Baker v The Crown in the Right of the State of NSW

NCAT Administrative and Equal Opportunity|2019-12-03

The Application

Ms Baker, ("the Applicant") brought proceedings for leave to proceed with her complaint of disability discrimination in employment pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act"). The President of the Anti-Discrimination Board investigated then declined her complaint to the Anti-Discrimination Board ("ADB").
On 3 December 2018, the President's delegate accepted the complaint of alleged disability discrimination in employment in respect of Ms Baker's applications for 4 positions with the Respondent for the period 1 February 2017 to 1 February 2018.
The Applicant's complaint, as accepted by the President, was of disability discrimination in employment under sections 49A, 49B and 49D of the Act.
The President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a) on 3 October 2019. The reasons stated that the complainant had not provided any information to establish that she was treated less favourably than any other applicant for employment with the Respondent on the grounds of any actual or presumed disability, or at all.
On 21 October 2019, Ms Baker requested that the matter be referred to the New South Wales Civil and Administrative Tribunal ("the Tribunal") for a hearing.
The issue in this case is whether it is fair and just for the Tribunal to give Ms Baker permission (or "leave") for her complaint to go ahead: Anti-Discrimination Act, s 96. Ms Baker bears the onus of persuading the Tribunal that leave should be granted.
The Tribunal conducted a hearing of the application for leave on 3 December 2019. Ms Baker represented herself. The Respondent was represented by Ms Clarke.

Summary of the Complaint

Ms Baker made a complaint to the President of the ADB on 15 October 2018, alleging disability discrimination in employment in relation to her application for employment in the Western NSW Local health District.
In summary, Ms Baker alleged that the Respondent unlawfully discriminated against her on the ground of her presumed disability

in the arrangements it made for determining who should be offered employment; and
in determining who should be offered employment; and
the terms on which it offered employment.

Ms Baker alleged that she was viewed differently by the Respondent after she sustained a psychological injury in 2010. She successfully challenged a Workcover refusal. She was then unsuccessful in four job applications in 2017 and 2018 because of assumptions about her capacity - that is that she had a mental health condition- as a result of that injury.
In particular, Ms Baker alleged that:

she was blocked from four jobs;
the Respondent failed to referee check with her nominated referees;
an offer of employment for a temporary position in Bathurst was made conditional on her undergoing a full medical assessment, which wasn't a requirement for other applicants; and
the Bathurst position was withdrawn after she was required to undergo a full medical assessment and for which she would be required to pay.

Ms Baker obtained a statement from Ms Robyn Kelleher who was the head of the Department of social work services at Bathurst Health Service. She was the job specialist on the interview panel for the position. Mr Andrew Muldoon was the panel convener. Ms Baker had been the successful applicant. After the recruitment documents determining to offer Ms Baker were submitted to the human resources department, Ms Kelleher said that she was called to a meeting between Mr Andrew Muldoon and the then General Manager of Bathurst Health Service, Mrs Sue Patterson. Mrs Patterson informed Ms Kelleher that Ms Baker would be required to undertake an independent psychological assessment at a cost of $5000. Mrs Patterson said that as the position was a short-term position, she was not willing to pay for it. If Ms Baker wished to have the position she would have to pay. Ms Baker did not wish to pay that amount of money. Ms Kelleher stated that she had been involved in the recruitment of numerous staff and had never been aware that those staff had to attend a psychological assessment prior to being offered a position. The most recent example was that of a social worker recruited to the palliative care service at Bathurst Health Service.
Ms Baker said she had experienced a temporary medical condition in 2010 after some abdominal surgery. She had experienced a temporary delirium after sustaining an abdominal abscess. She had a WorkCover claim. She considered that since then she had been treated differently by the Respondent. She had last undertaken a medical assessment in 2014. She had taken a week off in 2016 after a suicide of a patient.

The Respondent's response

The Respondent wrote to the President on 31 May 2019, denying all allegations of discrimination. Ms Baker applied for four roles in 2017 and 2018 - in Coonabarabran, Dubbo, Orange and Bathurst. The Respondent stated that it followed the New South Wales Health recruitment and selection of staff policy directive on each of these four occasions. The Respondent advised the President that all full medical assessments are at the cost of the local health district - regardless of whether the position is permanent, temporary or casual.
The Respondent stated that Ms Baker's application for the Coonabarabran role did not proceed to the referee checking stage following interview.
The Respondent stated that Ms Baker was ultimately unsuccessful in her application for the Dubbo and Orange roles because of poor performance at interview.
All applicants for the Bathurst role invited to interview were required to complete an employee health assessment. The preferred candidate's employee health assessment (EHA) is then reviewed by the risk management unit to assess whether more information is required before making any offer of a position. The purpose of the assessment is to ensure compliance with the Respondent's WHS obligations in the event the preferred candidate is employed. After Ms Baker was identified as the preferred candidate for the Bathurst role, the risk management unit determined, in the light of Ms Baker's responses on the EHA, that a full independent medical examination would be required. Ms Baker then withdrew her application for the position after being advised of the need for a full medical examination. At the hearing the Respondent submitted that Mr Muldoon could not recall having required Ms Baker to pay for the health assessment herself.

The Tribunal's consideration of whether to grant leave

Principles for granting leave

The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J:

emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights";
found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint;
concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and
noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates.

Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the President that it lacked substance.

What constitutes discrimination on the ground of disability? 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability-- (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) … (3A) … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability-- (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) … (3) … (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability-- (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) …

4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

Establishing a complaint of disability discrimination

The established case law sets out that to establish a complaint of disability discrimination, the Applicant must be able to show that: 1. she was treated less favourably than other persons (detriment); 2. that the, or one of the, reasons for the less favourable treatment was her disability (causation); and 3. that a comparator (a person not thought to have the same disability as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated her less favourably because of her presumed disability.

Treated less favourably than others

Ms Baker argues that the detriment consists of 3 unsuccessful job applications in which she was not selected and a successful application in which she was selected - but offered the position on less favourable terms than a person not presumed to have her disability. The less favourable terms were that Ms Baker was required to pay for the assessment herself. Ms Baker alleged that a person who did not have her presumed disability would not have been required to undergo or to pay for the assessment. The Respondent stated that such a cost would always be borne by the Respondent. Ms Kelleher stated that she had not previously known of a candidate being required to undertake an assessment.

The/ one of the, reasons for the less favourable treatment was Ms Baker's (presumed) disability

To establish this complaint of disability discrimination, Ms Baker would need to show that she was treated less favourably in the recruitment process, than the Respondent treated a person not presumed to have the disability Ms Baker was presumed to have - in the same circumstances. Ms Baker would need to prove that one of the reasons for the treatment was Ms Baker's presumed disability.
Section 4A of the Act provides that the protected attribute - disability - need only be one of the reasons for the behaviour complained of. The issue is whether the protected reason, presumed disability, is at least one of the 'real', 'genuine' or 'true' reasons for the treatment.

Presumed disability

Ms Baker argued that the Respondent had presumed she had a mental health condition arising from events in 2010 when she suffered a delirium and was then successful in her WorkCover claim on the basis of a psychological injury. Ms Baker submitted that the requirement that she undertake an Independent Psychological Assessment as a pre-condition to her taking up a position in Bathurst in 2017 and pay for it herself, was evidence of a presumption that she had a mental health condition.
Ms Baker's complaint sets out that she was unsuccessful in 3 previous positions. Ms Baker alleges that the reason she was unsuccessful was her presumed disability. However, she does not offer direct evidence that this was one of the reasons she was not selected for the first 3 positions. The Respondent asserted that Ms Baker had not been successful because she did not perform well at interview. There is no direct evidence that a presumed disability was one of the reasons Ms Baker was not successful. Nor is there evidence in relation to these 3 positions from which the Tribunal could draw an inference that a presumed disability was the reason Ms Baker was not successful.

Drawing inferences

The Tribunal has discussed the drawing of inferences in discrimination complaints where there may not be direct evidence that the cause of the detriment complained of was an unlawfully discriminatory reason. In the matter of Udeh, also an application for leave under section 96 of the Act, Dr Udeh complained he had been treated less favourably on the grounds of his race. He alleged a comment had been made in relation to race. The Tribunal considered the allegation that a racially negative comment had been made. See Udeh v University of Newcastle [2018] NSWCATAD 66 at [49] : 49 Nonetheless, if proven, it would be powerful evidence in determining the issue of causation which would require asking whether, having regard to the totality of the evidence, the inference could be drawn that Dr Udeh's race was one of the reasons for the alleged less favourable treatment. (See Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], referring to Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.) As repeatedly observed, of its very nature race discrimination is "[O]rdinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial": Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 at p. 78,789.

That a comparator (a person not thought to have the same disability as the Applicant) would have been treated more favourably in the circumstances and that the Respondent treated Ms Baker less favourably because of her presumed disability.

Ms Kelleher's statement sets out that: I have been involved in the recruitment of numerous staff and have never been aware that those staff had to attend a psychological assessment prior to being offered a position.
The Tribunal considers that taking into account this statement and the facts surrounding the terms on which Ms Baker was offered the position - that a Tribunal could draw the inference that Ms Baker was treated less favourably than a person not presumed to have a psychological disability when she was required to undergo a psychological assessment at her own expense - in circumstances where the Respondent has stated that it is not the Department's policy that an applicant for a position pay for a medical assessment.
On one view, this term of employment also operated as a constructive refusal of the position to Ms Baker - given the cost of $5000 for an unemployed person.
The Tribunal notes that it is not clear from the evidence whether Ms Baker was required to undergo a full medical assessment or a psychological assessment. This is a matter for evidence at any subsequent hearing.

Taking the Complaint at its highest

In assessing whether to grant leave for Ms Baker to proceed with her complaint, the Tribunal takes the approach of accepting Ms Baker's complaint at its highest. Ms Baker did not provide direct evidence linking her 3 unsuccessful applications for employment with a presumed disability. Nor was there evidence from which the Tribunal could draw an inference that a presumed disability was one of the reasons for her 3 unsuccessful applications.
In relation to the Bathurst role, there are allegations which if proven, may lead a Tribunal to draw an inference that a presumed mental health condition led to less favourable treatment of Ms Baker in the terms on which employment was offered to Ms Baker. The imposition of a $5000 charge on the employer required "health assessment" could be viewed as a constructive refusal of the position.

Is it fair and just to grant leave for the complaint to proceed ?

The Tribunal must consider whether it is fair and just for the complaint to proceed. The President of the ADB concluded that there was insufficient information to support the complainant's contention that she was discriminated against in employment on the basis of her presumed disability. The Tribunal considers it highly unlikely the complaint as it stands in relation to the Coonabarabran, Dubbo and Orange positions could succeed at hearing.
There is a possibility that the complaint relating to the recruitment for the Bathurst position could succeed as a complaint of presumed disability discrimination in the terms on which employment was offered or as a constructive refusal of the position.
The Tribunal notes the principles set out by Schmidt J in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38] . In considering whether to grant leave Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint;

Decision

In all the circumstances the Tribunal considers that it is not fair and just to grant leave for the complaint relating to the Coonabarabran, Dubbo and Orange roles to proceed as it is unlikely that this complaint could succeed at hearing.
In all the circumstances the Tribunal is satisfied that it is fair and just to grant leave for that portion of the complaint relating to the recruitment for the Bathurst position to proceed on the basis that there are allegations which if found proven may lead to a finding of discrimination on the basis of presumed disability in employment.

Orders 1. Leave is granted for the portion of the complaint relating to the recruitment process for the role in Bathurst to proceed under section 96 of the Act. 2. Leave to proceed is refused for the portion of the complaint dealing with the unsuccessful applications for roles in Coonabarabran, Dubbo and Orange under section 96 of the Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2020

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Cases Cited (9)