Equal Opportunity Tribunal of New South Wales CITATION: French -V- Sydney Turf Club [1998] NSWEOT COMPLAINANT: Margaret French RESPONDENT: Sydney Turf Club NUMBER: 212 of 1996 Mr Reginald Bartley AM ( Judicial Member ) TRIBUNAL: Ms S Tracey Mr A Silva GROUNDS OF COMPLAINT: Disability discrimination - employment DATES OF HEARING: DATE OF JUDGMENT: 02/13/1998 Complainant: Mr A Whyburn R L Whyburn & Associates (Solicitor) Ms N Rudland (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr P Sandel Manion McCosker (Solicitor) Mr R Warren (Counsel) JUDGMENT IN FAVOUR OF: Respondent On 15 May 1995 Margaret French, (hereinafter called the complainant), complained to the Anti-Discrimination Board against her employer, the Sydney Turf Club, (hereinafter called the respondent) on the ground of discrimination in work based on the fact the employer, the respondent, had discriminated against her being a person with a physical impairment by which she had suffered a detriment. The parties have agreed on the following facts: (1) The complainant, Margaret French, is a female who was born on 30 April 1944. (2) The respondent, the Sydney Turf Club, operates inter alia a catering and liquor service at racecourses in the Sydney metropolitan area. (3) The complainant was employed with the respondent as a bar attendant, initially working seven to eight hours each day of race meetings at Rosehill Gardens and Canterbury Racecourses. (4) On 10 September 1988 the complainant suffered a work related accident which resulted in injury to her back and right leg. (5) As a consequence of this injury, the complainant was absent from work for a period of seven months from 3 November 1988 to 24 June 1989. (6) Throughout this period the complainant received weekly worker's compensation benefits from the respondent's workers' compensation insurer, GIO Australia. (7) The complainant returned to work on 24 June 1989 on restricted hours of four hours per race meeting. (8) Upon return to work, GIO Australia made up the complainant's pay to the full amount received prior to her injury in September 1988. (9) In or about November 1991, the complainant was advised that GIO Australia would refuse liability and cease payments with effect from 18 December 1991. The complainant's worker's compensation claim was settled by agreement between the parties on 7 May 1993. (10) The complainant made request of the respondent that she be reinstated to her pre-injury hours. The parties are not in agreement as to how these requests were treated by the respondent. (11) At no time since the complainant's return to work on 24 June 1989 has she worked her pre-injury hours. (12) The complainant was absent from work from 24 November 1993 and returned to work as a bar attendant on four hour shifts in the week commencing 7 September 1994. (13) The complainant continued to request return to full shift as a casual bar attendant. These requests were refused. The parties are not in agreement as to whether the refusal was conditional upon any event. (14) The complainant suffers the physical restriction she is unable to lift trays of glasses from a squatting position. The parties are not in agreement as to whether the complainant suffers any further physical restrictions. In addition to those matters, the parties have agreed: 1. The complainant had a disability at the date of her complaint to the Anti-Discrimination Board, 15 May 1995. 2. The complainant relies on s.49B(1)(a)(b) and s.49D(2)(a)(b)(d) of the Anti-Discrimination Act 1977. 3. The respondent cannot rely on s.49D(4), the "unjustifiable hardship" section in respect of the grounds relied on. 4. The burden of proof lies on the complainant. 5. There was a worker's compensation payment made to the complainant in relation to a twenty per cent permanent disability to the complainant's back and a ten per cent permanent disability to the complainant's right leg. 6. Prior to her injury in 1989, the complainant worked in excess of four hours a day on the day she was employed. Since 1989 she has only worked, when she worked, it was four hours a day. 7. The complainant claims she is being discriminated against by her employer, the respondent, as the respondent will not employ her for a full shift of eight hours per day but only for four hours per day because of her disability. 8. The employer says due to the nature of the job the respondent can employ her for four hours a day but due to the fact of her disability she cannot be gainfully or safely employed for longer. 9. The parties have agreed the law applicable is the law as applied on 15 May 1995 and today. The case has proven difficult for the Tribunal as it began with two complaints but at the conclusion of the evidence the parties agreed (1) one complaint was out of time; and (2) in addition, the matter the subject of that complaint was dealt with in the Industrial Relations Court and the complainant was now estopped from pursuing the matter before the Tribunal. As a result, the Tribunal has had to review the whole of the evidence to ensure what evidence is applicable to the remaining complaint. Dealing with the actual complaint, in respect of the employment of the complainant by the respondent, the matter at issue is the competence of the complainant to work a full shift, seven or eight hours, or whether she is only able to work for a four hour shift. The Tribunal is of the view that the lifting of glasses, restocking the refrigerator with cans of beer and moving the cash register for cleaning are essential parts of the duties of a bar attendant. We also find that the normal shift for bar attendants is from about 10.30am on a working day for approximately eight hours. This requires a setting up of the bar and at the end of the day packing the stock and cleaning and finishing up duties. The complainant works a four hour shift from midday and is not required to do the setting up work and finishing work as the respondents are of the view that her injuries prevent her from doing it. Over the period of time the complainant has claimed discrimination against the club, the club was aware of the worker's compensation claim settled on 5 May 1993 in which she received compensation for the permanent impairment of her back twenty per cent and the loss of her right leg, ten per cent. The respondent had medical certificates arising out of that claim stating the complainant could cope with part time activities. Dealing with this matter, we paid particular regard to the following cross-examination. The complainant was asked in cross-examination, question "that if he (Mr Kenny) has consistently said that when you have a medical clearance that he couldn't see any reason why you shouldn't return to a full shift, if you get a medical clearance to say you can work, he has done that, hasn't he". Answer "on a couple of occasions". Question "I suggest to you that hasn't been supplied". "That is correct, yes". In our view, in respect of 49B(1) the respondent has not treated the complainant less favourably than in effect than any other person in the same circumstances, or in circumstances which are not materially different. We are of the view that the respondent has done all it could to help the complainant in the circumstances, especially having regard to her disability. In addition, in continuing the complainant's employment in the way they have done they have not breached s.49(1)(2)(a), (b) and (d) of the Anti-Discrimination Act. We have carefully considered the submissions on s.49B(1)(b) which is a very awkwardly worded section. We have come to the conclusion the circumstances of this case do not fall within its terms. Notwithstanding this, we are of the view that the respondent's requirements in respect of the complainant are quite reasonable. For these reasons the complaint is dismissed and there is no order as to costs. 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.