Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kuruppa v Director General, Department of Justice and Attorney General [2011] NSWADT 51 Hearing dates: 1 March 2011 Decision date: 11 March 2011 Before: Magistrate N Hennessy Decision: Leave is refused for Ms Kuruppa's complaint of disability discrimination to be the subject of proceedings in the Tribunal. Catchwords: LEAVE - whether fair and just for complaint of disability discrimination in employment to proceed - complaint lacks merit Legislation Cited: Anti-Discrimination Act 1977 Category: Interlocutory applications Parties: Mahanel Kuruppa (Applicant) Director General, Department of Justice and Attorney General, Department of Justice and Attorney General (Respondent) Representation: G Mahony (Respondent) Gilbert and Tobin (Applicant) Crown Solicitors Office (Respondent) File Number(s): 111013 Reasons for Decision Introduction 1Ms Kuruppa complained to the Anti-Discrimination Board that she had been discriminated against by her employer, the Director-General of the Department of Justice and Attorney General, on the ground of her disability (trigeminal neuralgia). The President of the Board declined the complaint as lacking in substance. Ms Kuruppa requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission ('leave'): Anti-Discrimination Act 1977 ( AD Act ), s 96. 2Leave applications should be determined on the basis of what is fair and just in all the circumstances: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 per Schmidt AJ. The test is not the same as that for determining whether to summarily dismiss a complaint because it lacks substance. The applicant bears the onus of persuading the Tribunal that it fair and just for it to proceed. The only issue in this case is whether the complaint has sufficient merit to justify leave being granted. Background to the complaint 3Ms Kuruppa began work at the Glebe Coroner's Court as a clerical officer on 21 March 1988. Ms Kuruppa suffers from trigeminal neuralgia which is a disorder characterized by episodes of intense pain in the face, originating from the trigeminal nerve. Despite the fact that her position statement included monitoring (ie sound recording) court proceedings, her medical condition meant that it was not advisable for her to use a headset or earpiece. The Department did not require her to undertake court monitoring activities and she focused on other tasks such as filing, sorting and distributing mail and answering telephone calls. 4In 2009 the Department restructured the General Scale Clerk positions at the Glebe Coroner's Court. There was no change to the position descriptions of those officers but the number of clerical officers was reduced to three. Each of those officers, including Ms Kuruppa, was required to undertake court monitoring activities. The Department acknowledged that Ms Kuruppa was not able to do so and following a 'fitness for duty' assessment she was offered either medical retirement or a transfer to another position at the same grade. 5Ms Kuruppa accepted a position at Parramatta Children's Court which did not involve court monitoring and commenced working there on 31 May 2010. Ms Kuruppa says she experienced a high degree of stress and difficulties in her new role and went on sick leave at the end of August 2010. She lodged a complaint of disability discrimination and has not returned to work since. 6Mr Fogarty, representing Ms Kuruppa, initially identified the conduct complained of as the decision to transfer his client to Parramatta Children's Court. During the course of the leave hearing, the conduct was identified as the decision to restructure Ms Kuruppa's position so that she was required to undertake court monitoring duties. Legislative framework 7It is unlawful for an employer to discriminate against an employee on the ground of the employee's disability in relation to the terms or conditions of employment. It is also unlawful for an employer to discriminate by subjecting an employee to any other detriment: AD Act , s 49D(1)(b) and (d). Unlike the situation under the Disability Discrimination Act 1992 (Cth) ( DDA ), it is not unlawful under the NSW legislation, for an employer to fail to make 'reasonable adjustments' for an existing employee with a disability: DDA, s 5(2)(a). 8Discrimination can be 'direct' or 'indirect': AD Act , s 49 B(1)(a) and 49B(1)(b). Ms Kuruppa's claim was that the Department had discriminated against her either 'directly' or 'indirectly'. In order to substantiate a complaint of direct disability discrimination, Ms Kuruppa would have to prove that: a) she has a disability as defined in s 49A and s 4 of the AD Act ; b) the Department changed the terms and conditions of her employment or subjected her to a detriment; c) by doing so, the Department treated Ms Kuruppa less favourably than it treated or would have treated a person without her disability in the same or similar circumstances; (differential treatment) and d) at least one of the reasons for that treatment was Ms Kuruppa's disability (causation). 9Alternatively, to substantiate a complaint of indirect discrimination, Ms Kuruppa would have to prove the matters listed at a) and b) above and, in addition, that: e) in changing the terms and conditions of employment or subjecting her to a detriment the Department required her to comply with a requirement or condition; f) a substantially higher proportion of people who do not have Ms Kuruppa's disability can comply with that requirement or condition; g) Ms Kuruppa cannot comply with the requirement or condition; and h) the requirement or condition is not reasonable having regard to the circumstances of the case. Disability 10There is no dispute that Ms Kuruppa has a disability within the meaning of that term in the AD Act . Terms and conditions of employment or detriment 11Mr Fogarty submitted that the Department changed the terms and conditions of Ms Kuruppa's employment by requiring her to perform court monitoring duties. The Department disputes that assertion saying that Ms Kuruppa was never required to perform those duties. Rather, she was given the option of accepting medical retirement or transferring to an equivalent position where those duties did not have to be performed. 12The phrase 'terms and conditions of employment' is not limited to the terms and conditions of any contract between the parties. It applies to all the demands, benefits, requirements and concessions actually imposed or afforded: New South Wales v Amery (2006) 80 ALJR 753 at 766 to 767. It is arguable that the Department altered the terms and conditions of Ms Kuruppa's employment (or subjected her to a detriment) by making decisions which meant that she could not continue in her current position. Differential treatment 13The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Ms Kuruppa must be compared with the treatment that would have been afforded to a person who does not have trigeminal neuralgia in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Ms Kuruppa, a decision maker would have to rely on a hypothetical person in a comparable situation. When there is no actual comparator, the differential treatment and causation enquiries merge because the Tribunal could only reach the conclusion that the Department treated Ms Kuruppa less favourably than a hypothetical person by deciding that disability was a reason for that treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 and Dutt v Central Coast Area Health Service [2002] NSWADT 133. Causation 14The second part of the test for direct discrimination is 'causation'. At least one of the reasons for being treated in the way Ms Kuruppa was treated must have been her disability. There is no need to prove that the Department intended to discriminate. Discrimination may not be conscious. However, the fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. 15Mr Fogarty, representing Ms Kuruppa, submitted that his client should not be deprived of the opportunity to prove her claim because she does not know the reason that the Department changed the terms and conditions of her employment or subjected her to a detriment. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation under the AD Ac t is that the legal and evidential burden remains on the applicant to prove his or her case. 16Nevertheless, the Department volunteered that the restructure was necessary to meet the expectations of the community, staff and the judiciary. It was said that government and budgetary constraints meant that work practices needed to be reviewed and enhanced and new procedures implemented. Following the restructure, it was not possible to accommodate Ms Kuruppa's needs and, as I have noted, there was no legal obligation to do so under the AD Act . The Department identified an alternative position for Ms Kuruppa with the same employment conditions as she had been enjoying in the past. 17There is no direct evidence, nor evidence from which an inference could be drawn, that Ms Kuruppa's disability was a reason for the restructure. Even if Ms Kuruppa had access to the documents relevant to the restructure, it is highly unlikely that she would be able to prove that a reason for changing the terms and conditions of her employment (or subjecting her to a detriment) was her disability. Indirect discrimination 18In relation to the alternative complaint of indirect discrimination, Mr Fogarty submitted that the Department had imposed a requirement or condition on Ms Kuruppa and others at her level, to perform court monitoring duties. The Department denies that it imposed such a requirement on Ms Kuruppa. Even if such a requirement was imposed, it was not an absolute requirement. Ms Kuruppa was given the option of accepting medical retirement or transferring to a different position where court monitoring was not required. Given that she accepted the transfer and commenced working in the new position, she could comply with at least one of the options she was offered. On that analysis, Ms Kuruppa would not be able to prove the element of indirect discrimination set out at [9](g) above. Conclusion 19Ms Kuruppa has not discharged her onus of persuading the Tribunal that the complaint has sufficient merit to make it fair and just for it to proceed. The complaint of direct disability discrimination is highly likely to fail because there is no direct evidence, or evidence from which an inference can be drawn, that Ms Kuruppa's disability was a reason for the restructure. Nor is a complaint of indirect disability discrimination arguable in circumstances where Ms Kuruppa was given the option of transferring to a different position but with the same terms and conditions as she had been enjoying. We agree with the observation of Ms Mahony, representing the Department, that the evidence supports the conclusion that the trigger for Ms Kuruppa's complaint was that she was not happy in her new position. This Tribunal is not the appropriate forum to resolve that grievance. Order Leave is refused for Ms Kuruppa's complaint of disability discrimination to be the subject of proceedings in the Tribunal. ********** 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. Decision last updated: 14 March 2011