Equal Opportunity Tribunal of New South Wales CITATION: Brown -V- Boardman T/A The Albury And District Private Nursing Home [1997] NSWEOT COMPLAINANT: Ms Shirley Brown RESPONDENT: Boardman t/a The Albury and District Private Nursing Home NUMBER: 11 of 1996 Mr Reginald Bartley AM ( Judicial Member ) TRIBUNAL: Ms L Farmer OAM Mr M Luger GROUNDS OF COMPLAINT: Discrimination on the ground of disability in the area of employment. DATES OF HEARING: 01/20/1997 DATE OF JUDGMENT: 01/20/1997 Complainant: Ms Fran Davis (Counsel) LEGAL REPRESENTATIVES: Respondent: No appearance JUDGMENT IN FAVOUR OF: This is an application by the Complainant lodged with the Anti-Discrimination Board on 2 February 1995 on the grounds of discrimination by her employer, the Respondent. The Respondent does not appear, despite knowing of the hearing. But all the correspondence on behalf of the Respondent is before the Tribunal. The Tribunal takes the view that, notwithstanding the nonappearance of the Respondent, we have to satisfy ourselves that, firstly, there's been a breach of the Act; in particular, sections 49A, 49B, 49C, and 49D. The Tribunal has to consider the definition of "disability" in section 4; secondly, if the Act has been breached, the order that should be made under section 113 including damages. The facts appear from the documents tendered before the Tribunal. But shortly, in a brief summary, it appears the Complainant commenced work with the Albury & District Private Nursing Home in 1977 and took up permanent, full-time employment in 1978. Between 1978 and 1993, the Respondent being a hospital, she worked at night four 10-hour shifts a week. In February 1993 her shifts changed to five 8.5-hour shifts at night till April 1994 which was the last time she worked at the nursing home. She resigned in January 1995. In the meantime, there had been a decision by the Workers Compensation Court in respect of an injury sustained by the Complainant on her way travelling to work in 1987. The Workers Compensation Court awarded the Complainant a total of $109,000, 60,000 being for the loss of future earnings. In January 1993, alterations were made to the rosters at the nursing home. This involved the Complainant's shifts changing to five 8.5-hour shifts a week. This involved, she also says, her doing the duties she used to do on the four 10-hour shifts and also showering, cleaning, dressing the patients and putting them in armchairs, though she said she found it difficult to cope. In her evidence today, she said that the duties on the night shifts did not very often include those matters. The discrimination by the Respondent alleged by the Complainant appears that he required her to work five days rather than four days despite the fact she had a bad back. There is some cloud over the fact whether the Respondent knew, at the time he changed the rosters, that he knew of her bad back. But it certainly is a fact that he wasn't given any medical certificates concerning her bad back until after the rosters were changed. It is noted also the Complainant says the rosters were changed after consultation with the staff. The Complainant says that on 24 March 1994, she was notified she would be rostered on two weeks day duty commencing 11 April. And she says that consideration would not be given to the weight of the residents she would be caring for, on the day duty. She said further, the night duties were performed while residents remained in bed, but the day duties consisted of transfers to showers, chairs, armchairs and back to bed, etc. It was indicated this compulsory training. The Complainant says that was her view anyhow, when she was required to do this particular work in the day. And it does appear that was about the last time she worked. The Tribunal would have to consider, even though it has not been raised, an argument that the necessary requirements of the nursing home (in not taking the Complainant back to work) whether that would impose unjustifiable hardship on the home, and what constituted that defence. In the lack of such submissions by the Respondent, it is difficult for this Tribunal to determine. And we do not propose to determine that particular matter. The Tribunal is of the view that the Complainant has not established changes in the nursing home roster were an act of discrimination by the employer. It is noted the medical certificates were presented after the changes were proposed. And there is no evidence to suggest that the change in rosters were deliberately designed to require the Complainant to leave work. We have carefully examined the evidence subsequent to the change of rosters up until the last day of work in 1994 by the Complainant. And the evidence, in our view, does not support the claim by the Complainant that she was discriminated in this period in respect of the rosters. We are of the view that the Complainant has not established a breach of the Act by the Respondent, and the complaint is dismissed. 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.