Federal Magistrates Court of Australia|2003-06-26

Forbes v Commonwealth of Australia [2003] FMCA 140 (26 June 2003)

HUMAN RIGHTS - Disability discrimination - alleged discrimination in employment and due to refusal to offer further employment - whether applicant treated less favourably due to her suffering a depressive illness - whether the employer failed to implement a return to work procedure - whether the employer withheld material information from the consideration of ongoing employment.

DAMAGES - Assessment of loss - economic and non-economic loss - consideration of an apology as the measure of damages.

Forbes v Comcare [2001] AATA 527

COMMONWEALTH OF AUSTRALIA (REPRESENTED BY THE AUSTRALIAN FEDERAL POLICE)

(1) The Australian Federal Police discriminated against the applicant in withholding relevant material from the AFP Review Panel which considered the future employment of the applicant with the AFP in 2000.

(1) The AFP provide a written apology to the applicant in terms to be agreed between the parties, or in default of agreement, in terms to be determined by the Court.

1. Pamela Forbes is a former member of the Australian Federal Police. She joined the police as a permanent member on 27 March 1978 and she ceased to be a member on 25 August 2000. These proceedings are brought under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). Ms Forbes claims compensation for unlawful discrimination contrary to ss.5 and 15 of the Disability Discrimination Act 1992 (Cth) ("the DDA") by the Australian Federal Police ("the AFP").

2. Ms Forbes was employed by the AFP for over 20 years. Initially she was a permanent member but her employment was converted to a fixed term appointment on 20 August 1990. She sought to re-convert her fixed term employment to permanent employment in 2000 but the AFP declined that request. Ms Forbes asserts discrimination contrary to s.15(1)(a) and (b) of the DDA in relation to that decision by the AFP.

3. On 3 September 2000, Ms Forbes requested a review by the AFP review panel of the decision of the AFP not to appoint her as a permanent employee. The decision of the AFP was confirmed by the AFP review panel on the basis that it considered that there had been not only a breakdown in the employment relationship, but a breakdown of such magnitude that it was highly unlikely that the damage could be repaired. Ms Forbes alleges that the decision of the AFP review panel was a continuation of the discriminatory conduct of the AFP.

4. In addition, Ms Forbes claims compensation for discrimination contrary to s.15(2)(d) of the DDA. She asserts that on 17 December 1997 operational decisions were made by the AFP which she did not agree with. An operation Ms Forbes was working on was cancelled and she was transferred to a different area of work. She asserts that the decisions of the AFP set off a major depressive illness and that she went off on extended sick leave from that date. She did not return to work at the AFP prior to the cessation of her employment in 2000. Ms Forbes also alleges that the AFP failed to adequately implement a return to work programme for her or provide adequate counselling and support to her and that this omission discriminated against her on the basis of her disability.

5. It is material that on or about 10 May 1998 Ms Forbes claimed workers' compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") for a major depressive disorder. Her claim was declined on 20 November 1998. Following internal reconsideration, Comcare affirmed that decision on 16 April 1999. Ms Forbes challenged that decision in the Administrative Appeal Tribunal ("the AAT"). On 13 June 2001 the AAT found Ms Forbes' workers' compensation claim to be valid for the period from 17 December 1997 until 6 October 1999. The AAT found that after 6 October 1999 Ms Forbes' condition was not work related.

6. On 26 October 2001 Ms Forbes lodged a complaint with HREOC in relation to the alleged discriminatory conduct of the AFP. The complaint was augmented on 11 February 2002. The President of HREOC terminated the complaint on 28 February 2002 pursuant to s.46PH(1)(f) of the HREOC Act on the ground that she was satisfied that the subject matter of the complaint had been adequately dealt with by another statutory authority. The President had regard, in particular, to the decision of the AAT and also had regard to the decision of the AFP review panel.

7. Ms Forbes has applied to this Court for relief in consequence of the termination of her complaint by the President of HREOC.

8. Ms Forbes relies upon two affidavits filed on 22 March 2002 and on 29 January 2003. She was represented at trial by Mr Britton. The application is opposed by the Commonwealth, which relies upon an affidavit filed on 14 March 2003 by the Honourable Joseph Martin Riordan AO, Chairperson of the Work Cover Authority of New South Wales, member of the Administrative Decisions Tribunal of New South Wales and retired Senior Deputy President of the Australian Industrial Relations Commission. At the relevant time Mr Riordan was the Chairperson of the AFP review panel. The Commonwealth was represented at trial by Ms Henderson.

9. As I have already noted, Ms Forbes seeks compensation in these proceedings. Her action is, in substance, an action for damages for a statutory tort. The Commonwealth (represented by the AFP) is the proper respondent, noting that the AFP has no legal personality of its own and noting further the operation of s.64B of the Australian Federal Police Act 1979 (Cth).

10. Ms Forbes suffers from a depressive illness. Although during the course of argument Ms Henderson made a submission to the contrary, it is not disputed now that Ms Forbes suffers from a disability as that term is defined in s.4 of the DDA. That point was conceded by the solicitors for the Commonwealth at an interlocutory stage of the proceedings, in the light of the decision of the AAT. The issue to be determined is whether Ms Forbes was discriminated against (within the meaning of that expression in s.5 of the DDA) in relation to her employment, contrary to s.15 of the DDA. In order to resolve that issue it is necessary to traverse the employment history of the applicant, commencing on 17 December 1997. On that day Ms Forbes left the workplace and did not return. Two things happened on that day or around that time which distressed her. The first was that her then partner had been made redundant from the AFP. The second was that she had been directed to undertake work on statements for court proceedings in preference to working on a police drug investigation which she regarded as more important. For several years prior to that date Ms Forbes had held negative views about some of her AFP colleagues and had expressed some negative views in writing. She told me that she had reservations about the competence of some of her AFP colleagues in Adelaide but also told me that the vehemence of her views was affected by her mental state.

11. The AAT found that the applicant suffered from a compensable injury from 17 December 1997 and for the purposes of these proceedings it was conceded on behalf of the Commonwealth that the applicant suffered from a disability from that date. Ms Forbes initially obtained temporary medical certificates from a general practitioner and it was not until 23 March 1998 that the first of several specialist reports was provided. That report was provided by Dr Byok. Ms Forbes was subsequently seen by a Mr Sladden, a psychologist. He provided a report on 5 May 1998. A further report by Dr Davis, psychiatrist was prepared on 11 September 1998. Ms Forbes commenced counselling sessions with a Ms Barrett on 13 August 1999 and Mr Sladden prepared a further report on 5 October 1999. Dr Davis provided a further report on 8 October 1999. The counselling sessions with Ms Barrett ceased on 1 November 1999 after the AFP disallowed further counselling on that day. The applicant was also seen on several occasions by Dr McCleave. He provided three reports on 30 June 1998, 23 January 2000 and 24 July 2000.

12. The medical evidence satisfied the AAT that the applicant suffered from a compensable injury and confirms that the applicant suffered from a disability for the purposes of the DDA, at least for the period that the applicant suffered from a compensable injury.

13. In Forbes v Comcare [2001] AATA 527, at [82], the AAT made the following observation of significance:

The Tribunal comments that the AFP adopted a poor attitude with respect to the rehabilitation and support of the applicant. There is no evidence of a suitable return to work programme being considered at any stage. The AFP provided entirely inadequate support by way of counselling, which clearly should have been ongoing throughout the entire period. The Tribunal gained the impression from Ms Peisley's evidence [another AFP officer] that the AFP simply sat on its hands and waited to see what the applicant might do, rather than be proactive to attempt to assist the applicant. Mr Mannow [another AFP officer] contacted the applicant off his own bat, and whilst he is to be commended for that, it is a pity that his superiors did not initiate further and more intense assistance. Had such occurred, the situation in which both parties now find themselves may have been averted.

14. Ms Forbes complains that this conduct by the AFP was discriminatory.

15. In my view, this aspect of the applicant's claim is unproven. First, Ms Forbes conceded in evidence that she initially contemplated resignation from the AFP and continued to be unsure whether or not she would resign until mid 1999: transcript 9 April 2003, p.76 at 42. AFP management in Adelaide was aware that she wanted time to consider her position. She was initially using up accumulated sick leave based upon medical certificates that simply referred to a "medical condition" without elaboration. Ms Forbes had submitted a grievance report on 12 January 1998 and the attention of the AFP was reasonably directed to considering that grievance. The report of the internal investigation into Ms Forbes' grievance was completed on 30 April 1998 and by that stage the report of Dr Byok was available. By the time of the reports by Mr Sladden on 5 May 1998 and the report of Dr McCleave on 30 June 1998 it was, or should have been, apparent to the AFP that Ms Forbes was suffering from a significant mental disorder. She had, on 10 May 1998, claimed compensation benefits under the SRC Act. Following that claim for compensation, the AFP had to defer to the decision of Comcare on it. Comcare is placed in the position of insurer to the Commonwealth in respect of workers' compensation claims and the employer must defer to the decisions of and advice from Comcare. Comcare denied liability for compensation on 20 November 1998 and confirmed that decision on 16 April 1999. By the end of April 1999 the AFP ought reasonably have been considering what Ms Forbes' future was. However, Ms Forbes was still considering resignation up until mid 1999 and had been unable herself to come to a decision.

16. Ms Forbes applied for three months leave without pay on 2 July 1999 following the exhaustion of her sick leave. Her application was rejected by letter to her dated 13 July 1999: exhibit R2. It is apparent from that letter first, that Ms Forbes had been sending medical certificates to the AFP in Canberra rather than in Adelaide, which left local management in Adelaide in the dark about her condition. Secondly, AFP management in Adelaide had formed the view that Ms Forbes should have returned to work but she had put the view that she could not return to her old position. Thirdly, Mr Peter Wood, co-ordinator of the Adelaide office of the AFP sought early advice of Ms Forbes' intention. He wanted to know whether Ms Forbes wished to resume duties with the AFP. He stated that he was available to discuss strategies aimed to facilitating Ms Forbes' return. On 4 August 1999 Ms Forbes, possibly prompted by that letter, wrote to the AFP requesting counselling sessions. Two days later she wrote to the Minister complaining about the management of the AFP in South Australia which prompted an investigation by internal security and audit. The AFP acted promptly on Ms Forbes' request for counselling and on 13 August 1999 she commenced counselling sessions with Ms Barrett. Ms Barrett saw Ms Forbes nine times in 1999 on referral through the AFP Employee Assistance Programme.

17. However, on 23 September 1999 Ms Barrett cancelled her appointment with the Adelaide AFP management team, saying that she had no further appointments with Ms Forbes and that Ms Forbes would not return to work at the AFP in the foreseeable future. That advice apparently prompted a letter from Mr Wood to Ms Forbes dated 29 September 1999 directing her to return to work or be deemed to have resigned. That letter was unduly confrontationalist and I accept Ms Forbes' evidence that it had an adverse impact upon her. In addition, the threat that if she did not return to work Ms Forbes would be deemed to have resigned had no legal foundation. However, the letter was not the cause of the end of the counselling sessions. The letter was written out of apparent frustration by Mr Wood because the counselling sessions had stopped. Subsequently, the AFP retreated from the precipitant position adopted in the letter from Mr Wood and a mediation meeting was scheduled for 11 October 1999. That mediation meeting was cancelled when Ms Forbes did not attend. She states that she was not aware of the meeting: transcript, 10 April 2003, p.91 at 5. It was only after that, on 1 November 1999, that the AFP disallowed further counselling with Ms Barrett. Nevertheless, on 27 June 2000 Ms Forbes was permitted to resume counselling sessions with Ms Barrett. Also, on 23 June 2000 the AFP in Canberra met with Ms Forbes to discuss her concerns and return to work options.

18. In my view, even though two and a half years passed between the cessation of work by Ms Forbes and the expiration of her employment and even though there were significant gaps in any contact between the AFP and Ms Forbes, the conduct of the AFP is explicable by reasons other than disability discrimination. First, the AFP knew that Ms Forbes was considering whether or not to resign and it was reasonable to give her time to consider her options. Secondly, the AFP was distracted by various grievances and complaints made by her which required investigation. Thirdly, although the AFP in some part or other of its organisation must have been aware of the medical reports concerning Ms Forbes, the AFP in Adelaide, which was responsible for making decisions concerning her future was, for most of the period, either kept in the dark by Ms Forbes or led by the decisions and advice from Comcare to believe that her condition was not compensable and, by implication, not serious.

19. It is noteworthy that a staff-in-confidence minute (exhibit A1) written on 31 March 2000 by Mr Jim Torr (team leader, employment standards for the AFP) discussed the available medical and other evidence and the possibility of a settlement of the proceedings then in the AAT. The internal AFP legal advice at the time appears to have been that Comcare might well lose the appeal in the AAT and that a settlement was recommended. Nevertheless, there is a strong sense in the Torr minute that Ms Forbes' workers' compensation claim was regarded as being without foundation and should be resisted. Mr Torr stated that a failure to defend the AAT proceedings would have a negative effect on those still within the organisation who may perceive Ms Forbes as having been "rewarded for thumbing her nose at AFP management". It is apparent that AFP management was frustrated with Ms Forbes and had formed the view that she had made spurious allegations of incompetence and corruption against AFP management in Adelaide. She was regarded as a troublemaker who should not be rewarded with a compensation settlement. Notwithstanding that, the AFP did take reasonable steps to assist Ms Forbes to work through her illness and to decide whether or not she wanted to return to work at the AFP. AFP management could certainly have done more but their failure to do so was based not upon Ms Forbes' disability but, rather, on a belief that she did not have one. That view turned out to be erroneous but that did not become clear until the AAT decision on 13 June 2001. The conduct of the AFP, while it may merit some criticism, was not discriminatory. The AFP would have treated an able employee who was believed to be a malingerer no better than it treated Ms Forbes.

20. I find that the AFP did not discriminate against Ms Forbes in relation to her conditions of employment.

21. The other part of Ms Forbes' claim relates to the failure of the AFP to grant her permanent employment on the expiration of her fixed term employment. On 3 March 2000 the AFP wrote to Ms Forbes expressing concerns regarding her reappointment at the end of her contract: exhibit A8. In that letter, Mr R G Leffers, general manager of professional development, advised Ms Forbes that she was entitled to seek reappointment but put her on notice that AFP management had formed a preliminary view that there had been a fundamental and irrevocable breakdown in the employment relationship, such that Mr Leffers had lost confidence in her continued suitability to remain a member of the AFP. I surmise that that letter was written in order to make clear to Ms Forbes that she did not have a legitimate expectation of reappointment. Ms Forbes had had nearly 19 years service with the AFP prior to 17 December 1997 and had served creditably until then. She had been regarded as a good officer. In the ordinary course, she would have had a legitimate expectation of reappointment. However, the events from 17 December 1997 had led AFP management to a different view and hence the letter from Mr Leffers put Ms Forbes on notice that the AFP did not favour her reappointment. There followed the meeting in Canberra on 23 June 2000 and a further letter to Ms Forbes on 27 June 2000 giving her notice that her appointment might not be renewed. Ms Forbes responded to the AFP's concerns in writing on 29 July 2000 but on 22 August 2000 the AFP wrote to Ms Forbes stating that a decision had been made not to re-employ her at the end of her contract. That contract expired on 25 August 2000.

22. That decision was reviewed on the application of Ms Forbes by the AFP review panel. Mr Riordan gave evidence about that review. He impressed me as a man of great experience and practical commonsense. The review panel was, of course, not aware of the decision of the AAT which followed a year later. The review panel formed the firm view that the decision not to reappoint Ms Forbes was soundly based because the employment relationship between Ms Forbes and the AFP had irrevocably broken down. The review panel took into account a very substantial body of material (not including the medical evidence) in coming to that decision, which was exhibited to the affidavit of Mr Riordan. There can be no serious allegation that the decision of the AFP review panel was discriminatory. Mr Britton chose rather to attack the earlier decision of AFP management not to reappoint Ms Forbes. The difficulty with that approach, however, is that the decision of the AFP was reviewed by the review panel. The review panel was independent and Ms Forbes had an opportunity to put her case to it. The review panel published a short decision which sets out its findings.

23. The review panel noted that there were a number of features of the matter which perhaps might have been handled better by the AFP. The panel said:

It is possible that a better solution to this matter might have been achieved. We point out the fact that in 1998 Ms Forbes sought to leave the AFP and her offer to do so was declined. Her complaints about the alleged incompetence of the Adelaide office at the time were considered but her identity was disclosed. Irrespective of the programme under which these complaints were lodged, it would appear that such disclosure represents a breach of normal procedures to which there is no explanation available to the panel.

24. Nevertheless, the review panel found that it would not be in the best interest of either the AFP or Ms Forbes for her to be reappointed, having regard to the irrevocable breakdown in the employment relationship. The review panel did recommend that Ms Forbes should be given out placement assistance following her non reappointment. Mr Riordan gave evidence that that recommendation appears not to have been acted upon. However, Ms Forbes' complaint relates to her non reappointment. I gave leave at the end of the trial for the applicant to file an amended application by 2 May 2003, but that was not done. The solicitors for the applicant sought to introduce the issue of the failure of the AFP to provide outplacement assistance in their written submissions filed on 29 April 2003 (erroneously addressed to HREOC). However, that issue did not form part of the applicant's complaint to HREOC (summarised in the solicitor's letter to HREOC dated 26 October 2001, annexed to Ms Forbes' affidavit of 22 March 2002). Having regard to s.46PO(3) of the HREOC Act it is too late to add that claim now.

25. The decision of the review panel is on its face unimpeachable and provided an effective independent review of the decision previously made by the AFP management. In their written submissions filed by the applicant's solicitors on 29 April 2003, it is asserted that the AFP used the health of the applicant, and their own failure to implement an appropriate return to work programme, to justify excluding the applicant from further employment. I reject that submission. The decision to refuse further employment was clearly based on the irretrievable breakdown of the employment relationship. Although the applicant's absence form work for over two years was clearly important in establishing that breakdown, it was not seen at the time as having a health basis. The applicant says that herself: affidavit of Pamela Forbes of 20 January 2003 at paragraph 49.

26. There is, however, a question whether the review panel was fully and properly informed of all material considerations by the AFP. Mr Riordan stated under cross-examination that one of the factors which the review panel was struck by in considering the employment relationship between Ms Forbes and the AFP was that she had ceased work on 17 December 1997 and had never returned. The review panel was unaware that for the greater part of this period Ms Forbes suffered from a compensable injury. AFP management had taken a decision not to inform the review panel of the detail concerning Ms Forbes' medical condition on the basis that it was irrelevant, having regard to the advice from Comcare about the lack of a compensable injury. This flowed from submissions made by AFP Officer Jim Torr to the AFP's General Manager, Finance and People Management on 10 August 2000 for the purpose of the AFP decision not to re-employ Ms Forbes: annexure PAF9 to the applicant's affidavit made on 28 January 2003. In those submissions Mr Torr refers in some detail to the lengthy absence from work of the applicant and her grievances and complaints against AFP management. Mr Torr dealt with the applicant's then asserted injury in this way:

F/A Forbes made a workers' compensation claim to Comcare in relation to her illness [which was not explained]. The principal grounds given in support of the claim are generally similar to those given in support of her allegation against then GMCR and DOCR. Comcare has twice rejected the claim and she has appealed this decision to the AAT. A hearing is set down from 21-23 August 2000 in Adelaide. As you are aware a settlement offer has been made by the AFP but to date has not been accepted [AFP had offered to settle the AAT proceedings on the basis that the applicant's AFP employment would be terminated]. As Comcare advice to the AFP is that no compensable injury exists I suggest the issues and medical evidence in relation to F/A Forbes' claimed illness are not relevant to your considerations as to her suitability for engagement as an employee.

27. Mr Torr's recommendation was also put before the review committee: exhibit JMR1 to the affidavit of Mr Riordan. It appears that the review committee accepted and acted upon that recommendation. However, the recommendation was erroneous. In the first place, the relevant issue was not whether Ms Forbes had a compensable injury for the purposes of the SRC Act but, rather, whether she suffered from an illness which impacted upon her capacity to work for the AFP. In addition, Ms Forbes' illness was relevant to a consideration of whether the apparent breakdown of the employment relationship was irretrievable. The breakdown in the employment relationship might have been retrievable if Ms Forbes could be expected to return to sound mental health.

28. Ms Forbes could herself have put before the review committee the full details of her medical condition. It seems that she did not do so. That is understandable as Ms Forbes was in effect, applying for a job. Job applicants are not generally assisted by presenting evidence of mental disabilities. In my view, the AFP was under an obligation to put before the review committee information concerning Ms Forbes' illness. Its failure to do so left the review committee under the impression that Ms Forbes was simply a disgruntled employee who had, by her own actions, irretrievably broken the employment relationship. Information about Ms Forbes' condition would have more clearly explained the breakdown in the employment relationship and would have enabled the review committee to better consider whether that relationship could be restored. It could be expected in the ordinary course of events that the AFP would put before the review committee everything relevant to the performance of the task before it. In this case the AFP failed to do so. In failing to do so the AFP treated Ms Forbes less favourably than it could be expected to have treated an able bodied employee. In my view, this amounts to a breach of s.15(1)(a) of the DDA in relation to the arrangements made for the purpose of determining who should be offered continuing employment in the AFP. The AFP may have formed the view that Ms Forbes was a malingerer, but the review committee needed to make its own judgement about all relevant facts and circumstances. The conduct of the AFP in withholding information about Ms Forbes' medical condition put Ms Forbes in a less favourable position that she would have been in if she had not suffered from a disability.

29. In reaching the above conclusion I have considered whether, at the time Mr Torr wrote his minute on 10 August 2000 and subsequently, Ms Forbes suffered from a disability. It is clear from the AAT decision that at that time she had ceased to suffer from a compensable injury. The AAT found (at paragraph 88 of the AAT decision) that as at 6 October 1999 Ms Forbes' employment was not a materially contributing factor to whatever depressive symptoms she continued to display at that time. The AAT found that from that time onwards, Ms Forbes' actual employment, or the actions of the employer, were not such as to give rise to a material contribution. At paragraph 87 of its decision, the AAT noted that the depressive symptoms exhibited by Ms Forbes of October 1999 related to the stress and anxiety of various legal proceedings in which she was then engaged and Ms Forbes' own perception and anxiety about her employer and the alienation from her colleagues. At paragraph 89, the AAT stated:

After October 1999, the applicant continued to suffer from depressive symptoms such that even had a return to work programme been offered, as Dr Davies indicates, it would have had to have been supervised and graduated. As it was, the applicant was in a position to commence a university course in 2000, having applied in or about October or November 1999. She encountered some difficulties with a full time load but has been able to manage a part time load. Whilst there is clearly a distinction between federal police work and university studies, the Tribunal considers that the applicant would have been able to commence some form of graduated return to work as at the end of 1999.

30. It is apparent from the reasons given by the AAT that the applicant still suffered from a depressive illness after October 1999 but that the symptoms moderated. Ms Forbes presented medical evidence (exhibit A12) that she still showed symptoms of a depressive illness as at 28 March 2003, although the condition had improved. I accept that evidence. It was only after Ms Forbes ceased to be employed by the AFP and she pursued other interests through her university studies, that the symptoms significantly improved, and they continue at a lower level. Ms Forbes' medical evidence is that she remains unfit for work. That opinion conflicts with other assessments that Ms Forbes could return to work on a graduated basis. I accept that she could not work full time at this stage. Nevertheless, she has gotten on with her life.

I find that Ms Forbes continued to suffer from a disability for the purposes of the DDA as at August 2000.

31. The remaining question is what Ms Forbes has lost by reason of the discriminatory conduct of the AFP. She has claimed $250,000 which appears to have been based upon her valuation of her lost employment. In further written submissions made by letter dated 2 May 2003, the solicitors for the applicant calculate past economic loss (from the cessation of workers' compensation payments to the present) at $126,582 and future economic loss at $173,154. Put either way, that claim is unrealistic. Ms Forbes was on unpaid leave for a long time. To the extent that the AFP was responsible for her departure from the workplace and for her remaining away from it, she has already been compensated for salary lost in the form of workers' compensation. Ms Forbes could have attempted a return to work in 1999 but did not.

I accept in that regard paragraph 4 of Ms Henderson's written submissions filed on 30 May 2003.

32. I have found, in any event, that the conduct of the AFP relating to the failure of Ms Forbes to return to work was not discriminatory. The discrimination lies in the arrangements made for the decision on Ms Forbes' continuing employment. Even if the full medical details had been put before the review committee it is, in my view, probable that the same decision would have been reached. The conduct of the AFP in withholding the medical evidence caused Ms Forbes to lose the chance that the review committee might have reached a different view. Mr Riordan told me in cross-examination that even if he had been aware at the time of Ms Forbes' medical condition, he would have reached the same decision. That was a bold assessment on his part, but I accept that the chance that the review committee would have reached a different conclusion is very small. It is probably less than 10 per cent and, in my view, it is impossible to value. The medical evidence about Ms Forbes' fitness for work since December 1997 is not consistent, but her general unfitness would have been a material consideration for the review committee. I find that Ms Forbes has suffered no measurable economic loss by reason of that discrimination.

33. Ms Forbes clearly went through a great deal of emotional trauma following her departure from work on 17 December 1997. However, the only discriminatory conduct of the AFP was its withholding of relevant information from the review committee. Ms Forbes was undoubtedly distressed by the loss of her career in the AFP, but even if there had been no discrimination, the result would probably have been the same. Moreover, given the nature and causes of Ms Forbes' depressive illness and the reasons for the subsequent improvement of it, Ms Forbes actually benefited emotionally from the cessation of her employment. That episode in her life was resolved and she could move forward. In addition, the disclosure of Ms Forbes' medical details to the Review Committee would no doubt have been distressing for her. The withholding of that information, though discriminatory, protected her from that distress. I find that Ms Forbes has not suffered any non-economic loss meriting the award of damages by reason of the discriminatory conduct of the AFP.

34. I accept that not all of the emotional wounds that Ms Forbes has suffered have healed. She will benefit from achieving final closure of this aspect of her life. That closure is best achieved, in my view, by providing relief in the form of a declaration that the AFP discriminated against her and an order requiring the AFP to provide an apology.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Federal Police Act 1979

Discrimination Act 1992

Rights and Equal Opportunity Commission Act 1986

Rehabilitation and Compensation Act 1988

Forbes v Commonwealth of Australia [2003] FMCA 140

At a glance

Court

Decision date

Source

Judgment (53 paragraphs)

Forbes v Commonwealth of Australia [2003] FMCA 140 (26 June 2003)

Parties

Legislation Cited (4)