It should always be noted that this FCE gives an accurate measurement of Mr Dziurbas' current ability to perform the duties as observed in the task assessment prior to the FCE being conducted. No conclusion can be made to quantify the likelihood of injury in the future due to the number of external variables.

Dr Baker's site assessment and second report - 30 April 2013

1. On 30 April 2013, Dr Baker conducted a worksite assessment and then produced his second report.[56]
2. The assessment was undertaken during the day shift and Mr Dziurbas was not present. Ms Kavanagh was there and the day shift supervisor, Sue, showed them around.
3. Ms Kavanagh's evidence was that Sue directed their attention to the steel band machine. Ms Kavanagh explained that Sue demonstrated how the machine worked and that was the only one they inspected.[57]
4. Dr Baker's report described the work done 'on one line' - the smaller one - which requires the lifting of cartons weighing about 5.2kg. He then described the 'other line' which was said to handle larger quantities of product with bags up to 15kg.
5. The report says that Mr Dziurbas:

'. . . would be operating both lines and there is a repetitive use of the arms in making up the boxes and lifting the filled cartons and stacking them on the pallet, as well as handling the heavier bags weighing 15kg and also being in a bag format with loose product in side (sic). The shape of the bag changes and therefore is more difficult to grasp and he has to grasp one end of the bag with both hands undertaking the sealing process with the welding of the plastic to seal the bag. There is also a need for stacking them on the pallet.'

1. The report referred back to the first report, noted the then applicable 5kg limit and said that, by the weight restriction, Mr Dziurbas could not work on the 15kg line. In respect of the lighter line, Dr Baker commented on the concerns about Mr Dziurbas' hernia and repetitive work. While noting that the lighter machine tasks are less strenuous, he emphasised the fact that the bags contain loose product and so require tighter gripping. In that context, Dr Baker expressed concern that Mr Dziurbas might develop problems with his elbows, noting again that lateral epicondylitis can become chronic and can be recurring. The increased risk to Mr Dziurbas was noted.
2. The report says:

I therefore do not consider that he can safely undertake all the tasks expected of him, working a full shift in the steel banding department, without increased risk and probability of suffering soft tissue injuries.

Having undertaken an assessment of Mr Dziurbas and then a worksite inspection of the steel banding area, I am of the opinion that I do not consider Mr Dziurbas would be able to undertake all the tasks required of him and work the duration of the shifts on a sustained basis without having pain and incapacity. At present, he is on a restriction and therefore he is not able to handle the 15kg bags, but this is certainly part of the full [time] position and after he has had his non- work related hernia repairs, then the expectation would be that he would be undertaking all duties lifting the 5.2kg shippers and the 15kg bags. I do not consider that he would be capable of undertaking this work on a sustained basis and anticipate that he would suffer further soft tissue injuries.

1. As described above, after receiving a medical report from Mr Dziurbas' treating general practitioner, Dr Szczepanik, which stated he could return to full duties without restrictions, Ms Kavanagh sought a further report from Dr Baker.
2. On 8 October 2013, Ms Kavanagh wrote to Dr Baker.[58] She recounted some of the history in respect of Mr Dziurbas and the recent contact she had had with his treating general practitioner. She noted that Dr Szczepanik had stated that Mr Dziurbas was now able to lift up to 15kg without restriction. She asked Dr Baker for his opinion, taking into account Mr Dziurbas' history, the report Mondelez had received from Dr Baker and Dr Bloom's report. In particular she asked:
   • When you assessed Mr Dziurbas in April 2013 in regards to his left elbow, did you feel that his restrictions were permanent in nature?
   • Do you feel his conditions would have progressed to a stage where he can return to his full duties in the F670 area?
   • What is the prognosis of Mr Dziurbas' condition? and
   • Do you believe that Mr Dziurbas is able to return to his full duties without the risk of aggravation of his elbow injury?
3. Dr Baker's further report is dated 17 October 2013.[59] In it he makes reference to Dr Szczepanik's August 2013 report which stated that Mr Dziurbas ought to be limited to lifting 5kg and avoid repetitive movements to protect him from aggravation of his chronic condition of lateral epicondylitis, diabetes and Dupuytren's contractures.
4. Dr Baker then refers to Dr Szczepanik's September 2013 report where she appears to have changed her position since August 2013, saying that, for the last 3 months Mr Dziurbas had been fit to work without any restrictions and that he could undertake duties including steel band and lifting up to 15kg and noting the restriction of 5kg which was due to the fact that he was recovering from his hernia condition. Dr Szczepanik was not called to give evidence. There is no question that her change of opinion between August and September 2013 is puzzling. I have given no weight to her opinion and consider it was entirely reasonable and proper for Mondelez to have sought an explanation from her and a further report from Dr Baker.
5. Dr Baker refers back to Dr Bloom's report dated 20 November 2012 and says he agrees with Dr Bloom's statements. He also says he reviewed his own 30 April 2013 report, which followed a work site assessment. Dr Baker says he continues to hold the views expressed in that report. He describes Mr Dziurbas' ongoing diabetic condition, the risk of the injury to the elbow becoming chronic and recurring. He then says:

. . . the employer has a duty of care to protect the health and welfare of its employees. The employer is aware of Mr Dziurbas' problems and although his hernia repairs, as far as I'm aware, will allow him to recover, there is still the expectation that when undertaking his normal duties he would be expected to lift and move 15kg, which would be on a repetitive basis and place a strain on his arms.

1. Dr Baker then answered each of the questions that had been put to him.
2. He commented that the arm problems referred to in his 30 April 2013 report would continue to be of concern and noted that he had considered that the restriction in Mr Dziurbas' ability to undertake work on a sustained basis in 'that area' was of a permanent nature.
3. Dr Baker said he did not agree with Dr Szczepanik's opinion that Mr Dziurbas was capable of undertaking unrestricted duties into the foreseeable future. He said he considered that, if Mr Dziurbas was allowed to undertake unrestricted duties, his condition would deteriorate with the symptoms in the arms requiring the institution of stringent restrictions. He said he did not hold the view that Mr Dziurbas could return to full duties in the F670 area and said Mr Dziurbas needed ongoing restrictions in order to ensure he would not be put at risk.
4. As to Mr Dziurbas' ongoing prognosis, Dr Baker said that, as long as Mr Dziurbas was not undertaking repetitive and strenuous activities with his arms, then his condition would be 'good'. However, with the nature of repetitive sustained work on a regular basis, he said he did not consider that Mr Dziurbas could undertake such activities without his health deteriorating with regards to increased symptoms of pain and incapacity in his arms.
5. Dr Baker stated that Mr Dziurbas was not able to return to his full duties without the risk of aggravation of his elbow condition.
6. Dr Baker concluded saying that the only difference from his 30 April 2013 report was that Mr Dziurbas' hernia condition had been adequately treated. While noting he had not reviewed him physically, based on Dr Szczepanik's report, he proceeded on the basis that the hernias would not impact on Mr Dziurbas' work performance. He stated that Mr Dziurbas' work performance would be affected by his inability to undertake sustained physical work 'with his arms requiring ongoing restrictions'.
7. Dr Baker gave evidence about his reports. He confirmed that, when he undertook the site inspection in April 2013, he was shown the steel band machines.[60] He was unaware that 2 people would work on each or that at least 2 people would work on the larger steel band machine.[61] His evidence was that he undertook the inspection in order to see the work Mr Dziurbas was doing. He understood that Mr Dziurbas' 'substantive' role was to work on that machine and that he was having trouble doing so.[62] When informed that Mr Dziurbas spent little time on that machine and undertook other work, Dr Baker referred to the 5kg limit in Dr Bloom's work cover related report with which he had agreed. He ultimately gave evidence that, if Mr Dziurbas was doing lighter work (less than 15kg) and it was repetitive then there would be less risk of further injury.[63]
8. Dr Baker maintained that, in his view, Mr Dziurbas was unable to return to his pre-injury work due to an 8 out of 10 risk of a flare up.[64] He confirmed that his understanding of the pre-injury role was working on the steel band machine as the substantive role. I asked whether Mr Dziurbas could work in other roles where the weights were less. Dr Baker's evidence was that weights of around 5 to 6kg would be alright provided that the rotation policy was applied.[65]

Mondelez's understanding of the available information

1. Ms Kavanagh was asked about her understanding of how much time Mr Dziurbas spent working on the steel band machine. Her response was that she understood, prior to the injury, he spent the majority of his time working on that machine and thought she had been told that by Sue or perhaps Mr Jarvis. Ms Kavanagh agreed she understood that, when operating that machine, Mr Dziurbas would be required to operate the smaller one also and that she had not observed him doing so at any point in time. Ms Kavanagh was asked whether it would have assisted to have Mr Dziurbas present at the site inspection. She said no on the basis that Dr Baker had enough information to make an assessment and given that it was conducted outside Mr Dziurbas' shift.[66]
2. In response to a question from me, Ms Kavanagh said that she was aware that Mr Dziurbas' elbow injury had resolved but in her mind his past history and diabetes created a risk of future injury.[67]
3. I have found that those representatives making the decision about Mr Dziurbas' termination believed, on the basis of Dr Baker's medical opinion, that he was unable to resume what they understood to be his full duties without risk of further injury arising from the earlier elbow injury.
4. It is apparent from Dr Baker's evidence that, at the time he wrote the 30 April 2013 and 17 October 2013 reports, he believed that Mr Dziurbas' substantive role was to work on the steel band machine. Given Mondelez's concession that Mr Dziurbas spent no more than 1% of his time working on that machine, Dr Baker's belief was clearly incorrect. Noting that Ms Kavanagh shared the same view, it would appear that the information provided to Dr Baker at the site inspection was incorrect and led him into error.
5. While I was asked to read the 30 April 2013 and 17 October 2013 reports mindful of the references to Dr Bloom's reports which were more accurate, it is plain from the face of Dr Baker's reports that his belief about Mr Dziurbas' substantive role influenced his assessment and opinion. I note that in his first report, Dr Baker made quite detailed reference to the February 2013 Actif report which set out the nature of the work in the F670 department, but he made no reference in his later reports to pre-injury tasks other than the steel band machine.
6. I find that Ms Kavanagh relied on her own belief about the nature of Mr Dziurbas' substantive role which was also erroneous. I find that she and Ms Hesketh relied on the opinion they had obtained from Dr Baker. That was entirely proper and appropriate. There is no evidence that Mr Jarvis dispelled the misunderstanding under which they were operating.
7. Both Ms Kavanagh and Ms Hesketh were asked about Mondelez's Workplace Behaviours policy and its Workplace Behaviours Guide for Line Managers.[68] While confirming that at the relevant time they were aware of the content, unsurprisingly they did not have immediate recall of all of the contents. They did not disagree with the proposition that, despite both containing detailed information about obligations under Equal Opportunity and like legislation, neither made any mention of the obligation to make reasonable adjustments.[69]
8. I find on the evidence that, at the time Mondelez made the decision that Mr Dziurbas was unable to resume what they understood to be his full duties without risk of further injury arising from his disability, they were incorrect about what his pre-injury role was. Mondelez believed that the substantive role Mr Dziurbas filled was as operator of the steel band machine. Taking into account Dr Baker's report and the understanding he and Ms Kavanagh had when undertaking the site assessment, applying the incorrect test, Mondelez believed that the 'inherent requirement' of Mr Dziurbas' employment was to spend most of his working time operating both steel band machines. Even if I include an expectation that there would be rotations to other tasks, the operative belief was that the handling of 15kg bags of product on a repetitive basis was the primary genuine and reasonable requirement of the role. I find that Mondelez also proceeded on the basis that there were no adjustments which could be made to allow Mr Dziurbas to fulfil that role.

Section 23 exception - relationship with section 20

1. In order to demonstrate that section 23 of the EO Act applies, the adjustments the employee requires must be identified and the party relying on the exception must prove that those adjustments are not reasonable having regard to matters including those set out in section 23(3). Further, if section 20 applies, the party relying on the exception must prove that it complied with its requirements.
2. Mr Snaden submitted that, due to the very significant overlap between sections 20 and 23, if the exception in section 23 was proven to apply, then section 20(2) would also have been met - that is the employer would have shown that, even if the identified reasonable adjustments were made, the genuine and reasonable requirements of the employment would still not be adequately performed.
3. Section 23(b) requires the employer to demonstrate that it has complied with section 20. The reference in section 23 to section 20 being complied with, indicates that the employer must demonstrate that it has met the obligation in section 20, which includes section 20(2).
4. I will now turn to section 20.

The obligation to make reasonable adjustments

1. As discussed above, section 20 creates an obligation to make reasonable adjustments for an employee with a disability. The reasonableness of any adjustments is to be determined by reference to all relevant facts and circumstances, including those matters listed in section 20(3). Section 20(2) states that the employer must make the required reasonable adjustments unless the person could not adequately perform the genuine and reasonable requirements of the employment after the adjustments are made.
2. In submissions, Ms Knowles for Mr Dziurbas contended that the onus of demonstrating that the employee required reasonable adjustments to be made in order for him to perform the genuine and reasonable requirements of the employment fell on Mr Dziurbas and that the onus to prove that there had been a failure to do so also fell on him. She contended that the onus of proving that, even with reasonable adjustments, the genuine and reasonable requirements of the employment could not be adequately performed, fell on Mondelez. Mr Snaden did not disagree with that approach.
3. The word 'adequately' in section 20(2) is important. The employee does not have to be capable of performing the genuine and reasonable requirements of the employment perfectly - just adequately.
4. In Davies, the tribunal discussed the meaning of the word 'adequately' in the context of the earlier exception which is comparable to the words in section 20(2). The tribunal said that, in order to rely on the relevant exception, the employer did not have to show that the person could not perform the genuine and reasonable requirements of the employment at all. The tribunal said at pages 13 to 14:

. . . the question of whether a person is able adequately to perform the genuine and reasonable requirements of the employment must be judged on those requirements as a whole. A person may still be able to perform adequately the requirements of the employment as a whole, even though he or she is unable to perform, or unable adequately to perform, a particular requirement. Whether an inability to perform a particular requirement adequately will amount to inability to perform adequately the requirements of the employment as a whole will depend on the extent of the inability, the comparative importance of the requirement to the employment as a whole, and the consequences of failure to perform the requirement. A complete inability to perform a major requirement of the employment in circumstances where non-performance with that requirement will result in a risk of death or serious injury, should be viewed differently from a slight deficiency at performing a minor requirement of employment where there is no likelihood that a risk to life or property would result.

To fall within the provision, an employer must show that a person 'cannot' perform the requirements of the employment adequately. It is not enough that the person has difficulty in performing them if, despite this, he or she can still perform them adequately. Inability to perform them must be assessed in a practical way. . .

The exception does not require the employer to consider whether some group of people, defined by reference to a particular attribute, is or is not or would not be capable adequately of performing genuine and reasonable requirements of the employment. The employer must consider the adequacy of performance of the individual against whom he or she proposes to discriminate. All relevant circumstances must be taken into account, including training, qualifications and experience of the person and (where the person is already in the employment) the persons performance in that employment.

1. The tribunal said that the employer must make a judgment in the nature of a prediction. The prediction is to be one which will enable the employer to conclude that it is more probable than not that the person will not be able to perform adequately the requirements of the employment. The judgment will need to be genuinely made and will need to be based on information capable of supporting that judgment. An assumption, based on no information or on scant information, will not be enough.
2. I adopt the same approach in respect of the word 'adequately' in section 20(2) of the EO Act.

1. In Muller v Toll,[70] Senior Member Megay said, at paragraph 51, that section 20(1) requires the employee to identify the adjustments required of the employer. She agreed with the contention that the employer could not be expected to be a mind reader. In that case, the employee was a delivery driver and had Crohn's disease. SM Megay found that the employer was on notice of the disease in November 2011 and that it understood that Mr Muller needed to use toilets more often and it accepted that may lead to delays in deliveries. Mr Muller's complaint was that he wanted to be allocated a particular job run he had done some years before and that the employer should have made that adjustment. SM Megay found that Mr Muller did not raise that with the employer in connection with his disability. At paragraph 69 she comments that:

. . . one might have expected that some time post- November 2011, an applicant with or without problems of poor performance would have sat down with his employers, armed with proper medical evidence about his disability and its effect on him, spelled out the adjustments he and his medical practitioners considerable desirable within the confines of their medical advice and his current treatment, and engaged in meaningful negotiations. Certainly he was not without assistance as union representatives seem to have been freely available at the respondent's places of work.

1. This is quite a different case. As is apparent from the findings I have made, Mondelez was on notice that adjustments would be required in order for Mr Dziurbas to be able to return to work. Once the work cover claim came to an end, Mondelez had acted in a responsible fashion seeking to identify how Mr Dziurbas might be able to return to work. It sought expert information from Mr Dziurbas' general practitioner and its own medical examiner. It had also, in February 2013, obtained a detailed capacity assessment from a physiotherapist. As mentioned earlier, in its April 2013 correspondence with Dr Baker, it asked for suggestions as to adjustments and alternatives for Mr Dziurbas.
2. This is not a case where the employer was flying blind. It is fair to say that, consistent with its obligations to Mr Dziurbas, Mondelez was aware, in a general sense, of the need for adjustments to be made in order for Mr Dziurbas to return to work and it was driving the assessment of what Mr Dziurbas could and could not do because of his disability.

1. At the hearing, there was discussion about the adjustments suggested in Mr Dziurbas' particulars of claim and whether they were reasonable.
2. Mr Dziurbas' particulars of complaint contended that reasonable adjustments would have included allowing him to:
   • Return to work on a graduated basis;
   • Take breaks more frequently;
   • Lift less than 15kg in the performance of his duties;
   • Not work on the steel band machine; and/or
   • Rotate between departments.
3. The time at which Mondelez was required to consider what adjustments were required and whether they were reasonable and would enable Mr Dziurbas to adequately perform the genuine and reasonable requirements of the employment, was in October 2013 when it was considering whether to terminate his employment due to his disability. In order to show that it has complied with section 20 of the EO Act and so prove that section 23 excuses the direct discrimination I have found occurred, it must show that the requirements of section 20 were or could have been met at that point in time.
4. Even if Mr Dziurbas was required to identify adjustments in October 2013 and make a contribution to consideration of whether they would be reasonable, he had no real opportunity to do so. That is because of the way in which the 23 October 2013 meeting was planned and conducted.
5. The evidence of Ms Hesketh, Ms Kavanagh and Mr Dziurbas all showed that the 23 October 2013 meeting was arranged by telephone. As I understood it, there was a conversation with Mr Dziurbas and then with his son.
6. In her witness statement, Ms Kavanagh stated that during the period from around August 2013, she was in regular contact with Mr Dziurbas' son 'to explain the process and to confirm that Mr Dziurbas was being paid for the time he was not at work and whilst we were requesting further information.'
7. A letter to Mr Dziurbas dated 3 September 2013 said it was following up a discussion with his son, Bernie.[71] It then said the following:

I stated to Bernie that Mondelez requires the report from your GP before we can consider any ongoing duties at site.

Bernie requested that we have you back on alternate duties but at this time we are unable to offer these without the information from your GP as well as these duties being used by others on site as part of their normal rotation (sic).

I also stated to Bernie that when I spoke to your GP last week I did state to her that I would present her letter to Human Resources and I would ask if this was sufficient.

It was deemed that it was not and we needed the further clarification and following that I faxed your GP to state that we still needed to have the report.

1. The letter then explained that there would be a delay as Dr Szczepanik was away. Information about payments to Mr Dziurbas were provided.
2. On receipt of Dr Szczepanik's report and the supplementary report from Dr Baker, the 23 October 2013 meeting was arranged.
3. Ms Hesketh's witness statement says that she telephoned Mr Dziurbas requesting a meeting. She told him he was welcome to bring a support person and Mr Dziurbas said he would bring his son. She then says:

It was explained to Mr Dziurbas over the phone that we would be discussing the medical reports received to date in order to review whether there was a position in which he could return to work in or not.[72]

1. Mr Dziurbas' reply witness statement says that Ms Kavanagh and not Ms Hesketh called. He also stated that he was not told that medical reports would be discussed in order to review whether there was a position to which he could return.[73]
2. Mr Dziurbas says in his witness statement that he was invited to the meeting and he took his son with him as an interpreter. Mr Dziurbas says that Ms Hesketh did most of the talking. He then states he was not offered a union delegate to represent him. He says:

I thought that the meeting was going to be about my return to work.

During the meeting Ms [Hesketh] said that the company had gone through a process of consultation and had a specialist opinion from Dr Baker, that they didn't want work to be impeding my quality of life and that Mondelez was terminating my employment. Ms [Hesketh] said the explanation would be in the termination letter. Ms Kavanagh said something which acknowledged that Dr Szczepanik had certified that I was fit to return to work, but she said that Mondelez was relying on Dr Baker's views. My son said in the meeting that I could be examined by a specialist, Ms [Hesketh] said to him that 'it wouldn't make any difference.'

I was very shocked to hear this news - I was not expecting to get laid off, especially after all the years that I had worked for the company.[74]

1. Even if I were to accept that either Ms Hesketh or Ms Kavanagh told Mr Dziurbas before the meeting that his future and whether he could return to work was to be discussed, I would still accept Mr Dziurbas' evidence that he was not expecting to be told his employment was terminated. That is because, given his very limited English, I am not satisfied that he would have understood what was said and its implications.
2. I am mindful that, as at October 2013, Mr Dziurbas' last active interaction with Mondelez had involved the very comprehensive testing of his physical capacity undertaken by Mr Pocklington in February 2013. He had seen Dr Baker in April 2013. There was no suggestion that Dr Baker shared his opinions with Mr Dziurbas at the April appointment or that he was given a copy of the two April 2013 reports after they had been written. As I understand the evidence, Mr Dziurbas could not have known that Dr Baker's October 2013 opinion was that Mr Dziurbas could not return to his full duties without the risk of aggravating his elbow condition and that Dr Baker had an incorrect understanding of what those duties were.
3. Further, as set out above, the last written communication with Mr Dziurbas in September 2013 indicated that Mondelez was still in the information gathering phase of the process.
4. I accept Mr Dziurbas' evidence that he was taken by surprise by the discussion at the meeting and was shocked when he was told that he was being terminated.
5. There was no dispute that Mr Dziurbas or his son asked whether he could return to work in a graduated way to test his capacity.
6. Although some aspects of the conduct of the meeting were in dispute, the evidence that Mr Dziurbas' son suggested that a further specialist opinion could have been obtained was not the subject of challenge or dispute.
7. The matters in dispute concerned whether or not the termination letter had been on the table throughout the meeting and whether or not part way through there had been a break during which the three Mondelez staff talked privately and the termination letter was signed. I think that the evidence from Ms Kavanagh, Ms Hesketh and Mr Jarvis is more likely to be correct but that does not lead me to discount any of Mr Dziurbas' evidence. Those matters are not material to what is in issue before me and, given the state of shock Mr Dziurbas was in on that day and after, his incorrect recollection has no impact on my assessment of the evidence.
8. Mondelez suggested that at the meeting Mr Dziurbas had the opportunity to suggest alternative options. Given his limited English and the absence of a union delegate or other adviser, I make no adverse finding against Mr Dziurbas in respect of any lack of further suggestions or options. Further, as he did not have a copy of Dr Baker's report and had no reason to know that Ms Kavanagh and Ms Hesketh were under a misapprehension about his substantive role, I wonder how he could have been expected to propose adjustments to his employer.

Whether Mr Dziurbas could not have adequately performed the genuine and reasonable requirements of the employment with reasonable adjustments

1. I have found that at the time of the decision to terminate, Mondelez was of the belief that Mr Dziurbas could not lift the 15kg required while working on the steel band machine. As Mondelez believed that machine provided the substantive work performed by Mr Dziurbas, it could see no adjustment to make. That view is supported by the fact that the 23 October 2013 letter terminating Mr Dziurbas' employment had been prepared in advance of the meeting. Ms Hesketh's evidence was that the meeting lasted for around 15 to 20 minutes. Those facts indicate that the termination decision was a foregone conclusion.
2. On the evidence before me, the only adjustment considered by Mondelez was to re-deploy Mr Dziurbas to another role entirely. That is not what is required by section 20. As the examples in the EO Act make clear, an employer is not required to create a new job for an employee but to make adjustments to the genuine and reasonable requirements of the employees' then employment so that it can be adequately be performed.
3. Even if Mondelez had been correct in its understanding of Mr Dziurbas' substantive role, it made no attempt to consider whether any adjustments at all could be made to reduce the risk of injury arising from his disability.
4. Given that Mondelez was operating under an incorrect belief about what the genuine and reasonable requirements of Mr Dziurbas' employment were, it cannot demonstrate that at the time it turned its mind to whether he would be able to adequately perform that employment with adjustments. For the same reasons, it cannot demonstrate that it formed the view that there were adjustments open which were not reasonable having regard to section 20(3).
5. On the evidence about how Mondelez made its decision to terminate Mr Dziurbas and how the 23 October 2013 meeting was conducted, I find that Mondelez has not proven it concluded in October 2013 that, even if reasonable adjustments were made, Mr Dziurbas could not adequately perform the genuine and reasonable requirements of the employment.

1. I have next considered whether, had Mondelez made its decision having regard to the true scope of Mr Dziurbas' role, it has demonstrated that reasonable adjustments could not have been made.
2. Mondelez contended that the true adjustments required for Mr Dziurbas to safely carry out the genuine and reasonable requirements of the employment were for him to work within the restrictions specified by Dr Bloom and adopted by Dr Baker. Those restrictions were to limit repetitive manual handling to no more than 6kgs and for manual handling to occur with the forearms in the palms-up position and with the elbows close to the sides.
3. In the particulars of defence, Mondelez set out six 'essential' tasks which it said that Mr Dziurbas was not able to safely perform at the time he was terminated. They were as follows:
   • The lifting, pushing or manual handling of items weighing more than 5kg (including items such as pallets, 'wheelie' bins, boxes and bags);
   • The repetitive lifting of objects;
   • The transfer of raw products from a pallet to a hopper more frequently than once every 2 minutes;
   • The transfer of raw products from a pallet to a hopper at the rate of once every 20 to 30 seconds without requiring 5 minutes rest every 8 minutes;
   • The performance, extending for more than 5 minutes, of manual packing tasks whilst seated without requiring 2 minutes' rest; and
   • Tasks requiring the repetitive use of his arms.
4. I was not directed to specific evidence which was said to prove these matters.
5. It appears to me that, some of these restrictions arise from Dr Bloom's report, however, I note Dr Bloom did not rule out all lifting or movement of items weighing more than 5kg or all repetitive use of the arms. As discussed above, Dr Baker's report was focussed on only a very small part of Mr Dziurbas' role and so cannot be relied on to prove that, as at October 2013, Mr Dziurbas could not do these tasks.
6. Some of the items listed above appear to come from the February 2013 Actif report. As discussed earlier, that report set out a range of tasks Mr Dziurbas was able to do, provided certain time limits and rest breaks were allowed.
7. Aside from not proving Mr Dziurbas' capacity as at October 2013, Mondelez did not produce any evidence to prove that it could not have made adjustments of the kind set out above or as discussed in the February 2013 Actif report because they were not reasonable having regard to the list of matters in section 20(3).
8. Mr Jarvis gave some evidence about changes to machinery and processes Mondelez had considered over time (including to the 15kg steel band machine and lifting devices) and asserted that the changes had been rejected because of the costs. None of that evidence linked the adjustments listed above to Mr Dziurbas and his capacity as at October 2013. As is plain from the words of section 20, what is required is consideration of adjustments for the relevant employee to address their disability, not general improvements which might assist all workers.[75]
9. Further, there was no evidence that, if those adjustments had been made Mr Dziurbas would have been unable to 'adequately' perform the genuine and reasonable requirements of the employment. I have commented above that the bald limit of lifting more than 5kg is not consistent with Dr Bloom or Dr Baker's reports. If the other tasks listed by Mondelez in its defence were all of the genuine and reasonable requirements of the employment, there was no evidence that the time allowances set out in the 2013 Actif report were not reasonable, could not be accommodated by Mondelez or would not have allowed Mr Dziurbas to adequately perform the tasks.
10. I make these comments mindful that adequate performance does not necessarily require capacity to perform a particular requirement unless that requirement is sufficiently important to the employment such that the practical outcome is that the employment is not performed. A practical assessment must be made of the requirements which are of significance and those which are minor.
11. Mr Snaden submitted that a trial return to work of the kind suggested by Mr Dziurbas' son would have been inappropriate as it risked injury.
12. Dr H Sutcliffe, occupational physician, prepared an expert report on behalf of Mr Dziurbas.[76] She saw Mr Dziurbas in November 2014, some 13 months after he was terminated. In her report, Dr Sutcliffe recommended that, given his time away from work, as at November 2013 Mr Dziurbas ought to return to work on a graduated basis in terms of time and be allowed to gradually increase the weights he was asked to lift. I understood she was suggesting a return to work managed under a plan of the kind used earlier under the work cover claim.
13. In the context of the Commonwealth DDA, in Watts, Mortimer J commented that, the protections offered by the reasonable adjustments obligation in that Act would seem to be 'almost entirely undermined' if the provision was not construed in a way which allowed some time for the adjustment to take effect. Her Honour did not suggest that a specific time or even a reasonable time should be implied into the provision but rather that, allowing time for an employee to adapt, and gradually return to full capacity, might itself form part of the 'reasonable adjustments' to be made.[77] In so far it is relevant, it seems to me that any return to work would have had to be planned and managed to allow Mr Dziurbas to regain his fitness for work rather than as a means to test whether he might suffer injury. That would be reasonable.

1. I am satisfied that there was scope for adjustments to what I have found to be the genuine and reasonable requirements of the role of confectioner. That is because I have found that:
   • The rotation policy was not strictly applied and not all staff were required to rotate to undertake all tasks;
   • There was scope for staff to allocate tasks amongst themselves according to their preference; and
   • Some tasks were allocated having regard to gender and the individual's strength and physical capacity.
2. In addition, I had the benefit of evidence from Mr Dziurbas about the work he was doing while on light duties. His evidence was that, while on restricted duties of the kind Dr Bloom recommended, he performed the following work:
   • Operating a standing pallet transporter;
   • Checking quality control of Easter eggs;
   • Loading Easter egg cartons;
   • Mopping floors;
   • Mopping and air-blowing conveyors;
   • Packing and stacking boxes on pallets;
   • Packing chocolates into boxes on a conveyor belt;
   • Working on the four bagger machines;
   • Relieving other workers while they take breaks; and
   • Working in the Easter department and Bar Lines Department in a supplementary role.[78]
3. Mr Dziurbas' evidence was that the only effective difference in his work while on 'light duties' was that some of the heaviest lifting tasks (lifting 15kg bags) were removed.[79] In cross-examination, his evidence was that he worked to the restrictions imposed which included no lifting over 5kg.[80] When I asked how that worked in practice and whether he had someone come and take over when an item was more than 5kg, he said he simply did the lifting.[81]
4. Mr Jarvis' evidence was that, at the time Mr Dziurbas was on restrictions, he was unable to undertake the roles he had previously done on the bagger machines. He said that Mr Dziurbas could undertake some of the transporting jobs but could no longer relieve other staff on breaks. He was given cleaning jobs to do and, even though they did not take the full hour and a half when Mr Jarvis was supervising, Mr Dziurbas spent that amount of time on them. He said that 'Mr Dziurbas' restrictions meant he was very limited in what he could do and there was not a complete role in the department that he was able to fulfil even on a single machine' and that on a daily basis he had find eight hours of work for Mr Dziurbas to complete.[82]
5. In a reply witness statement Mr Dziurbas said that he had limited contact with Mr Jarvis because he was only there for the last hour and a half of his shift. By that time he had already been assigned tasks. While he acknowledged that he worked under Mr Jarvis, he stated that was only for a fraction of his time at Mondelez.[83] He also said that Mr Jarvis' comments about the tasks undertaken post-injury were inaccurate for the period after 2013. He stated that from 2013, he was back to working on the bagging machines and relieving other staff when they went on breaks. He disputed the assertion that he was unable to complete any role on a machine - he was only restricted from lifting 15kg weights on the large steel band machine.[84]
6. As discussed earlier, Mondelez did not call the supervisor who allocated work to Mr Dziurbas at that time and who would have seen how he managed the various tasks. Mr Jarvis was Mr Dziurbas' supervisor for only the last hour and a half of the shift. In these circumstances, I prefer the evidence given by Mr Dziurbas as to the work he did at the relevant points in time.
7. If Mr Dziurbas' evidence is accepted and a comparison is drawn between the above list and that set out in paragraph 57 above, then there is evidence that, even when still suffering from the hernia condition, Mr Dziurbas was performing the majority of the genuine and reasonable requirements of the employment and that he was adequately performing the employment.
8. It must not be forgotten that, during the period January 2013 to 24 June 2013 (his last day at work before the surgery), Mr Dziurbas was impeded by his hernia condition. Given that by October 2013, he had fully recovered from that condition, information which did not take into account his recovery must be read with caution.
9. In my view, the February 2013 Actif report contains the best available evidence about the types of physical restrictions which ought to have been considered as the basis for determining what adjustments were required, whether they were reasonable and whether they would have allowed Mr Dziurbas to adequately perform the genuine and reasonable requirements of the role of confectioner. That report shows that there was no blanket ban on Mr Dziurbas lifting more than 5 or 6kg - in fact the report shows he was capable of lifting far greater weights provided there were not too many repetitions and he was given adequate rest breaks. I note here that one of the examples of adjustments which might be made under section 20 is allowing more frequent breaks.
10. I also take into account the unchallenged evidence Mr Dziurbas gave about the proportion of time he spent on each of the bagging machines pre-injury and how that affects the proportion of the total time worked lifting the various weights when working on those machines. The machine on which he spent 50% of his time usually required lifting of a maximum of 8kg and only required lifting of 15kg on one or 2 days per month from time to time.
11. A comparison of the 2011 and 2013 Actif reports shows that, assuming Mr Dziurbas' capacity did not change, some of the tasks could be done by him in the required time frames. For others, more regular breaks would have been required. For many of the tasks described in the 2011 Actif report, the number of repetitions is not specified although it is acknowledged that some of the packing tasks are rapid. Taking into account the provisos in the 2013 Actif report (such as whether or not the same task is done for a whole shift), a comparison of the two reports suggests that, if those adjustments were deemed reasonable, they would have allowed Mr Dziurbas to undertake the role to the standard required.
12. I note here also the evidence of Dr Sutcliffe. Had Mondelez agreed to Mr Dziurbas obtaining his own specialist opinion, it seems most likely to me that two things would have happened.
13. First, the misapprehension about Mr Dziurbas' role would have come to light and further consideration could have been given by Dr Baker and Mondelez to the actual work required of a confectioner. A further functional capacity evaluation could have been conducted to provide Mondelez with information to determine what adjustments would have been required to allow Mr Dziurbas to return to work and whether those adjustments would have been reasonable.
14. Second, Mr Dziurbas would have had a genuine opportunity to put to Mondelez adjustments which he wished to have made, supported by medical evidence.
15. Dr Baker gave evidence that, given Mr Dziurbas' constitutional issues, he considered there was an 8 in 10 risk Mr Dziurbas would re-injure his elbow. Noting that he had not reviewed Mr Dziurbas since April 2013, it might be that, with complete information about Mr Dziurbas' actual role, he may have expressed a different view about that risk.
16. As noted above, Dr Sutcliffe saw Mr Dziurbas in November 2014. It was her professional opinion that he was able to undertake the duties of his occupation of night duty, noting that he had worked in that role for 30 years and was familiar with the task and how to undertake them safely. Her report assessed Mr Dziurbas as having hand grip of 40kg on the right and 35kg on the left.
17. In her report, Dr Sutcliffe described various aspects of the role, including working on the steel band machines, lifting weights between 5 and 15kg. As noted earlier, she recommended, given his time away from work, that he return to work on a graduated basis in terms of time and be allowed gradually to increase the weights he was asked to lift. Her view was that Mr Dziurbas would be likely to be able to lift 15kg on a repeated basis but that only time would tell.
18. At the hearing, Dr Sutcliffe looked at photographs of the F670 department and made comments about changes she thought could be made to a number of machines and processes not just to assist Mr Dziurbas but for all employees.[85]
19. As to Mr Dziurbas' specific conditions, her view was that they did not lead to a conclusion he could not return to work. She said that the Dupuytren's contractures were mild and required no adjustments. She said his diabetes would not affect his work capacity of itself. As for the bilateral epicondylitis, her opinion was that Mr Dziurbas was not restricted from returning to work. She noted that, when she assessed him, Mr Dziurbas had fully recovered, had no pain or swelling or tenderness and he had good strength and movement in his elbow and no sign of arthritis.[86]
20. I accept that Dr Sutcliffe's assessment of Mr Dziurbas was at a point in time when he had not been working in the repetitive way required by his role with Mondelez. However, importantly in my mind she had a different view about the future risk of injury arising from Mr Dziurbas' diabetes. Mondelez questioned Dr Baker and Dr Sutcliffe about an article which discussed the connection between type 2 diabetes and the risk of soft tissue injury. The article was not attached to any witness statement and was not tendered.
21. Accepting for the moment the proposition that type 2 diabetes leads to an increased risk of soft tissue injury, Dr Sutcliffe's evidence was that, in the population of people with type 2 diabetes, there are some at greater risk than others and that there is a risk spectrum. As she noted, that is not useful information unless assessed in respect of Mr Dziurbas' actual presentation and condition.[87] Dr Baker also agreed that there was a range of risk in the population of people with type 2 diabetes.[88]
22. Dr Sutcliffe was not shaken on her evidence about the risks to Mr Dziurbas if he returned to work in cross-examination.
23. Having regard to all of these matters, I am satisfied that there were adjustments which could have been considered to enable Mr Dziurbas to return to work and which were likely to have been reasonable.
24. I do not have to reach an absolute view about that matter though because, having found that Mondelez discriminated against Mr Dziurbas when it terminated his employment, it is for Mondelez to prove the exception it relies on applies.
25. I cannot conclude that Mondelez has demonstrated that, had it asked itself the right questions in October 2013, it would have complied with section 20 of the EO Act, given that the evidence produced by it did not:
    • Include a comprehensive description of the genuine and reasonable requirements of the employment;
    • Include evidence about Mr Dziurbas' actual capacity and any limitations as at October 2013;
    • Include an analysis of the reasonableness or otherwise of the adjustments identified in the particulars of defence or any of the other adjustments identified in this proceeding; or
    • Demonstrate that, even with adjustments, Mr Dziurbas could not adequately perform the reasonable and genuine requirements of the employment having regard to the proper meaning of that term.

Conclusions on section 8 and 20 claims of discrimination

1. In order to demonstrate that section 23 of the EO Act applies, the adjustments the employee requires must be identified and the party relying on the exception must prove that those adjustments are not reasonable. Further, if section 20 applies, the party relying on the exception must prove it complied with that provision.
2. I have found that the genuine and reasonable requirements of the role of a confectioner were those tasks set out in paragraph 80 above.
3. I have further found that the genuine and reasonable requirements of the confectioner role also required that, at intervals, each confectioner would be expected to change roles so as to avoid injury. The role to which each confectioner might move would depend on the degree of control exercised by the supervisor, the sex of the other staff working at the time, their preferences as to the tasks available and other matters such as staff absences, injuries or illness.
4. I have found that Mondelez was aware that adjustments would be required and that none were considered in the light of what it understood to be the genuine and reasonable requirements of Mr Dziurbas employment.
5. I have found that there were adjustments which ought to have been considered by Mondelez and that they were likely to have been reasonable taking into account:
   • The evidence of the work Mr Dziurbas did while on light duties;
   • The proportion of time Mr Dziurbas spent on each of the bagger machines pre-injury and the weights he was required to lift as a proportion of the total time worked; and
   • The Mondelez commissioned Actif functional capacity examination completed in February 2013.
6. Where Mondelez did not correctly identify the genuine and reasonable requirements of Mr Dziurbas' employment it cannot demonstrate that in October 2013 it formed the opinion required by section 23(c)(i) which is that required adjustments were not reasonable having regard to the matters set out in section 20(3). Those matters include the nature of the employee's role and the nature of the adjustment required to accommodate the employee's disability. On the evidence, at that time there was no assessment made of the risk of Mr Dziurbas returning to his actual pre-injury role as a confectioner as compared to his perceived role or any identification of what adjustments might be required by him.
7. Further, on the evidence available at the hearing, Mondelez has not demonstrated that it complied with section 20 of the EO Act because it has not produced evidence to demonstrate that, even if reasonable adjustments were made, the genuine and reasonable requirements of the employment as found could not have been adequately performed by Mr Dziurbas.
8. Accordingly, Mondelez has not proven that the exception contained in section 23 applies to the decision to terminate Mr Dziurbas.
9. I find that was an act of prohibited discrimination contrary to section 18(b) of the EO Act. As set out above, the failure to comply with section 20 is a stand alone act of discrimination and a breach of the EO Act.
10. Given these findings, it is not necessary for me to consider the indirect discrimination claim.

1. Under section 125 of the EO Act, after hearing the evidence and representations of the parties, the tribunal may find that a person has or has not contravened a provision. If it finds there has been a contravention, the tribunal may make a range of orders including for a person to pay to the applicant an amount the tribunal thinks fit to compensate for loss, damage or injury suffered in consequence of a contravention. The tribunal may also make an order that the person do anything with a view to redressing any loss, damage or injury suffered as a result of the contravention.
2. In his particulars of claim, Mr Dziurbas sought a declaration, an order for reinstatement, orders for compensation for financial and non-financial loss and interest, an apology and costs.
3. As Mr Dziurbas is soon to reach retirement age, he no longer seeks reinstatement.
4. On the final hearing day, during the course of her reply submissions, Ms Knowles produced a document headed 'Calculation of Loss'. The document set out some assumptions which included the number of hours and days per fortnight Mr Dziurbas worked, his wage as at 23 October 2013 (plus a shift allowance) and details of the changes in the award which applied to his employment after his termination. The resulting claim totals $261,067.63 and is comprised of the following:
   • Lost wages - $176,614.65 (including interest);[89]
   • Lost long service leave - $3,056.73;
   • Lost superannuation - $14,565.85;
   • Lost retirement benefit on superannuation - $36,830.25; and
   • Non-economic loss for loss of enjoyment of employment, loss of self-esteem, embarrassment and hurt and humiliation - $30,000.
5. Not surprisingly, Mr Snaden objected to the late production of the document. He contended that, as Mr Dziurbas had not produced evidence in support of the claim, he should be awarded only a nominal amount in respect of the economic loss claim. Mr Snaden contended that any non-economic loss award should be in the range of $2,000 to $3,000.
6. Ms Knowles drew my attention to the fact that, in his witness statement, Mr Dziurbas had given evidence about his usual hours and the fact that the relevant award was an exhibit to that statement.[90] The award addresses the entitlement to long service leave. Superannuation is a statutory entitlement.

Claim for wages, long service leave, superannuation and retirement benefits

1. Mr Dziurbas' claim assumes that he would have continued to work for Mondelez until retirement on or around 30 October 2015.
2. Mr Dziurbas was asked some questions at the hearing about his efforts to find alternative work. Mr Dziurbas' evidence was that he made enquiries of some of his contacts but it became apparent to him he would find it very difficult to find another job. He spoke to two friends - one owns a gardening/lawn mowing business and the other a house painting business. Neither could offer him work. Mr Dziurbas made no other enquiries and has lived off his superannuation since his termination.[91]
3. In order to mitigate loss, it would be reasonable to expect an applicant to demonstrate that they had applied for a number of suitable jobs.
4. However, Mr Dziurbas is not the usual applicant. Mr Dziurbas worked as an underground coal miner in Poland before he came to Australia. For nearly 30 years he worked for Mondelez as a confectioner. He has very limited spoken English and does not read English. He does not have a driver's licence and always caught public transport to work. At the time his employment was terminated he was nearly 63 years of age. Given his limited working experience, age and English language competency, it is difficult to imagine how Mr Dziurbas could have obtained employment elsewhere. I do not consider that he failed to meet the requirement to mitigate loss.
5. I am satisfied on the evidence before me that, had reasonable adjustments been considered and applied, Mr Dziurbas' general health would not have limited his working life. The unchallenged evidence contained in his witness statement was that in November 2013 he had manually dug up a drainage ditch from the front of his property. That task included breaking up and digging through the concrete driveway. He stated that he suffered no pain when undertaking that work.[92]
6. Dr Sutcliffe's November 2014 report stated that Mr Dziurbas had a normal gait, good agility and good strength. He could undertake all usual daily tasks including gardening, mowing the lawn, bush walking and managing a vegetable garden. He could walk for three hours at a time and sit as long as he needed to. There was no evidence that Mr Dziurbas had been ill or impaired since October 2013 and he was not asked about that matter in cross-examination. On that basis I find that, subject to his ongoing conditions, Mr Dziurbas' physical condition over the period October 2013 to the time of the hearing was good.
7. At the hearing I said that I was inclined to have the matter listed for further hearing as to any award of economic compensation if I found in Mr Dziurbas' favour.
8. However, it seems to me that the nature of the economic loss claims made are consistent with an appropriate award under section 125 of the EO Act. They each reflect amounts and entitlements Mr Dziurbas would have received if he had continued in his employment. Given that he was employed by Mondelez for nearly 30 years, it would be well aware of the usual hours he worked, of any allowances which applied and his leave and superannuation entitlements. Further, as his role is covered by an award, the amounts payable are not contentious.
9. I will allow liberty to apply to be heard on the quantum of the appropriate award of economic loss, however, only in the event that there is a significant dispute as to quantum or if Mondelez has a compelling argument to show that the categories of economic loss set out in paragraph 224 are erroneous. As interest pursuant to statute has been claimed, that is an appropriate allowance to make. The parties may elect to submit consent orders as to the award for economic loss.

1. As noted above, Mr Dziurbas seeks an award of $30,000 for non-economic loss. In his witness statement he says that after his employment was terminated, he 'felt totally in shock, awful and extremely let down' by Mondelez. He said he liked working and that working at the factory was a big part of his life.[93] He said:

After being sacked, I felt in shock and like I had been 'dumped on'. I had been a very loyal and hard worker for Mondelez for many, many years. I enjoyed my work at the factory - I liked being with the other people and liked being busy. I felt 'numb' for a while.[94]

1. This latter part of Mr Dziurbas' evidence was not challenged and I accept it. There was no evidence of psychological injury and Dr Sutcliffe made no relevant comment about Mr Dziurbas' emotional or mental state in her report except to the effect that he was well and going about his usual activities.
2. Mondelez referred me to a decision of Burazin v Blacktown City Guardian Pty Ltd,[95] a 1996 decision of the Industrial Relations Court of Australia in an unlawful termination of employment case under the Workplace Relations Act 1996 (Cth). In that case, the full court increased the award for distress from $2,000 to $5,000. Mondelez contended that an award in the range of $2,000 to $3,000 might be appropriate in this case.
3. I referred earlier to 2 cases decided under the DDA. In Watts, an award of compensation of $10,000 was made for the stress, anxiety and disruption the unlawful discrimination caused over a period of around 11 months. That award took into account Ms Watts' own evidence, the evidence of a psychologist and a finding that some of Ms Watts' distress and anxiety was of her own making.
4. In Huntley, an award of $75,000 was awarded as compensation for pain and suffering and breach of contract. That award took into account evidence before the court that the respondent's conduct had been significant in the sense of the psychological trauma Ms Huntley suffered. Ms Huntley was found to have pre-existing depression but, after the relevant conduct, she was diagnosed as having psychological symptoms meeting the criteria for major depressive disorder. The award also took into account pain and suffering caused to Ms Huntley through emotional distress.
5. The approach to the assessment of damages for distress, upset and humiliation under the EO Act and its predecessor may be summarised as follows:
   • Under section 125, orders can be made for economic and non-economic loss. Compensation can be awarded for psychological injury, humiliation and hurt feelings provided that there is a causal link between the breach of the EO Act and the claimed loss, damage or injury. In some cases it will be appropriate to consider whether the loss would have occurred but for the breach where there may be a number of possible sole causes for the loss. That will not be the appropriate question where there may be multiple causes for the loss. The best approach is a practical and common-sense one;
   • While the law of tort may provide guidance as to the approach to compensation in discrimination cases, the statutory remedy under the EO Act is very different and so care needs to be taken when comparing discrimination claims to claims under tort or under the Trade Practices Act 1974 (Cth). The words of the section itself must be the most important guide;
   • Non-economic loss will often be hard to quantify in monetary terms. Each case must turn on its own circumstances. Reference to other awards might provide some limited guidance, but cannot be decisive. While the principle that a discriminator takes his or her victim as he or she finds that victim means that awards of damages ought not to be reduced on the basis that the applicant was a particularly susceptible person, that is not a principle of causation. It does not make a respondent liable for loss which did not occur in consequence of the respondent's conduct;[96]
   • The breach of the EO Act does not have to be the sole cause of the claimed loss or damage. It is enough to demonstrate that contravention of a relevant provision of the EO Act was a cause of the loss or damage sustained; [97]
   • Community standards now accord a higher value to compensation for pain and suffering and loss of enjoyment of life than before. As compared to the past, modern society places a higher value on the loss of enjoyment of life and the compensation of pain and suffering;[98]and
   • The purpose of the award of damages is to attempt to measure, in monetary terms, the hurt that has been done to the applicant by the conduct or act in breach of the EO Act and the assessment should mirror the approach that would be taken if this case were to be heard in a court. [99]
6. As to the amount of compensation, I have noted the decisions of Watts and Huntley to which the applicant referred me. I consider the decision in Burazin to be so old as to be of little assistance. I have also had regard to decisions of this tribunal where awards for non-economic loss have been made. I have put to one side cases dealing with sexual harassment as I do not consider them to be relevant here.[100] The following awards have been made by this tribunal:
   • 2006 - $20,000 damages for non-economic loss, arising from proven discrimination which was found to have caused the applicant to experience increased depression for a significant period after her employment ended;[101]
   • 2009 - $800 for humiliation and emotional distress after pregnancy related discrimination in employment was proven;[102]
   • 2012 - $1,000 for distress arising from discrimination in the provision of accommodation on the basis of parental status;[103]
   • 2014 - $14,000 in general damages arising from a finding that a municipal council engaged in direct discrimination when, for around two years, it maintained a declaration prohibiting the applicant from attending any building owned, occupied or managed by the council;[104]
   • 2015 - $3,000 compensation on finding racial discrimination when a fellow employee told the applicant that he 'looked like a gorilla';[105]
   • 2015 - $10,000 compensation for non-financial loss arising from hurt, humiliation and anxiety caused by pregnancy related discrimination over a period of 7 days. The award expressly excluded a claim of psychological injury;[106] and
   • 2015 - $3,000 compensation on finding racial discrimination when one comment was made to the applicant in which he was compared to a monkey.[107]
7. While I have had regard to all of these decisions, this case must be considered on its own terms and applying a practical and common-sense approach to the assessment of an appropriate award.
8. I am satisfied that an award of a sum significantly greater than $2,000 to $3,000 is warranted in this case.
9. In October 2013, Mr Dziurbas found himself unemployed and effectively unemployable at nearly 63 years of age, having planned to work for another two years. He was taken by surprise by the decision that he was not able to undertake any work for Mondelez despite his then comparatively good health and his past work performance. Despite having worked for nearly 30 years at the same place in the same role, even ignoring the failure to consider whether reasonable adjustments could be made, Mondelez did not give Mr Dziurbas an opportunity to take in the information it had and the views it had reached and return for a meeting to consider any ideas or alternatives he had developed. I consider that to be an extremely disrespectful way to treat such a long-standing employee and not what the community would regard as fair. I emphasise that there was no criticism of Mr Dziurbas' many years of work, his performance or his conduct at the workplace. He had the misfortune to first suffer an injury and then an illness and to next find himself surplus to Mondelez's needs. The fact that Mondelez offered him a farewell and that Mr Dziurbas shook hands with Ms Kavanagh, Ms Hesketh and Mr Jarvis at the October 2013 meeting hardly compensates for such treatment.
10. I find that, as a consequence of the decision to terminate his employment, Mondelez caused Mr Dziurbas to experience shock, disappointment, upset and distress. I find that, in his circumstances as discussed above and at his stage of life, the distress suffered by Mr Dziurbas was significant.
11. Doing the best I can, I order that Mondelez pay to Mr Dziurbas the sum of $20,000 for injury to feelings.

1. Neither party addressed me on the question of costs. I will make provision for Mr Dziurbas to make an application for costs and for that application to be heard. However, I draw the parties' attention to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and note that, at present, it is not apparent to me that this would be a case which warrants departure from the expectation that the parties bear their own costs.

Section 20 of the Equal Opportunity Act 2010 (Vic)

(1) This section applies to a person with a disability who -

(b) requires adjustments in order to perform the genuine and reasonable requirements of the employment.

(2) The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made.

An employer may be able to make reasonable adjustments for a person or employee with a disability by -

• providing a ramp for access to the workplace or a particular software package for computers;
• modifying work instructions or reference manuals;
• allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment;
• allowing the person or employee to take breaks more frequently.

(3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including -

(a) the person's or employee's circumstances, including the nature of his or her disability; and

(b) the nature of the employee's role or the role that is being offered; and

(c) the nature of the adjustment required to accommodate the person's or employee's disability; and

(d) the financial circumstances of the employer; and

(e) the size and nature of the workplace and the employer's business; and

(f) the effect on the workplace and the employer's business of making the adjustment including -

(ii) the number of persons who would benefit from or be disadvantaged by doing so;

(iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g) the consequences for the employer of making the adjustment; and

(h) the consequences for the person or employee of not making the adjustment; and

(i) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and

(j) if the employer is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.

(4) For the purposes of subsection (2), in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered, including -

(a) the person's or employee's training, qualifications and experience;

(b) the person's or employee's current performance in the employment, if applicable.

Section 23 of the Equal Opportunity Act 2010 (Vic)

An employer may discriminate against a person or an employee on the basis of the person's or employee's disability in any of the areas specified in section 16 or 18 if -

(a) the person or employee requires adjustments in order to perform the genuine and reasonable requirements of the employment; and

(b) in the case of a person to whom section 20 applies, the employer has complied with that section; and

(i) the adjustments are not reasonable adjustments, having regard to the facts and circumstances set out in section 20(3); or

(ii) the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made, having regard to the facts and circumstances set out in section 20(4).

[1] Aitken & Ors v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547.

[2] Section 8(2)(b), EO Act.

[6] Black's Medical Dictionary, 41st Edition.

[7] Applicant's closing written submissions, paragraphs 9 and 10 and respondent's closing submissions.

[8] Exhibit ED-16 to Mr Dziurbas' witness statement affirmed on 7 May 2015.

[13] Paragraph 21 (apparently re-numbered 21 in error).

[15] Section 23(c)(ii) says that a further matter for consideration are the matters set out in section 20(4) which concern the employee's training, experience and performance. Those matters were not raised by the parties and so I have had no regard to that provision.

[16] Definition of discrimination, section 7(1)(b), EO Act.

[17] Particulars of Defence dated 23 February 2015, paragraph 6.

[18] [2014] FCA 370.

[19] [2015] FCCA 1827.

[20] [2000] VCAT 819.

[21] Section 22 of the Equal Opportunity Act 1995 (Vic).

[23] [1999] HCA 63.

[25] Exhibit NJ-1 to Mr Jarvis' witness statement.

[26] Mr Jarvis' witness statement, paragraphs 5 to 6.

[27] Exhibit ED-1 to Mr Dziurbas' witness statement.

[28] Mr Jarvis' witness statement, paragraph 12.

[29] Mr Jarvis' witness statement, paragraphs 6, 9 and 13.

[30] Mr Jarvis' witness statement, paragraph 12 c; Actif Work Place Health Report dated 20 February 2013, page 10 - part of annexure LK-9 to Ms Kavanagh's witness statement.

[31] Mr Dziurbas' witness statement, paragraphs 18 to 31.

[33] Accordingly to Mr Snaden's diagram, the Bosch bagger is bagger 4 to Mondelez, the 670 bagger is the F670 bagger to Mondelez, bagger 3 is bagger 2 to Mondelez and bagger 4 is bagger 3 to Mondelez.

[34] Mr Dziurbas' witness statement, paragraph 42.

[35] Mr Dziurbas' witness statement, paragraphs 33 to 39.

[36] Mr Dziurbas' witness statement, paragraph 21.

[37] Mr Jarvis' witness statement, paragraph 21.

[38] Mr Dziurbas' reply witness statement, paragraph 16.

[39] Mr Jarvis' witness statement, paragraph 9.

[40] Mr Jarvis' witness statement, paragraph 19.

[41] Mr Dziurbas' witness statement, paragraph 32.

[44] Ms Robinson's witness statement signed on 7 may 2015, paragraphs 8 to 13.

[53] Exhibit ED-10 to Mr Dziurbas' witness statement.

[54] Exhibit ED-9 to Mr Dziurbas' witness statement.

[55] Exhibit ED-8 to Mr Dziurbas' witness statement.

[56] Exhibit ED-11 to Mr Dziurbas' witness statement.

[58] Annexure LK-19 to her witness statement.

[59] Exhibit ED-15 to Mr Dziurbas' witness statement.

[69] Re Ms Hesketh's evidence - transcript, pages 144 to 146. There was a fault in the recording of this part of Ms Kavanagh's evidence and so no transcript page is available.

[70] [2014] VCAT 472.

[71] Annexure LK-17 to Ms Kavanagh's witness statement.

[72] Ms Hesketh's witness statement, paragraph 21.

[73] Mr Dziurbas' reply witness statement, paragraph 2.

[75] See also Mortimer J's discussion of the focus on the employee as compared to the position in the context of reasonable adjustments under the DDA in Watts, paragraph 23.

[78] Mr Dziurbas' witness statement, paragraph 53.

[79] Mr Dziurbas' witness statement, paragraph 54.

[82] Mr Jarvis' witness statement, paragraphs 14 to 17 and 20.

[83] Mr Dziurbas' reply witness statement, paragraph 10.

[84] Mr Dziurbas' reply witness statement, paragraphs 12 and 14.

[89] This sum took into account the 5 week payment Mr Dziurbas received on termination.

[90] Mr Dziurbas' witness statement, paragraphs 16 and 85 and Exhibit ED-1.

[92] Mr Dziurbas' witness statement, paragraph 77.

[93] Mr Dziurbas' witness statement, paragraph 82.

[94] Mr Dziurbas' witness statement, paragraph 75.

[95] [1996] IRCA 629.

[96] Deckert v Victorian Institute of Dryland Agriculture [2006] VCAT 299.

[97] GLS v PLP [2013] VCAT 221 at paragraph 275, per Garde P referring to I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 per Gaudron, Gummow and Hayne JJ at paragraphs 56 to 57.

[98] Richardson v Oracle [2014] FCAFC 82, per Kenny J at paragraphs 95 to 97, including reference to the Victorian Court of Appeal's decision in Amaca Pty Ltd v King [2011] VSCA 447, an asbestos related negligence case.

[99] Tan v Xenos (No 3) [2008] VCAT 584 at paragraph 556.

[100] I also put to one side the award of $5,000 for hurt and humiliation in Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613, as that was a representative action and no assessment was made as to the hurt and humiliation suffered by the individuals so represented - see paragraphs 358 and following.

[101] Deckert v Victorian Institute of Dryland Agriculture [2006] VCAT 299.

[102] Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725.

[103] Galea v Hartnett - Blairgowrie Caravan Park [2012] VCAT 1049.

[104] Slattery v Manningham CC [2014] VCAT 1442.

[105] Jemal v ISS Facility Services Pty Ltd [2015] VCAT 103.

[106] Bevilacqua v Telco Business Solutions (Watergardens) PL No.2 [2015] VCAT 693.

[107] Dirckze v Holmesglen Institute [2015] VCAT 1116. I dismissed all of Mr Dirckze's claims except for the claim of racial discrimination for which the award was made. Mr Dirckze has sought leave to appeal the decision.