "Request for Service" sent to HealthQuest by the Respondent described the position as "correctional officer" and in the form completed by the Applicant for the purposes of the examination by HealthQuest, he described the position as "prison officer". When Dr Mahadev examined the Applicant at HealthQuest he was not aware of the statement of duties and accordingly examined the Applicant and completed his report as to the Applicant's unfitness for the position of correctional officer. 84 This caused Dr Mahadev, in the view of the Tribunal, to give most emphasis in his examination to the ability of the Applicant at all times to perform duties appropriate to a correctional officer and the evidence of Dr Mahadev confirms that he took this approach. 85 The evidence of the two senior operational officers in the Department of Corrective Services, emphasised that the Overseer Caterer role had a primary responsibility for carrying out the duties of a correctional officer. It was acknowledged that these duties would on most occasions be those associated in the kitchen of the jail in carrying out the role of Overseer Caterer in the kitchen. On occasions, the Overseer Caterer would be required to act as a prison officer in overseeing prisoners within the jail complex or on escort duty of prisoners outside the complex. 86 The primary correctional officer role for the position would arise from the need in the kitchen at the jail to oversee the activities of prisoners working as kitchen assistants and to ensure that prisoners did not have unauthorised access to knives and other dangerous kitchen equipment. There would also be occasions when it may become necessary for the Overseer Caterer to exert physical control over prisoners in the unusual event prisoners in the kitchen became unruly or attempted to escape. The St. Heliers Correctional Centre is a low security jail which does not accommodate high risk prisoners, although the Overseer Caterer in an emergency might be called on to act as a correctional officer in the event of a riot or other serious disturbance at another jail complex. 87 In assessing the Applicant as unfit for the position, Dr Mahadev had special regard to the injuries suffered by the Applicant to his left leg, to the opinion of Dr Laird as to the prognosis for the Applicant's injuries, to his observation that the Applicant walked with a limp, had a 5cm shortening of the left leg, was not able to fully take up a squatting position because of the lack of full flexion in the left knee (this inability was demonstrated to the Tribunal by the Applicant during the inquiry) and his assessment that the Applicant was likely to suffer further degenerative adverse change to the use of his left leg. Dr Mahadev was particularly concerned that his opinion of the limitations of the Applicant arising from his residual limitations from his injuries, restricted the Applicant's agility such that, the Applicant would not in an emergency be able to fully and adequately deal with physical confrontations with prisoners nor would he be able in chasing an escape prisoner, to readily climb a fence or wall or run after and chase the escaping prisoner. Dr Mahadev was also of the opinion that the Applicant's lack of agility would make him a target by prisoners and that if the Applicant found himself in a position where he was attacked, he might be unable to adequately defend himself or other prisoners for whom he was responsible. 88 Dr Goldie on the other hand took a more favourable view of the Applicant's injuries and he considered that the Applicant was fit to perform the duties of a correctional officer. At the time when Dr Mahadev gave his certificate as to the unfitness of the Applicant, the Applicant had not been examined by Dr Goldie. Dr Mahadev however stated that having subsequently sighted Dr Goldie's opinion and having heard Dr Goldie's evidence before the Tribunal, he would not change his opinion that the Applicant was unfit for the position. 89 Ms Anderson's submission to the Tribunal required the Tribunal to regard the certificate of HealthQuest as to the unfitness of the Applicant, which had been supplied to the Commissioner, of such paramount importance in determining the inherent requirements of the position, the Commissioner was justified on receipt of the certificate of HealthQuest, to determine that the Applicant was unable to carry out the inherent requirements of the position. This argument is strengthened by the provision of Regulation 7 which in its terms makes it a pre-condition for appointment that a satisfactory certificate as to the fitness of the Applicant is obtained by the Commissioner. Although, as we have already determined, receipt of such a certificate is not sufficient in isolation to justify the Commissioner in rejecting the Applicant for the position, the Certificate must be given such weight in considering the inherent requirements for the position that it overrides any further elements in determining those inherent requirements. 90 The Tribunal accepts that it is an element in the consideration of the inherent requirements of the position that the pre-health assessment of the Applicant found that he was unfit for the position. The Tribunal however does not agree that the assessment alone is sufficient to determine the ability of Mr Peck to be able to carry out the inherent requirements of the position. It is one of the factors that should be taken into account. Although it is not appropriate that the Tribunal should substitute its view for the view of Dr Mahadev, as to the fitness of the Applicant for the position of correctional officer, the Tribunal has evidence before it that another experienced and well regarded senior medical specialist took a different view and considered that the Applicant was fit for the position. 91 The Tribunal has no hesitation in finding that fitness of the Applicant to carry out the duties of the position of Overseer Caterer is an essential requirement of the position. The fact that the health assessment made under Regulation 7 found that the Applicant was unfit for the position relates to the question whether the Applicant was able to meet the requirement for fitness. In the case of Mr Peck, however, there are serious differences of view on that issue between two senior medical officers. As the onus is on the Respondent to satisfy the Tribunal that the circumstances relating to Mr Peck justify the application of section 54D(4) to determine that the discrimination of Mr Peck was lawful, the Tribunal in the face of the differing medical opinions, is not satisfied that the Respondent has discharged the onus of demonstrating that Mr Peck was unable to meet this inherent requirement. 92 This opinion of the Tribunal is supported by its own observations of Mr Peck. He presented as a robust, physical person. He did not appear to walk with a pronounced limp and he stated that he did not have a limp. Dr Goldie said that he did not observe that Mr Peck limped. Mr Peck gave evidence that he maintained a high degree of physical fitness by working out at a gym several times each week and that he ran and walked to and from his work place each day. The lack of agility which was influential in Mr Mahadev's assessment of Mr Peck's unfitness for the position, was not likely in the view of the Tribunal, to be a practical hindrance to him in carrying out the responsibilities of a correctional officer when called upon to do so as part of his responsibilities as an Overseer Caterer. The evidence of Officers of the Department of Corrective Services illustrated that the concern of Dr Mahadev that Mr Peck would have difficulty in climbing walls and in chasing of escaped prisoners, was a difficulty that existed in common with other prison officers whose agility would be limited through age, or as one of the officers stated, even he, being a fit person, would have difficulty maintaining contact with an escaping prisoner. 93 As stated by Gummow and Hayne JJ in the X case, the Applicant is not to be tested against the difficulty in carrying out an inherent requirement of the position, but the test is whether he is unable to carry out that requirement. In the opinion of the Tribunal, the evidence is such that the Tribunal is satisfied that Mr Peck in November 1995 was able to carry out the inherent requirement of the position of a correctional officer fulfilling the role of Overseer Catering as specified in the statement of duties for that position. 94 In the view of the Tribunal, the Commissioner was not justified in relying solely on the certificate issued by HealthQuest that the pre-Health Assessment of Mr Peck found that he was unfit for the position. The Commissioner was required to consider the pre-health assessment made by HealthQuest in the context of the requirements of the Act, to ensure that in considering Mr Peck's application for employment, the Commissioner did not unlawfully discriminate against Mr Peck. This the Commissioner failed to do. He accepted the health certificate of HealthQuest, in isolation from the other factors which under the Act, especially section 49D(4)(a), he is required to consider before rejecting Mr Peck on the ground of his disability. 95 The fitness of an Applicant to carry out the duties of the position involving correctional officer duties, although an inherent requirement of the position of Overseer Caterer, is to be tested not solely on the certification by HealthQuest, but by taking into account that certificate in the context of the Applicant's ability, in a practical sense, to carry out those duties, albeit with a degree of difficulty. 96 The concerns of Dr Mahadev about Mr Peck's ability to carry out the correctional officer duties were based on his assessment of Mr Peck's inability to adequately protect himself and prisoners under his care in the kitchen in the event of an attack by prisoners and his concern for Mr Peck to properly carry out correctional officer duties outside the kitchen if he was required to supervise prisoners or if he was required to act in an emergency situation. At the time he formed that opinion, Dr Mahadev did not have the contrary opinion subsequently expressed by Dr Goldie. The Medical Appeal panel preferred the view of Dr Mahadev to that expressed by Dr Goldie when it disallowed Mr Peck's appeal against the health assessment made by Dr Mahadev. The Commissioner, on receipt of the decision of the Appeal Panel, according to the evidence, took no further step to contact Mr Peck. He allowed his earlier decision based on Dr Mahadev's certificate, to stand with the result that Mr Peck was not accepted for the position. 97 The Commissioner had two opportunities, in the view of the Tribunal, to consider Mr Peck's fitness for the position of Overseer Caterer in the context of his ability in a practical sense to carry out all the duties associated with the position. There is no evidence before the Tribunal as to what steps the Commissioner took in that regard. It is accepted by the Tribunal, based on the submissions that were made by the Respondent, that the Commissioner relied on the certificate of HealthQuest to reject Mr Peck for the position and on receipt of advice of confirmation of the HealthQuest certificate by the Medical Appeal Panel, the Commissioner took no further action in relation to Mr Peck's application. 98 In the view of the Tribunal, the Commissioner is not entitled, in these circumstances, to rely on section 49D(4)(a) of the Act to establish that Mr Peck was unable to carry out the inherent requirements of the position. In the view of the Tribunal the evidence relating to Mr Peck's disability does not render him unable to carry out the inherent requirement of the position, that he be fit, in a practical sense, to carry out those duties. 99 In view of this finding of the Tribunal, it is not appropriate to examine the further item of qualification under section 49D(4)(b) of the Act, to entitle the Respondent to establish that the discrimination of Mr Peck was not unlawful. There was no evidence before the Tribunal, nor did either of the parties submit to the Tribunal, that section 49D(4)(b) had an application to this complaint. Findings of the Tribunal 100 For the reasons expressed in this decision, the Tribunal has not accepted the three submissions by the Respondent, for rejecting the Applicant's complaint, as not substantiated. 101 It is the view of the Tribunal that the Commissioner of the Department of Corrective Services, the Respondent, unlawfully discriminated against the Applicant, Mr Peck, in November 1995 when in rejecting Mr Peck's application for the position of Overseer Caterer at the St. Heliers Correctional Centre, the Commissioner accepted the pre-employment health assessment made of Mr Peck by HealthQuest which certified that Mr Peck was unfit for the position of Overseer Caterer, without taking into account the factors relating to Mr Peck's medical condition, which, in the view of the Tribunal, would demonstrate that in a practical sense, Mr Peck was able to perform the duties of Overseer Caterer including the duties of a correctional officer which form part of the total duties of the position of Overseer Caterer. 102 By acting in this matter, the Commissioner treated the Applicant less favourably than in the same or similar circumstances, he would have treated an Applicant for that position who was not disabled. 103 In the view of the Tribunal, the discrimination of the Commissioner was unlawful, under section 49D(1)(b) of the Act. 104 Section 49D(4) of the Act did not apply to render lawful the discrimination of the Applicant, as, in the view of the Tribunal, the Applicant was able to carry out the inherent requirements of that position. Award of Compensation 105 The Applicant is entitled, in accordance with section 113(1)(b)(i) of the Act, to an order for the payment of damages not exceeding forty thousand dollars ($40,000.00) by way of compensation for loss or damage suffered by reason of the Respondent's unlawful conduct. 106 The Applicant submitted to the Tribunal a document "Economic Loss Schedule" which demonstrates that between the financial years 1995/1996 and 1999/2000, the Applicant suffered an economic loss of $107,836.00. This amount was the difference between the average amount that the Applicant would have earned had he been employed by the Respondent in November 1995 and the amount which the Respondent earned by way of income in that period. The Applicant's earnings in that period comprised his wages from his position with the Morisset Hospital and small amounts which he earned either as an owner of a restaurant or as an employee in a restaurant during those periods. The Applicant ceased his employment at the Morisset Hospital in October 2001. For one year prior to that time, he was on leave without pay. The Applicant's claim does not include an amount for that period of twelve months. 107 The Respondent submitted that the economic loss schedule makes allowance by way of mitigation which should be provided because during that period Mr Peck had accepted a position at Morisset Hospital which paid no overtime or other allowances and he stayed on in the position in the hope that he would be made redundant and receive a lump sum payment. The Respondent submitted that had Mr Peck resigned earlier from that position, he would have been able to earn more than the amount he did in fact earn at the Morisset Hospital. The Respondent also submitted that in the period between 1995 and 2000, the Applicant for a period closed the restaurant that he owned and for some periods did not work for the maximum part-time periods that he could have worked in the other restaurant where he was employed. The Respondent did not give an indication of what it considered was an appropriate amount that should be allowed by way of these mitigating factors. 108 In the view of the Tribunal, the evidence in relation to mitigation is not sufficient to justify the Tribunal making an allowance for the items that the Respondent claims. In any event, the amount allowed for mitigation could not reduce the amount of economic loss shown in the schedule produced by the Applicant, below the Tribunal's jurisdictional limit of $40,000.00. Accordingly the Tribunal would make an award for the maximum amount by way of economic loss, in the sum of $40,000.00. 109 The award of $40,000.00 for economic loss, leaves no scope for the Tribunal to make an award for general damages as compensation for the stress and hurt suffered by the Applicant as consequent on the Respondent failing to appoint him to the position of Overseer Catering at the St. Heliers Correctional Centre. Mr Peck described in his evidence that he had been advised, informally, after he was interviewed for the position, by a member of the interviewing panel, that he had been selected for the position by the panel. He had prepared himself by purchasing the appropriate equipment and clothing to attend the training course that he was obliged to attend by the Department before taking up the position. He stated that he was so upset by the Department's decision not to appoint him because of the finding by HealthQuest that he was medically unfit, a decision with which he strongly disagreed, that he would not wish to take up a position with the Department, were a position to be made available to him. 110 In these circumstances, the Tribunal would make an award for general damages to the Applicant in an amount of $15,000.00. 111 The result is that because of the jurisdictional limit to the amount which the Tribunal can award under section 113(1)(a)(i), the Tribunal orders that the Respondent pay to the Applicant by way of compensation an amount of forty thousand dollars ($40,000.00). 112 In the amended Points of Claim filed by the Applicant, in addition to seeking an award of $40,000.00 by way of compensation, the Applicant sought an order enjoining the Respondent from continuing or repeating any conduct rendered unlawful by the Act, and an order that the Respondent apologise to the Applicant. In the absence of specific submissions of the Applicant, in relation to these orders, the Tribunal has not addressed those items and declines to make the orders as sought. 113 The amended Points of Claim also contain an application that the Respondent be ordered to pay the Applicant's costs of the proceedings. No submission was directed to the Tribunal to demonstrate the justification for the Tribunal making an order for costs under section 114(2) of the Act. As the nature of the issues dealt with in this inquiry are of considerable potential impact in relation to the manner in which provisions of the Public Sector Management Act 1988 and the provisions of the Anti-Discrimination Act 1977, interact, and the length of time that has been taken in dealing with the issues of law that arise for consideration in these matters, the Tribunal considers that the opportunity should be given to the Applicant, if it so wishes, to make an application to the Tribunal for an Order for an award of costs. 114 The Tribunal directs that if the Applicant is to seek an order for costs, that an application to the Tribunal should be made within a period of 21 days after the date of publication of this decision. 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.