Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Edmundson v Endeavour Foundation [2011] NSWADT 96 Hearing dates: 1 March 2011 Decision date: 01 March 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for Mr Edmundson's complaint of disability discrimination to proceed is refused. Catchwords: LEAVE - complaint of disability discrimination against employer declined as lacking in substance - whether fair and just for complaint to proceed - merits of the complaint - whether likely that inherent requirements defence would be made out Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Category: Separate question Parties: Robert Edmundson (Applicant) Endeavour Foundation (Respondent) Representation: Robert Edmundson (Applicant - in person) Berry Buddle Wilkins Lawyers Pty Ltd (Respondent) File Number(s): 111010 REasons for decision Introduction 1The applicant, Mr Edmundson, alleges that his former employer, Endeavour Foundation, discriminated against him on the ground of his disability by terminating his employment as a packer. Mr Edmundson suffered a recurrence of a back injury at work in September 2007. At a meeting on 24 September 2009, he was asked whether he could return to work for one hour, 2 days a week. He refused that offer because he was still totally unfit for work and had a medical certificate to that effect. As he had been absent for more than 6 months and was totally unfit for work, the Endeavour Foundation formed the view that they had complied with their obligations under the Workplace Injury Management and Workers Compensation Act 1998 are were entitled to terminate his employment. 2Mr Edmundson re-applied for part-time work as a packer with the Endeavour Foundation on 4 June 2010 but that application was refused. Endeavour Foundation says that it was refused because Mr Edmundson remained totally unfit for work. Mr Edmundson complained to the Anti-Discrimination Board on 11 August 2010. 3The President of the Board declined the complaint as lacking in substance: AD Act , s 92. Mr Edmundson requested that the complaint be referred to the Tribunal. The complaints cannot proceed unless the Tribunal gives its permission or 'leave': AD Act , s 96. In deciding whether to grant leave the Tribunal should be guided by what is fair and just in the circumstances. Relevant factors in this case include whether the complaint lacks substance: Jones and Anor v Ekermawi [2009] NSWCA 388 and AD Act, s 92(1)(a). The onus is on Mr Edmundson to satisfy the Tribunal that leave should be granted. President's reasons for declining complaint 4The President of the Anti-Discrimination Board declined the complaint on 16 December 2010 on the ground that it lacked substance. The specific reasons for declining the complaint was that: The complainant has not provided any information supporting his allegations that he was unlawfully discriminated against on the basis of his disability in relation to the termination of his employment, or his subsequent attempts to apply for employment with Endeavour. On the complainant's own medical evidence and his own admissions, he was totally incapacitated for employment, and therefore unable to carry out the inherent requirements of the position. Even if the complainant was fit for suitable duties for the period when he reapplied for employment, and the evidence is contradictory, Mr Edmundson has not provided any information that he was able to carry out the inherent requirements of the position given his restrictions. Disability discrimination complaint Legislative provisions 5The provisions of the AD Act which Mr Edmundson says have been breached are s 49D(2)(c) (in relation to the termination of his employment) and s 49D(1)(b) (in relation to the refusal to offer him employment). Those provisions state that: (1) It is unlawful for an employer to discriminate against a person on the ground of disability: ... (b) in determining who should be offered employment ... (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: ... (c) by dismissing the employee ... Definition of discrimination 6What it means to "discriminate against an employee on the ground of disability" is set out in s 49B(1): (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. 7Section 49B(1)(a) defines what is known as 'direct' discrimination. At least one of the reasons for the conduct must be the person's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A. Section 49B(1)(b) defines what is known as 'indirect' discrimination. Mr Edmundson is complaining of 'direct' discrimination. 8For Mr Edmundson to prove that he had been 'directly' discriminated against on the ground of disability in relation to the termination of his employment or in relation to the subsequent refusal of his application for employment, he would have to prove that: a) he has a disability as defined in s 49A and s 4 of the AD Act ; b) the Respondent dismissed him or did not offer him employment; c) that treatment was less favourable than the Respondent treated or would have treated a person without Mr Edmundson's disability in the same or similar circumstances; (differential treatment) and d) at least one of the reasons for that treatment was Mr Edmundson's disability (causation). Inherent requirements defence 9If Mr Edmundson was able to prove each of these elements, the onus would shift to the Respondent to prove that it has a defence under s 49D(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. 10In Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 the Tribunal stated at [57] that s 49D(4) first requires an employer to properly identify the inherent requirements of the job before dismissing an employee or failing to hire a person. The employer must then determine whether the employee with a disability could perform those requirements with the aid of services which are not required by people without the employee's disability. Finally, the employer must determine whether it would impose an unjustifiable hardship on the employer to provide the employee with those services or facilities which would enable them to perform the job in question. Disability 11It was not in dispute that Mr Edmundson suffers from a back injury and that his disability is a disability within the meaning of that term in the AD Act . Conduct about which Mr Edmundson complains 12The specific conduct about which Mr Edmundson complains is the termination of his employment on 24 September 2009 and the Respondent's refusal to re-employ him when he applied to work part-time on 4 June 2010. Differential treatment and causation 13The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. The treatment afforded to Mr Edmundson must be compared with the treatment that the Respondent would have afforded to another employee, real or hypothetical, without Mr Edmundson's disability in circumstances which are the same or not materially different. Mr Edmundson compared himself with his partner, who was also unfit to work from January 2009, but who agreed to work two 1 hour days per week and was not terminated. 14The Respondent submitted that the circumstances relating to Mr Edmundson's partner were materially different from Mr Edmundson's circumstances. They said that the partner's treating neurosurgeon, Dr Kam, formed the view that her back condition had resolved and the workers compensation insurer had denied the claim. 15Whether or not Mr Edmundson's partner's situation was materially different from Mr Edmundson's situation, she is not an appropriate comparator because a comparison must be made with a person without the same disability as Mr Edmundson. It appears that his partner also had a back injury. If Mr Edmundson's partner is not an appropriate comparator, a comparison must be made with a hypothetical person without Mr Edmundson's disability. If an employee without a disability, or with a different disability than that suffered by Mr Edmundson, was unable to work at all it is highly likely that an employer would be entitled to terminate that person or to refuse to employ them. Nevertheless, assuming that Mr Edmundson could prove that the Respondent would not have treated a person without his disability in the same way that he was treated, the next question would be whether a reason for that treatment was Mr Edmundson's disability. 16It is clear that the reason for terminating Mr Edmundson and for not re-employing him was that his disability rendered him totally unfit for work. In those circumstances, it is arguable that Endeavour Foundation has directly discriminated against him on the ground of his disability. 'Inherent requirements' defence 17If Mr Edmundson was able to satisfy the Tribunal that Endeavour Foundation had breached s 49D(2)(c) and/or s 49D(1)(b), the onus would shift to them to prove that their conduct came within the 'inherent requirements' defence. 18Mr Edmundson provided medical evidence that as at 24 September 2009, he was totally incapacitated for employment. From 6 March until 18 October 2009 he had been certified as totally incapacitated for employment by Dr Saxena. Dr Lee, a general practitioner, also certified the complainant as totally incapacitated for the period from 18 September 2009 until 18 October 2009. The evidence about Mr Edmundson's fitness for work in 2010 is contained in certificates from Dr Saxena dated 19 May 2010, 14 June 2010, and 28 June 2010. While the first two certificates expressed the opinion that Mr Edmundson was fit for restricted duties including no lifting, no standing and no sitting for longer than 2 hours, the third certificate said that Mr Edmundson was totally incapacitated for work from 28 June 2010 to 28 September 2010. Mr Edmundson applied for part-time work on 8 July 2010. Endeavour Foundation obtained further direct evidence from Dr Saxena at the time. She expressed the view that Mr Edmundson could not lift weights over 2 kg and could not stand for more than 30 minutes. 19While Endeavour Foundation's response to the Anti-Discrimination Board does not specifically identify the inherent requirements of the job, Mr Edmundson was employed as a packer. He did not dispute the opinions expressed by Dr Saxena about his lifting, standing and sitting capacity. On the basis of that evidence, and any evidence as to Mr Edmundson's duties, it is highly likely that Endeavour Foundation would be able to prove that the inherent requirements defence applied to both the termination and the refusal to re-employ. Under the AD Act , an employer is not required to alter the duties of a job in order to accommodate a person with a disability in any circumstances: Laycock at [57]. In those circumstances, the complaint lacks substance and leave for it to proceed should be refused. Order Leave for Mr Edmundson's complaint of disability discrimination to proceed is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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. Decision last updated: 05 May 2011