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[2026] NSWCATAD 104
General information, not legal advice.
NCAT Administrative and Equal Opportunity
2026-04-13
J Smith, Senior Member Professor J Goodman-Delahunty, General Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Donald-Stanton v Secretary, Ministry of Health [2026] NSWCATAD 104
Hearing dates: 20 – 22 August 2025, 22 September 2025 – close of submissions
Date of orders: 13 April 2026
Decision date: 13 April 2026
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Smith, Senior Member
Professor J Goodman-Delahunty, General Member
Decision: (1) Within 28 days of the date of this Order, the Respondent is to pay the Applicant $55,000 by way of compensation in the form of general damages for hurt, humiliation and injury to feelings she has suffered by reason of the Respondent’s conduct.
(2) Within 7 days of the date of this Order, the Respondent is to issue the Applicant a written apology for its unlawful discriminatory conduct within 7 days of this Order.
(3) Within 6 months of the date of this Order, the Respondent is to provide all executive level management staff employed by the Respondent in the Western Sydney Local Health District training in disability discrimination under the Anti-Discrimination Act 1977 (NSW) including any relevant policies and procedures.
Catchwords: ANTI-DISCRIMINATION – disability discrimination in work – direct discrimination – subjecting employee to a detriment - employee with disabilities not requesting reasonable adjustments – employer directed employee to attend workstation assessment and independent medical examination – employee offered a demotion – employee deemed unfit for duty and directed to take leave – whether exception of work, health and safety requirements applies – general damages and other remedies
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Government Sector Employment (General) Rules 2014 (NSW)
Government Sector Employment Act 2013 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Bailey v Australian National University (1995) EOC 92-744
Bogie v University of Western Sydney (1990) EOC 92-313
Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24
Burns v Sunol [2014] NSWCATAD 63
Chalker v Murrays Australia Pty Ltd [20l7] NSWCATAD 112
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Gardiner v Laing O’Rourke Australia Constructions Pty Ltd [2020] NSWCA 151
GKX v Secretary, Department of Education [2024] NSWCATAD 186
Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217
Hardiman v Parramatta City Council (No 2) [2025] NSWCATAD 260
Magar v Khan [2025] FCA 874
Morrow v Secretary, Department of Education [2022] NSWCATAD 409
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
O’Brien v Dunsdon (1965) 39 ALR 78
Paramasivam v Wheeler & Ors [2001] FCA 231
Purvis v New South Wales (Department of Education and Training) (2003) [2003] HCA 62
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44
Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007] NSWADTAP 19
Watts v Australian Postal Corporation [2014] FCA 370
Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107
Texts Cited: Premier’s Memorandum: Procedures for Managing Non-Work Related Injuries or Health Conditions and Managing for Performance (6 December 2010)
Category: Principal judgment
Parties: Soneva Donald-Stanton (Applicant)
Secretary, Minister of Health (Respondent)
Representation: Counsel:
S A McCarthy (Applicant)
Solicitors:
Women’s Legal Service NSW (Applicant)
Bartier Perry Lawyers (Respondent)
File Number(s): 2024/00373114
Publication restriction: None
The Applicant alleges that the Respondent has unlawfully discriminated against her, on the ground of disability, by subjecting her to several “detriments” in the workplace.
The Applicant has substantiated her complaint in part. We order that the Respondent pay the Applicant general damages in the sum of $55,000, issue a written apology to the Applicant, and provide relevant training to executive staff.
(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.
The Applicant contends that the Respondent has discriminated against her, on the ground of disability, by subjecting her to a number of detriments from 1 June 2022 to 22 May 2023 (the “complaint period”). The Applicant is not alleging that she has been dismissed. The Applicant remains employed by the Respondent, but was directed by the Respondent to take leave on 22 May 2023 and has not returned to work.
Section 49D(4) of the AD Act provides what is sometimes referred to as the “inherent requirements exception”:
(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 Respondent did not rely on this exception and, in any case, it does not apply because the Applicant did not complain that she had been discriminated against when being offered employment (AD Act, s 49D(1)(b)) or that she had been dismissed (AD Act, s 49D(2)(c)). Furthermore, the Applicant did not request any services or facilities to enable her to carry out the inherent requirements of her position.
Section 49B defines what constitutes “discrimination on the ground of 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.
Section 49B(1)(a) of the AD Act is commonly referred to as “direct discrimination”, s 49B(1)(b) as “indirect discrimination” and s 49B(2) as the “characteristics extension”. The Applicant relies only on “direct discrimination” as defined in s 49B(1)(a).
“Disability” is defined in s 4 of the AD Act:
disability means—
(a) total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or
(b) the presence in a person’s body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person’s body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
The disabilities that the Applicant relies on, for the purposes of her complaint, are her physical disability, Klippel Feil Syndrome and her mental disabilities, being Anxiety and Depression (collectively referred to as the Applicant’s “disabilities”). The Respondent does not dispute that the Applicant has the disabilities upon which she relies for her complaint.
In the Applicant’s words, the manifestations of Klippel Feil Syndrome include a very crooked posture, a relatively short neck and her left hand being unusable. We are satisfied that each of these manifestations of Klippel Feil Syndrome falls within paragraphs (a) and/or (c) of the definition of “disability” in s 4(1) of the AD Act. They are discrete disabilities. The Applicant has not relied on the so called “characteristics extension” in s 49B(2) of the AD Act.
To substantiate her complaint, the Applicant bears the onus of proving that her employer has subjected her to “any other detriment”. The Applicant then needs to prove that the treatment giving rise to the detriment comes within the definition of disability discrimination in s 49B(1)(a) of the AD Act. In summary that definition requires the satisfaction of two elements: less favourable treatment and causation.
The Respondent relies on the exception in s 54(1)(a) of the AD Act which states that:
54 Acts done under statutory authority
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of—
(a) any other Act, whether passed before or after this Act,
The Respondent contends that it was required to comply with its statutory obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act).
The Applicant seeks remedies under s 108(2) of the AD Act, including general damages for hurt, humiliation and injury to feelings suffered by reason of the Respondent’s conduct, that the Respondent be prohibited from continuing or repeating any unlawful discriminatory conduct, an apology and that the Respondent’s staff receive training.
The Applicant has an ongoing workers compensation claim in respect of the injury she alleges she suffered on 22 May 2023. Pursuant to the principles in Gardiner v Laing O’Rourke Australia Constructions Pty Ltd [2020] NSWCA 151, the Applicant does not seek remedy for economic loss or out of pocket expenses in her complaint under the AD Act. The statutory protections provided by the AD Act in various areas of public activity, including the possibility of compensation for discriminatory conduct, form a discrete and independent statutory scheme: Gardiner at [44]-[53].
The issues arising from the Applicant’s complaint are:
Did the Respondent subject the Applicant to “any other detriment”?
If so, has the Applicant proven both the differential treatment and the causation elements of direct discrimination for each detriment?
If so, has the Respondent proven that the treatment comes within the exception in s 54(1)(a) of the AD Act?
If the whole or part of the complaint is substantiated, should the Tribunal order any of the remedies listed in s 108(2) of the AD Act?
“Detriment” is not defined in the AD Act. Previous cases have described a detriment as placing a complainant under a disadvantage as a matter of substance (Bogie v University of Western Sydney (1990) EOC 92-313), or suffering a material difference in treatment (Bailey v Australian National University (1995) EOC 92-744) which is “real and not trivial”: Sivanathan v Commissioner of Police (NSW) (2001) NSWADT 44 at [41].
Whether the Respondent has subjected the Applicant to a “detriment” is to be determined objectively. A detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial: Burns v Sunol [2014] NSWCATAD 63 at [85].
The following was said by Mortimer J in Watts v Australian Postal Corporation [2014] FCA 370, in relation to s 15(2) of the Disability Discrimination Act 1992 (Cth) which makes it unlawful for an employer to discriminate against an employee on the ground of the employee’s disability “by subjecting the employee to any other detriment”:
“68. Aside from a nexus between the identified “detriment” and the employment of the person concerned, the context otherwise suggests no particular limits on the meaning which should be given to that word. For example, it may be a loss or disadvantage which is temporary but real (such as moving an employee away from her established workplace and colleagues); it may be a prejudice to the earning of additional income (such as a facially neutral requirement about eligibility for overtime which disproportionately affects employees with a particular disability); or it may be damage done by the tolerance (or encouragement) of teasing or harassment of a disabled employee in a workplace. Essentially (and perhaps obviously), a “detriment” within paragraph (d) will have an immediate negative connotation: a “benefit” within paragraph (b) will have an immediate positive connotation. A “detriment” should not be identified solely by the negative expression of what is in reality a benefit.”
The Applicant commenced employment with the Respondent in the part-time position of Administrative Support Officer – Aboriginal Heath Strategy (Level 6) on 13 December 2021. Prior to this the Applicant had worked at a Hospital as a Patient Services Officer since August 2016, during which she:
Did not disclose her disabilities as she did not require adjustments to her roles to perform the duties effectively or safely.
Worked 20 hours a week, spread across five days.
Performed administrative and payroll tasks, including emails and data entry.
Was not subjected to performance management and met the requirements of her positions to the relevant standard.
A Human Resources Partnering Manager from the Applicant’s previous workplace, who worked with the Applicant between August 2016 and September 2017, attested in a statement that the Applicant performed “exceptionally well” in managing payroll administrative tasks and managed a high volume of email queries. This Manager stated that no performance concerns were raised about the Applicant during that time. This Manager was cross-examined during the hearing and stated that he did notice that the Applicant did not function as well with one of her hands, but this did not impact on her role during the time he worked with the Applicant.
The Applicant states that after commencing employment with the Respondent and prior to April 2022, she was given very little work and received minimal guidance and support. When the Applicant sought direction from the person to whom she was reporting, she was told to wait until the new Director commenced. Ms Belinda Cashman commenced in the role of Acting District Director, Aboriginal Services, in April 2022 and became the Applicant’s direct manager at this time. Ms Cashman had not met the Applicant prior to commencing in this role.
The Applicant stated that this transitional period left her feeling deeply uncertain and unsettled. During cross-examination, Ms Cashman explained that when she said in her statement that the Applicant was “left to her own devices”, she did not mean this in a “bad way” but felt that the Applicant was left in this situation.
During cross-examination, Ms Cashman conceded that when she commenced in her role of Acting District Director, she did not take any substantive steps to meet with the Applicant to discuss her expectations of the Applicant or determine the Applicant’s capabilities. Ms Cashman worked primarily in an office location different to that of the Applicant. Ms Cashman stated that she did not know the expectations of the Applicant’s role or her own role. Ms Cashman had not previously been in a Director level position or an executive role. Ms Cashman stated that there was no real handover of the Applicant’s capabilities and it was extremely hard to ascertain what the Applicant was capable of doing. Ms Cashman was not aware that the Applicant was working part-time.
The Applicant stated that she felt confused and uneasy because after Ms Cashman commenced in the role she did not clearly understand Ms Cashman’s expectations of her position and how she could best support Ms Cashman. The Applicant stated that Ms Cashman gave her routine duties and no complex tasks. The Applicant stated that she took steps to learn and develop her skills to perform other tasks that she had not done before or that Ms Cashman had not given her, such as preparing briefing notes.
In her statement, Ms Cashman states that shortly after she started in her role, she noticed that the Applicant:
Did not know how to undertake basic finance tasks, such as requisitions.
Was being taught by employees in the Administration Team (at level A03, three levels below the Applicant’s level of A06) how to undertake basic tasks such as health rosters, creating purchase orders, requisitions and invoicing.
Had many questions in relation to her tasks and how to complete them.
Lacked initiative, with very limited engagement from the Applicant with Ms Cashman, despite the role requiring a “very close relationship, proactive steps and initiatives to ensure the duties are completed properly”.
Made mistakes in her work, including management of health rosters, and made a mistake on a purchase order on one occasion.
Told Ms Cashman that she was uncomfortable answering telephone calls and needed a script for this.
Ms Cashman stated that she developed concerns for the Applicant’s “health and wellbeing” because:
The Applicant had a lot of absences and would frequently arrive late for work.
The Applicant would seek to work from home because she felt unwell.
The Applicant had told her that she was hospitalised for a lengthy period.
The Applicant told her on one occasion that she had low blood pressure and felt dizzy sometimes.
Ms Cashman observed the Applicant had “physical limitations” due to:
(a) Limited use of one hand and only using one hand to type and for other activities, and (b) Limited movement in her neck and moving her entire upper body instead of her neck to move her head.
The Applicant had told her she received a burn on her leg because she was sitting too close to the heater and didn’t feel it as she doesn’t have good feeling in her leg.
The Applicant had told her that she had support workers from NDIS who helped her at home.
In her statement, Ms Cashman stated that she was concerned that there was more they could be doing to support the Applicant in her role and that without additional supports, the Respondent may be exposing her to risks to her health and safety. Ms Cashman stated that she was very concerned about her duty of care to ensure the health and safety of people in her team and others.
However, during cross-examination, Ms Cashman could not explain how she had concluded that the Applicant appeared unsafe in her workplace. Ms Cashman thought that the Applicant did not have functionality in her left hand and wanted to make sure that the Applicant had the right equipment.
During cross-examination, Ms Cashman stated that the Applicant’s NDIS plan was none of her business and that she did not know much about the Applicant’s NDIS plan.
During cross-examination, the Applicant stated that she had the worst period of ill health in her life during 2022 including an infection that required hospitalisation. When asked about sick leave, the Applicant stated that she never took sick leave without letting anyone know. The Applicant denied any instance of being asked for a medical certificate and not providing one. The Applicant denied ever falling asleep at her desk.
Between April 2022 and May 2022, the Applicant and Ms Cashman met on one or two occasions. There were no minutes of any meeting. The Applicant disclosed to Ms Cashman that she was struggling with her mental health and had doubts about her ability to do the job. The Applicant did not verbally disclose her disabilities to Ms Cashman and did not request any services or facilities to carry out the inherent requirements of the job.
During one of the meetings at this time, Ms Cashman gave the Applicant a copy of the Applicant’s Position Description. Ms Cashman said that she had to “go and find” the Position Description for the Applicant’s position. Ms Cashman did not go through the Position Description with the Applicant during the meeting but asked the Applicant to go away and think about it.
On her own, the Applicant went through the document and noted “needs help” next to tasks that were new to her and outside of her previous experience or knowledge. During cross-examination, the Applicant stated that she had used the words “needs help” because this was the same wording Ms Cashman had used. The Applicant stated that this meant she needed help with training, feedback and development in the role. The Applicant stated that it was “a normal reaction for a human in a new role to have doubts about ability to do their job.” The Applicant stated that she was a hard marker on herself and downplayed a lot of her skills and knowledge. The Applicant stated that, as at the time of the hearing, she had no trouble doing those tasks.
Ms Cashman did not go through this document with the Applicant after the Applicant made these notations or discuss with the Applicant why she needed help with parts of her Position Description. Ms Cashman stated that she did not have a full grasp of what the Applicant’s role required.
Ms Cashman could not confirm whether the Applicant’s “physical limitations” or Anxiety prevented the Applicant from fulfilling any of her key accountabilities. Ms Cashman conceded that she did not know at this time if the Applicant had a disability.
On 8 June 2022, a meeting took place between Ms Cashman and Ms Verity Lloyd, Human Resources Director for the Respondent. Ms Lloyd had not met Ms Cashman nor heard of the Applicant. There were no minutes of this meeting.
In Ms Lloyd’s statement, she recalls from memory that during the meeting Ms Cashman stated:
“I have an employee working as an Administrative Officer. I am concerned about whether she can perform her role based on what I have seen. I asked her about it and she has indicated that she doesn’t have the skills to perform most of her duties in the PD and lacks confidence in relation to her capacity to do the job. I am wondering what we can do to support her.”
“I have an EA who I am concerned about. She doesn’t seem to be able to undertake her role. She has physical limitations and I’m not sure if there is something we can be doing to support her”.
During cross-examination, Ms Lloyd had some recollection that Ms Cashman told her during this meeting that the Applicant had “physical limitations”.
In response, Ms Lloyd advised Ms Cashman that she would look at the recruitment documents for the Applicant and what supports could be considered.
During cross-examination, Ms Cashman could not recall if she provided the Applicant with any direct help in her role before she spoke to Ms Lloyd on 8 June 2022.
Ms Lloyd sent an email to Ms Cashman on 17 June 2022 which:
Identified “problematic issues” regarding the Applicant’s recruitment process.
Stated that the Applicant had provided Ms Cashman “her own assessment” of the “non-alignment of her current skillset with the required skills of the EA role, and her related lack of confidence and capacity to perform effectively the requirements of the Executive Assistant role”.
Recommended that the Applicant be asked if she was “comfortable with moving to another A02 or A03 role within NSW Health” at a meeting, where a “HR representative” would be present as well as a support person for the Applicant.
Recommended that when “this process” concluded, the Applicant’s role would be advertised through standard recruitment processes.
Ms Cashman responded that she was happy to move forward as recommended by Ms Lloyd.
In her statement, Ms Cashman expressed the view that if the Applicant wanted to move to a lower grade, this would be a “good outcome” for the Applicant because less pressure and a lower volume of work would “help” the Applicant.
During cross-examination, Ms Lloyd confirmed that she did not meet with the Applicant prior to making these recommendations, and did not recommend or place the Applicant on performance management. Ms Lloyd had formed the view that the Applicant should not have been recruited to the role given her experience and ability.
During cross-examination, Ms Lloyd stated that when a person applies for a position with the Respondent and self-identify that they have a disability, it is “best practice” for the Respondent to seek further information about that disability, regardless of whether that person requests the same. There was no evidence before the Tribunal of this practice in any of the Respondent’s policies or procedure. Ms Lloyd confirmed that the same inquiries would not be made of an employee who did not tick “yes” to having a disability at the time of the application for employment. Ms Lloyd held the view that this practice should have been undertaken for the Applicant because she had ticked “yes” to having a disability. However, on her application for employment the Applicant confirmed that she was “not aware of any health condition that may interfere with [her] ability to perform the position requirements and inherent demands of the position”.
During cross-examination, Ms Cashman stated that she was not aware of the Respondent’s performance management policy and had never performance managed anyone.
Ms Swetha Chowdavarapu, Senior Industrial/Employee Relations Specialist for the Respondent, gave evidence during the hearing about the Respondent’s performance management process. Ms Chowdavarapu stated that:
There is no obligation on an employee to disclose their full and complete medical history if it does not impact on their ability to perform the inherent requirements of the role.
In relation to the transfer of an employee to a lower graded position, an employee can request this or consent to a transfer or it could also be offered if performance related. Other cases involved findings of misconduct or redundancy.
In relation to performance related cases, there were two instances where a staff member was not meeting key performance indicators, and at the end of a performance management process was offered a move to a lower role.
The performance management process was a structured, formalised process involving a documented plan and regular performance management meetings. This was for procedural fairness.
During cross-examination, Ms Lloyd denied that the Applicant should have been put on a performance management plan. Ms Lloyd confirmed that performance management was never suggested to the Applicant. Ms Lloyd denied that the Applicant was treated differently by not putting the Applicant through a performance management process.
During cross-examination, it was put to Ms Cashman that the Applicant should have been given a genuine opportunity to try and perform in the role. Ms Cashman stated that she did not go down the performance management process with the Applicant as the Applicant had Anxiety and she was worried that it would upset her.
On 25 August 2022, the Applicant met with Ms Cashman and Ms Lloyd. There were no minutes of this meeting.
The Applicant stated that during this meeting, Ms Cashman had a copy of the Position Description document and said that the Applicant had indicated that she could not do certain tasks. The Applicant stated that these doubts were not indicative of an inability to perform her duties, and they stemmed from the uncertainty compounded by the sudden departure of her manager and lack of guidance during the recruitment of Ms Cashman. The Applicant stated that at no point did she attribute her doubts to her disabilities. The Applicant stated that she did not have direct experience doing some parts of the Position Description, however she had transferable skills. The Applicant stated that during the meeting she explained that she believed she lacked the experience, qualifications and skills. The Applicant stated that she was not asked if she required any adjustments or accommodations related to her disabilities, nor did she make any such request.
Ms Cashman recalled telling the Applicant: “I have given you your PD, and you stated all the things you needed help with. Given the amount of assistance you have said you need, we’re just wondering whether you would be interested in considering vacancies at A02 and A03 level closer to home?” Ms Cashman recalls asking the Applicant if there was anything that they needed to provide to her in order to support her to perform her role, and whether she had had a workplace assessment done. The Applicant stated that she had never had an assessment. Ms Cashman recalls stating: “OK, well in order for us to ensure we’re doing the right thing by you, that might be a good starting point for us”.
Ms Cashman stated that she wanted an ergonomic assessment of the Applicant done to know what else they could do to support the Applicant. Ms Cashman stated that this was important to make sure that the Applicant had appropriate equipment to support her. In support of this view, Ms Cashman cited the example that one of the Applicant’s hands “did not appear to function”.
During cross-examination, Ms Cashman was asked whether the Applicant’s “physical limitations” in her left hand stopped her from fulfilling any of her key accountabilities. Ms Cashman said that she wanted to know if she needed to do something, if she needed to get the Applicant support and if the Applicant needed equipment. Ms Cashman stated: “I just thought she didn’t have functionality of her left hand – I was missing something or not doing the right thing as the manager.”
Ms Lloyd, in her statement, noted that at this meeting, she could not recall the words used but recalled that they discussed the option of the Applicant moving to a lower graded position which might be better suited to her, and of undertaking an ergonomic assessment of the Applicant.
After the meeting with the Applicant on 25 August 2022, Ms Lloyd sent an email to Ms Cashman which noted:
The current process was an informal process (outside recruitment/redeployment/performance processes) so it was not appropriate to confirm the details in writing to the Applicant.
The Applicant would need a medical certificate confirming what adjustments/restrictions were required in working in possible roles to ensure an appropriate role is pursued.
If the Applicant was not interested in other roles, she would need to perform the full tasks of the A06 role and if not improving, performance management would apply. This was the non-preferred option.
Ms Lloyd requested a workplace assessment of the Applicant’s office workspace.
On 13 September 2022, Ms Cashman met with the Applicant and told her that Ms Lloyd had considered the possibilities, and the Applicant’s options were to move to a A03 position, which was a lower graded and lower paid position. There are no minutes of this meeting.
On 15 September 2022, the Applicant sent the following email to Ms Cashman in relation to the offer of a new and lower graded role:
“I have had some time to reflect since our meeting on Tuesday and I would just like to raise a few points. I would just like to say that even though I suffer with anxiety, moving out of my current position in order to avoid anxiety would actually be counterproductive and would exacerbate my anxiety. Secondly, I may have expressed doubts about my ability to fulfil some of the requirements of my role, but I have also not been asked to perform them so I am not in a position to say one way or the other if I am unable to perform them. I have concerns about the level that any future position I may be moved to may be way below what my actual capabilities are. I recognise that I also raised doubts about my abilities in our meeting of 25th August but I would just like to express my capabilities are far greater than I may have presented them. I am unsure how I feel about moving to a different position and would need to see any potential position description before I make a decision. I would welcome having additional work given to me in order to see if I am able to perform more of the duties inherent to this position. If I could have some more time to consider my position I would greatly appreciate it.”
On 26 August 2022, Ms Lloyd sent an email to Judy Jankovics, Manual Handling Program Coordinator, Work Health and Safety, for the Respondent. The email noted that Ms Cashman had asked for an ergonomic assessment of the Applicant’s workspace. The email stated that the Applicant had a “number of disabilities (manager/HR are not privy to details) but which appear to limit mobility I think relating to one arm (I think right) and neck movement”. Ms Lloyd stated that the Applicant does administrative work and that Ms Lloyd understood that the Applicant was a “competent typist within these restrictions”.
On 5 September 2022, Ms Jankovics conducted a “workstation assessment” with the Applicant. In the email sent to Ms Cashman following the assessment, Ms Jankovics was asked to conduct a “workstation assessment” with the Applicant to “determine if any additional accommodation is required to support her with carrying out her work duties.”
During the assessment, the Applicant told Ms Jankovics that she had worked in administrative roles for about 20 years, although not consistently, due to her health, and had never been provided with any additional provisions or accommodations by any previous employer to meet the needs of her condition.
During cross-examination, the Applicant stated that it was her belief, because of how Ms Jankovics phrased her questions about the Applicant’s medical history, that she was obliged to give Ms Jankovics this information. The Applicant denied that she was “happy” for Ms Jankovics to give her medical information to her manager, but consented to this occurring.
During cross-examination, Ms Jankovics stated that after the workstation assessment which lasted for about 30 minutes, she went and spoke to Ms Lloyd who was in a nearby office. Ms Jankovics stated that Ms Lloyd told her about recruitment issues with the Applicant, the Applicant not having the required skill set, that anyone in that position would be stressed and that they were concerned about the Applicant’s suitability.
Following the workstation assessment and the conversation with Ms Lloyd, Ms Jankovics sent an email and her report to Ms Cashman and Ms Lloyd which outlined background information of the Applicant’s conditions including her disability of Klippel Feil Syndrome (which the Applicant had disclosed during the assessment and consented to disclose to Ms Cashman), current/symptoms and functionalities of the Applicant’s conditions, and the nature of the Applicant’s work duties. Ms Jankovics then summarised the workstation assessment she conducted.
In this email, Ms Jankovics stated that she would like to make comments regarding the Applicant’s “suitability for her current role”. Ms Jankovics stated that:
The Applicant did not require any specific workplace adjustments to meet the needs of her condition.
The Applicant had been asked to undertake a medical review and assessment of her vision because the Applicant said that she used glasses for computer use but had not had a review of her prescription in about 10 years. The Applicant also said that it “might be a good time for a medical review” given her recent feeling of unsteadiness on her feet.
While the Applicant can undertake typing tasks:
(a) She would undoubtedly be significantly slower in her typing speed given that she can only use her right hand. (b) Given this limitation, Ms Jankovics was concerned about the Applicant’s ability to keep up with the demands of her role and the Applicant’s suitability for her current role. (c) If unsuitable, this would not only hamper the department but would place the Applicant under undue stress.
During cross-examination, the Applicant stated that she recalled stating as a joke to Ms Jankovic that she might be getting old and unsteady on her feet. The Applicant stated that the only time she had experienced the sensation of dizziness was walking in the dark on the way home, with one streetlight on her street and an uneven pavement. The Applicant strongly denied that she suggested to Ms Jankovics that it “might be a good time for a medical review”.
As of the date of the workstation assessment, however, Ms Lloyd and Ms Cashman had already conferred about requesting the Applicant to provide a medical certificate.
During cross-examination, Ms Jankovics clarified that when she said “slower” in relation to the Applicant’s typing speed, she was referring to the Applicant being slower than “an average person”. Ms Jankovics stated that someone who types with two hands is faster than someone who types with one.
In her statement filed with the Tribunal, Ms Jankovics stated that she did not ask about the Applicant’s “mental disabilities” during the workstation assessment as it was not relevant to the nature of the assessment. Ms Jankovics stated that she did not know that the Applicant had any “mental health difficulties” at the time of the assessment. Ms Jankovics stated that she was unaware of any concerns regarding the Applicant’s fitness for duty prior to the assessment. Ms Jankovics stated that she was not asked to assess the Applicant’s fitness for duty nor would it have been appropriate for this to be requested of her current role. The assessment was conducted purely to determine how the Applicant used the workstation and if the current set-up met the Applicant’s needs or if adjustment and/or additional equipment was required.
During cross-examination, the Applicant stated that it was her preference not to have an ergonomic assessment. The Applicant stated that Ms Jankovics made very minimal adjustments to her workstation, and she felt that she was under scrutiny because she had a physical disability. The Applicant stated that she had been perfectly safe in her work environment.
On 21 September 2022, Ms Cashman responded by email to the Applicant’s email dated 15 September 2022. Ms Cashman stated, among other matters: “as discussed, whether in relation to your current role or any other WSLHD role, please see your GP by Tuesday, 27 September 2022 in requesting [sic] a current Medical Certificate which confirms the appropriate requirements/adjustments which are required to support you in your workplace. While Judy Jankovics, WHS Coordinator, has done a recent comprehensive ergonomic assessment of your work location in […], assessment from your treating document is required to ensure WSLHD is able to provide appropriate adjustments for you in working within WSLHD roles”.
On 16 September 2022, the Applicant advised Ms Cashman that she had tried to get a capacity to work letter from a doctor, but the doctor was unable to provide one. The Applicant stated that she had made an appointment to see another doctor that day.
On 10 October 2022, Ms Lloyd wrote a formal letter to the Applicant requesting that she obtain a medical report from her treating medical practitioner, responding to questions in a “Fitness for Duty and Reasonable Adjustments – Referral Report” document (“fitness for duty report”). Most questions in this document can be answered yes/no. The reason for this request was cited as:
“Following the recent ergonomic assessment of your workstation, Human Resources, Western Sydney Local Health District (WSLHD) are now aware of your history of medical conditions that may impact your fitness for duty and the related adjustments that are required to support you adequately at work.”
In the letter, Ms Lloyd stated that this request was made in accordance with Procedures for Managing Non-Work Related Injuries o**r Health Condition**s.
During cross-examination, Ms Cashman stated that she had never seen the Procedures for Managing Non-Work Related Injuries or Health Conditions before and had no experience implementing this procedure.
On 20 October 2022, the Applicant provided Ms Cashman with an update on her attempts to obtain a capacity to work letter. The Applicant queried what the letter should contain and asked if she could be provided with a copy of her Position Description to give to her regular GP, who was back from leave.
On 1 November 2022, the Applicant informed Ms Lloyd that the capacity to work letter was not covered by Medicare and asked if the Respondent would pay for it. Ms Lloyd advised that the appropriate process for the Respondent to cover the cost would be an Independent Medical Examination (IME) process.
The Procedures for Managing Non-Work Related Injuries or Health Conditions states that the “referring agency is liable to pay for the cost of the medical assessment for the employee only and any reasonable associated costs including travel, reports, accommodation, meals and wages.”
Apart from Ms Lloyd stating that she obtained internal advice about this, there was no evidence before the Tribunal as to the reason the Respondent did not fund the Applicant obtaining a fitness for duty report from her treating GP.
On 16 November 2022, a formal letter was written to the Applicant by Ms Lloyd, directing her to attend a professional clinical assessment on 25 November 2022 by Independent Medical Practitioner Dr Peter Yu. Dr Yu is an Occupational Physician. Ms Lloyd stated that it was a requirement of the Applicant’s employment that she attend the medical appointment. The Applicant was also asked to sign an authority for release of medical information.
On 18 November 2022, Ms Lloyd authored a referral letter to Dr Yu. Dr Yu was asked to provide a “formal independent medical report to review and identify restrictions” on the Applicant’s “ability to perform the inherent requirements of her role on an ongoing basis”. Dr Yu was asked to review the Applicant’s medical reports from two Hospitals that Ms Lloyd had obtained in relation to the Applicant (after receiving the signed authority form from the Applicant) and the Applicant’s Position Description, and provide a report on her fitness for duty in her current role. Ms Lloyd noted that the Respondent was “notified” that the Applicant “has a history of congenital medical conditions that affect her fitness for duty” and that the Respondent “requires further information regarding the potential impact on the workplace, including clarification of any additional recommended restrictions or supports WSLHD should consider in relation to” the Applicant’s “safe return to the workplace.” The Report was also to address the same questions in the “Fitness for Duty and Reasonable Adjustments – Referral Report” document (which the Applicant had been requested to get completed by a GP).
In the letter, Ms Lloyd stated that this request was made in accordance with Procedures for Managing Non-Work Related Injuries of Health Conditions. The referral letter to Dr Yu did not include the following matters as required by this procedure:
“3. Outline the health-related issue(s) that is/are affecting the ability to perform the inherent requirement/s and demands of the position - agencies should refrain from making any assumptions about a medical condition in the absence of a diagnosis from a qualified medical practitioner. Include all sick leave records in chronological order and any recent medical certificates and related information.
4. How the injury or health condition is affecting the ability to perform the inherent requirement/s and demands of the position - Reports should be based on factual information on how work performance relating to the inherent requirement/s of the position is being affected by the injury or health related condition provided by the employee’s immediate supervisor. Information needs to be provided on both positive and negative aspects of the employee’s performance.”
On 25 November 2022, the Applicant attended the medical examination with Dr Yu that lasted for about four hours without any breaks. In addition to being interviewed at length, the Applicant underwent a physical examination and cognitive assessment.
The Applicant stated that during the IME she experienced symptoms of Anxiety. The Applicant stated that she did not have a clear understanding of its purpose and assumed it was unrelated to her physical disability as no one had explained otherwise. The Applicant stated that she found the IME to be highly intrusive, as it required her to disclose very personal information without a clear understanding of how that information would be used and why it was being asked. The Applicant stated that she left the appointment feeling exposed and violated.
On 5 December 2022, Dr Yu completed a 30-page report that went into significant detail about the Applicant’s educational history, occupational history, medical history, and social history. Dr Yu assessed that the Applicant had “conditionally” sufficient physical capacity to undertake her role. Dr Yu stated that if all the conditions of her fitness are met, then she is “fully fit”, however if any condition is partially or otherwise not fully met, then she is unfit for that role. Dr Yu concluded that the Applicant’s mental capacity, including emotional and cognitive capacity, appeared sufficient for the role, but she would benefit from clinical clarification from a psychiatrist.
The Applicant stated that she disclosed one medical condition she has, which she asked Dr Yu not to disclose to the Respondent, because it did not impact her ability to perform the inherent requirements of her position. However, this medical condition was identified in detail in Dr Yu’s report which was provided to the Respondent.
In completing the assessment, Dr Yu did not receive any records from, or speak to, the Applicant’s treating GP. A copy of Dr Yu’s report was given by the Respondent to the Applicant’s GP. The Applicant had appointments with her GP in February 2023, but was not given a copy of the report. The Applicant stated that her GP disagreed with Dr Yu’s report.
On 22 December 2022, after considering Dr Yu’s report, Ms Lloyd made a series of recommendations to Ms Jankovics. This was without consultation with the Applicant, who had not yet seen Dr Yu’s report. The first of the recommendations was that they needed to find a mid-range administrative role at A02 or A03 for the Applicant. Ms Lloyd noted that the IME report “is not to be provided” to the Applicant and “if provided at all would be done by her GP”.
On 16 February 2023, a meeting occurred between the Applicant, a Union representative, Ms Cashman and Ms Lloyd to discuss Dr Yu’s report. It is evident from the Respondent’s record of this meeting that there was a dispute between the Applicant and the Respondent as to Dr Yu’s report and the conditions that he had identified that needed to be met for the Applicant to be fully fit for her role.
On 22 May 2023, a second meeting occurred with the same people. The records of this meeting noted that Ms Cashman stated that when she started in her role, she could “see” that the Applicant had “neck mobility issues” and needed to assess what was required to ensure work, health and safety compliance and duty of care for the Applicant.
During this meeting, the Applicant stated that she questioned the conditions in Dr Yu’s report and the entire IME process. The Applicant stated that she had never required adjustments in performing her position and she felt that the process was very personal and made her feel uncomfortable. The Applicant stated that she had a disability but that it did not affect her ability to perform the inherent requirements of the role. The Applicant stated that she made the following comments on the conditions in Dr Yu’s report:
Dr Yu made a lot of assumptions about her disabilities and capacity and discounted her lived experiences.
Whilst her left hand had minimal movement, she compensated for this with a strong left arm which enabled her to move her hand underneath an object to lift it.
She queried the basis for many of Dr Yu’s conclusions, such as how he arrived at a figure of 100 emails per day that he said that the Applicant was required to handle in her position, as this number of emails is not what the Applicant observed.
That she was able to move around independently without balance related issues and had never had any falls.
That her mental health, like that of all employees, fluctuated so she should not be treated any differently.
During the meeting, the Applicant stated that she was told that because the Respondent could not meet four of the conditions in Dr Yu’s report, she was deemed unfit for work and therefore could not attend work. The four conditions were:
The Respondent modifies her interface (optimises her ergonomic and human risk factors) with systems for her to convey her intent electronically to others in a reasonably practicable way, such that she can finish processing up to 100 emails in a shift.
The Respondent modifies how the Applicant travels to and from work to a reasonably practical extent, such that she climbs steps, stairs, uneven ground and/or included planes not more than occasionally.
At work whether unmodified or with reasonably practicable modification, her environments never require her to fully bend or twist her neck, or move her neck more than occasionally, or bending her neck down to her right more than rarely.
The Applicant’s colleagues and managers refrain from initiating conversations with her and each other about her specific medical conditions(s), noting that her role is not safety-critical and the Applicant had indicated to Dr Yu how sensitive she feels about her confidential medical condition (which was named by Dr Yu in the report) and mental health.
The Applicant’s comments noted during the meeting in relation to these four conditions were that:
She did not agree with the number of emails, as the current email volume was approximately 10-15 emails.
She disagreed with the travelling recommendation as she has always travelled to and from work without issues, and no specialist had raised travelling issues before with her. In her opinion, she had no issues with mobility.
She does minimal bending in her role.
She had no issues discussing her health conditions with Ms Jankovics and has shared health related information with Ms Cashman.
During cross-examination, Ms Cashman stated that she was not sure whether following the conditions in Dr Yu’s report was mandatory, and it was the first time she had been involved in an IME process. Ms Cashman stated that she was told that it was either “yes” or “no” responses to the conditions proposed by Dr Yu.
During cross-examination, Ms Cashman conceded that the Respondent could not comply with two of the four conditions that the Respondent had said that it could not meet, because they were out of the Respondent’s control. These were:
The condition about how the Applicant was to travel to and from work as the Respondent is not responsible for how the Applicant travelled to and from work.
The condition about controlling what other employees said to the Applicant about her medical conditions to avoid any adverse repercussions to her mental health and sensitivities about her confidential medical condition as the Respondent could not be responsible for what others say to the Applicant.
There is no evidence that Ms Cashman and Ms Lloyd sought to clarify the reasonableness of these two conditions with Dr Yu, or how these conditions equated to the Applicant not being able to perform the inherent requirements of her position.
During cross-examination, Ms Cashman also stated that she was not sure where the “100 emails” came from (in terms of the Applicant needing to respond to 100 emails per day in her position) and she did not provide that information to Dr Yu.
The Applicant stated that Ms Lloyd declined her offer to provide further medical evidence to support her objections to the conditions in Dr Yu’s report, despite the Procedures for Managing Non-Work Related Injuries or Health Conditions and Managing for Performance providing that agencies must provide a review process in relation to an employee’s medical assessment*.* According to the procedure, the Applicant was able to request a review of Dr Yu’s report to be undertaken by an independent review panel.
The Respondent did not provide the Applicant with a copy of the IME report or any opportunity for review of the IME prior to the meeting on 22 May 2023. The Procedures for Managing Non-Work Related Injuries or Health Conditions and Managing for Performance states that following a medical examination, the nominated medical assessor will provide a report to the agency and the employee which sets out the basis for the advice.
Ms Lloyd clarified in an email after this meeting that the Applicant had not been stood down from work, but was placed on sick leave. Once her paid sick leave ran out, she would move to sick leave without pay or could take any accrued annual leave. Ms Lloyd stated that it was for the Applicant’s safety that she could not continue to work in a role for which she had been deemed unfit while the process was underway/options were under review.
The Applicant has not returned to work since 22 May 2023.
Between 22 and 24 May 2023, the Applicant emailed Ms Lloyd with further concerns about Dr Yu’s report. The Applicant stated that Dr Yu had made assumptions about her perceived limitations relating to her disability without no demonstrated evidence to support it. The Applicant stated that she had found ways to adapt in relation to her disability to perform tasks and from her past experiences, would have evidence that she would be able to meet the potential physical requirements of her position. The Applicant stated that she felt that Dr Yu had determined that she needed to be protected from a potential risk of harm that any person could be exposed to, in terms of travel to and from work, and that it was not specific to her and therefore discriminatory to make it a condition of her employment. The Applicant also raised concern about Dr Yu disclosing a confidential medical condition against her wishes, and then using that as the basis for a condition that the Respondent could not accommodate.
Some of the alleged detriments involve the Respondent not following the NSW Premier and Cabinet’s Memorandum: Procedures for Managing Non-Work Related Injuries of Health Conditions, issued on 6 December 2010. This document was in evidence before us and applies to NSW Health employees where “an employee is suffering from a non-work related injury or health condition only which is impacting on their ability to perform the inherent requirement/s and demands of their position”. Its purpose is to assist all public sector agencies to apply a consistent approach in managing an employee who has a non-work related injury or health condition which impacts their ability to safely perform the inherent requirements and demands of their position. We note the following relevant parts of the procedure.
This document indicates that the procedures are based on the following principles (page 4):
“1. An employer is responsible for ensuring the health, safety and welfare of all employees at work.
2. An employee is responsible for their own health, well being and ability to perform the duties for which they are employed. This includes taking appropriate steps to address any non-work related health issues they may have/develop, if these impact on their capacity to safely perform the inherent requirements and demands of their position.
3. An employer has the right to request an assessment of the employee's non-work related injury or health condition where it impacts on their ability to safely perform the inherent requirements and demands of their position.
4. The employee is to seek medical or other appropriate advice when directed to do so by the employer in the case of an employee having reduced capacity to safely perform the inherent requirements and demands of their position.”
“An agency may need to seek medical advice on how to safely manage a non-work related injury or health related issue that is affecting an employee’s ability to perform the inherent requirements and demands of the position for which they were engaged. Any advice sought must be in accordance with:
• the overriding legislative responsibility under the Occupational Health and Safety Act 2000 for agencies to manage risk and ensure the health, safety and welfare at work of employees; and
• a Chief Executive Officer’s responsibilities and functions for ensuring the effective, efficient and economical management of their agency.
The type of medical advice requested may relate to an employee’s:
• ability to safely carry out the inherent requirements and demands of the position for which they were employed, in the short or long term
• safe return to work
• medical restrictions that may apply in the workplace
• temporary or permanent adjustments that may need to be made in order to facilitate a safe return to work or to remain safely on duty.
It may also become necessary to seek medical advice relating to:
• whether a medical condition has contributed to a conduct or performance issue
• whether a second opinion is required, for example, in respect of advice from an employee’s medical practitioner which seems inconsistent with other available evidence
• any impact the health of the employee may have on the health and safety of other employees in the workplace, or on non-employees, for example visitors or clients.”
Referrals for medical advice may also be initiated under specific legislative, industrial or policy provisions. Agencies must specify when they are referring employees under a specific provision which applies to the employee and provide information on the standards which are to be met or procedures required under the instrument (page 8). Whether a referral for a medical assessment is under an agency’s general occupational, health and safety obligations or other specific provision, employees are required to comply with an agency’s reasonable direction to attend and participate in a medical assessment. Employees should remain aware that if they fail to comply with such a reasonable direction they may be subject to disciplinary procedures (page 9).
The referring agency is liable to pay for the cost of the medical assessment for the employee only and any reasonable associated costs including travel, reports, accommodation, meals, and wages (page 8).
In the first instance the agency must rely on the available medical advice from the employee’s treating doctor in terms of the doctor’s assessment of the employee’s capacity for work. Additional advice may be sought by the agency where it is unclear or there are concerns about the practicality of implementing the doctor’s advice. The agency should discuss this with the employee first, and then, request additional information or clarification from the employee’s treating doctor. If the information is not made available from the employee’s treating doctor or is inconsistent with other available evidence, or inadequate, or would result in an unreasonable delay, then the agency may seek independent medical advice from the nominated medical assessor (page 8).
In relation to the use of an Authority to Release Medical Information Form, the employer should make available to the employee at the time of referral the form. The employee may sign the consent form at the time of referral or sign at a later date after discussing with their treating doctor or specialist as to what information should be made available to the employer to provide the best outcome for the rehabilitation of the employee (page 12).
All agencies must provide objective, accurate and relevant information to the employee’s treating doctor or nominated medical assessor (page 9). The referral should, amongst other requirements:
“1. Basis for referral - refer to General basis for referrals and Specific referrals based in legislation, an industrial instrument or policy in this document under the section Initiating a Medical Assessment.
3. Outline the health-related issue(s) that is/are affecting the ability to perform the inherent requirement/s and demands of the position - agencies should refrain from making any assumptions about a medical condition in the absence of a diagnosis from a qualified medical practitioner. Include all sick leave records in chronological order and any recent medical certificates and related information.
4. How the injury or health condition is affecting the ability to perform the inherent requirement/s and demands of the position - Reports should be based on factual information on how work performance relating to the inherent requirement/s of the position is being affected by the injury or health related condition provided by the employee’s immediate supervisor. Information needs to be provided on both positive and negative aspects of the employee’s performance.
7. Previous referrals - detail any previous referrals and the outcome of any action to implement the previous advice. This must include copies of employee’s treating doctor reports where provided and where the employee has consented to their inclusion. If a treating doctor report has not been made available this should be noted in the report for the assessor’s information.”
“The employee must be made aware of the reason for the referral and where possible, in person (particularly if their ability to continue in a particular job is raised).
Agencies must provide the employee with copies of all information sent to the nominated medical assessor by either registered post or courier. If the employee wants to elect an alternative form of delivery they must advise the employer in writing. If the employee is absent from the workplace, the agency should securely deliver the material to the employee.
Agencies are to advise employees that they may be accompanied by a support person at the medical assessment. This may be a union representative. The agency is to inform the employee that they may request an interpreter if required.
When copies of referral documents are sent to the employee they must be accompanied by a form requiring the employee to sign and return to the agency acknowledging receipt of the documentation. If this acknowledgement cannot be made or is not received, the agency should make reasonable attempts to contact the employee to confirm receipt. Any lack of formal acknowledgement is not an indication that the employee has not received the documentation and this should not delay the assessment process. However, the agency should notify the nominated medical assessor of the lack of acknowledgement.”
Following a medical examination, the nominated medical assessor will provide a report to the agency and the employee which sets out the basis for the advice (page 13).
There is provision in the procedure for reviews of medical assessments (pages 16 and 17). Agencies must provide a review process in relation to an employee’s medical assessment. The nominated medical assessor will administer requests for a review of a medical assessment to be undertaken by an independent review panel. An employee may lodge a request with the appropriate officer of the nominated medical assessor and/or must notify the agency. Where the request for review has been provided to the agency first, then the agency should notify the appropriate officer of the nominated medical assessor. A review of the medical assessment can only be lodged if it meets the criteria for review set out in the procedure. The request for review is to be lodged within 21 days of the medical assessment report and on the basis that:
the employee can demonstrate that relevant information about their medical condition was available and offered but not considered at the time of assessment, and/or
the employee can demonstrate that the reasons for the nominated medical assessor's recommendation were not consistent with the available information.
There is a “special note” in this procedure in relation to the application of disability discrimination legislation (page 14):
“Special Note:
The Anti-Discrimination Act 1977 (NSW) and the Disability Discrimination Act 1992 (Commonwealth) both require employers to make reasonable adjustments (services or facilities) to enable a person with a disability who was selected on the basis of merit to carry out the inherent job requirements and job demands of a position.
Many forms of adjustment can be made to the workplace to reduce or eliminate the effects of a disability upon a person's ability to carry out the inherent requirements of a job. This can be undertaken by supporting the capabilities of people with disabilities and assisting them to perform the inherent job requirements and job demands of the position.
The nature of adjustment required needs to be determined in consultation with the person concerned and should not be based on generalisations about particular disabilities. Such an approach acknowledges that there are variations between individuals with particular types of disability, as to the degree of disability experienced by them as well as other characteristics, such as skills, qualifications and experience.”
The Applicant claims that she was subjected to the following detriments within the complaint period:
An “opportunity detriment” – the Applicant was denied opportunities to undertake meaningful and substantive work, training, support or mentoring. If there were concerns about the Applicant’s performance, the Respondent did not commence a performance management procedure with the Applicant to allow her to prove her capabilities in her position. The Applicant was instead offered a lower paid and lower graded role and not afforded procedural fairness in accordance with the Respondent’s relevant procedure.
A “process detriment” – by placing the Applicant on the fitness for duty process without medical evidence and without asking the Applicant if she needed assistance.
A detriment from the “Dr Yu direction” – by being exposed to an all-encompassing and invasive IME that was outside the scope required under the Procedures for Managing Non-Work Related Injuries or Health Conditions, which resulted in a report by Dr Peter Yu, Occupational Physician. The Applicant maintains that Dr Yu did not properly assess her ability to perform the inherent requirements of her position.
A “health procedures detriment” – by failing to provide the Applicant with a medical assessment review process, and not reasonably considering the conditions in Dr Yu’s report, which meant that the Applicant was not afforded procedural fairness.
A “deemed unfit detriment” - the Applicant has suffered a detriment from being deemed unfit for work and has been directed to take leave. The Applicant states that prior to the complaint period, her employment with the Respondent offered structure to her daily routine, incidental exercise, opportunities for social interaction and a stable income. The Applicant contends that she has been denied these benefits since 22 May 2023.
The Respondent submitted that the decision to offer the Applicant a move to a lower role cannot be a detriment, as it was “only an offer”, made to attempt to find a more suitable role for the Applicant following her “self-identified mismatch” of skills and “who should never have been placed in the role.” Ms Cashman stated that if the Applicant wanted to move to a lower grade, this would be a “good outcome” for the Applicant because less pressure and a lower volume of work would “help” the Applicant.
The Respondent’s submission that it was “only an offer” fails to identify the impact that being offered a much lower paid and lower graded role could have on the Applicant’s confidence, particularly when she did not request this, and was not given the chance to demonstrate her capabilities. However, in looking at whether the Applicant was objectively and substantively disadvantaged, we do not find that the offer of a lower paid, lower graded position, which the Applicant did not accept and has not eventuated, is of itself a detriment.
We find that that the Respondent subjected the Applicant to a detriment by referring her for a workstation assessment which she did not request.
The workstation assessment then went beyond the assessment of the Applicant’s workstation and involved collecting health information from the Applicant she had not previously disclosed to the Respondent and comments about her suitability for her role.
We find that the prerequisites for the Respondent to apply the Procedures for Managing Non-Work Related Injuries or Health Conditions to the Applicant were not present because:
The Applicant did not request any reasonable adjustments for her disabilities, to be able to perform her duties.
Ms Jankovics assessed that the Applicant did not require any specific workplace adjustments to meet the needs of her condition. This is consistent with the Applicant’s statement during the recruitment process that she did not require any adjustments for her disabilities and her prior work history where no adjustments were requested or provided.
Ms Jankovics was not asked to assess the Applicant’s fitness for duty nor (on her own admission) was she qualified or tasked to make any comments about the Applicant’s suitability for her role.
There was no medical evidence, including any evidence from the Applicant’s GP or any other doctor, that the Respondent needed further medical advice on how to safely manage a non-work related injury or health related issue affecting the Applicant’s ability to perform the inherent requirements and demands of her position. That is, there was no evidence that any medical condition that the Applicant had contributed to any conduct or performance issue.
Ms Lloyd advised Ms Jankovic that the Applicant does administrative work and that Ms Lloyd understood that the Applicant was a “competent typist within these restrictions”. The only reason that Ms Jankovic commented on the Applicant’s typing ability, which she did not assess, was her assumption that someone who types with two hands is faster than someone who types with one.
We find that the incorrect application by the Respondent of the Procedures for Managing Non-Work Related Injuries or Health Conditions to the Applicant, and then the Respondent’s non-compliance with this procedure led to the Respondent subjecting to the Applicant to the detriment of being directed to obtain a fitness for duty report and not funding the reasonable associated costs including the cost of this report (as required by Procedures for Managing Non-Work Related Injuries or Health Conditions at page 8).
The Applicant was required to obtain a medical certificate without a clear explanation from the Respondent for why this was required. The Applicant then contacted multiple doctors to arrange this to no avail. However, when her usual GP returned from leave and was able to complete documents, the Respondent refused to fund this. The Applicant spent a considerable period trying to get a GP to complete the report with minimal assistance and explanation from the Respondent.
We find that the Respondent’s incorrect and non-compliant application of the Procedures for Managing Non-Work Related Injuries or Health Conditions to the Applicant also led to the Respondent subjecting the Applicant to a detriment by directing her to attend and participate in an IME. This direction was made in the absence of genuine reason for a medical assessment and any medical advice from the Applicant’s treating doctor (as required by Procedures for Managing Non-Work Related Injuries or Health Conditions at page 9). The direction was issued to the Applicant without the Respondent considering any information from the Applicant’s treating GP.
Further, during the IME process, the Respondent:
Did not identify the specific legislative, industrial or policy provision in the referral to Dr Yu for an IME (page 8) or otherwise provide a written report as required by the procedure (pages 9 and 10).
Did not provide the Applicant with an opportunity to send a written response to Dr Yu about the information in the Respondent’s referral (page 11).
Decided that the Applicant would not directly receive a copy of Dr Yu’s report when the report was completed (page 13).
Did not facilitate a review of Dr Yu’s report when first requested by the Applicant, when the criteria for review were met (page 16). That is, at the very least, Dr Yu did not have any information from the Applicant’s treating GP.
Once the circumstances of the treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in those circumstances. The circumstances are all of the objective features which surround the actual or intended treatment of the person with disability by the "discriminator". It would be artificial to exclude from consideration some of these circumstances because they are identified as being connected with that person's disability: Purvis v New South Wales (Department of Education and Training) (2003) [2003] HCA 62 at [223]-[224].
The purpose of a “comparator” is to shed light on whether the treatment of the complainant was less favourable: GKX v Secretary, Department of Education [2024] NSWCATAD 186 at [70].
The words “less favourable” require that there be two situations or sets of circumstances, the actual and the hypothesised, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [46].
Applying the reasoning in Purvis (at [224]), the circumstances are all of the objective features which surround the actual or intended treatment of the Applicant by the Respondent. We have therefore construed the comparator as a hypothetical Administrative Support Officer (A06 level) who did not have the Applicant’s physical and/or mental health disabilities, and was in the same objective circumstances as the Applicant during the complaint period.
In Purvis, the High Court held that the test for causation is to ask why the complainant was treated as they were - what is the “true basis” for the treatment (Purvis at [157]).
The Appeal Panel in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 considered what “on the grounds” meant in a complaint of race discrimination and victimisation under the AD Act. At [36]-[37] the Appeal Panel stated that for complaints of discrimination, for that to be the case, the reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.
Section 4A of the AD Act provides:
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
Ms Cashman stated that when she started in her role, she could “see” that the Applicant had “neck mobility issues” and she needed to assess what was required to ensure work, health and safety compliance and duty of care for the Applicant. Ms Cashman could not identify why she perceived the Applicant to be “unsafe” in her work environment to warrant requiring the Applicant to undertake a workstation assessment. We are not satisfied with Ms Cashman’s general and vague explanation of owing her staff a duty of care because Ms Cashman could not identify what specific risks to the Applicant’s health and safety the Applicant would be exposed to in her workspace. We do not accept the Respondent’s submissions that referring the Applicant for a workstation assessment in the circumstances was “reasonable management action” and therefore not discrimination.
Although Ms Jankovics stated that the workstation assessment was conducted “purely” to determine how the Applicant used the workstation and if the current set-up met the Applicant’s needs or if adjustment and/or additional equipment was required, it clearly went beyond this. Ms Jankovics reported on the Applicant’s conditions and the symptoms of these, the nature of the Applicant’s duties, and commented on the suitability of the Applicant for her position. The email from Ms Lloyd to Ms Jankovics before the workstation assessment stated that the Applicant had a “number of disabilities (manager/HR are not privy to details) but which appear to limit mobility I think relating to one arm (I think right) and neck movement”.
We find that the assessment was not confined to a “workstation assessment” to accommodate the Applicant’s physical disability. The way in which this workstation assessment was conducted by the Respondent, and went beyond its scope, was then used by the Respondent to justify ongoing medical assessment, despite the results of the workstation assessment showing that the Applicant did not require workstation adjustments to perform her duties.
We find that the comparator, a hypothetical Administrative Support Officer (A06 level) who did not have the Applicant’s disabilities, who did not request or need reasonable adjustments or have any medical evidence of any need for reasonable adjustments, would not have been required to undergo a workstation assessment. The comparator also would not have been asked to disclose health information they had not previously disclosed to their employer during such an assessment or been the subject of comments provided to management about the suitability for their role. We find that the Respondent treated the Applicant in this less favourable way because of her disabilities.
We therefore find that the Respondent discriminated against the Applicant on the ground of her disabilities by subjecting her to Detriment 1.
If there is a difference in the way that the Applicant was treated and the way the comparator should have been treated, in terms of assuming that the Respondent would have dealt with the comparator by fully complying with the relevant Departmental policy, then it is open to us to find that the Applicant was subjected to less favourable treatment: Morrow v Secretary, Department of Education [2022] NSWCATAD 409 at [53]. In this case, the relevant Departmental policy is the Procedures for Managing Non-Work Related Injuries or Health Conditions.
During cross-examination, the Applicant stated that she was concerned about why she had to provide the Respondent with a fitness for duty report when she had not been involved in any reportable incidents and had no injuries. The Applicant was concerned about whether it was right that her manager could be asking for that kind of information “simply on the basis I had a physical disability.”
We are of the view that the Applicant was treated less favourably than the comparator would have been treated in the same or similar circumstances. The comparator would not have been asked to obtain a fitness for duty report. There was no genuine basis for a fitness for duty report under the Procedures for Managing Non-Work Related Injuries or Health Conditions as noted at [128] above. That is, there was no need for the Respondent to seek medical advice on how to safely manage a non-work related injury or health related issue affecting the Applicant’s ability to perform the inherent requirements and demands of the position in which the Applicant was engaged.
Before the workstation assessment had been completed, Ms Lloyd and Ms Cashman had already conferred about requesting the Applicant to provide a medical certificate. We find that the Respondent engaged in this less favourable treatment because of the Applicant’s disabilities.
We therefore find that the Respondent discriminated against the Applicant on the ground of her disabilities by subjecting her to Detriment 2.
We find that, in the same or similar circumstances, the comparator, would not have been required to attend and participate in an IME.
During cross-examination, the Applicant was questioned at length about her medical history, based on the IME report. The Respondent submitted that it was a “curious aspect” of the Applicant’s case that she “proceeds on a partially disclosed list of disabilities”. The Respondent did not articulate the relevance of this submission to any issue in dispute.
To explain its conduct, the Respondent sought to rely on retrospective justifications or matters that were not raised contemporaneously with the Applicant, including the Applicant’s sick leave record and other medical conditions that were referred to in the IME report. If the Respondent was submitting that the Applicant was unable to carry out the inherent requirements of the position, that is not a defence on which it relied.
There was no reference in the referral for the IME to the Applicant’s sick leave record or any of the Applicant’s other medical conditions as a reason for the IME. The Respondent did not, at any time during the complaint period, investigate the reasons for the Applicant’s sick leave or assess whether there were any medical conditions requiring management. The Applicant stated that simply taking leave does not equate to a medical condition and there was no enquiry into whether her leave was related to a pre-existing condition. The Applicant stated that any attempt to link her leave to a disability or health condition is speculative and lacks medical or factual basis. We agree with this statement.
Ms Lloyd simply stated in the referral for the IME that the Respondent was “notified” that the Applicant “has a history of congenital medical conditions that affect her fitness for duty” and that the Respondent “requires further information regarding the potential impact on the workplace, including clarification of any additional recommended restrictions or supports WSLHD should consider in relation to” the Applicant’s “safe return to the workplace.” There was no medical evidence available to the Respondent at the time of Ms Lloyd making the referral for the IME that the Applicant’s history of congenital medical conditions (which includes her physical disability) affected her fitness for duty. Further, at the time, the Respondent had not directed the Applicant not to return to work, and so there was no need to consider how she could safely return to work. We find that this referral by Ms Lloyd was misleading, not based on accurate evidence and non-compliant with the Procedures for Managing Non-Work Related Injuries or Health Conditions.
We are of the view that the Applicant was treated less favourably than the comparator would have been treated in the same or similar circumstances, as the comparator would not have been referred to an IME in the first place. If there was a basis for the IME, the Procedures for Managing Non-Work Related Injuries or Health Conditions would have been followed by the Respondent, including the referral process. We find that the Respondent engaged in this less favourable treatment because of the Applicant’s disabilities.
The Respondent then refused to provide the Applicant with a medical assessment review process in accordance with the Procedures for Managing Non-Work Related Injuries or Health Conditions, even though the criteria for review was met.
The Respondent decided not to provide a copy of Dr Yu’s report directly to the Applicant. This limited her ability to review the IME report at a time when decisions were being made by the Respondent about her fitness for duty.
We find that the comparator would have:
Been given the opportunity of a review of the IME report in accordance with the Procedures for Managing Non-Work Related Injuries or Health Conditions prior to being deemed unfit for duty*.*
Received a copy of the IME report and therefore been prepared for any meetings with the Respondent about the report.
Been consulted about the reasonableness of the conditions, as the Procedures for Managing Non-Work Related Injuries or Health Condition**s requires, prior to the Respondent making up its mind about the Applicant being unfit for duty and deciding that she not return to work.
We find that the Applicant was treated less favourably than the comparator by the Respondent’s action of not properly consulting with the Applicant and considering the findings and recommendations of Dr Yu’s report, which denied the Applicant procedural fairness in decisions that were made by the Respondent about her fitness for duty. Ms Lloyd had in fact made up her mind to demote the Applicant before any consultation with the Applicant, and this is because, in our view, she had already formed the view that the Applicant should not remain in her position because of her disabilities.
Two of the four conditions in Dr Yu’s report, which contributed to the Respondent’s decision to deem the Applicant unfit for duty, namely how the Applicant travels to and from work and what other people say to her, are not factors that mean she cannot perform the inherent requirements of her role. We are of the view that the Applicant was treated less favourably to the comparator by the Respondent’s reliance on these irrelevant conditions, and that this was because of her disabilities (her physical disability and her mental health). We find that the Respondent would not dictate to the comparator how they are to travel to work or how they are spoken to by other employees.
We therefore find that the Respondent discriminated against the Applicant on the ground of her disabilities by subjecting her to Detriment 3.
Prior to Detriment 3, as we have found, the Respondent discriminated against the Applicant by subjecting her to the detriment of the workstation assessment, then discriminated against her by subjecting her to the detriments caused by the Respondent’s incorrect and non-compliant application of the Procedures for Managing Non-Work Related Injuries or Health Condition**s. The Respondent subjected the Applicant to these detriments on the ground of her disabilities. The Applicant was placed in the circumstances of Detriment 4 because of the Respondent’s unlawful discriminatory conduct up until that point.
The Respondent’s decision, then, to deem the Applicant unfit for duty and direct her to take leave was, in our view, a product of their prior discriminatory conduct against the Applicant and because of the beliefs that Ms Cashman and Ms Lloyd had formed as at June 2022, that the Applicant should not be in her position due to her disabilities. At that time, when Ms Cashman and Ms Lloyd decided to offer the Applicant a lower graded position, Ms Cashman had at the forefront of her mind her observation that the Applicant did not have functionality of her left hand and neck mobility issues (what she described as the Applicant’s physical limitations) and the Applicant’s mental disabilities.
In Paramasivam v Wheeler & Ors [2001] FCA 231, the Court stated the following at [20]:
“20. There may be cases where discrimination can be demonstrated by reference to matters of evidence. For example, a person against whom a complaint of discrimination is made may well say words which clearly demonstrate the discrimination. But, there will be many cases - the applicant suggests that the present is an example - where the discrimination will not be able to be proved directly by reference to oral or written statements. There may well be cases where discrimination may be able to be inferred from a course of conduct or even where, while the existence of a course of conduct might leave open the possibility of discrimination, proof of the discrimination would only be able to be made out if the person who wrote the correspondence were in fact cross-examined upon it.”
During the meeting on 22 May 2023, when the Applicant was advised she was deemed unfit for duty and directed to take leave, Ms Cashman repeated the phrase “duty of care” as reasons for the actions she took in first referring the Applicant for a workstation assessment. However, during cross-examination, Ms Cashman was unable to say what specific risks the Applicant was exposed to, whether there was any condition that prevented the Applicant from performing the inherent requirements of her position or any examples of the Applicant not satisfactorily performing the tasks that Ms Cashman gave her. When directly asked how the Applicant seemed unsafe in her workspace at the time, Ms Cashman’s response was “that’s a really hard question” and that she wanted to make sure that the Applicant had the “right equipment” and “I just thought she didn’t have functionality of her left hand”. We find that Ms Cashman’s statements of taking action because of a “duty of care” were not the real reason for her conduct. The real reason that Ms Cashman embarked on a course of discriminatory conduct towards the Applicant was the Applicant’s disabilities, primarily what Ms Cashman observed as the Applicant’s physical limitations.
We are satisfied that it is reasonable for us to infer, on the basis of all the evidence before us including all the Respondent’s unlawful discriminatory conduct up until Detriment 4, that the Applicant’s disabilities were one of the real, genuine or true reasons for why she was treated the way she was in respect of Detriment 4. The Applicant’s disabilities clearly played a part in the Respondent treating her less favourably than the comparator in being deemed unfit for work and directed to take leave. In the same or similar circumstances, a comparator would not have been placed in this position. We are satisfied the reason for this less favourable treatment was the Applicant’s disabilities.
We therefore find that the Respondent discriminated against the Applicant because of her disabilities by subjecting her to Detriment 4.
The Respondent submitted that if we were to find that the Respondent has directly discriminated against the Applicant, that s 54 of the AD Act applies. This provision states that nothing in the AD Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:
Any other Act, whether passed before or after the AD Act (AD Act, s 54(1)(a))
Any regulation, ordinance by-law, rule or other instrument made under any such other Act (AD Act, s 54(1)(b)).
The onus in proving that an exception applies to unlawful conduct under the AD Act lies on the Respondent (AD Act, s 104).
The Respondent relies on s 17 of the WHS Act:
17 Management of risks
A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable, and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
The Respondent, however, failed to identify precisely what risks to the Applicant’s health and safety it was trying to eliminate to justify the course of unlawful discriminatory conduct against the Applicant upon which it embarked. Ms Cashman failed to identify why she thought that the Applicant was “unsafe” or what was hazardous or unsafe about the Applicant’s workstation. It was only because Ms Cashman observed that the Applicant had a physical limitation in her hand and in turning her head that she initiated the course of less favourable treatment of the Applicant.
The Applicant did not require adjustments to her workspace, as she identified during recruitment, and never requested any adjustments to her workspace either within her role with the Respondent or in any other role with other employers. Ms Jankovics concluded, after conducting the workstation assessment, that the Applicant did not require specific workplace adjustments to meet the needs of her condition. Nonetheless, the unlawful discriminatory conduct by the Respondent continued and culminated in the Applicant being required to take leave and not return to work.
We are not satisfied that the Respondent discharged the onus to prove that it is excepted from conduct that is unlawful under the AD Act.
It follows that the Applicant has substantiated her complaint in part.
The Applicant seeks the maximum available award ($100,000) of general damages under s 108(2)(a) of the AD Act for the hurt, humiliation and injury to feelings she has suffered, because of the Respondent’s unlawful discrimination. The Applicant submitted that what she has suffered is objectively serious, and that in taking into consideration the community standards and public interest in ensuring that NSW Health treats its employees with disability with dignity, autonomy and respect, this case warrants a high award of general damages.
In interpreting s 108 of the AD Act, regard must be had to the purpose and context of the section within the AD Act as a whole. The long title of the AD Act is: “An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”. The overriding purpose of relief under the AD Act is to provide redress for injury and loss suffered, and the legislation must be interpreted as beneficial in nature in terms of the question of what amounts to any “loss or damage”: Hardiman v Parramatta City Council (No 2) [2025] NSWCATAD 260 at [20].
Section 108(2)(a) of the AD Act requires that the loss or damage suffered by the Applicant has to be “by reason of” the Respondent’s conduct. The question is whether the defendant's breach "materially contributed" to the loss or damage suffered even if other factors more significantly caused the loss (unless intervening conduct caused the loss): Tallong Park Association Inc v Sutherland; Sutherland v Tallong Park Association Inc (EOD) [2007] NSWADTAP 19, at [66]-[67].
The Applicant pointed to cases from both state and federal jurisdictions where a range of awards of general damages were made. However, as the High Court has stated in O’Brien v Dunsdon (1965) 39 ALR 78 at [78]:
“78. Each case must be considered in the light of its own facts and an assessment made of the amount which can fairly be regarded as reasonable compensation for the injuries and disabilities which a plaintiff has sustained. It is true, as has been observed on other occasions, that it is impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values. But, nevertheless, some attempt must be made to assess a reasonable sum, remembering, whilst attempting to do so, that it is not possible by payment of an amount of compensation to effect a restitutio in integrum and that the assessment should be made having regard, as far as possible, to the general standards prevailing in the community.”
“95. 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:
187 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.”
Regard must be had to the statutory cap in the Tribunal’s jurisdiction as a benchmark of the most serious case: Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107 at [324].
Concerning the quantification of damages for hurt feelings and distress, courts have repeatedly asserted that awards for such loss should not be minimal, because this would tend to trivialise or diminish respect for the public policy: Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 per Kenny J at [83] quoting the English Court of Appeal in Alexander v Home Office [1988] 1 WLR 968 at 965 and adopted by the Tribunal in Yelda at [323].
In Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217 at [42], Wilcox J also quoted Alexander and observed:
“42. …But damages for such matters as injury to feelings, distress, humiliation and the effect on the claimant's relationships with other people are not susceptible of mathematical calculation. The assessor of damages must make a judgment as to an appropriate figure to be allowed in respect of these figures. But to say this is not to denigrate the importance of such non-economic factors in the assessment of damages. It may be unfortunate that the law knows no other way of recognising, and compensating for, such damage; but this is the fact. To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in respect of a proved item of damage. I respectfully adopt, as a statement of principle useful in this area of the law, what was said by May LJ, of the English Court of Appeal in a racial discrimination case, Alexander v Home Office (1988) 1 WLR 968 at p 975:
"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards. Further, injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or the mind which may persist for months, in many cases for life."”
The Applicant is not required to provide medical evidence or evidence of pecuniary loss in support of a claim for general damages: Magar v Khan [2025] FCA 874 at [164].
Notwithstanding this, the Applicant provided a report by her treating psychologist completed in July 2024. The Applicant’s psychologist had seen the Applicant for sessions over a two-year period. The psychologist stated that the “instability in her employment status and the manner in which this took place have deepened her depressive symptoms” and the Applicant had “reported experiencing persistent sadness, feelings of worthlessness and a severe sense of hopelessness, which have significantly affected her daily functioning and quality of life”. The psychologist stated that “the emotional and psychological impact” the Applicant “has been profound and this has exacerbated her pre-existing conditions and associated barriers”. The Applicant has clearly suffered significant psychological effects over an extended period because of the Applicant’s conduct. This evidence was unchallenged by any other expert evidence. The evidence was credible and we accept it.
The Applicant provided her GP medical records, which described her Anxiety and Depressive symptoms being correlated with difficulties at work and feeling discriminated against between 2022 and 2024. The Applicant also provided a report from her GP dated 17 October 2024 which states that “exacerbation of pre-existing anxiety/depressive illness secondary to alleged unfair/discriminatory workplace practices”. The GP stated that he believes that the Applicant’s employment with the Respondent “is the predominant cause of her current presentation.” This evidence was also unchallenged by other expert evidence and we accept it.
Ms Lloyd required the Applicant to sign an authority to release information about her health, and used this to obtain records from two hospitals that the Applicant had attended, rather than specific doctors who had treated the Applicant. The Applicant had, prior to this, taken steps to maintain some privacy in relation to her health insofar as it did not impact on her ability to perform the inherent requirements of her position, and preserve her dignity. That privacy and dignity was unnecessarily stripped from her by the conduct of the Respondent.
The Applicant stated that she would “give anything to go back to work” and that work was “very meaningful” for her. The Applicant stated that she is deeply frustrated and disheartened by the continual scrutiny she was subjected to, particularly when it comes to her own abilities and limitations. The Applicant stated that she felt she was under scrutiny because she had a disability and was subjected to “paternalistic and outdated” beliefs held by the Respondent that a person with disability is at increased risk of injury. The Applicant stated that the constant questioning of her ability to recognise her own limits not only caused her to feel infantilised, but also disregards her lived experience and autonomy. The Applicant described feeling overwhelmed and disempowered. We accept that the Respondent’s unlawful conduct adversely affected the Applicant’s sense of self-worth and confidence.
The Applicant has established that the Respondent’s unlawful conduct materially contributed to hurt, humiliation and injury to her feelings.
The Respondent’s unlawful discriminatory conduct was not a one-off incident, but several consecutive incidents of less favourable treatment over the period of nearly one year by several of its senior staff members. The conduct is objectively very serious. The hurt, humiliation and injury to the Applicant’s feelings have not been of short duration, but have continued over the course of the complaint period and since the complaint period. Such conduct contravened community standards and deprived the Applicant of the autonomy, respect and dignity to which she is entitled. We are of the view that the Respondent should pay the Applicant damages and that the amount paid should be substantial. A minimal amount would trivialise or diminish respect for public policy and undermine the purpose of the AD Act in rendering disability discrimination unlawful and promoting equality of opportunity between all persons.
In all the circumstances, and while the harm the Respondent caused to the Applicant cannot necessarily be put into a monetary value, our assessment is that the Respondent should pay the Applicant general damages of $55,000 by way of compensation for the hurt, humiliation and injury to her feelings caused by reason of the Respondent’s unlawful discriminatory conduct. This amount is reflective of our findings, as well as the fact that the complaint is substantiated in part.
The Applicant seeks an apology from the Respondent pursuant to s 108(2)(d) of the AD Act. The apology is an acknowledgement of the wrongdoing and, seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings. It can properly be compelled by way of order: Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) [2005] NSWADT 24 at [29].
In seeking this order, we accept that the Applicant considered that an apology from the Respondent will be of benefit to her. An apology will at least go some way in acknowledging or recognising the Applicant’s hurt because of the Respondent’s conduct.
The Respondent is a State Government department, and given our findings on the seriousness of Respondent’s conduct, and the effect that it has had on the Applicant, a written apology for its unlawful discriminatory conduct is appropriate.
The Applicant submitted that it is clear from the evidence of Ms Cashman and Ms Lloyd that at best they were confused about the policies and procedures that govern the performance management and treatment of employees with disability. At worst, they held a paternalistic view that caused unlawful discrimination contrary to the AD Act.
We are of the view that the Respondent’s senior staff in this Local Health District lacked knowledge of and failed to apply the relevant procedures, which caused the Applicant significant detriments. We have made findings as to the seriousness of the Respondent’s unlawful discriminatory conduct. We therefore are of the view that it is appropriate that an order be made pursuant to 108(2)(c) of the AD Act, that the Respondent, within 6 months, is to provide all executive level management staff employed by the Respondent in the Western Sydney Local Health District training in disability discrimination under the AD Act including any relevant policies and procedures.
The Applicant has substantiated her complaint in part.
After having considered the general principles in awarding compensation under the AD Act, we are of the view that due to the significant level of hurt, humiliation and injury to feelings that the Respondent caused the Applicant, and the seriousness and extensive nature of the Applicant’s unlawful conduct, it is appropriate to order that the Respondent pay the Applicant the sum of $55,000. We are also of the view that it is appropriate for the Respondent to provide the Applicant with an apology and ensure that its executive staff are trained in disability discrimination.
**********
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
Paragraph 198 amended from 12 months to 6 months.
Donald-Stanton
Secretary, Ministry of Health
[2003] HCA 62
[2012] FMCA 338
(1988) 20 FCR 217
(1965) 39 ALR 78