Equal Opportunity Division of New South Wales CITATION: Carr -V- Opera Australia [1998] NSWEOD COMPLAINANT: Gregory Carr RESPONDENT: Opera Australia NUMBER: 39 of 1997 G Ireland ( Judicial Member ) TRIBUNAL: J Strickland L Taksa GROUNDS OF COMPLAINT: DATES OF HEARING: 12/07/1998 DATE OF JUDGMENT: 12/09/1998 Complainant: S Winters of Counsel LEGAL REPRESENTATIVES: Respondent: G Watson of Counsel instructed by McCulloch & Buggy Solicitors JUDGMENT IN FAVOUR OF: Complainant 21 CHAIRPERSON: The Tribunal has reached a decision in the matter. By necessity I am going to read its decision from notes so I will ask your indulgence in that process. The judgment will be recorded and the transcript of it will be available as soon as that process can be completed. In that process the transcript will be presented to me first for editorial changes and there may be a further day or so delay while that is completed. I would not like to anticipate when the written form of the decision will be available, possibly say about ten days time. This complaint has been presented to the Tribunal for inquiry by the President of the Anti-Discrimination Board and the inquiry has proceeded with the following background which the Tribunal has taken from the material which has been supplied to it. The complainant was employed by the Elizabethan Theatre Trust orchestra in Melbourne as the first trumpet player in 1979. He transferred to Sydney to the Elizabethan Theatre Trust in 1980 as the associate principal trumpet player. It is noted that in 1989 that orchestra changed its name to Opera Australia. On 24 July 1991 Mr Carr performed with the orchestra the opera "Turandot". The next morning he suffered pain in his back and legs, he had no previous problems. That morning he saw a chiropractor and after manipulation of his spine, he suffered a seizure which occupied approximately one hour. He was then transferred to the Ryde Hospital where he was admitted for four days during which time he had X-rays and other tests but no cause could be found for the fit that he had suffered or for his back condition. He was absent from the Opera Australia orchestra on that occasion on sick leave for six to eight weeks. Mr Carr suffered fits subsequently in August 1991, October 1991 and November 1991, on each occasion those fits did not take place at his work. On 8 January 1992 he rehearsed with the orchestra for a period of three hours, the entire opera "Turandot" during the morning and there was a second rehearsal of the opera in the afternoon. Mr Carr stated that in the afternoon he was playing high and loud and that he collapsed on the floor with his limbs twitching. He was unconscious for two to three minutes. He was taken to St Vincents Hospital. He was discharged after two hours but he did not play with the orchestra that night. Those rehearsals took place at the Opera Centre Elizabeth Street premises which is not air-conditioned, it was extremely hot and there was no cross-ventilation. On that occasion Mr Carr was off work on sick leave for two weeks. On 29 February 1992 the orchestra was performing in the Opera House and after the performance in the northern foyer, Mr Carr started to fit. He was attended by the nurse who gave him oxygen and he was also attended by a doctor. On 1 March 1992 while he was at home, he had another fit. He then went to Westmead Hospital for two weeks where tests were carried out, particularly to determine whether the cause of his seizures were stress related. On that occasion he was off work for two weeks and at the request of the manager of Opera Australia he attended a neurologist for a second opinion and he also attended a psychiatrist for a second opinion. On 5 March 1993 while playing excerpts from "Turandot" in the orchestra pit to test the sound volume for other performers, it was necessary for Mr Carr to play as loudly as possible. Later that evening he suffered chronic back pain and he was then conveyed to Concord Hospital where he was diagnosed with a prolapsed disk. He was then off work for ten days. In February 1994 he underwent a discectomy operation for the partial removal of disks at L4 and L5 and he had a laminectomy. He was then off work for two months. He suffered a further fit in September 1994 when he was not at work. On 16 December 1994 during a rehearsal of "Turandot" he was playing loudly and strenuously for a long period and subsequently that evening he performed with the Opera orchestra "The Merry Widow" opera. He developed body twitching and again he was administered by the nurse who gave him oxygen and he was then subsequently admitted to hospital. In June 1996 he suffered a further seizure when he was at a surgery of a specialist. The Tribunal was not given any details of that occurrence. This history shows that in a period of five years Mr Carr suffered eleven seizures of which three occurred at the workplace. These seizures were suffered after Opera Australia had installed sound screens in the opera pit. I will read from Mr Carr's statement the details of those screens. Mr Carr described the screens in this way: "The perspex screens were first installed in about 1988 in front of the trumpet section and to the right of the first trumpet player in the rehearsal studio in the orchestra pit. The bottom of the screens were made from acoustic absorbing material. The screens were also installed in front of the percussion section. They were installed to reduce the noise level of the trumpet and percussion sections for other members of the orchestra. The original screens were approximately 600 millimetres wide and 900 millimetres high. From about 1988 to 1994 the size of the screens were increased so that by 1994 he was required to play first trumpet significantly louder to be properly heard by the conductor. The size of the screens by 1994 was about 1,560 millimetres by 3,000 millimetres wide." After the screens were erected, Mr Carr suffered three seizures while rehearsing or at the end of performing. Those seizures I described in the earlier descriptions. The history of disputation between Opera Australia and the Musicians Union of Australia which represents members of the orchestra was referred to. These disputes relate to the configuration of the orchestra pit, its low ceiling, the narrow confines of the space in the pit, inadequate acoustics which expose members of the orchestra to unacceptable high levels of noise, especially during performances of "Turandot". These disputes led to an application to the Australian Industrial Relations Commission in 1992 and also in 1995 for its intervention to establish arrangements to relieve the adverse conditions of the orchestra. A series of committees were formed and met under the auspices of the commission, aimed at enabling all interested parties, including two representatives of the brass section of the orchestra who were members of those committees, to research and agree upon solutions. The Tribunal has not been provided with the details of the outcome of the procedures before the Commission except that counsel for the respondent stated that an agreement was reached in 1995 or 1996 which provided for changes in the orchestra pit which were acceptable to the parties. The financial accountant of Opera Australia stated that the current pit layout, the rehearsal studio layout and the size and position of the screens are as a result of this consultative process. No evidence was put before the Tribunal as to the direct impact of the changed conditions on the brass section of the orchestra or in particular on Mr Carr as a member of the brass section. The financial accountant stated that all the orchestra players except Mr Carr have accepted the outcome and that there are regular meetings with orchestra players and the acoustics and noise levels are no longer an issue. It appears that Mr Carr did not return to the orchestra after the last seizure in June 1996. In his letter of complaint to the Anti-Discrimination Board Mr Carr states that he has not received wages from Opera Australia since 20 June 1996. On 17 July 1996 Opera Australia wrote a letter to Mr Carr which sets out the position it had taken in relation to his employment. It is necessary to read the full text of that letter. It is addressed to Mr Carr. It is headed "Your employment from 18 July onwards": "We note that you allege that you are prone to suffer seizures whilst playing the trumpet in the orchestra. We further note that you allege that these seizures are in some way related to the nature of your work for the company and you have claimed worker's compensation benefits accordingly. As you are aware we forwarded this claim to our insurer which has denied liability. What causes us some concern is that when you suffer these seizures, you have collapsed and your legs and arms have kicked violently. We are concerned that should you return to work, you may suffer a seizure during the course of which you may not only injure yourself but also you may injure other members of staff. We have received legal advice to the effect that in such circumstances it would be negligent for us to allow you to continue with your work in circumstances where you pose a danger to other members of staff and in particular we refer to the Occupational Health and Safety legislation. It is therefore with regret your sick leave having been exhausted that we require to place you on leave without pay. We shall of course reconsider our decision should you provide us with a report from your treating neurologist to the effect that you have recovered from any propensity to suffer seizures and that you do not pose any danger to other members of staff. Should you desire to discuss the matter raised above please do not hesitate to contact me." and it is signed by the orchestra administrator. It is clear from the terms of that letter that the respondent had decided that because of Mr Carr's propensity to suffer seizures that he be placed on leave without pay. Mr Carr's employment status with the respondent has continued unchanged to this date. In response to the letter from Opera Australia, Mr Carr on the same day, that is 17 July 1996, wrote to Opera Australia enclosing a copy of a letter from Dr Corbett, a neurologist, dated 27 October 1995 which Mr Carr described in that letter as: "Stating the information you have requested." and concluding with the remark: "I now look forward to a positive return to work." A copy of the letter of Dr Corbett was not provided to the Tribunal. However the Tribunal has been provided with a copy of a letter from Dr G Pearce, a rehabilitation specialist in the Department of Rehabilitation Medicine at the Concord Repatriation Hospital. The letter is dated 19 July 1996 and is addressed to the orchestra administrator of the respondent. In his letter, Dr Pearce states that he has been seeing Mr Carr since September 1995 and he makes the following observations: "I believe that his low back pain, episodes of loss of consciousness and pain in the right shoulder appear to be mainly precipitated by his orchestral playing of the trumpet and these symptoms are made excessively worse during high intensity performance. Dr Corbett has outlined in his letter that he believes that the episodes of loss of consciousness have been the result of occluding venous return to the heart and reducing cardiac output during prolonged high volume trumpet playing. Dr Seamus Dalton believes that playing the trumpet has precipitated the pain in the shoulder. I believe that the pain in his back is mainly of a musculoligamentous nature precipitated by excessive and intense splitting of the back muscles during high volume playing. I don't believe that Mr Carr has any back problems, shoulder problems or any loss of consciousness while doing any other physical work. In fact physical work actually eases the symptoms. Although being overweight, being an aggravating factor, Mr Carr is making efforts to reduce his weight. The only real options he has at the moment to reduce these symptoms is to reduce the intensity and frequency of playing. Perspex barriers only causes him to increase his intensity even further and therefore aggravate the symptoms. With a lighter work load I believe that his symptoms would decrease significantly." Then on 7 August 1996 the orchestra administrator of Opera Australia wrote to Mr Carr a letter which contains the following statements and I see the need to read this letter as well. "Further to our telephone conversation yesterday I'll endeavour to explain the Australian Opera's position in relation to its legal responsibilities in this matter. The Australian Opera is required by its workers' compensation insurer to keep them fully informed of any matters that may affect past, present or future claims. Your verbal indication to me that a claim and the ground supporting that claim was to be relodged by your legal representative, required me to pass that information onto our insurers. The insurance company through its solicitor then advised a letter indicating the reason why the Australian Opera could not permit your resumption of duty would be drafted for my signature. Regarding your hand delivered response to this letter of 17 July we were duty bound to forward it to our insurer's solicitor. I believe the solicitor wrote to you again confirming the reason for the insurer's position on your return to work and ask that you attend two arranged medical appointments with specialists. In addition to your workers' compensation claim, the Occupational Health and Safety Act requires that an employer has a duty of care to each and every employee if found to be negligent in that duty of care, not only is the company liable to heavy penalties but managers, administrators, directors are also held personally responsible for these actions. Because of the history of your condition, the Australian Opera was legally advised not to allow your return to work until such time as the claim is resolved. Certain perspex screens were erected behind the string sections as a safeguard to those employees identified as having potential hearing loss. WorkCover, while investigating noise levels in the pit, suggested that because of the confined space and close proximity of players, a screen be constructed. This we undertook and had manufactured in accordance with the design approved by WorkCover. The rehearsal venue on the other hand does not have the same space restrictions as the Sydney Opera House opera pit, allowing players more room to spread out. However string players still demand clear perspex screens be placed immediately behind them, even though the trumpet section is seated a considerable distance away from these string players. Accordingly I am unable to comment on the effect these screens have on brass players as the purpose of the screens are in accordance with their Occupational Health and Safety responsibilities to protect those players in front. It is my understanding that as a claim has been made requiring a determination by the Court, the matter rests solely with the insurance company and its legal representation. The Australian Opera must act according to the advice of its insurer and their legal representative and confirm acceptance of their advice as contained in their correspondence previously forwarded to you." That letter was also signed by the orchestra administrator. The Tribunal has not been supplied with any further correspondence between the parties. With that background, the Tribunal addresses the complaint of discrimination. The Tribunal considers that in view of the media attention given to this inquiry, it is necessary to state what the inquiry is about and what it is not about. This inquiry is not about a review of the adequacy of the arrangements pertaining to the orchestra pit in the Sydney Opera Hall. It is not directly concerned with the adequacy of the arrangements for the performance of the brass section of the Opera House orchestra or any other section of that orchestra. This inquiry is concerned with the complaint of Mr Carr that because of a disability, he has been treated less favourably by Opera Australia in the terms of the employment offered to him than the terms which Opera Australia extends and the manner in which it treats other of its employees who do not have the disability in the same circumstances. Specifically it is claimed by Mr Carr that on the ground of his propensity to suffer seizures under the conditions of his employment, in the terms of s 49B(1)(a) of the Anti-Discrimination Act 1977 (the Act), Opera Australia has treated him less favourably by requiring him: 1. To remain on leave since 30 June 1996; or 2. To remain on leave without pay during that period when it has not required other members of the orchestra who do not suffer from seizures to take long periods of leave or long periods of leave without pay. In addition it is claimed by Mr Carr that in terms of s49B(1)(b) of the Act Opera Australia has discriminated against him on the grounds of his propensity to suffer seizures under conditions relating to his employment by requiring him to comply with the condition of his employment: 1. That he not suffer from seizures; or 2. That he perform his duties as a member of the brass section of the orchestra without becoming affected by seizures and that a substantial number of the members of the orchestra who do not have a propensity for seizures are able to comply with such a condition and that such a condition for the employment of Mr Carr is not reasonable in the circumstances of this case. If the Tribunal is satisfied that the respondent has discriminated against Mr Carr on one or more of these items of complaint, it is claimed that the discrimination is unlawful under s 49D(2) (a) (b) and (d) of the Act which provide that discrimination in work is unlawful in the situations described in that subsection. Section 49D(2) states:- 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 (d) by subjecting the employee to any other detriment. It is necessary to stress that subparagraph (c) of s 49D(2) is not claimed to apply to Mr Carr. That subparagraph provides that discrimination occurs "by dismissing the employee." It is not claimed that Mr Carr has been dismissed by Opera Australia. Opera Australia has not purported to dismiss Mr Carr. His status is as an employee on leave without pay. If subparagraph (c) of s 49D(2) were to apply it would bring into operation the provisions of subsection (4) of s 49D. Subsection (4) is in the following terms:- 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. Because subsection (4) of section 49D has no application to the issues in this inquiry, it is not appropriate to consider whether in relation to Mr Carr's disability, he would be unable to carry out the requirements of his employment or to consider whether in order to carry out those requirements Opera Australia would be required to provide services or facilities not required by persons without that disability and which would impose hardship on Opera Australia. The consideration of the Tribunal in this inquiry is therefore confined to the elements which constitute discrimination under s 49B (1) (a) and (b) and if discrimination has been suffered by Mr Carr whether that discrimination is unlawful by virtue of the operation of subparagraphs (a) (b) or (d) of s 49D(2) of the Act. First it is necessary to determine whether the nature of the seizures suffered by Mr Carr is a disability within the meaning of disability as defined in s 4(1) of the Act. Subparagraphs (a) and (c) of that definition in that section defines disability to mean:- (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or Counsel for the respondent has conceded that the nature of the seizure of the type suffered by Mr Carr is a disability within the meaning of this definition. The concession was qualified to the extent that the admission did not accept that Mr Carr had suffered such seizures. As no evidence was advanced by the respondent to support the proposition that Mr Carr had not in fact suffered the seizures to which he deposed, the Tribunal finds that the complainant did suffer thirteen seizures of the nature described by the complainant and that the nature of those seizures constitutes a disability within the meaning of disability in s 4(1) of the Act. It was contended by the respondent that even if the elements which constitute discrimination under the provisions of s 49B (1) (a) or (b) of the Act were established, discrimination could not occur where the respondent did not have a choice to take a course of conduct which otherwise would constitute discrimination when the circumstances did not allow it to do otherwise. This contention proceeded on the basis that by force majeure, in effect, the respondent had to act as it did in this case to protect the other members of the orchestra from harm if in the state of a seizure during a performance of the orchestra as Mr Carr agreed might occur, his arms and legs behaved in the form of uncontrollable flailing and twitching. Such an occurrence, it was asserted by the respondent, could result in a performance of the opera being cancelled or delayed. If cancelled, the financial loss to the respondent was estimated as exceeding $400,000 or if delayed, the cost would be approximately $100,000. In the view of the Tribunal the Act does not allow such a broad exception to operate to over-ride what otherwise constitutes discrimination as determined by the application of the specific provisions of the Act. If such an exception were intended to apply, it would have been included in the general exceptions contained in Part 6 of the Act or in the specific exceptions contained in the sections of the Act which determine whether an act of discrimination is unlawful, such as, by way of example, subsections (3) and (4) of s 49D. This view of the Tribunal is confirmed when consideration is given to the operation of subsection (4) of s 49D. This subsection in its potential application to the circumstances of this complaint may have the effect contended for by the respondent but for its limited scope, that is that the operation of the subsection is expressly limited to circumstances to which subsections (1)(b) and (2)(c) of section 49D apply. It is clear that the legislature did not intend that a general exception of the nature contended for by the respondent should operate to restrict the application of s 49B (a) or (b) of the Act. The respondent has submitted that if the Tribunal determines that the elements of unlawful discrimination by the respondent against the claimant has been substantiated under ss 49B and 49D of the Act that the general exception in s 54(1) of the Act operates so that the act or acts of discrimination are not rendered unlawful. Section 54(1) provides:- 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, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment The respondent relies on two circumstances to support the application of s 54(1). Firstly that the act or acts of discrimination occurred as a result of the carrying out by the respondent of the agreements reached between the parties before the Australian Industrial Relations Commission to which reference has been made earlier. This contention fails as the respondent has not produced evidence of that agreement and it is not apparent to the Tribunal what arrangements were provided for which would impact on the issues the subject of this inquiry or whether the final form of the agreement could be classified under any of the subparagraphs of s 54(1). Secondly the respondent contends by virtue of the operation of subsections 15 and 16 of the Occupational Health and Safety Act of New South Wales that the respondent was under a statutory obligation to ensure that safe working conditions were in place for all its employees. In considering the application of s 54(1) care has to be exercised to ensure that the introductory words to the section are recognised. As the section contains exceptions to the Act, it requires a strict and narrow application of the introductory words to justify the application of the exceptions; see Waters & Ors v The Public Transport Corporation 1991 EOC 92 390. By virtue of s 109 of the Act the respondent bears the onus of establishing this defence. The relationship of the provisions of subsections 15 and 16 of the Occupational Health and Safety Act to the provisions of s54(1) of the Anti-Discrimination Act has been considered in a number of cases before this Tribunal. In Burrows v The New South Wales Commissioner of Police 1994 EOC 92 654 the Tribunal referred to the effect of the decision of the High Court in Water's case in this context in the following terms: "It is stated that the defence was effectively available if it was necessary for the respondent to comply with a specific requirement directly imposed by the relevant legislation as distinct from a requirement imposed by a person in the exercise of power conferred by the provision." In dealing specifically with subsections 15 and 16 of the Occupational Health and Safety Act the Tribunal in that case stated: "These sections impose only a general obligation on an employer and not a specific requirement which would authorise conduct which would otherwise be unlawful under the Act." In Kitt v The Tourism Commission 1987 EOC 92 196 the Tribunal in that inquiry referred to subsections 15 and 16 of the Occupational Health and Safety Act and said: "There is no concept of reasonableness imported here. The question is not one of what the employer believed nor of whether any such belief was reasonably held or based upon adequate grounds. The sole question is whether from an objective point of view Mr Kitt's employment constituted a risk to the safety of other persons within the meaning of subsections 15(1) and 16(1) of the Occupational Health and Safety Act." This statement of the need for an objective assessment by the Tribunal was applied by the Tribunal in its decision in Willis v The State Rail Authority of New South Wales 1992 EOC 92 to 416 at p 78 772. In this inquiry only evidence of a general nature has been put before the Tribunal as to the possible dangers to other employees if Mr Carr should return to his position with the orchestra and suffer a seizure. The respondent has relied on admissions by the complainant in his points of claim that a seizure may result in uncontrollable flailing and twitching of the complainant's arms and legs. The respondent has sought to adduce from this admission that other employees in the orchestra would be in danger of injury if this reaction occurred. Mr Carr points to the situations when he had seizures at his workplace when no danger of that nature in fact occurred. The Tribunal finds that the generality of the submission and the lack of specific evidence which would demonstrate the reality of risk to other employees if Mr Carr should have a seizure in the workplace does not enable the Tribunal to make an objective assessment of the necessity for the respondent to require the complainant to be placed on leave without pay in order to comply with the general provisions of subsections 15 and 16 of the Occupational Health and Safety Act. The Tribunal accordingly rejects the defences sought by the respondent under s 54(1) of the Act. We now come to the findings of unlawful discrimination. The Tribunal finds that, having regard to the background material produced to it, the complainant has substantiated on the balance of probability that on the grounds of his disability Opera Australia has discriminated against Mr Carr within the provisions of s 49B(1) (a) of the Act by requiring Mr Carr to take leave without pay since 20 June 1996 in circumstances where Opera Australia has not required its other employees who do not suffer from disability to take such leave. The Tribunal further finds that the discrimination is unlawful by virtue of subparagraphs (a), (b) and (d) of s 49D(1) because of the terms of the employment offered to Mr Carr during that period, the denial to Mr Carr during that period of access to opportunities for promotion or other benefits such as long service leave, holiday pay and sick leave and to the detriment to him in the lack of ability to develop his career during that period. In considering the application of s 49B(1)(b) of the Act to the circumstances relating to Mr Carr's period of leave without pay, the Tribunal is satisfied that the material presented to it establishes the elements required for that subsection to apply except that in the opinion of the Tribunal the material is not sufficient to discharge the onus on the claimant to establish that the conditions imposed for his continued full employment were not reasonable. The Tribunal in the circumstances points out that the result of this view of the Tribunal is not a finding that the conditions were reasonable. The overall result of these findings is that the complaint under s 49B(1)(a) has been substantiated. Accordingly the Tribunal now considers what orders should be made in order to correct the adverse effect suffered by Mr Carr as a consequence of the unlawful action taken against him by the respondent It has been submitted by the respondent that the complainant was obliged to mitigate his financial loss and the respondent cross-examined the complainant on the steps he has taken in this regard. The complainant has shown that since 20 June 1996 he has applied for a number of casual positions as trumpet player in orchestras in Sydney, Adelaide and Perth. He was successful in several of these applications and earned casual wages during a number of short period appointments. The claimant also worked casually as a handyman since 20 June 1996. The taxation and other records of the claimant supplied to the Tribunal show that since 20 June 1996 the claimant has earned net income from these sources of approximately $37,363. The Tribunal is satisfied that the claimant has taken reasonable steps to mitigate his financial loss. The Tribunal also notes that recently the claimant has applied for and has been accepted as being entitled to Social Security benefits. It was also submitted by the respondent that this is an appropriate case for the Tribunal to apply s 113(1)(b)(v) of the Act which provides for the Tribunal, after finding a complaint is substantiated, to decline to take any further action in the matter. For the Tribunal to take this course would require the Tribunal to take the view that the nature of the unlawful discrimination and the extent of the loss and damage suffered by Mr Carr as a consequence, were of a trivial or inconsequential nature. The Tribunal holds the opposite view of the serious nature of the wrongs to which Mr Carr has been subjected and it does not accede to this submission. The Tribunal has taken into account the following matters in determining the appropriate orders to compensate Mr Carr. Firstly that the total amount of salary forgone by Mr Carr from Opera Australia for the period from 20 June 1996 to today calculated at his normal rate of pay at 30 June 1996 of $39,999 per annum amounts to $96,378. From this amount should be deducted the net income Mr Carr has earned during that period from his casual employment amounting to approximately $37,363. His total financial loss is therefore $59,015. This amount exceeds the maximum amount of $40,000 that under s 113(1)(b)(i) of the Act the Tribunal may award. An award of $40,000 is less than the actual financial loss suffered by Mr Carr. In addition the maximum limit of $40,000 prevents the Tribunal from awarding any amount by way of general damages for the stress and humiliation that Mr Carr undoubtedly has suffered since 20 June 1996. The wrong perpetrated on Mr Carr needs to be corrected so that he is reinstated to an active role in the Opera Australia orchestra as the associate principal trumpet player. Such reinstatement should have conditions applied which reduce these adverse impacts on him. The Tribunal is not able from the material before it to determine under what playing conditions in the orchestra pit Mr Carr should be effectively reinstated. It may be necessary for Opera Australia to make modifications to the conditions in the opera pit as they affect the brass section to reduce as much as possible the risk of Mr Carr suffering a seizure. After taking into account these matters the Tribunal makes the following orders: 1. The Tribunal finds that the complaint the subject of this inquiry has been substantiated. 2. The Tribunal orders that the respondent pay to the complainant within fourteen days from today an amount of $40,000 as compensation for his financial loss. 3. The Tribunal orders that the respondent forthwith reinstate the complainant to an active role as associate principal trumpet player in the Opera Australia orchestra on terms consistent with the terms applicable to that position. 4. The Tribunal orders that the respondent credits to the complainant such amounts of long service leave, holiday pay and superannuation as he would have been entitled if he remained in paid employment as associate principal trumpet player with the respondent between 20 June 1996 and the date of his reinstatement to the position. 5. The Tribunal orders that at the time of the complainant's reinstatement, the respondent supply to the claimant a letter which states that the inactivity of the claimant as a member of the orchestra of Opera Australia during the period from 20 June 1996 to the date of reinstatement is not a reflection on the ability of the claimant to perform effectively as the associate principal trumpet player of the orchestra. Costs The claimant has sought an order for the costs of the claimant to be paid by the respondent. Under the provisions of subsections (1) and (2) of s 114 the Tribunal can award costs to a party only where in a particular case the Tribunal is of the opinion that the circumstances justify it doing so. The decisions of this Tribunal and of other courts and tribunals in considering similar provisions of other legislation have determined that the Tribunal must be satisfied that the circumstances of the case is sufficiently exceptional that the principal provision for each party to pay its own costs should not apply. In this inquiry the Tribunal is concerned that the restrictions of the Act which limit to $40,000 the amount to be awarded to Mr Carr, clearly do not compensate him for all the actual loss he has suffered and this amount will be further eroded in the absence of an award of costs. The Tribunal considers this case is sufficiently exceptional to justify an award of costs in favour of the complainant. Accordingly the following additional order is made: 6. That the respondent pay to the complainant an amount to cover the reasonable and proper costs incurred by the complainant in making this complaint and in its prosecution before this Tribunal. Such costs to be assessed on a party party basis. If the parties are unable to agree on the amount of such costs by 31 January 1999 either party shall be at liberty to apply to this Tribunal for orders for the taxation of the costs. That concludes the decision of this Tribunal. Are there any matters that counsel would like to refer to? STUART: Given the time of the year and Christmas is approaching, things are closing down, we'd like to reserve our position regarding approaching the Tribunal for a stay of the various orders. CHAIRPERSON: We don't have any power to do that. You'll find under the Act that there are certain time requirements for lodging appeals. STUART: The position is this, various orders have been made, we'd like to reserve our position until written reasons are available. You indicated that various things had to be carried out within fourteen days and others forthwith. The position is that if what we've recorded differs from what you've ordered-- CHAIRPERSON: I think that's reasonable. Do you have any objection Miss Winters if we incorporate a further direction to the effect that the application of the orders be stood over until such time as the final wording of the decision has been released by the Tribunal. STUART: I think that's appropriate. CHAIRPERSON: One of the troubles with that will be that some of those dates - well fourteen days-- STUART: Well if it happens on Christmas eve it still leaves us in some trouble, that's all. CHAIRPERSON: What if we release it on Christmas eve. STUART: Well you've said ten days from today which would take it to 23 December and if at that stage we-- CHAIRPERSON: Well I'll add this rider as well-- WINTERS: Can I just be heard because I think there's a problem. I think once the Tribunal has made a decision it's made and for example appeal time starts from today. I've encountered this difficulty before and irrespective of the published decision, the decision is made and dated today and time runs from today for all purposes. CHAIRPERSON: I think you're right Miss Winters, I think that's right Mr Stuart what Miss Winters says so you've got the time running against you now. The best thing we can do to try and facilitate your position is to see if we can't get this transcript out urgently. Even that will mean a couple of days delay at best. I can't do any more about that. I'm not in control of the transcript and I'm not in control of the provisions in the legislation. STUART: All I say is that time is running now on various orders and we don't know the exact terms of the various orders which have been made, the details in the letter that we have to provide to Mr Carr, for example-- CHAIRPERSON: Well I might be able to have those particular parts of the decision transcribed for you. STUART: Perhaps if that part of the decision can be transcribed-- CHAIRPERSON: The orders. STUART: --as soon as possible, yes, and then the balance certainly-- CHAIRPERSON: I don't suppose you have any objection to that Miss Winters. STUART: --we'd ask well within the fourteen days. WINTERS: Not at all. CHAIRPERSON: Sorry? STUART: The balance well within the fourteen days, I don't know, the thing is otherwise we've got Christmas eve and we're running out to ..(not transcribable).. we've got to do this, that and the other thing. It's just the time of the year which this occurs puts us in a difficult position. CHAIRPERSON: What's your difficulty? STUART: We'll simply be approaching people on Christmas eve saying, look can you do this. CHAIRPERSON: It's within fourteen days. DISCUSSION RE TRANSCRIPT CHAIRPERSON: We can release a tape of the-- STUART: I'd be satisfied with that. CHAIRPERSON: That can be done straight away? SPEAKER: ..(not transcribable).. tomorrow. CHAIRPERSON: By tomorrow. So we can make a tape available to you tomorrow. So that might go some way to assist you. Do you have any comments? STUART: No. CHAIRPERSON: That concludes the inquiry. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. DEPUTY REGISTRAR 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.