Pursuant to section 136 of the Equal Opportunity Act 1995 this Tribunal orders -

1. It finds that the Respondent indirectly discriminated against the Complainant on the basis of his impairment by terminating his employment in breach of s14(b) of that Act.
2. On or before 31 December 2007 the Respondent must pay to the Complainant compensation for the loss, damage or injury suffered by the Complainant in consequence of that breach as follows -

(b) For lost income for the period from 13 July 2006 to 31 December 2006 (both inclusive), $383.72 (being three days of 7.6 hours each at an hourly rate of $16.83), and loss of employer superannuation contributions at $34.54 - a total of $418.26)

1. In all other respects, I find the complaint not proven and dismiss it.
2. The parties' costs are reserved. The parties have liberty to apply for those costs (including other reserved costs) on reasonable notice to each other and the Tribunal.

1. I have found the complaint proven in part. I have found that the Respondent (Mader) indirectly discriminated against Mr Duma on the basis of his impairment by terminating his employment in breach of the Equal Opportunity Act 1995 (the EO Act). I have ordered Mader to pay to Mr Duma compensation by way of general damages and by way of damages for loss of income and other financial loss in respect of that breach. Otherwise, I have found the complaint not proven and dismissed it. The order permits applications for costs.

1. On 3 August 2006, Mr Duma lodged with the body now called the Victorian Human Rights and Equal Opportunity Commission (the Commission) a complaint under the EO Act. The Commission declined to entertain the complaint as lacking in substance under s108(1) of the EO Act. That provision permits the Commission to decline a complaint on that ground.
2. Mr Duma, as was his right under the EO Act, required the Commission to refer the complaint to VCAT. It did so by letter dated 17 October 2006.
3. The hearing of this matter has been somewhat delayed because of related WorkCover proceedings. Ultimately, I heard the matter in October 2007.
4. Mr Duma's claim, as clarified by his particulars of complaint and by his counsel at hearing, is that Mader directly and indirectly discriminated against him in breach of the EO Act by terminating his employment. He also claims that the termination process subjected him to a detriment in his employment and also constituted direct and indirect discrimination. He asks for orders for reinstatement and compensation. He asks for compensation by way of general damages and damages for loss of income and loss of superannuation contributions.
5. I first say something about the law in general terms. I then consider the evidence and make findings. I next consider the issues and submissions. Finally, I deal with remedy.

1. This is a claim of impairment discrimination. Section 4 of the EO Act defines impairment to include (among other things) 'partial loss of a bodily function', 'partial loss of a part of the body', and 'malfunction of a part of the body' which also includes 'a mental or psychological disease or disorder'[1].
2. The effect of s7 is this. Discrimination includes direct and indirect discrimination on the basis of an attribute. The attributes on the basis of which the Act prohibits discrimination are listed in s6. 'Impairment' is one of them.
3. The effect of ss8 and 10 is this. Direct discrimination occurs if a person treats someone with an attribute less favourably than the person would treat someone without that attribute or with a different attribute in the same or similar circumstances. The attribute need not be the only or a dominant reason for the treatment, but must be a substantial reason for it. It is irrelevant whether the discriminator was aware of the discrimination or considered the treatment less favourable. The discriminator's motive is also irrelevant.
4. Section 9 is about indirect discrimination. Section 9(1) and (2) provide -

(1) Indirect discrimination occurs if a person imposes, or proposes to impose,a requirement, condition or practice-

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including-

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

1. The effect of s9(3) and s10 is this. It is irrelevant whether the discriminator is aware of the discrimination and the discriminator's motive is also irrelevant.
2. I mention some of the principles which can be drawn from the authorities concerning indirect discrimination. In determining the reasonableness of a requirement, condition or practice, one relevant factor is the purpose of the requirement, condition or practice and whether the requirement, condition or practice is adapted to that purpose. The reasons advanced in favour of the requirement, condition or practice must be balanced against its impact on the complainant. The test of reasonableness is less than one of necessity but more than one of convenience. The relevant factor is also whether the requirement is rational or logical. Inability of a complainant to comply with a requirement or condition means more than absolute inability to comply. A complainant will also be unable to comply with a requirement or condition if, because of his or her attribute, he or she cannot comply in a similar way or to a similar extent as, or with respect to compliance is at a significant disadvantage with respect to, a person without that attribute. In considering alternative requirements or conditions, the test is not whether those alternatives are reasonable, but whether the requirement or condition actually imposed was unreasonable. The purpose of the section is not to determine whether an exception should be made for a particular complainant[2].
3. Among other things, s14 provides that an employer must not discriminate against an employee by dismissing the employee or otherwise terminating his or her employment or by subjecting him or her to any other detriment[3]. 'Detriment' has been held to include any kind of disadvantage, as long as it a real and not illusory disadvantage[4]. Section 4 expressly includes humiliation and denigration in the meaning of detriment.
4. The onus of proving a complaint is on the complainant. The standard is the balance of probabilities. I deal with a submission made by Mader about the standard of proof under the heading 'Evidence and findings'.

1. I have before me witness statements and oral evidence from Mr Duma and his treating psychiatrist Dr. Wahr, and oral evidence from his treating general practitioner Dr. Sheriff. For the Respondent, I have before me witnesses statements and oral evidence from the Company's former general manager at the time of the alleged discrimination Mr O'Brien, Mader's business manager Mr Taylor, Mader's Victorian state manager Mr Barker, and Mr Duma's supervisor Mr Cook. A significant number of documents were tendered in evidence.
2. My approach to the evidence is this. I accept the medical evidence given by Drs. Wahr and Sheriff. There are attached to the witness statements and admitted into evidence parts of medical reports from other doctors and a record of decision in relation to Mr Duma made by a medical panel on 7 March 2007. Mr Duma had appealed the rejection of a workers' compensation claim to the Magistrates' Court, and the Magistrates' Court referred the matter to this medical panel. The only doctors who gave evidence in this proceeding were Drs. Wahr and Sheriff. Their evidence was tested by cross-examination. I do not dispute the expertise of those on the medical panel, but they did not give evidence before me. I prefer and accept the evidence of Drs. Wahr and Sheriff. They have treated Mr Duma over a long period and still treat him.
3. While Mr Duma's witness statements were clear, his oral evidence was littered with statements to the effect that he did not recall or did not remember numerous events. Some of his oral evidence was inconsistent with his witness statements. I accept Mr Duma's evidence that, on the night before the first day of the hearing, he had not slept and had taken a double dose of various medications. I accept the evidence of Drs. Sheriff and Wahr that this sleeplessness, Mr Duma's chronic pain, and some of his medications would to some extent have affected his memory and concentration. I take this into account in weighing Mr Duma's evidence. But I also consider that some aspects of his evidence were less than frank. In some respects, what he remembered seemed to me selective, relating only to matters favourable to him rather than those that were not. While this did not taint the whole of his evidence, it affected the weight of some of it. Where there was conflict between his evidence that of Mr Barker, Mr Taylor or Mr Cook, I prefer their evidence to his. I found them all reliable witnesses.
4. I have given very little weight to the evidence of Mr O'Brien. From his oral evidence, it appeared that he had almost no recollection of any of the matters described in his witness statement. I have based findings on what was in his witness statement only where these matters were dealt with by other witnesses whose evidence I found reliable.
5. Mader submitted that I should, in using the balance of probabilities standard of proof, apply the principles in Briginshaw v Briginshaw[5]. Mader submitted that Mr Duma had made very serious allegations against its senior managers and their reputation and that I should be cautious in my findings, having regard to the gravity of these allegations. As will be seen, the view I have taken of the evidence means that it is unnecessary for me to make findings about the voracity of various disciplinary claims against Mr Duma which he disputed. However, I have made findings about the history of Mr Duma's employment prior to its termination, and what counselling or warnings he received. This is because of Mader's argument that these matters had some relevance to the reasonableness of its requirement or condition at termination time.

1. Mader is a company whose activities include the servicing, maintenance, and repair of Metropolitan Ambulance Service (MAS) ambulances and other patient-support vehicles. The main service/repair contract is between MAS and GE Fleet Capital (GE). GE in turn subcontracts work to Mader. The work which it subcontracts to Mader includes repairs and servicing by 'mobile mechanics'. These are mechanics who repair, test drive and service ambulances and other vehicles 'on the road' or at MAS depots. Mader's group of these mechanics was called the Mobile Response Group.
2. Mader's contract with GE also related to repairs on ambulances and other vehicles in Mader's Yarraville workshop. It employed mechanics in those workshops for that purpose.
3. Under its contract, GE exercised substantial control over the Mobile Response Group and the allocation of jobs to that group.

1. Mr Duma began working with Mader in May 2001. After a short period of training, he was assigned (until May 2004) to Mader's Mobile Response Group.
2. It is clear that from at least 2002 onwards his relationship with Mader has been difficult and characterised by a substantial number of disputes.
3. On 31 October 2002, Mr Schocker, a GE manager, complained to the Mader manager Mr Barker about what was said to be the erratic driving of an ambulance driven by Mr Duma. Mr Barker gave Mr Duma a first warning in respect of this matter.
4. On 20 May 2003, Mr Barker gave Mr Duma a second warning. This warning concerned a complaint by a member of the public to Mader alleging erratic driving of an ambulance by Mr Duma.
5. On 3 June 2003, Mr Schocker raised with Mader what was said to be inadequate work performance by Mr Duma. Mader's manager Mr Barker and Mr Duma's supervisor Mr Cook discussed with Mr Duma improvements to be made.
6. On 18 June 2003 Mr Barker received another complaint from GE about Mr Duma's work performance. GE required immediate improvements to be made. By an email dated 23 June 2003, Mr Barker told GE that Mr Duma would work in the Company's workshop for the next two weeks under close supervision and would undergo refresher training during that time, and thereafter would be more closely monitored while working.
7. On 6 October 2003 two members of the public complained to Mr Barker about erratic driving of an ambulance by Mr Duma. Mr Barker again warned Mr Duma.
8. On 5 April 2004, Mr Duma was transferred by Mr Barker from the Mobile Response Group to Mader's workshop for an indefinite period. I am satisfied that Mr Barker told Mr Duma that the reasons for the transfer were his work performance, driving issues, and what was said to be an altercation with another staff member. It is clear that Mr Duma disputed the reasons for his transfer.
9. On 6 May 2004, Mr Schocker of GE advised Mr Barker that GE would no longer accept Mr Duma as a member of the Mobile Response Group. On 7 May 2004 Mr Barker explained to Mr Duma that, because of this, Mr Duma would not be returned to that group but would continue to work in the workshop.
10. On 17 August 2004, Mr Barker spoke to Mr Duma about what was said to be inappropriate conversation with other workers concerning work pay and conditions. It is clear that Mr Duma, in his turn, alleged that other workers had physically and verbally abused him. Mr Duma's oral and written evidence before me were inconsistent as to whether there had been a physical attack.
11. On 31 August 2004, Mr Barker counselled Mr Duma for having materials from vehicles in the workshop in his private car. He gave Mr Duma a verbal warning. On 11 November 2004 and again on 23 December 2004, Mr Barker spoke to Mr Duma about complaints in relation to Mr Duma by other workers in the workshop, and about a complaint by Mr Duma against those workers. Mr Barker's contemporary notes of these conversations show that the emphasis seems to have been have been on better relations in the future, and that no warnings were given.
12. On 2 September 2005, Mr Barker again spoke to Mr Duma about what he appears to have regarded as inappropriate comments by Mr Duma to other workers about pay and conditions. Mr Barker's contemporaneous notes indicate that no warning was given.
13. On 11 October 2005, Mader received a complaint from GE concerning alleged erratic and dangerous driving of an ambulance, which the Company's records show was driven by Mr Duma. Mr O'Brien directed that Mr Duma not drive these vehicles until further notice. Mader wrote to Mr Duma providing relevant documentation and asking for an explanation.
14. On 24 October 2005, GE's manager, Mr Schocker, wrote to Mr Barker requiring that Mr Duma be removed from working on any vehicles subject to its contracts with Mader. On 26 October 2005, Mader's manager Mr O'Brien wrote to Mr Duma advising him of its decision that he should no longer work on these vehicles. The letter also explained that Mr Duma's training could not continue and that a dispute (between Mr Duma's union on his behalf and Mader) then before the Australian Industrial Relations Commission (AIRC) would be referred back to that Commission. I deal with these matters later. The letter ended by explaining that the Company would need to address the issue of Mr Duma's ongoing employment.
15. There was a suggestion in Mr O'Brien's written and oral evidence that a final written warning had been issued to Mr Duma on 23 June 2003. This document was never produced. I am not satisfied that this final warning was issued.

1. On 16 May 2005, Mr Duma's union (the AMWU) filed with the AIRC notification of a dispute based on alleged unilateral transfer from the Mobile Response Group to Mader's workshop, and alleging demotion and lowering of his rate of pay. On 23 May 2005, at a conciliation conference at the AIRC, the parties agreed that Mr Duma would receive five weeks of additional training to commence when he resumed work. He was then on injury-related absence from work. It was agreed that, if the training was successfully completed, Mr Duma would return to the Mobile Response Group. The training occurred under the supervision of the training organisation, Automotive Training Victoria, in late July and early august 2005.
2. A dispute arose between Mader and Mr Duma as to whether the training had been successfully completed. Another conciliation conference in the AIRC occurred on 31 August 2005. The parties agreed that Mr Duma was to undertake further training, this time supervised by the Kangan Batman Institute of TAFE. Mr Duma commenced this training in early October 2005. His evidence was that he successfully completed it. But contemporary letters from Kangan Batman TAFE indicated that he completed only the knowledge component of the training, but not the practical component. I accept this evidence. I also accept Mr Barker's evidence that the training was never completed because of GE's direction to Mader that Mr Duma not work on any of its vehicles, and also because of Mr Duma's own absence from work from November 2005 onwards.
3. A further conciliation conference in the AIRC occurred on 8 November 2005. It appears that no settlement was reached.
4. Mr Duma has twice applied to the AIRC in relation to alleged termination of employment. Both applications alleged that the termination was harsh, unjust or unreasonable, or made for a prohibited reason under s170CE of the Workplace Relations Act 1996 (the Workplace Relations Act). The first application, filed on 23 December 2005, claimed that the termination of employment had occurred on 30 November 2005. The AIRC dismissed this application for want of jurisdiction, after a hearing on 20 February 2006 and by decision dated 23 March 2006. The basis of the decision was that it was not satisfied that Mr Duma's employment had been terminated.
5. The earlier industrial dispute was also heard on 20 February 2006, with a decision being handed down on 28 March 2006. That dispute was also dismissed on the basis that, in the public interest, it was not necessary or desirable that it be further dealt with.
6. On 27 June 2006, Mr Duma filed in the AIRC his second application concerning termination of his employment. That related to what the parties do not dispute was the actual termination of his employment. Mr Duma subsequently discontinued that application.
7. Mr Duma has ongoing appeals in relation to the rejection of WorkCover claims against Mader. He has, at least twice, complained against Mader to the Accident Compensation Conciliation Service. As well as the complaint to which this case relates, he also lodged an earlier complaint with the Commission against Mader. That complaint was based on the alleged termination of his employment on 30 November 2005, and alleged industrial activity discrimination. That complaint was declined by the Commission, referred to VCAT, and later withdrawn. Mr Duma has also complained against Mader to the Federal Office of the Workplace Advocate, alleging award breaches in relation to his working conditions with Mader. The file on that complaint was closed in December 2006.

Mr Duma's injuries and the circumstances surrounding them.

1. On 12 April 2005, while doing mechanical work under a vehicle in Mader's workshop, Mr Duma felt his neck click. By 13 April 2005, he was in considerable pain. He reported the injury in Mader's register of injuries, left work, and went to his treating general practitioner, Dr. Sheriff. From 13 April 2005 to 24 June 2005, Dr. Sheriff issued him with a series of work capacity certificates showing him to be unfit for all work duties, describing the injury as an injury to the neck muscles and a cervical disc prolapse. The certificates also mention analgesic medication and physiotherapy.
2. On 18 May 2006, Mr Duma made a WorkCover claim in respect of this injury. Mader accepted the claim on 30 May 2006.
3. On 21 June 2005, Dr. Sheriff certified that Mr Duma was fit to return to work on light duties from 27 June to 12 July 2005. Restrictions were placed on him such as no bending, and no lifting. Mader arranged for a return to work program to be prepared.
4. Mr Duma was due to return to work on 28 June 2005. In fact, he returned to work on the following day, and by that time had been given a full clearance to return to what Dr. Sheriff said were his normal duties as a mobile mechanic. That certificate of fitness was back-dated to 25 June 2005, and was given to Mader by Mr Duma. It is clear from Dr. Sheriff's evidence that Mr Duma did not tell him that he had been transferred from mobile mechanic duties to the workshop, and that (based on the information given by Mr Duma) Dr. Sheriff certified him fit for what he thought were his normal duties at the time. On Mr Duma's return to work on full duties, the first WorkCover claim was terminated.
5. Mr Duma's evidence was that he continued to suffer neck and back pain and in his left shoulder, left arm and left fingers. However, the evidence from the witnesses for Mader and from Dr. Sheriff was that he did not see Dr. Sheriff between July and early November 2005, did not record any injuries in Mader's registry of injuries, did not complain of pain to the Company's management, and continued to work on full duties.
6. On 4 November 2005, Mr Duma was absent from work. He contacted the manager Mr Barker and explained that he had been in a car accident the previous evening. Dr. Sheriff certified him as unfit for all duties on that day.
7. On 7 November 2005, Mr Duma requested and was granted two weeks annual leave on the basis that without a car he was unable to get to work.
8. Mr Duma was due to return to work on 21 November 2005. He has not returned to work since that date until the termination of his employment which was effective 13 July 2006. Dr. Sheriff has issued work capacity certificates covering this period and certifying Mr Duma to be continuously unfit for all work. The certificates from this period show him as suffering from injury to the neck and back and, at least from 18 April 2006 onwards, from depression. I deal with these matters in more detail under the heading 'medical evidence'.
9. Mr Duma's second WorkCover claim against Mader was lodged on 28 November 2005. It made claim in respect of the injury of 12 April 2005 (to the neck) and also for work-related stress. On 15 December 2005, Mader rejected the claim. It suggested that, since Mr Duma had minimal paid sick leave, he might take his annual leave. Mr Duma did this. He applied for and was granted annual leave from 16 December 2005 to 18 January 2006.
10. On 20 December 2005, Mr O'Brien (in the presence of Mader's business manager Mr Taylor) spoke to Mr Duma by telephone. There is no dispute that Mr Duma was very emotional during that conversation. He spoke about feeling 'bad', wondering how he would survive, and complained about the lateness of his annual leave entitlement being paid into his account. This was the last direct conversation that Mr Duma had with Mader's management. From the end of his paid annual leave on 18 January 2006 and until the termination of his employment on 13 July 2006, he continued on unpaid sick leave. In accordance with the relevant ward, he was, during this period, paid for public holidays.
11. On 7 December 2005, Mr Taylor contacted Mr Duma's treating general practitioner Dr. Sheriff, to arrange a meeting with him and Mr Duma concerning Mr Duma's return to work. The meeting date was set for 13 December 2005, and Mr Taylor forwarded to Mr Duma and Dr. Sheriff a letter confirming that date. Mr Duma's evidence was that he did not recall receiving the letter and denied knowledge of the meeting. On the evidence, I am not satisfied that he knew about the meeting.
12. On 13 December 2005, Mr Barker and Mr Taylor met Dr. Sheriff. Mr Duma was not at the meeting. Dr. Sheriff does not recall the meeting and his notes do not mention it, but I accept Mr Barker and Mr Taylor's evidence that a brief meeting occurred. At this meeting, Dr. Sheriff indicated to these managers Mr Duma's unfitness for all work until 20 January 2006. Nevertheless, on 21 December 2005, Mr Taylor sent to Mader's insurer (CGU Workers' Compensation Insurance Pty Ltd (CGU)) a copy of the return to work plan prepared in respect of the earlier WorkCover claim in June 2005.

1. On 20 April 2006, Mr Taylor wrote to Mr Duma. The letter (omitting formal parts) said this.

You have been absent from work since the 25th of November 2005. The Company has received nine medical certificates since this date. The last medical certificate received from your consulting Medical Practitioner dated the 18th of April 2006 stated that you were unfit to perform your full time duties as a Mechanic until the 18th of May 2006. None of the medical certificates received from your Medical Practitioner have provided a specified date of either your capacity to return to work to perform your full time duties, or a definite date for your return to work.

You have now been absent from work on unpaid sick leave for a period in excess of three (3) months. I would appreciate it if you would provide a medical report to the Company from your treating medical practitioner, Dr A.A. Sheriff indicating the expected date of your return to work and outlining any relevant information concerning your fitness to carry out the inherent requirements of your job.

I attach, for the convenience of your treating medical practitioner a copy of your job description and will ask him to determine your current work capacity to carry out the duties of your job. The Company will pay for the costs associated in the obtaining the Medical Report.

Once the Company receives the Medical Report, the Company will review your employment situation and will arrange a mutually convenient time to meet with you. The Medical Report will be kept in a secure place, and will be disclosed only to those persons who have the right to view it under the Privacy, and Health Record legislation. The Company will make a copy of the Medical Report available to you for inspection by arrangement with me.

I have attached an "Authority To Disclose Medical Information Form" for your signature, to enable the Company to obtain the Medical Report. I have also attached for your information, a copy of the letter that the Company will send to your treating medical practitioner.

The Company will send the letter to your medical practitioner as soon as it receives a signed "Authority to Disclose Medical Information Form" from you. However, given the time you have been on unpaid sick leave we would expect you to return the Authority to Disclose Medical Information Form in the self addressed reply envelope by close of business (5.00pm) on Friday the 28th of April 2006.

If you have any questions regarding the above, please contact me on my mobile ... As the Company has a reasonable management right to inquire about your capacity to return to work in the immediate future given the length of time you have been absent on unpaid sick leave, non-compliance with this request to provide medical information can jeopardise your employment with the Company.

1. Mr Duma received this letter on 24 April 2006 but did not respond to it. I accept his evidence and that of Dr. Sheriff that he signed the letter of authority to Dr. Sheriff enclosed in that letter and gave it to Dr. Sheriff. However, due to an oversight, Dr. Sheriff did not send the authority to Mader.
2. On 1 May 2006, Mr Taylor wrote again to Mr Duma. The letter (excluding formal parts) said this.

On 20th April 2006 I forwarded to you a letter and attachments, which asked you to make an appointment with your treating medical practitioner to obtain a medical report which could provide the Company with a definitive view on a possible date of your return to work. You were informed in this letter that the company would meet the cost of the medical report. You were asked to return an "Authority to Disclose Medical Information" document in a reply paid envelope by 28th April 2006. You have not returned the Authority to the Company within the required time frame.

It is important you understand that as you haven on unpaid sick leave for a period in excess of three months the business has a legitimate management right to take steps to determine whether you will have the capacity to return to work in the immediate future. Given the length of absence from your position the Company also has a right to obtain this information [to] make decisions regarding the future manning requirements of the business.

Given these circumstances the Company will provide you with a further opportunity to forward the "Authority to Disclose Medical Information" document. If you do not return the document by close of business on Thursday, 4 May 2006, the Company will have no option but to reconsider your future employment with the Company. If you need to discuss this matter with me please contact me on ...

1. I am satisfied that Mr Duma received this letter on 3 May 2006. He did not respond to it.
2. On 9 May 2006, Mr Taylor sent a third letter to Mr Duma. The letter (excluding formal parts) said this.

Absence from work on long term sick leave - Second and Final Warning

I have sent you two letters dated the 20th April 2006 and 1st May 2006 respectively. In the first letter dated the 20th April 2006 I enclosed a letter the Company wanted to send to your medical practitioner seeking a medical report, at the Company's expense, to determine whether you could return to work in the immediate and foreseeable future as you have been on sick leave since 25th November 2005. If you were agreeable to obtaining a medical certificate from your medical practitioner I asked you to return an "Authority to Disclose Medical Information Form" to the Company. I asked you to either provide a response or contact me by close of business on 28th April 2006.

As the Company did not receive a response from you by 28th April 2006 I sent you a second letter dated 1st May 2006 indicating that the Company required a response from you, as you have been on unpaid sick leave for a period in excess of three (3) months, and for manning purposes the Company has a legitimate management right to receive an indication of a date for your likely return to work.

The Company requested that you either respond to this letter or to contact me by close of business on Thursday, 4 May 2006. You were advised that your failure to either respond or contact me could result in the Company reconsidering your future employment. You have not responded by the required date.

As you have been on unpaid sick leave for a period in excess of three (3) months, the Company has now reached a stage where it needs to meet with you to provide you with the opportunity to address the status of your capacity to return to work in the immediate future. I want you to contact me to provide you with the opportunity to discuss these matters. Please contact me on ... so we can arrange a meeting time which is convenient to both you and the business.

If you fail to make contact with me prior to 5.00pm on Friday, 12 May 2006 the company will have no alternative but to give you 5 weeks notice of your termination of employment with the Company.

1. There is conflict in the evidence about whether Mr Duma received this letter. On the evidence, I am not prepared to find that he received it before 12 May 2006, the date on which the letter required him to respond to Mader.
2. On 16 May 2006, Mr Taylor sent a fourth letter to Mr Duma. That letter enclosed a copy of the third letter. I find that Mr Duma received the third letter on the date on which he received the fourth letter. The fourth letter (omitting formal parts) said this.

On 9th May 2006 I forwarded you a letter advising you that if you did not make contact with me by close of business on 12th May 2006 the Company would have no option but to give you notice of termination of your employment with the Company.

This letter, which was a second and final warning, was returned tot eh Company as Australia Post was advised by a person at the address that you had moved from this premise. However we understand that you were residing at this address at the time the letter was delivered, and still are, as your latest medical certificate of capacity has this premise as your current address. A copy of this second and final warning letter is attached.

The correspondence we forwarded to you over a period of approximately four weeks was sent to you to ascertain your fitness to return to work after you have been on unpaid sick leave for a period in excess of three months. The Company has a legitimate management right to seek your co operation in this matter given the period of time you have been on unpaid sick leave. You have failed to contact me despite the letters we have forwarded to you.

If on receipt of these letters you want to contact me you can do so on ... however you are required to do so by close of business on Thursday, 18 May, 2006.

If you do not contact me by this deadline the Company will terminate your employment by providing you with five (5) weeks notice of your termination. Accordingly, your termination of employment from the company will take effect on Thursday, 22 June 2006.

1. The fourth letter was sent to 4/22 Adelaide Street, St Albans, by both registered mail and ordinary post. The letter sent by registered mail was returned unopened. I accept Mr Duma's evidence that he went to this address daily, because it was where his ex-wife and daughter lived. He received mail delivered there. His oral evidence was that he did not recall receiving the fourth letter. However, his written witness statements say that he received it, and his solicitors (in a letter to Mader dated 31 May 2006) mention having been given this letter by Mr Duma. Mr Duma did not reply to the fourth letter, or to the third letter enclosed in that letter.
2. On 29 May 2006, Mr Taylor sent a fifth letter to Mr Duma. That letter (omitting formal parts) said this.

The Company has been trying to contact you by post over an extended period to request you contact me to discuss your long term absence from the business on unpaid sick leave. We have had problems sending you correspondence as you appear to have changed addresses on a number of occasions. Your last medical certificate dated the 18th May 2006 indicates you have now relocated to the above address.

The Company requests you contact me on ... by close of business Wednesday, 31 May 2006. If you do not abide by this lawful management instruction by the above date the Company will have no alternative but to give you notice of your termination. This notice will take effect from Thursday the 13th of July 2006.

I have attached a copy of my most recent letter to you.

1. Mr Duma received this letter on 31 May 2006 and took it to his then solicitors. His solicitors replied to Mader by a letter also dated 31 May 2006. That letter describes the termination of Mr Duma's employment as ill-conceived and required all communications with Mr Duma in future to be via his solicitors.
2. The fifth letter indicated that Mr Duma's termination would be effective on 13 July 2006. On 12 July 2006, Mader wrote to Mr Duma about his entitlements and paid them into his account.
3. Taking the five letters from Mader together, I find that it imposed on Mr Duma a requirement or condition that he contact Mader (by specified dates set in the letters) and advise it of an indicative or possible return to work date and that, to that end, he authorise his treating general practitioner to give information to Mader for that purpose. I do not accept Mader's submission that the requirement or condition was simply that he make personal contact with Mader's business manager, Mr Taylor. The requirement or condition, as I have found it to be, was coupled, at first, with a statement that Mr Duma's employment was in jeopardy if the requirement or condition was not complied with and, next, with termination of his employment if it were not complied with.

1. I have explained my approach to the evidence of Drs. Wahr and Sheriff in my general comments under the heading 'evidence and findings'. I accept their evidence.
2. Mr Duma has never told Dr. Wahr that Mader terminated his employment. He only told Dr. Sheriff that his employment had been terminated in October 2007. In oral evidence, Dr. Wahr said that, in his opinion, the five letters I have just mentioned would have been extra stressors on Mr Duma. However, it was still Dr. Wahr's view (and I also find) that the cause of Mr Duma's depression was the chronic pain arising from his neck and back conditions, and also the loss of function caused by those conditions. Dr. Sheriff expressed a similar view about Mr Duma's chronic pain and loss of function, and their cause. I find that the termination of Mr Duma's employment was not a material contributing factor to his depression, chronic pain, or other injuries, and did not aggravate these.
3. I accept the evidence of Drs. Wahr and Sheriff that Mr Duma has not, since 25 November 2005, been fit to perform any work duties. I accept their evidence that he is unlikely in the foreseeable future to be fit to perform any work duties. He requires continued treatment with psychotherapy and psychotropic medication, and any future improvement is dependent on his response to that medication. I accept Dr. Sheriff's evidence that the only intervention that might lessen Mr Duma's chronic pain is neck and back surgery, and that this surgery has a less than average chance of obtaining good results. I accept the doctors' evidence that Mr Duma continues unfit for all work because of his depression, chronic pain and loss of function.
4. I accept Mr Duma's evidence that he found the termination of his employment while he continued to be certified as unfit to perform work was humiliating and upsetting and made him feel embarrassed and ashamed. He felt 'bad and sad' about it, and felt harassed by his employer.
5. I accept the evidence of Drs. Wahr and Sheriff about the exact nature of Mr Duma's conditions. From a psychiatric point of view, he has an agitated depressive reaction. While his pain and loss of function continue, this psychiatric condition cannot be cured. But the symptoms can be alleviated by psychotherapy and psychiatric medication. Part of Mr Duma's back injury arises from a degenerative condition arising from pressure on the spinal cord. His condition was also aggravated by the car accident which Mr Duma had on 4 November 2005.
6. Doctors Wahr and Sheriff considered it unusual (although not unique) to be contacted by the employer of an injured worker about that worker's medical condition and return to work. Both considered it unsurprising to be contacted by an employer, when the worker was absent for an extended period due to injury.

Did Mader directly discriminate against Mr Duma by terminating his employment?

1. It is common ground that Mr Duma's injuries to the neck, left shoulder and left arm, his chronic pain, and his depression are impairments within the meaning of s4 of the EO Act. In my view, the comparator under s8, for direct discrimination purposes, is a Mader employee without those impairments who was on long-term authorised unpaid absence from work (unrelated to impairment) - an absence which did not have a definite end date. Mr Taylor was the Mader official who made the decision to terminate Mr Duma, and wrote the pre-termination letters. I accept his oral evidence that he would have treated the comparator employee (as I have described this employee) in the same way as he treated Mr Duma. He would have asked the comparator employee for a possible or definitive return to work date and, if that employee did not communicate with Mader about that date, would have terminated his or her employment. Mr Duma has been treated as favourably as, and not less favourably than, the comparator. One essential element of the definition of direct discrimination is lacking. This means that the direct discrimination claim has not been proven and is dismissed. It is unnecessary for me to deal with the other elements of the definition.
2. Counsel for Mr Duma also suggested another way of formulating the direct discrimination claim. She suggested that, by not communicating with Mr Duma's solicitor and by requiring that Mr Duma communicate personally with Mader about his return to work date, Mader treated him less favourably than it had treated him previously in relation to his industrial disputes with Mader. In these industrial disputes, Mader had communicated with Mr Duma's solicitors rather than requiring Mr Duma to communicate directly with it. I am not satisfied that the claim, formulated in this way, is capable of constituting direct discrimination.
3. First, the claim is based on what it alleges to be two different kinds of treatment of Mr Duma. Section 8 of the EO Act requires that, for direct discrimination to occur, a person must treat 'someone with an attribute' less favourably than the person treats 'someone without that attribute or with a different attribute'. I do not think that the section contemplates that the complainant and the comparator (for the purposes of treatment) can be the same person. What is more, the suggested comparison relates to treatment which occurred at different times. I do not think that s8 contemplates such a comparison.
4. Second, even if I am wrong about this, some of the industrial disputes between Mr Duma and Mader occurred when he had impairments. The comparator must a person without the impairments he alleges. The comparison cannot be made.
5. Third, this formulation of the claim does not deal with what the complainant alleges to be the relevant breach of s14 - detriment during employment constituted by the sending of pre-termination letters, and the termination itself. This formulation of the 'treatment' only relates to communication between Mr Duma and Mader.

Did Mader indirectly discriminate against Mr Duma by terminating his employment?

Did Mader impose a requirement or condition on Mr Duma?

1. I have found that it did. It was that Mr Duma contact Mader to advise it of an indicative or possible return to work date and, to that end, that he authorise his treating general practitioner to give information to Mader for that purpose. The requirement or condition was not, as Mader submitted, simply to 'engage' with Mader. I have also found that the requirement or condition was coupled, first, with a warning that employment was jeopardised, and then with a decision to terminate Mr Duma's employment if he did not comply with the requirement or condition.

Was this a requirement or condition with which Mr Duma did not or could not comply?

1. Mader submitted that Mr Duma was able to communicate with it and that this was the only requirement or condition that it imposed on him. I have found that the requirement or condition was otherwise. Certainly, on Mr Duma's evidence, he was reluctant to speak with Mader management after the emotional conversation with Mader's managers on 20 December 2005, and certainly not without his lawyer present. But the question is, could Mr Duma comply with the requirement or condition as I have found it to be? I am satisfied that, because of his impairments, he could not. His doctor did not give a possible or definitive date when Mr Duma could return to work, and it is clear that Dr. Sheriff did not name such a date in his WorkCover certificates because, given Mr Duma's impairments, he was unable to do so. I am satisfied that the nature of Mr Duma's impairments meant that it was not possible, at the time in April 2006 when the Company made its condition or requirement to give a definitive or possible return to work date. Neither Mr Duma nor Dr. Sheriff knew when, if ever, Mr Duma would return to work. Mr Duma did not or could not comply with the relevant condition or requirement.

Could a higher proportion of those without these impairments comply with the condition or requirement?

1. I am satisfied that they could. A person on indefinite, unpaid leave unrelated to impairment would be able to give Mader a possible or indicative return to work date.

1. It is submitted for Mr Duma that the requirement or condition was unreasonable for these reasons. It was made at a time when Mader was receiving, from Mr Duma's treating doctor, WorkCover certificates showing that he was unfit for any work. Mader had no reason to doubt the truth of these certificates. The requirement or condition disregarded or ignored these medical certificates. Mader did not enquire, but could have enquired about Mr Duma's medical condition without coupling that request with a threat or decision to terminate his employment. Mader did not contact, but could have contacted Dr. Sheriff directly, relying on the original authority to disclose medical information which Mr Duma had given in connexion with his WorkCover claim. It did not enquire, but could have made the inquiry through Mr Duma's solicitors. The consequence of Mr Duma's failure to comply with the requirement or condition were extremely severe for him. They were the termination of his employment. The evidence did not suggest that Mader's financial circumstances required it to follow the course which it did.
2. Mader submits that the requirement or condition was reasonable for these reasons. It took the reasonable view that, since Mr Duma's WorkCover claim had been rejected, it could not rely on any authority to disclose medical information given by Mr Duma in relation to that claim. The requirement or condition was a legitimate management measure, given Mr Duma's already lengthy leave of absence, and his failure to communicate with his employer during that period. It is in the employer's and employee's best interests to have an injured employee return to work as soon as possible, whether on full duties or on duties appropriately modified. Even Mr Duma's doctors (Dr. Wahr and Dr. Sheriff) agreed that, although unusual in their experience, employers did sometimes request medical information from a worker's treating doctor as to a possible return to work date. An employer cannot be expected to hold the position of an employee absent through injury open indefinitely, particularly if that employee will not communicate with the employer. The letters were written on the advice of Mader's industrial relations adviser.
3. Balancing all the circumstances, I am satisfied that the requirement or condition was unreasonable. It disregarded medical certificates the truth of which was not in dispute. When the first letter was written by Mader, Mr Duma had been on continuous unpaid sick leave for a period of only some three months - from 18 January 2005, the end of the period of recreation leave granted to him. While it would not have been unreasonable to enquire about Mr Duma's medical condition, this is not what Mader did. Mader indicated first that Mr Duma's employment was in jeopardy, and then that his employment would be terminated, if he did not give Mader a possible or indicative return to work date. It may well be that, after a lengthier period of absence from work, such a requirement or condition might have been reasonable, but this is not the case here. Mader's wish to have an injured worker return to work as soon as possible might have been appropriate for a worker with a less serious injury or absent for a short time only from work, but was not appropriate for a worker who was certified to be unfit for all work on a long-term basis.
4. I find that Mader indirectly discriminated against Mr Duma by terminating his employment in breach of s14 of the EO Act.

Did the sending of the termination letters constitute detriment to Mr Duma in his employment?

1. It was submitted for Mr Duma that, separately from the issue of termination of employment, the sending of the letters in April 2006 by Mader in relation to termination of that employment also constituted a detriment to Mr Duma in his employment. I do not agree. The letters were part of one process - the process leading to and including termination of Mr Duma's employment. They cannot be divorced from that termination. It is artificial to regard them as constituting an additional and separate detriment in themselves.

1. In closing submissions, Mader sought to rely on s23 of the EO Act. This section had never been mentioned before, either in opening or in the Respondent's particulars of defence. In these circumstances, I did not permit the Respondent to rely on this exception provision.
2. Mader also argued that the termination of Mr Duma's employment was lawful under s659 of the Workplace Relations Act. However, this does not necessarily mean that the termination islawful under the EO Act. Under s659 of the Workplace Relations Act, an employer must not terminate the employment of an employee for various reasons, including the temporary absence of the employee from work because of illness or injury in accordance with the Regulations. In summary, the effect of the relevant Regulations is that the provision does not apply (among other things) to an absence due to illness or injury of more than three months unless that absence is on paid sick leave.
3. The effect of s659 and the Regulations is not to make a termination of employment to which the section does not apply lawful under the EO Act, but to make such a termination not unlawful under s659 of the Workplace Relations Act. What is unlawful or prohibited by the EO Act is a matter for the EO Act. Section 898 of the Workplace Relations Act underlines this point. It provides that the Workplace Relations Act operates to the exclusion of various Victorian laws, but that laws relating to discrimination are not excluded.

1. Mr Duma seeks reinstatement to his employment and compensation for loss of earnings and for hurt, humiliation, pain and suffering. Mader argues that I should order neither of these. It submits that reinstatement is inappropriate on the basis that the employer/employee relationship has broken down. It submits that there is no evidence that Mr Duma has suffered economic or other loss.
2. Under s136 of the EO Act, the Tribunal, if it finds a complaint proven in whole or in part may (among other things) order a respondent to pay to a complainant an amount the Tribunal thinks fit to compensate the complainant for 'loss damage or injury suffered in consequence' of the breach of the EO Act, or that a respondent do anything in the order 'with a view to redressing any loss damage or injury' suffered by the complainant 'as a result of' that breach.
3. I agree with Mader that reinstatement is not an appropriate remedy. I am satisfied that the employer/employee relationship between Mader and Mr Duma has broken down, given the extensive history of disputes and difficulties between them. I have summarised this history in my findings. It would be futile to try to restore the employment relationship.
4. It was then submitted for Mr Duma that I should award compensation to put him into the position in which he would have been had the termination of his employment not occurred. I should, it was said, assume that he would work Mader until the age of 65 and should give him compensation for lost earnings until that date, including loss of superannuation contributions from the employer. I should also award him substantial compensation for his pain and suffering.
5. On the evidence, I am not satisfied that, if Mr Duma had continued to be a Mader employee, he would ever have worked again. I am satisfied that he would have remained absent from work, and would have continued not to communicate with his employer. There would have come a time when it would have been reasonable for the employer to terminate his employment because of this. I am satisfied that this time would have been on or after 1 January 2007. I am satisfied that the employer would have continued to try to terminate his employment. The evidence is that, under the relevant award, an employee on unpaid sick leave is entitled to payment for public holidays (excluding weekends). Such an employee would also be entitled to the employer superannuation contribution on salary so paid. I therefore award compensation for loss of earnings to Mr Duma equivalent to the number of public holidays from the date of his termination until the end of 2006. I also award him an amount equivalent to the employer superannuation contribution payable on that salary. I have mentioned the appropriate hourly rate in my orders. He worked a 38 hour week, and accordingly a day of 7.6 hours.
6. I have found that Mr Duma's clinical conditions (his chronic pain and depression) were not attributable to the termination of his employment, and were not exacerbated by it. However, I am also satisfied that Mr Duma found that termination humiliating, embarrassing and upsetting. An appropriate award in these circumstances is $4000.00.

[1] See s4, definition of 'impairment' paragraphs (a), (c), (d )and (e)

[2] See generally Waters v Public Transport Corporation [1991] HCA 49; (1991) 103 ALR 513; Secretary Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 89 ALR 1; State of Victoria v Schou [2004] VSCA 71

[4] See Leonard v Youth Hostels of Australia [1995] EOC 92-763