French v Sydney Turf Club Ltd [1999] NSWCA 195 | Case summary

· Once cash is reconciled, stock counted and recorded and the bar is cleaned thoroughly a barperson must always check with his / her chargehand before signing off from shift. At this point the chargehand is responsible for the correct closure of the bar and any assistance needed should be given by the barpeople before completing work. [Point E] 78 Mrs French said she was unable to carry out the duties set out below. (However, she disputed that these were duties required of bar attendants, maintaining that they were the responsibility of the chargehand). · [When packing stock away] this may involve the lifting and unpacking of cartons of beer or wine (15 - 25 kg). [Point C] · [T]he moving of the cash register (approximately 10 kg) to facilitate cleaning underneath. [Point D] Additional Evidence in Respect of Duties of a Bar Attendant 79 The Respondent relied on the evidence of Barbara Freebody, a former casual bar attendant who worked a full shift with the Club, to support the evidence of Mr Michael John Kenny. Her evidence was not challenged by the Applicant. Although she was available to be cross-examined on her statement, the Applicant's counsel chose not to question her. 80 She said that pick-ups did not start work until 12 noon at the earliest and, therefore, in setting up the bar there were no pick-ups available to lift trays of glasses. She also said that because of the time lag between meetings, which was a minimum of 1 week, it was always necessary to re-wash all of the glasses to remove film dust before a shift started. She said that this entailed taking glasses to and from the wash room. 81 Ms Freebody's statements became Exhibits 7 and 8 respectively. She gave evidence that upon commencing her shift at 10.30 am, she set up the bar. As part of her duties, she said she carried 4 - 5 bottles of liquor at a time (totalling approximately 20 bottles) from cupboards at the back of the bar to the bar service area. In addition, she said she carried 2 litre glass flagons of wine and 4 litre bottles of orange juice from a fridge at the back of the bar to the bar service area. She also said that cartons of stubbies of beer containing 24 bottles had to be carried to stock the fridge. 82 She gave evidence that she was required to lift trays of glasses from the top of the bar and take them to the wash area. She said each tray held either 30 middy glasses or 30 seven ounce glasses, and that to set up the bar for 3 people it is necessary to carry 12 - 14 trays of middy glasses and 6 trays of seven ounce glasses. She also said that after the glasses are washed they are taken back to the bar service area and placed in racks below the bench top. When a tray is empty, she removes it and replaces it with the next full tray. When 3 trays of clean glasses have been used, she said she removes the empty trays and places them beside her before collecting clean trays of glasses from either the end of the bar or the wash room. 83 She said that bottles of spirits are placed in the spirit dispenser which is located above head height. She said that sometimes during the course of a shift it is necessary to replace the scotch and bourbon bottles. 84 She also gave evidence that during the course of the shift ice buckets have to be filled periodically from the ice bins, and that from time to time it becomes necessary for water jugs located on the bar bench tops to be refilled. 85 She also said that during the course of the shift, it is necessary from time to time to bend down to lift orange juice containers, flagons of wine and stubbies from the fridge. She said that these items have to be re-stocked during a shift regularly and that this entails carrying stock from the fridge unit at the back of the bar to the bar service area. 86 At the end of a shift, she said she carried out numerous duties including the following: · wiping out fridges and cleaning drip trays · attending to wash up · counting the takings, counting the stock, and carrying unused stock from the bar service area back to the storage cupboards · removing spirit bottles from the overhead dispenser and returning them to storage · carrying empty bottles to the back of the bar for end of shift stocktake · moving cash registers by sliding them. 87 She disagreed that it was the role of pick-ups to put glasses on top of the bars and fill ice buckets but said that they may do so if they are not otherwise busy. She said that it was always the duty of bar attendants to fill the ice bin. She also said that the pick-ups put the glasses in drying racks in the wash room and, if time permitted, put trays of glasses in service areas but not on top of the bar. 88 In cross-examination, Mrs French said that Mrs Freebody was the first starter and that she started work at the same time as the chargehand. She also said that they were both responsible for setting up the bar. 89 When giving evidence in reply, Mrs French said that aside from the chargehand and the first starter, the other bar attendants came to work at staggered hours. She said that if there were five people rostered on for a shift, some started at 11.00 am and others at 12 noon. Both Michael John Kenny and Mrs Freebody said that, so far as they were aware, Mrs French was the only bar attendant who worked for the Club on a restricted shift. 90 Mr Michael John Kenny was cross-examined about the duties of bar attendants who worked a full shift. He agreed that the vast majority of time was dedicated to serving customers. He said that the primary responsibility of the pick-ups was to bring the glasses off the floor, put them into the racks, get them washed, and back into the bar area. He said, however, that if the pick-ups were busy, the bar attendants could be required to wash the glasses. 91 Mr John Moore, a casual bar attendant employed by the Respondent, gave evidence that, at the relevant time, bar staff did not usually leave the bar to obtain stock and that it was the responsibility of the chargehand and the bar useful to keep the fridges stocked during a shift. However, in cross-examination, he said that from time to time the bar staff might be asked by the chargehand to obtain stock. Mrs Freebody said she had seen him leave the bar to obtain stock many times. 92 Mr Moore also said that he had seen Ms Freebody wheel cartons of beer and wine on a trolley. He said some bar attendants would life the cartons from the trolley, while others would fill the fridge from the trolley to save lifting the cartons. 93 He gave evidence that it was the responsibility of the pick-ups to ensure at all times that there were glasses in the racks. He said that in the majority of cases, there is one person who washes the glasses, then puts them in the racks beside or under the bar attendant's service area. He also said that although he had collected trays of glasses from the washroom many times, a good pick-up should ensure that the bar attendant did not leave his or her outlet to chase glasses. Medical Evidence 94 The history related earlier in this decision indicates that following her injury, the Applicant did not return to work until 24 June 1989. Her return to work for 4 hours per day was consistent with a report, dated 13 June 1989, prepared by Mrs Nicholas of the Workers' Compensation Claims unit of the GIO. Her letter reads: "It is the opinion of our Medical Department that Mrs French would be capable of performing her normal pre-injury duties for 4 hours per day. This time could be increased by one hour per day each week until she is working a full day. It is the same opinion, that this could be done without the aid of a Rehabilitation Provider, however, an initial assessment is being carried out by the Commonwealth Rehabilitation Service at the present time and a decision of further rehabilitation involvement will be decided on receipt of their report. We will contact you as soon as the report is to hand and a decision made. However, we would like you to confirm with us if you can provide work for Mrs French on a part-time basis." [Exhibit D] 95 By letter dated 29 June 1989, the Respondent's Payroll and Personnel Manager, Mr Bishop, replied to the GIO's letter. His letter reads: "With reference to your letter dated 13 June 1989, I confirm that Mrs French has now worked four hours each day at the race meetings held on 24th and 28th June 1989 and will continue to do so until the circumstances change. Certificates from Kalev Wilding and Murray Bamford are attached. I shall be pleased if you will advise me of the present and future position relating to this claim." [Exhibit E] 96 The medical certificates of Kalev Wilding and Murray Bamford referred to in Mr Bishop's letter were not tendered as evidence in the present proceedings. 97 However, reference is made to a "letter" written by Dr Bamford in the Respondent's correspondence with the Board (Exhibit A, Tab 3) wherein Dr Bamford states: "The restrictions are that she is now fit for modified duties not involving excessive lifting, stooping or bending." 98 On 10 July 1989, Mr Davison, a Rehabilitation Counsellor with the Commonwealth Department of Community Services and Health, forwarded a letter to the Workers' Compensation Claims Unit of the GIO. Relevantly, the letter reads: "Mrs French returned to bar duties at the Sydney Turf Club on 24 June 1989 in accordance with medical certification from GIO. She is working four hour shifts and will apparently be upgraded to full six hour shifts in a month's time. . . . She is keen to be considered for an appropriate work conditioning program and an assessment for this will be carried out at Hurstville Regional Unit. Staff at the unit will be in contact with your office to advise of any recommendations for future rehabilitation assistance." 99 The evidence shows that ongoing medical certificates were prepared by Dr Bamford (the Applicant's local general practitioner) until 13 September 1989. His certificate of 6 July 1989 states that from 24 June to 5 August 1989, Mrs French would be fit for light duties on a 4 hour shift. In his certificate of 1 August 1989, Dr Bamford stated that from 5 August - 19 August 1989, the Applicant would be fit for 4 hour shifts only without heavy lifting, stooping or bending [our emphasis]. The only other certificate prepared by Dr Bamford to make any mention of the Applicant's restrictions is that dated 7 September 1989, wherein he states that from 19 August 1989 to 25 August 1989, the Applicant was: "[F]it for modified duties only involving 4 hour shifts avoiding lifting, stooping or bending." [Our emphasis] 100 By report dated 5 October 1989, Ms Gibson of the Commonwealth Rehabilitation Service stated the following: "The Rehabilitation Specialist examined Mrs French on Wednesday, 27 September 1989. He found her to have chronic lower back pain exacerbated by bending, prolonged sitting and standing. Pain is relieved by medication, heat and lying down. It is considered that Mrs French's stated levels of pain and limited physical tolerance preclude a return to work for the present. Mrs French is considered likely to benefit from a Back Education Program and relaxation as she has elements of tension." 101 Ms Gibson also stated in her report that Ms French's condition had not stabilised sufficiently to provide an accurate assessment of her work capability and readiness. She recommended that Mrs French undergo regular physiotherapy and participate in a graded activity program and a back education group. 102 A subsequent report prepared by the Commonwealth Rehabilitation Service, dated 3 January 1990, stated that Mrs French was considered, at the time, to have no further rehabilitation needs but that she would benefit from further treatment in the form of hydrotherapy (which she was undertaking) and psychological counselling. 103 The section of the above report prepared by the Occupational Therapist, Ms Weigall, included the following remarks: "On assessment she demonstrated: lifting occasionally from floor level - 1.5 kg from 500 mm (thigh height) - 3 kg from 800 mm (waist height) - 5 kg from 1300 mm (shoulder height) - 3 kg from 1900 mm (overhead height) - 1.5 kg Mrs French's most comfortable lifting range is between approximately 600 - 1000 mm as this range requires no bending or stretching. She should avoid lifting loads from below her thigh height as she cannot safely squat. carrying occasionally over 10 metres - 3 kg . . . From her description, Mrs French's 4 hour shift at work in the bar is considered her current maximum tolerance, however Mrs French has the potential to increase her hours and shifts if her tolerance to pain improves, and if she is not required to lift in excess of her comfortable limits." 104 The section of the report prepared by the Rehabilitation Counsellor, Ms Monteith, indicated that Mrs French had reported being able to cope with her 4 hour shifts: "In June [1989] Margaret commenced a graded return to work on medical recommendation : she was advised to work no more than two four hour shifts per week, and not to carry out any heavy lifting or excessive bending (it was agreed that she would get other staff members to carry out these tasks as necessary). Margaret is still working on this light duties basis and reports being able to cope with these conditions." 105 By report dated 7 August 1990, Dr Minogue, a medical officer with the GIO, expressed the view that Mrs French was not, at that stage at least, fit enough to work a 7 hour shift with appropriate restrictions. Dr Minogue said that this view was contrary to that given by a Dr Potter who had seen her on 2 July 1990. He said that Dr Potter felt she was fit enough to work a 7 hour shift with appropriate restrictions. In Dr Minogue's opinion, a 4 hour shift was, at that stage, the Applicant's limit: "She told me that she would be unable to work a 7 hr shift because this would inevitably entail some bending and lifting, which she is not expected to do during her 4 hrs shifts. Assuming this to be true, Dr Potter's suggestion would appear to be somewhat impractical at this stage. 4 hrs would also appear to be the limit when the claimant's present psychological status is taken into account." 106 In his report dated 22 August 1991, Dr Millons, an Orthopaedic Specialist, expressed the opinion that Mrs French's prognosis was guarded and that continuing problems appeared to be inevitable. He said he had examined her on 21 August 1991. He stated in his report: "She returned to work in June, 1989, still troubled by low back pain and right sciatica. She went back to work for seven weeks, was then moved to an outside bar where there was more bending and lifting involved. She had more trouble and had to go off work for another five weeks. She attended rehab. at Bankstown and Hurstville. At the end of the five weeks, she again attempted a return to work, working four hours a day, one or two days a week and she seems to have continued at that level since. She does not think she could do any more hours. She just about copes with her work in the face of persisting low back pain spreading into the right groin. . . . She just about copes with four hours a day at the races and I cannot see her increasing her hours much beyond that." 107 In a supplementary report, also dated 22 August 1991, Dr Millons said he estimated the permanent impairment of Mrs French's back, as a result of her work injury, to be 15 per cent. 108 Dr Daymond, an Orthopaedic Specialist, examined Mrs French on 19 October 1992. In his report dated 20 October 1992, he expressed the view that Mrs French had an ongoing incapacity related to her work injuries. 109 Dr Bodel, an Orthopaedic Surgeon, examined Mrs French on 26 June 1991. In his report dated 23 August 1991, he said: "The patient is now coping with lighter duty work at the STC, working four hour shifts only and I believe that she will continue to be able to cope with this level of activity. The patient's long term prognosis is however a little guarded because of her degenerative change and vulnerable discs. She should avoid all activities that require frequent bending, twisting or heavy lifting. The patient may deteriorate with the passage of time and any significant bending or twisting incident to the back could cause external disc disruption which may lead to the need for surgical intervention. At this time there is no indication that this will significantly improve her present level of function. The patient does have some evidence of permanent impairment in the lumbo-sacral spine and I believe that this is due to degenerative change. I would estimate a 10% impairment of lumbo-sacral function." 110 In his report dated 11 January 1993, Dr Bodel noted that Mrs French continued to work about 4 hours per week on and off for the Respondent and that she reported continuing backache and left leg pain, a tightness in the leg and tingling in the toes of both feet. He also noted: "Since last being seen the patient has continued to have exacerbations and remissions of back pain. She reports a further flare-up of discomfort just recently with bending and lifting activities while at work." 111 Dr Bodel concluded his report by stating: "With improved physical fitness and the use of a lumbo-sacral corset, the patient should be able to cope reasonably well in a part-time capacity with most activities." 112 As previously indicated, Mrs French's workers compensation claim was settled by agreement between the parties on 7 May 1993 (see para 4 above). 113 According to the Club's employment records, Mrs French was off work from 21 November 1993 to 6 September 1994 because of her paronychia. By report dated 10 July 1994, Dr Isaacs, a Consultant Dermatologist, stated: "I examined Mrs French on the 14 June 1994. I was pleased to see that her long standing problem with paronychia has finally cleared completely. I feel that she is fit to return to work in her previous occupation (bar work)." 114 Contrasted with Dr Isaacs' report, the Respondent relied on two reports of a Surgeon, Dr Patrick, each dated 6 July 1998, wherein he expressed the belief that it was "very likely" that recurrence of the Applicant's symptoms could accompany an attempted increase in working hours. 115 However, subsequent reports written by Dr Patrick stated the likelihood of recurrence somewhat differently. In his report of 10 August 1998, he stated: "Further to my report . . .dated 6 July 1998 regarding Ms Margaret Winifred French, I believe it would be reasonable to state that, at this stage, the chronic paronychia affecting the long finger (right hand), does not in any way affect her ability to work; in fact, if further shifts were offered to her, Ms French believes she would be able to manage. She would, however, need to continue to remain vigilant in relation to the early signs of development or recurrence of the fungal infection." 116 In his further report dated 1 November 2002, Dr Patrick concluded: "With regard to symptoms complained of when seen by me on 20 February 1998 (under "present symptoms" on page 2 of my report of 6 July 1998 - item number 5) - it is clear that Ms Margaret French does not believe that if she were to work more than four hour shifts, then symptoms at the middle finger right hand would be likely to flare up. I would agree, that if she has been symptom free for some six years now, then there is no medical contra-indication to her returning to eight hour shifts of work." 117 After her car accident on 2 September 1995, Mrs French was unable to return to work until 13 January 1996. Dr Saad, her general practitioner at the time, certified that she was unfit for her usual work until 11 January 1996. In his certificate dated 28 December 1995, he stated: "Mrs Margaret French is suffering from fractured sternum / ribs and will be unfit for her usual work from 10/12/95 to 10/1/96." 118 Interestingly, Dr Saad issued a second certificate on either the same day or the following day. The certificate appears to be dated 29 December 1995. It reads: "This is to certify that Mrs Margaret French is fit to work a normal shift with restrictions of lifting." 119 It is the Applicant's case that the second certificate issued by Dr Saad "cleared" her to work a full shift subject to lifting restrictions. The Respondent disputes this and maintains that the certificate cannot be read in this way because Mrs French's normal shift at the time was only a 4 hour shift. For some unknown reason, the certificate was not provided to the Respondent until 22 February 1996. 120 As a result of aggravating her back injury on 15 January 1996, in the circumstances outlined in para 8, Mrs French was certified by Dr Saad to be "unfit for her usual work" until 9 February 1996. The employment records show that she returned to work on a 4 hour shift on 17 February 1996. 121 Mrs French gave evidence that she had received Dr Saad's second medical certificate on the same day as the first certificate dated 28 December 1995. She said: "[T]he reason why I asked the doctor on that occasion was because I was coming back to work from this sternum injury, and I asked him would he write a document stating that I could return to work, on a normal shift." She disagreed that her shift for the previous 5 years could be described as her "normal" shift. She described it as a restricted shift. 122 On 20 May 2000, Mrs French injured her shoulder and wrist as a result of a fall while working at the Club. Dr Saad certified that she was unfit to resume work until 26 February 2001. As of 4 May 2001, she gave evidence that she was still unable to return to work. The Applicant's Requests to Work a Full Shift 123 Mrs French gave evidence that not long after returning to work in 1989, she began to request that her hours be increased to a full shift. She said that despite her requests, a return to her pre-injury hours did not occur. 124 She also gave evidence that after returning to work on 7 September 1994 (following a clearance from Dr Isaacs in relation to her paronychia), she had at least three meetings with Pat Parker and Michael Kenny of administration at which she sought a return to a full shift. She said that her requests were refused on the grounds that the Respondent did not believe that she was capable of working the full shift despite her insistence that she could and "a clearance from [her] doctor" following the injury to her back. Presumably, the "clearance" she was referring to was Dr Saad's certificate dated 29 December 1995. 125 Mr Michael John Kenny gave evidence that Mrs French had approached him and requested that her shift hours be extended. Although he could not recall precisely when those requests were made, he said he thought it was "fairly early on" after her return to work. He said he had told Mrs French that if she had a medical clearance, he could not see why she could not return to her full shift. He also said that he had not indicated to her what he meant by the term "medical clearance". In cross-examination, he was asked whether he meant by this that he wanted a medical certificate from Mrs French stating that she had no ongoing effects from her previous injuries. He replied: "Yeah, my meaning there was basically that I will take the instruction, those things would always be passed through our HR [Human Resources] department that if she had the right clearance, then I didn't see any reason why that she couldn't return." 126 He said that he had never seen such a medical certificate and that the Respondent's concern was that if Mrs French was permitted to work contrary to known restrictions, and problems developed, then the Respondent may be liable. 127 When cross-examined about his understanding of Mrs French's restrictions, he said that he had been told that there were bending, stooping and weight restrictions. He thought the weight restriction was "something around about seven or ten kilos" and that lifting two or three kilos probably would not constitute heavy lifting. When questioned about his understanding of the bending and stooping restrictions, he said he thought they related to Mrs French's ability to bend over and pick up items such as trays of glasses that were at a low height in the bar. 128 Mr Michael Thomas Kenny, the Respondent's current Chief Executive, gave evidence that he had no recollection of any communication with Mrs French where she sought a return to full hours. 129 Mr William Patrick Parker, the Respondent's former Chief Executive, gave evidence that in response to Mrs French's requests to return to a full shift, he said to her that the most important requirement was for her to provide the Club with a medical certificate confirming that she was fit to resume full time duties. He said that he had never seen a medical certificate confirming that Mrs French was "fit to resume full time duties of a casual bar attendant without restrictions. [Our emphasis.] He concluded by stating: "As the complainant was not medically certified as fit without work restrictions, the respondent continued to roster the complainant to work part time shifts as a casual bar attendant engaged in dispensing drinks and related duties." Findings 130 Applying the legal principles discussed earlier in this decision, we find that the Respondent discriminated against the Applicant in contravention of s 49D(2)(a), (b) and (d) of the present Act and s 49B(2)(a)(b) and (c) of the former Act. By limiting the Applicant's shift to 4 hours, we find that the Respondent treated her less favourably than, in comparable circumstances, it treated or would treat a person who did not have her disability. We further find that an operative ground of this differential treatment was her disability. The Combined Effect of s 54(1) of the Act and s 15 of the OHS Act 131 We now turn to discuss the issue of whether the Respondent was obliged to refuse the Applicant's requests to work a full shift in order to comply with s 15 of the OHS Act. 132 When considering the combined effect of s 54(1) of the Act and s 15(1) of the OHS Act, the Equal Opportunity Tribunal (Mathews DCJ [as she then was] presiding) in Kitt v Tourism Commission & Ors (1987) EOC 92 - 196 said at 76,887: "There is no concept of reasonableness imported here. The question is not one of what the employer believed, nor of whether any such belief was reasonably held or based upon reasonable grounds. The sole question is whether, from an objective point of view, Mr Kitt's employment constituted a risk to the safety of other persons, within the meaning of sec. 15(1) and 16(1) of the Occupational Health & Safety Act." 133 Kitt was cited with approval by Barr J in State Transit Authority v Sloey & Anor (1999) NSWSC 47. His Honour observed the following: "Ss 15 and 16 create offences of absolute liability, and consequently no mens rea need be proved and there is no "defence" of honest and reasonable mistake. Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; Cullen v State Rail Authority (NSW) ( 1989) 31 1R 207. " 134 In Burrows v NSW Commissioner of Police (1994) EOC 92 - 654 the Equal Opportunity Tribunal rejected the submission that ss 15 and 16 of the OHS Act provided an onerous obligation on an employer to the extent that an employer was obliged not to employ an applicant suffering from insulin dependent diabetes mellitus. 135 After examining the medical evidence before it, the Tribunal in Burrows concluded that: [T]he class of situation where the Complainant's health problem would pose a risk [was] so extremely unlikely as to render it unreasonable for the Respondent to rely on the defence." The decision in Burrows was cited with approval by Abadee J in David Jones (Australia) Pty Ltd v "P" & Anor, 29 August 1997. 136 The Tribunal's restricted approach in Burrows was consistent with that adopted by McHugh J in Waters v Public Transport Corporation (1991 - 1992) 173 CLR 349 at 413 when discussing the Victorian equivalent of s 54. McHugh J appears to have approached the issue upon the basis that in order to fall within the defence the alleged discriminator has to demonstrate that its conduct occurred pursuant to a specific requirement of the relevant legislation and that it was necessary for it to pursue such a course of conduct. 137 In David Jones (Australia) Pty Ltd, Abadee J observed that: "The scope and operation of the specific exception in s 54(1) may in some cases be able to accommodate or operate as to permit reliance upon a relevant provision of the Occupational Health and Safety Act or other statute or regulation subject to such meeting the test stated in Waters by McHugh J as 413. There his Honour's reasons indicate a difficulty in meeting the strict requirements of s 54(1) where reliance is founded on general provisions such as s 15 or s 16 of Acts such as the Occupational Health and Safety Act : see also Burrows . " 138 As was noted by the Tribunal in Kitt and Barr J in Sloey , although the apparently wide ambit of s 15(1) is qualified by the statutory defences available under s 53 of the OHS Act, such defences are to be disregarded in proceedings in which an employer pleads necessity under s 54(1) of the Act in an action based upon its discrimination against an employee. See also Bugden v State Rail Authority of NSW (1991) EOC 92 - 360 at 78, 470; Willis v State Rail Authority at NSW (1992) EOC 92 - 455 at 79, 268. 139 In Sloey, Barr J expressed the view that in order to establish the defence of necessity for the purposes of s 54 of the Act, the State Transit Authority ("STA") had to do more than prove that Mr Sloey fell into a category of drivers who epidemiologically presented an increased risk of symptoms. The STA had to show that it was necessary to certify that Mr Sloey himself was unfit to drive a bus; that is, it was obliged to consider the risks that Mr Sloey presented as an individual. In Barr J's opinion, the STA had failed to do this. 140 Similarly, the Tribunal in Kitt noted at 76,887 that from a practical point of view, no issue would be likely to arise unless Mr Kitt actually suffered a major seizure at work and, accordingly, in determining whether the defence had been made out, it was necessary to consider two factual matters : first, the likelihood of Mr Kitt suffering a seizure while at work; and secondly, the likely consequences if he did so. The Tribunal found that had there been a substantial risk of further seizures, it would have been obliged to find that the defence had been established. However, it concluded that the evidence was overwhelmingly to the contrary (at 76,890). 141 As was stated by the Full Bench in Drake Personnel Ltd v Workcover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432, the general duties created by the OHS Act are directed at obviating "risks" to the health and welfare of persons in the workplace. Their Honours went on to say: "The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work." 142 The Court in Drake adopted the following reasoning of the Full Court in Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 157 as a correct statement of law and principle in relation to s 15 of the OHS Act: "Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" . . . is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident." See also Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 253. Findings 143 In order to determine whether the Respondent was obliged to refuse to reinstate Mrs French on a full shift (so as to comply with the OHS Act), it is helpful to consider the following matters: · The extent of Mrs French's physical restrictions. · The required duties of a bar attendant employed to work a full shift ("the required duties") which Mrs French was unable to perform. · The extent to which Mrs French could safely carry out the required duties: (a) without the Club accommodating her physical restrictions (b) with the Club accommodating her physical restrictions. The extent of the Applicant's physical restrictions 144 Based on Dr Bodel's report of 23 August 1991, we find that Mrs French's physical restrictions preclude her from safely engaging in heavy lifting and frequent bending or twisting. Further, based on Ms Weigall's report of 3 January 1990, we are satisfied that her physical restrictions preclude her from safely lifting loads from below her own thigh height (as she cannot safely squat). The required duties 145 We set out below those duties which we consider Mrs French was unable to perform. We appreciate that Mrs French said that duties 2, 3 and 4 were variously the responsibility of the chargehand, the first starter, or the pick-up. Nonetheless, we preferred Mr Kenny's evidence on this point and found that it was consistent with that given by Mrs Freebody and, where noted, by Mr Moore. 1. Lifting trays of glasses, holding up to 30 middy glasses or 30 seven ounce glasses, to bench height so as to ensure an adequate supply of glasses. 2. Whenever necessary, transferring trays of glasses from the washroom to the service area. (Mr Moore said he had done this many times.) 3. Whenever necessary, stocking and restocking the fridge by carrying heavy stock from the fridge unit at the back of the bar of the service area. (Mrs Freebody said she had seen Mr Moore leave the bar to obtain stock many times.) 4. Packing heavy stock away. Carrying out the required duties without accommodation 146 Based on the medical evidence, discussed below, we find that Mrs French could not safely carry out all of the required duties of a bar attendant working a full shift without assistance. Carrying out the required duties with accommodation 147 Based on the medical evidence, we find that even if the Club were to accommodate Mrs French's physical restrictions by arranging for other employees to assist her with duties 1 - 4 in para 145 above, she still could not safely carry out the required duties. We discuss our reasons below. 148 We find that the four hour restriction was initially advised by Mrs French's own doctor, Dr Bamford. He stated that even avoiding heavy lifting, stooping or bending, Mrs French was only fit for a four hour shift. 149 Notwithstanding the early optimism of Mrs Nicholas of the GIO in her report dated 13 June 1989 (before Mrs French had returned to work), reports prepared by the Commonwealth Rehabilitation Service on 3 January 1990 and 7 August 1990 indicated that a four hour shift was Mrs French's limit. 150 Dr Millons and Dr Bodel said nothing to suggest that Mrs French would be capable of working longer shifts. Dr Millons, in his report of 22 August 1991, advised that Mrs French was only just coping with four hour shifts in the face of persisting low back pain spreading into the right groin. Dr Bodel, in his reports of 23 August 1991 and 11 January 1993, advised that Mrs French should avoid all activities that required frequent bending, twisting or heavy lifting. He also advised that any significant bending or twisting incident to her back could cause external disc disruption which may lead to the need for surgical intervention. 151 Aside from Dr Saad's certificate of 29 December 1995, at no stage has Mrs French ever furnished the Respondent with a medical report which states that she can safely work a full shift, even with restrictions. 152 In contrast to the detailed and comprehensive medical evidence which indicated that Mrs French was unable to safely work longer than a four hour shift, even with restrictions, Dr Saad's certificate simply stated that Mrs French was fit to work a normal shift with restrictions of lifting. 153 When Mrs French gave evidence of what she understood Dr Saad to have meant by the words, "a normal shift", she said she had asked him to write a document stating that she could return to work on a normal shift. The evidence is silent as to whether Dr Saad had physically examined her before coming to this conclusion. Equally, there is no evidence that he was familiar with the earlier medical reports. 154 The evidence discloses that, as of 28 December 1995, Dr Saad considered Mrs French to be unfit for "her usual work" until 11 January 1996 because she was suffering from "fractured sternum/ribs". Against a background where Mrs French had not worked more than a four hour shift since 24 June 1989, we find it unlikely that Dr Saad would at the same time (or the following day) have also certified her as fit to work a full shift (albeit with restrictions of lifting). In all the circumstances, we find that the expression "a normal shift" cannot be construed as a full 7-8 hour shift. 155 The Applicant did not call either Dr Saad or any specialist medical evidence to show that she could safely work a full shift, even with restrictions. She gave no reason for not doing so. Conclusion 156 Taking all the evidence and submissions into account, we find that, viewed objectively, Mrs French could not safely work a full shift, either with or without the Respondent accommodating her physical restrictions. 157 Clearly, by arranging for other employees to assist Mrs French with those duties she was physically unable to perform, the risk to Mrs French's safety would have been significantly reduced. However, consistent with the medical evidence, we find there would still have been some risk to her safety. 158 We find that in order to rely on the defence provided for in s 54 of the Act, the Respondent was not under a positive duty to alter the required duties of a bar attendant, working a full shift, so as to ensure that Mrs French did not engage in any heavy lifting, lifting loads from below thigh height, or frequent bending (as required by duties 1 - 4 in para 145 above). This conclusion is consistent with the views expressed by Abadee J in David Jones (Australia) Pty Ltd and the Court of Appeal in Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252 at 268 - 269. 159 Consistent with McHugh J's observations in Waters, we are mindful of the need to adopt a restricted approach when determining whether the Respondent can successfully rely on the exemption provided for in s 54(1). Nonetheless, weighing up all the competing considerations, we find that the Respondent's conduct falls within the exemption. 160 Accordingly, we propose to dismiss the complaint. ORDERS 161 The complaint is dismissed. Decision revised 11 June 2002: From paragraph 154 onwards.

French v Sydney Turf Club Ltd

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