Clarke v South Eastern Sydney Local Health District

The Respondent's response

1. The Respondent replied to the complaint in letters to the ADB of 26 August 2016 and 13 September 2016. The Respondent said:

• Ms Clarke and the SESLHD reached an agreement in the Industrial Relations Commission in the unfair dismissal proceedings. One of the terms of settlement was that Ms Clarke would resign her employment.
• Ms Clarke's resignation followed a prolonged performance improvement process at the RHW.
• Ms Clarke had not claimed to have a disability.
• During Fair Work Commission proceedings in June 2016, Ms Clarke did not mention discrimination on any grounds under the ADA. These proceedings had been dismissed.
• Ms Clarke's termination of employment from SESLHD was a result of her clinical practice issues which SESLHD considered posed too much risk to public health outcomes. SESLHD had a duty of care to patients.

1. The Respondent denied discriminating against the Complainant on the grounds of having a disability.

Declination of the complaint by President of ADB

1. On 27 October 2016, the Acting President of the ADB wrote to Ms Clarke advising that she had decided to decline the complaint under section 92 (1) of the ADA, because she was satisfied that it was lacking in substance. The reasons for the Acting President's decision were:

• Other than the mere assertion, the Complainant had failed to provide information in support of her allegation that she was dismissed from employment due to a disability she has or because of a disability the Respondent presumed she has.
• Information provided by both parties establishes issues were raised regarding Ms Clarke's clinical performance, which were investigated. Both parties agree that following an investigation of these matters, the Complainant was advised that her employment was terminated on the basis that her clinical practice was unsafe and presented an unacceptable risk to patients.
• The Respondent had provided reasons for terminating the Complainant's employment, which did not equate with discrimination.

The leave hearing

1. At the leave hearing on 28 February 2017, the parties provided oral submissions.
2. The Tribunal summarises the submissions made by both parties below.

Ms Clarke's submissions at leave hearing

1. Ms Clarke submitted that she stood by the information that had been provided to the board and the Tribunal in two bundles of documents that were before the Tribunal. She said that she was relying on sections 49A, 49B, 49C, 49D and 49E of the ADA. She said that she had been discriminated against on the grounds of a presumed disability. She referred to the procedure PD-270 under which she had been performance managed, which she asserted was only for nurses with an impairment.
2. Ms Clarke said that she never had a disability. After her workers compensation claim an injury management plan had been prepared for her, but she was denied the opportunity to return to work. She was left at home for six months and then a further nine months. She was then stood down. She has been subjected to both public and private conditions on her nursing registration.
3. Ms Clarke stated that she had suffered severe injustices at the workplace. She referred to the two forensic medicolegal assessments performed. Neither found that she had a disability.
4. She noted that the risk assessment was done when she was not at work on 30 December 2013. At this time she was on annual leave. There were no names on the documents. She had not seen the risk assessment until she commenced proceedings in the Industrial Relations Commission.
5. Ms Clarke said she had been treated differently to others. She had been assaulted and bullied and harassed. The appropriate policies and procedures had not been followed in her performance management. She had moved from working nights to working days and was isolated in the workplace. She had initiated her own plan of learning. She said she had not been aware herself whether she had a disability or not. She had been very stressed by the bullying and harassment. Management had withheld information from her.
6. Ms Clarke submitted that it was fair and just for her complaint to proceed.

Respondent's submissions

1. The Respondent submitted that the matter before the Tribunal related to performance assessment issues. The anti-discrimination jurisdiction was not the proper forum for the grievances that were being aired by Ms Clarke. The Respondent asserted that Ms Clarke had elected to resign because of the assessment that she was underperforming clinically.
2. The Respondent submitted that Ms Clarke had not articulated a complaint that met the requirements of the Anti-Discrimination Act, 1977. She had not set out a ground under the Act upon which she had been discriminated against, nor produced the appropriate evidence.
3. The Respondent submitted that the approach in considering leave applications was to take the Applicant's factual claim at its highest. Even if the Tribunal accepted Ms Clarke's account, putting her complaint at its highest, this did not add up to discrimination under the Act. Ms Kumar noted that the policy for performance assessment set out under PD_270 did not relate as Ms Clarke had contended, only to impaired nurses. It related to any staff member who was under performing.
4. The onus was on the Applicant to make out the basis of her complaint. The Applicant had failed to establish an appropriate comparator. It was not now fair and just for the Applicant to proceed with the complaint

The Tribunal's consideration of whether to grant leave

Principles for granting leave

1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J: ◦ (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates. Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the Acting President that it lacked substance.

What constitutes discrimination on the ground of disability? 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment: (a) for the purposes of a private household, or (b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or (c) by a private educational authority. (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

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

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

Establishing a complaint of presumed disability discrimination

1. To establish a complaint of presumed disability discrimination, the Applicant must be able to show that: a. she was treated less favourably than other persons (detriment); b. that the, or one of the, reasons for the less favourable treatment was her (presumed) disability (causation); and c. that a comparator (a person without the Applicant's disability) would have been treated more favourably in the circumstances and that the Respondent treated her less favourably because of her disability (See Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92 at [213] - [224]). (comparator)

Detriment

1. Ms Clarke's complaint identifies a detriment to her as being harassed and bullied and eventually dismissed from her employment.
2. The Tribunal is satisfied that this could fit within the relatively broad meaning of detriment set out in Coomaraswamy v University of New South Wales [2016] NSWCATAD 41.

Causation

1. The Tribunal understands that Ms Clarke's case is that she did not have a disability. Rather she was subjected to performance assessments because she was thought to be an impaired nurse or had a presumed disability.
2. In relation to causation, the Tribunal refers to the matters of Hayne v YMCA NSW [2016] NSWCATAD 14 at [17] which refers to the matter of Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. In those matters dealing with causation in direct discrimination matters, the issue is whether the protected reason (here [presumed] disability) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment.
3. The Tribunal notes that the protected attribute - presumed disability - need only be one of the reasons for the behaviour complained of under section 4A. Ms Clarke did not refer the Tribunal to any information or documents that referred to Ms Clarke as having an impairment as presumed by her employer.
4. The Tribunal notes that the President's report contains references to Ms Clarke being subject to 3 assessments of performance.
5. The Respondent has referred to public safety issues as being the reasons for its actions undertaking performance assessments of Ms Clarke and ultimately terminating her employment.

Taking the Complaint at its highest

1. In determining whether to grant leave to Ms Clarke to proceed with her complaint, the Tribunal takes the approach of accepting Ms Clarke's complaint at its highest. The complaint accepted for investigation by the Acting President of the ADB and ultimately declined, was that Ms Clarke had been discriminated against on the ground of disability in the termination of her employment in May 2015. There is no evidence before the Tribunal that Ms Clarke had a disability. Ms Clarke denies that she did. There is no evidence before the Tribunal that Ms Clarke's employer presumed that she had a disability or that her employment was terminated because of this presumed disability. The Tribunal considered the document PD-270 which was the procedure under which Ms Clarke said she was performance assessed. The document contains a definitions section which includes the definition of an "impaired nurse". The procedure was not however expressed to relate only to impaired nurses. The Respondent said it was used in relation to any nursing staff member who had performance deficits.
2. Accordingly, putting Ms Clarke's complaint at its highest, the material before the Tribunal does not provide evidence of disability or presumed disability as being the reason for her less favourable treatment - being subjected to performance assessment or having her employment terminated.
3. The Tribunal notes that the documents produced to the Tribunal included performance assessment forms which had been completed in relation to Ms Naicker (Clarke), which pointed to performance deficits. These performance deficits were referred to in the Respondent's letter to Ms Clarke of May 2015, advising that her employment had been terminated.
4. The Complainant has not put forward a case addressing the elements of a disability discrimination complaint. The Tribunal must be satisfied that it is fair and just in all the circumstances for Ms Clarke's complaint to proceed. In the circumstances, the Tribunal is not satisfied that it is fair and just for Ms Clarke's complaint against the Respondent of disability discrimination in employment to proceed.

Decision

1. The Tribunal refuses leave for Ms Clarke to proceed with her complaint, pursuant to section 96 of the ADA. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2017