1. The applicant also submitted that number of the attachments to Ms Camilleri's witness statement are consistent with Ms Butterworth showing symptoms of the disorder. In my view, whether or not an account of feeling stressed and anxious is consistent with adjustment disorder is not a conclusion that can be drawn by the Tribunal in the absence of medical evidence.
2. There was insufficient evidence, in my view, to find that Ms Butterworth had an adjustment disorder during the period relevant to this claim, and no evidence that IAS was or ought to have been aware of it if she had.
3. The earliest medical opinion about it is in June 2013, after she had left IAS - a letter from Dr Sharma to CGU in which he expresses the opinion that Ms Butterworth suffers from an adjustment disorder with features of anxiety and depression resulting from events at her workplace.
4. CGU then requested a report from Emily Davenport, Psychologist. In her report dated 22 July 2013 Ms Davenport notes that when Ms Butterworth was first assessed at the practice in June 2013, she appeared to be suffering from adjustment disorder with mixed anxiety and depressed mood, 'precipitated by events at her workplace'.
5. I accept that by June 2013, Ms Butterworth was probably suffering from adjustment disorder. I am not able to be satisfied that any discrimination during her employment was because of any adjustment disorder.
6. To the extent that the claim is that IAS had an obligation to make reasonable adjustments for the disabilities of fibromyalgia and chronic fatigue syndrome, the claim must fail on the evidence.
7. Ms Butterworth was not only adamant at the time she disclosed those conditions that she did not require reasonable adjustments to be made, she was also clear in her evidence at the hearing that she had not required any adjustments to be made for these conditions, and that they were unrelated to the workplace injury she suffered in late 2011. Despite these conditions, she had been able to perform her role from the time she was first employed in 2007 until she developed the workplace injury in late 2011.
8. Further, Dr Christopher Webster, who examined Ms Butterworth in January 2012 at IAS' request,[21] concluded that the fibromyalgia was not the cause of her current right shoulder pain, nor did her pain fit the criteria.
9. Rather, in his opinion she had a typical presentation of a particular muscle spasm found in computer users who use the right hand continuously for mouse work. He identified 'static keyboard work' as the problem. Relevantly for the reasonable adjustments claim, he suggested that in order to help the situation it would be better if she were returned to previous administrative duties and minimise her keyboard duties.
10. The issue of reasonable adjustments arises squarely in relation to the workplace injury, in my view, at the time that IAS was considering terminating Ms Butterworth's employment.
11. It is not in dispute that IAS terminated Ms Butterworth's employment having decided that she was unable to perform the 'inherent requirements'[22] of her role. The 'employment obligation period' of 52 weeks as prescribed by the Accident Compensation Act 1985 had finished. IAS withdrew the modified duties that had been in place under the various return to work plans. It decided that she did not have the capacity to return to her pre-injury duties.
12. IAS' position is reflected in paragraph 14 (l) - (n) of the Particulars of Defence:
    • On 11 April 2013, the Applicant met with the Respondent and was informed that due to her ongoing and indefinite inability to perform the inherent requirements of her position, and as there were no suitable alternate duties available having regard to her alleged medical conditions and physical capacity, the Respondent had determined to terminate her employment. The Respondent advised the Applicant that if she disagreed with the decision she could provide a response in writing which would then be considered.
    • The Applicant did not provide a written response to the decision; and
    • The Applicant's employment was terminated because she could not perform the inherent requirements of her substantive position as a Customer Service Officer, as provided by her contract of employment.
13. Contravention of section 20 is discrimination.[23] If IAS had an obligation to make reasonable adjustments for Ms Butterworth's workplace injury and did not do so, it has discriminated against her.
14. As submitted by the applicant, an employer's obligations under the 2010 Act are separate to the obligations under workers compensation legislation. The fact that the 52-week employment obligation has come to an end does not of itself relieve the employer from complying with the 2010 Act. An employer must consider the obligation in section 20 before it makes a decision to terminate the employment of a person with a disability who is having difficulty performing the requirements of the employment but who might do so if reasonable adjustments were made.
15. Central to the claim in respect of reasonable adjustments is the following factual question. I deal with it first and then turn to the law and evidence about reasonable adjustments.

What were the genuine and reasonable requirements of the employment?

1. In the recent decision of Dziurbas,[24] the Tribunal was required to consider the statutory concept of 'genuine and reasonable requirements of the employment' and the obligation to make 'reasonable adjustments', both of which are important issues here.
2. At [36], the Tribunal in Dziurbas observed that the expression "genuine and reasonable requirements of the employment" is not defined in the 2010 Act and neither the explanatory memorandum nor the second reading speech offer assistance on the intended meaning.
3. As the Tribunal noted, at [37] and following, the Commonwealth legislation, the Disability Discrimination Act 1982 (the DDA) has a similar but by no means identical provision to the 2010 Act, which refers to 'the inherent requirements of the job".
4. I note here that Ms Tomczyk in particular made repeated reference to the 'inherent requirements' of the job". I raised the issue at the hearing as to whether there was any and if so what difference between that expression and the one in the 2010 Act.
5. The Tribunal in Dziurbas, at [43 referred to the decision of Davies v State of Victoria (Victoria Police) [2000] VCAT 819, where Deputy President McKenzie and Member Dudycz considered an earlier version of s. 23 of the 2010 Act and determined that the "genuine and reasonable requirements of the employment" were wider that the inherent or essential requirements of the employment. I agree with this view.
6. It is useful to set out the same extract [my emphasis is in italics]:

. . . whether a particular duty, ability or qualification is a genuine and reasonable requirement of employment is not to be determined by seeing whether, if that duty, ability or qualification were omitted, the employment would still be the same. The requirements of the employment and the requirements of the employer are not necessarily the same thing, although they will often be the same. The requirements of the employment refers to what the job or position requires to be done, as well as what is necessary to do those duties. The term covers the whole range of these requirements, and not just the essential ones. The requirements must be requirements 'of the employment'. In other words, they must relate to and derive from the employment. They must be genuine requirements. An employer cannot invent requirements which are not truly requirements of the employment. They must be reasonable requirements. As was pointed out in the context of indirect discrimination, 'reasonable' is a more demanding test than one of convenience but a less demanding test than one of necessity. So, a requirement for abilities or qualifications that are grossly disproportionate to the degree of difficulty of the duties, might not constitute a reasonable requirement of the employment.

To determine what are the genuine and reasonable requirements of the employment, we should look at all the circumstances surrounding the employment, including any contract of employment, any statutory functions, and any organisational or operational requirements of the employment.

1. I have found above that the duties of a CSO at IAS were to provide customer service to IAS clients and customers by undertaking a combination of telephone, computer and administrative work in the Customer Service Centre, working in one or more of the call centre, the enquiries or the key accounts divisions.
2. The requirement to answer telephone calls, work at a computer and undertake administrative work as required were all, in my view, genuine and reasonable requirements of the employment.
3. Ms Camilleri's evidence was that it was an essential requirement that CSOs answer telephone calls, and that all CSOs had to be available to answer incoming calls at any time. Ms Camilleri said that even those CSOs working in key accounts and enquiries could be required to help out those in the call centre at any time if, for example, there were more calls than could be answered by the CSOs in the call centre.
4. Mr Dowling, in paragraph [12] of his witness statement states that:

A CSO in the key accounts division will be rotated back into the call centre and onto the telephones when there is a staff shortage and to allow for further training of CSOs to fill gaps within the key accounts team for when there are absences such as holidays or resignations.

1. I accept Ms Camilleri's evidence that a full-time CSO may be required to answer telephone calls up to 7.6 hours a day.
2. Unless the CSO works in the call centre, however, they will not be required to spend all day every day answering calls. Nor is it established, in my view, that at any one time all CSOs performing key accounts or enquiries work will be required to take up call centre duties nor that all who take up call centre duties will be required to do so for 7.6 hours at a time. Ms Camilleri said that it was not possible to predict when or for how long CSOs may need to be on the phones.
3. I find that the role of the CSO at IAS does not necessarily include working in the call centre, and does not necessarily require a person to be able to work full-time answering telephone calls and nothing else.
4. Although the figures varied between witnesses, I accept that there are usually 25-30 CSOs working in the Customer Service Centre, about two thirds of them work in the call centre, and about one third work in key accounts and enquiries. This reflects the evidence about how orders come into the CSC - about two-thirds by telephone, the rest by fax or email. As Mr Dowling states, the customer service centre processes in excess of 1,200 inbound phone calls and 500 emails/faxes each day. To that extent it is necessary that some CSOs not work in the call centre.
5. As noted above, Mr Dowling said that key accounts is predominantly non-telephone work. Both key accounts and enquiries necessarily involve telephone work, but at much less intensity: the evidence was consistent that there are fewer incoming calls, CSOs make outgoing calls (which are not made in the call centre), there is not the same time pressure on the length of the call as there is in the call centre and CSOs working in these sections do more administrative work.
6. As submitted by the respondent, Ms Camilleri reiterated that the capacity to work on the phones and be available to do so at any one time is fundamental to the job. She said that CSOs can be told to go on the phones at any time.
7. But she also said in cross-examination that the 'relevant task' so far as Ms Butterworth was concerned was on the phones in the call centre. Overall, I formed the impression that in 2012 and 2013, Ms Camilleri, like other IAS witnesses, saw Ms Butterworth's role in terms of working in the call centre. They were certainly her pre-injury duties but not the whole scope of her employment.
8. As a general observation, the IAS witnesses failed to make sufficient distinction between the work of and the expectations on CSOs who worked in the call centre, and the work of and the expectations on CSOs who worked in the key accounts or enquiries section. Much of the evidence in the witness statements did not make this distinction, or did not make it clear that there was such a distinction. In considering what the requirements of Ms Butterworth's position were, there was a consistent focus on her pre-injury duties in the call centre. Important as the call centre is to the work of the CSC, this was taking too limited a view of what was to be considered under the 2010 Act.
9. The defining characteristic of a CSO, when the whole of the employment is considered, is to provide customer service. Customer service is not provided solely by the CSOs who work in the call centre; and requires some CSOs to be able to make outbound calls and take the time necessary to answer a customer's query or track down an order. It is clear that CSOs provide customer service to the customers of IAS when working in the enquiries and key accounts teams, and when processing non-telephone orders.
10. In my view, it is not a genuine and reasonable requirement that every CSO work 7.6 hours every day answering incoming calls.
11. It was reasonably clear from the evidence discussed below that because of her workplace injury, in 2012 and into 2013 Ms Butterworth was not able to work full-time in the call centre answering calls. To that extent she was not able to return to her pre-injury duties in the call centre - but that did not necessarily mean she could not perform the work of a CSO in either of the two other divisions of the CSC.
12. In my view it was a genuine and reasonable requirement that CSOs not working in the call centre be able to step in from time to time and help with incoming calls, and that they may be required to do so at any time. As discussed above and later, the evidence was less clear about whether it was a genuine and reasonable requirement that all CSOs not working in the call centre be able to answer incoming calls for 7.6 hours.
13. As submitted by IAS in its further written submissions, in Dziurbas the Tribunal accepted the proposition that the safe performance of work is a relevant consideration. I agree.
14. The obligation to make reasonable adjustments arises in relation to:
    • Whether Ms Butterworth could have been redeployed to work in key accounts and/or enquiries instead of the call centre; and
    • Whether any further reasonable adjustments were able to be made to enable Ms Butterworth to adequately perform the requirement to help with incoming calls at any time.

Overview: the obligation to make reasonable adjustments

1. The 2010 Act contains an express obligation on an employer who offers to employ or employs a person who has disability, and who requires reasonable adjustments in order to perform the genuine and reasonable requirements of the employment.
2. Section 20 requires an employer to make reasonable adjustments for that person unless the person could not adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.
3. As the Tribunal observed in Dziurbas, at [141] the word 'adequately' in section 20(2) is important - 'the employee does not have to be capable of performing the genuine and reasonable requirements of the employment perfectly - just adequately'. Referring to Davies, the Tribunal adopted the approach that:

the employer must make a judgment in the nature of a prediction. The prediction is to be one which will enable the employer to conclude that it is more probable than not that the person will not be able to perform adequately the requirements of the employment. The judgment will need to be genuinely made and will need to be based on information capable of supporting that judgment. An assumption, based on no information or on scant information, will not be enough.[143-144]

1. I agree with that approach. I also agree with the way in which the Tribunal in Davies framed the question, at page 13 of its decision, quoted in full at [142] in Dziurbas:

....the question of whether a person is able adequately to perform the genuine and reasonable requirements of the employment must be judged on those requirements as a whole. A person may still be able to perform adequately the requirements as a whole, even though he or she is unable to perform, or unable adequately to perform, a particular requirement.

1. Section 20(3) provides guidance on the factors to be considered in determining whether an adjustment is reasonable.
2. It is useful to set out the relevant parts of section 20 in full:

20 Employer must make reasonable adjustments for person offered employment or employee with a disability

(1) This section applies to a person with a disability who -

(b) requires adjustments in order to perform the genuine and reasonable requirements of the employment.

(2) The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

An employer may be able to make reasonable adjustments for a person or employee with a disability by -

• providing a ramp for access to the workplace or a particular software package for computers;

• modifying work instructions or reference manuals;

• allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment;

• allowing the person or employee to take breaks more frequently.

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's or employee's circumstances, including the nature of his or her disability; and

(b) the nature of the employee's role or the role that is being offered; and

(c) the nature of the adjustment required to accommodate the person's or employee's disability; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer's business; and

(f) the effect on the workplace and the employer's business of making the adjustment including -

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making the adjustment; and

(h) the consequences for the person or employee of not making the adjustment; and

(i) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(j) if the employer is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.

(4) For the purposes of subsection (2), in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered, including -

(a) the person's or employee's training, qualifications and experience;

(b) the person's or employee's current performance in the employment, if applicable.

1. Section 40 of the 2010 Act has a similar requirement relating to education - an educational authority must make reasonable adjustments for a person with a disability who requires adjustments in order to participate in or continue to participate in, or derive or continue to derive any substantial benefit from an educational program. Section 40(3) provides guidance on the factors to be considered when determining whether an adjustment is reasonable. As with section 20, some examples are given.
2. In AB v Ballarat Christian College [2013] VCAT 1790,[25] I made the following observations about section 40:[26]

Section 40 undoubtedly requires a school to consider how funds and other resources might be used to make adjustments that will increase and improve participation by a student with a disability in education, and consider whether reasonable adjustments can facilitate the student's participation in an educational program, and/or derive a substantial benefit from it.

Examples given in section 40 include providing a teacher's aide or particular software packages for computers; moving a course or event from an inaccessible venue to an accessible.

The requirement to make reasonable adjustments and the factors included in 40(3), make it clear that section 40 is not a requirement to create a perfect environment for every student with a disability regardless of the nature and extent of the disability, and regardless of the funding or teacher time required.

1. Similar observations may be made about section 20.
2. The requirement to make reasonable adjustments and the factors included in section 20(3) make it clear, in my view, that the obligation is not an obligation to create a perfect working environment for every employee with a disability regardless of the nature and extent of the disability, and regardless of the cost or impact on the workplace or the business. An employer is entitled to consider the impact on efficiency and productivity and, if applicable, on customer service.[27] As submitted by the respondent, section 20 does not require an employee to create another job for the employee or to keep the employee in work.[28]
3. On the other hand, compliance with section 20 requires an employer, in my view, to consider what reasonable adjustments the employer can make within the employment, where a person's disability may mean that they are not able to perform the genuine and reasonable requirements of the employment unless adjustments are made.
4. The factors in section 20(3) should be included in any consideration of whether the adjustments are reasonable.
5. Depending on the nature and extent of the disability, an employee with a disability may be perfectly able to perform the requirements of the employment without any adjustments at all. Section 20(1)(b) makes it clear that the obligation only applies where an employee with a disability requires reasonable adjustments in order to be able perform the genuine and reasonable requirements of the employment. In this case, for example, Ms Butterworth was adamant in April 2011 that her fibromyalgia and chronic fatigue syndrome did not prevent her performing her role and she did not require any adjustments. When it came to her workplace injury, however, she said that she did require adjustments and, in any event, that too narrow a view was taken of her employment..
6. The applicant's submissions made reference to the Queensland Civil and Administrative Tribunal decision in Chivers v State of Queensland [2012] QCAT, where the Senior Member observed that making 'reasonable adjustments' requires an employer to take active steps rather than just passively accommodating an employee's disability.
7. In my view, the Senior Members observations on 'reasonable adjustments' are not helpful in this case, for a number of reasons. The observations were made in the context of an internal 'reasonable adjustments policy', not in the context of a legislative requirement.
8. Further, as conceded in the submissions, the decision was reversed on appeal.[29]
9. The decision was overturned by the QCAT Appeal Tribunal on the basis that the Senior Member had erred in a number of respects including in failing to find that a defence of genuine occupational requirement applied. The particular requirement was that a registered nurse allocated to 24/7 wards must be capable of complying with the rostering arrangements including night shifts. The appeal tribunal also found that the Senior Member had erred in finding that the particular term was not reasonable.

Did IAS consider the issue of reasonable adjustments under section 20 in relation to Ms Butterworth's workplace injury?

1. For the following reasons I formed the view that, when considering what IAS' obligations were towards Ms Butterworth in early 2013, Ms Tomczyk in particular, focussed on what she saw as the inherent requirements of working in the call centre, failed to consider the genuine and reasonable requirements of the employment as a whole and failed to consider whether there were reasonable adjustments that could be made to enable Ms Butterworth to perform them.
2. In early 2013, Ms Tomcyzk in conjunction with Ms Camilleri, considered whether Ms Butterworth could perform the inherent requirements of her pre-injury duties. I am satisfied that Ms Tomczyk's focus was on IAS' obligations under accident compensation law, not on IAS' obligations under the Equal Opportunity Act.
3. In particular, I am not satisfied on the evidence that the relevant personnel at IAS turned their mind to the question of whether reasonable adjustments would enable Ms Butterworth to perform the genuine and reasonable requirements of the whole of the position of CSO at IAS
4. At paragraph [46] of Ms Camilleri's witness statement, she records a conversation in January 2013 with Ms Tomcyzk; that Ms Tomcyzk indicated that Ms Butterworth had been provided with modified duties for a period of in excess of 52 weeks and said that this was consistent with an obligation to offer suitable alternative employment under accident compensation law. Ms Camilleri says that Ms Tomcyzk recommended that IAS undertake an assessment to assess whether Ms Butterworth could perform the inherent requirements of her role.
5. Ms Tomcyzk says at [72]:

We consequently had a number of discussions about what other jobs were available at IAS for the Applicant to perform. In our opinion, no position was available. IAS still required someone to perform the Applicant's pre-injury role.

1. I observe that Ms Tomczyk and others focussed on whether there was another job that Ms Butterworth could perform. Making reasonable adjustments for an employee with an injury does not require an employer to create a new position, but may mean moving staff around within a position, such as CSO, to enable the injured employee to undertake a higher proportion of other tasks.
2. Relevantly, just as IAS was entitled to redeploy Ms Butterworth to the call centre in May 2011 for operational reasons, it had, in my view, the option of swapping Ms Butterworth with another CSO working in key accounts or enquiries. Just as it was not a demotion for Ms Butterworth in May 2011, it would not have been a demotion for the CSO concerned.
3. Ms Tomczyk's letter dated 28 February 2012 to Ms Butterworth,[30] supports a conclusion that she saw the pre-injury role as the call-centre role, and also that she was not, apparently, thinking about obligations under the 2010 Act. The following extracts illustrate the matter:

Pursuant to the Accident Compensation Act 1985, we have held your position open for 52 weeks to enable you to return to that position at any time during that period if you were declared fit to resume your pre-injury hours and pre-injury duties. As we have met out obligation in that regard and you have not been able to return to you full pre-injury duties. Independence Australia will be reviewing you r circumstances in relation to your ongoing incapacity to discharge your obligations under your contract of employment.

We are also reviewing the provision of the alternate/modified duties you are performing which do not form the tasks of current positions within the call centre [my emphasis] and are temporary in nature for the purpose of return to work. As we are no longer under an obligation to continue to provide such duties for you we now require further information on your capacity.

As Independence Australia requires a person employed in your pre-injury position to be fit and able to perform all the duties required of this role, we are now seeking medical evidence to determine if and when you will have the capacity to be able to perform all the duties required of your position without risk of further injury or aggravation

We advise that if this evidence indicates that you remain incapacitated for the duties of your per-injury position, termination of your employment may result

1. Ms Tomczyk's letter sets out the questions Dr Sharma is to answer:
   • What is the nature and extent of the workers injury?
   • In your clinical opinion can the worker return to work in their pre-injury duties and hours and if so:
   • Please provide the date on which you anticipate she will be fit to do so
   • If you are unable to estimate a date on which the worker will be fit to return to full normal hours and duties, does this mean that she is indefinitely incapacitated for the duties of her pre-injury position?
   • If this is the case, what ongoing work capacity will the worker have and what restrictions will apply? This will enable Independence Australia to consider if we have any suitable work we can offer this employee
2. The questions do not include whether any reasonable adjustments are required to enable Ms Butterworth to return to her pre-injury duties and hours, and do not frame the questions around duties performed by CSOs across the whole of the Customer Service Centre.
3. In particular, the questions Dr Sharma is to answer are quite different to those set out in Ms Tomczyk's April 2011 letter to Ms Butterworth, in the context of ensuring that IAS made reasonable adjustments for the conditions Ms Butterworth had disclosed at that time. That letter included the important question:

What accomodations, if any, could be made to enable her to safely perform work for Independence Australia?[31]

1. Ms Camilleri refers, at paragraph [27] of her witness statement, to the letter IAS received from Dr Sharma. There is no dispute that this letter records Dr Sharma's opinion that Ms Butterworth was not able to return to perform her pre-injury duties 'on an indefinite basis'. But he was not asked, in my view, all of the relevant questions. Relevantly he was not asked whether reasonable adjustments could be made for her to ensure that she could perform the position of CSO as it was performed across the whole of the CSC.
2. At paragraph [78] of Ms Tomczyk's written statement, she refers to the certificate of capacity dated 26 March 2013 which required continuing work restrictions including limiting telephone duties to 2.5 hours in the morning and 2.5 hours in the afternoon.
3. Based on this certificate of capacity, Ms Tomczyk formed the view that Ms Butterworth could not return to her pre-injury duties.
4. To the extent that Ms Butterworth's pre-injury duties were to work primarily in the call centre, the certificate of capacity is relevant to IAS' obligations under accident compensation law but does not answer the question whether Ms Butterworth could perform the genuine and reasonable requirements of the whole of the role of CSO.
5. The questions IAS asked also support a conclusion that IAS were not undertaking the task described in Davies of considering the employment as a whole, and were not turning their minds to their obligation to make reasonable adjustments.
6. This conclusion is supported by Ms Camilleri's letter to Ms Butterworth dated 11 April 2013, which was handed to Ms Butterworth at the meeting at which she was told that her employment would be terminated. In that letter, Ms Camilleri states:

Independence Australia Requires a person employed as a Customer Services Officer within our Call Centre [my emphasis] to be fit and able to perform all the duties of this position without any risk of aggravation or further injury - and you have been medically certified as being unable to do so. As Independence Australia has no other suitable employment that we can offer you on an ongoing basis, we have regretfully made a decision to terminate your employment, with five weeks paid notice effective from today...

1. For the purposes of the 2010 Act, in my view, the question to ask was two-fold: could Ms Butterworth return to work as a CSO in the Customer Service Centre; and were reasonable adjustments required for her to do so.
2. It was particularly important to do so, given that IAS was considering terminating Ms Butterworth's employment.
3. I turn now to the question of whether there were reasonable adjustments that IAS could have made.

Were there reasonable adjustments could IAS have made?

1. I accept that there was a genuine and reasonable requirement of the employment to answer telephone calls. As Ms Camilleri states, in her witness statement, 'the primary requirements of the role [of CSO] is to answer the telephone'.
2. I also accept that Ms Butterworth could not return to full-time work in the call centre. There is a distinction however between answering the telephone in the call centre and answering the telephone in the key accounts division and enquiries section. CSOs working in the call centre answer telephone calls all day. According to Mr Dowling, they are not allowed to deal with general enquiries or matters such as tracking orders: any such calls must be put through to the enquiry section of the CSC; and they are not allowed to make outbound calls.
3. In his witness statement, Mr Dowling describes the work of the enquiries team and says that this team is responsible for tracking orders with courier companies and through IAS' logistics network. Mr Dowling states that the enquiries team deals with approximately 60 enquiries per month and is staffed by two full time employees.
4. Mr Dowling also confirmed in cross-examination that the key accounts division deals with all non-telephone orders, faxes and emails. In a day there might be 300 - 500 pieces of paper depending on which day of the week it is. Mr Dowling also agreed that it is most likely that there were fewer people in the key accounts division in 2013 than now (Ms Downie said there are now seven people working in key accounts). Mr Dowling said that the business has grown since then. He also agreed that there has been an increase in CSOs working in the key accounts division since 2011, when the TAC work was restructured. It was put to Mr Dowling in cross-examination that Ms Butterworth says that when working on the TAC and CMAS accounts she spent about two hours on the telephone. Mr Dowling replied that that may well be so, that he probably would not have that detailed knowledge.
5. I note also that in Mr Dowling's witness statement at paragraph [38] he states that:

For approximately twelve months following the changes to the management of the TAC contract, Ms Sutton remained as the sole contact for the TAC account. After this period, she began to delegate certain tasks to CSOs. The contract (continence and equipment) has been managed for the last 18 months by a single senior staff member who is also responsible for the accounts payable aspect of the account which includes clearing any outstanding invoices for the TAC and managing the equipment portal. This staff member delegates tasks relating to the TAC account as necessary.

1. Ms Butterworth contends that it would have been a reasonable adjustment to redeploy her to key accounts and/or enquiries at some point in 2012, and certainly as an alternative to terminating her employment.
2. I take into account that during 2012, IAS were under obligations arising from Ms Butterworth's WorkCover claim, in particular that there were required to be in place return to work plans made in accordance with those obligations. My view is while those obligations were in place, the exception in section 80 of the 2010 Act applied.
3. The issue of reasonable adjustments is squarely raised, however, at the time in 2013 when IAS' obligations under the Accident Compensation Act came to end. In that context I have considered the evidence about Ms Butterworth's capacity in the period after she sustained the workplace injury until April 2013, and what IAS were told about her capacity during this period.
4. On 21 December 2011, IAS received a medical certificate from Dr Sharma diagnosing Chronic Pain - exacerbated by sitting for long hours in front of a computer and telephone use. He advises that Ms Butterworth's telephone use should be limited to 4 hours a day with the balance of her hours to be made up of administrative duties, processing faxes and orders, and additional scheduled breaks for 5 minutes every 55 minutes.
5. I note that these requirements would largely have been met if Ms Butterworth had been assigned to the key accounts or enquiries divisions of the CSC or a combination of both.
6. In response, IAS required Ms Butterworth to undertake modified duties as per the recommendations. On 28 December it was agreed that her modified duties be reviewed on 20 February 2012.
7. In January 2012 Ms Tomczyk wrote to Dr Sharma confirming that the modified duties had been implemented, requesting further information about Ms Butterworth's medical condition, and asking whether she could safely perform the normal duties of her position and if there was a risk of her exacerbating her injury. I note that in this letter Ms Tomczyk advises that the position requires sitting for approximately 95% of the day at workstation and approximately 95% of the day spent using a computer keyboard and on the telephone.
8. It appears that Dr Sharma did not respond. IAS then scheduled an appointment for Ms Butterworth with IME Dr Chris Webster. Ms Butterworth attended the appointment on 31 January 2012 and Dr Webster provided his report in early February 2012.
9. In his report, Dr Webster gives his opinion that the injury is work-related and not consistent with fibromyalgia, and that problem is 'static keyboard work'.
10. Dr Webster suggests returning Ms Butterworth to her previous duties where she had a higher proportion of non-telephone work. This suggestion is important. It signalled, or ought to have signalled to IAS that, in terms of her injury, the problem for Ms Butterworth was working in the call centre. It provides a concrete suggestion that she be returned to her previous duties where the benefit will be a higher proportion of non-telephone work.
11. Dr Webster's report is important, in my view. Although it is not framed in terms of reasonable adjustments, it represents a suggestion by an independent medical examiner that Ms Butterworth be returned to her previous duties. It also supports a conclusion that Ms Butterworth could have performed such a role.
12. There was no evidence that IAS considered this option at that time. At paragraph [47] of her witness statement, Ms Tomczyk does not mention Dr Webster's suggestion that Ms Butterworth return to her previous duties. She does, however, state that he recommended Ms Butterworth undertake administrative duties and minimise keyboard duties
13. In February 2012, IAS received a Worker's Injury Claim form and Certificate of Capacity which certified that Ms Butterworth was fit for modified duties including telephone calls limited to four hours a day and five minute rest breaks every hour.
14. On 8 March 2012, Ms Butterworth sent Ms Tomczyk an email setting out a list of duties (in response to her request). She notes that alternate duties in the call centre are limited. The list of duties is:
    • Three hours on the phones
    • Scanning of daily faxes and pinks
    • Compiling of mail
    • Shredding paperwork
    • Finalising pinks
    • Picking and packing woundcare (one hour at a time)
15. Ms Butterworth also states that 'my doctor is quite happy for me to participate in any duties that I feel won't aggravate my neck and shoulder and I am quite happy to comply until I can get on top of the inflammation.'
16. On 23 March 2012, CGU accepted the claim.
17. In April 2012, a further Certificate of Capacity provided:
    • Limit telephone duties to three hours per day
    • Rest breaks every hour for five minutes
    • Scanning duties
    • Packing duties for one hour at a time
    • Two hours of computer duties per day
18. It appears that at around this time Ms Butterworth reported that the physical demands of her role were aggravating her condition.[32]
19. On 24 May 2012, Resolve Rehabilitation Services prepared a Functional Assessment Report with the following:
    • It notes that Ms Butterworth reported that the symptoms were caused by repetitive use of mouse and keyboard when attending customer calls over the phone in the call centre.
    • 'she is continuing to experience symptoms in neck and shoulder and her symptoms are aggravated by prolonged use of phone and computer'
    • Sitting tolerance: 'She reported of difficulties with sitting for prolonged periods in front of the computer and performing phone duties in the call centre'
    • Postural tolerance: 'she...is having difficulty using the mouse for prolonged periods and undertaking the task of customer service over the phone for more [than] 3 hours due to aggravation of symptoms in her neck and shoulder'
    • It sets out the 'pre-injury tasks' - 'role entails primarily working in the Call Centre'[33]
    • It agreed that Ms Butterworth be provided opportunity to gradually upgrade her pre-injury duties
20. The report also contained the remarks made by Ms Tomczyk about 'insubordination', discussed later in relation to Claim 3.
21. In August 2012, Ms Butterworth requested a different occupational rehabilitation provider to Resolve - because its report recorded that IAS had concerns with her conduct towards her supervisors.
22. Ms Butterworth also reported that she had aggravated her medical condition while at work. Ms Tomczyk's response was to reduce her hours of work to 4 hours of pre-injury duties and 2 hours of modified duties per day.
23. In August 2012 Ms Butterworth underwent a further functional assessment with independent doctor nominated by CGU.
24. The Nabanet report:
    • Refers to Ms Butterworth reporting onset of symptoms with change in role - significant increase in mouse and keyboard work, attributing her symptoms to the repetitive nature of the work and less variety of tasks than her previous roles
    • Records Dr Sharma's diagnosis- 'soft tissue injuries neck and shoulder with mechanical pain'
    • Records that Ms Butterworth states that she is just managing modified duties and takes a 5 minute break every hour but symptoms continue to fluctuate. She expressed concerns that she would be physically unable to manage the demands of the full time Customer Service Officer role
25. It is clear from the 2012 documents in evidence that the focus of IAS during this period was on complying with its WorkCover obligations. No criticism is made about this. It was necessary that it do so.
26. A number of documents during this period are relevant, however, to the claim in relation to reasonable adjustments, and support a view that the option of redeploying Ms Butterworth out of the call centre to relieve her symptoms was suggested to IAS during 2012 and not considered.
27. Dr Chris Webster's report in February 2012 suggests returning Ms Butterworth to her previous duties where she had a higher proportion of non-telephone work.
28. A report in November 2012 from the insurer's doctor, Dr Poppenbeek clearly identifies Ms Butterworth's concerns and strong feelings about the change in her work position. Dr Poppenbeek records that he asked Ms Camilleri and Ms Jones why this change of work position had occurred, 'and Ms Camilleri stated that changes within the organisation and production imperatives resulted in Ms Butterworth's change of position. He states. 'I must profess to not fully understanding this explanation'
29. Dr Poppenbeek report is important, in my view. He is clearly raising the possibility of reconsidering the change in role. While the initial redeployment of Ms Butterworth to the call centre in May 2011 was unobjectionable, Once Ms Butterworth developed the workplace injury and before IAS terminated her employment, it was required to consider whether reasonable adjustments could be made. Moved her out of the call centre was suggested by two medical examiners independent of Ms Butterworth.
30. IAS were not required to create a new position, but the option of swapping Ms Butterworth with a CSO working in key accounts/enquiries did not apparently occur to them. In circumstances where she had a workplace injury aggravated by long hours on the phone, it was reasonable in my view to consider moving CSOs around so that Ms Butterworth was not working in the call centre.

Redeployment to key accounts/enquiries - a reasonable adjustment?

1. It is uncontentious that IAS had the ability to move CSOs around within the 3 divisions of the CSC for a variety of operational reasons, such in May 2011. An important operational reason would include, in my view, making adjustments for an employee who had suffered a workplace injury because of the impact on her of the demands of working in its call centre.
2. Based on the evidence, my analysis of the factors in s.20(3)(a) - (h) of the 2010 Act is as follows:
   • (a) Her circumstances included that the disability had been caused by the intensity of the work in the call centre. The nature of her disability required her to reduce the hours she spent on the telephone and take regular breaks from telephone work. Two independent doctors and her GP had recommended a higher proportion of administrative work;
   • (b) The position of CSO encompassed working in areas other than the call-centre full-time. Work involving more non-telephone work was within the employment;
   • (c) The adjustment required would be to redeploy her and redeploy another CSO into the call centre;
   • (d) Doing so would have no financial impact on the employer;
   • (e) The size and nature of the workplace and the business is not relevant where the employer is able to redeploy CSOs where required;
   • (f) There would be no financial impact, and on the basis that it was not a detriment for Ms Butterworth to be redeployed into the call centre in May 2011, it ought not to have been a detriment to another CSO swapped with her in late 2012/early 2013. There ought to have been no impact on customer service, efficiency or productivity - Ms Butterworth had previously performed the role in key accounts and had undertaken enquiries work and had received favourable feedback from the client. In circumstances where all CSOs were expected to help with incoming calls, there would be little or no re-training required for the person redeployed into the call centre;
   • (g) The consequences for the employer would be the requirement to plan the redeployment;
   • (h) the consequences for Ms Butterworth in not making any adjustment were that her employment terminated;
   • (i) and (j) - not applicable
3. IAS contend that even if Ms Butterworth had been moved out of the call centre she could not have performed the requirement to be able to answer calls for up to 7.6 hours per day. They have the onus of proving that it is a genuine and reasonable requirement and that she could not perform it even if reasonable adjustments were made.
4. The difficulty in evaluating whether Ms Butterworth could have performed the role of CSO if she had been transferred out of the call centre is that it was never considered by IAS or tried. There is insufficient evidence to determine the frequency with which the requirement to help out on the phones would have impacted on Ms Butterworth. It would itself be a reasonable adjustment, in my view, to have called on other CSOs before her while she retained her injury, and to give her breaks more frequently (referred to in the examples in s.20(2). As observed in Dziurbas, s. 20(2) does not require an employee with the disability to perform the genuine and reasonable requirements of the employment perfectly - only adequately.
5. Further, there is sufficient evidence to conclude that it is probable that the change in role would itself have improved her condition.
6. It was expressly recommended by Dr Webster for that purpose and referred to by Dr Poppenbeek.
7. Ms Butterworth gave evidence that her current work at another similar organisation does not cause her any difficulty and that her condition improved once she took that job. She said the work has more administration and less telephone work and is similar to what she was doing before she was moved into the call centre in May 2011.
8. I accept her evidence on those matters.
9. I find that there were reasonable adjustments that IAS could and should have made, and I am not satisfied that IAS have proved that Ms Butterworth could not adequately perform the genuine and reasonable requirements of the employment even if they had been made.
10. I have taken into account the evidence that IAS gave Ms Butterworth an opportunity to respond to their decision to terminate her employment. Ms Camilleri's letter of 11 April 2013, referred to above, states that:

If you disagree with our decision to terminate your employment for the reasons outlined above, we invite you to provide us with written representation to support your continued contract of employment. Any such representation should be sent directly to Asia Tomczyk by Friday, 3 May 2013 to enable it to be considered before the termination of your employment takes effect on 18 May 2013.... If you do not wish to meet with us and we do not receive anything further from you, the termination of your employment will take effect on the date indicated above.

Independence Australia Requires a person employed as a Customer Services Officer within our Call Centre to be fit and able to perform all the duties of this position without any risk of aggravation or further injury - and you have been medically certified as being unable to do so.

1. Ms Camilleri's letter stated that IAS did not require Ms Butterworth to work out the five week notice period. That meant that 11 April 2013 was Ms Butterworth's last day at work.
2. At the hearing, I asked Ms Butterworth why she had not made a representation at that point that she be deployed to key accounts and enquiries. She had said in evidence that she felt she was in a no-win situation. She had been told to go at the meeting. In answer to my question, she said that she supposed she felt defeatist.
3. As the respondents submitted, the factual circumstances of Ms Butterworth's termination were very different to those in Dziurbas. Ms Butterworth said that she was expecting termination. IAS had made it clear in my view in earlier correspondence that it was considering the position. Mr Dziurbas, in contrast had no notice and was at a considerable disadvantage at the meeting at which he was told of his termination, because of his language difficulties.
4. Nevertheless, I consider it reasonable, in all the circumstances, for Ms Butterworth to take the view that nothing would be gained by any representations on her part. For whatever reason, IAS had shown that they were not prepared to consider the reasonable adjustments the subject of this claim.
5. I find that IAS breached section 20 of the 2010 Act in early 2013 when it failed to consider and implement reasonable adjustments as an alternative to terminating her employment.
6. I consider next the related claim that IAS breached section 18 of the 2010 Act when it terminated her employment.

1. I am satisfied that IAS terminated Ms Butterworth's employment because of the workplace injury which was a disability within the meaning of the 2010 Act. That is discrimination unless one of the exemptions apply.
2. For the reasons above, my view is that IAS cannot rely on the defence in section 23 which reflects the inbuilt exception in section 20(2).
3. IAS rely on sections 75 and 86 of the 2010 Act and say that if they are found to have discriminated against Ms Butterworth:
   • Any such discrimination was necessary to comply with, or was authorised by the provisions of, inter alia, the Occupational Health and Safety Act 2004 and the Accident Compensation Act 1985 (s.75);
   • Any such discrimination was necessary to protect the health and safety of a person, namely Ms Butterworth (s.86).
4. IAS' obligations under the Occupational Health and Safety Act included to:
   • eliminate risks to health and safety so far as is practicable, and if not possible to eliminate them, then reduce them
   • provide and maintain a working environment that is safe and without risks to health
   • provide, so far as is reasonably practicable, adequate facilities for the welfare of employees
   • monitor the health of employees, so far as is reasonably practicable.[34]
5. If the CSC had operated exclusively as a call centre, with no work undertaken by CSOs other than answering incoming calls, IAS would have been able to rely on section 75 and 86 in relation to termination of Ms Butterworth's employment to the extent that doing so was necessary to comply with its occupational health and safety obligations.
6. In circumstances where there were reasonable adjustments that could have been made that would have enabled Ms Butterworth to adequately and safely perform the role of CSO, termination of her employment was not necessary to comply with IAS' occupational health and safety obligations.
7. As to the submission that the Accident Compensation Act, as in force at the time, in some way required or authorised IAS to terminate Ms Butterworth's employment, I agree with Counsel for Ms Butterworth's submission that sections 194-196 of that Act do not authorise the conduct.
8. Those sections, and other related provisions are set out in the Appendix to these reasons. They deal with the obligations of an employer when a worker has been injured, the obligation to provide employment for a fixed period of time and the requirement to plan for a return to work.
9. As I have discussed above, in 2012 IAS was obliged to comply with its obligations under the Accident Compensation Act. It can rely on section 75 of the 2010 Act to the extent that its actions may have constituted discrimination.
10. At the point where the 52-week employment obligation ends, however, an employer is required to consider whether reasonable adjustments can be made to enable the employee with the workplace injury to adequately perform the genuine and reasonable requirements of the employment.
11. This is not the same as a return to pre-injury duties, where those duties do not comprise the whole of the employment. The fact that the 52-week employment obligation under the Accident Compensation Act has come to an end does not mean, in my view, that an employer is entitled to terminate the employment without regard to other obligations such as those under the Equal Opportunity Act. To that extent, the Accident Compensation Act does not authorise termination of the employment.
12. I find that the exceptions in sections 75 and 86 of the 2010 Act do not apply to IAS' conduct in terminating Ms Butterworth's employment.
13. I turn now to claim 3. For the reasons which follow I have dismissed the claim.

CLAIM 3: THE ALLEGATION OF 'BULLYING, ABUSE AND STALKING' BY MR DOWLING

1. As far as can be ascertained from the applicant's particulars of claim and the further and better particulars, this is alleged to be a detriment linked to Ms Butterworth's redeployment to the call centre. It is the principal allegation under the 'detriment' part of the claim and the focus of the applicant's written submissions on this part of the case.
2. The detriment as articulated in paragraph 10 (i)-(v) of the particulars of claim is:
   • Unnecessary conflict and stress in the workplace
   • Isolation of the applicant
   • Stress and anxiety
   • Loss of variety of work
   • Loss of interesting work and mental stimulation.
3. The further and better particulars to paragraph 10 that relate to Mr Dowling are stated to be:

Re: unnecessary Conflict and Stress - Justin Dowling subjected the applicant to unnecessary and/or excessive surveillance, bullying, abuse and undermining

1. The further and better particulars provide some examples, and Ms Butterworth provides more detail in her witness statement at paragraphs 19, 20, 30, 38, 47 and 54.
2. At paragraph 19, Ms Butterworth gives an overview of her complaint about Mr Dowling:

From around this time [April/May 2011] I was constantly watched, monitored, micro-managed, harassed, bullied and abused by Justin Dowling. He constantly questioned why I was speaking to any other employee, going to the fax or printer, or leaving the room, including to go to the toilet and demanded that I advise him whenever I was going to leave the room for any reason, despite the fact that all employees were already obliged to press a specific button on their phone when they started a break....

1. The specific incidents relied on by Ms Butterworth and relating to Mr Dowling cover a period from May 2011 to January 2013.
2. As the claim is framed, the allegation is that IAS discriminated against Ms Butterworth, contrary to section 18(d) of the 2010 Act and section 14(d) of the 1995 Act by subjecting her to a detriment.
3. I have found above that the request for medical information, if it constitutes discrimination is exempt, and that Ms Butterworth's redeployment to the call centre was not less favourable or unfavourable treatment and was not because of her disabilities. Ms Butterworth may have perceived it to be a detriment because she lost the variety of work she had, and working in the call centre was less interesting and stimulating, but there is no evidence that she was redeployed because of any disability.
4. To that extent, the incidents alleged, even if proven, would not, in my view, be exacerbation of discrimination, as submitted at paragraph 26 of the applicant's submissions.
5. Causation must be established. Although Mr Dowling was cross-examined in some detail about most of the alleged incidents, it was not put to him that his actions related to any disability.
6. Ms Butterworth's own evidence tended to disprove that aspect of her claim. On the basis of Ms Butterworth's evidence, I formed the view that Ms Butterworth's grievance against Mr Dowling is unrelated to any claim under the 1995 or the 2010 Act.
7. In cross-examination, Ms Butterworth agreed that she did not like Mr Dowling and she did not like his management style. Importantly, she said that 'he was like that from the beginning'; 'always authoritarian'; and engaged in excessive monitoring 'from 2008'. She also conceded in cross-examination that 'he treated everyone the way he treated me.'
8. Her evidence tends to disprove her allegations that his behaviour changed after she disclosed her fibromyalgia and chronic fatigue syndrome to others, or was because of her workplace injury.
9. I have found above that at the time Mr Dowling decided to restructure the TAC contract, it is unlikely that he was aware that Ms Butterworth had fibromyalgia or chronic fatigue syndrome. I have separately considered the allegations relating to the period after Ms Butterworth made a claim for her workplace injury, and had commenced her return to work plan in 2012. Mr Dowling agreed in cross-examination that he was aware that in 2012 there was a return to work plan in place for Ms Butterworth, and was aware she was on modified duties.
10. In her witness statement at paragraph 47, Ms Butterworth states that:

In around June 2012, Mr Dowling loudly insisted that I explain why I needed to talk to Jayne Sutton on an occasion when Brandy Johnstone and Sophie Williamson were also present. He told me that he was my supervisor for the day and had told me this before and asked if I was deaf.

1. In his witness statement, Mr Dowling denied the allegation that he asked Ms Butterworth if she was deaf. He said that while he did not recall the incident referred to, he does not speak like that to a CSO in the Customer Service Centre or any colleague at IAS. The allegation was not put to him in cross-examination. There is insufficient evidence to find that it occurred and no evidence that it occurred because of Ms Butterworth's disability.
2. At paragraph 54 of her witness statement, Ms Butterworth states that:

On or around 12 January 2013, Mr Dowling was supervising the call centre and I consequently felt so apprehensive about his constant obsessive monitoring and harassment that I tried to spare myself these by simply not taking the breaks which I should have been taking under my return to work plan. At about 12.30PM, Mr Dowling objected to me E-Mailing a Certificate of Capacity to Ms Tomczyk without his permission, which I was only doing after the time which I should have spent answering phones at one stretch under my return to work plan had expired. He then subjected me to constant surveillance until my lunch-break was over and another employee approached me and advised me as soon as my lunch-break was over. Justin Dowling as an afterthought told me that I need to ask his permission every time I need to do anything personal during my work time.

The Applicant alleges that I objected to her emailing a Certificate of Capacity to Ms Tomczyk during the time she was rostered to answer customer calls. I recall this incident. I directed the Applicant to focus on her CSC duties when she was meant to be available to answer customer calls. I said that she could address personal matters during her break times. As raised at paragraph 39 of my statement above, CSOs are rostered to manage the anticipated volume of calls. If one CSO is unavailable without notice, customer calls are lost and other CSOs are under greater pressure to manage calls. I considered this was a reasonable direction.

1. I am satisfied that Mr Dowling objected to Ms Butterworth sending an email and directed her to attend to personal matters during her break times. It is not clear from Ms Butterworth's evidence whether she was actually on a break time. In my view, it was reasonable of Mr Dowling, in his supervisory capacity, to speak to Ms Butterworth about the expectations on CSOs including the expectation that they be available to answer calls. While emailing a Certificate of Capacity to the occupational health and safety officer is not, strictly, personal business, the direction itself was not unreasonable.
2. In my view, the incident is in the category of exercising supervisory or management responsibility over an employee who appears to be attending to personal matters while rostered on to the telephones. In any event, the incident does not warrant the description of 'obsessive monitoring and harassment'.
3. There was an additional difficulty with Ms Butterworth's claim about Mr Dowling and her evidence about the alleged incidents. When pressed for detail, it became clear that her characterisation of incidents as bullying and harassment was an exaggeration, and what she describes as stalking is nothing of the sort.
4. In cross-examination she retracted the word 'stalking', and re-defined Mr Dowling's conduct as 'micro-managing'. There are important differences between the words, not the least of which is that stalking is criminal behaviour.
5. It is conceivable that micro-managing an employee to an extreme degree might constitute bullying, but the evidence in this case did not support an allegation of micro-management let alone bullying.
6. In any event, a claim of bullying is not a separate or independent claim that can be brought under the 1995 and the 2010 Acts - it must be related to discrimination on the basis of a protected attribute.
7. I find that the allegations in relation to Mr Dowling's behaviour are not established.
8. In the particulars to paragraph 10(i)-(iv) of the Particulars of Claim, a matter relating to Ms Tomczyk is alleged:

In regard to the Applicant's WorkCover claim, Asia Tomczyk inaccurately and unfairly advised Veena Mehta from Resolve Rehabilitation Services, in an Initial Return to Work Report to CGU Insurance, that the Applicant was insubordinate to the General Manager and supervisors and frequently took time off on sick leave.

1. The claim relates to a document in evidence, an Initial Assessment Report by Veena Mehta of Resolve dated 31 May 2012. In relation to work status and availability of duties, the report states that:

Asia advised from management point of view there was ongoing concern pertaining to work and conflict and insubordination with Call Centre Supervisor and General Manager

1. In cross-examination, Ms Tomczyk agreed that she made that statement. She also agreed that the comments were irrelevant to the question of what work Ms Butterworth should be assigned to while on workers' compensation. They clearly are irrelevant and properly characterised as unfair by Ms Butterworth. I accept it would cause stress to Ms Butterworth that IAS' health and safety manager would be making such comments to the rehabilitation provider.
2. What is not established, however, is that any detriment caused was because of Ms Butterworth's workplace injury, although that is the context. Rather, the comments suggest that the cause was Ms Tomczyk's perception of Ms Butterworth's attitude and behaviour as an employee.
3. As noted in the section above on observations of the witnesses, I formed the impression that Ms Butterworth saw these proceedings as an opportunity to pursue a number of generalised workplace grievances. I accept that she was aggrieved by her redeployment into the call centre in May 2011, and did not respond well to the requirements and, as she saw it, the limitations of working in the call centre. There were clearly a number of tension points for both her and IAS management over this period but I am not satisfied that the particular matters complained of under this heading are matters for the 2010 Act.

1. In Dziurbas at [221] summarised the orders the Tribunal may make:

Under section 125 of the EO Act, after hearing the evidence and representations of the parties, the tribunal may find that a person has or has not contravened a provision. If it finds there has been a contravention, the tribunal may make a range of orders including for a person to pay to the applicant an amount the tribunal thinks fit to compensate for loss, damage or injury suffered in consequence of a contravention. The tribunal may also make an order that the person do anything with a view to redressing any loss, damage or injury suffered as a result of the contravention.

1. At [241], the Tribunal set out a useful summary of how the assessment of damages for distress, upset and humiliation is approached, which I adopt:
   • Under section 125, orders can be made for economic and non-economic loss. Compensation can be awarded for psychological injury, humiliation and hurt feelings provided that there is a causal link between the breach of the EO Act and the claimed loss, damage or injury. In some cases it will be appropriate to consider whether the loss would have occurred but for the breach where there may be a number of possible sole causes for the loss. That will not be the appropriate question where there may be multiple causes for the loss. The best approach is a practical and common-sense one;
   • While the law of tort may provide guidance as to the approach to compensation in discrimination cases, the statutory remedy under the EO Act is very different and so care needs to be taken when comparing discrimination claims to claims under tort or under the Trade Practices Act 1974 (Cth). The words of the section itself must be the most important guide;
   • Non-economic loss will often be hard to quantify in monetary terms. Each case must turn on its own circumstances. Reference to other awards might provide some limited guidance, but cannot be decisive. While the principle that a discriminator takes his or her victim as he or she finds that victim means that awards of damages ought not to be reduced on the basis that the applicant was a particularly susceptible person, that is not a principle of causation. It does not make a respondent liable for loss which did not occur in consequence of the respondent's conduct;[96]
   • The breach of the EO Act does not have to be the sole cause of the claimed loss or damage. It is enough to demonstrate that contravention of a relevant provision of the EO Act was a cause of the loss or damage sustained; [97]
   • Community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before. As compared to the past, modern society places a higher value on the loss of enjoyment of life and the compensation of pain and suffering;[98]and
   • The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the applicant by the conduct or act in breach of the EO Act and the assessment should mirror the approach that would be taken if this case were to be heard in a court. [99]

1. The applicant's claim for compensation was put as follows: that she lost income on the basis that discriminatory restriction of her duties was the immediate cause of her neck and shoulder injury and that she need not have been limited to payments under the Accident Compensation Act had a wider range of duties simply being allocated to her on a non-discriminatory basis from May 2011.
2. On this basis, Ms Butterworth claimed the difference between the amounts she received while on WorkCover payments and her normal wage; for 13 weeks she received 95% of her salary under particular provisions of the Accident Compensation Act, and for the balance of her employment she received 80% of her salary. She also claimed reduction in superannuation payments for the period from November 2011 (when she suffered the injury).
3. I have found that the restriction of Ms Butterworth's duties in May 2011 was not discriminatory. On that basis discrimination did not result in her workplace injury and I do not allow any claim for any difference between the payments she received under the provisions of the Accident Compensation Act and her normal wages.
4. I have found that in failing to make reasonable adjustments for Ms Butterworth once its obligations under the Accident Compensation Act finished in early 2013, and in terminating her employment, IAS discriminated against her. Her economic loss is properly calculated as being lost wages from the time of her termination until she obtained new employment, subject to the obligation to mitigate loss. Unlike in Dziurbas, Ms Butterworth had the ability and was able to mitigate her loss by obtaining work quite soon after the termination.
5. Ms Butterworth's last day at work was 11 April 2013. On that day, she was told that her employment was terminated and that she would receive five weeks pay in lieu of notice. Because of accrued annual leave she was paid ordinary pay until 28 April 2013. She received a further $4055.19 representing five weeks pay in lieu of notice. This means that she was effectively paid up to 2 June 2013. She started her new job on 2 July 2013. She was therefore without salary for one month. This is a loss of $3,325.25, calculated as weekly salary of $811 ($4,055.19 ÷5) × 4.1
6. Ms Butterworth's solicitors submitted that her termination payment should not be deducted from compensation the Tribunal awards, as IAS was not entitled to validly terminate her employment when it did and she would have been paid for the period to which the termination payment related had her employment not being unlawfully terminated.
7. I disagree. When calculating economic loss, pay in lieu of notice should clearly be taken into account. I award $3,325.25 for economic loss.

1. The Tribunal in Dziurbas referred to a number of decisions, both under the DDA and the EO Acts (at [242]) and I take those into account. As the Tribunal observed, while regard should be had to other cases, each case must be considered on its own terms and applying a practical and common sense approach to the assessment of an appropriate award. Nevertheless, there are some similarities between the nature of the discrimination in Dziurbas and in this case, and I consider that the way the Tribunal approached the question of non-economic loss in Dziurbas to be useful here.
2. In Dziurbas, the Tribunal awarded $20,000 for non-economic loss, taking into account that Mr Dziurbas found himself unemployed and effectively unemployable at nearly 63 years of age, having planned to work for another two years. The Tribunal's decision in relation to the way in which economic loss should be calculated reflected the view that he had lost the ability to work until retirement [at 234].
3. I note that at [245] the Tribunal said that Mr Dziurbas was taken by surprise by the decision to terminate his employment, and that the circumstances of his termination, including the way the meeting took place, was an extremely disrespectful way to treat such a long-standing employee and not what the community would regard as fair. The Tribunal was satisfied that as a consequence of the decision to terminate his employment, Mondelez had caused Mr Dziurbas to experience shock, disappointment, upset and distress and found that the distress suffered by Mr Dziurbas was significant.
4. As submitted by the respondent in this case, there were some differences between Ms Butterworth's termination and Mr Dziurbas' termination. Ms Butterworth said herself that she was expecting it. It did not come as a surprise to her but I accept that it caused her distress.
5. While I was not satisfied that she had made out a claim for discrimination because of an adjustment disorder during her employment, I accept on the evidence referred to above that by June 2013 she suffered from an adjustment disorder with mixed anxiety and depressive mood. It is clear from Ms Davenport's report that a range of psychological treatments were used including intensive physiotherapy, psychology, pain education and relaxation intervention and that Ms Butterworth responded positively to the interventions of the program.
6. On my reading of Ms Davenport's report to CGU, it appears that Ms Butterworth's feelings of distress centred on the way she felt she had been treated by Mr Dowling, that the focus of her feelings of anger and humiliation was the conduct she saw as bullying and harassment, combined with the pain associated with her workplace injury. Ms Davenport records that Ms Butterworth described experiencing a significant loss of confidence in herself, particularly in a work context, due to the strong sense of disloyalty and humiliation experienced. In Ms Davenport's view, Ms Butterworth's emotional distress had been a key maintaining and aggravating factor for chronic neck and shoulder pain.
7. Because I have found that Ms Butterworth's redeployment to the call centre in May 2011 was not discrimination on IAS' part, and because I have found that the claim against in relation to Mr Dowling's conduct fails, in considering compensation for non-economic loss, I have focused on attempting to measure, in monetary terms, the hurt that has been done to Ms Butterworth by the termination of her employment.
8. I take into account that Ms Butterworth was able to obtain employment within a relatively short period of time but I consider that she was treated badly by IAS in the end and that IAS' breach of the 2010 Act would and did cause significant hurt and distress. IAS terminated her because she had a workplace injury and was not able to continue to work in the call centre. There was clear evidence that the workplace injury had been caused or aggravated by working in the call centre. Working in the call centre was not the only way for a CSO to work at IAS. Despite having the option of moving CSOs around so that Ms Butterworth could again work in the other divisions, IAS inexplicably failed to consider that as a possibility, and failed to pay any apparent regard to its obligations under the 2010 Act in terminating her employment. I consider that the way in which she was treated would not be regarded by the community as fair.
9. Although the hurt and distress that she experienced while at IAS is clearly mixed in with the hurt and distress of her termination and is difficult to unravel, I am satisfied that there is some component that can be said to have occurred in consequence of IAS's conduct in terminating her employment.
10. Doing the best I can, I assess the monetary value of that hurt and distress at $10,000.

1. I note that the Particulars of Claim include a claim for costs. I have left it open for either party to apply for costs however I draw the parties' attention to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and note that costs orders are rare in this List.

Appendix: Provisions of the Accident Compensation Act referred to by the Respondent

(a) that employers, workers and other persons involved in the return to work process cooperate to ensure that workers successfully return to work;

(b) that employers are responsible for providing pre-injury employment or suitable employment to enable workers to return to work;

(c) that workers are responsible for participating in the return to work process consistently with their capacity for work;

(d) for workers to be represented, assisted and supported in the return to work process;

(e) for effective occupational rehabilitation for workers to facilitate their early and sustainable return to work.

pre-injury employment means the employment of a worker in a position which is the same as or equivalent to the position in which the worker was employed before receiving the injury;

employment obligation period means the period of 52 weeks -

(i) the date the employer receives from the worker a medical certificate issued in accordance with section 105(1); or

(ii) the date the employer receives a claim for compensation from the worker in the form of weekly payments; or

(iii) the date the employer is notified by the Authority that the worker has made a claim for compensation in the form of weekly payments; or

(iv) the date the employer is notified by the Authority that the worker has provided the Authority with a medical certificate issued in accordance with section 105(1) -

(b) being an aggregate period beginning on that earliest date, whether or not consecutive, in respect of which the worker has an incapacity for work resulting from or materially contributed to by the injury to which the employment obligation period relates.

(2) An employer must, to the extent that it is reasonable to do so, provide to a worker for the duration of the employment obligation period -

(a) suitable employment if the worker has a current work capacity; and

(b) pre-injury employment if the worker no longer has an incapacity for work.

(1) An employer must, to the extent that it is reasonable to do so, plan the return to work of a worker from the date on which the employer knows or ought reasonably to have known of the worker's incapacity for work, whichever is the earlier date.

(2) An employer must when planning the return to work of a worker undertake the tasks specified in subsection (3) as often as is necessary to enable the worker to return to work in employment which is consistent with the worker's capacity for work.

(3) Planning the return to work of a worker includes -

(a) obtaining relevant information about the worker's capacity for work; and

(b) considering reasonable workplace support, aids or modifications to assist in the worker's return to work; and

(c) assessing and proposing options for suitable employment or pre-injury employment; and

(d) engaging in consultation in accordance with section 196; and

(e) providing the worker with clear, accurate and current details of the worker's return to work arrangements; and

(4) For the purposes of this section, an employer knows or ought reasonably to have known of the worker's incapacity for work from the date of the commencement of the employment obligation period within the meaning of section 194.

196 Consult about the return to work of a worker

(1) An employer must, to the extent that it is reasonable to do so, consult about the return to work of a worker with -

(b) subject to the consent of the worker, the worker's treating health practitioner; and

(c) a provider of occupational rehabilitation services that provides those services to the worker in accordance with Division 2B of Part IV and section 99A.

(2) The employer must consult with the persons specified in subsection (1) by -

(a) sharing information about the worker's return to work; and

(b) providing a reasonable opportunity for those persons to consider and express their views about the worker's return to work; and

(3) For the purposes of this section, an employer's consultation with a worker about the return to work of the worker must involve the employer consulting directly with the worker however a worker may be assisted by a representative during any consultation.

[1] Section 194 of the Accident Compensation Act 1994: obligation to provide, for a period of 52 weeks, suitable employment if the employee has some capacity for work and pre-injury employment if the employee no longer has an incapacity.

[2] Section 8 in each Act

[4] 1995 Act: section 14; 2010 Act: section 18

[5] 1995 Act: section 69; 2010 Act: section 75.

[6] 1995 Act: section 80; 2010 Act: section 86.

[7] Section 23 of the 2010 Act is a 'companion' section to s.20. It permits discrimination against an employee on the basis of disability if the adjustments required are not reasonable adjustments or the employee could not adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made

[8] See H J Heinz v Turner [1998] 4 VR 872 at [882]; Aitken and ors v State of Victoria [2012] VCAT 1547 at [539] - [548].

[9] As expressed in AB v Ballarat Christian College [2013] VCAT 1790 at [15] referred to by the respondent in submissions.

[10] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[11] Ms Tomczyk's witness statements were all in the name of 'Asia' Tomcyzk. When asked her full name, she gave her full name as Johanna Tomczyk but said she 'goes by the name of Asia'.

[12] See section 20, 21 and 22 of the Occupational Health and Safety Act 2004

[13] Using the description in paragraph 7 of the particulars of claim

[14] In the particulars to paragraph 7 of the Particulars of Claim

[15] Paragraph 9 of the Particulars of Claim

[16] At paragraph [18] of her witness statement

[17] As discussed later in relation to reasonable adjustments Mr Dowling said that the key accounts division has since grown and there are now seven people working it.

[18] Including Li Rosi v Donfield Constructions Pty Ltd (1996) 72 IR 106, at 108-9; Commonwealth v Evans [2004] FCA 654 at paragraphs 27, 30, 64-8 and 75; Bailey v ANU (1995) EOC 92-744, at 78:546 and 552-3 and others referred to the written submissions.

[22] The language used is discussed further below.

[24] [2015] VCAT 1432, 9 September 2015

[25] Referred to in the respondent's written submissions on the question of standard of proof.

[28] Cosma v Qantas Airways Limited [2002] FCA 640 at [67]- [69].

[29] Overturned by the QCAT appeal Tribunal. State of Queensland (Queensland Health) v Chivers [2013] QCATA 256 (23 September 2013) Appeal to the Court of Appeal dismissed_: Chivers v State of Queensland (Queensland Health) [2014] QCA 141 (13 June 2014)_

[31] The question was also asked in Ms Tomczyk's January 2012 letter to Dr Sharma, at TB 267

[32] Ms Tomczyk's witness statement at [58] notes that Ms Butterworth was reporting that the physical demands of her role aggravated her condition.

[33] This is consistent with a number of the documents relevant to the WorkCover claim which refer to the role as 'call centre operator' - e.g the Certificate of Capacity dated 27/4/12 at TB 305.

[34] See section 20, 21 and 22 of the Occupational Health and Safety Act 2004

[96] [footnote numbering in quoted paragraphs] Deckert v Victorian Institute of Dryland Agriculture [2006] VCAT 299.

[97] GLS v PLP [2013] VCAT 221 at paragraph 275, per Garde P referring to I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 per Gaudron, Gummow and Hayne JJ at paragraphs 56 to 57.

[98] Richardson v Oracle [2014] FCAFC 82, per Kenny J at paragraphs 95 to 97, including reference to the Victorian Court of Appeal's decision in Amaca Pty Ltd v King [2011] VSCA 447, an asbestos related negligence case.

[99] Tan v Xenos (No 3) [2008] VCAT 584 at paragraph 556.