CITATION: Rabadi -v- Commissioner of Corrective Services [2002] NSWADT 23 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Jihad Rabadi RESPONDENT Commissioner of Corrective Services FILE NUMBER: 86 of 1998 HEARING DATES: 20/10/2000, 22/12/2000 SUBMISSIONS CLOSED: 12/22/2000 DATE OF DECISION: 02/21/2002 BEFORE: Innes G - Judicial Member; Strickland J - Member; McDonald O - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Dickenson, solicitor ORDERS: Complaint dismissed. Introduction 1 On 20 June 1995 Mr Jihad Rabadi, the Applicant, lodged a complaint with the President of the NSW Anti-Discrimination Board alleging that he had been discriminated against on the ground of his disability in breach of ss 49B and 49D of the NSW Anti-Discrimination Act 1977 as amended, (The Act). He asserted that the discrimination had been by his then employer the Department of Corrective Services. 2 The matter was investigated by the President, but unable to be conciliated, and was referred to the Administrative Decisions Tribunal (Equal Opportunity Division) for hearing on 12 May 1998. The hearing took place, following various unsuccessful attempts at settlement, on 20 October 2000 and 22 December 2000. 3 As a preliminary issue the Tribunal ordered that the correct Respondent should be the Commissioner for Corrective Services. Background 4 The Applicant gave evidence, which was not disputed by the Respondent, that he had become a prison officer in September 1988 and was posted to the Central Industrial Prison at Long Bay. In the course of his work he was assaulted by two prisoners on 13 January 1989. The assault left him with back, neck, left shoulder and right leg injuries. 5 Mr Rabadi asserted that he was discriminated against in a number of ways prior to 1 August 1994 on the ground of his disabilities. The Anti-Discrimination Act was amended on this date to, amongst other things, broaden the definition of disability. Mr Rabadi has chosen not to pursue incidents which occurred earlier than this date. Consequently, his allegations all post-date that amendment. The Tribunal has not taken into account any earlier incidents. Evidence 6 The Applicant gave evidence on his own behalf, and produced documents to support his allegations. He did not call any other witnesses. 7 The Respondent called George Clarke, Regional Superintendent for the Metropolitan Region and at the relevant time Governor of Parramatta Correctional Centre; William Poulton, at the relevant time Deputy Governor of Parramatta Correctional Centre; and Marion Beard, a Senior Assistant Superintendent and, at the relevant times, the Staff Officer at Parramatta. It also tendered various documents. 8 The Applicant alleged that at all relevant times he had a disability as defined in the Act, and this was admitted by the Respondent. 9 The Applicant's allegations fall into three distinct areas: (a) His general treatment by the Respondent from 1 August 1994, including an incident involving Ms Beard. (b) The refusal by the Respondent to promote the Applicant to the position of Senior Prison Officer; and (c) The decision of the Respondent, or its agent, to medically retire the Applicant. 10 The Tribunal has decided to consider the evidence in those three areas. General Treatment of the Applicant 11 In March 1994 Mr Rabadi was posted to the position of Wing Officer at 3 Wing at Parramatta Correctional Centre. He alleged that, after he took two weeks sick leave in May 1994, Superintendent Farrel told him that he could not remain in this position. Mr Rabadi was transferred from the position in about June 1994, and alleged that he was told by Superintendent Farrel that this was because he had taken too much sick leave. Mr Rabadi alleged that this was confirmed by Deputy Superintendent Poulton, who also said that HealthQuest had told the Department that there was nothing wrong with the Applicant, and that any further time he had off would be regarded as leave. 12 All of these matters provided background for the Applicant's allegations, but were not taken into account as they occurred prior to 1 August 1994. However, the Tribunal notes that Deputy Superintendent Poulton gave evidence that there was a rotation policy at the prison, and that officers were not held against specific positions for long periods of time. Mr Poulton stated that he had decided to remove Mr Rabadi from the position of Wing Officer in June 1994 because of the number of days he had been absent on sick leave. 13 On 2 September 1994, whilst the Applicant was on sick leave, Mr Rabadi alleged that the Roster Clerk Pat Hanson rang him at home to discuss his annual leave. During that conversation, Mr Rabadi alleged that Mr Hanson accused him of being seen doing the shopping, mowing the lawn, and travelling about whilst he was on sick leave. The Respondent admits this allegation. 14 During September 1994 the Applicant was assessed by a rehabilitation consultant and psychologist. Documentary evidence from this and another consultant suggest that, in their view, Mr Rabadi needed to loose weight and improve his physical fitness. They also stated that he required counselling to develop a more positive attitude to his job. 15 In October 1994 the Applicant obtained a medical certificate which indicated that he should be on light duties. However, he asserted that the Respondent placed him on general duties. 16 Also in October 1994, Mr Rabadi alleged that he was refused overtime because he was on a rehabilitation program. He also alleged that when he presented his medical certificate for light duties he was put on Monday to Friday rosters by the Staff Officer Ms Beard, however this decision was overturned by the Governor Mr Clarke. 17 The rosters indicate that Mr Rabadi did do overtime during this period. Both Ms Beard and the tendered documents also indicate that he was acting in higher duties positions around this time. In cross-examination Mr Rabadi accepted these points. 18 Ms Beard gave evidence that she was presented with three medical certificates, running from 30 September 1994 to 28 February 1995. These certificates restricted Mr Rabadi from pushing, pulling, heavy lifting, repetitive movements and prolonged bending and sitting. 19 In November 1994 Mr Rabadi alleged that a rehabilitation consultant advised him that a clerical job at the Academy had been offered for Mr Rabadi, but that the consultant had refused it. The consultant was trying to arrange a job which suited Mr Rabadi's custodial experience and qualification at the Academy. Mr Rabadi alleges that this job never came about. 20 The Respondent, though, asserts that More Options, a Rehabilitation Consultant to the Respondent, assessed the Applicant and attempted to find alternative positions for him which would better suit the restriction on his duties. 21 Ms Beard, the Staff Officer, gave evidence that, at the end of November 1994 the Applicant was offered a position at head office working as a Network Officer on the employment development program. Ms Beard stated that this would be a non-custodial job which would better suit the restrictions on Mr Rabadi's duties. It was for six months. It was also an Assistant Superintendent position so it was a development opportunity. Mr Rabadi asserted that his medical specialist, Dr Miniam, advised him not to accept this job because it involved too much travelling. Mr Rabadi therefore declined the offer. 22 Ms Beard stated, and tendered rosters to confirm this, that from the time Mr Rabadi presented his medical certificate in October 1994, he was rostered to work in the visitors and reception areas. 23 However, In December 1994 Mr Rabadi alleged that he was placed on a post which required him to open three gates, (two of which required manual operation) and to lie down to look underneath vehicles. He asserted that this aggravated his neck, shoulder and back injuries. 24 He alleged that he was placed on this post twice, and that he advised the Roster Clerk, Mr Donlevy, that he could not do this work. He stated that on a Wednesday in December 1994 he was rostered onto this post for a third time. When he discovered this, he signed the roster book and then went home. 25 Mr Rabadi alleged that, when he returned to work the next day, people were upset with him about the incident. He was called to Mr Poulton's office, and he took the union representative, Mr Redman, with him. 26 Mr Rabadi stated that he explained the terms of his medical certificate, and that he could not work on this particular post. Mr Poulton replied that he could not have officers signing in and then leaving work, because it meant that he was one officer short. Mr Rabadi stated, as an example of how that could be coped with, that female officers are required to go to the main gate when there is a disturbance, so if this occurred, there would be a shortage anyway. 27 Mr Poulton confirmed the occurrence of the meeting. He stated that Mr Rabadi had made a remark about senior female staff, which he considered derogatory, to which Ms Beard - who was also in attendance at the meeting - responded that Mr Rabadi was out of line and he should retract the comment. Mr Poulton said that he then took control of the meeting and it continued. 28 Mr Rabadi alleged that Ms Beard jumped up threateningly, challenged his comment, and suggested that they go outside the gaol and have a fight. Mr Rabadi stated that he did not wish to upset anyone, so he apologised. 29 Ms Beard denied that she threatened Mr Rabadi during this meeting. In her oral evidence, Ms Beard certainly gave the impression that she would stand up for herself verbally, but gave no indication to support Mr Rabadi's allegation. 30 Mr Poulton stated that Mr Rabadi apologised to Ms Beard at the end of the meeting. Mr Poulton stated that at no time during the meeting did Ms Beard threaten Mr Rabadi. 31 The result of the meeting was that Mr Rabadi would continue to work in the visitors area, on the front gate and in the reception room. From that time on he stated that, he remained working in the visitors area. 32 Mr Rabadi did not call Mr Redman to coroborate his evidence of this incident. 33 Mr Rabadi stated that on the Saturday of the same week that the incident occurred, another officer, Ross Fletcher, warned him to be careful because the executive wanted to pay him back for signing on and then going home. Mr Rabadi did not call Mr Fletcher to coroborate this evidence. Application for Senior Prison Officer Position 34 Mr Rabadi alleged that in March 1995 he applied for, and was interviewed for, this position in the Central Region. He stated that he was told by Mr Ritchie, the Convenor of the Selection Panel, that he was rated second on the elegibility list, and documents tendered at the hearing confirm this. Mr Rabadi stated that four jobs were filled as a result of these interviews in April or May 1995. However, he stated that he was not given a job because of the reports of his referees relating to poor conduct and service. 35 Mr Clarke, at the time Governor of the Gaol, confirmed in his evidence that he had been contacted by a member of the selection panel, and that he had said Mr Rabadi should not be appointed to the position because his medical condition prohibited him from performing the full range of duties of the position. Mr Clarke said that Senior Prison Officers perform duties which bring them into direct contact with inmates on a daily basis. If a serious incident arose, the Senior Prison Officer would be expected to take charge of the incident. This may require the officer to use reasonable force, including physical force, to control inmates. 36 This evidence is supported by the documentation from the Respondent recording fights and assaults in prisons in 1994 and 1995. The evidence demonstrated that difficult interactions, involving physical force, occurred between inmates and officers on a regular basis. 37 The selection documents for these positions, which were exhibits at the hearing, indicated that whilst Mr Rabadi was rated two at interview, he was not appointed to one of the positions because he received an unsatisfactory conduct and service report from Mr Clarke, the Governor of the Gaol. 38 The selection documents also indicated that Mr Rabadi had an extensive knowledge of administration, high communications skills, and a commitment to management. However, whilst Mr Rabadi's sick leave was within the departmental guidelines, it was close to the limit. 39 In a letter from Mr Clarke to Chief Superintendent Farrel dated 20 April 1995, Mr Clarke stated that his concerns were Mr Rabadi's "physical and mental" problems. This appears to refer to the continuing physical restrictions placed on Mr Rabadi as a result of the earlier assault, and his attitude to his job, detailed in paragraph 35 above. It also refers to Medical evidence provided to the Tribunal, which indicates a history, since the assault on Mr Rabadi, of some level of psychiatric disability. Dr Younan's report in 1989 draws the conclusion that Mr Rabadi had post-traumatic stress disorder. The psychologist and rehabilitation consultants in 1994 referred to Mr Rabadi requiring counselling. Mr Clarke's letter stated that if these improved Mr Clarke would be prepared to support a promotion for Mr Rabadi. It stated "It is my belief that Mr Rabadi's ongoing medical and psychological problems will continue to disadvantage him and his employer if he is promoted to the rank of Senior Prison Officer". 40 Mr Clarke gave evidence that he sent this letter because of his duty of care towards both Mr Rabadi and his colleagues. 41 The service check provided for Mr Rabadi shows that he had 48.5 days of sick leave in the preceeding twelve months, the vast majority of which was covered by a workers compensation claim. 42 Ms Beard, the Staff Officer, gave evidence that Mr Rabadi had been on restricted duties, in compliance with his medical certificates, since 30 September 1994. She said that she was of the opinion then, that he was not suitable to be promoted at that time because he had been medically assessed as being unable to perform the full range of duties of a First Class Correctional Officer. She stated that she was concerned that an increase in responsibility would have a detrimental affect on his well-being. 43 The Applicant subsequently appealed this decision to the Government and Related Employees Appeals Tribunal (GREAT), but the decision was not reversed. Medical Retirement 44 Mr Rabadi alleged that in May 1995 he was contacted by Kirsty Taylor from Head Office who discussed the possibility of medical retirement with him. The Respondent agrees that this occurred, and stated that it was on the basis of Mr Rabadi's extensive absences from duty, and his reluctance to perform certain tasks. 45 The documentary evidence produced by both parties indicated that Mr Rabadi had been on restricted duties over a period of six years, with no indication as to when he would be able to resume full duties. Whilst there was some dispute between the parties as to which duties Mr Rabadi could and could not carry out, it was not in issue that his duties were seriously restricted. 46 Mr Rabadi was on restricted duties in compliance with his medical certificates from 30 September 1994 until June 1995 when he went on annual leave. The restrictions have been previously set out. He did not return to duties, but went onto workers compensation leave in August 1995. 47 Further, Mr Rabadi was absent for 135.5 sick days during 1995-96. 48 Mr Rabadi stated that after his unsuccessful GREAT appeal, he visited his doctor, who gave him a medical certificate entitling him to one month's stress leave. 49 Mr Rabadi was directed to visit a HealthQuest medical officer to assess whether he should be medically retired as a result of his stress. He was medically retired on 12 October 1995. The Health Assessment Certificate issued by HealthQuest stated that Mr Rabadi was unfit to carry out the duties of a correctional officer. 50 Mr Rabadi appealed this decision, but in a letter dated 4 March 1996 he was advised that the appeal had been unsuccessful, and his medical retirement took effect as from 28 February 1996. 51 Mr Rabadi stated that he had not been paid for the period 12 October 1995 to 28 February 1996, but correspondence from the Respondent to him, attaching his certificate of service, clearly indicates that he was paid up to 28 February 1996. 52 In cross-examination Mr Rabadi agreed that a gaol was a very intense atmosphere in which to work. He also agreed that the job required much manual activity. It was necessary to open and close heavy gates and doors, to climb up ladders and stand on towers and catwalks carrying guns, and that prisoners sometimes needed to be physically subdued. 53 Mr Rabadi further agreed that he had experienced continuing pain since the 1989 incident, but commented that he had only been on restricted duties since 1994. Prior to that year, he asserted that the pain had not affected his performance. However, documentary evidence from the Respondent indicates that Mr Rabadi's duties had been restricted periodically, and his attendance affected, since 1989. 54 He agreed that he was on restricted duties for some time from 30 September 1994. 55 Mr Rabadi agreed that the work in the Visitors Centre was largely a processing job, although it also required searching prisoners. He was able to move around and change posture, and he was not required to lift. 56 Mr Rabadi was presented with his medical certificates for the second half of 1994 and the beginning of 1995. They required no heavy lifting, no prolonged sitting or standing, no bending, no pushing or pulling. 57 Mr Rabadi agreed that when he had visited the HealthQuest medical officer the assessment had been that he was depressed, and that this had been the major reason for his medical retirement, as the HealthQuest medical officer was of the view that this condition was permanent. 58 Medical evidence provided to the Tribunal indicates a history, since the assault on Mr Rabadi, of some level of psychiatric disability. Dr Younan's report in 1989 draws the conclusion that Mr Rabadi had post-traumatic stress disorder. The psychologist and rehabilitation consultants in 1994 referred to Mr Rabadi requiring counselling. HealthQuest's examination, provided in June 1995, refers to Mr Rabadi as being "in a depressive state". This was confirmed in the medical certificate of retirement issued in October 1995, in which it was concluded that Mr Rabadi had depression, which would, in all likelihood, prove permanent. 59 The Respondent had concerns about Mr Rabadi's level of sick leave since that time. He was examined by HealthQuest in April 1991 and determined as fit to continue with custodial work. There was no improvement in his attendance record, and he was examined again by HealthQuest, and found "physically capable of normal duties", in November 1993. 60 Correspondence from the Department indicated that its concerns in this area related to both Mr Rabadi's psychiatric and physical disabilities. The letter from Kirsty Taylor recommending examination for the purpose of considering medical retirement set out the attempts at rehabilitation of Mr Rabadi from 1989 to 1995. It indicated the restricted nature of Mr Rabadi's duties, and that he had declined offers of alternatives to employment in custodial areas. It further suggested that there was little likelihood of Mr Rabadi ever being able to resume full duties. Findings of Fact 61 Based on all of the above evidence the Tribunal makes the following findings of fact: It is alleged by the Applicant that at all relevant times he had a disability for the purposes of the Act, and this is admitted by the Respondent. The Tribunal makes this finding. General Treatment of the Applicant 62 Mr Rabadi was contacted during his sick leave by Roster Clerk Pat Hanson, and the accusations alleged were made. This is admitted by the Respondent. 63 The Applicant was on light duties, pursuant to medical certificates obtained, from 30 September 1994 until his annual leave in June 1995. The Tribunal accepts the restrictions in duties as those set out in the medical certificates. 64 The evidence of the rehabilitation counsellors regarding the Applicant being overweight, unfit, and needing counselling to gain a more positive attitude to his job is accepted. It was not challenged by the Applicant. 65 Even if Ms Beard did deny the Applicant overtime towards the end of 1994, this was restored by Mr Clarke. The Applicant's rosters confirm this. 66 The Respondent, with the assistance of rehabilitation consultants, did attempt to find Mr Rabadi other positions towards the end of 1994. There is no evidence in the documents from the rehabilitation providers to support Mr Rabadi's allegations that a clerical position was found and rejected by the consultants. This is unlikely to be true, as the position later offered to Mr Rabadi was of a clerical nature. The Tribunal finds that Mr Rabadi was confused on this point, and that the position offered was the employment development position in head office which he rejected because, he asserts, his specialist told him it would involve too much travel. The Tribunal accepts Mr Rabadi's evidence as to the reason he rejected the position, but notes that his decision was unfortunate, as the job appeared to be one which he could have carried out. 67 The rosters are clear that Mr Rabadi worked in the visitors and reception areas from October 1994 until June 1995. However, the Tribunal accepts Mr Rabadi's assertion that some jobs in the reception area could have involved pushing and pulling gates, and lying down to look under vehicles. Because it is not denied by the Respondent, the Tribunal accepts that Mr Rabadi was rostered to do such jobs on three consecutive occasions in December 1994. The Tribunal accepts, as it is not denied by the Respondent, that working on this post exacerbated Mr Rabadi's back and neck injuries. 68 Both parties assert, and the Tribunal accepts, that on the third occasion this happened, Mr Rabadi signed the roster book and then went home. 69 The Tribunal accepts the account of the subsequent meeting in Mr Clarke's office given by Mr Clarke and Ms Beard. It does so because of the weight of evidence, and because a smaller female, and more senior prison officer, proposing a fight between herself and a larger male, and more junior officer, would be a quite unusual event. The Tribunal is satisfied that Ms Beard energetically disagreed with Mr Rabadi about comments he made regarding female prison officers, but is also satisfied that Mr Rabadi's account of the subsequent events is exaggerated. 70 This finding is supported by the fact that Mr Rabadi did not obtain a statement from or call Mr Redman to support his evidence. This point was drawn to his attention on the first day of hearing, and he had the opportunity to do so on the second hearing day. Although the Tribunal is not strictly bound by the rules of evidence, it has followed the rule in Jones -v- Dunkel, and presumed that Mr Redman's evidence would not have been supportive. 71 For the same reason the Tribunal does not accept Mr Rabadi's allegations of his conversation with Mr Fletcher. Whilst Mr Rabadi's evidence is unchallenged on this point, the Tribunal has assumed that Mr Fletcher's evidence would not have been helpful, and has formed the view that the conduct of the senior officers at this time does not indicate any intention to "get" him. Attempts were being made to find him alternative employment, and he was being supported on light duties. The Tribunal also notes the conclusions reached by the rehabilitation consultants in regard to Mr Rabadi's attitude to his job, and has taken those conclusions into account. Application for Senior Prison Officer Position 72 It is clear that Mr Rabadi did apply for these positions, and that he was rated second on the eligibility list. It is not disputed that four positions were filled, and that Mr Rabadi was not appointed to one. It is also clear that Mr Rabadi was not appointed because of his physical and psychiatric disabilities. 73 In fact, none of the facts in this section of the evidence are in dispute. The only question to be determined is whether the actions of the Respondent constituted discrimination in the terms of the Act, and whether the relevant defence applied. Medical Retirement 74 Once again there is little that is in dispute in this section. 75 Mr Rabadi asserts that he was not paid for the period October 1995 to 28 February 1996. However, he brought no documentary evidence to support this assertion, and the Respondent demonstrated with documentary evidence that these payments have been made. The Tribunal finds that the payments have been made, and rejects Mr Rabadi's assertions. It notes that when pressed on these assertions Mr Rabadi did not strongly defend them. 76 The Tribunal does not accept Mr Rabadi's assertions that his injuries did not affect his performance before 1994. The records are clear that Mr Rabadi had much time off on workers compensation leave prior to that time, and that for periods of time, his duties were restricted. 77 Apart from these issues, once again the question to be determined is whether the actions of the Respondent, in medically retiring the Applicant, constituted discrimination in terms of the Act, and if so whether the relevant defences applied. Relevant Legislative Provisions 78 Mr Rabadi's claim is made pursuant to sections 49B and 49D of the NSW Anti-Discrimination Act 1977 which provide as follows: 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 (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 49D. Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment: (a) for the purposes of a private household, or (b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or (c) by a private educational authority. (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth. Findings of Law 79 It is not in dispute that Mr Rabadi has a disability for the purposes of the Act, and so the Tribunal must assess whether the actions of the Respondent constitute discrimination for the purposes of the Act in any of the three areas considered. If they do, the Tribunal must consider whether any of the relevant defences apply. General Treatment of the Applicant 80 Based on its findings of fact, the Tribunal is not satisfied that the Applicant suffered any ill-treatment by the Respondent or its agents between 1 August 1994 and April 1995. From the findings of fact there are only two areas where such ill-treatment may have occurred. The first is the comments made by Roster Clerk Hanson, and the second is the placement of the Applicant on duties which exacerbated his neck and back injury. 81 The Tribunal is of the view that both of these issues must be placed in context. The Applicant suffered a most regrettable work-related injury, following assault by prisoners, in 1989. The evidence is clear that the injury continued to affect him, both physically and mentally, from its occurrence until the time of his medical retirement. 82 The Respondent accepted the consequences of Mr Rabadi's injury over a long period. With the exception of the actions of a roster clerk it accepted the limitations on the duties Mr Rabadi could perform. It met its responsibilities for an injured employee in that it allowed him a great deal of workers compensation leave; it placed him on light duties to minimise the impact of the injuries; it provided rehabilitation assessments for him with a view to improving his situation; and it provided an alternative employment opportunity on a temporary basis in a more senior position consisting of duties that would appear to have been within his physical capacity to perform. 83 In that context, the Tribunal is satisfied that the comments of a roster clerk, suggesting that Mr Rabadi was unjustly receiving workers compensation leave, because he had been seen mowing the lawn and shopping, do not constitute ill-treatment or less favourable treatment for the purposes of s 49B of the Act. Such comments may have been inappropriate, as it is possible that - if Mr Rabadi was seen carrying out these tasks - he was able to do so without exacerbating his injuries. However, because of their relatively minor nature, and weighed against the positive efforts that the Respondent was making, they do not constitute less favourable treatment. They therefore do not meet the definition of discrimination in s 49B. 84 The Tribunal is also satisfied that the rostering of the Applicant to carry out duties requiring him to open and shut heavy gates manually, and lie down to look under vehicles, does not constitute less favourable treatment. It is clear that over the years the Respondent has been complying with the Applicant's work restrictions. For that reason, he was rostered in the visitors and reception areas during the period in question. 85 It was not clear from the Applicant's or the Respondent's evidence whether the Applicant had been carrying out these duties before, and they became a problem, or whether he had just not been rostered to carry out these duties. Whatever the case it was a minor matter in the scheme of things, and should have been resolved by the Applicant discussing it with a more senior officer rather than with the roster clerk. If the practice had continued for weeks, or if a senior officer had refused to change the rosters, then it may have constituted less favourable treatment, and given the Applicant justification to act in the way that he did. However, to have signed on and then gone home in these circumstances, without raising the matter with a senior officer, showed a lack of judgement by the applicant in the circumstances. The rostering may have been the last straw for the applicant, but he should have pursued it with a senior officer rather than just leaving. Application for Senior Prison Officer Position 86 There is little doubt that the Respondents decision not to appoint the Applicant constituted less favourable treatment for the purposes of s 49B of the Act. There is no dispute that he was the second best applicant at interview, and that four positions were filled. Therefore the Respondent prevented him from obtaining this position in breach of s 49D of the Act. The question to be determined is whether the relevant defence applied. 87 The relevant defence is in s 49D (4). It provides, in effect, that it is not unlawful for an employer to refuse an employee employment if that employee cannot carry out the inherent requirements of the job. 88 This defence applies to s 49D (1) (b) which covers the action of determining who should be offered employment. It does not apply to s 49D (2) (b), the action of denying an employee access to opportunities for, relevantly, promotion. The Tribunal is of the view that s 49D (1) (b) is the relevant provision, so the inherent requirements defence is available to the Respondent. It has come to this view by considering the wording of both subparagraphs. 89 Subsection (1) of s 49D is generally regarded as applying to new employees, and the wording of that subsection supports this view. Ss (2) is generally regarded as applying to existing employees, and the subsections wording would support that contention. By this interpretation, Mr Rabadi is arguably an existing employee seeking promotion, and thus ss (2) should apply to him. 90 However, a closer examination of ss (2) indicates that paragraphs (a) and (b) at least deal with the way in which an employer interacts with an employee in the employment relationship, as opposed to transfer, appointment and promotion decisions. Subparagraph (b) does not talk about promotion, transfer or training directly, but rather the denial of opportunities for access to such activities. It would be relevant in this case if Mr Rabadi had not been allowed to apply for the Senior Prison Officer positions. But, having been allowed to apply, and having been considered for selection, ss (1) (b) is the appropriate provision to apply. 91 The Tribunal therefore considered whether or not Mr Rabadi was able to carry out the inherent requirements of the job pursuant to ss (4) of s 49D. In order to make out this defence the Respondent has to show, taking into account Mr Rabadi's training, qualifications, experience and performance relevant to the job, that he could not, because of his disability, carry out the inherent requirements of the position of Senior Prison Officer. 92 The Tribunal is satisfied that the Respondent is able to make out this defence. It has formed this view taking into account the following factors: The nature of the job as described by Mr Clarke, confirmed in the material in evidence on fights and assaults in prisons, and the constant potential for a Senior Prison Officer to have to deal with physically challenging, and mentally stressful situations; The nature of the physical restrictions on Mr Rabadi's duties, and the length of time that these restrictions had applied at the time of the selection decision; and The attitude demonstrated to his job by Mr Rabadi flowing from, in the Tribunal's view, his psychiatric disability. 93 Mr Clarke's evidence was very clear on this first issue, and was supported by the tendered data on such incidents in the prison system in 1994 and 1995. It was clearly an inherent requirement of the Senior Prison Officer's job to be able to continually deal with mental and physical stress. Due to the second and third factors the Tribunal was of the view that Mr Rabadi, as a result of his disabilities, was unable to carry out this requirement. 94 The second factor related, in the main, to Mr Rabadi's physical disabilities. Mr Rabadi had been on restricted duties since 30 September 1994, and the selection decision was made in April 1995. Added to this was the amount of workers compensation leave Mr Rabadi had taken since he received his injuries in 1989. There was no indication in any of the medical reports presented to the Tribunal, that there was any likelihood of these restrictions reducing in the foreseeable future. Because of this Mr Rabadi would have been unable to carry out the inherent requirement described above. 95 The third factor related to Mr Rabadi's psychiatric disability. Although this was clarified by the HealthQuest reports later in 1995, and the decision of the Medical Appeals Panel in 1996, there was clear evidence of it at the time of the selection decision. Dr Younan had referred to it in 1989. The rehabilitation consultant mentioned it in 1994. It was alluded to by both Ms Beard and Mr Clarke in their evidence. Finally, it was evident in Mr Rabadi's conduct, and the way he was carrying out his job. This was most clearly demonstrated in his reaction to his roster situation in December 1994, and his error of judgement on that occasion. 96 In most employment situations, there ought to be a degree of flexibility, enabling the employer to make arrangements so that the needs of a particular employee with a disability can be met. However, in this situation Mr Rabadi's disabilities caused him so many restrictions, and these requirements were so vital to his ability to perform the job, that the Tribunal is satisfied that this finding is enough to enable the Respondent to make out this defence. The Tribunal is therefore satisfied that the Respondent did not discriminate against the Applicant in this area of the Applicant's allegations. Medical Retirement 97 It only remains for the Tribunal to consider this third area of the evidence. The relevant paragraph for dismissal, which is constituted by medical retirement, is s 49D (2) (c). The inherent requirements defence set out in ss (4) applies to this paragraph. 98 Once again it is clear that the Respondents' action of dismissing the Applicant constituted less favourable treatment for the purposes of s 49B and s 49D (2) (c). The only question for consideration is whether the inherent requirements defence has been successfully made out by the Respondent. 99 The Tribunal is satisfied that it has been so made out. In coming to that view it has adopted a similar approach to that in paragraph 96 of this decision, and has considered similar factors. 100 The evidence of Mr Clarke in relation to the level of physically and mentally challenging stress for prison officers was mainly directed at the Senior Prison Officer positions. However, such stress would also affect Prison Officers. It is true that Mr Rabadi had been "protected" from such incidents by being placed on restricted duties, and by working in the visitors and reception areas. But to continue on such restricted duties for a long period of time, and to continue to take the amount of time off that he did, placed a burden on the Respondent. On its own this burden may have been bearable, but it was not when taken in conjunction with other issues. 101 There is no doubt that, as a result of his physical disabilities, Mr Rabadi was severely restricted in the duties that he could carry out. He agreed in cross-examination to the physically demanding nature of the job of moving heavy gates, climbing ladders and traversing catwalks carrying weapons, and physically having to deal with prisoners. The Respondent was not satisfied that he could carry out such duties, and for the last year of his employment (from 30 September 1994 until 12 October 1995) he was either on leave or on very restricted duties. This was as a result of medical certificates that he provided to the Respondent. 102 The Tribunal is satisfied that the Respondent made the correct decision to restrict his duties, but also recognises the strictures which this placed on the Respondent. 103 Finally, and most importantly, there was Mr Rabadi's psychiatric disability, or depressive illness, which HealthQuest was satisfied at the time was likely to be permanent. Knowing this, and being aware of the impact that this was having on Mr Rabadi's ability to carry out his job, and on his amount of leave, the Respondent's assessment that Mr Rabadi was unable to carry out the inherent requirements of his job was correct. 104 If he was on extended leave he was unable to carry out all of the inherent requirements of his job. If he was at work, but on restricted duties, he was limited in his ability to carry out the physical requirements of the job. His depressive illness, exemplified in his absences from work, and his attitude to his work, meant that he could not carry out the inherent requirements of the job. The Tribunal is satisfied that the Respondent is again able to make out this defence. Conclusion 105 The Tribunal is satisfied that, in all three areas of the Applicant's allegations, the Commissioner for Corrective Services did not discriminate against the Applicant in breach of the relevant provisions of the NSW Anti-Discrimination Act. Therefore it orders that the complaint should be dismissed. 106 The Tribunal recognises the unfortunate nature of these circumstances, in that the disabilities which Mr Rabadi has were acquired whilst he was carrying out his duty as a prison officer. Because of this, and the sympathy which the Tribunal feels for Mr Rabadi as a result, the imposition of its decision is difficult. However, the Tribunal has a duty to determine whether discrimination has, in fact, occurred, irrespective of the way in which the Applicant acquired his disabilities. 107 The decision is also made difficult because, in many other occupations, the disabilities which the Applicant has should not preclude him from continuing in employment. However, this is not the case for employment as a prison officer because of the inherently confrontational and stressful nature of this work. The Tribunal hopes that Mr Rabadi is able to find and retain employment in a less stressful and less confrontational vocation. 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.