Ferris v State of Victoria [2018] VSCA 240

1 The applicant, Scott Ferris, worked as a store supervisor at the low-security Langi Kal Kal prison from May 2009 until he was suspended in July 2014 and his employment was terminated in May 2015. The applicant suffers from type 2 diabetes and cardiomyopathy, and claims that his suspension and termination were due to discrimination on the basis of these disabilities. The respondent, the State of Victoria (acting through the Department of Justice and Regulation), contends that the applicant's suspension and termination were for disciplinary reasons unrelated to his disabilities.

2 The applicant brought a claim in the Victorian Civil and Administrative Tribunal (the Tribunal) for both direct[1] and indirect[2] discrimination under the Equal Opportunity Act 2010 (the Act). Judge Harbison, sitting as Vice President of the Tribunal, dismissed the applicant's claim for direct discrimination[3] but upheld his claim for indirect discrimination.[4] The finding of indirect discrimination related to a large increase in the numbers of prisoners which led to an increased workload, requiring the applicant to work unreasonable hours and preventing him from properly managing his diabetes. However, even though the Tribunal refused to order compensation for the indirect discrimination, the applicant seeks only to appeal the dismissal of his direct discrimination claim.

3 As the Tribunal was constituted by a Vice President, an application for leave to appeal her decision is made directly to this Court, and is restricted to an appeal on a question of law only.[5] Further, in order to obtain leave to appeal, it is necessary for the applicant to demonstrate that his proposed appeal has a real prospect of success as required by s 14C of the Supreme Court Act 1958.[6]

4 The sole proposed ground of appeal is as follows:

Her Honour's finding that 'there was absolutely no evidence' (Reasons [61]) to support a finding the Applicant was suspended or dismissed from his employment with the Respondent because of his condition of diabetes ('Applicant's contention') was in error because Her Honour failed to consider the Applicant's submissions and the evidence and considerations supporting those submissions when Her Honour was bound to consider whether the Applicant's contention was more likely than the Respondent's submissions and such failure was a denial of procedural fairness and a denial of the fair hearing principle.

5 That ground conflates two quite distinct concepts. The question whether there is any evidence of a particular fact is a question of law and a ground raising that point is addressed by a consideration of whether there is any - rather than sufficient - evidence to support the fact.[7] A failure to respond to a substantial, clearly articulated argument relying upon established facts may constitute a failure to accord natural justice and give rise to a question of law.[8]

6 In oral argument, the applicant's solicitor summarised this ground of appeal as contending that the Tribunal did not consider all the applicant's submissions as to why, on the evidence, it should be inferred that the reasons given by the respondent for suspending and then dismissing the applicant were 'fanciful' or 'a sham' - to disguise the real reason, being the applicant's diabetes. In other words, reading the Reasons as a whole, the Tribunal did not weigh the evidence and determine that issue on the balance of probabilities.

7 We accept that, if this occurred, it is capable of amounting to an error of law. In considering such a ground, close attention must be given to the principles to be applied in reviewing decisions of tribunals. In Secretary to the Department of Justice and Regulation v OUX (a pseudonym),[9] this Court summarised the principles in the following terms:

Under s 148 of the VCAT Act, this Court's jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a 'significant constraint' upon the role of the Court in reviewing a Tribunal's decision. This 'practical as well as principled restraint' means that the Court 'will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts'. Hence, the reasons of the Tribunal for the decision under review 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. The reality is 'that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'. We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal's reasons, bearing the foregoing principles steadily in mind.[10]

8 We proceed to consider whether an error of law has been established.

9 The following sections of the Act are relevant to this application:

4 Definitions

(1) In this Act -

...

disability means -

(a) total or partial loss of a bodily function; or

...

(d) malfunction of a part of the body ...

and includes ... to avoid doubt, behaviour that is a symptom or manifestation of a disability.

6 Attributes

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4 -

...

(e) disability...

7 Meaning of discrimination

(1) Discrimination means -

(a) direct or indirect discrimination on the basis of an attribute...

8 Direct discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

...

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

9 Indirect discrimination

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

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b) that is not reasonable.

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

...

(4) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

10 Motive is irrelevant to discrimination

In determining whether or not a person discriminates, the person's motive is irrelevant.

18 Discrimination against employees

An employer must not discriminate against an employee -

...

(b) by dismissing the employee or otherwise terminating his or her employment; or

...

(d) by subjecting the employee to any other detriment.[11]

(1) is bound by the rules of natural justice,[12] and that the parties have a right to a fair hearing;[13] and

(2) must provide reasons for its decision which disclose the basis, or path of reasoning, by which its conclusion is reached. A failure to do so is an error of law.[14]

11 It follows that the Tribunal was obliged to afford procedural fairness to the applicant by addressing the submissions he put forward.[15] To determine whether the applicant's submissions were adequately addressed, it is necessary to review the Reasons as a whole.

Did the Tribunal fail to consider all submissions?

12 The Tribunal accepted that the applicant suffers from both type 2 diabetes and cardiomyopathy, and the respondent accepted that these are disabilities that amount to attributes for the purposes of the Act,[16] preventing unlawful direct discrimination 'because of' those conditions.[17] The applicant suffered from type 2 diabetes from before the time he commenced employment with the respondent, and first suffered from cardiomyopathy following a cardiac event in April 2014 - while employed by the respondent. The Tribunal noted that no evidence or submissions were directed to the applicant's cardiomyopathy, other than in passing, so quite properly made no finding with regard to the cardiomyopathy claim.[18] The proposed ground of appeal only refers to the applicant's diabetes. Thus, it is not necessary to further address the applicant's cardiomyopathy.

13 The Tribunal reviewed the evidence and made the following factual findings concerning the respondent's knowledge, or lack of knowledge, about the applicant's diabetes.

14 First, the Tribunal held that the applicant did not inform the respondent, in the sense of the Department, that he suffered from diabetes. The Tribunal held:

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.[19]

15 Second, the Tribunal made the finding that, while the applicant had told some other employees about his diabetes, he did not give evidence that he directly told anyone that there could be adverse consequences to his diabetes due to his increased workload.[20]

16 Third, with respect to the applicant's failure to advise the respondent of his diabetes at the time he was employed, the Tribunal noted - albeit in respect of the indirect discrimination claim - that, upon commencement of his employment with the respondent, the applicant left the relevant section of his pre-existing illness declaration form blank. The section of the form that the applicant left blank stated:

I have suffered the following injuries and/or diseases that may recur or deteriorate, accelerate or be exacerbated or aggravated by the duties as outlined in the role description (please list injuries and/or diseases)'.[21]

17 The applicant in cross-examination claimed this omission was both because he did not believe his diabetes would be affected based on the position description, and because he expected to go through the paperwork with a representative of the respondent. However, it remains the fact that the applicant did not inform the respondent that there could be adverse consequences to his diabetes due to his increased workload.

18 Fourth, the Tribunal noted that there was no suggestion that the applicant felt intimidated into not raising the issue.[22]

19 The Tribunal's findings as to knowledge and lack of knowledge formed a key part of its factual conclusion that there was not a sufficient causal connection between the applicant's diabetes and his dismissal.

20 The Tribunal then made the following statement which is the subject of the proposed ground of appeal:

There is absolutely no evidence to support any suggestion that Mr Ferris was suspended or dismissed because of his condition of diabetes.[23]

21 If this statement was not elaborated upon, there may have been some merit in the applicant's proposed ground of appeal. However, this is merely an example of 'loose' language, or 'unhappy phrasing' used by the Tribunal, which this Court will be slow to characterise as legal error.[24] In context, reading the Reasons as a whole, the statement should be understood as a reference to there being no direct evidence of the discrimination contended for, as it appears as an introduction to the Tribunal's analysis of whether there was direct evidence of discrimination:

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.

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.

What I need to determine is whether that suspension or termination was made because Mr Ferris suffered from his condition of diabetes or cardiomyopathy.

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.

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.

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.

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.

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.

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.

What was suggested to those witnesses was that the suspension and termination was not warranted on the evidence.[25]

22 In these paragraphs, the Tribunal identified the lack of direct evidence of the causal connection between the applicant's diabetes and his suspension and termination. This approach is the subject of criticism from the applicant. In his written case, the applicant contends that:

Instead of considering the Applicant's submissions, including considering the evidence referred to in detail by the Applicant and references to the Respondent's omissions, VCAT looked only for direct evidence of the discrimination, that is, it appears, something akin to a confession or evidence from which an inference arises which could be described as such.

23 We accept that, as the respondent conceded, it would have been an error of law for the Tribunal to only consider whether there was direct evidence of discrimination, and to fail to address the circumstantial - or inferential - case that was put by the applicant. But that is not what the Tribunal did. It expressly considered the circumstantial case, and made the following factual findings:

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.

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.

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.[26]

24 Notably, the Tribunal did not refer to there being 'no evidence' when addressing the circumstantial case.

25 The applicant's key submissions to the Tribunal were that the reasons put forward by the respondent for his suspension and termination were so unreasonable as to not be credible, and were the result of an investigation which 'was so obviously defective it must be a sham'. Thus, it was said that the reasons given by the respondent were a sham to disguise the real reason for suspension and dismissal - being the applicant's diabetes. The Tribunal addressed these submissions squarely in the above quoted reasons, finding as a fact that the justification given by the respondent was not a sham in order to conceal discrimination, and made a positive factual finding that the termination was for disciplinary reasons 'totally unconnected to his condition of diabetes'.[27] We reject the contention that the Tribunal did not consider the applicant's submissions on this issue. It is clear that it did and that it gave reasons for not accepting them.

26 There was no error in the Tribunal's approach in rejecting the submissions. As her Honour noted, it was not the Tribunal's role to determine whether the subject matter of the investigation warranted suspension or termination.[28] While in many ways the case was run like one, this was not an unfair dismissal application brought under the Fair Work Act 2009 (Cth), which would consider whether the dismissal was 'harsh, unjust or unreasonable'.[29] It could be possible for a dismissal to be unjust or unreasonable for the purposes of an unfair dismissal application, and yet not be a sham in order to hide underlying discriminatory intent. Unlike in other areas of law,[30] the burden here was on the applicant to prove the causal connection between his suspension or termination, and his disability. To establish his claim of direct discrimination, the applicant had to prove that his diabetes was at least a substantial reason for his suspension or termination.[31] The question whether the respondent suspended or terminated the applicant because of his diabetes was a question of fact to be answered in the light of all of the facts established in the proceeding.[32] A favourable finding on that question of fact was foreclosed by the Tribunal's positive satisfaction the applicant was terminated for disciplinary reasons totally unconnected to his condition of diabetes.

27 The difficulty of proving causation in a discrimination case such as the present was discussed in Victoria v McKenna,[33] a case involving a sexual discrimination claim brought under predecessor legislation. That difficulty explains the use, in other statutory regimes, of a reverse onus in relation to the reasons for conduct.[34]

28 In discussing the decision of Fullagar J in Department of Health v Arumugam,[35] a racial discrimination case brought under the Equal Opportunity Act 1984, Smith J said as follows:

In cases like Arumugam, or the present case, a given fact to be considered in considering all the evidence is the race or gender of the complainant which is to be compared with the race or gender of the other persons involved. Another relevant fact would be the existence of racism or sexism in the community. His Honour in fact referred to the presence in the community of the phenomenon of racism, a phenomenon that is known to affect decision making by people. That phenomenon is a matter of background fact which courts can drawn [sic] on or judicially notice. Bearing these points in mind, it might be properly argued, for example, having regard to the existence of racism in the community, that where a choice was made between two individuals, one of whom was black and one of whom was white, and the white (or the black) person was selected, a number of possible inferences arise for consideration, one of them being that race was a factor in the choice because of the existence of racism and the fact that a choice was being made between people of different races. An analysis of the full facts of the case may reveal that that inference should not be drawn. Arumugam was such a case; for while the complainant had better qualifications he was 'less articulate and less aggressive' and for that reason less suitable. An innocent explanation existed and was accepted. But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn even though there is no additional positive evidence to support the drawing of the inference. It seems to me that the same points may be made in relation to sexism and complaints of sexual discrimination.[36]

29 The same reasoning should be extended to apply to complaints of disability discrimination. Where a respondent has knowledge of the disability of an applicant, and no innocent explanation exists or is accepted for the applicant being treated unfavourably, it may be possible to infer that the conduct being complained of was as a result of the disability, though care must be taken not to reverse the onus of proof. However, the Tribunal here accepted the innocent explanation provided by the respondent - and this factual finding was clearly open.

30 There was an alternative way the claim was put by the applicant. He contended that the behaviour upon which that the respondent based its decision to suspend and terminate him for disciplinary reasons was a manifestation of his diabetes. If accepted, this may be a valid basis for a claim, as the definition of 'disability' in the Act expressly includes 'behaviour that is a symptom or manifestation of a disability'.[37]

31 To address this point, it is necessary to briefly summarise the allegations against the applicant that were substantiated by the respondent after an internal investigation:

(1) The applicant swore at a prisoner, saying: 'for fucks sake you are not getting anything so piss off'.

(2) This occurred on the same day that the applicant was given a verbal direction by his superior not to use words such as 'fuck' and 'piss off'.

(3) The applicant did not properly account for and/or bank monies in the course of his duties. It was not alleged that there was any element of dishonesty or that the applicant profited in any way.

(4) The applicant had a previous formal warning for swearing at prisoners, where he had said: 'I don't give a fuck, he can wait, every cunt thinks they deserve special treatment around here, fuck'; referred to prisoners as 'fuckwits'; referred to a prisoner as 'fuckwit of the week'; and stated 'does this look like a fuckwit? Fuckwit'. This was also after a previous written warning about his behaviour.

32 The applicant called an expert, endocrinologist Professor Jonathan Shaw, who gave evidence of the applicant's elevated blood sugar levels during the relevant period, and stated that 'some people become irritable, short-tempered, and emotionally affected by such levels'. Professor Shaw further stated that 'it could easily change someone from being able to use firm but ordinary acceptable language to moving over into swearing'.

33 The Tribunal addressed this submission by making factual findings, as follows:

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.

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's 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.[38]

34 Later, in considering the indirect discrimination claim, the Tribunal spoke in similar terms:

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.

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.

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.[39]

35 All of the ways the applicant ran his case were considered and dismissed by the Tribunal. There were factual findings to support each conclusion and those findings were open on the evidence.

36 Because the language used by the Tribunal in finding that there was no causal connection between the applicant's diabetes and his dismissal, and therefore no direct discrimination, was arguably 'loose', leave to appeal will be granted. However, for the reasons given, the appeal will be dismissed.

[1] Equal Opportunity Act 2010 s 8.

[2] Ibid s 9.

[3] Ferris v Department of Justice and Regulation (Human Rights) [2017] VCAT 1771 [97] (Reasons).

[5] Victorian Civil and Administrative Tribunal Act 1998 s 148(1)(a).

[6] Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746, 769-70 [67]-[69].

[7] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ).

[8] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394 [24] (Gummow and Callinan JJ).

[9] [2018] VSCA 178 (OUX).

[10] Ibid [36] (emphasis added) (citations omitted).

[12] Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(a).

[13] Charter of Human Rights and Responsibilities s 24(1); De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199; (2009) 25 VR 237, 247 [52] (Neave JA and Williams AJA).

[14] Secretary to the Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11 [23]; Victorian Civil and Administrative Tribunal Act 1998 s 117(1).

[15] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319, 356 [90].

[16] Reasons [6], [33]; Equal Opportunity Act 2010 s 6(e).

[17] Equal Opportunity Act 2010 s 8(1).

[24] OUX [2018] VSCA 178 [36].

[25] Reasons [62]-[71] (emphasis added).

[26] Ibid [72]-[74] (emphasis added).

[29] Fair Work Act 2009 (Cth) s 385(b).

[30] See, eg, Fair Work Act 2009 (Cth) s 361, which creates a reverse onus of proof so that if a person alleges averse action was taken against them for a prohibited reason (eg due to their disability) it is presumed to be the case unless the respondent proves otherwise. See also Neil Rees, Simon Rice & Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, Federation Press, 2018) 118-20 [3.2.45]-[3.2.49].

[31] Equal Opportunity Act 2010 s 8(2).

[32] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 517 [45] (French CJ and Crennan J) (Barclay)

[33] [1999] VSC 310.

[34] See fn 30 above and discussion in Barclay [2012] HCA 32; (2012) 248 CLR 500, 510-11 [21].

[35] [1988] VicRp 42; [1988] VR 319.

[36] Victoria v McKenna [1999] VSC 310 [42] (citations omitted) (emphasis added).

[37] Equal Opportunity Act 2010 s 4 (definition of 'disability').

[38] Reasons [75]-[76] (emphasis added).

[39] Ibid [94]-[96] (emphasis added).