Barton v Lake Macquarie City Council

REASONS FOR RULING (Revised from transcript) 1 Dr Kate Barton was formerly employed by Lake Macquarie City Council as its sustainable living team leader and later coordinator, managing energy, water, waste and transport across the city and in the Council. She claims that she was bullied by Council employees and that the bullying and the Council's response to it were in breach of her contract of employment. 2 The bullying allegations are primarily directed against one Alice Howe, who originally held a position at an equivalent level to Dr Barton, but who was later elevated to a position as her immediate supervisor. Dr Barton claims that she made some informal attempts to have the alleged bullying addressed but that the situation deteriorated, rather than improved, thereafter. After a heated telephone discussion with Dr Howe on 13 February 2012 Dr Barton fell ill and was later diagnosed with stress cardiomyopathy. The next day she made a formal complaint about Dr Howe's conduct and was absent from work for about six weeks. 3 At that point Dr Barton was certified fit to work for modified hours only and with no interaction with Dr Howe. But during those periods when she was working under these restrictions she claims she was bullied by other Council employees and generally treated in an inappropriate way. In October 2012 she was stood down from her employment and a couple of weeks before this trial was due to begin her employment was terminated. Dr Barton alleges that this treatment was also in breach of her contract. Furthermore, she alleges that it amounted to victimisation contrary to the Disability Discrimination Act 1992 (Cth) ("DDA"). Both parties have filed and served a mountain of evidence, a good deal of which is the subject of objection. 4 The particular dispute with which this judgment is concerned relates to expert evidence Dr Barton wishes to call in reply. The evidence is the subject of affidavits from Dr Helen McGrath, a counselling psychologist and academic, and Anne Sutherland Kelly, a practitioner and teacher in the field of mediation. 5 On 8 August 2014 Gleeson J ordered that Dr Barton file and serve her evidence in reply by 28 August 2014. The affidavits from both these witnesses were not filed and served within that time. Indeed, they were not served until 5 September and not filed until 10 September 2014. 6 The Council objects to Dr Barton being able to rely on the evidence and has asked for an early ruling. The grounds of the objection are that: (1) the evidence is not relevant; (2) even if the evidence were relevant (inferentially to Dr Barton's case in chief), the Council has lost an opportunity to call evidence in response; (3) the evidence is not "properly" evidence in reply because it deals with issues which arise in Dr Barton's case in chief; (4) the evidence was called in contravention of Court orders. 7 There is an evident tension between grounds 1 and 3. 8 The Council also argues that Dr McGrath's evidence should not be admitted because it "usurps the function of the Judge in determining the issues in dispute". 9 In each case Dr Barton contends that there has been no breach of Court orders, the evidence is relevant and is in truth evidence in reply. The argument is that the evidence is to be called to rebut the Council's defence to the discrimination claim. To understand the argument it is first necessary to say something more about the discrimination case and to refer to some of the provisions of the DDA. 10 Section 15(2) of the DDA relevantly provides that: It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability: (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 benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. 11 Discrimination may be either direct or indirect. Direct discrimination is dealt with in s 5 of the DDA, indirect discrimination in s 6. 12 Relevantly, direct discrimination will occur on the ground of the employee's disability if the employer does not make or propose to make reasonable adjustments for the employee and the failure to make those adjustments has, or would have, the effect that the employee is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different: s 5(2). Dr Barton's case is that the Council did not make reasonable adjustments for her to accommodate her disability or disabilities. In her statement of claim Dr Barton pleads that the adjustments that could have been made include: taking reasonable steps to investigate Dr Barton's written complaint and the bullying that took place in 2009 and in 2011-2012, such as those set out in the Council's own policies and procedures; and taking reasonable steps to limit the stress experienced by Dr Barton as a result of her interactions with Dr Howe and/or preventing the bullying from continuing once she returned to work, including but not limited to: (a) changing the reporting structure for the role of sustainable living coordinator, so that Dr Barton reported to someone other than Dr Howe; (b) continuing the reporting structure that had operated in which Dr Barton reported to someone else (Anthony Farrell) (in a position to which Dr Barton had been seconded before her absence from work); (c) extending Dr Barton's secondment; (d) offering Dr Barton alternative duties with the Council where her skills could have been utilised; (e) not directing a mediation with Dr Howe before Dr Barton had been certified fit to do so by her treating doctors; (f) obtaining an occupational medical assessment aimed at identifying "reasonable accommodations" that could be made to allow Dr Barton to return to work. 13 The Act defines "reasonable adjustment" in such a way as to deem an adjustment to be made by a person to be reasonable unless making the adjustment would impose an unjustifiable hardship on that person: DDA, s 4. The burden of proving that something would impose unjustifiable hardship rests with the person who asserts it; in this case, the Council: DDA, s 11(2). 14 "Unjustifiable hardship" is defined in s 11(1) of the DDA: For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following: (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (b) the effect of the disability of any person concerned; (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d) the availability of financial and other assistance to the first person; (e) any relevant action plans given to the Commission under section 64. (Original emphasis.) 15 It is common ground that the factors listed in paragraphs (a) to (e) are not exhaustive of the circumstances that must be taken into account. 16 The Council appears to rely on paragraphs (a)-(c). Relevantly, the Council pleaded in its defence that: in order for Dr Barton to occupy a role within the Sustainability Department and for this not to constitute a demotion and/or not to involve at least some contact with the Manager of Sustainability (Dr Howe's position), an organisational restructure would be required at substantial cost to the Council; the Waste Strategy Project to which Dr Barton had been seconded has now been returned to the Sustainability Department; the reporting structure under which Dr Barton was not required to report to Dr Howe was only appropriate while the Waste Strategy Project was conducted outside the Sustainability Department: to continue the Waste Strategy Project outside the Sustainability Department would be costly; and it would be an unjustifiable hardship for the Council to dismiss Dr Howe. 17 Indirect discrimination is described in s 6. Relevantly, s 6 provides: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) … (3) Subsection (1) … does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. (Original emphasis.) 18 The Council admits that (from 12 October 2012 until 18 August 2014 when Dr Barton was dismissed) it required Dr Barton to participate in a mediation with Dr Howe and/or to have direct contact with her during the course of her employment. Dr Barton contends that she was unable to, or would not, comply with the requirement because of the nature of her disability and/or her understanding of it. 19 In its defence the Council pleaded that it was reasonable to require Dr Barton to have direct contact with Dr Howe and to engage in a mediation with her. It also pleaded that it took reasonable steps to prevent bullying, referring to its various policies and the training it provides to its employees. On 7 March 2014 it filed evidence to support the pleading. The evidence of Dr McGrath and Ms Kelly is said to respond to this. 20 Dr Barton's lawyers provided each of the witnesses with a number of documents and then asked them a series of questions. Although each was asked to "list the facts, matters and assumptions" upon which her opinion was based, neither did. This presents some difficulties for the evaluation of the evidence, because it is not at all clear what assumptions of fact were made and therefore what the factual foundations for the opinions were. The situation would have been otherwise if, as is customary, the witnesses had instead been asked to make certain assumptions Dr Barton expected to be able to prove through the lay witnesses and the documents. But these difficulties may be put to one side for the moment at least, because no objection was taken to the evidence on this basis.