Link between diabetes, increased workload, and the discrimination

1. The applicant made extensive submissions as to the sections of the applicant's evidence which were not contested by the respondent. I have indicated that Mr Ferris has persuaded me of many of the factual matters he relied on in evidence.
2. However, this is not an inquiry into the working conditions at the prison over the relevant period. This is a claim of discrimination under the Equal Opportunity Act 2010. In order to make his claim under section 8 of direct discrimination, he must prove that he has been treated unfavourably because of his attribute.
3. He has persuaded me that he is a person with two attributes. He has persuaded me that one of those attributes, his condition of diabetes, became poorly managed by reason of being required to accommodate increased workload. However, he must also persuade me that he was treated unfavourably because of his attribute.
4. This is where there is a significant difficulty with Mr Ferris' claim of direct discrimination. At the time when Mr Ferris was employed, he did not advise the Department that he suffered from the condition of type 2 diabetes. Indeed, he gave evidence that at the time he did not consider that it affected his abilities at all and that he did not regard it as a disability. It is very difficult to see how he can establish that he was subjected to unfavourable treatment because of his diabetes if the respondent was unaware of that condition.
5. Recognising this difficulty, counsel for the applicant sought to establish that those persons working with Mr Ferris and those having responsibility over him did in fact know of his condition of diabetes.
6. Mr Ferris gave evidence that he told some of the respondent's employees that he had diabetes. However he did not give evidence that he directly told anyone that there were likely to be adverse consequences to his diabetes as a result of his increased workload over the relevant period. Indeed he said that he didn't realise that he was entitled to say anything about diabetes so he did not.
7. He said that because he needed to bring in needles for insulin injections into the prison he told a prison collator who was showing him around prior to commencing employment that he was diabetic. He also gave him a list of the medications which he would need to bring to prison. He said that he said the same thing to Mr Pickering, the security supervisor of the prison.
8. However, he never suggested that when he found his diabetes becoming unmanageable that he sought to bring this to his employer's attention, or indeed that he ever said this to any person at the prison or elsewhere before he made a claim of discrimination.
9. He does not suggest that he had any conversation with any person at the prison at any level of authority indicating any particular requirements he would have in his work by reason of his condition of diabetes or cardiomyopathy (apart from needing to bring insulin and needles into the prison.).
10. This is except for a conversation with Catherine Derbyshire in which there appears to have been a general discussion between Catherine Derbyshire and the applicant about diabetes, but in which no suggestion appears to have been made of connection between his current condition of diabetes and his enhanced workload.
11. Counsel for the applicant tried to suggest that Derbyshire was some sort of an expert on diabetes because she had worked as a psychiatric nurse. It was suggested she had a particular responsibility to identify the risk to the applicant of increased workload because of her expertise. I view this suggestion as fanciful and reject it.
12. There was absolutely no evidence in this case suggesting that Mr Ferris had told anyone that his working conditions were aggravating his diabetes, or that his working conditions had had some sort of deleterious effect on his condition over the relevant period.
13. I find that the applicant did not inform anyone at his workplace, whether in a position of authority or not, that he needed to have his employment conditions scrutinised to ensure that he was able to manage his diabetes, and that his capacity to do so had been compromised in any way by his working conditions.
14. It appears that the first time that the issue of diabetes was mentioned as having been aggravated by his employment was in a meeting between the applicant and Catherine Derbyshire after an equal opportunity complaint had already been lodged with the Victorian Equal Opportunity and Human Rights Commission complaining that the Department had discriminated against him on the basis of his disability.
15. There is therefore no evidence to support a suggestion that the Department has discriminated against the applicant by treating him unfavourably, in the sense of imposing an additional workload upon him, because of his diabetes.
16. There is also absolutely no evidence to support any suggestion that Mr Ferris was suspended or dismissed because of his condition of diabetes.
17. Mr Ferris was ultimately dismissed after findings were made by the Department that he had committed acts of misconduct by swearing in an aggressive manner to a prisoner, failing to comply with a direction by a superior that he not speak in that manner, and not properly accounting for or banking monies received in the course of his duties.
18. The applicant presented a great deal of evidence with a view to establishing that the findings that the Department made on each of these issues was wrong. However, it is not necessary for me to form a view one way or other on this issue. This is not the occasion for determining whether the suspension or termination were properly grounded.
19. What I need to determine is whether that suspension or termination was made because Mr Ferris suffered from his condition of diabetes or cardiomyopathy.
20. Proof of this link was fundamental to the applicant's case. It was therefore very surprising that it was not suggested to any of the witnesses in this case, whether applicant's witnesses or respondents witnesses, that Mr Ferris was suspended or terminated because he suffered or possessed an attribute.
21. The one exception was in the cross examination of Dennis Higgins. He was employed at Langi Kal Kal from May 2014 to February 2015 and was Mr Ferris immediate boss during that time. It was suggested to him that he saw Mr Ferris as "a problem in going forward in the organisation" because he had diabetes. This suggestion was denied by Mr Higgins. Once again, it appeared to me on the evidence to be a fanciful suggestion and I reject it.
22. In any event, Mr Higgins did not have any role in the investigation conducted into Mr Ferris's work and it was not suggested that Mr Higgins had made the decision to either suspend him or terminate his employment, or that he had suggested it to anyone else.
23. Employees of higher responsibility such as Mr McCormick, the general manager of the prison and Catherine Derbyshire, the regional manager, were not cross-examined about this issue. Both of them gave emphatic evidence that they were not involved in the decision to either suspend or dismiss Mr Ferris.
24. Indeed, even though during the cross-examination of Derbyshire I reminded the applicant's counsel of the need for him to establish that termination occurred as a result of a disability, still Derbyshire was still never asked any questions suggesting to her that Mr Ferris had been suspended or terminated because of his disability.
25. Mr McCormick was emphatic that he had no part to play in the suspension or termination of the applicant. Indeed he said that such a decision would be "way out of his delegation" and that he was not allowed to have any input into such a decision.
26. What was suggested to those witnesses was that the suspension and termination was not warranted on the evidence.
27. There was a further way in which the claim of direct discrimination was put. Given that there was no direct evidence suggesting a connection between diabetes or cardiomyopathy and suspension or termination, what I understand the argument to be is that I should find that the connection was established by necessary implication from all of the evidence. In other words, there could have been no possible basis for the suspension or termination other than the fact that Mr Ferris suffered from a disability.
28. This conclusion is in my view not sustainable on the evidence. There were other rational reasons put forward in the evidence for the suspension and termination. I do not need to make a determination on whether the subject matter of the investigation should have warranted suspension or termination. It is enough that I find that the reasons given were not a sham in order to conceal discrimination on a prohibited ground.
29. I see no grounds based on any of the evidence in this case to find that either of the applicants attributes were a cause of his suspension or termination. Rather, I am positively satisfied that the applicant was terminated for disciplinary reasons totally unconnected to his condition of diabetes.
30. The applicant makes a further argument that the aggravation of his condition of diabetes caused him to be irritable and short tempered and unable to properly attend to his work, and that these manifestations of his disability led to the acts which were relied upon to support the dismissal.
31. However in my view this link is not established on the evidence. In so far as the disciplinary matters consisted of allegations of financial mismanagement, the applicant did not give evidence that he was unable to manage the finances which were entrusted to him because of any of these manifestations of his disability. It is also in my view far too speculative to suggest that the disciplinary charge arising out of his abusive treatment of a prisoner was a manifestation of his condition of diabetes. The applicant evidence in relation to this incident was that he was not speaking abusively to a prisoner, but was using language which was accepted within the prison as a familiar but respectful way of speaking to prisoners.
32. The claim of direct discrimination therefore fails.

1. Mr Ferris also makes a claim of indirect discrimination, based upon the four aspects of his working conditions during 2011 to 204 that I have already identified.
2. A claim of indirect discrimination is quite different to a claim of direct discrimination. It is important to look precisely at the elements of such a claim to determine whether they are established. Section 9 provides that indirect discrimination occurs if a person imposes or proposes to impose a requirement, condition or practice that has, or is likely to have the effect of disadvantaging persons with an attribute, and that is not reasonable.
3. The way in which Mr Ferris seeks to have his claim brought under this section is as follows.
4. Firstly, Mr Ferris says that the requirement complained of is the requirement that he work unreasonable hours. I have already found essentially that there was such a requirement placed upon him during the relevant period.
5. Mr Ferris also says that he is a person with an attribute and in relation to section 9 he appears also to rely upon both conditions that is a condition of diabetes and cardiomyopathy as that attribute.
6. I accept that he is a person with an attribute for the purposes of section 9.
7. Further, he says that the requirement has had the effect of disadvantaging him as a diabetic because it has caused his diabetes to become unstable.
8. Lastly, he says that the requirement was not reasonable and relies upon all of the evidence which has been given by himself and his workmates as to the oppressive nature of the workload at the time.
9. Section 9(4) provides that in determining whether a person indirectly discriminates is irrelevant whether or not that person is aware of the discrimination, and I am also aware of section 10 of the Act to which provides that motive is irrelevant to discrimination.
10. These sections relieve an applicant from the responsibility of being required to prove what was in the mind of the person who imposed an unlawful requirement, or whether the person knew that unlawful discrimination would result from the requirement. This is remedial legislation. It is designed to address discriminatory behaviour which leads to disadvantage, and the respondent has the burden of proving that the requirement is reasonable. Unlike a claim of direct discrimination, an applicant in a claim for indirect discrimination does not have to prove that the respondent was aware of the applicant's disability.
11. The respondent argues that Mr Ferris has failed to provide any proof that there was condition imposed by the respondent which has general application to the stores department or the prison. I accept that the evidence of the applicant's witnesses is sufficient to establish that there was a requirement condition or practice within the terms of the Act that staff in the stores department work unreasonably long hours. This requirement does not need to be as explicit or formal as the respondent suggests. It can be implied from the surrounding circumstances or mileu in which an employee is required to work, and in this case I find it to be so implied. The workers had effectively no choice but to work unreasonable hours in order to get the day's work done. Each day's work had to be finished by the end of the day. It could not be put off till the next day. Staff could not take meal breaks if there was a prison van waiting to be processed. A respondent cannot escape responsibility for indirect discrimination by simply placing an applicant in a situation where a requirement must be met, even though that requirement is not specifically spelled-out.
12. Further the respondent says that the applicant evidence at its highest is of disadvantage to him, and not to the group of which he is a representative. It is fundamental to a claim of indirect discrimination that an applicant is able to establish that the particular requirement relied upon is or is likely to have the effect of disadvantaging persons with an attribute - that is a cohort of persons disadvantaged by the requirement in question. The respondent says that all the evidence is about disadvantage to Mr Ferris, and not to disadvantage to a group of persons with the applicants disability - that is, diabetes.
13. I accept that the evidence of Professor Jonathan Shaw is sufficient to show that Mr Ferris is a member of a group, that is, persons with diabetes, who may be disadvantaged by a requirement to work unreasonably long hours in that the condition of diabetes is prone to become unstable in conditions of stress and exhaustion, where a sufferer is unable to eat appropriate foods, exercise adequately, or take appropriate medication.
14. I therefore find that in imposing an unreasonable workload upon the applicant Mr Ferris was disadvantaged by reason of his diabetes becoming unstable.
15. That is not the end of the matter. Mr Ferris says that the disadvantage to him is not just poorly managed diabetes, but that the suspension and termination also occurred as a result of the Department's requirements.
16. He says that because his diabetes was unstable, he was rendered more likely to be abusive and to become confused at work.
17. As with my reasoning in respect of the claim for direct discrimination, I am not persuaded that there is a requisite connection between the imposition of an unreasonable workload and the suspension or termination of Mr Ferris.
18. It is significant that no mention at all was made by Mr Ferris of such a connection in any of the correspondence put forward to the Department until the investigation was well advanced and Mr Ferris has already lodged an equal opportunity complaint with the Commission. Mr Ferris' defence to the disciplinary allegations regarding inappropriate behaviour appeared to be that he was justified in behaving that way and that it was behaviour that was common in the prison.
19. His defence to the claims of financial mismanagement appeared to be that either he was not involved in the mismanagement or that the financial mismanagement was not proven.

1. I have found that Mr Ferris has not made out his claim of direct discrimination.
2. I have found that he has made out a claim of indirect discrimination as the Department imposed a requirement that he work unreasonable hours and that requirement disadvantaged him as a diabetic in that he was unable to take appropriate breaks and unable to regulate his diet, and that the unreasonable workload caused him stress.
3. It might seem a harsh result to find a respondent guilty of indirect discrimination in a situation where that respondent has no actual knowledge of the impact a disability will have on the requirement which it has imposed on its employees. However, it will often be the case that a respondent to a claim of indirect discrimination has no knowledge of the discriminatory effect of its requirements on individual persons with a disability.
4. In this case, although once the disability had been brought to its attention, the respondent had procedures in place to deal with the impact of its working conditions on disabilities such as diabetes, the finding of indirect discrimination is in my opinion warranted. This is because the respondent did not follow up on the applicant leaving the relevant part of his employment form blank. Had it done so, it would have been in a position to deploy those remedial procedures to avoid the discriminatory effect.
5. I therefore find that the claim of indirect discrimination is proven.

1. The applicant submitted that the evidence established that there were employees of the respondent who must have played a part in the suspension and termination of the applicant's employment, who had not been called by the respondent to give evidence. The applicant further submitted that the fact that these witnesses had not been called and no good reason had been advanced for their failure to give evidence raised a Jones v Dunkel inference - that is, that the evidence of these witnesses would not have assisted the respondent.
2. In my view there are several difficulties with this submission. Firstly there are no grounds for believing that the respondent has "hidden" these witnesses, as the applicant asserts in its written submission. Secondly, even assuming that the evidence of these witnesses would not have assisted the respondent, this does not allow a conclusion that any of the respondents employees decided to suspend or terminate the applicant's employment because of either his disability of diabetes or his disability of cardiomyopathy. The link suggested is simply not tenable on the evidence.

1. Having found the claim under section 9 of the Act proven, I have had a great deal of difficulty in formulating the appropriate remedy. I have specifically found that the process of disciplining Mr Ferris, suspending him from his employment and terminating his employment were not the consequences of the indirect discrimination. I therefore am not prepared to make an order for reinstatement of his employment or loss of income from that termination or compensation for the humiliation and embarrassment of having his employment suspended and terminated.
2. Therefore the bulk of the remedies claimed fall away.
3. I have also found that there is no concrete evidence of the Department being aware of the effect that the requirement would have on Mr Ferris as a result of his condition of diabetes.
4. In those circumstances it is inappropriate for me to make an order for apology sought in the particulars of demand.
5. Having regard to the facts as I have found them I do not consider it appropriate to award compensation to the applicant for the contribution made by his unreasonable workload to the escalation of his condition of diabetes.
6. This is because the applicant had taken no steps at all to warn his employer of the effect the increased workload was having on his health.
7. The respondent had given him a form to complete as to details of any disabilities suffered by him which may impact on his work. He had left the relevant part of the form blank. He did not attempt to update this information when he became aware that his diabetes was being adversely impacted by his workload. True it is that the respondent did not follow up on this information either. But it is the applicant who seeks to be compensated in this proceeding.
8. There was no suggestion that Mr Ferris may have felt intimidated into not raising the issue at work. There was evidence that the respondent had procedures in place to properly accommodate any workers who suffered from a disability. Those procedures were not implemented because Mr Ferris did not advise the respondent that they were required. Had they been implemented, there is no reason to suggest that there would have been any detriment to the applicant at all.
9. In the circumstances I propose to order that the claim under section 9 of the Act is proven but to make no further order.