Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peng v NSW Health Pathology [2017] NSWCATAD 288 Hearing dates: 15 August 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: 1. Leave is granted for Mr Peng to be represented by an agent, Ms Collins. 2. Leave is granted for the applicant's complaint of disability discrimination to proceed. Catchwords: HUMAN RIGHTS – disability discrimination in employment – where President of the Anti-Discrimination Board has declined a complaint of disability discrimination in employment as lacking in substance – where employer relies on unjustifiable hardship exception – whether it is fair and just for leave to be given for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 49B, s 49C, s 49D, s 92, s 96, s 104 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24 Pop v Taylor [2015] FCCA 1720 Category: Procedural and other rulings Parties: Wei Xian Peng (Applicant) NSW Health Pathology (Respondent) Representation: J Gautray (NSW Health Pathology) (Respondent) V Hiley (NSW Health Pathology) (Respondent) F Collins (agent for Applicant) File Number(s): 2017/00194166 Publication restriction: Nil REASONS FOR DECISION Overview 1. Mr Peng complains that his former employer, NSW Health Pathology, unlawfully terminated his employment on the ground of his disability: Anti-Discrimination Act 1977 (NSW), s 49D(2)(c). Mr Peng says that he has had pain in his wrists since 2008 and is unable to work full-time or perform some of the tasks of his position. He says that if his employer had rotated his duties in 2015, as recommended by an independent medical examiner, he would have been able to continue working. 2. The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). The issue in this case is whether it is fair and just for the Tribunal to give Mr Peng permission, or "leave", for his complaint of disability discrimination to go ahead: Anti-Discrimination Act, s 96. 3. I have decided to give Mr Peng permission for his complaint to go ahead. It appears that NSW Health Pathology acknowledges that it has breached s 49D(2)(c) of the Anti-Discrimination Act by dismissing Mr Peng but is relying on the "unjustifiable hardship" exception in s 49D(4). Based on their correspondence to Mr Peng, NSW Health Pathology stated that his employment was terminated because he is unable to carry out the inherent requirements of the position. Alternatively, I understand NSW Health Pathology to be saying that in order to carry out the inherent requirements of the position, Mr Peng requires services or facilities which would impose unjustifiable hardship on them to provide: Anti-Discrimination Act, s 49D(4). 4. When relying on an exception, the onus is on the employer to prove that the exception applies: Anti-Discrimination Act, s 104. Depending on the circumstances, working full-time may not be an inherent requirement of a full-time position: Pop v Taylor [2015] FCCA 1720 at [258] and [259]. Similarly, if Mr Peng is unable to lift the weights that he is required to lift, there may be some services or facilities that NSW Health Pathology can provide which would not impose unjustifiable hardship on them. 5. The onus is on NSW Health Pathology to prove that their conduct comes within an exception to the Anti-Discrimination Act. While I have not heard the evidence or reached a final view on this issue, I consider that it is at least arguable, on the material that has been provided, that NSW Health Pathology will not be able to prove that exception. In those circumstances, it would not be fair or just to prevent Mr Peng from going ahead with his complaint. 6. Mr Peng has withdrawn his complaints of race and age discrimination and those complaints have been dismissed. Principles for granting leave 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:◦ 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted"; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. Background 1. Mr Peng has worked for the NSW Health Pathology for 23 years as a scientist in a chemistry laboratory carrying out toxicology evaluations. His work required repetitive capping and uncapping of bottles and tubes. It also involved some handling of bottles that weighed between 2 and 4 kilograms. From 2011 until his dismissal on 6 March 2016, Mr Peng was attending work on reduced hours or absent on sick leave, leave without pay, long service leave or workers compensation leave. The letter of termination stated that the decision to terminate his employment was made because "you are unable to fulfil the inherent requirements of your position due to your non work related medical condition and there is no medical information that indicates a return to your substantive position in the near future". 2. Mr Peng alleges that his employer has discriminated against him on the ground of disability by not rotating his duties. He says that Dr Bosanquet wrote in his report dated 26 May 2015, that, "I see no reason why Mr Peng could not resume his role as a hospital scientist with some modifications. Certainly rotating through various roles, which he claims have been denied to him, would assist in minimising aggravation of his underlying condition". Dr Bosanquet also recommended that reducing the weight Mr Peng was required to lift to 2 kg "would reduce recurrence". Dr Bosanquet expressed the view that with daily rotation and a reduction in the weights Mr Peng was lifting, "an upgrade could occur after three months pending review". The conduct 1. The period of the complaint, as referred by the President of the Anti-Discrimination Board, is from 22 June 2015 until 6 March 2016. Mr Peng was on leave during this entire period and his employment was terminated on 6 March 2016. 2. When considering an application for leave to proceed, the Tribunal only has power to consider conduct which took place during the period of the complaint. The only conduct that took place during this period was the decision to terminate his employment. I have not addressed any other alleged breach of the legislation in these reasons. Consideration Direct discrimination 1. It is unlawful for an employer to discriminate against an employee on the ground of disability by dismissing the employee: Anti-Discrimination Act, 49D(2)(c). I understand Mr Peng's complaint to be that his employer discriminated against him directly. Direct discrimination on the ground of disability is defined in s 49B(1): (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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: 1. Based on these provisions, in order to substantiate a complaint of direct discrimination on the ground of disability, Mr Peng would have to prove that: 1. he has a disability as defined in the Anti-Discrimination Act; 2. the respondent dismissed him; 3. in the same or similar circumstances the respondent would not have dismissed a person without that disability; (differential treatment) 4. one of the reasons for the dismissal was Mr Peng's disability (causation). 1. The disability upon which he relied was lateral epicondylitis which I understand to be a type of musculoskeletal disorder causing inflammation of an epicondyle. The common name for this complaint is tennis elbow. That is a disability within the meaning of that term in the Anti-Discrimination Act. 2. As I have said, my understanding of NSW Health Pathology's position is that they do not dispute that one of the reasons they dismissed Mr Peng was that his disability prevents him from carrying out the inherent requirements of the position and it would cause unjustifiable hardship to accommodate him. The exception of unjustifiable hardship 1. The unjustifiable hardship defence in s 49D(4) provides that: (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. 1. What s 49D(4) requires an employer to do before dismissing a person who requires services or facilities was addressed by the Administrative Decisions Tribunal in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57]: 57 The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances. Whether they ought to do so in some circumstances is a policy issue which it is for the parliament, and not the Tribunal, to determine. Even in those cases when the so-called 'inherent requirements' defence in s 49D(4) of the Act is in issue - when an employer may be contemplating refusing to hire or dismissing an employee - the employer is under no obligation to alter the duties of the job in order to cater for an employee with a disability. What s 49D(4) requires an employer to do before failing to hire a person, or dismissing an employee, with a disability who may be unable to perform the job in question because of that disability is to: (1) properly identify the inherent requirements of the job (being the actual requirements as opposed to the imagined or theoretical requirements), (2) determine whether the employee with a disability could perform those inherent requirements of the job with the aid of services or facilities which are not required by people without the employee's disability, and (3) determine whether it would impose an unjustifiable hardship on the employer to provide the employee with those services or facilities which would enable him or her to perform the job in question. 1. The Tribunal went on to say at [59] that "An employer may invoke the defence or exception to liability set out in s 49D(4) only when the employer has done the positive things dictated by that sub-section". 2. The circumstances to be taken into account when determining unjustifiable hardship are listed in s 49C. Whether the hardship existed must be determined at the time of the allegedly discriminatory conduct, not at the time of the hearing: Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24 at [50]. 3. I understood Mr Peng to have acknowledged that, at the time he was terminated, he could only work 5 hours a day, 4 days a week and that he required 'modified duties'. He said that he wanted his employer to 'adjust' the job so that he could carry out those duties. The precise nature of the modifications or adjustments was not made clear. Keeping in mind that NSW Health Pathology is under no obligation to alter the duties of the job in order to cater for an employee with a disability, it may be that they can establish that the exception applies in this case. That will depend, in part, on what the Tribunal finds are the inherent requirements of the position and the nature of any services or facilities that Mr Peng says he required. Orders 1. Leave is granted for Mr Peng to be represented by an agent, Ms Collins 2. Leave is granted for the applicant's complaint of disability discrimination to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 28 September 2017