[2003] HCA 62
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Source
Original judgment source is linked above.
Catchwords
[2003] HCA 62
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29
Judgment (18 paragraphs)
[1]
Overview
Mr Chalker says that Murrays Australia Pty Ltd breached the Anti-Discrimination Act 1977 (NSW) by not offering him a position as a bus driver because he has a mental illness. Murrays Australia deny discriminating against Mr Chalker on the ground of his disability. They say either that his disability was not a reason for the way they treated him or, if it was, he could not do the "inherent requirements" of the job.
We have found that Murrays Australia did treat Mr Chalker less favourably than they would have treated a person without his disability and that at least one of the reasons for that treatment was his disability. They have not proved that Mr Chalker is unable to do the inherent requirements of the job. Mr Chalker has established his complaint and we have ordered Murrays Australia to pay him $10,000.
[2]
Background
Mr Chalker was diagnosed with borderline personality disorder, which is a mental illness, in January 2014. He saw an advertisement for a coach driver with Murrays Australia and phoned Mr Todd on 21 September 2015 to inquire about the position. He told Mr Todd that he had driven for one of Murray's sub-contractors, Sunshine Scenic Tours Pty Ltd, in Melbourne. He had recently moved to Sydney from Melbourne where he had been employed for over four years driving coaches and doing other administrative tasks. The following day Mr Chalker emailed Mr Todd enclosing his curriculum vitae.
On 22 September 2015 Mr Chalker completed an application form and attended an interview with Mr Todd and one of the driving managers. Under the heading 'health' on the application form, the following question was asked:
Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied?
Mr Chalker answered "no" to that question. Mr Todd regarded Mr Chalker's answer as dishonest. In his view, he should have answered "yes" and revealed that he had been diagnosed with borderline personality disorder.
Mr Todd recalls speaking to Mr Chalker at the interview about the medical assessment that would need to be undertaken. He told Mr Chalker that the final decision would be made after the results of that medical assessment had been provided. Mr Todd specifically asked Mr Chalker whether there was anything that would prevent him driving or passing the medical. Mr Chalker replied that there was not. Mr Todd did not ask him at the interview whether he had a disability or whether he was taking prescription or non-prescription drugs or other medication.
At the interview Mr Todd told Mr Chalker that, given his history and experience, there would be a job for him as soon as he was able to obtain his NSW public vehicle certificate. At that stage he was still waiting for his bus driver authority to be issued by Roads and Maritime Services.
Mr Todd says that one of the reasons he ultimately decided not to employ Mr Chalker was that he did not disclose, either on the application form or at the interview, that he had a medical condition, that he had been receiving treatment for borderline personality disorder, or that he had been taking medication. Mr Todd saw the interview process as a chance to get to know Mr Chalker and to build trust. He said he was 'taken aback' and felt 'robbed' when he found out that Mr Chalker had a medical condition which he did not disclose on the application form or tell him about during the interview.
We accept that Mr Todd regarded Mr Chalker's answer on the application form and his failure to disclose his disability at interview as being dishonest. But, in our view, that conclusion was not justified. The question on the form is confined to medical conditions, disabilities or injuries that "may have an effect on (the person's) performance of the duties" of a bus driver. Having driven a bus without incident since being diagnosed with borderline personality disorder in 2014, we find that Mr Chalker answered the question honestly.
After the interview, Mr Chalker undertook a driving test. There is no issue about his physical ability to drive a bus.
On 27 October 2015, Ms Nasir, from the Human Resources area of Murrays Australia, emailed Mr Chalker to tell him that a medical assessment had been booked for 28 October 2015. Mr Chalker was reluctant to pay the $266 for the assessment if employment was not guaranteed. Ms Nasir said, "Looking at your application, I can't see any reason why you wouldn't be offered a position".
On 28 October 2015 Mr Chalker attended Immex, a specialist occupational medical practice. A nurse telephoned Mr Todd on the same day. She told him that Mr Chalker had had a urine test as part of his assessment which disclosed the presence of certain drugs. The nurse also told Mr Todd that Mr Chalker had not disclosed in the Driver Health Questionnaire that he was taking prescription medication until after the medication showed up in his urine test. She asked Mr Todd whether he wanted the urine sample to be tested to determine whether the medications were illicit or prescribed. Mr Todd instructed the nurse to arrange for further testing.
At the hearing Mr Chalker said he could not remember the exact order of events on the day of the assessments. But he recalls that one of the first things he did was to have a hearing test and that blood and urine samples were taken. He distinctly remembers that when he had the tourniquet on his arm for the blood to be taken, he told the nurse what medications he had been on and showed them to her. He agreed that it is possible that that conversation took place after he had provided the urine sample. There was no mention of this conversation in Mr Todd's evidence of what the nurse told him.
Before he saw the doctor, Mr Chalker filled in the "Driver Health Questionnaire form" and disclosed that he:
1. was attending a health professional for an illness, injury or disability;
2. was taking prescription or complementary medicine; and
3. had a psychiatric condition or nervous disorder.
Mr Chalker said he cannot remember whether he answered these questions before or after the drug and alcohol screening but he says it was definitely before he saw the doctor.
Mr Chalker did not answer a follow up question on the form which asked him to provide details of the illness, injury or disability and the medicines he was taking. When questioned about that omission at the hearing, he said he may have overlooked it and that there were certain things that he wanted to discuss with the doctor before signing the form. He said he had the packages for the drugs he had taken and was taking in his bag, ready to show the doctor. He knew, because he had been a nurse himself, that even medications he was no longer taking may show up in the tests. He remembers that he did not sign the Driver Health Questionnaire until after he had consulted the doctor. Even after signing, the doctor changed some of his answers without asking him to initial those changes.
Mr Chalker gave evidence that when he was first diagnosed with borderline personality disorder, no medication was prescribed. Some time later his treating psychiatrist, A/Prof Harvey, prescribed certain medications including escitalopram. Mr Chalker says he stopped taking that medication in July 2015. He has also taken fluoxetine, a drug which is similar to escitalopram. He says that none of these medications are specifically for borderline personality disorder. When he applied for the job with Murrays Australia, he stopped taking phentermine, a weight loss medication.
We find that Mr Chalker did not reveal, either in the Driver Health Questionnaire or verbally, that he was taking any medication, or what those medications were, until he told the nurse after they showed up in the urine sample. That finding is consistent with Mr Todd's evidence about what the nurse said and Mr Chalker's lack of any clear recollection on that subject. The finding is also based on Mr Chalker's distinct recollection of telling the nurse the medications he was on, and the fact that the nurse did not give direct evidence contradicting that conversation.
At the medical assessment, Mr Chalker told the assessing doctor, Dr Abeydeera, that he had been diagnosed with borderline personality disorder and that he was being treated by A/Prof Harvey. He also told Dr Abeydeera the medications he was taking. The final report prepared by Dr Abeydeera for Murrays Australia lists the medications as benzodiazepine, phentermine, escitalopram and fluoxetine. Mr Chalker emphasised that, in his view, neither his diagnosis of borderline personality disorder nor any medications he had been taking, affect his ability to drive a bus.
We accept Mr Chalker's evidence that he had the packages identifying the medications in his bag. He intended to disclose both the nature of his disability and the medications he was taking to the examining doctor. When medications showed up in his urine, he showed the nurse the packages identifying the medications that he had been or was currently taking. He preferred to explain his psychiatric disability and the medications he was taking to his doctor, rather than the nurse because of his strong belief that neither the disability nor the medication had any effect on his ability to safely drive a bus. That was not unreasonable or dishonest.
Under the "driver's declaration" on the first page of the Driver Health Questionnaire the following words appear:
Consent to contact treating health professionals
I consent to the examining doctor contacting my treating health professionals to clarify aspects of my medical management.
Below those words is a space for Mr Chalker to sign and date that consent. It is not signed or dated. There is a handwritten note at the bottom of the page which says, "Candidate did not consent to contact treating drs/specialists".
Mr Chalker gave evidence that he wanted to discuss the request for consent and some of the questions on the questionnaire with the doctor as he felt they were too broad and open ended. We accept that evidence.
Mr Chalker acknowledges that he did not consent to Dr Abeydeera contacting his treating psychiatrist. While he was not prepared to give blanket consent for Dr Abeydeera to contact any of his treating doctors, he says he was more than happy for Mr Todd to contact whoever he needed to contact for clarification on a specific issue.
In the final report Dr Abeydeera expressed concerns about Mr Chalker's mental state. Under the heading 'Psychological health', he wrote "Candidate appeared agitated, irritable and was difficult during interview ? paranoid". Under the heading 'Mental state examination', Dr Abeydeera ticked boxes indicating that Mr Chalker's 'attitude', 'behaviour' and, 'mood and affect' were all abnormal. Dr Abeydeera wrote under the heading "Summary of significant findings" that Mr Chalker:
Reported 2 weekly review with specialist for borderline Personality Disorder. During testing with (sic) He has been difficult with staff. During history taking candidate appeared argumentative.
The reference to Mr Chalker having been difficult with staff was made as a result of a conversation the doctor had with the nurse who had performed the drug and alcohol screening. Mr Todd said that she told him in a phone call on the day of the assessment that, "When we asked him if we could contact his treating practitioner about the results of the urine test he became argumentative, difficult and agitated".
Mr Chalker denied that his behaviour was inappropriate. He said that because he was a trained nurse, he knew his rights, especially his right to privacy. For that reason he was not comfortable giving Immex "a blank cheque" to inquire into his entire medical history. He did give Dr Abeydeera contact details for his treating psychiatrist, A/Prof Harvey. He admits that he asked several questions about the Driver Health Questionnaire as they were open ended and, in some cases, not relevant. He also challenged Dr Abeydeera for altering his responses after he had signed the form and not asking him to initial those changes. Finally, he considered some of the nursing practices to be 'sloppy' and 'unclean'.
We find that Mr Chalker questioned some of the nursing staff's practices and was critical of some of the questions and requests for consent to contact treating professionals. That behaviour may be described as "difficult" or "argumentative" but, in context, was not unreasonable. Mr Chalker had genuine concerns about the breadth and relevance of the questions he was being asked and the blanket nature of the request for consent to contacting treating health professionals.
In response to the question, "Are any further investigations or referrals required?", Dr Abeydeera ticked 'yes' and wrote 'mood/effect' (sic). He added that Mr Chalker "may need further evaluation/assessment from an independent psychiatrist". Dr Abeydeera's recommendation in terms of Mr Chalker's fitness to drive was that he was "temporarily" unfit because he does not meet the medical criteria, pending further investigation. The medical criteria to which Dr Abeydeera was referring related to psychological health. He suggested an independent psychiatric evaluation as Mr Chalker had not consented to providing information from his treating doctor.
Dr Abeydeera wrote to A/Prof Harvey the day after he assessed Mr Chalker. He acknowledged in that letter that Mr Chalker had not consented to him writing the letter but pointed out that government guidelines require a letter from a treating specialist confirming a candidate's fitness to drive commercial vehicles. In the letter Dr Abeydeera provided a link to a website. That website is the "Austroads" website and the link is to a document headed "Assessing Fitness to Drive for commercial and private vehicle drivers, medical standards for licensing and clinical management guidelines, March 2012". Under those standards, at p 103, a person is not fit to hold an unconditional licence "if the person has a chronic psychiatric condition of such severity that is likely to impair behaviour, cognitive ability or perception required for safe driving".
A/Prof Harvey responded to Dr Abeydeera's letter by writing to Roads and Maritime Services on 2 November 2015 and providing a copy of that letter to Mr Chalker. The letter stated, in part, that A/Prof Harvey did not believe that either Mr Chalker's diagnosis or his current symptoms would impair his ability to safely drive a public service vehicle.
On 30 October 2015 Mr Chalker contacted Immex inquiring about his pathology results. He was told that they would be back by 3 November 2015. On 2 November 2015, Mr Chalker emailed Immex attaching the letter from A/Prof Harvey to Roads and Maritime Services.
On 4 November 2015, Mr Chalker received an email from Immex saying that they had received his email which attached the psychiatrist's letter and had forwarded it to "the doctor", presumably Dr Abeydeera. Mr Todd says that Immex sent him the results of the second urine assessment but not the letter from A/Prof Harvey. We find that Immex received the email and the attached letter from Mr Chalker's psychiatrist but did not bring that letter to Mr Todd's attention.
On 9 November 2015 Mr Chalker emailed Mr Todd inquiring about a start date. He did not receive a response to that email. He also telephoned and spoke to Ms Nasir from Human Resources at Murrays Australia as Mr Todd was not available. On the same day Mr Todd phoned Immex to enquire as to whether they had received any information from Mr Chalker's treating doctors. The person he spoke to, who Mr Todd did not identify, said, "We have not received anything, but we have requested it. Any information received may lead to a further assessment and we will telephone you if we receive anything". Mr Todd says he did not hear from them again.
On the same day, 9 November 2015, Mr Todd received the final report from Immex - the Fitness to Drive Report for Employer Form. On or about 12 November 2015 Mr Todd said he discussed Mr Chalker's application with Mr Damian Lee, the Chief Executive Officer of Murrays. His evidence was that:
We both agreed that Mr Chalker's conduct during the Fitness to Drive Assessment, including his argumentative, difficult and agitated presentation, as well as his failure to disclose in his Application Form the prescription medication that he was taking (until this was disclosed in the urine testing) as any medical condition that may have an effect on the performance of the job, meant that he could not perform the inherent requirements of the role of driver. Damian Lee said to me words to the effect of, 'there will be problems down the track with him because of his behaviour".
On 12 November 2015 Murrays wrote to Mr Chalker advising him that his application for employment had been unsuccessful and enclosing a cheque for $266 as a refund for the cost of the pre-employment medical assessment.
[3]
Mr Chalker's characterisation of the complaint
Because he did not have a lawyer representing him, the Tribunal did not direct Mr Chalker to provide formal points of claim. Instead, he was directed to prepare a document setting out whether he alleges that Murrays Australia discriminated against him on the ground of his disability, a characteristic that appertains generally to persons who have that disability and/or a characteristic that is generally imputed to persons who have that disability: Anti-Discrimination Act, s 49.
On 10 August 2016 Mr Chalker wrote to the Tribunal saying, in summary, that he alleged discrimination on the ground of disability and described his complaint as one of direct discrimination. He said he did not have any witness statements to submit but that he would be applying for a summons to be issued to Dr Abeydeera to give evidence and provide medical records. Mr Chalker did not apply to have any summonses issued.
On 20 September 2016 Mr Chalker wrote to the Tribunal repeating that his claim was one of direct disability discrimination. Following some discussion during the hearing, Mr Chalker confirmed that his complaint was one of direct discrimination on the ground of disability (borderline personality disorder) in breach of s 49D(1)(b) of the Anti-Discrimination Act.
Mr Chalker did not expressly rely on the "characteristics extension" in s 49B(2) of the Anti-Discrimination Act, nor did he mention it in any of his written responses or at the hearing. In their written submissions Murrays Australia addressed a hypothetical submission that taking prescription medication was a characteristic said to appertain generally or be generally imputed to people with borderline personality disorder. But Mr Chalker did not make that submission and we have not considered it. Nor have we considered whether behaving in an argumentative or agitated manner is such a characteristic.
[4]
The law
It is unlawful for an employer to discriminate against a person on the ground of disability in determining who should be offered employment: Anti-Discrimination Act, s 49D(1)(b). A prospective employer will breach that provision if he or she decides not to offer a person employment on the ground of disability and fails to prove that any of the defences or exceptions apply.
To substantiate his complaint Mr Chalker has to prove that he has a disability as defined in s 4 and that the way he was treated constitutes direct discrimination as defined in s 49B(1)(a):
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability
The legal burden of proof is on Mr Chalker to prove his or her case on the balance of probabilities.
Murrays Australia relies on the "inherent requirements" defence in s 49D(4) of the Anti-Discrimination Act. We set out that provision below when considering the defence. The onus of proving any exception relating to a complaint lies on the respondent: s 104.
Section 108 of the Anti-Discrimination Act sets out the relief the Tribunal may grant if a complaint is substantiated. Mr Chalker is seeking compensation for loss of wages, $10,000 for pain and suffering, that Murrays Australia make a donation to charity and that they educate themselves about mental illness.
[5]
Disability and vicarious liability
We find that Mr Chalker has borderline personality disorder and that that is a "disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour": Anti-Discrimination Act, s 4. While there was no evidence about this disorder, it is recognised by the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a personality disorder. DSM-5 (5th ed, 2013, American Psychiatric Publishing, Washington DC) at 645, 663-6.
We also find that Mr Todd and CEO Mr Lee made a decision on behalf of Murrays Australia that Mr Chalker should not be further assessed, as recommended, and should not be offered employment: Anti-Discrimination Act, s 49D(1)(b) and s 53.
The two elements which Mr Chalker must prove to substantiate a complaint of direct discrimination on the ground of disability are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. We consider each in turn below.
[6]
Differential treatment
The differential treatment element requires the Tribunal to be satisfied that Murrays Australia treated Mr Chalker less favourably than, in the same circumstances, or in circumstances which are not materially different, they treated or would have treated a person without borderline personality disorder. There are four aspects of the differential treatment element of direct discrimination. They are: the treatment, the less favourable nature of that treatment; the identity of the comparator and the relevant circumstances for the purposes of the required comparison: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination Law, (2nd ed 2014, The Federation Press) at 82.
Based on the final report from Immex, our understanding of the treatment about which Mr Chalker complains is the decision not to employ him in circumstances where the recommendation was that he was "temporarily unfit" pending further investigation. Contrary to this recommendation, Mr Todd and Mr Lee chose not to pursue any further options for investigation.
That treatment is "less favourable" than referring him for further assessment or employing him.
Mr Chalker did not nominate an actual person without his disability for the purposes of comparison. We must make the comparison on the basis of a hypothetical person who does not have "that disability". In this case that means the hypothetical person does not have a mental illness such as borderline personality disorder but may have another disability, such as cancer.
The identification of the relevant circumstances for the purposes of the comparison was the subject of consideration by the High Court in Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62. In that case the majority held that a school that expelled a student with multiple disabilities had not discriminated against him on the ground of his disability. When making the comparison with a student without the disability, the High Court included, as part of the circumstances, the fact that the student manifested anti-social and violent behaviour. Because the school would have expelled a student without a disability who also behaved in that way, the school had not breached the Disability Discrimination Act 1992 (Cth). Section 5(1) of that Act provides that:
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
At [224], Gummow, Hayne and Hayden JJ) held that:
224.The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
The minority, Justices McHugh and Kirby JJ, expressed the view at [119] that the established jurisprudence was that "… the circumstances of the person alleged to have suffered discriminatory treatment and which are related to the prohibited ground are to be excluded from the circumstances of the comparator". (Emphasis added.) The majority decision has also been the subject of critical academic comment: see, for example, From Wardley to Purvis - How Far Has Australian Anti-discrimination Law Come in 30 Years? Dr Belinda Smith (2008) 21 AJLL 3.
Despite these criticisms, the wording in s 5(1) of the Disability Discrimination Act is relevantly identical to the wording in s 49B (1)(a) of the Anti-Discrimination Act.
Partly in response to the decision in Purvis, the definition of 'disability' in s 4 of the Disability Discrimination Act was amended in 2009 to include the following:
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
The definition of disability under the Anti-Discrimination Act does not include an equivalent statement.
Based on our factual findings, the "objective features" or circumstances which surrounded the treatment of Mr Chalker can be divided into two categories:
1. his competence, skills and experience;
2. his behaviour including late disclosure of information, refusing to sign a blanket consent to contact his treating psychiatrist and criticising the questions on the questionnaire and the way the nurse behaved.
The relevant circumstances are not the diagnosis or the opinions expressed about his suitability for the position either by his treating psychiatrist or Dr Abeydeera. When making the comparison, it is the relevant objective circumstances, rather than professional opinions that must be identified.
Mr Chalker is an experienced and competent bus driver. He passed the driving test and there is no issue as to his physical ability to drive a bus. The comparison that needs to be made is with Mr Chalker and another applicant without a mental illness, who behaved in the same way as Mr Chalker. We have made findings about that behaviour at [9], [18], [20], [23], [24] and [28].
In our view, in the circumstances we have identified, Mr Todd would not have refused to employ a person who did not have a mental illness.. When questioned on that point, he said he would not have regarded it as dishonest if an applicant failed to tell him that he or she had been diagnosed with cancer as long as the person was in remission. When giving oral evidence, it became clear that Mr Todd was disappointed and somewhat annoyed with Mr Chalker for failing to reveal in the application form or tell him at the interview that he had borderline personality disorder or that he was taking medication. Mr Todd emphasised that he saw the interview process as a chance to get to know Mr Chalker and to build trust. As we have said, he was 'taken aback' and felt 'robbed' when he found out that Mr Chalker had a medical condition which he did not tell him about during the interview. That disappointment contrasts with how Mr Todd would have reacted if a person with a diagnosis of cancer failed to disclose that fact in the application form or at interview. In both cases, the person may legitimately be of the view that their disability does not affect their ability to do the job. But Mr Todd responded differently to the person with a mental illness.
Failing to disclose the medication he was taking in a timely way, criticising the questions in the questionnaire and refusing to consent to contacting a treating specialist and Mr Chalker's other behaviours would not have been an issue for Mr Todd if the candidate did not have a mental illness. In similar circumstances, if a candidate with cancer had engaged in the same behaviours, we are satisfied that Mr Todd would have accepted the recommendation of referral for an independent evaluation, rather than deciding not to employ the person.
[7]
Causation
The second element of direct discrimination is causation. For Mr Chalker's complaint to succeed, at least one of the reasons for the decision not to employ him must have been his disability. Anti-Discrimination Act, s 4A. If there is more than one reason for the decision not to employ Mr Chalker, then as long as one of those reasons constitutes unlawful discrimination, the decision is taken to have been done for that reason. That reason does not have to be the dominant or a substantial reason.
Mr Todd says that Mr Chalker's disability was not relevant to his decision as to whether he was suitable for the position of driver. As with the vast majority of complaints of discrimination, a causal link between Mr Chalker's disability and the decision not to employ him, would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:
(b) an inference must be reasonably drawn on the basis of the primary facts;
(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;
(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.
There is no dispute that Mr Chalker is an experienced and competent bus driver and has the physical ability to drive a bus. Below we summarise the reasons Murrays Australia gave for not employing Mr Chalker.
In response to questions from the President of the Anti-Discrimination Board at the investigation stage, Murrays Australia offered the following reasons for not employing Mr Chalker:
1. non-disclosure on the application form that he had borderline personality disorder and was taking medication;
2. his behaviour during the medical assessment; and comments in the Report about him being difficult and agitated with nursing staff;
3. the fact that he was taking medication; and
4. recommendation of the Fitness to Drive Report.
In his first statement Mr Todd gave the following reasons for not employing Mr Chalker:
1. failure to disclose in the application form or in the job interview the health conditions for which he was receiving ongoing treatment and the ongoing medications he was taking;
2. the medical examiner's comments about Mr Chalker's behaviours were abnormal and that he was being difficult and agitated with nursing staff;
3. the examiner's opinion and recommendation: the Fitness to Drive Report's conclusion that he was temporarily not fit to drive.
In that statement Mr Todd said that the decisive factor was that Mr Chalker was found not fit to drive by the medical assessment. We note that the medical assessment found Mr Chalker "temporarily" not fit to drive and recommended an independent psychiatric evaluation.
In his second affidavit, Mr Todd gives the following reasons for not employing Mr Chalker:
1. failing to disclose prescription medication in the application form or during the interview;
2. being argumentative, agitated and difficult and presenting with abnormal attitude, mood, behaviour and affect during the Fitness to Drive Assessment;
3. refusing to allow Dr Abeydeera to consult with his treating practitioner or have further investigations carried out by an independent practitioner;
4. being assessed not fit to drive.
We note two critical errors or omissions relating to these reasons. The first is that Dr Abeydeera's recommendation in terms of Mr Chalker's fitness to drive was that he was "temporarily" unfit pending further investigation and treatment. The second is that there was no evidence that Mr Chalker refused to have further investigations carried out by an independent medical practitioner.
Mr Todd repeated in his second statement that the decisive factor was that Mr Chalker was found not fit to drive and that this was not because of his disability. Again, that evidence does not accurately reflect Dr Abeydeera's recommendation. Mr Todd and Mr Lee, the CEO, considered that Mr Chalker's behaviour during the Fitness to Drive Assessment meant that he could not perform the inherent requirements of the job.
Even though Mr Todd says that the temporary unfitness was the decisive factor he says elsewhere in his statement that it was the fact that Mr Chalker did not disclose that he was taking medications in the initial application or during the interview that was of the greatest concern to him. He interpreted that non-disclosure as being dishonest. He says that stringent reporting requirements require that candidates and employees be candid at all times.
The second main reason for rejecting Mr Chalker relates to Dr Abeydeera's report and recommendations. One of Dr Abeydeera's significant findings was that Mr Chalker had been seeing a specialist for Borderline Personality Disorder and that he was temporarily unfit pending further investigation. Based on the mental state examination, Dr Abeydeera's recommended that Mr Chalker undergo further independent assessment. There is no evidence that he refused to participate in such an assessment. Rather than follow this recommendation, Mr Todd and Mr Lee decided that he could not perform the inherent requirements of the job and "there will be too many problems down the track with him because of his behaviour".
The inference can be drawn that at least one of the reasons Murrays Australia did not employ Mr Chalker was that he had borderline personality disorder. Mr Todd identified in his second affidavit that one of the reasons for not employing Mr Chalker was that he had presented "with abnormal attitude, mood, behaviour and affect during the Fitness to Drive Assessment". That was Dr Abeydeera's observation following a mental state examination. As we have said, Murrays Australia would not have refused to employ a person whose mental state examination revealed agitated, irritable and difficult behaviour unless that person was known to have a mental illness. If that fact was not known, it can be inferred that Mr Todd would have followed Dr Abeydeera's recommendation and requested that Mr Chalker undergo an independent assessment before making a decision.
Mr Chalker has proved, on the balance of probabilities, that Murrays Australia has discriminated against him on the ground of disability in determining who should be offered employment. The discriminatory treatment is the refusal to offer him a position in circumstances where the recommendation was for further investigations to take place.
[8]
Inherent requirements exception?
Murrays Australia relies on the "inherent requirements" defence in s 49D(4) of the Anti-Discrimination Act.
(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:
(a) would be unable to carry out the inherent requirements of the particular employment, or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
The Tribunal has held that the consideration of this defence will generally involve three steps: Green v Department of Family and Community Services [2013] NSWADT 193 at [119]. In this case, the first step is to identify the relevant inherent requirement of the position for which Mr Chalker applied. The second is to determine whether Murrays Australia has established that Mr Chalker could not perform those requirements because of his disability. The third step involves consideration of s 49D(4)(b) relating to unjustifiable hardship.
[9]
Identification of the inherent requirements of the position
An "inherent requirement" of a position is an "essential element of the particular employment": X v Commonwealth (1999) 200 CLR 177 at [31]. In that case, McHugh J went on to say in relation to the equivalent provision in s 15(4) of the Disability Discrimination Act 1997 (Cth) (repealed) :
[31] However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4). (footnotes omitted)
32.Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment.
The High Court has held that those requirements not only relate to the physical ability to carry out the job but also to the context in which the activities of the particular employment take place.
Murrays Australia's case was that Mr Chalker could not comply with the requirements to comply with reasonable requirements, behave with civility and propriety towards passengers and self-report any change in his mental or physical condition. Those requirements are set out in cll 47 and 35 of the Passenger Transport Regulation 2007 (NSW):
1. conduct of drivers cl 35 of Passenger Transport Regulation
35 Conduct of drivers
1) The driver of a public passenger vehicle must:
(a) behave in an orderly manner and with civility and propriety towards any passenger, intending passenger, driver of another public passenger vehicle or authorised officer, and
(b) comply with every reasonable requirement of an authorised officer or passenger.
1. duty to self-report any change in mental or physical condition: cl 47 of Passenger Transport Regulation 2007 (NSW)
(3) The driver of a public passenger vehicle must (in so far as the driver is capable of doing so) furnish RMS, within 48 hours after any change in the physical or mental condition of the driver of which the driver is aware that may affect the driver's ability to drive public passenger vehicles safely, with written details of the change.
The position profile obliges drivers to "report all health issues or other issues that may affect your fitness to drive, perform your duties and/or follow directives as instructed by management" and "follow policies, procedures and safety instructions all of which are contained within the Driver Manual, Drug and Alcohol Manual and Safe Work Method Statement all of which are located on the drivers' intranet found on computers on the drivers' work benches".
We find that each of these requirements is an inherent requirement of the job. It is also an inherent requirement that a person be able to drive a bus safely. We have referred to the 2012 medical standards at [30]. Murrays Australia did not rely on the defence that Mr Chalker would not be able to behave civilly towards passengers.
[10]
Is Mr Chalker unable to comply with these requirements because of his disability?
[11]
Reporting requirements
We have made findings about when and how Mr Chalker disclosed information about his mental illness and the medications he was taking.
Murrays Australia submitted that, because of his previous behaviour, Mr Chalker would not be able to comply with the requirement to self-report any changes to his medical condition to his employer or the licencing authority. In our view it cannot be inferred from Mr Chalker's delayed disclosure of his condition or the medications he was taking that he is unable to carry out any inherent requirement of the job. The requirement is that he report changes to his physical or mental condition that may affect his ability to drive public passenger vehicles safely. None of the findings we have made give rise to an inference that Mr Chalker would fail to report such changes.
[12]
Driving safely
Alternatively, Murrays Australia submitted that there is a risk that Mr Chalker would not be able to perform the role safely. That submissions was based on the Tribunal's conclusion in Green v Department of Family and Community Services [2013] NSWADT 193 at [136] - [138]. But the circumstances in that case were different. There was evidence that a medical practitioner had formed the view that Ms Green should not be employed except on shifts where a supervisor was present. Dr Abeydeera's recommendation in terms of Mr Chalker's fitness to drive was that he was "temporarily" unfit because he does not meet the medical criteria, pending further investigation. No-one at Immex or Murrays Australia came to a final view, based on medical evidence from a psychiatrist, as to his ability to comply with any inherent requirement of the position.
Even if it could be inferred from Mr Chalker's past behaviour that he would be unable to carry out an inherent requirement of the job, Murrays Australia acknowledged that there was insufficient medical evidence to determine whether any inability to comply is attributable to his disability. We agree with that concession.
Murrays Australia has not discharged their onus of proving that Mr Chalker could not perform any inherent requirement of the job because of his disability. In those circumstances it is not necessary whether s 49D(4)(b) relating to unjustifiable hardship, applies.
We find the complaint substantiated.
[13]
Remedy sought
Mr Chalker requested Murrays Australia to:
1. make a donation of $5,000 to the charity, beyondblue;
2. compensate him for lost wages from 21 September 2015 - 12 November 2015;
3. pay him $10,000 for pain and suffering; and
4. undertake that they will educate themselves on mental illness and ask more questions in the future.
[14]
Entitlement to relief
The Tribunal can order Murrays Australia to pay damages "not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct": Anti-Discrimination Act, s 108(2)(a). The Tribunal can also "order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant": s 108(2)(c). The Tribunal does not have power to order Murrays Australia to make a donation to another person or body.
[15]
Economic loss - lost wages
Mr Chalker claims $7,900 in lost wages for the 8 weeks that he was in Sydney applying for the job. He is not entitled to be compensated for any loss during this period because the loss must be suffered "by reason of the respondent's conduct". Murrays Australia decided not to employ Mr Chalker on 12 November 2015. Mr Chalker is not entitled to claim any compensation for lost wages before that date. He made no claim for lost wages after 12 November 2015.
[16]
Non-economic loss - pain and suffering
The Tribunal has power to compensate Mr Chalker for any distress, insult and injury to his feelings that the decision not to employ him has caused. He said he moved to NSW "to make a fresh start in a new city, but that for almost two months they strung me along with false assurances of employment while I chewed through savings". The "false assurances of employment" are a reference to Mr Todd saying, before the medical assessment, that given his history and experience, there would be a job for him. Ms Nasir, from the Human Resources area, also told Mr Chalker that she could not see any reason why he would not be offered a position.
These so-called "assurances" are not a basis on which Mr Chalker can claim compensation. Murrays Australia was entitled to refer Mr Chalker for a medical assessment before deciding whether to offer him employment. There was never any guarantee that Mr Chalker would be assessed as medically fit and offered a job. He is not entitled to compensation for any money he spent during the eight weeks he was in Sydney applying for the job. Nor is he entitled to be compensated for any "pain and suffering" during that period.
But Mr Chalker is entitled to be compensated for any distress and injury to his feelings that he suffered as a result of the discriminatory decision not to employ him. In Bonella v Wollongong City Council [2001] NSWADT 194 at [121] the Tribunal held that:
Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy". Any award of general damages in this case should include a component for the complainants' loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory manner. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages.
There is no statutory and very little judicial guidance as to the level of damages that are appropriate in anti-discrimination cases. Each case will depend on its facts. Where a person has been sexually harassed over an extended period and suffered significant psychological effects, awards have been made in the vicinity of $100,000: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. Awards as low as $2,000 have been made in cases of a single incident of racist abuse in public: Sidhu v Raptis [2012] FMCA 338.
No-one at Murrays Australia harassed Mr Chalker or treated him in a discriminatory way before Mr Todd decided, prematurely, not to employ him. Even so, Murrays Australia refused Mr Chalker employment because of a mental illness without adequately investigating the effect, if any, of that disability on his ability to do the job. While there was no medical evidence of the impact of the treatment on Mr Chalker, we accept that he felt indignant and hurt as a result of that treatment. He lost the opportunity to be considered for employment in a non-discriminatory manner. Mr Chalker has asked for $10,000 and we consider that to be an appropriate amount.
[17]
Orders
The complaint is substantiated.
Murrays Australia Pty Ltd is to pay Mr Chalker $10,000 within 14 days of the date of this decision.
[18]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 10 April 2017