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[2021] ACAT 122
ACT Civil and Administrative Tribunal
2021-12-14
Member Robinson, Member Daniel
Original judgment source is linked above.
THE AUSTRALIAN CAPITAL TERRITORY v PHILLIPS (Appeal) [2021] ACAT 122
Catchwords: APPEAL - discrimination - indirect discrimination asserted - whether respondent was an employee of appellant when receiving workers compensation - employer and insurer same entity - protected attribute disability - public area employment - whether claim for workers compensation delayed by appellant failing to take action in a timely manner - whether because of inaction appellant imposed a condition or requirement on respondent to independently manage her claim - whether condition or requirement had effect of disadvantaging respondent - whether disadvantage caused by protected attribute - whether condition or requirement reasonable - whether appellant committed unlawful act - whether Original Tribunal failed to provide fulsome reasons - whether orders made by the Original Tribunal were within power and appropriate - orders partially set aside
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Discrimination Act 1991 ss 4, 4AA, 4A, 5AA,7, 8, 10, 30, 70, 121A
Human Rights Commission Act 2005 ss 42, 51, 53A, 53CA, 53E, 78
Public Sectors Workers Compensation Fund Act 2018
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 11, 19
Cases cited: ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor [2021] ACAT 37
Australian Capital Territory v Wang [2019] ACAT 65
Applicant 202024 v The Australian Capital Territory (represented by Access Canberra) [2021] ACAT 14
Briginshaw v Briginshaw [1938] HCA 34
Campbell v Blackshaw & Evans [2017] ACAT 64
Cook and Comcare [2017] AATA 227
Daff & Comcare [2010] AATA 732
Fleming and Comcare [2004] AATA 1016
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Lance Tyrrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57
Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66
Phillips v Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 167
2. Orders 1 and 2 made by the Original Tribunal on 23 March 2021 and corrected on 24 March 2021 are set aside.
3. Orders 3 and 4 made by the Original Tribunal on 23 March 2021 and corrected on 24 March 2021 are confirmed.
4. The application for interim of other orders filed 2 December 2021 is refused.
1. The reasons below explain why the Appeal Tribunal has found that the appeal succeeds in part and made the orders set out above. Orders 1(a) and (b) of the Original Tribunal have been set aside as they go beyond any power conferred by section 53E(2)(a) of the Human Rights Commission Act 2005 (HRC Act). Order 2 is also set aside as it relates to the implementation of Orders 1(a) and (b). Orders 3 and 4 of the Original Tribunal are confirmed.
2. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Original Tribunal' refers to the tribunal which made the first instance decision dated 23 March 2021 which was revised on 24 March 2021. 'Appeal Tribunal' refers to the presently constituted tribunal. The appellant is referred to as the 'appellant' or 'Territory' and the respondent is referred to as 'Ms Phillips' or 'the respondent'.
3. Ms Phillips was employed full time in the Community Services Directorate of the ACT Government. In 2017 she suffered a mental injury caused by her employment which was diagnosed as Post Traumatic Stress Disorder (PTSD). She notified the Directorate of this injury on 10 April 2017. In October 2018 Ms Phillips claimed workers compensation and Comcare, the Territory's then workers compensation insurer, accepted liability for the claim on 13 December 2018.
4. On 1 March 2019, the Territory became a self-insurer licensed under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Under clause 6 of the licence the Territory accepted liability for relevant injuries occurring during the period of the licence or after 1 July 1989 up until the date the licence came into force, 1 March 2019. The Territory assumed liability for Ms Phillip's claim. Employers Mutual Ltd (EML) were authorised by clause 7 of the Licence as claims manager with Advanced Personnel Management (APM) as Ms Phillips' rehabilitation provider.
5. Ms Phillips asserted that she was discriminated against by the Territory during the period from 29 January 2019 and 29 July 2019 but that the effects of that discrimination continued beyond the latter date, up to March 2020.[1] She said the discrimination occurred during the processing and managing of her workers compensation claim.
6. Ms Phillips claimed that during this period "the way she was treated by the Territory, the lack of responsiveness, the delays and errors in dealing with her entitlements as well as the prescriptiveness of some of the processes led to delays in meeting her entitlements and a worsening in her mental injury; these interactions meet the test set out in the Discrimination Act 1991 (Discrimination Act) and the HRC Act and constitute indirect discrimination against her on the ground of her disability."[2]
7. Ms Phillips lodged a complaint with the Human Rights Commission (HRC) on 11 December 2019 in which she asserted that the Directorate's management of her workers compensation claim had the effect of delaying her entitlements and worsening her PTSD. The HRC closed Ms Phillips' complaint following unsuccessful conciliation pursuant to section 78(1)(f) of the HRC Act and, at her request, referred the complaint to the Original Tribunal pursuant to section 53A of HRC Act_._
8. Ms Phillips' complaint is in respect of a disability. It was not in issue in the proceedings that Ms Phillips has PTSD which is a disability under sections 7(1)(e) and 5AA(1)(g) of the Discrimination Act.
9. In the proceedings before the Original Tribunal Ms Phillips alleged that the Territory indirectly discriminated against her by imposing two requirements or conditions on her:
(a) by its inactions and failure to respond to her enquiries the Directorate required her to respond independently, to manage her compensation matters herself, to chase up matters with the Directorate, EML and Shared Services, and generally to take responsibilities that should have been discharged at least in part by those organisations; and
(b) by the Directorate repeatedly insisting on her completing a Claim for Time Off Work form (CTOW), if she wished to receive her incapacity payments and have her Long Service Leave re-credited.[3]
10. The Original Tribunal determined that the Territory's conduct fell within the protected area of public life of employment and that the Territory's failure to provide adequate assistance to Ms Phillips between 29 January 2019 and 29 July 2019 amounted to the imposition of a condition or requirement on her to independently manage her workers compensation claim.
11. The Original Tribunal found that this amounted to indirect discrimination on the grounds of Ms Phillips' disability, namely her PTSD, which is a protected attribute under sections 7(1)(e) and 5AA(1)(g) of the Discrimination Act.
12. The Original Tribunal made the following orders, as revised on 24 March 2021:
1. The ACT, in its role as insurer under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and through its contracted claims manager and rehabilitation provider, must:
(a) on the basis of the expert advice of a psychiatrist or clinical psychologist, provide training to those staff dealing with injured workers with a mental injury, so as to minimise the risk of triggering symptoms or otherwise exacerbating the injury; and
2. institute improved procedures for dealing with mental injuries aiming to:
(i) avoid delays in processing of claims;
(ii) provide timely responses to enquiries by injured workers;
(iii) keep injured workers informed of progress on their claims; and
(iv) provide timely advice to injured workers regarding any impediments to claims being processed.
3. Complete the introduction of the changes set out in (a) and (b) above by 31 March 2022.
4. By 5:00pm on 30 April 2021, the respondent must pay to the applicant an amount of $9,000 by way of general damages.
13. The Territory appealed the decision of the Original Tribunal. The parties provided the Appeal Tribunal with detailed written submissions. Counsel appeared for both parties at the hearing on 14 September 2021 and made oral submissions as an addition to the written submissions. With the agreement of the parties, pursuant to section 82(1)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the appeal was conducted and heard as a review of all of the Original Decision. A differently constituted Appeal Tribunal said of section 82(1)(b) in the Australian Capital Territory v Wang:
...[I]t falls to this Tribunal to decide the case by reference to the evidence before the Original Tribunal in light of the parties' submissions and the applicable law. The Appeal Tribunal need not, and would not be expected to, go beyond that material.[4]
14. The Appeal Tribunal, in the present matter, has considered all of the material before the Original Tribunal, the applicable law and the parties' oral and written submissions to the Appeal Tribunal during this hearing.
15. Subsection 79(3) of the ACAT Act provides that a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law. Therefore, the Territory has a right to appeal the decision of the Original Tribunal on a question of fact or law.
16. The legal framework in which this appeal has to be decided is found in the Discrimination Act and the HRC Act. Section 10 of the Discrimination Act makes it unlawful for an employer to discriminate against a person in the ways set out in subsections (1) and (2), namely:
_(1) It is unlawful for an employer to discriminate against a person - _
(a) in the arrangements made for the purpose of deciding who should be offered employment; or
(b) in deciding who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
_(2) It is unlawful for an employer to discriminate against an employee - _
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
17. Section 8 of the Discrimination Act sets out the meaning of discrimination:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4) However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
_(5) In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include - _
(a) the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.
18. The Discrimination Act applies to discrimination on the ground of any of the attributes set out in subsection 7(1). The list of attributes includes 'disability' at section 7(1)(e).
19. Section 4 of the Discrimination Act sets out the objects of that act, namely:
(a) to eliminate discrimination to the greatest extent possible; and
_(b) to promote and protect the right to equality before the law under the Human Rights Act 2004, including - _
(i) the right to enjoy a person's human rights without distinction or discrimination of any kind; and
(ii) the right to the equal protection of the law without discrimination; and
(iii) the right to equal and effective protection against discrimination on any ground; and
(c) to encourage the identification and elimination of systemic causes of discrimination; and
_(d) to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that - _
(i) discrimination can cause social and economic disadvantage and that access opportunities are not equitably distributed throughout society; and
(ii) equal application of a rule to different groups can have unequal results or outcomes; and
(iii) the achievement of substantive equality may require the making of reasonable adjustments, reasonable accommodation and the taking of special measures.
20. Section 4AA of the Discrimination Act provides that the Act must be interpreted in a way that is beneficial to a person with a protected attribute to the extent that it is possible to do so consistently with the objects of the Act and the Human Rights Act 2004.
21. Section 4A of the Discrimination Act provides:
doing an act includes failing to do the act.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
(2) In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
22. Section 30 of the Discrimination Act, which applies to acts done under statutory authority, provides:
_(1) This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of - _
(a) a Territory law; or
(b) a determination or direction made under a Territory law; or
(c) an order of a court; or
(d) an order of the ACAT.
(2) The Minister may declare that subsection (1) (a) and (b) expire on a day stated in the declaration.
(3) The declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
(4) Subsection (1) (a) and (b) and this subsection expire on the day stated in the declaration.
23. Section 70 of the Discrimination Act provides:
If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.
24. Section 121A of the Discrimination Act applies to acts and omissions of representatives and provides:
(1) This section applies to the doing of an unlawful act (conduct).
Note 1 A complaint may be made about an unlawful act (see Human Rights Commission Act 2005, s 42 (1) (c)).
(2) Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative's actual or apparent authority.
(3) However, subsection (2) does not apply if the person establishes that the person took all reasonable steps to prevent the representative from engaging in the conduct.
representative, of a person, means an employee or agent of the person.
25. Section 53CA of the HRC Act specifies how a complaint, which has been referred to the tribunal, is to be decided. Relevantly, subsections 53CA(2), (3) and (4) provide:
_(2) It is a rebuttable presumption that discrimination has occurred if the complainant - _
_(a) establishes that - _
(i) for a complaint about direct discrimination - the treatment or proposed treatment is unfavourable; and
(ii) for a complaint about indirect discrimination - the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
_(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation - _
(i) for a complaint about direct discrimination - that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii) for a complaint about indirect discrimination - that the effect of disadvantaging the other person is because of a protected attribute of the other person.
_(3) The presumption under subsection (2) is rebutted if the person complained about establishes that - _
(a) for a complaint about direct discrimination - the treatment is not because of a protected attribute of the other person; or
(b) for a complaint about indirect discrimination - the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).
protected attribute means a protected attribute under the Discrimination Act 1991.
26. Section 53E of the HRC Act sets out the kind of orders that can be made when the Tribunal finds a person complained about has engaged in an unlawful act under the Discrimination Act. It provides:
_(1) This section applies if - _
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
27. The issues identified by the Original Tribunal are set out in the Original Decision.[5] The Appeal Tribunal sets out those issues and the Original Tribunal findings below:
(a) Does the behaviour asserted to be discriminatory fall within one of the areas of public life in which discrimination is unlawful?
Finding: Yes. Ms Phillips' workers compensation relationship with the Directorate brought her complaint, if substantiated, within the ambit of section 10 of the Discrimination Act, relating to employees and applicants for employment. Nor did it escape the Act under the exception in section 30.[6]
(b) Was a condition or requirement imposed on the complainant by the Directorate?
(i) to use the Certificate of Capacity form and the Claim for Time Off Work form;[7] and
(ii) by its inaction and failing to respond to Ms Phillips' enquiries and requests, the Directorate imposed a requirement that she advance her repayment and re-crediting matters without substantial assistance from the Directorate.[8]
(c) If so, did that condition or requirement have the effect of disadvantaging Ms Phillips?
(i) In indirect discrimination the causal link that must be established is between the protected attribute and the disadvantage brought about by the imposed requirement or condition, or the effect of that disadvantage.[9]
(ii) Inaction or delay by the Territory threw Ms Phillips on her own resources and led to delay in providing her undisputed entitlements which was a disadvantage as was the demand on her time;[10]
(iii) On the balance of probabilities Ms Phillips suffered disadvantage, namely an increase in the severity of her PTSD symptoms, flowing from the requirement that she manage independently her compensation underpayment and leave re-crediting.[11]
(d) If so, was the effect of the disadvantage caused by the complainant's disability?
(i) There was no causal link between Ms Phillips' PTSD and the delay in recrediting her leave and paying her remuneration and there was no causal link between Ms Phillips' PTSD and the demand on her time.[12]
(ii) The cause of Ms Phillips' disadvantage, namely her pain, loss, suffering and worsened mental distress caused by the requirement to pursue her compensation claim herself and without assistance from the Territory was her PTSD.[13]
(e) Was any imposed condition or requirement reasonable?
(i) The use of the Certificate of Capacity forms and the Claim for Time Off Work forms was reasonable.[14]
(ii) The requirement for Ms Phillips to pursue her claim independently was not reasonable.[15]
(f) Did the Directorate engage in unlawful action?
Finding: The Original Tribunal found that the Territory discriminated against Ms Phillips as:
(i) Ms Phillips has a disability, PTSD, that satisfies paragraphs 7(1)(e) and 5AA(1)(g) of the Discrimination Act;
(ii) the Territory imposed on her a requirement that she conduct her workers compensation claim without substantial assistance from the Directorate and EML;
(iii) that requirement disadvantaged Ms Phillips by triggering or exacerbating symptoms such as anxiety and intrusive thoughts;
(iv) these symptoms were caused by her PTSD, her accepted disability, and a protected attribute under the Discrimination Act;
(v) the requirement imposed on Ms Phillips was not reasonable in all the circumstances; and
(vi) the imposition of the requirement involves the subjection of Ms Phillips to treatment which falls within "any other detriment" associated with employment under section 10(2)(d) of the Discrimination Act and is therefore unlawful discrimination.[16]
Finding: The Original Tribunal's orders are set out at paragraph 12 above.
28. The appeal was heard on 14 September 2021. At the conclusion of the hearing the Appeal Tribunal reserved its decision. This is the Appeal Tribunal's decision.
29. In its submissions filed 28 July 2021 the Territory (appellant) identified the following grounds of appeal:[17]
Ground 1 - In relation to the protected area of public life - employment
(a) The Original Tribunal erred in finding that the alleged discriminatory conduct falls within the protected area of public life of employment under sections 10(2)(b) and 10(2)(d) of the Discrimination Act.
(b) The Original Tribunal erred by failing to provide fulsome reasons to support the finding that the claim is within the ambit of sections 10(2)(b) and 10(2)(d) of the Discrimination Act.
(c) The Territory considers that this is a foundational issue that must be satisfied to establish a discrimination claim. This is a significant issue for the Territory when administering the SRC workers compensation scheme as a self-insurer. As such, the Territory seeks that this issue be reconsidered, and that upon appeal, fulsome reasons be provided for the Tribunal's finding.
Ground 2 - In relation to the finding of indirect discrimination
(d) The Original Tribunal erred in finding that the Territory failed to provide adequate assistance to Ms Phillips in respect of the assessment and/or management of the claim.
(e) The Original Tribunal erred when finding that Ms Phillips was required to "independently" manage her own claim.
(f) The Original Tribunal erred in finding that the Territory's failure to provide adequate assistance to Ms Phillips "imposed" a condition or requirement on Ms Phillips to "independently" manage the claim.
(g) The Original Tribunal erred when finding Ms Phillips suffered detriment or disadvantage through the exacerbation of her anxiety or PTSD, because of the alleged imposition of a condition or requirement that Ms Phillips "independently" manage the claim.
Ground 3 - The Original Tribunal erred in its making of Orders 1 and 2
(h) The proposed measures are beyond the scope of power conferred by the Tribunal under section 53E(2)(a) of the HRC Act, to make an order "that the person complained about not repeat or continue the unlawful act". The order does more than ordering the Territory to stop and not repeat the unlawful act.
(i) The orders are unenforceable. They are subjective in nature, and it is uncertain as to how the Territory must comply with the orders, and how, and by whom, the Territory's compliance is to be assessed.
(j) The orders are potentially never ending. They raise a question of whether the effect of the orders is such that the Territory will be in contempt of the orders every time the measures are not adhered to in the future.
30. In submissions filed 26 August 2021, the respondent, Ms Phillips, distilled the grounds of appeal relied on by the Territory into the following questions:[18]
(a) Ground 1: Did the Original Tribunal err in finding that the relationship of employment between the parties made the Territory liable for the unlawful conduct?
(b) Ground 2: Did the Original Tribunal err in finding that the Territory imposed a condition or requirement on Ms Phillips to independently manage her claim, which caused her detriment?
(c) Ground 3: Did the Original Tribunal err in finding that Ms Phillips suffered disadvantage?
(d) Ground 4: Did the Original Tribunal's mandatory orders exceed power, or are they uncertain?
The Tribunal adopts this distillation in its discussion of the grounds of appeal below.
31. Section 79(3) of the ACAT Act provides that a party to the original application may, by application, appeal a decision to the Tribunal on a question of fact or law.
32. The Territory submitted that, to be successful, an appellant need show an error. It was not necessary for an appellant to show that there was an error of a particular type or gravity.[19]
33. Ms Phillips submitted that it is not enough just to show error. If any error is found by the Appeal Tribunal, the error must have had a material impact on the Original Tribunal's decision; and a material impact will be found if the Appeal Tribunal is satisfied the error could realistically have impacted the decision.[20]
34. In ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd & Anor[21] another appeal tribunal referred to the interpretation of section 79(3) and said:
The case law has interpreted section 79(3) of the ACAT Act to mean that the appellant must show an error of fact or law in the decision under appeal and that the error affected the result.[22] In Excel Intelligent Pty Ltd v Thomson,[23] the tribunal distilled some important principles[24] that were discussed by Burns J in B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners - Units Plan 3324.[25] These principles were discussed in the context of an appeal by way of rehearing but they apply mutatis mutandis[26] to an appeal by way of review. The principles are stated as follows (with some paraphrasing to apply the principles to the present context):
(a) An appeal tribunal must determine whether the decision appealed against is wrong because... an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, an appellant tribunal in entertaining an appeal... can exercise its appellate powers only if satisfied that there was an error on the part of the original tribunal below.
(c) The appeal tribunal will give proper allowance to the advantage of the original tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d) The appeal tribunal is obliged to conduct a real review of the reasons of the original tribunal.
(e) Once error below has been found (after making proper allowance for the advantages of the original tribunal), the appeal tribunal can substitute its own decision based on the facts and the law as they now stand. [Footnotes retained]
35. These principles have guided the Appeal Tribunal when reviewing the Original Tribunal decision and reaching its conclusion.
Ground 1: Did the Original Tribunal err in finding that the relationship of employment between the parties made the Territory liable for the unlawful conduct?
36. Ms Phillips had argued before the Original Tribunal that the effect of the conduct of the Territory, as her employer, denied her a benefit associated with her employment, namely her workers compensation entitlements and that that conduct was unlawful under section 10(2)(b) of the Discrimination Act, namely:
by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment...
And/or under section 10(2)(d) of the Discrimination Act, namely:
by subjecting the employee to any other detriment.
37. Inter alia, the Territory argued before the Original Tribunal that the conduct Ms Phillips relied on was not sufficiently associated with employment and the acts and omissions did not relate to benefits associated with employment as set out in section 10(2)(b) of the Discrimination Act. The Territory further submitted to the Original Tribunal that the acts and omissions of the Directorate, or its agent, EML, were in the context of making determinations of liability under the SRC Act and that they fell within the general exception in section 30 of the Discrimination Act. Therefore, the conduct was neither discriminatory nor unlawful.
38. The Original Tribunal found that Ms Phillips' workers compensation relationship with the Directorate brought her complaint, if substantiated, within section 10 of the Discrimination Act and that the Territory's conduct fell within the protected area of public life of employment.
39. The Territory submitted to the Appeal Tribunal that the Original Tribunal erred in finding that the discrimination fell within the protected area of public life of employment. Further, the Territory submitted that the acts and omissions particularised by Ms Phillips as amounting to discrimination were not "benefit[s] associated with employment" in section 10(2)(b) or "other detriment" in section 10(2)(d) of the Discrimination Act.
40. The Territory also submitted at the appeal hearing that the conduct the subject of the claim was undertaken by the Territory, and EML as its agent, in the capacity of self-insurer of the Territory's workers compensation scheme and was not discriminatory or unlawful pursuant to section 30 of the Discrimination Act. It was not, the Territory submitted, undertaken in its capacity as Ms Phillips' employer.
42. The Discrimination Act applies to particular areas of activity and in particular ways. It does not proscribe discrimination at large. Part 3 of the Discrimination Act makes unlawful discrimination in particular areas of public life. Division 3.1 deals with discrimination in work and section 10(2) sets out those areas of employment where an employer's acts or omissions will be unlawful:
_(2) It is unlawful for an employer to discriminate against an employee - _
(a) In the terms and conditions of employment; or
(b) In the access to benefits of employment an employee has; or
(c) By dismissing the employee; or
(d) By subjecting an employee to any other detriment.
43. The Appeal Tribunal noted that the Original Tribunal had considered, in some detail, these submissions and had stated that the Territory accepted, at that hearing, that the protections afforded by workers compensation arrangements are one of the benefits that accompany employment. The Original Tribunal said:
64. ... The respondent did not contest that general proposition, but argued that once the injured worker is receiving compensation, those benefits are delivered by an insurer or claims manager and the connection with the employer begins to attenuate. ...
65. That argument is plainly not without force; a recipient of workers' compensation entitlements will be dealing with the insurer and claims manager in virtually every transaction undertaken in relation to the claim. Even in the present matter, where employer and insurer (the ACT Government) are the same entity, it is in the capacity of the insurer that a body such as the Directorate will usually interact with the complainant and that is even more so for EML as claims manager; the business unit employing Ms Phillips, CSD, recedes into the background.
66. But that does not, in my view, rob the interaction of its connection with employment. It would be an odd and indeed illogical outcome if workers' compensation were to be considered a benefit associated with employment when it was prospective but not when it was actually being delivered as a result of an injury in the workplace. It is worth noting, too, that many injured workers return to work after an injury, either immediately or after a period of recovery, often at reduced hours, and receive benefits such as medical expenses and incapacity payments while working. It does not seem any kind of a stretch to regard compensation payments in such circumstances as a benefit of the injured worker's employment; and the difference of those from Ms Phillips' circumstances is a difference of degree rather than of kind. The calculation of an injured worker's incapacity payments under section 19 of the SRC Act is calculated using the worker's "normal weekly earnings" and "ability to earn", which also suggest a continuing link to employment - and reasonably so in that the incapacity payment is a replacement for the remuneration that the worker would otherwise have received in employment. Indeed in the present case the particular benefits that Ms Phillips was seeking were re-crediting of her long service leave and reimbursement for the periods in which she had taken long service leave at half pay. It would surely seem somewhat odd to regard the re-crediting of long service leave as something other than a benefit associated with employment; and if so, equally odd to regard the adjustment of remuneration associated with the re-crediting as different from the re-crediting itself in that respect. And although I understand that over a protracted period the relationship between the injured worker and an employer may weaken, it would seem to me that it never loses its essential character as an aspect of employment. That is more clearly the case here because a limited time had elapsed between Ms Phillips' time in active employment and the period in which the impugned behaviour by the Directorate occurred.
44. The Original Tribunal found reinforcement for its statements at paragraph 66 from other parts of the SRC Act. In particular, the Senior Member referred to section 5(9) which extended the meaning of 'employee' to include a former employee. He identified that the Act placed significant emphasis on rehabilitation; that the body responsible for this rehabilitation program is the "rehabilitation authority" which is defined in section 4 as the principal officer of the employer and that this gives the employer a continuing relationship with the injured worker where the worker is unable to return to work. Relying on case law the Senior Member found that the relationship continues even after the employment has come to an end.[28]
45. The Senior Member considered the Territory's submission that the actions the subject of the complaint were undertaken by the insurer at risk and not as employer.[29] The Senior Member noted the Territory's reliance on the exception in section 30(1)(a) of the Discrimination Act for action necessarily taken in order to comply with a Territory statute which relied on section 11 of the SRC Act (which identified the insurer with the amounts determined under the SRC Act), the assumption of liability by the Territory under the Public Sector Workers Compensation Fund Act 2018 (Fund Act) and the licence granted by the Commission under Part VIII of the SRC Act_._ He rejected the Territory's submission and clearly set out his reasons for doing so. The Appeal Tribunal is satisfied that this finding was open to the Original Tribunal on the evidence and the law.
46. The Appeal Tribunal finds that the Original Tribunal did not err in finding that there was a relationship of employment between the parties which made the Territory liable if there was a finding of unlawful conduct.
Ground 2: Did the Original Tribunal err in finding that the Territory imposed a condition or requirement on Ms Phillips to independently manage her claim, which caused her detriment?
47. In the Original Tribunal decision at paragraph 70, the Senior Member considered whether Ms Phillips' treatment by the Directorate amounted to indirect discrimination and applied the tests identified in ACT v Wang[30] that must be met by a complainant to establish indirect discrimination, namely:
(a) The existence of a condition or requirement.
(b) That the condition or requirement was imposed by a person (the respondent).
(c) That the imposed condition or requirement had the effect of disadvantaging people with the attribute of the complainant.
(d) That the effect of disadvantage was caused by the attribute.
(e) Whether the condition or requirement was reasonable in the circumstances.
48. The Senior Member set out his understanding of Ms Phillips' case, namely that two requirements or conditions were imposed on her as well as the Territory's understanding that Ms Phillips' case extended to a third condition or requirement. The two conditions or requirements were identified as:
(a) By its inaction and failure to respond to her enquiries, the Directorate required her to respond independently, to manage her compensation matters herself, to chase up matters with the Directorate, EML and Shared Services, and generally to take on the responsibilities that should have been discharged at least in part by those organisations.
(b) The Directorate repeatedly insisted on her completing a particular form, the CTOW form.
49. The Territory had understood that Ms Phillips' case extended to a third condition or requirement, namely the insistence on using a separate form, the Certificate of Capacity, signed by the injured worker's medical practitioner. While the Senior Member stated that he understood that this was not a part of Ms Phillips' case, he considered this in his decision for the sake of completeness.
50. The Territory had submitted that it did not impose any requirements or conditions that caused Ms Phillips detriment or disadvantage. It relied on the evidence from one of their witnesses, Mr Young, who was the Executive Group Manager, Workplace Safety and Industrial Relations Group, Chief Minister, Treasury and Economic Development Directorate and the Public Sector Workers Compensation Commissioner appointed under the Fund Act on 1 March 2019. Mr Young said that Ms Phillips could have provided the information sought in the forms in other ways.
51. In relation to her claim that she was required to pursue her claim independently, the Territory submitted to the Original Tribunal that it was not the case that no assistance was provided to her; she had the help of her husband and the staff from the Directorate, EML and APM who provided support and assistance from time to time. The Territory had also submitted to the Original Tribunal that Ms Phillips would have needed to have explicitly sought and been denied assistance and only then would she have been thrown back on her own resources.
52. The Senior Member considered, at paragraphs 74 to 78 of the Original Decision, the evidence and the Territory's arguments and authority that in an indirect discrimination action the complainant must specify, with a degree of precision, the condition or requirement that is asserted to have occasioned the discrimination, especially where the condition or requirement is alleged to have arisen from inaction.[31]
53. In finding that Ms Phillips had identified the requirements or conditions relating to the use of the two forms "with the necessary degree of specificity", the Senior Member stated:
... The courts have been clear on this point, but have also been clear that a phrase such as "condition or requirement" is to be construed broadly, and that a requirement or condition may be implicit or result from inaction. They have also made plain that the compulsion is contingent rather than absolute: a person must meet the requirement or condition in order to obtain a benefit or avoid a detriment.[32] [footnote removed]
In my view it is inescapable that each of these emails imposed a requirement on Ms Phillips. If she wanted to receive the incapacity payments and have her leave re-credited, in line with her entitlements, completion of the form was required. Mr Young said in evidence that the information could be provided in other ways, but that is not the message that the passages quoted above convey. I find that Ms Phillips was subject to a requirement to complete the CTOW form if she wished to receive her entitlements.
A similar conclusion flows readily in respect of the Certificate of Capacity. On 1 August 2019 Ms Phillips advised Ms Worthy and Ms Wood in an email that her usual general practitioner, Dr Meyer, was ill. She asked if an ordinary medical certificate could be provided by Dr Pahn instead of a Certificate of Capacity, until Dr Meyer recovered. This was in respect of her claim to have her long service leave re-credited. Ms Wood replied the same day advising that the Certificate of Capacity was needed (and offering Ms Worthy's assistance to persuade Dr Pahn, if necessary). Once again, it is difficult to read this message as anything other than the imposition of a requirement. Even if Mr Young said that alternative ways of obtaining information were available, none were offered to Ms Phillips. I find that a requirement to use the Certificate of Capacity form was imposed on Ms Phillips.[35]
55. The Appeal Tribunal is satisfied that these findings were open to the Original Tribunal on the evidence.
56. The Senior Member then turned his mind to the issue of "whether a condition or requirement to manage her compensation matters independently was imposed" describing it as "more problematic."[36]
57. The Senior Member considered the use of the word 'impose' in section 8(3) of the Discrimination Act, noting that its use is different from equivalent provisions in the discrimination legislation in some other jurisdictions. He stated:
...Any interpretation that "impose" might imply some deliberate decision is in tension with section 4A of the Discrimination Act, which provides that in doing an act includes failing to do an act. That plainly leaves open the possibility that in certain circumstances a failure or refusal to act can impose a condition or requirement on a person who might otherwise derive a benefit from the act. Nevertheless the drafting - "impose", "requirement or condition" - implies through the forcefulness of those terms that any failure or refusal to act must be definite and clear, and it will more clearly impose a condition or requirement if repeated or prolonged.[37]
58. The Senior Member then found that the present circumstances meet the test. He identified the email trail in evidence setting out the emails from Ms Phillips from 29 January 2019 to 11 April 2019 seeking confirmation that she had submitted all relevant material. Ms Phillips did not receive substantive responses to her emails. It was not until a case conference was held on 29 July 2019 that a way forward was identified for Ms Phillips. The Senior Member found that the responsibility was left with Ms Phillips to tabulate her leave, identify leave taken for compensation purposes and leave that was not, and to supply the CTOW forms and the Certificates of Capacity to cover all the leave taken for compensation purposes.
59. The Territory's Counsel submitted to the Appeal Tribunal that "the only discussion of what Ms Phillips was required to do to advance her repayment and recrediting matters" was as set out in paragraph 80 of the Original Decision:
...On 29 January 2019 Ms Phillips sought confirmation of receipt of the material she had submitted, and an assurance that she had now done what was required of her, and, receiving no reply, resent the email on 1 February. She received confirmation of receipt but no response on the question of whether she had submitted all the relevant material. On 26 March 2019 Ms Phillips enquired of Ms Wood (who is employed by the rehabilitation provider, APM) whether all her material had been processed and also whether her long service leave had been re-credited. It appears that Ms Wood forwarded those enquiries but no response was forthcoming, and Ms Phillips asked again on 11 April, again with no response. After that date, no further action seems to have occurred until on 10 July - three months later ‒ Ms Worthy asked Ms Sillis to investigate progress on the long service leave issue; Ms Sillis apparently made enquiries, but it appears no response was ever provided to Ms Phillips. The way forward only seems to have been identified at the case conference held on 29 July 2019, attended by Mr Phillips, with Ms Phillips herself absent. The solution arrived at was that Ms Phillips would obtain a full tabulation of her leave, identify what leave was taken for compensation reasons and what was not, and supply CTOW forms and Certificates of Capacity to cover all the leave taken for compensation reasons. Once again, responsibility was left with Ms Phillips.
60. The Territory's Counsel submitted that this passage did not provide an accurate reflection of the available evidence in that it failed to account for assistance provided by rehabilitation and case managers appointed by the appellant to assist Ms Phillips and it failed to acknowledge that on most occasions Ms Phillips was sent a response, usually requesting further information.
61. In his submissions to the Appeal Tribunal, Counsel for Ms Phillips set out the evidence relating to the various emails from Ms Phillips and the lack of substantive responses from the Territory between January 2019 and July 2019. Although lengthy, the Appeal Tribunal sets out this evidence as it is relevant in addressing the Territory's submission that there was no evidence as to what Ms Phillips had to do in taking up the management of these issues for herself.
63. On 15 January 2019 Ms Phillips sent a further three CTOW forms to Ms Sillis and requested acknowledgement of receipt.[40]
65. On 29 January 2019 Ms Phillips sent a detailed email to Ms Sillis with attachments. Ms Phillips wrote "I believe these forms now complete the time period from the date of injury (12/5/17) to current".[43] Ms Phillips asked for confirmation of receipt of the email and confirmation that this completes the compensable time since the injury.
66. On 18 February 2019 Ms Phillips emailed Brianna Gillespie, Claims Manager at Comcare, advising she had not received any payments for CTOW forms submitted and stated that she would appreciate any advice.[44]
67. On 19 February 2019 Ms Gillespie emailed Ms Phillips stating:
You may not be aware that Comcare only reimburses your agency for payments that they have made to you. These reimbursements to your agency can only be processed once the appropriate information has been provided by them to Comcare.
If you have not been paid by your employer unfortunately you will have to follow this up with them. ...[45]
68. On 19 February 2019 Ms Phillips emailed Shared Services requesting an explanation why some payments, for which she had received approval advice from Comcare about having been paid, have not been paid.[46]
69. On 19 February 2019 Michelle Brown from the Service Desk emailed Ms Phillips that she had credited back any leave utilised pending the acceptance of her dates of incapacity.[47]
70. On 21 February 2019 Ms Sillis emailed Ms Phillips apologising for a pay error and telling Ms Phillips that she had spoken to payroll and been advised that they would rectify the error that day.[48]
71. On 26 March 2019 Ms Phillips emailed Chantelle Wood at APM stating inter alia:
At this point there has been no financial adjustment for any periods of reduced hours or half pay leave ... I can see my leave balances have increased (on my payslip) however I am unable to reconcile. Could you enquire as to any outstanding Claim for Time Off Work Forms submitted but not either processed by ACT Government, or approved by Comcare or EML? I would also like to get get [sic] written confirmation that my Long Service Leave has been re-credited (if this has been processed/approved)
...I am finding this confusing and appreciate any enquiries you can make.[49]
72. On 26 March 2019 Chantelle Wood informed Ms Phillips by email that she was following her request up with CSD and ACT Government Injury Management "as we speak."[50]
73. By this stage about two months have passed since Ms Phillips first raised the issues. In this time, she has raised her matter with the ACT Government, her employer, Comcare and APM. While she had received some responses, she has been the instigator in progressing her claim.
74. On 11 April 2019, Ms Phillips emailed Chantelle Wood asking if she had any communication with CSD or ACT Government injury management and seeking clarity on her leave entitlements.[51]
75. Chantelle Wood replied to Ms Phillips the same day that "there has been no update on my end unfortunately".[52]
76. She said she would continue to follow it up for Ms Phillips.
77. After meeting with Ms Phillips and Chantelle Wood on 10 July 2019, on 11 July 2019, Gaye Worthy, Rehabilitation Case Manager, emailed Ms Sillis and copied in Ms Phillips and Chantelle Wood. The email included the following:
It would also be further appreciated if I could obtain your support and assistance to resolve the outstanding matter relating to the recrediting of Ms Phillips long service leave ...
It is my understanding that Ms Phillips has been in contact with both the Pay Area and EML regarding this, however it seems that there is no information suggesting that this is or will be resolved by either party soon.[53]
78. On 12 July 2019 Ms Sillis emailed Ms Phillips stating that she would make some enquiries with EML and Payroll to see if they could update her on her outstanding long service leave being recredited.[54]
79. On 26 July 2019 Ms Phillips emailed Nurul Edgerley at EML, Chantelle Wood, APM, Gaye Worthy, Rehabilitation Case Manager and Glenn Phillips, her husband, advising that, on the advice of Dr Meyer, her husband will attend the meeting arranged for 29 July 2019 and is authorised to act on her behalf.[55]
80. The Minutes of the 29 July 2019 meeting record the following:
2. Other periods of leave and reduced weeks, since date of injury, that need clarification including Long Service Leave. Requesting a summary of all insurance payments made by Comcare and EML that reimburse wages to CSD which will also enable a reconciliation of dates paid / Claim for time off work forms completed.
81. During this time Ms Phillips has been attending her General Practitioner at least monthly - the medical records show the deterioration in her mental stress/PTSD during this period.
82. The Senior Member highlighted that the Territory did not call evidence that it had not received any of the emails sent by Ms Phillips or sent on her behalf dated 29 January 2019, 1 February 2019, 26 March 2019 and 11 April 2019. It was not until 29 July 2019, six months after Ms Phillips had approached the Territory about re-crediting of leave, that the Territory notified Ms Phillips that she was required to provide more information (set out in the preceding paragraph under Minutes of 29 July 2019 meeting). Since 29 January 2019 Ms Phillips had repeatedly asked the Territory in her emails whether she had provided all information. Ms Phillips' Counsel submitted that the appellant produced no evidence that it had progressed the matter prior to 29 July 2019.
83. In his decision the Senior Member reiterated the purpose of Ms Phillips' repeated enquiries.[57] He found that Ms Phillips had undisputed entitlements under the SRC Act, namely entitlements that arrived either as payments or restoration of her leave. These entitlements were not in issue. They were all ultimately paid or recredited.
84. He found that Ms Phillips had, by the end of January 2019, submitted information regarding her periods of incapacity, with Certificates of Capacity and the Directorate or Shared Services held all the information regarding her leave. He found that it was entirely reasonable that the Directorate and Shared Services between them could have resolved her entitlements with minimal further input from her. He concluded:
Given the prolonged period over which the Directorate and its agents made no substantive response despite several enquiries, it seems entirely reasonable to me that Ms Phillips should have concluded that if she were to receive her entitlements she would have to pursue them independently and on her own account.[58]
85. The Senior Member noted that the Territory disagreed with his conclusions in the previous paragraph and had submitted that no compulsion was applied and Ms Phillips was not required to act independently as assistance was always available from Ms Phillips' husband and various staff. The Senior Member rejected these arguments stating that the compulsion was contingent; that is the payment and recrediting was contingent on her taking charge herself. He was satisfied that there was a six-month period (29 January 2019 to 29 July 2019) in which absolutely no forward movement occurred. When it did occur on 29 July 2019, it was to thrust responsibility back onto Ms Phillips.
86. The Senior Member said he did not take Ms Phillips' statement that she was forced to act independently to mean that she was compelled to act entirely without any form of support from anywhere. He described such an interpretation as absurd. He understood her to be putting the contention that she was compelled to act independently without substantial assistance from the Territory.[59]
Taking all of the above into consideration, I find that the Directorate, by its failure to respond to Ms Phillips' enquiries and requests, imposed a requirement that she advance her repayment and re-crediting matters without substantial assistance from the respondent.
88. The Territory submitted to the Appeal Tribunal that the Senior Member fell into error when he failed to have sufficient reference to the meaning of "indirect discrimination" in section 8 of the Discrimination Act, instead only focussing on section 10 which led him to fail to identify at all or without sufficient specificity what Ms Phillips actually did that amounted to her having to "manage her compensation matters independently" and that this, in turn, meant that there was no assessment of whether any such requirement caused her to suffer detriment or disadvantage.[60]
89. The Territory's Counsel argued that Section 8(3) of the Discrimination Act has several elements, namely:
(a) there needs to be a causal link or connection between the imposition of the condition;
(b) a link between that condition and the disadvantage;
(c) because of the person's protected attribute (in this case Ms Phillips' PTSD).
90. The Territory's Counsel further submitted that the Senior Member, having referred to the evidence of the Territory's witnesses, Mr Young and Ms Hughes, erroneously found that Ms Phillips was treated just like every other injured worker under the SRC scheme and thus the same as everyone else and that this amounted to discrimination. Counsel argued that this finding was not an accurate reflection of all of Mr Young's evidence. In his oral evidence Mr Young, had said:
...the manner in which the decision makers deal with the clients or the way the clients interact with the system can be quite tailored and allowances are made, adjustments are made based on the medical condition of the person involved and the rehabilitation plans that are agreed with - with the providers.[61]
91. Further, in her witness statement, Ms Hughes, who was the Senior Director, Injury Management, Workplace Safety and Industrial Relations Group, Chief Minister, Treasury and Economic Development Directorate, had stated:
38. In my view, it is apparent that the delays in handling Ms Philips'[sic] claim have been caused by systematic issues such as staffing issues, issues regarding the transfer of information in the move to ACT becoming a licensed self-insurer and taking on the services of EML, the complexity of her matter, as well as delays due to the Injury Management Team needing to wait for Ms Phillips to produce required documentation.
39. Every injured or ill workers claim is slightly different, however the way in which Ms Phillips has been treated by stakeholders involved in her claim (the Injury Management Team, EML, case workers and rehabilitation providers) accords with our usual practices...[62]
92. Counsel submitted that Ms Hughes had not said that Ms Phillips was "treated the same;" what she had said was the way in which Ms Phillips was treated "accords with our usual practices".
93. As discussed below, the Appeal Tribunal's view is that whichever interpretation is put on Ms Hughes' evidence makes no difference. If Ms Phillips was treated in accordance "with their usual practices" rather than "treated the same", the end point is Ms Phillips says she was disadvantaged. From 29 January 2019 to 29 July 2019, she suffered from mental distress, the details of which are set out at paragraphs 99 and 100 below.
94. The Appeal Tribunal noted Mr Young's evidence under cross examination that it would be unusual for the appellant to not process a claim for six months in circumstances where it had all the information it required[63] and that he would expect the appellant's agent to notify a worker as soon as practicable if they had not provided all information required to process a claim.[64]As stated above, Mr Young acknowledged that it was within the appellant's power to obtain medical information.
95. However, the Original Tribunal found the Territory had not offered a detailed explanation as to why there was no progress on Ms Phillips' enquiries about her entitlements between 29 January 2019 and 29 July 2019. After noting the consistent comments by Ms Phillips' general practitioners during this period that the management of the compensation process was worsening her PTSD, the Senior Member said:
...Ms Wood asked questions of various people, perhaps, but no answers were forthcoming, and no account of what happened or why there was no forward movement has ever appeared. Making an injured worker's mental illness worse seems to me a serious and worrying circumstance for an insurer, and I cannot see that the harm is outweighed by any benefit from the failure of the Directorate and EML to take appropriate action (indeed it is not clear that there was any substantive benefit). I find that the requirement imposed on Ms Phillips to pursue her claim independently was not reasonable.[65]
96. The Appeal Tribunal also noted that, in her evidence, Ms Hughes accepted that the appellant had not actively progressed Ms Phillips' matter from January 2019 to October 2019[66] apart from a meeting on 29 July 2019. This candid response is quite telling. The Original Tribunal found that the appellant had done nothing substantive to progress the matter and it was up to Ms Phillips to continue to raise the matter herself in order for it to be resolved. This finding and the finding at the end of the previous paragraph were open to the Original Tribunal on the evidence.
97. Notwithstanding the evidence of Mr Young and Ms Hughes that efforts were made to tailor the management of such claims, these witnesses did not provide any tangible examples of that in relation to the management of Ms Phillips' claim during that six-month period from 29 January 2019 to 29 July 2019. When there was movement on 29 July 2019, the Senior Member found that it was to thrust responsibility back upon Ms Phillips.
98. The Appeal Tribunal is satisfied that the words 'condition or requirement' should be construed broadly and that a requirement or condition may be implicit or result from inaction (as set out in paragraph 76 of the Original Decision). The Appeal Tribunal is satisfied the Original Tribunal's findings that the appellant's failures to respond to Ms Phillips' emails imposed a requirement or condition on her that she advance her repayment claim without substantial assistance from the appellant; the unusual lack of progression of her claim and the fact that her claim progressed once she received a response from the appellant on 29 July 2019, were open to the Original Tribunal on the evidence. It was implicit from the Territory's inaction that to progress her claim for workers compensation, Ms Phillips, herself, had to pursue the claim without Territory assistance and that this caused her detriment or disadvantage. The Appeal Tribunal is not satisfied that the Original Tribunal erred in these findings.
99. Ms Phillips had provided medical evidence that she suffered from mental distress from January 2019 to July 2019. The medical certificates from her General Practitioner, Dr Meyer, record her extreme sensitivity, the extreme triggering of symptoms, severe depression, anxiety, severe distress, a diagnosis of PTSD, her frustrations associated with her claim and her perception of roadblocks. Subsequent medical certificates provided on 19 February 2019, 19 March 2019, 15 April 2019 and 14 May 2019 identify the continuance of these symptoms. The medical certificate dated 11 June 2019 contains specific and explicit comments about Ms Phillips' predicament over the preceding months. The medical certificates dated 11 June 2019 and 22 July 2019 identified delays and obstruction of process of Ms Phillips' enquiries into the matter which were exacerbating her condition and which could be regarded as continuing abuse.
100. The Senior Member accepted Ms Phillips' own evidence in which she described the effects on herself. It was supported by her husband's evidence and by Drs Meyer and Vepuri as well as the evidence from Vicki Walmsley, clinical psychologist, in her report dated 28 November 2019. The Senior Member stated:
But all the evidence, including that of Ms Walmsley, and the diary entry attached to Ms Phillips' statement, is consistent with the thesis that the business of dealing with the unsatisfactory aspects of her compensation had the effect of worsening Ms Phillips' PTSD symptoms.[67]
101. At paragraph 92 of the Original Decision the Senior Member dismissed the Territory's argument that any worsening of Ms Phillips' PTSD symptoms should be covered by her compensation payment, describing the argument as 'specious'. Nor was the Senior Member willing to dismiss her evidence as mere self-report, adding that there was no suggestion that she was in some way an unreliable witness. He had observed her when giving her evidence. He found:[68]
Ms Phillips' mental distress as a form of disadvantage flowing from the requirement imposed on her to take forward her underpayment and leave re-crediting issues independently is plainly put forward in Ms Phillips' complaint to the HRC, in her witness statement, in her evidence at the hearing, in her pleading and in her written submissions. The evidence, which is uncontested, is enough for me to conclude that on the balance of probabilities Ms Phillips suffered disadvantage, namely an increase in the severity of her PTSD symptoms, flowing from the requirement that she manage independently her compensation underpayment and leave re-crediting. [footnote removed]
102. While the Original Tribunal referred to section 8 of the Discrimination Act requiring a finding that the imposed condition or requirement is likely to disadvantage people sharing Ms Phillips' protected attribute, that provision changed in August 2016.[69] The test is now a simple one - whether the complainant, Ms Phillips, has been indirectly discriminated against because of one of the protected attributes.
103. However, Counsel for the appellant submitted that "[n]o details were provided as to which 'interactions' in particular caused the mental distress nor was there any finding of how, and what, requirements or conditions were imposed by the interactions".[70]
... The mental distress flowed from the nature of the interaction with the ACT and its agents - an interaction very much extended and made more complex and demanding by the ACT's unresponsiveness and, in respect of matters like the use of particular forms, its prescriptiveness.[71]
105. The Senior Member clearly disagreed with the appellant's submission, preferring the view that it was not necessary to identify which actions in particular caused the mental distress; it was sufficient to consider the actions as a whole.
106. The Appeal Tribunal finds that the Original Tribunal did not err in finding that it was not necessary to identify which actions caused the mental distress and that it was sufficient to consider the actions as a whole. The emails set out in paragraphs 61 to 79above and the medical reports referred to in paragraph 99 above, taken together, paint a clear picture of what did and did not take place and the effects on her health which enabled the actions to be considered as a whole.
107. The Appeal Tribunal finds that the Original Tribunal did not err in finding that the Territory imposed a condition or requirement on Ms Phillips to independently manage her claim, which caused her detriment.
Ground 3: Did the Original Tribunal err in finding that Ms Phillips suffered disadvantage?
108. Counsel for the appellant referred the Appeal Tribunal to an earlier tribunal decision of Applicant 202024 v The Australian Capital Territory (represented by Access Canberra)[72] where Presidential Member Robinson highlighted the degree of satisfaction required in cases for a finding of discrimination:
115. The degree of satisfaction that is required must be set having regard to the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the allegations. It is generally accepted that the standard of satisfaction which pertains to a discrimination complaint is that described in Briginshaw v Briginshaw:
...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[73]
116. Briginshaw does not shift or increase the standard of proof from the ordinary civil standard of balance of probabilities to something higher,[74] but it does require that the Tribunal reach a conclusion with a comfortable degree of satisfaction based on sufficiently robust evidence, rather than inexact proof, indefinite testimony or indirect inference. This can be a difficult requirement to meet and is perhaps one of the more significant barriers to discrimination proceedings being successful. [footnotes retained]
109. While it was accepted that Ms Phillips suffered PTSD resulting from workplace bullying, Counsel for the Territory submitted[75] that her case did not establish the imposition of a requirement or condition that: (a) caused her to suffer any detriment or disadvantage, and/or (b) was unreasonable in the circumstances.
110. The Senior Member found taking the evidence as a whole, that the imposed condition had the effect of disadvantaging Ms Phillips.[76]
111. In considering whether the disadvantage was caused by Ms Phillips' protected attribute the Senior Member said that, for indirect discrimination, "the causal link that must be established is between the protected attribute and the disadvantage brought about by the imposed requirement or condition, or the effect of that disadvantage".[77]
112. The Senior Member then considered the Territory's submissions as to why that tribunal should find no causal link between her mental illness and the alleged disadvantage. The Senior Member found that the delay Ms Phillips suffered in attempting to have her compensation payment adjusted and her long service leave re-credited could not be attributed to her disability. As the Senior Member said "the delay happened at the other end of the communication chain, in the offices of the Directorate, of EML or of Shared Services".[78] He also found that there was no causal link between Ms Phillips' PTSD and the delay in re-crediting her leave and paying her remuneration; neither was there a causal link between Ms Phillips' time and prejudice arising from the time taken for the process.
113. The third area of disadvantage Ms Phillips relied on which she claimed arose from the imposition of the condition or requirement to pursue her claim independently and to use the prescribed forms was identified as the pain, suffering and worsening mental distress that the process caused her. The Senior Member said he had no hesitation in drawing the conclusion that the cause of this form of disadvantage was Ms Phillips' PTSD. He had the medical evidence, which he found he could regard as contemporaneous. The Territory had not led any evidence contesting it. He said:
102. ...What evidence there is plainly links Ms Phillips' requirement to pursue her compensation claim to her worsening PTSD symptoms. This connection is drawn in the HRC complaint and is especially apparent in Ms Phillips' witness statement and in her evidence at the hearing.
114. The Senior Member noted that, if a condition or requirement was found to have been imposed, it was not in issue that the Territory imposed the condition or requirement.[79]
115. In considering detriment under section 10(2)(d) of the Discrimination Act the Senior Member found that the detriment suffered was mental distress.[80] It was put forward by Ms Phillips in her complaint to the HRC, in her witness statement, in her evidence at the hearing, in her pleading, in the General Practitioners' reports and in the written submissions. This evidence was uncontested. At paragraph 93 the Senior Member said:
'The evidence... is enough for me to conclude that on the balance of probabilities Ms Phillips suffered disadvantage, namely an increase in the severity of her PTSD symptoms, flowing from the requirement that she manage independently her compensation underpayment and leave re-crediting.
116. Taking the Original Tribunal's reasons as a whole, the Appeal Tribunal finds, for the reasons set out above, that the Original Tribunal did not err in finding Ms Phillips suffered disadvantage.
117. The Appeal Tribunal is satisfied that the evidence before the Original Tribunal in relation to Ms Phillips' worsened mental distress was plainly linked to the condition or requirement that she pursue independently her compensation claim. The disability was real, genuine and not insubstantial. The Original Tribunal's findings were open to it on the evidence.
118. Section 8(4) of the Discrimination Act provides:
However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
119. As stated above, the Territory called evidence from Mr Young and Ms Hughes. Mr Young's evidence was that it would not be usual for the Territory not to process a claim for six months, where it had all the information it required. He also stated that he expected the Territory's agent to notify a worker as soon as practicable if they had not provided all information required to process a claim. In this case Ms Phillips' claim was not processed inside the six months, and despite her numerous emails seeking clarification that she had provided all material, no one replied to her in a substantive way. The word 'inaction' to describe the Territory's responses to her emails is apt. The Territory, effectively, submitted that its inaction was reasonable within section 8(4) of the Discrimination Act. The Appeal Tribunal rejects this submission.
120. The Appeal Tribunal is satisfied that the Original Tribunal's finding, that the imposed requirement on Ms Phillips to pursue her claim independently was not reasonable, was open to it on the evidence. The Senior Member said:
... Making an injured worker's mental illness worse seems to me a serious and worrying circumstance for an insurer, and I cannot see that that harm is outweighed by any benefit from the failure of the Directorate and EML to take appropriate action (indeed it is not clear that there was any substantial benefit).[81]
121. The Appeal Tribunal is satisfied that the Original Tribunal has not erred in this finding.
Whether the Original Tribunal erred in not providing 'fulsome' reasons
122. The Appeal Tribunal has considered the Territory's submission[82] that the Original Tribunal had erred by failing to provide fulsome reasons to support the finding that Ms Phillips' claim was within the ambit of sections 10(2)(b) and/or 10(2)(d) of the Discrimination Act and asked that this issue be reconsidered and that, upon appeal, fulsome reasons be provided for the Tribunal's findings.
123. The Territory did not provide any authority for this submission.
124. Counsel for Ms Phillips' opposed the Territory's submission. He submitted that the requirement is only to provide 'sufficient' or 'adequate' reasons and referred the Tribunal to the following authorities.
125. An earlier appeal decision of the tribunal in Campbell v Blackshaw & Evans[83] where Presidential Member Daniel said:
There are many authorities in relation to the adequacy of reasons in the judicial context. In Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68 the Court of Appeal stated:
It is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA. Nor is it necessary for reasons to be lengthy or elaborate: Ex Parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 5. No mechanical formula can be given in determining what reasons are required: Beale v Government Insurance Office of NSW [1997] 48 NSWLR 430 at 443 per Meagher JA.
These authorities are increasingly applied in a Tribunal context, where some decisions historically made by Courts are now made.[84] While the public interest in the provision of reasons remains the starting point[85], the objectives of timeliness and efficiency mandated by section 5 of the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.
In NSW Police Force v Newby [2009] NSWWCCPD 75 Keating J stated:
To succeed in having the Arbitrator's decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge's (Arbitrator's) reasoning process and merely incorporating counsel's submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443-444 ('Beale')). A Presidential member on review is not required to comb through the Arbitrator's findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ('Soulemezis') McHugh JA (as he then was) stated at 280:
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter [1945] NSWStRp 35; (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.
The cautions expressed in Collector of Customs v Pozzolanic [1993] FCA 356; (1993) 43 FCR 280 as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial Tribunal context. It is not the role of the Appeal Tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the Tribunal fell into error. A Tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical Appeal Tribunal or Court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient. [footnotes retained]
126. In XFKR V Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[86] the Full Court of the Federal Court said:
...In this regard, it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]- [15] (Allsop J (as his Honour then was)).
127. The Appeal Tribunal agrees with Counsel for Ms Phillips' submissions. The Original Tribunal made findings after having reserved its decision following a two-day hearing. The reasons for the Original Decision comprise some 134 paragraphs extending over 52 pages. They were given in the light of the issues that were in dispute before it. Relying on the above authorities, the Appeal Tribunal has adopted a beneficial interpretation of the Original Tribunal's reasons constructing the reasons in a plain and common-sense way. It is satisfied that the Original Tribunal dealt with each of the appellant's (Territory's) submissions in considerable detail. Ms Phillips' Counsel described the Senior Member's decision as:
...a lengthy and considered decision, engaged not only with the statute and its... requirements... [he] has in relation to each element carefully considered the evidence and arguments put before him before ultimately coming to his final conclusion. Along the way, as we will see as we go through his decision, there are a number of preliminary findings made, each of them having followed the formula I just described, engaging with the evidence and the arguments.[87]
128. The appellant's Counsel forcefully submitted to the Appeal Tribunal that one needs to approach the detail of the facts and the relevant provisions and then make the requisite causal links and that this was where the Senior Member failed. He submitted that the Senior Member did not identify what that inaction, or requirement or condition, imposed other than to vaguely describe Ms Phillips having to independently manage her claim on her own account. Counsel reiterated that nowhere in the decision is there any description of what that actually amounted to and the detriment it allegedly caused.
129. Ms Phillips' Counsel took the Tribunal to that part of the original decision where he submitted that the Senior Member referred directly to section 8(3) of the Discrimination Act[88] and engaged with what it required while noting the tension with section 4A(1) of the Discrimination Act.[89] The Senior Member stated[90] that, the drafting of 'impose', 'requirement or condition' implies through the forcefulness of those terms, that any failure or refusal to act must be definite and clear, and it will more clearly impose a requirement or condition if repeated or prolonged. At paragraph 80 he found that the present circumstances meet that test. He stated that it was "worthwhile recalling the purpose of Ms Phillips repeated enquiries"[91] and then detailed some of the evidence which covered the period from the end of January 2019 to end of July 2019, frequently noting that Ms Phillips did not receive any or any substantive response to her own enquiries. He set out and considered the Territory's arguments and stated that he was unpersuaded by them. He found that:
...there was a six-month period (from 29 January [2019] to 29 July 2019) in which, so far as I can see, absolutely no forward movement occurred; and when movement occurred, it was to thrust responsibility back upon Ms Phillips so as far as these matters were concerned.[92]
130. The Appeal Tribunal has set out at paragraphs 61 to 79 above the email evidence of what Ms Phillips had done in managing her compensation claim herself.
131. Ms Phillips' Counsel referred the Appeal Tribunal to a decision of the NSW Civil and Administrative Tribunal in Lance Tyrrell v Coles Supermarkets Australia Pty Ltd,[93] in which the Tribunal considered, inter alia, the meaning of a condition or requirement in relation to a claim of indirect discrimination and said:
... [C]onsiderable latitude is afforded to applicants in formulating the requirements or conditions about which they complain...
The words "requirement or condition" should be construed broadly to cover any form of qualification or prerequisite...
... [T]he words "requirement or condition" should not be given a narrow or technical construction... Rather, they are to be interpreted liberally so as to further the objects of the Act...
In the area of employment, a requirement or condition is not limited to the explicit terms and conditions of the contract of employment but may also "encompass... all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept, as the case may be.
132. Counsel submitted this sets out the proper approach to interpreting the provision. The Appeal Tribunal agrees. Having regard to the evidence and this approach, the Appeal Tribunal is satisfied the Senior Member's finding at paragraph 84 was both open on the evidence and consistent with authority and the terms of the statute. He said:
...[T]he directorate, by its failure to respond to Ms Phillips' enquiries and requests, imposed a requirement that she advance her repayment and recrediting matter without substantial assistance from the respondent.
133. The Senior Member heard from Ms Phillips and the other witnesses. He had the copious quantities of documentary evidence and authorities before him. Notwithstanding Counsel for the appellant's submissions, the Appeal Tribunal is satisfied that the Original Tribunal's reasons are sufficient for the parties to understand the necessary elements by which the Senior Member made his decision and the facts relied on. The Appeal Tribunal is not satisfied that the Original Tribunal failed to provide fulsome reasons.
Ground 4: Did the Original Tribunal's mandatory powers exceed power, are they uncertain?
134. The Original Tribunal correctly identified that section 53E(2) of the HRC Act provided that the Tribunal must make orders in response to a finding that a person complained about has committed an unlawful act; that the possible orders are enumerated in subsection 53E(2) and may be of three kinds: directions that discriminatory conduct should stop; directions for action in redress by the person who committed the unlawful act; and financial compensation.[94]
135. In considering Ms Phillips' HRC referred complaint, the Senior Member, having found that the Territory committed an unlawful act against Ms Phillips, then found that he had an obligation pursuant to subsection 53E(2) to make one or more orders in response. He found he could make orders for reform and compensation pursuant to subsections 53E(2)(a) and (c), but that the orders he could sensibly make are limited. He noted that Ms Phillips had specifically sought, in her witness statement, that he make an order to prevent others in similar positions from suffering as she did.
...First, under paragraph 53E(2)(a) I can make an order that the ACT "not repeat or continue" the unlawful act. That is limited by the drafting of the paragraph to behaviour that falls within the discrimination I have found to have occurred. There are two particular aspects of the unlawful act that act as constraints here: first, the ACT's actions imposed a requirement on Ms Phillips through an extended period of unresponsiveness that may be particular to her case; and second, Ms Phillips has a disability that made her especially vulnerable to that kind of unresponsiveness. An order for the ACT to "not repeat or continue" its unlawful act must be limited to action aimed at avoiding similar periods of unresponsiveness in respect of injured workers with similar conditions, or some equivalent. Further, in the absence of expert evidence about Ms Phillips' mental illness, I do not have evidence that I can rely on about the typicality of her symptoms, their severity, their likely duration, and whether similar symptoms are likely in other mental illnesses (such as, for example, adjustment disorders or obsessive-compulsive disorder). But I acknowledge that Ms Phillips has specifically sought, in her witness statement, that I should make an order to prevent others in similar positions from suffering as she did.
Any order that the law will allow me to make in these circumstances may be narrow for the reasons given above. But it is still worth doing: it seems to me that an insurer that allows staff in their normal interactions to exacerbate the injuries of injured workers should give some thought to the need for training of staff and improvement of work practices. Accordingly, I have made an order that the Directorate and is agents (presently EML and APM) must institute a training program for relevant staff and improve procedures in respect of timeliness and responsiveness to injured workers with mental injuries.
137. The Original Tribunal made the following orders pursuant to paragraph 53E(2)(a) of the HRC Act:
1. The ACT, in its role as insurer under the [SRC Act] and through its contracted claims manager and rehabilitation provider, must:
(a) on the basis of the expert evidence of a psychiatrist or clinical psychologist, provide training to those staff dealing with injured workers with a mental injury, so as to minimise the risk of triggering symptoms or otherwise exacerbating the injury; and
2. institute improved procedures for dealing with mental injuries aiming to:
(i) avoid delays in processing claims;
(ii) provide timely responses to enquiries by injured workers;
(iii) keep injured workers informed of progress of their claims;
(iv) provide timely advice to injured workers regarding any impediments to claims being processed; and
3. Complete the introduction of the changes set out in (a) and (b) above by 31 March 2022.
They do much more than require the Territory to stop and not repeat the unlawful Act, they seek to require the Territory to implement uncertain and unending policy and training measures.
(a) There was a lack of clarity as to how the Territory must comply with the orders; who is to make any further determination as to whether or not there has been compliance; and when and how often such further determinations are to be made.[98]
(b) The highly subjective nature of the proposed measures in these orders meant that assessing the Territory's compliance would be difficult, if not impossible, to achieve.[99] Counsel for the Territory posed the question "[w]ould the Territory be in contempt each and every time the measures were not adhered to, however inadvertent and/or temporary the non-compliance?"
(c) The orders seemed out of all proportion to the findings of fact upon which the Senior Member found the Territory had discriminated against Ms Phillips; adding that there was no evidence of any systemic failures or to the effect that others had or were likely to be discriminated against for the same or even similar reasons and that the evidence before the Original Tribunal only concerned the Territory's and its agents' dealings with Ms Phillips.[100]
140. Ms Phillips' claim did not allege discrimination at large or even to a class of people. It was, at all times, a discreet claim brought by Ms Phillips alleging the Territory had discriminated against another person, namely herself.
141. The Territory submitted that Order 1(b) looks to impose procedures in respect of the whole claims management process whereas if there were to be a finding of discrimination it would be in a discreet area of Ms Phillips' claim management.
142. The Territory referred the Tribunal to the decision in ACT v Wang. In ACT v Wang the Territory had appealed against orders which effectively required the Territory to devise and put in place a merit based ranking system by which to compare and select interns for clinical internships at the Canberra Hospital. Counsel for the Territory submitted that issues before that Appeal Tribunal were analogous to the issues in the present appeal. The orders in ACT v Wang were the subject of the appeal on the bases, inter alia, that they were not authorised by section 53E of the HRC Act, were void for uncertainty or were otherwise not capable of enforcement or supervision by the Tribunal.[101] The Appeal Tribunal in ACT v Wang commented on the appropriateness of the orders made by the Original Tribunal stating:
...that (relevant orders) made by the Original Tribunal were not in form or substance of the type prescribed by the legislation.[102]
143. Ms Phillips' Counsel submitted that Orders 1(a) and (b) and Order 2 are reasonably certain.[103] There is a timeframe for completion by 31 March 2022. They identify who must comply and they state what must be done. The orders were what Ms Phillips had wanted out of the proceedings. Indeed, her Counsel described this as a significant aspect of her claim.[104] In her pleadings dated 23 June 2020 Ms Phillips sought orders for the Territory to adopt a policy for acknowledging claims and providing information to workers, and for the Territory to provide mental health first aid training to employees, servants or agents working with those with a mental injury.
144. The Appeal Tribunal agrees with the appellant that Orders (1) and (2) go well beyond requiring the Territory to stop and not repeat the unlawful act. They are out of all proportion to the findings of fact upon which the Senior Member found the Territory to have discriminated against Ms Phillips. The orders look to prevent an unlawful act against future claimants. These orders go well beyond any power conferred by section 53E(2)(a) of the HRC Act.
145. The Appeal Tribunal is satisfied that there are other problems with these orders. The fact that Ms Philips requested such orders describing this as a significant part of her claim, does not remove the requirement to comply with section 53E of the HRC Act which is the only source of power for the final orders. Section 53E(2) states that the tribunal must make one or more of the three different types of orders if the Commission refers a complaint to the tribunal and the tribunal is satisfied that the person complained about engaged in an unlawful act.
146. The Appeal Tribunal refers to and adopts the statement of the appeal tribunal in ACT v Wang (at paragraph 142 above) and finds the orders are not in form or substance of the type prescribed by the legislation. They are unreasonable; they go well beyond what is required and as the Territory submitted, are uncertain and potentially never ending. Order 1(a), while referring to the requirement to obtain advice from a psychiatrist or clinical psychologist, does not usefully specify any other relevant expertise the expert should have to inform the training; it does not specify the form of the advice. There is no order requiring the training. Nor is there any detail as to when the training is to occur, who is to provide it, its frequency and whether it is an ongoing obligation. If it was intended that these orders were to be enforceable there is a dearth of detail which would be essential for a person to consider when expected to decide if the procedures are an improvement.
147. The Territory informed the Appeal Tribunal, in the event Ms Phillips was found to have been discriminated against, it took no issue with Orders 3 and 4.[105]
148. Pursuant to section 82(2)(b) of the ACAT Act and for the above reasons, the Appeal Tribunal will set aside Orders 1(a) and 1(b) and Order 2. Orders 3 and 4 of the Original Tribunal will be confirmed.
149. On 2 December 2021 the Appellant filed an Application for Interim or Other Orders seeking the following order:
An order pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 that the names of the six persons referred to in the decision Phillips v ACT (as represented by Chief Minister, Treasury and Economic Development Directorate) (Discrimination) [2021] ACAT 22, and in the reserved decision in appeal proceedings (AA 27 of 2021) be de-identified or redacted, such that they are not publicly available.
150. The six persons were individual employees of the Territory or employees of third party rehabilitation or insurance providers that provide services to the Territory. These individuals were not witnesses, nor individual parties to the proceedings. They were referred to in documents filed with the Tribunal and received in evidence by the Tribunal at the hearing.
151. A summary of the basis of the application is set out in [21]-[22] of Attachment "A" to the application:
21. The allegations at the heart of the Applicant's discrimination complaint, and the Tribunal's findings and orders were made in relation to the Territory, generally, and were unrelated to individual staff members.
22. It follows that the publication of these individuals' names is unnecessary, it has the potential to adversely impact the named individuals and a decision to deidentify or redact individual staff members' names will not affect the interests of ensuring open justice.
152. The respondent neither consented to nor opposed the application.
153. Section 38(1) of the ACAT Act provides that the hearing of an application by the tribunal must be in public. Section 38(2) provides that this section does not apply if an order is made under section 39 of the ACAT Act.
39 Hearings in private or partly in private
(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
Note See s (5) in relation to competing interests.
(2) The tribunal may, by order, do 1 or more of the following:
(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4) A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
_(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private - _
(a) to protect morals, public order or national security in a democratic society; or
(b) because the interest of the private lives of the parties require the privacy; or
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
155. The Appeal Tribunal considered the application in Chambers and refused the application. The Appeal Tribunal was not satisfied that the right to a public hearing was outweighed by competing interests under section 39(5)(c) of the ACAT Act.
156. However, the Appeal Tribunal clarifies that its findings in this decision relate to the Directorate and the entities engaged by it and the ACT Government in relation to the Territory being a self-insurer under the SRC Act and the management of Ms Phillips' claim. The findings do not relate to the individual staff members or employees referred to in this Decision.
[1] Phillips v Australian Capital Territory (as represented by the Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22 (Original Decision) at [44]
[4] [2019] ACAT 65 at [52] (ACT v Wang)
[12] Original Tribunal at [100], [101]
[13] Original Tribunal at [102], [103]
[17] Appellant's submissions dated 28 July 2021 page 4 at [16], page 6 and pages 20-21
[18] Respondent's submissions filed 26 August 2021 at [1]
[19] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]
[20] Respondent's submissions filed 26 August 2021 at [5]
[22] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]- [39]; Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]- [55]; In the Matter of AB [2018] ACAT 18 at [41]
[25] [2013] ACTSC 219 at [13] ff
[26] This is a Latin term for 'once the necessary changes have been made'.
[27] Section 121A(2) of the Discrimination Act 1991 - Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative's actual or apparent authority.
[28] Fleming and Comcare [2004] AATA 1016; Daff & Comcare [2010] AATA 732; Cook and Comcare [2017] AATA 227; Steins and Comcare [2019] AATA 803 at [17]- [22]
[30] [2019] ACAT 65 at [162]- [163]
[31] Walker v State of Victoria [2011] FCA 258 at [194]
[32] Original decision at [74]-[75] referring to Tyrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57 at [33]
[33] Email dated 16 January 2019 from Acting Senior Member, Safety and Wellbeing, People Management, Community Services Directorate (CSD) Human Resources
[34] Email dated 14 February 2019 from Senior Safety and Wellbeing Advisor, Safety and Wellbeing, People Management, CSD Human Resources
[35] Original decision at [77], [78]
[38] Senior Safety and Wellbeing Advisor with CDS
[42] Appeal book volume 5, pages 2268, 2270
[56] Appeal book volume 5, pages 2299-2300
[60] Appellant's submissions dated 28 July 2021 at [34]
[61] Transcript of proceedings 9 November 2020, page 75, lines 19-23
[62] Witness statement of Rachel Hughes dated 22 September 2020 at [38],[39]
[63] Transcript of proceedings 9 November 2020, page 81, lines 13-16
[64] Transcript of proceedings 9 November 2020, page 93, lines 1-5
[66] Transcript of proceedings 9 November 2020, page 101, lines 13-20
[69] It now reads, section 8(3): "a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes".
[70] Appellant's submissions dated 28 July 2020 at [71]
[72] [2021] ACAT 14 at [115], [116]
[73] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2 per Dixon J
[74] See in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ
[75] Appellant's submissions dated 28 July 2021 at [73]
[80] Original Decision at [117(c)]: "... the effect of disadvantage to Ms Phillips, by triggering or exacerbating symptoms such as anxiety and intrusive thoughts."
[82] Refer to paragraph 29, ground 1 (b) above.
[83] [2017] ACAT 64 at [57]- [60]
[84] See for example Collins v Urban [2014] NSWCATAP17; Rathchime Pty Ltd v Willat [2017] NSWCATAP 87
[85] See Mifsud v Campbell (1991) 21 NSWLR 725, 728
[87] Transcript of proceedings dated 14 September 2021, page 22, lines 23-29
[88] Section 8(3): "For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes".
[89] Section 4A(1): In this Act: doing an act includes failing to do the act.
Note The Legislation Act, dict, pt 1 defines fail to include refuse.
[93] [2020] NSWCATAD 57 dated 18 February 2020 at [32]-[35]
[95] Original Decision at [123], [124]
[96] Appellant's submissions dated 28 July 2021 at [83]
[97] Appellant's submissions dated 28 July 2021 at [86]
[98] Appellant's submissions dated 28 July 2021 at [87]
[99] Appellant's submissions dated 28 July 2021 at [88]
[100] Appellant's submissions dated 28 July 2021 at [89]
[103] Respondent's submissions filed 26 August 2021 at [73]
[104] Respondent's submissions filed 26 August 2021 at [54]
[105] Appellant's submissions dated 28 July 2021 at [76]
AUSTRALIAN CAPITAL TERRITORY
PHILLIPS
(1991) 21 NSWLR 725
(1991) 24 NSWLR 156
(1997) 48 NSWLR 430
(1996) 185 CLR 259
(1987) 10 NSWLR 247
(1993) 43 FCR 280
(1938) 60 CLR 336
(1992) 67 ALJR 170