60 As to the inadequacy of reasons argument, it can not be said that the reasoning process of the primary Judge in the present case was not revealed to the appellate court. The primary Judge formed the view that the appellant had been confused about the content of discussions and when and if such content occurred. It is clear that he formed the view that her confusion was so substantial and arose throughout her evidence such that her evidence was not fully reliable. This is not a conclusion that she was untruthful, deliberately or otherwise, rather that she was simply confused.
61 More importantly, the actual reasoning leading to that conclusion is revealed in the detailed analysis of the evidence when, by reference to each of the succession of claims the appellant made, the primary Judge concluded (as foreshadowed and explained at the outset), that where her evidence differed from others, he preferred the evidence of others - often in any event supported by objective records. He therefore did explain why her evidence on some points was rejected. It was due to a conclusion that she was generally confused. That impression was supported when he descended to detail to explain, claim by claim, why that was so. Short of commenting on her demeanour, which taken alone has now repeatedly been doubted as a particularly reliable tool for determining credit, there is little more the primary Judge could have said on this topic.
62 Further, as we have noted, the finding of confusion is entirely consistent with a primary thrust of the appellant's plausible argument in the appeal to the effect that it is difficult to absorb all the information in a conversation which is partly a conventional oral conversation and partly a conversation interpreted by Auslan.
63 In further support of ground 7 (failure to give proper consideration to the effect on the appellant of having to rely on Auslan), reliance was placed on Re Osman [1996] 1 WLR 1327 in which it was held that a juror who was profoundly deaf and unable to follow without a sign language interpreter could not act effectively as a juror. The presence of such a person would cause an incurable irregularity. Reliance was also placed on Tomasevic v Travaglini (2007) 17 VR 100 (at [66]) where the Court said (footnotes omitted):
Picture in your mind a deaf mute, sitting vulnerably in court while his case is being argued. The trial judge exercises his judicial discretion to direct that counsels' submissions not be interpreted. As any artist will tell you, things are very clear at the extremes. The Court of Appeal of New South Wales saw the injustice of this situation very clearly and ruled that the trial judge's discretion had miscarried. In doing so, nearly 20 years ago, Kirby P and Samuels and Clarke JJA took into account the human rights specified in the International Covenant on Civil and Political Rights to which Australia is a party, including equality before the law and access to justice, and their offspring, the right to have an interpreter.
64 Of course, this authority goes to the need for an interpreter in Court which the appellant had both at trial and before us. Beyond this, it is difficult to appreciate the consequence of the criticism levelled at the primary Judge, even assuming the criticism to be valid. Having concluded that the reasons of the primary Judge were sufficient, it is neither open nor possible for this Court to conclude that the primary Judge failed to take into account the impact on the appellant of her deafness. There was ample material before his Honour to reinforce the deeply isolating nature of the appellant's condition.
65 Coupled with the inadequate reasons argument was a submission that findings of confusion on the part of the appellant would not necessarily permit the overall rejection of the evidence of the witness (Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [25]).
66 This latter submission is correct. It would be entirely appropriate and not unusual for a judge to accept some elements of a witness's evidence while finding the witness confused in relation to other aspects of it. Indeed, as noted, the primary Judge did accept substantial portions of the evidence of the appellant but, to the extent that the account she gave differed from the account given by others, his Honour accepted the account of other witnesses due to his finding that the appellant was confused in her recollection about much of the evidence. As has already been noted, this was not expressed as a finding that the appellant was deliberately untruthful.
67 As to ground 8, (failure to identify the confusion), the point has already been made that the detailed examination of the appellant's case, claim by claim, made clear that his Honour, in rejecting the claims, considered that the appellant was confused.
68 None of these grounds of appeal was made out.
69 Appeal ground 18 contended that the primary Judge failed to have any or any proper regard to the uncontested evidence of Professor Jan Branson. Professor Branson was the Director of the National Institute for Deaf Studies and Sign Language Research at La Trobe University. She explained the qualifications and experience required to become an Auslan interpreter and confirmed that, without formal interpreting qualifications, there can be no assurance that an individual interpreter is competent. She made the point that the deaf community is a cultural linguistic minority group. Deaf people have been denied their rights to interact in society for decades; and have limited access to schooling, healthcare, courts and so on. Every task which requires a communication exchange must be planned ahead. They cannot just walk down to the local police station and make a report or drop in at a health centre. They tend not to assert their rights, because it is simply too difficult. Deaf people do not have 'local' language of the majority and therefore lack confidence. Those denied real knowledge of how society works, lose the ability to be assertive - to do the normal things people do to live a fulfilling life. They tend to step back because it is easier.
70 Professor Branson explained that:
- When deaf people do assert their needs, they are often seen as aggressive, even if what they are asking for is quite reasonable. An example of this is the women's movement - women who wanted to vote were seen as demanding and aggressive but what they were asking for was very reasonable. The Deaf Community's treatment at the hands of hearing people has been similar to that of other minority groups. They have been forced to abandon their language, and indeed punished for their language.
- In schools, or in the workforce, deaf persons can often be isolated amongst hearing people. They are often alienated depending on whom they work with. If the environment is not inclusive, deaf persons do not even receive enough information to know what is going on at a basic level, and are therefore very unsure. Due to using a different language, they are rarely confident that they know what is happening in their environment. They do not hear the chatter in the tea room where all sorts of information are exchanged. They often are not given full information, because, if there is no interpreter, written down information is always abbreviated - only the important points are conveyed. In this environment deaf person's will feel isolated and alienated. It is the environment that excludes the deaf person and defines them as different or ignorant.
- All the above leads to deaf people rarely being able to express their own needs in the same way as a hearing person.
- On the rare occasion where the need to acquire information or service has reached a point where a deaf person is frustrated enough to articulate the need, he or she may be viewed as assertive and aggressive - often because such a request may have been 'on hold' for quite some time while the deaf person summons the courage to make the request. In addition, they can be misunderstood due to another person's lack of familiarity with their language - in the case of Auslan for example, due to the use of facial expression.
71 For the appellant it was contended that the evidence of Professor Branson established that continuous interpretation by a competent Auslan interpreter assures a reasonable quality of interpreting. The evidence was that, if proceedings of a staff meeting including discussions, instructions and exchanges were not adequately interpreted but were grotesque, incomplete or inadequate or did not otherwise contain the entire meeting, there was a substantial risk of counter-productivity. The evidence was that, if interpretation was not precise as when it was only by way of summary, then it would fail to convey the full content of what was said.
72 All this accepted, once again, the question is where these observations can take the appellant in her argument. The primary Judge did not reject any of this evidence. While his Honour gave this aspect of the appellant's case less weight than the appellant may wish, there is no reason to conclude that the primary Judge did not take into account the evidence of Professor Branson in light of the fact that his Honour made an express finding that the appellant was unable to comply with the requirement that she attend training and staff meetings, without a qualified interpreter. That is the very point that Professor Branson was making. What the primary Judge went on to consider, however, was whether in all the circumstances of her particular employment, this was unreasonable so as to constitute a contravention of the Act. Ground 18 is not made out.
73 Ground 19 of the appeal contended that the primary Judge erred in the conclusions reached as to the reasonableness of the steps which the appellant contended should have been taken to address her disability. Clearly this was a central issue. Particular focus was placed on the conclusion of the primary Judge, that the appellant failed to press her case sufficiently for the provision of aides and interpreters. This conclusion was said to be erroneous. It was argued that the conclusion that provision of a TTY was not a 'burning issue' was incorrect. The appellant argued that compliance with the legislation was the respondent's obligation, not the appellant's. Further, it was claimed that the primary Judge failed to record in his reasons all of the occasions on which requests were made notwithstanding the fact that these had been listed in the appellant's submissions.
74 In oral submissions the appellant argued that the test of reasonableness is an objective one which requires the Court to weigh the nature and extent of the discriminatory effect on the one hand against the reasons advanced in favour of imposition of the condition or requirement on the other.
75 In Catholic Education Office v Clarke (2004) 138 FCR 121 Sackville and Stone JJ said (at [115]):
115 The appellants did not submit that the primary judge had erred in stating the principles to be applied when determining whether a requirement or condition is not reasonable having regard to the circumstances of the case (DD Act, s 6(b)). As his Honour remarked, the principles are now well settled: see Victoria v Schou (2004) 8 VR 120, per Phillips JA (with whom Buchanan JA agreed). They include the following:
(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, at 111, per Sackville J (with whom Davies and Beaumont JJ agreed), and the authorities cited there;
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263, per Bowen CJ and Gummow J; Waters v Public Transport Commission, per Dawson and Toohey JJ; at 383, per Deane J. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74, at 82-83, per Lockhart J.
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62, per Heerey J; Commonwealth Bank v HREOC, per Sackville J; and
(iv) The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, per Beaumont J; Victoria v Schou (2004) 8 VR 120, per Phillips JA.
76 On application of these principles, can it be said that it was wrong to conclude the appellant had not established that the requirement was reasonable or not unreasonable? On weighing the nature and extent of the discriminatory effect on the one hand against reasons advanced on the other, the primary Judge took into account the relatively occasional nature of the appellant's presence in the work place, the availability of other communication measures and the cost of providing the appellant's preferred communication facilities compared with what she was paid. What she was paid was another way of considering the proportion of any given week that she was in the workplace.
77 The appellant, however, takes issue with the submission for the respondent that she was employed for 12 to 15 hours per fortnight together with some additional hours on top of that core requirement such that her presence in the workplace was only occasional, not permanent.
78 However, neither the primary Judge nor the respondent suggested the 'occasional presence' meant that taking into account the appellant's needs could be totally disregarded. Rather, the limited extent and nature of the employment was a matter to be taken into account in weighing the competing considerations.
79 As a matter of principle, the appellant contends that this leads to completely unsatisfactory results, encouraging employees to treat casual or part-time or occasional disabled workers as expendable or of no consequence.
80 This submission can not be accepted. It was entirely appropriate for the primary Judge to accept the respondent's argument on this point. Indeed it would have been unusual not to take into account the fact that the presence of the appellant was occasional only. But it is just one factor to be weighed with many others. The argument has not been put, nor would it be open, that the primary Judge gave too much weight to this factor. It was simply one consideration, but one that was not unimportant. This ground is not made out.
81 Appeal ground 17 asserts that the primary Judge, by numerous references to staff members interpreting for the appellant, demonstrated a pervasive failing to understand the significance of the role of interpreting. In support of this ground, reference was made to evidence that the appellant could not fully understand the 'interpreting' of staff members and she was not satisfied or happy with staff members interpreting for her. Reliance was placed on the uncontested evidence of Professor Branson that this form of assistance was of little use to the appellant and it was argued that the trial judge failed to recognise that qualified interpreters were able to provide the appellant with effective communication access but that the staff trained to Auslan level 1 or level 2 were incapable of providing such access. As with the majority of the grounds of appeal, this ground seeks to press for a conclusion that a different factual finding should have been made. Yet it does not identify any error in process or principle other than the outcome. Moreover, in substance this ground does no more than repeat ground 18 which has been rejected. So, too, must this ground be rejected.
82 As to ground 16, complaint was made that the primary Judge failed to have regard to evidence that interpreters could have been arranged or provided for the appellant at little or no cost. This evidence was said to be that the Victorian Deaf Society would obtain funding for the respondent for free interpreting services whereas there was no evidence that the respondent at any time investigated the existence of funding to assist in interpreting costs. It is unnecessary to repeat the detail of the findings but the availability of this offer of service was considered at least in passing in the course of general consideration of this topic by the primary Judge (at [63]-[69]). In favour of the appellant, his Honour concluded that the requirement had been imposed. But against the appellant he concluded (at [80]) that she had not shown it to be an unreasonable requirement. We were taken to no evidence to support the assertion made in this ground of appeal, nor does it appear that the proposition was advanced in the 88 pages of written submissions and tables filed by the appellant following the trial. It cannot be said that the primary Judge erred in failing to consider a submission which was not clearly put to him, even assuming there was a foundation for it in admissible evidence to which we have not been taken. This ground cannot succeed.
83 Counsel for the appellant in argument then shifted back to ground 2 of the grounds of appeal which was to the effect that the primary Judge had erred in failing to give proper consideration to the totality of the evidence concerning the 23 July 2003 meeting. This ground was argued collectively with grounds 3, 4 and 5. Respectively, they were, first (ground 3) that the conclusions of the primary Judge concerning the appellant's evidence about the 23 July 2003 meeting were not open or were not attended by any or any sufficient reasons. The next (ground 4), was that the primary Judge had failed to carry out any proper analysis of, or give proper consideration to, the effect of Ms Van Opijnen's evidence concerning the initial meeting and, in particular, had failed to take into consideration Ms Van Opijnen's evidence as to the general practice when consulting with the prospective employers of deaf clients. Ground 5 was that the primary Judge had erred in failing to have proper regard to the circumstances of the appellant's having attended the initial meeting with an Auslan interpreter whose services were used by both the appellant and the respondent and the primary Judge should have drawn appropriate inferences.
84 The appellant argued that the primary Judge had failed to appreciate that there was no inconsistency between the evidence of the appellant that the provision of equipment was discussed at this meeting and the evidence of Ms Van Opijnen. Presumably this implies that Ms Van Opijnen did corroborate the appellant's evidence. We were not taken to any detail in the evidence to support this argument but it is clear that there was objective evidence against it in the form of Ms Van Opijnen's almost contemporaneous notes.
85 There is no basis on which this Court can draw an inference that the provision of equipment was discussed at this meeting. Indeed the probabilities that the need for provision of equipment was discussed at this meeting would not seem great. As with many of the arguments advanced in the appeal, this contention overlooks the basis on which the appellant was engaged following the initial meeting. What was being offered to the appellant, and what she was offering in return, was to work on a voluntary basis for one hour per week on a Saturday.
86 Given those circumstances, it is difficult to see how it would have been essential to provide the appellant with the sorts of equipment which might otherwise have been reasonable or necessary had she been engaged in more demanding employment for a longer period of time and on a paid basis with understandably higher reciprocal expectations and obligations. There is no basis upon which the primary Judge was bound to infer that the facilities and assistance which the appellant now asserts were essential to her in the workplace were obviously so, particularly at the time of the initial meeting.
87 It would be inappropriate to disregard completely the fact that the appellant was, in a relative sense, only an occasional presence in the workplace rather than a permanent employee. That factor would not justify discrimination but it is a factor which may be taken into account in assessing both the arguments the appellant advanced as to what she needed to perform her tasks and, as importantly, the reasonable balance which has to be struck when that issue is raised.
88 The other submission of the appellant in relation to the initial meeting appears to be that, even if the primary Judge concluded that the appellant's needs in the workplace were not discussed at that meeting, he should, notwithstanding such a finding, nevertheless have drawn the obvious inference that as a profoundly deaf person the appellant required interpreters for meetings and training and required assistance, such as the provision of a TTY, for any activity relying on hearing. In substance this contention only repeats the earlier grounds of appeal which have failed. So also must this ground fail.
89 The second grouping of grounds of appeal advanced in oral argument were described as the 'applicable tests' group.
90 Under this group, the appellant commenced with ground 9 of the grounds of appeal which contends that the primary Judge erred in holding that the Act did not impose an affirmative obligation on the respondent as an employer to provide aides for the appellant as an employee. It is said that the primary Judge misapplied s 15(4) of the Act as the respondent did not claim unjustifiable hardship in relation to the purchase of aides and accordingly the appellant was entitled to succeed on her claim which was put, relevantly, under s 6 of the Act.
91 The same ground was advanced before the primary Judge. However, to suggest that his Honour reached a conclusion which was based on 'unjustifiable hardship' where it appears in s 15(4) of the Act is to misconstrue his reasoning. The only two references to unjustifiable hardship made by the primary Judge were at [15] and [54]. At [15] his Honour said:
Section 15(4) of the Act provides protection for employers when hiring or dismissing a disabled person. The Act does not impose an affirmative obligation on an employer to provide aids to a disabled employee. In contrast to the position in the United States, if an employee asks for accommodation or additional services or facilities in order to be able to perform their employment the Act does not impose an obligation to provide "reasonable accommodations". Rather, the Act provides that when determining whether to hire a prospective employee or dismiss a current employee it is important to assess whether the disabled employee can carry out the "inherent requirements" of the particular employment and whether additional "services or facilities" would enable the person to meet these inherent requirements becomes relevant: see s 15(4)(a) of the Act. Discrimination towards an employee is not unlawful if providing the additional services or facilities would impose "an unjustifiable hardship on the employer": see s 15(4)(b) of the Act.
92 Subsequently, when his Honour was dealing with the appellant's contention (not the respondent's contention) that the requirement or condition was not reasonable in all the circumstances, a reference was made by the primary Judge to unjustifiable hardship in the context of the appellant's submission (at [55]) where his Honour said the following:
Similarly, [the appellant] has not demonstrated that the requirement was unreasonable in all the circumstances. Her counsel placed considerable emphasis on [the respondent's] failure to plead reliance on s 15(4) of the Act. However, the onus is on [the appellant] to demonstrate that the requirement or condition was one which was not reasonable in all the circumstances. At the time, [the appellant] was working approximately 15 hours per fortnight. It is also reasonable to infer that answering the door was incidental to the performance of her duties as a Disability Support Worker. In addition, [the respondent's] policy was to not have staff members alone at the Bungower Road CRU at any time. Given [the appellant's] hours, the policy that staff members not work alone at any time and the incidental nature of the task, [the respondent's] imposition of the requirement or condition that [the appellant] carry out her employment without the aid of flashing lights was reasonable.
93 The primary Judge did not apply s 15(4) of the Act at all and, accordingly, did not misapply it. What he considered was the appellant's own argument based on an unproven comparison of the cost of interpreters with the respondent's budget. This ground of appeal cannot be accepted.
94 The next ground of appeal which was pursued under the general topic of applicable tests was ground 11. The ground was that the primary Judge had erred in law in failing to have regard to or, alternatively, in misinterpreting the provisions of s 15(2) of the Act. Reference was made to [25]-[27] of the primary judgment where his Honour said:
[25] [The respondent] submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. [The appellant] contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply "cope" by attending some of the required training sessions and staff meetings and access the information through written English. [The appellant] alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for [the appellant] argues that [the respondent's] submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment.
[26] There are significant difficulties with the case as formulated by [the appellant], in particular the emphasis on her ability to "access her employment". Employment in that sense is ultimately the range of duties performed in the employee - employer relationship and it is not analogous to access to education, services or facilities. [The appellant's] emphasis on "access" to her employment is also not reflected in the wording of the Act which speaks only of employment and its terms and conditions. The notion of "access" to employment in the Act only arises in relation to access to the benefits associated with employment and not employment per se. The question posed by the Act is whether an employee has been subject to indirect discrimination in their employment. It is unhelpful to rely, as [the appellant] does, on an entitlement to "access" employment.
[27] The present case is not an education or a services case. Ultimately, whether a "requirement or condition" has been imposed is a question of fact. The Act defines discrimination and provides for specific contexts in which such discrimination is prohibited; including in employment, education, access to premises, goods, services and facilities. Each context is treated separately in the Act and raises different issues for consideration. In this respect, the "education cases" relied on by [the appellant] are of limited assistance.
95 The appellant submits that the primary Judge failed to understand and apply the 'commonality of aspects' of training and professional development in the workplace that are analogous to a student's acquisition of knowledge in an educational setting as discussed in Hurst. This argument was not easy to follow. The primary Judge cautioned against necessarily transporting a conclusion from an educational context to an employment context as each is treated separately in the Act and raises different issues for consideration. One obvious distinction is that the appellant, as an employee and unlike a student, was paid over a number of years for the performance of her tasks required by her employment. We are not satisfied that his Honour erred in any respect in the passage from his reasons on which reliance is placed for the purpose of this ground. This ground cannot succeed.
96 Under this topic the appellant also pursued ground 15 of the grounds of appeal which was to the effect that the primary Judge had erred in his approach to the selection of relevant comparators for each of the categories of direct discrimination. In particular, the argument was that the error arose from the fact that 'actions', as distinct from 'attributes', were regarded as being relevant. It was said that the primary Judge (at [38]) described the act of applying for shifts in advertised positions and an inability to commit to vacant shifts as 'attributes'. The appellant argued that an attribute is a 'quality' or 'characteristic' of a person and that an action or inaction cannot be an attribute. What his Honour said (at [38]) had nothing to do with this issue.
97 No other submission was made to support the ground. It is apparent that his Honour was of the view that the appellant did not want to apply for vacant shifts and gave no plausible reason for this. The ground of appeal cannot succeed.
98 Also under this topic, the appellant argued (ground 22 of the grounds of appeal) to the effect that the primary Judge had erred in law by confusing the legislative concept of 'detriment' with what his Honour styled 'serious disadvantage'.
99 At [54], his Honour said:
The court in Hurst noted that an inability to comply may shown (sic-be shown) if "a disabled person will suffer serious disadvantage in complying with the requirement or condition"; at [134]. [The appellant] has not shown that she suffered any serious disadvantage from her inability to answer the door. There is evidence to suggest that in 2004 her inability to hear whether someone was at the door was a source of grievances among other staff members. However, there is no evidence to indicate that this was a live issue in 2006 when the request for flashing lights was made. By this time, [the respondent] had also purchased a pager which provided staff members with a means of attracting [the appellant's] attention. Her work consisted of caring for the clients at the Bungower Road CRU and she has not shown that her inability to answer the door led to any serious disadvantage. It is a requirement with which [the appellant] was able to comply in performing her employment.
100 It was not apparent that the appellant developed this submission in oral argument. In the written submissions all that was said in support of this ground was:
The notion of "serious disadvantage" is referred to in the judgment paragraph 54. Evidence was given by [the appellant] she was alone in the CRU with clients on a number of occasions.
101 No error is demonstrated. The approach taken by the primary Judge on serious disadvantage was consistent with the approach in Hurst and was correct. This ground fails.
102 The next general topic under which the appellant's argument proceeded was the notion of 'unjustifiable hardship' as a defence.
103 The argument in (ground 21) was that the primary Judge had erred in entertaining the question of unjustifiable hardship at all as it had not been raised in the respondent's pleadings. The appellant contended that the respondent did not plead in its defence nor raise at any stage of the trial until its final submissions any defence of unjustifiable hardship. It was said to follow that it was wrong for the primary Judge to consider in any respect the topic of unjustifiable hardship in assessing the prejudice sustained by the appellant.
104 Little oral argument was advanced to support this ground. It has been dealt with above (at [90]-[93]). Unjustifiable hardship was not treated as a defence by the primary Judge. The ground fails.
105 Finally, the fourth general topic addressed in oral argument by counsel for the appellant was 'evidence'. This embraced grounds 14, 20, 12, 13, 10, 18 and 1 of the grounds of appeal. The appellant claims there were 'substantial errors' with respect to the evidence accepted by the primary Judge.
106 The first ground advanced was ground 14 which claimed that the decision reached by the primary Judge was vitiated or alternatively tainted by numerous errors in connection with evidence and the effect of evidence 'including':
(a) the statement or finding (at [35]) that the respondent offered to purchase a TTY and that the appellant rejected the offer;
(b) the statement or finding (at [55]) that at the time the appellant was working approximately 15 hours per fortnight;
(c) the statement or finding (at [72]) that the appellant acknowledged that she could receive the information by means other than a qualified interpreter; and
(d) the statement or finding (at [137]) that the appellant did not apply for any positions offered by the respondent whereas in fact there was evidence of at least one application by her.
107 On the first complaint at (a), the submission of the appellant is that the email of 20 October 2006 does not include such an offer from Ms Foster or indicate any failure to take up the offer by the appellant.
108 It is not the case that the primary Judge recorded that the offer was made on 12 October 2006. His Honour said (at [35]) was:
On 20 October 2006, Ms Gail Foster, the Residential Service Manager of [the respondent] and Deputy Chief Executive Officer, offered to purchase a TTY for [the appellant]. Earlier, on 12 October 2006, [the appellant] had brought the issue to Ms Foster's attention by faxing to her a request for a TTY. It is unclear why Ms Foster's offer was not taken up. I find [the appellant's] response that she did not take up the offer for fear of losing more shifts to lack credibility. How could one realistically expect to lose shifts for taking up an offer from management for something which, on [the appellant's] own evidence, she had been "pestering" for repeatedly?
109 In evidence was a list of handwritten questions by the appellant sent by facsimile on 12 October 2006. The content of the questions does point to the unfortunate tension and difficulty being experienced in the workplace. The list reads:
(1) Why my Sunday shift gave to vacant?