Desira v Airservices Australia

Amendments proposed by the further amended statement of claim 8 The amendments proposed by the further amended statement of claim relate to the applicant's claim under the DD Act. As summarised by Mr Murphy in his first affidavit, the applicant's claim under the DD Act is premised on events that occurred between September 2017 and June 2018. During that time, the applicant attempted to return to her employment at the respondent following a period of unpaid parental leave and sick leave while suffering from post-traumatic stress disorder and major depressive disorder (the disability). The existing claims against the respondent include claims of direct and indirect discrimination by the respondent against the applicant within the meaning of ss 5(2) and 6(2) of the DD Act by reason of the respondent's failure to make "reasonable adjustments". These allegations are contained in [206]-[214] of the amended statement of claim filed on 18 July 2019. 9 The proposed amendments add as follows to the "reasonable adjustments" which it is alleged the respondent failed to make: 214A. Further or alternatively to the allegations in paragraphs 206-214 above, on and from Ms Desira's return to work on or around 18 September 2018, the following were reasonable adjustments for Ms Desira, within the meaning of ss 4(1) and 5(1) of the DD Act, given her Disability: (a) stability and predictability in her return to work programme; and (b) providing adequate notice to Ms Desira of any changes to Ms Desira's return to work programme. 214B. Airservices was aware of the desirability of stability and predictability, and thus of providing adequate notice of any changes, from at least 29 November 2017. Particulars Airservices' awareness is to be inferred from: (a) Ms Lack's conversation with Ms Hainal on 29 November 2017: See Affidavit of Ariadne Lack affirmed on 20 April 2020 at [38]. (b) Ms Lack's conversation with Ms Hainal on 11 December 2017: See Affidavit of Ariadne Lack affirmed on 20 April 2020 at [41]. (c) Ms Lack's conversation with Ms Hainal on 9 January 2018: See Affidavit of Ariadne Lack affirmed on 20 April 2020 at [50]. (d) Ms Lack's email to Mr Hainal (and Mr Kaur) on 8 March 2018: See Ms Lack's conversation with Ms Hainal on 11 December 2017. See Affidavit of Ariadne Lack affirmed on 20 April 2020 at [89]. 214C. Airservices failed to implement Ms Desira's return to work programme in a stable and predictable manner, and did not provide adequate notice of any changes, in that it: (a) proposed to change Ms Desira's working hours; (b) introduced a permanent training partner into her programme; (c) did not commit to limiting Ms Desira's training partner to the partner they had introduced; (d) introduced male trainers into her training programme; (e) failed to advise Ms Desira's training partner of why she was on an individualised training program after saying they would do so; (f) agreed to permit Ms Desira to pause her training and then resiled from that agreement; and (g) placed Ms Desira on a Training Support Agreement. Particulars As to paragraph (a), see paragraphs 149(c), 151, 158, 163 and 192(d) of the FASOC. As to paragraph (b), see paragraphs 165 and 168 FASOC, and paragraph 330 of the affidavit of Melissa Desira. As to paragraph (c), see paragraph 335 of Melissa Desira and paragraphs 75 to 77 of the affidavit of Ariadne Lack. As to paragraph (d), see paragraphs 170 and 171 of the FASOC. As to paragraph (e), see paragraph 177 of the FASOC. As to paragraph (f), see paragraphs 173 and 175 of the FASOC. As to paragraph (g), see paragraph 172 of the FASOC. 214D. The failures pleaded in paragraph 214C had, or would have had, the effect that Ms Desira was, because of her Disability, treated less favourably than a person without the Disability would have been treated in circumstances that are not materially different, within the meaning of s 5(2) of the DD Act. 214E. In the premises, Airservices engaged in direct discrimination and contravened s 15(2)(a) and/or (d) of the DD Act. 214F. Further or alternatively, Airservices: (a) required Ms Desira to comply with her return to work programme; (b) because of her Disability, Ms Desira would comply or would be able to comply only if the programme were implemented in a stable and predictable manner, with adequate notice of any changes; and (c) the failure to make reasonable adjustments had, or was likely to have, the effect of disadvantaging persons with Ms Desira's Disability. 214G. In the premises, Airservices: (a) engaged in indirect discrimination within the meaning of s 6(2) of the DD Act; and (b) contravened s 15(2)(a) and/or (d) of the DD Act. (Proposed further reasonable adjustments claims)

Explanation for the delay 10 Mr Murphy in his first affidavit deposed that the proposed amendments arose directly from the affidavit of Ariadne Lack, which was filed on behalf of the applicant on 20 April 2020. Ms Lack was the applicant's treating psychologist from 29 November 2017 until 11 December 2018. Mr Murphy deposed that the proposed further reasonable adjustments claims "only became apparent in the course of preparing the Lack affidavit in April 2020" and that the "importance of the [Further] Reasonable Adjustments to the conduct of [the applicant's] failed return to work was not readily apparent prior to the preparation of the Lack affidavit". Mr Murphy explained that Ms Lack was not the applicant's treating psychologist at the time the pleadings were drafted and she was identified as a suitable witness after the commencement of proceedings, at the time that it became necessary to begin preparing the applicant's evidence. He also deposed that the further reasonable adjustments were "not articulated in the documents that the applicant had available to her at the time the proceeding was commenced". 11 In his second affidavit, Mr Murphy deposed that the applicant was not aware of "the discrete nature and importance of the Further Reasonable Adjustments" until around 16 April 2020, after Ms Lack's affidavit was significantly advanced. The proposed further amended statement of claim was emailed to the respondent's solicitors on 11 May 2020 after Mr Murphy received instructions from the applicant, which Mr Murphy deposed he received some time after filing Ms Lack's evidence on 20 April 2020 and prior to providing the respondent with the proposed further amended statement of claim on 11 May 2020. 12 I accept on the evidence that the delay in seeking to add the proposed further reasonable adjustments claims was not due to any deliberate or forensic decision to withhold making such claims until the last moment. I accept also that Mr Murphy only first appreciated there was an evidentiary basis to make the additional claims after Ms Lack's affidavit was substantially complete. However, I do not accept that Mr Murphy has provided a proper explanation for the lateness of the proposed amendments. It appeared from Mr Murphy's second affidavit that Mr Murphy first identified Ms Lack as a potential relevant witness in October 2019, yet no steps were taken by him to obtain an affidavit from Ms Lack until 10 March 2020. The time lag, which was unexplained, required explanation given that the proceeding had been set down for hearing to commence on 22 June 2020 back in October 2019 and pursuant to orders of the Court made in October 2019, the applicant's evidence was required to be filed and served by 6 April 2020. Senior counsel for the applicant submitted that the applicant's evidence was filed within the time ordered by the Court. That is so, but it is only so because an extension of two weeks was given to the applicant within which to file the evidence upon which she intends to rely. Had steps been taken at an earlier point in time to obtain the relevant evidence from Ms Lack, Mr Murphy would have been alerted earlier to the evidentiary basis for the further reasonable adjustments claims. In the circumstances, absent any explanation provided for the time lag between October 2019 and March 2020 in approaching Ms Lack, I do not accept that a proper explanation for the delay in applying for leave to file and serve amended pleadings has been given.

Prejudice to the respondent 13 The "significant" prejudice which the respondent claimed it would suffer if the amendments were allowed arose, it was said, because it is alleged in proposed paragraph 214B that the respondent's "awareness" of the "reasonable adjustments" alleged in proposed paragraph 214A is to be inferred from three conversations Ms Lack had with a Monica Hainal of Rehab Management (Aust) Pty Ltd (Rehab Management) and from an email from Ms Lack to Ms Hainal. It was submitted that: (a) the proposed pleading makes Ms Hainal a central witness, but she has not been called by the applicant; (b) expert evidence may need to be considered to determine whether the further reasonable adjustments could, or would, have had the impact that is pleaded; and (c) the allegation raises the question of whether the knowledge and conduct of Ms Hainal can or should be attributed to the respondent. This issue was said to require consideration of complex issues of attribution of knowledge and factual issues concerning the circumstances of the engagement of Ms Hainal. 14 These submissions do not withstand scrutiny. 15 Mr Murphy in his first affidavit deposed that "[the respondent] elected to engage and authorise Rehab Management as an approved rehabilitation program provider to provide a rehabilitation program for [the applicant] pursuant to Part 3 Division 3 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)". Ms Eylward, in her affidavit in opposition, deposed that "contrary to Mr Murphy's assertion", it was "presently not clear as to the precise relationship between the Respondent, Comcare and Rehab Management. This is currently being investigated by the Respondent. I am instructed that Comcare paid the invoice of Rehab Management". Ms Eylward further deposed that: To ascertain the precise nature of the engagement of Rehab Management as the rehabilitation provider for Ms Desira, I believe the Respondent would firstly have to undertake the following investigative steps or enquiries: (a) obtain a copy of the terms of engagement with Rehab Management (the Terms of Engagement); (b) request copies of all invoices rendered by Rehab Management under the Terms of Engagement; and (c) confirm the lines of reporting in relation to the Respondent, Rehab Management and Comcare. The steps or enquiries set out in (a)-(c) directly above have not been undertaken by the Respondent to date as the Applicant has not previously sought to include this as an issue in this matter. 16 I make two observations about that evidence. First, the draft list of issues which the respondent prepared by reference to the current pleadings (respondent's list of issues), as directed by the Court, identifies in relation to the applicant's extant reasonable adjustments claims that there is a legal and factual question as to whether discussions with Ms Hainal could constitute pressure being applied by the respondent (particulars to [207] of the amended statement of claim): see [32(a)] of the respondent's list of issues. In other words, it would appear that the question of whether the knowledge and conduct of Ms Hainal can or should be attributed to the respondent arises on the pleadings as they presently stand. 17 Secondly, Ms Eylward's affidavit was filed on 1 June 2020 in circumstances where the proposed further amended statement of claim was provided to the respondent's solicitors on 11 May 2020. It would appear from Ms Eylward's affidavit that she has commenced the task of undertaking the investigative steps or enquiries she identified would be necessary. Critically though, there is nothing in her affidavit to indicate that such steps and enquiries cannot be undertaken and completed prior to the commencement of the hearing. 18 Furthermore, although raised in the written submissions, Ms Eylward does not depose as to whether any consideration has been given as to the need for expert evidence, let alone to the necessity to obtain expert evidence, in respect of whether the further reasonable adjustments could, or would, have had the impact that is pleaded. Even if such expert evidence is needed, there is nothing in her affidavit to indicate that such expert evidence could not be obtained prior to trial. 19 Accordingly, I am not satisfied that the proposed amendments would prejudice, let alone "significantly" prejudice, the respondent if allowed.

Whether the proposed amendments are misconceived as a matter of law 20 There are two limbs to this argument. 21 First, it was argued that "the new causes of action go beyond the conduct included in the terminated complaint and is therefore impermissible having regard to the terms of s 46PO(3) of the Australian Human Rights Commission Act 1986". I disagree. Paragraph 15 of the applicant's complaint stated: Between September 2017 and June 2018, the Applicant attended work under a return to work program. The Applicant's attendance at work was subject to a range of medical restrictions. These restrictions were communicated to the Respondent variously through: (a) the Applicant's return to work plans; (b) direct correspondence (oral and written) from the Applicant's treating doctors; and (c) workplace safety plans and injury management action plans, prepared by or in conjunction with the Applicant's treating psychologist. 22 As the authorities show, there can be some flexibility in the pleadings of facts, compared with facts alleged in the complaint which was before the Commission. In Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 (Dye) at [44], the Full Court said: The precise time or circumstances of some particular occasion of unlawful discrimination that he or she allegedly suffered before the complaint was begun or terminated can be the subject of representative proceedings despite the representative party being unaware of those matters when the complaint was before the Commission. That is why s 46PO(3) is drawn in sufficiently wide terms to enable proceedings to be brought in respect of some conduct other than that described in the complaint before the Commission. In Payne v Long [2019] FCA 1765 at [75], Perry J said, referring to Dye: … the Full Court then continued, "the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination" (Dye at [47] (the Court)). In this regard, while different facts may be alleged by an applicant in court proceedings from those alleged in the terminated complaint, those new facts must not differ in substance from those formerly alleged (ibid). Furthermore, the terms of a complaint made to the Commission should not be read subject to the same strictures as apply to a pleading in a court, given that s 46PR of the AHRC Act requires that the Court is "not bound by technicalities or legal forms"… In the present case, the proposed amendments do not differ in substance from the conduct alleged in the terminated complaint. 23 The second limb concerns alleged defects in the proposed amendments. 24 It was submitted that the direct discrimination claim pleaded in proposed paragraphs 214A-214E suffers from the following defects: (a) The matters identified at proposed paragraph 214A(a) and (b) do not answer the statutory description of "reasonable adjustments" because: i. both concepts of "stability and predictability" and "adequate notice" involve qualifying adjectives and lack the necessary precision. ii. They do not involve adjustments to Ms Desira's work environment. (b) the Applicant does not properly plead causation, i.e. that the discrimination was by reason of Ms Desira's disability. It is not sufficient to assert that something is a reasonable adjustment and allege, without more, that it was not provided. (c) paragraph 214A refers to and relies upon section 5(1) of the DDA, whilst simultaneously invoking reasonable adjustments (under section 5(2) of the DDA). Similarly, section 21E [sic] invokes both section 15(2)(a) and 15(2)(d), although only section 15(2)(d) has been invoked. Ultimately, no detriment is identified for the purposes of section 15(2)(d) in the pleading. The failure to provide a reasonable adjustment cannot itself be the detriment. (footnotes omitted) 25 It was submitted that the indirect discrimination claim (set out in proposed paragraphs 214F-214G of the proposed further amended statement of claim) had the same issues as it relates the identification of reasonable adjustments. However, the respondent submitted that the indirect discrimination claim depended on requirements which are alleged to have been directly relevant to the applicant, for example the requirement to comply with her own return to work program. It was submitted the matters pleaded lack the characteristics of facial neutrality and could not succeed.

Direct discrimination claim 26 I accept that the concepts of "stability and predictability" and "adequate notice" are insufficiently precise to elucidate with clarity how s 5(2) of the DD Act is engaged and particulars are required to provide that clarity. 27 However, I do not accept the contention that the proposed pleadings do not involve "adjustments" to the applicant's work environment. The word "adjustment" is not defined by the DD Act and is to be given its ordinary meaning as "an alteration or modification": Watts v Australian Postal Corporation [2014] FCA 370; 222 FCR 220 (Watts) at 228 [22]. As senior counsel for the applicant submitted, proposed paragraph 214A must be read in conjunction with proposed paragraphs 214B through to 214E. As Mortimer J cautioned in Watts at 228 [23], there is no reason in the text, context or purpose of s 5(2), read with s 4 of the DD Act and within the DD Act as a whole, to construe the word "adjustment" in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. When read together, I consider it is sufficiently arguable that the "reasonable adjustments" pleaded are capable of constituting "adjustments" within the terms of s 5(2) of the DD Act as they arguably involve alterations or modifications for the applicant to enable her to perform her work. 28 I also consider that the causation element is sufficiently pleaded to put the respondent on notice as to how the applicant puts its case on causation. Section 5(2) of the DD Act provides that a failure by a purported discriminator to make a "reasonable adjustment" because of an aggrieved person's disability may, in itself, constitute direct discrimination. The definition of direct discrimination contained in s 5(2) informs the operative prohibition contained in s 15(2), namely it is unlawful for an employer or person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability, relevantly in the terms or conditions of employment that the employer affords the employee (sub-s 2(a)) or by subjecting the employee to any other detriment (sub-s 2(d)). Whilst proposed paragraph 214D merely repeats the statutory language of s 5(2) of the DD Act, that paragraph read in conjunction with proposed paragraph 214C does, in my view, sufficiently plead and identify the causative nexus relied on by the applicant between the alleged failures to provide the further reasonable adjustments and the effect that the applicant was treated less favourably because of her disability. 29 Finally, I reject the submission that no detriment is identified for the purposes of s 15(2)(d). Proposed paragraphs 214D and 214E (in respect of the direct discrimination claim) and 214F(c) (in respect of the indirect discrimination claim), combined with [215] of the amended statement of claim as it presently stands, identify the detriment. Whether, as the respondent argued, such detriment amounts to a "detriment" within the ambit of s 15(2)(d) is not a pleading point but a question of law and fact, which is a matter for trial.

Indirect discrimination claim 30 The applicant's short answer to the respondent's additional submission in respect of the indirect discrimination claim - namely, that the claim depended upon requirements which are alleged to have been directly relevant to the applicant - was that the evidence will establish at trial that the requirements pleaded at [213(a)] were not imposed only upon, or relevant only to, the applicant's return to work program and thus the respondent's complaint in respect of the indirect disability claim at [47] of its submissions is misconceived. Whether that is so or not is a matter for trial, and not a matter to be dealt with summarily in this application.

Adjournment Application 31 Finally, it was argued for the applicant that the trial, in any event, should be adjourned for the reasons explained by Mr Murphy in his second affidavit. In that affidavit, Mr Murphy deposed that since the case management hearing on 21 May 2020, during which counsel for both parties submitted that the trial date should be maintained despite the necessity of conducting the hearing using the videoconferencing platform Microsoft Teams, the respondent had brought into existence a number of new factual and legal disputes which were not apparent to the applicant's solicitors on 21 May 2020. The first relates to the report of Dr Wendy Roberts. This is an expert report which was filed and served on 25 May 2020, one week late. The report is lengthy and Mr Murphy deposed that it "brings into dispute subpoenaed material of over 900 pages" and that "[i]t is now necessary for the Applicant to file both lay and expert evidence in response to the Dr Roberts Report". At this late stage, the assertion is an insufficient basis upon which to conclude that any adjournment would be required for that purpose. Mr Murphy has not identified what would be involved in obtaining the further evidence, whether steps have been undertaken to commence that process, and, critically, whether such evidence could, or could not, be obtained in time for the hearing. 32 The second lot of new material relates to a subpoena to produce to the Transport Accident Commission (TAC), which was returnable on 3 June 2020. The TAC produced 999 pages in response to the subpoena. It was submitted that the trial will require management of a significantly greater number of documents, which raises further logistical issues for an electronic hearing, including the conduct of cross-examination. That may or may not be so depending upon whether, and how, those documents are sought to be relied upon. In any event, they are matters that can be dealt with and managed during the currency of the proceeding and at present it is not apparent that document management would pose such a logistical difficulty that the trial should be adjourned for that reason: see eg Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Capic) at [20]. 33 Finally, it was submitted the list of issues has raised new and important factual and legal issues in dispute that the applicant did not understand previously to be disputed. Mr Murphy referred to [12] of the respondent's list of issues, which states that there is a factual dispute as to whether Mr Foster's conduct was unwelcome to the applicant prior to 7 November 2016, and that the respondent only accepts that Mr Foster's conduct on 7 November 2016 was unwelcome. Mr Murphy deposed that this put in dispute the "vast majority" of the applicant's allegations of sexual harassment. Mr Murphy alleged that the applicant was not previously on notice through the pleadings or the evidence filed in this matter that there was a factual dispute as to whether Mr Foster engaged in an extensive course of sexual harassment between July 2016 and 10 November 2016, as alleged by the applicant. The relevant pleading in the respondent's defence, filed on 1 July 2019, at [101(d)] is that: … the Respondent… does not know and cannot admit whether all of the conduct of a sexual nature in relation to the Applicant was unwelcome at the time, but accepts that Mr Foster's conduct towards her was unwelcome on occasions… 34 Reference was also made to [48] of the respondent's list of issues, which states there is a dispute about "whether the cause of the Applicant's [post-traumatic stress disorder] was any of the conduct of Mr Foster that this Court finds to have been a breach of the SDA". Again, it was said, the applicant was not previously on notice through the pleadings or the evidence filed in this matter about such a dispute. 35 Neither matter can properly be described as new but more particularly, it is not put by the applicant that any additional evidence will need to be adduced from or on behalf of the applicant, nor has it been put by the respondent that the trial cannot be completed within the five days allocated in view of the factual and legal issues which have emerged from the list of issues. The Court would expect either party to have informed the Court of that possibility forthwith upon forming the view that the length of the trial is likely to be much longer than the estimate given. In the circumstances I see no warrant for the adjourning the trial. 36 At the conclusion of the hearing of these applications, senior counsel for the applicant also put the submission, contrary to the submission advanced at the case management hearing on 21 May 2020, that this case was not a suitable case to be conducted by video link because credit will be an issue and because of the volume of documents involved. At the case management hearing on 21 May 2020 both parties, knowing that credit would be an issue, were eager for the case to proceed nonetheless and eager not to lose the hearing date, notwithstanding it would mean that the hearing could not proceed as a face-to-face trial but would need to proceed through the video link facilities due to the current COVID-19 arrangements. As noted above, management of documents is a matter that can be accommodated and does not justify adjourning the hearing. Credit issues are a real and significant consideration in the appropriateness of proceeding by video link facilities. Whilst I acknowledge the difficulties attending cross-examination of witnesses by video link, this hurdle has not proved insurmountable in other cases conducted by video link by this Court during the COVID-19 pandemic and it does not follow that it is necessary to adjourn the hearing: Capic at [19]. Furthermore, in view of the previous position taken by the applicant, I would need to be satisfied that the change of heart has a proper basis. As the submission was put without either elucidation or explanation for the change of heart, I am not so satisfied. 37 In light of the above considerations and the overarching purpose in s 37M of the FCA Act, I am not persuaded that the hearing listed for 22 June 2020 should be adjourned.

Conclusion 38 Although I am of the view that the applicant has not provided a proper explanation for the lateness of the amendments, I am also not persuaded that the trial date would be affected if the amendments were made, nor that the respondent would suffer substantial prejudice by the amendments if the trial date was kept. As I also consider that the proposed amendments contain sufficiently pleaded claims, I would allow the amendments, with an order requiring particulars to be provided to proposed paragraph 214A. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.