Victorian Civil and Administrative Tribunal|2002-12-06

Burrows v State of Victoria (Department of Education) [2002] VCAT 1655 (6 December 2002)

Anti Discrimination - Application to strike out/ dismiss complaint - Whether claim should be struck out for delay in lodging complaint - Whether claims can be amended to include matters allegedly occurring after lodgment of complaint - Whether claim is incapable of constituting detriment to the complainant - Whether claim is incapable of constituting direct/ indirect discrimination - Equal Opportunity Act 1995 ss8, 9, 14, 104 - 117; Victorian Civil and Administrative Tribunal Act 1998 ss 41-43, 69, 75 and .

DATE OF LAST WRITTEN SUBMISSIONS: 3 October 2002

MEDIUM NEUTRAL CITATIONS: [2002] VCAT 1655

Pursuant to s75 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal Orders -

1. That the proceeding by the Complainant against the Respondent is dismissed except for the claim described in paragraph (I) of the reasons for decision dated 6 December 2002 to the extent that the claim relates to indirect discrimination.

2. The Complainants claim, that after 3 April 1998, the Respondent failed to assist his return to work to non-teaching duties with the Department, is struck out. The Complainant has liberty to apply to amend the complaint in this proceeding to include that claim.

3. This matter will be listed for a Directions Hearing in January 2003 on a date to be notified by the Principle Registrar.

[1] The decision is that the claims by Mr Burrows are dismissed in part. The claims that have been dismissed will become clear from my reasons for decision and after I have concluded those reasons I will go and sign the orders.

[2] My reasons are these. On 3 April 1998 Mr Burrows lodged with the Equal Opportunity Commission, ("the Commission"), a complaint under the Equal Opportunity Act 1995 ("the Equal Opportunity Act") against the State of Victoria in its capacity of the Department of Education ("the Department"). The complaint claims impairment discrimination in employment and victimisation under that Act.

[3] Under s.108(1)(a) and (c) of that Act the Commission declined the complaint. Those provisions permit the Commission to decline a complaint which it considers frivolous, vexatious, misconceived, lacking in substance or where the conduct complained of occurred more than 12 months before the lodgment of the complaint.

[4] In June 1998 Mr Burrows' mother required the Commission to refer the complaint to VCAT. It seems that once the Commission was satisfied that Mr Burrows' mother acted with her son's authority in making this requirement, the Commission referred the complaint to this Tribunal. This occurred in October 1998.

[5] The complaint has had a protracted history in this Tribunal. It was first purportedly withdrawn and later reinstated in 1999. The matter was listed for mediation in

July 2000. A prolonged period of negotiation then took place. By October 2001 it became clear that the matter was not going to resolve through mediation.

[6] Throughout 2000 and 2001 and during 2002 many attempts were made by Mr Burrows to obtain legal assistance. The Tribunal has, as far as it can, given its role and its duty to act fairly, assisted him with the names of organisations he might approach. He has obtained some legal representation at different stages of this proceeding, but for various reasons has not been able to obtain continuing legal representation. He is currently unrepresented.

[7] Mr Burrows, it is conceded by the respondent, has the diagnosed serious psychiatric illness of chronic paranoid schizophrenia. At some stages during these proceedings Mr Burrows has become ill and this has further delayed these matters.

[8] The Department has now applied under s.75 of the Victorian Civil & Administrative Tribunal Act 1998 ("the VCAT Act") to strike out or dismiss this complaint on all the grounds set out in that section. Those grounds are that the complaint is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. The Tribunal has on its file the complaint and the particulars of complaint. It has submissions from the parties including submissions from Mr Burrows and various people, both lawyers and lay people who at various times had assisted him.

[9] The Tribunal considered it appropriate to enable it to deal with the application fairly from the point of view of all parties, and given that Mr Burrows is now unrepresented, to deal with the matter on the papers after receiving written submissions from the parties. It has made directions clarifying what documents constitute submissions for Mr Burrows on the application. Those documents are bundles of documents dated 29 August, 3 September and 16 September 2002 respectively (see Directions dated 23 September 2002).

[10] I have taken into account all the material before me including affidavit material attached to the Department's submissions and including the exhibits attached to those affidavits. I have taken this material into account to understand what Mr Burrows claims and why the Department says that the claim should be struck out or dismissed. I have read Mr Burrows' claims broadly and not in a technical way. In addition, I have taken into account corrections which both Mr Burrows and the Department made it clear from their material ought to be made to certain earlier documents.

[11] The propositions which the Tribunal applies when it determines applications under s.75 of the VCAT Act are based on what the Victorian Court of Appeals said in Rabel v State Electricity Commission (1998) 1 VR at 102. So far as relevant, the propositions are these.

[12] The Tribunal should be cautious before striking out or dismissing and so summarily terminating a claim at this early stage, particularly when oral evidence is usually not given. By terminating a claim at this stage the Tribunal deprives the litigant of the chance to have the claim heard in the ordinary course. It should only do this where the Tribunal is satisfied that the claim whether in whole or in part is manifestly unsustainable, undoubtedly untenable or on no reasonable ground can justify relief for a reason specified in s.75.

[13] The claims, read in the broad way that I have mentioned, which Mr Burrows makes are these. He says that the Department has directly and indirectly discriminated against him on the basis of his impairment by denying or limiting his access to opportunities for promotion, transfer or training or other benefits connected with his employment, by denying him access to occupational training or retraining programs or guidance programs, by subjecting him to other detriments in employment and by constructively dismissing him. On a broad reading of his material these are not claims separated from the other matters I am about to mention. They are characterisations of the claims which I am about to mention in a way that will make them fall within s.14 of the Equal Opportunity Act.

[14] The alleged conduct on which Mr Burrows relies to found his claims is this:

[15] (A) In 1983 the acting principal of Kerang High School at which Mr Burrows was then a teacher, made an unfairly critical report to the Department about Mr Burrows' performance as a teacher. As a result of this report Mr Burrows was suspended or withdrawn from teaching.

[16] (B) In September 1986 Mr Burrows had a period of hospitalisation and was diagnosed as having a psychiatric illness. He had further and longer periods of hospitalisation in 1987 and 1988. In 1988 one of the government medical officers, Dr Roberts, certified him fit to return to teaching duties. By this stage and since 1986, Mr Burrows had become employed as a teacher at the Upwey Technical High School, which I call "the Upwey school".

[17] Mr Burrows by this time had been prescribed and was taking the medication called Modecate, a tranquilliser which he says affected his behaviour adversely. He says that Mr McAllister, the principal at Upwey arranged that the lessons he taught were to be observed while he did not require such stringent observation of the lessons taught by other teachers of the school. Students and parents of students at the school were critical of Mr Burrows' behaviour. The result was that Mr Burrows lost confidence in himself and parents of students and students and other staff lost confidence in him. Principal McAllister, Mr Burrows says, told him that he was schizophrenic.

[18] (C) From late 1988 until March 1991 Mr Burrows was absent from work with the Department because of illness. From April 1991 Mr Burrows worked performing administrative duties at the Ringwood School Support Centre. In February 1992 Mr Caudrey, a staff member at that centre referred to Mr Burrows as eccentric.

[19] (D) From 16 to 20 May 1991 the Department held an inquiry into Mr Burrows' performance as a teacher at Upwey and into his competence to teach. Among other things that inquiry found-

* that he had not prevented students in his class from certain at risk behaviour;

* had allowed students to leave his class without passes;

* had at times adopted inappropriate disciplinary techniques in relation to students;

* on occasion failed to provide adequate levels of work for students;

* at times demonstrated inadequate classroom management skills;

* at times demonstrated inadequate student supervision; and

* did not seem to have clear ideas about structuring lessons in a way to engage the interest and attention of students.

[20] Mr Burrows says that given his continuing psychiatric illness and that his behaviour was a manifestation of that illness or an effect of the medication prescribed for it, to subject him to an inquiry of this kind was to discriminate against him on the basis of his psychiatric impairment.

[21] (E) In July 1991 the Department wrote to Mr Burrows advising that after considering the inquiry's report it considered his teaching standard inappropriate and had decided to terminate his employment with effect from October 1991, subject to any submissions he might make. Mr Burrows approached solicitors at the Mental Health Legal Centre who wrote to the Department making various representations about why Mr Burrows should not be dismissed from his employment. Among other things that letter states Mr Burrows' illness and the medication prescribed for it and that if the Department continued its action and dismissed Mr Burrows there may be cause for a complaint of disability discrimination. The Department subsequently reversed its decision.

[22] (F) After the reversal of its decision the Department sent an officer to Upwey school who explained to staff and students that Mr Burrows could not teach due to a psychiatric illness.

[23] (G) In the letter reversing its decision the Department stated that if Mr Burrows returned to work as a teacher he would be closely monitored.

[24] (H) In 1993 the Department proposed that Mr Burrows return to work as a clerk on lower wages and lesser duties than he had as a teacher.

[25] (I) From at least February 1992 onwards Mr Burrows was absent from work at the Department. It appears that this absence was on a combination, at various times, of WorkCover leave and paid and unpaid sick leave. The claim is that the Department did not provide Mr Burrows with measures to assist his return to work, such as the return to work plan, occupational assessment, retraining or alternative duties. Mr Burrows remained on leave.

[26] (J) The Department attempted to have Mr Burrows retired on the ground of ill health.

[27] (K) In 1999 the Department refused to extend Mr Burrows' leave without pay and instead offered him options which it knew he was unable to accept. These included applying for ill health retirement, an option which Mr Burrows could not accept because this would preclude him from returning to work with the Department. Another option was applying for long service leave, an option which Mr Burrows says the Department knew he could not accept because he had no current entitlement to long service leave. The Department made it clear that if none of these options were accepted and if Mr Burrows' continued absence without an appropriate medical certificate, his employment would be terminated. In these circumstances Mr Burrows says that he had no alternative but to resign and he did so with effect from 29 November 1999.

[28] (L) Accordingly, Mr Burrows claimed that this resignation constitutes constructive dismissal.

[29] Before coming to the Department's submissions I should make some comments about my understanding of Mr Burrows' claims. First, on a reading of his material as a whole I do not consider that he is making any claim of breach of the Equal Opportunity Act in respect of any period before September 1986 when he was hospitalised for a psychiatric illness. There is no claim that he had an impairment known to the Department in that pre-September 1986 period or that the Department's conduct in that pre-September 1986 period was based on such an impairment. Second, it is clear from the submissions from Mr Burrows read as a whole, that he does not claim that the Department victimised him by holding an inquiry into his performance as a teacher after receiving a letter from the Mental Health Legal Centre, mentioning possible breach of the Equal Opportunity Act. It is clear that the Mental Health Legal Centre wrote that letter after and not before the holding of the inquiry.

[30] I now come to the Department's submissions. The Department first says that I should disregard events alleged to have occurred after 1 April 1998, the date of the complaint. It is more correct I think to refer to 3 April 1998, the date of the lodgment of the complaint. The Department relies on ss.104 to 117 of the Equal Opportunity Act and ss.41 to 43 and 69 of the VCAT Act. It argues that allegations in respect of a period after the lodgment of the complaint are not, and cannot be properly before this Tribunal. It is clear from the whole of Mr Burrows' submissions that he disagrees with this argument.

[31] In my view the correct position is this. Sections 104 and 105 of the Equal Opportunity Act permit the lodgment of a complaint of breach of that Act. The complaint does not have to contain the whole of the evidence on which the complainant relies. It need do no more than give details of the breach claimed. The Act then contains a procedure by which the Commission may decline the complaint for various reasons, such as the complaint lacking substance, or being more appropriately dealt with in another forum, or that the complaint is too old. There is then a conciliation procedure and a procedure for referral to VCAT where the complaint is not conciliable or is unresolved after attempted conciliation.

[32] The effect of ss.41 to 43 and s.69 of the VCAT Act is that VCAT's jurisdiction comes into play when a complaint is referred to it and it is that referral of the complaint that commences the proceeding before VCAT. Section 127 of the VCAT Act contains a general power to amend any document in a proceeding. This power is expressed in broad and general terms, but it must be read subject to other provisions of the VCAT Act and to the enabling enactment which confers jurisdiction on VCAT, here, the Equal Opportunity Act (as to inconsistency between an enabling enactment and the VCAT Act, see s.159 of the VCAT Act).

[33] All this has led the Tribunal to say in a number of cases that a complaint under the Equal Opportunity Act which is referred to VCAT cannot be amended in a way which makes it totally different from what was originally lodged with the Commission and went through the processes set up by the Equal Opportunity Act. In particular, the Tribunal has said that a complaint cannot be amended so as to include a fresh claim or cause of action. But amendments which are of a more minor nature can be made under s.127, because simply, the complaint is not the whole of the material on which a complainant is permitted to rely. I give some examples. In my view, inaccuracies can be corrected by amendment. Again, where a complaint gives examples of breaches of the Equal Opportunity Act of a particular kind, further examples of breaches of the same kind can be added by amendment. It may also be that if the facts alleged in the complaint are not changed, their characterisations under the Equal Opportunities Act can be expanded by amendment, by for example, adding another characterisation.

[34] The rationale behind this approach is that the power to amend a complaint should not be used to introduce what is in effect a new complaint, which has not undergone the processes established by the Equal Opportunity Act. That would undermine the scheme of that Act. (As to these matters generally, see Kay v Bracks, a decision of VCAT dated 16 November 2000.)

[35] I apply this approach to the post 3 April 1998 claims. The claims concerning constructive dismissal and the refusal to extend sick leave should be dismissed. These are fresh causes of action and were not included in the original complaint.

[36] If Mr Burrows wishes to pursue these he can, if he wishes, lodge a fresh complaint about them with the Commission.

[37] To the extent that there is a claim that after 3 April 1998, the Department continued to fail to provide Mr Burrows with measures to assist his return to work, that claim should be struck out. No application was made to amend the complaint to include it. That claim should not be dismissed because it does not, in my view, constitute a fresh cause of action. If Mr Burrows applies to amend his claim to include that claim, that application will need to be dealt with at that time.

[38] The Department next submits that because of the delay in lodging the complaint, it would be an abuse of process for it to proceed further. In determining whether delay in bringing a claim makes it an abuse of process, the primary consideration is the interests of justice. Relevant factors to be considered include whether the delay is inordinate or unreasonable and inexcusable, any explanation for the delay and the adequacy of that explanation, the nature of the proceeding, whether the respondent was responsible for the delay, any prejudice caused to the respondent if the proceeding continued and the effect of the delay on the quality of justice, that is, the ability to conduct a fair hearing of the proceeding (for example, whether significant documents have now been lost or destroyed, whether the witnesses' memories are so impaired that the quality of evidence will be compromised, whether witnesses have died and their importance is such that the quality of evidence is compromised); and the public interest. These factors must be balanced against each other and none is determinative. (As to this, see generally Jago v District Court of New South Wales and Others, [1989] HCA 46; (1989) 168, CLR 23, and Hines v Finemores Holdings Limited, a decision of the former Anti-Discrimination Tribunal dated 31 December 1996).

[39] As I interpret this complaint, the claims it makes, as distinct from the background material, relate to a period from September 1986 to 3 April 1998. In the complaint itself, Mr Burrows explains the delay in lodging the complaint by saying that the Department led him to believe that it would provide him with rehabilitation to assist him to return to work. In the other material filed with this Tribunal, he gives a further reason for the delay in lodging the complaint. That is, his lack of awareness of his legal rights. It is said that although he may have had some general understanding of his rights to complain about these matters under the Equal Opportunity Act, his psychiatric impairment may have prevented him from fully understanding or pursuing those rights without assistance. Mr Burrows said that he was unable to give this reason to the Commission at that stage of the processing of the complaint because of what he says was a deficiency in the way the Commission handled the complaint. He says that on 27 May 1998, he received a letter from the Commission, dated 26 May 1998, enclosing the Department's response to the complaint and requesting comments from him by 1 June 1998. He says that this gave him insufficient time to seek assistance in formulating a response or indeed to respond adequately at all to the Department's response. After that period, the Commission declined the complaint.

[40] The Department argues I should only take into account the reason for delay given by Mr Burrows in the complaint itself. I do not agree. In my view, Mr Burrows has provided an adequate explanation as to why he was unable to include further reasons for delay at the Commission stage and in any event, I should, in my view, consider all the material put before me by him in determining whether this proceeding is an abuse of process.

[41] The Department, in affidavits from its solicitors who have the handling of this matter on its behalf, points to difficulties in obtaining evidence, particularly concerning the claims relating to the pre-1992 alleged conduct of the Department. It has, it says, contacted a number of important potential witnesses who had no recollection of, for example, the inquiry into Mr Burrows' teaching performance in 1991 or other issues concerning him and in some cases, no recollection of Mr Burrows at all. The Department says that it was unable to contact Russell Harrison, Acting Principal of Kerang High School in 1983.

[42] In my view, because of the unreasonable delay in bringing them, Claims (A) to (G) should be dismissed as abuses of process. These claims all relate to a period of a minimum of six and a half years and a maximum of 12 years before the lodgement of the complaint.

[43] I do not find Mr Burrows' reasons based on lack of awareness of his legal rights, an acceptable explanation, given that the Department says and he does not deny that he complained to the then Equal Opportunity Board concerning political belief discrimination in 1985 and that in August 1991, he instructed his solicitors to write to the Department, raising the possibility of the making of a disability discrimination complaint. I am satisfied that there is substantial likelihood that because memories have faded and some witnesses are unavailable, the quality of the evidence will be degraded, even though there is some documentary evidence available.

[44] While one of the objectives of the Equal Opportunity Act is to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought.

[45] Ultimately, taking into account the interests of justice and all the factors that I have mentioned, I am of the opinion that the delay in relation to the claims I have mentioned would prejudice the hearing of the case. I conclude that those claims therefore should be dismissed.

[46] I do not consider that because of delay the other claims are an abuse of process. For these, delay between the alleged incidents and the lodgement of the complaint is far shorter. There are numerous documents concerning these matters and witness availability does not seem to be such a problem. It is reasonable, in my view, for Mr Burrows to have waited some time before lodging a complaint, to enable him to attempt to resolve matters internally with the Department. In the case of the claim that the Department did not assist Mr Burrows to return to work, the allegation is one of continuing discrimination including in the period up to and beyond the lodgement of the claim. All these factors lead me to conclude that here the balance is in Mr Burrows' favour and these claims should not be dismissed.

[47] The Department next says that I should dismiss Claim (H) relating to a proposed assignment to lesser paid and lesser administrative duties in 1993 because it is manifestly lacking in substance. It says (and Mr Burrows does not deny) that throughout 1993, Mr Burrows was absent from work because of ill health and that a report from Dr Hart, a government medical officer, dated 1 December 1992, expressed the view that Mr Burrows would never cope with any stressful or demanding work, would remain at risk of future occurrences of his illness, would never be suited to teaching but was fit for light duties if and when they were available. It is not clear what kind of leave this was, whether it was sick leave or absence on WorkCover. It may well be that it was absence on WorkCover because it is clear from the affidavit in the respondent's material that WorkCover payments were made until May 1994 to Mr Burrows.

[48] The affidavit material includes not only the medical report I have just mentioned but a large number of medical reports from various Government medical officers and psychiatrists. They relate to the period from 1987 on.

[49] In general terms those reports express the opinion that for the periods for which the reports relate, Mr Burrows is unfit to teach because of his illness. Different views were expressed in the reports during 1991 which indicate in the case of one report that Mr Burrows was fit for part time teaching and in the case of another report that he is coping with administrative duties three days a week and would be fit for a supportive teaching trial on a "phased in" basis. (See the reports of Dr Poidimani dated 12 February 1991 and Dr Hart dated 29 April 1991.)

[50] I agree that this claim does manifestly lack substance and should be dismissed. Although it is clear from s.8 of the Equal Opportunity Act and from s.9 of that Act that direct discrimination includes among other criteria proposed as well as actual treatment and that indirect discrimination includes, as well as other criteria, a proposed as well as an actual imposition of a requirement, condition or practice and even assuming while not deciding, that the other criteria for both these kinds of discrimination can be met, discrimination is only prohibited if it occurs in an area covered by Part 3 of the Equal Opportunity Act. The relevant provision in that part relied on by Mr Burrows is s 14. The relevant provision of that section which is applicable to this claim is in my view s.14(d) which prohibits discrimination by subjecting an employee to a detriment. Here, where a proposal which was not implemented is concerned, that proposal of itself must be capable of constituting a detriment, that is some real disadvantage to Mr Burrows.

[51] In my view this proposal which was not implemented was consistent with the recommendation of the Department's medical officer and was made in circumstances where to return to work as a teacher would have been contrary to those medical recommendations, is incapable of constituting a detriment to Mr Burrows.

[53] The Department says that I should dismiss claim (J) which concerns the Department's attempt to have Mr Burrows retired on the grounds of ill health as manifestly lacking substance. I agree. In my view the claim should be dismissed on this ground. I deal only with the part of the claim that relates to 1992 and onwards. It is clear from the material before me including the exhibits to the affidavits in the respondent's submissions, material which Mr Burrows does not dispute exists, that the position is this. In a report dated 26 February 1992 the government medical officer, Dr Hart, said that in his opinion Mr Burrows' prognosis for a successful return to teaching was poor and recommends that he be retired on the ground of ill health. In a report dated 1 December 1992 Dr Hart notes the recommendation concerning ill health retirement and Mr Burrows unwillingness to apply for that retirement. He expresses the opinion that the Superannuation Board would be unlikely in any case to consider Mr Burrows unfit for all work.

[54] In a report dated 29 November 1994 from the psychiatrist Dr Hardenberg, and the report from the government medical officer Dr Lowie of the same date, the opinions are expressed that Mr Burrows is permanently unfit for teaching, and that at the time of the reports he is unfit for any other work and the prognosis for fitness for light duties is guarded because of the unknown and fluctuating nature of his illness. Again the question of at least temporary ill health benefits is mentioned and there is concern that the prognosis maybe unlikely to change in the foreseeable future although at some time Mr Burrows may become fit for non teaching duties.

[55] From 13 January 1993 onwards, the Department wrote on various occasions to Mr Burrows mentioning the medical recommendations I have just referred to concerning ill health retirement and advising him of his entitlement to apply for disability benefits from the State Employees Retirement Benefits Fund.

[56] It appears that in April 1995 Mr Burrows applied for these benefits. The Board granted him temporary disability benefits on 24 June 1995 to be taken up not later than six months after the date of that letter. By letter dated 30 June 1995, the Board also granted him disability retirement benefits also to be taken up within six months of the date of that letter. Mr Burrows it appears did not take up either of these benefits.

[57] In my view the claim is manifestly hopeless for the same reasons as I have given in relation to the claim relating to proposed administrative duties. In the circumstances there is no conduct of the Department which is capable of constituting a real detriment to Mr Burrows. On the material it appears that Mr Burrows did not take up the benefits offered by the State Employees Retirement Benefits Board. All that the Department did was to advise him of relevant medical recommendations and of his option for ill health retirement and to send him relevant forms for completion at his choice. This claim therefore is dismissed.

[58] I now come to claim (I). This is the claim that the Department did not provide Mr Burrows with measures to assist his return to work. To the extent that this is a claim that the Department did not provide Mr Burrows with measures to assist his return to work as a teacher, I dismiss the claim as manifestly hopeless for similar reasons that I have given concerning claim (J).

[59] From February 1992 onwards, a number of psychiatrists and government medical officers reported to the Department that in their opinion Mr Burrows would never again be fit to teach. To follow these medical recommendations and not to return Mr Burrows to work as a teacher is not in my view capable of constituting subjecting him to a detriment. There is nothing in the material to indicate that the Department's failure to return him to work as a teacher was for any other reason than that this was what the numerous medical reports recommended.

[60] This is why I say that the claim is incapable of succeeding under s.14 of the Equal Opportunity Act and should be dismissed to this extent.

[61] The second aspect of the claim is that the Department failed to provide measures to assist Mr Burrows to return to non teaching duties. For similar reasons to the ones I have just given, the claim should be dismissed as manifestly hopeless to the extent that it relates to periods when medical reports to the Department certify Mr Burrows as unfit for any work. I confine what I say to the post February 1992 period.

[62] In July 1992 it appears that the psychiatrist, Dr Epstein expressed the view that Mr Burrows was unemployable. In December 1992 the government medical officer, Dr Hart, reported Mr Burrows as fit for light duties but unable to cope with stressful or demanding work. In November 1994 the psychiatrist Dr Hardenberg and government medical officer Dr Lowie regarded the prognosis in respect of light duties as guarded and Dr Lowie considered Mr Burrows unfit for any work at that time.

[63] Dr Hardenberg considered that planned rehabilitation would be too early at that stage but that in time Mr Burrows might eventually become employable. In August 1995 Dr Hardenberg reported that Mr Burrows was in need of a structured rehabilitation program which hopefully would enable him in future to be retrained for a different kind of work. The general medical practitioner, Dr Henricksen made similar reports in September and December 1995, although certifying Mr Burrows not to be fit for work from 1 September 1995 to 1 June 1996.

[64] It appears that from June 1996 to at least January 1999, Mr Burrows remained on approved leave without pay from the Department. There is no medical evidence in the material before me to show that his unfitness for teaching duties did not continue. There is nothing in the material before me to indicate whether he was medically fit or unfit for non teaching work.

[65] From 3 March 1996 onwards, Mr Burrows wrote a number of letters to the Department requesting redeployment to non-teaching duties. One of the letters is also written on his behalf by the Mental Health Legal Centre. In its reply as the Department states that it is unable to offer Mr Burrows non-teaching duties at the time, but that he may apply for vacancies in the Department or in the wider Public Service advertised in the Department's publication Victorian School News, or in the Victorian Public Service publication, Public Service Notices, or in the newspapers. It states that its obligation is to employ him as a teacher but that he is not fit to return to teaching duties.

[66] For similar reasons given to those given concerning claim (J), the claim is manifestly hopeless to the extent that it relates to the period before June 1996 when, on the material before me, Mr Burrows was medically certified as unfit for any work. There cannot be a detriment to him to refuse him work which he was medically unfit to do. But for the period for which he was on leave without pay from June 1996 to at least 3 April 1998, I take his case at its highest and assume that at hearing he will be able to prove that he was fit to undertake non-teaching duties.

[67] He claims the Department both directly and indirectly discriminated against him by failing to assist him to return to these non-teaching duties, and to provide him with ancillary assistance such as the necessary occupational assessment, training and structured return to work plan. Instead, he says, he was told to apply for positions in the same way as non-impaired departmental staff would have to do, via advertisements in departmental publications, the Public Service notices or the newspapers. In my view this claim is incapable of constituting direct discrimination.

[68] First, it is not possible in my view to say that Mr Burrows' psychiatric impairment was a substantial reason for the Department not providing structured rehabilitation to non-teaching duties when departmental staff without that impairment, were not provided with that assistance either.

[69] Second, it is not possible in my view to make the comparison required by s.8 of the Equal Opportunity Act for the purposes of direct discrimination. That comparison must be between the Department's treatment of Mr Burrows, a person with a psychiatric impairment, and the way that the Department treats, or would treat a person without that impairment in the same or similar circumstances. It is clear that the Department would have treated such a hypothetical person in the same way as it treated Mr Burrows. It would not have provided to the unimpaired person a structured return to work plan to non-teaching duties.

[70] The absurdity of the attempt to make this comparison is emphasised by the fact that the unimpaired person would of course not need rehabilitation because the person is an unimpaired person. (As to the difficulties with comparisons of this kind, see H.J. Heinz (Australia) Ltd v Turner (1998) 4 VR at 872.)

[71] I should also add that unlike the Disability Discrimination Act 1992 of the Commonwealth, the Victorian Equal Opportunity Act contains no mention of reasonable adjustments to accommodate disability. For these reasons the claim of direct discrimination in this area is manifestly hopeless and should be dismissed. However, I am not prepared to say that the claim of indirect discrimination is manifestly hopeless and should be dismissed. Whether in fact the claim of indirect discrimination is made out is of course a matter for a full hearing to determine.

[72] In my view, the Department's conduct is capable of being characterised in this way. It has imposed on Mr Burrows a condition or requirement that if he wishes to obtain non-teaching work in the Department, he must do so by applying for, being appointed to and immediately beginning work in a position in that department via the ordinary advertisements in the various notices I have mentioned, and without additional assistance from the Department, in particular, without the assistance of duties being made available for him without his application through advertisement, and without the assistance of a structured return to work program devised and implemented to assist him to undertake those duties.

[73] Because of his psychiatric impairment and consequent prolonged absence from work, he is unable without that assistance to apply for, obtain and immediately begin working in that position. In other words, he is unable to comply with that condition or requirement either in the sense of total inability to comply, or being at a disadvantage relative to non-impaired people in respect of compliance, or being unable to comply in a similar way to the way in which non-impaired people would be able to comply. Non-impaired people, that is people without that psychiatric impairment, would be able to comply with this condition or requirement.

[74] I am not prepared to say that this condition or requirement is so clearly reasonable that the claim of indirect discrimination is manifestly hopeless. The question of reasonableness requires a balancing of many factors, including the consequences to Mr Burrows of his failure to comply with that conditional requirement; financial considerations of the respondent; the costs of alternatives and so on. In my view it is arguable also that this condition or requirement falls within s.14(d) of the Equal Opportunity Act. It applies generally to departmental employees, but it is a detriment to Mr Burrows because it particularly disadvantages him.

[75] I should make it clear that I do not regard the claim as falling within that part of s.14 which relates to the restriction or denial of access to a benefit connected with employment. There is, in my view, no benefit here which is provided to other employees but to which Mr Burrows is denied or restricted access.

[76] The Department submits that its only obligation relates to Mr Burrows' employment as a teacher or alternatively, is an obligation under the Accident Compensation Act 1985, to provide him with suitable alternative employment where he has a partial incapacity for employment, but that this obligation lasts only for the period set out in that Act. That period, it says, expired when Mr Burrows' WorkCover payments were terminated in May 1994. However, this is a claim under the Equal Opportunity Act and not the Accident Compensation Act 1985.

[77] The fact that conduct may not breach the Accident Compensation Act, and for this purpose only I assume but do not decide that the Department is correct about this, does not necessarily mean that the conduct is not prohibited by the Equal Opportunity Act. Indeed, as the Full Court of the Supreme Court pointed out in Sinnapan v. State of Victoria [1995] VicRp 27; (1995) 1 VR 421, the Equal Opportunity Act may through its prohibitions, have the effect of setting minimum standards of conduct in particular areas because it would be a breach of that Act to engage in conduct of a lesser standard.

[78] The Department relies on three exceptions in the Equal Opportunity Act which it says so completely answer the claim that the claim is manifestly hopeless. The effect of s.12 of the Act is that conduct is not prohibited by Part 3 if an exception applies to it.

[79] The first exception is s.22 which, among other things, permits an employer to discriminate on the basis of impairment in any area specified in s.14 if,

"(a) in order to perform the genuine and reasonable requirements of the employment,

(i) the other person requires or would require special services or facilities; and

(ii) it is not reasonable in the circumstances for those special services or facilities to be provided; or

(b) the other person cannot or could not adequately perform the genuine and reasonable requirements of the employment, even after the provision of special services or facilities."

[80] Section 23 is an exception provision which relevantly permits,

"An employer may set reasonable terms or requirements of employment, or make reasonable variations to those terms or requirements, to take into account-

(a) the reasonable and genuine requirements of the employment.... "

[81] Section 25 is an exception which, among other things, provides that nothing in s.14 applies to discrimination by an employer against an employee, if,

"(a) the employment involves the care, instruction or supervision of children; and

(b) the employer genuinely believes that the discrimination is necessary to protect the physical, psychological or emotional well-being of the children; and

[82] I am not satisfied that these exceptions so clearly answer the claim that it is manifestly hopeless. The Department's arguments concerning these exceptions were all directed to Mr Burrows' continuing employment as a teacher, not to his return to non-teaching duties.

[83] The Department has made many other submissions which, because of my various conclusions, it has been unnecessary for me to consider. I conclude that the complaint is dismissed except for the complaint that the Department failed to assist Mr Burrows to return to non-teaching duties during the period from June 1996 to 3 April 1998. That claim is struck out to the extent that it relates to the period after 3 April 1998 with liberty to Mr Burrows to amend the claim to include that period.

[84] The matter should be listed for a further directions hearing at which the further course of the proceeding can be considered as well as the question of the conduct of Mr Burrows' case.

Administrative Tribunal Act 1998

Opportunity Act 1995

Civil and Administrative Tribunal Act 1998

Discrimination Act 1992

Compensation Act 1985

Burrows v State of Victoria

At a glance

Court

Decision date

Source

Judgment (108 paragraphs)

Burrows v State of Victoria (Department of Education) [2002] VCAT 1655 (6 December 2002)

Parties

Legislation Cited (5)

Cases Cited (1)