Daghlian v Australian Postal Corporation

REASONS FOR JUDGMENT The nature of the claim for relief 1 The applicant, formerly an employee of the Australian Postal Corporation ('Australia Post'), commenced the subject proceedings, by application filed in this Court on 31 October 2001, for relief against unlawful disability discrimination by Australia Post in its capacity as her employer, pursuant to s 46PO of the Human Rights And Equal Opportunity Commission Act 1986 (as amended) ('HREOC Act'). It is common ground that Australia Post is a 'public authority of the Commonwealth' within s 4 of the Disability Discrimination Act 1992 (Cth) ('the DD Act'). The applicant claims that Australia Post has discriminated unlawfully against her as one of its employees, pursuant to its adoption of a workplace policy involving the banning of stools at the retail counters of its post offices, and its application of that policy to the employment circumstances of the applicant at the Manly Post Office. She seeks reinstatement of her former employment as a postal officer at the Manly Post Office with a suitable stool or chair provided to alleviate long periods of standing, reimbursement of lost income for the period from 27 February 2001, when her employment was terminated, to the date of the reinstatement of her employment, and reinstatement of annual leave and long service leave credits used by her since 27 February 2001. Additionally or alternatively, the applicant seeks orders in relation to economic loss, general damages arising from hurt and suffering, particularly in relation to her psychiatric condition, and an apology. 2 A substantial amount of oral and documentary evidence was tendered at the hearing, mainly by Australia Post. In order to gain sufficient understanding of the complex factual issues arising, it is necessary to provide a comprehensive review of the affidavit and viva voce evidence, and in a number of instances to extract the text or part of the text of the documentary material asserted to be of significance, particularly on the part of Australia Post, rearranged as far as practical in chronological sequence. The applicant's origins and her early years of employment by Australia Post at Manly Post Office, including her 1991 employment injury 3 The applicant was born in Egypt in the year 1944. Her father originated from northern Greece and her mother from Ukraine. She was well educated, and spent her youthful years in France, and from the age of 23 years, she lived in Israel. In 1973 the applicant married her present husband, a person of Armenian extraction emanating from a Christian tradition. She gave birth to two children, the eldest of whom was a daughter she never actually saw. The applicant travelled to Paris to give birth to her second child (a son) in 1982. She worked as a make-up artist for films, the theatre and television in Israel and France for about 20 years, before coming to Australia with her husband and son in 1989. She and her husband have lived in the Manly district of Sydney since that time. The applicant's husband is employed or else freelances as a rug salesman. The applicant's son is presently studying in France, with financial assistance from the applicant and presumably also from her husband, the cost of which is said to have been her main reason for seeking to maintain her employment with Australia Post until her previously anticipated retirement on her 63rd birthday (in 2007). The applicant commenced employment with Australia Post or the statutory precursor to Australia Post in July 1989 at the Manly Post Office, and in November 1989, she was appointed as a postal services officer at that Post Office. Her duties mainly involved the serving of members of the public at the retail counter, but also clerical duties at her desk located on her side of the counter, the latter taking up an hour or so of her daily working time. She ceased to attend work for Australia Post on 27 February 2001. 4 Apparently from the outset of her employment by Australia Post at the Manly Post Office, the applicant suffered from physical disabilities which inhibited her from standing for lengthy periods of time without interruption at the post office counter, being disabilities stemming from osteoarthritis of the lumbosacral spine, bilateral spurs of heels and varicose veins. As a consequence, her back was painful from time to time, but she said that she was able to bend or crouch down in a normal way 'all the time', though crouching tended to give her leg pain. What the applicant's counter duties partly involved was the acceptance of parcels from, and delivery of parcels to, members of the public in attendance at the retail counter, and conveying the same from that counter, per medium of a trolley, to the mail room in the Manly Post Office for further processing. When not in use, the trolley was parked against the back wall of the counter. The procedure for acceptance of parcels for dispatch included the weighing thereof on scales. Her other duties at the counter, as distinct from her desk, included selling stamps and cashing bills of exchange. It is unclear whether the latter activities occurred more often than the former, or vice versa. 5 Throughout her employment at Manly Post Office until a short time before her controversial dismissal, the applicant used what has been described as an 'antiquated' four legged stool, upon which she would sit in the course of performing her functions at the service counter. Stools had been traditionally available to employees as and when they wanted to use the same. There were normally at least two other employees of Australia Post also engaged in serving members of the public at the counter attended by the applicant, though the applicant also spoke of six people working at the counter, including herself. A desk at which she performed her clerical duties was located behind the counter. However as will be later explained, in the context of the evolution of post offices in Australia from public service traditions to modern retail outlets more orientated to the attraction of custom from members of the public, the lay-out of the applicant's workplace underwent significant change from about the year 1996, in the context of which the applicant's claims as to discrimination ultimately arose. 6 An injury to the applicant's back, which may have accelerated her degenerative back problems, occurred towards the end of 1991 whilst she was engaged at work at the Manly Post Office counter, and more specifically, in the course of 'putting parcels away'. From that time it appears that the applicant started to experience 'mild back pain… when lifting heavy parcels' (see report below). A report was made on 7 November 1991 by Dr Coucher of the Department of Health, Housing and Community Services (who did not testify orally in the proceedings) in relation to the applicant in the following terms: 'Current Complaint/Diagnosis: Degenerative changes. Lumbosacral spine. Lumbar back pain. HISTORY: 47 year old woman who has worked for 2˝ years as a Postal Officer. She noticed mild back pain over 6-8 weeks when lifting heavy parcels. On 21/10/1991 it became much worse and at lunch time went to see a doctor and went home. X-rays showed degenerative changes. Off for one week, then returned to work. By the end of the week, she had increased pain and visited Dr Galati who advised her not to lift for one month. She takes Digesics as needed. Pain is improving. She has had physiotherapy which was helpful. CLINICAL FINDINGS: Obese. Normal lumbar spine examination with normal reflexes. Full range of movement. She was mildly tender over L5/S1. RECOMMENDATION: