Jenkins v Secretary, Department of Education

Statutory framework and principles governing the grant of leave

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Background facts

1. In February 2017, the Director of the school where Mr Jenkins was then working (the School), requested assistance from the Department's health and safety unit in managing "welfare concerns" relating to Mr Jenkins. The Department's local health and welfare team assessed Mr Jenkins as not posing a risk of harm to himself or others and referred him to his GP for ongoing medical treatment and support.
2. The following month a delegate of the Secretary requested Mr Jenkins to give to his GP a letter requesting the GP to provide an opinion about Mr Jenkins' mental health. Mr Jenkins refused.
3. The delegate then referred Mr Jenkins for a "fitness for work" assessment (an "Independent Medical Capacity Assessment" (IMCA)). Mr Jenkins refused to attend that assessment, asserting that the referral was further evidence of "discriminatory treatment" by the Department.
4. On 2 May 2017, the Department informed Mr Jenkins that he would not be permitted to return to work (RTW) until such time as an IMCA had been undertaken and he was cleared as being fit for work. At that time Mr Jenkins had been on long service leave since 13 February 2017.
5. On 9 August 2017, the Department's insurer icare accepted Mr Jenkins' claim for workers compensation which he had lodged on 17 May 2017. In a report dated 20 June 2017, provided at the request of the Department, IMCA assessor, psychiatrist Dr Himalee Abeya stated that Mr Jenkins' condition is "best described" as "an adjustment disorder with mixed anxiety and depressive symptoms" but that a diagnosis of "complex post-traumatic stress disorder" may need to be considered. Dr Abeya assessed Mr Jenkins as permanently unfit for his substantive role at the School. She recommended a graduated RTW to a different school to the School.
6. In a second report dated 18 October 2017, Dr Abeya noted that there had been some improvement in Mr Jenkins' condition and recommended that his "long term prospects of stability" be reassessed after a further three months of intensive psychiatric treatment. In Dr Abeya's opinion, Mr Jenkins was unfit for work.
7. At the request of icare, psychiatrist Dr Martin Allen assessed Mr Jenkins. In a report dated 5 April 2018 Dr Allen stated that in his opinion Mr Jenkins had a complex Post-Traumatic Stress Disorder and because of "difficulties in the workplace" he had developed an "adjustment disorder with depressed and anxious mood". Noting Mr Jenkins' report of a significant improvement in the last few months, Dr Allen stated that Mr Jenkins was fit to commence a graduated RTW.
8. In a second report dated 12 June 2018, prepared after reviewing additional material, Dr Allen described Mr Jenkins' recent behaviour as "increasingly bizarre". Dr Allen stated that while his original diagnosis of complex Post-Traumatic Stress Disorder remained "pertinent", he was concerned about "what appears to be increasingly paranoid and delusional ideation". He wrote that he had "wholly changed his opinion regarding Mr Jenkins' safety for work" and that his "bizarre behaviour" and "paranoid outlook" rendered him unsuitable to work in a school environment.
9. In a report dated 11 December 2018, Dr Abeya stated that Dr Allen's opinion that Mr Jenkins' presentation appears to evidence "cross-cutting features of a psychotic origin" has "some merit". Nonetheless, she stood by her original diagnosis of an adjustment disorder with mixed anxiety and depressive symptoms, which in her view was now "chronic in nature". In her view, given the propensity of Mr Jenkins' condition to be exacerbated through dealings with the Department, it was unlikely to improve in the foreseeable future. She concluded Mr Jenkins was permanently unfit for work as a Head Teacher of English with the Department. In addition, she stated that in her opinion, Mr Jenkins was unfit to commence a graduated RTW on "suitable duties".
10. At the request of Mr Jenkins, the Department referred Dr Abeya's 11 December 2018 report to an Independent Medical Review Panel (the Panel) for review.
11. In a letter addressed to Mr Jenkins dated 27 February 2019, Dr Ian Gardner, the Chair of the Panel, stated that after reviewing the available medical information the Panel concluded that Dr Abeya's opinion that Mr Jenkins was "permanently unfit for [his] substantive position" was only "partially consistent with the available information". Dr Gardner stated: The Panel finds that there is no evidence that you are not an effective teacher and believes that you may be capable of effective work at another school location. It is also the belief of the Panel that you would benefit from effective, ongoing psychiatric treatment.
12. In a letter dated 12 April 2019, Dr Gardner responded to a series of questions asked by the Department. In response to the question, "Does the Panel agree with the medical recommendations provided by Dr Himalee Abeya (Consultant Psychiatrist) in her assessments dated 23 November 2018, 4 May 2018, 18 October 2017 and 5 June 2017?", Dr Gardner stated: The Panel noted that in none of Dr Abeya's reports was there evidence of a clinically diagnosed major psychiatric illness. A comment was made that "he had a diagnoseable Adjustment Disorder - but that it should resolve". We also noted in Dr Abeya's first three reports that she felt he was Temporarily Unfit for his substantive teaching position, but then in the fourth report, she stated that he was now Permanently Unfit - without any additional supporting evidence. She also stated words to the effect that "he now says he is well".
13. In answer to the question, "Did the Panel agree with Dr Abeya's most recent opinion that Mr Jenkins is 'permanently unfit for his substantive position at the School'?", Dr Gardner stated: The Panel believes that based on the voluminous evidence provided, that Mr Jenkins is NOT permanently medically unfit. Indeed, he may well be capable of returning to appropriate Teaching Duties - but NOT at [the School]. However, if the Department wants to know specifically about his returning to his "substantive position at [the School]" - then the answer is that he is Permanently Unfit for this particular position.
14. In a letter dated 2 August 2019, Mr Daniel Palmer, Manager Health and Wellbeing, notified Mr Jenkins of his intention to recommend to the Secretary that he be medically retired pursuant to s 76 of the Teaching Service Act 1980 (NSW).
15. Mr Palmer stated that "it is not reasonable or practicable for the department to continue to assess your capacity to perform your duties as Head Teacher, English at [the School]". He went on to note: 1. in contrast to the opinion of Dr Abeya, the Panel had concluded that Mr Jenkins may be "capable of effective work at another school"; 2. the Panel recommended that if a formal return to work program was to be developed by the Department (at a school other than [the School]), there would need to be significant consideration of the implementation of an appropriate "Stress Reduction Program", developed in consultation with your treating practitioners, as well as ongoing psychological and psychiatric support for at least 3 months; 3. Mr Jenkins' treating doctors had certified him as unfit for work until 17 June 2019; 4. there has been little improvement in Mr Jenkins' psychological condition over the past 30 months.
16. In a letter dated 19 August 2019, a delegate of the Secretary notified Mr Jenkins that a decision had been made that he be medically retired from the teaching service.

Statutory framework: discrimination on the ground of disability in the area of employment

1. Section 49B(2)(c) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability by dismissing the employee.
2. Section 49B of the Act explains what constitutes discrimination on the ground of disability: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or … (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … 49D Discrimination against applicants and employees (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability - (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.
3. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
4. Section 4 of the Act defines disability to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
5. In addition, the Act defines disability to include past, future and presumed disability: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

Is the complaint lacking in substance?

1. To determine whether, as the Secretary contends, the complaint is lacking in substance, it is necessary to first identify the elements Mr Jenkins must establish, if leave is granted for the complaint to proceed.
2. If cast as a complaint of direct discrimination (s 49B(1)(a)) Mr Jenkins must establish: 1. that he has, had or is thought to have or have had a disability; 2. that he was dismissed from employment; 3. that the Secretary treated him less favourably than it treated, or would have treated, an employee without Mr Jenkins' disability, or the disability he is thought to have, or to have had in the past, in the same circumstances, or in circumstances which were not materially different (less favourable treatment); 4. that one of the reasons for any less favourable treatment was Mr Jenkins' disability, or a characteristic that generally appertains to, or is generally imputed to, persons with the Applicant's disability (causation).
3. I understand the Secretary to accept that the first two elements are satisfied.
4. In my view, it is arguable that one of the reasons for any less favourable treatment was Mr Jenkins' disability (a psychiatric condition), or a characteristic of that disability.
5. However, the Secretary contends that there is no evidence of less favourable treatment.

Consideration

1. In their respective submissions each party pointed to material which they contend support their respective contentions that the decision to medically retire Mr Jenkins was reasonable / was not reasonable. For example, the Secretary highlighted the significant period Mr Jenkins had been certified unfit for work, together with the medical opinion that he was unfit to return to his "substantive position". Mr Jenkins on other hand pointed to various workplace stressors, including the Department's alleged mishandling of his complaint of sex harassment made against a colleague in January 2017. In addition, he pointed to alleged shortcomings by the Department and its insurer in dealing with his claim for workers compensation.
2. Whether the decision to medically retire Mr Jenkins was or was not reasonable is relevant to, but not determinative of, whether Mr Jenkins was subject to less favourable treatment. The element of less favourable treatment requires the treatment afforded to Mr Jenkins to be compared with the treatment afforded by the Secretary to an actual or hypothetical employee, in circumstances which are not materially different to those of Mr Jenkins. As Gummow, Hayne and Heydon JJ explained in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62 ("Purvis") at [223], that evaluation requires "all of the objective features" surrounding Mr Jenkins' retirement to be identified and then to ask: "[W]hat would have been done in those circumstances if the person concerned was not disabled?"
3. Here, the objective features surrounding Mr Jenkins' medical retirement appear to include: 1. when that decision was made Mr Jenkins had been certified unfit for work for about 30 months; 2. in January 2021, Mr Jenkins' GP certified him unfit for work until April 2021; 3. the evidence which, if accepted, supports a finding that there had been no material change in Mr Jenkins' psychological symptoms throughout the period May 2017 to July 2019; 4. the opinion of two psychiatrists that Mr Jenkins was unable to commence a graduated return to work to suitable duties; 5. the uncontradicted medical opinion that Mr Jenkins was unfit to return to work in his position as head English teacher at the School; 6. the conflicting medical opinion about Mr Jenkins' fitness to return to work as a teacher at some other school.
4. At this stage the evaluation required to be undertaken to determine whether it is not reasonably arguable that the Secretary afforded Mr Jenkins less favourable treatment is difficult, if not impossible because of Mr Jenkins' failure to address that issue. He did not identify an actual comparator - a teacher without Mr Jenkins' particular disability, in the same or not materially different circumstances to Mr Jenkins. Nor did Mr Jenkins point to material which might support a finding that the Secretary afforded him less favourable treatment than he would probably afford a hypothetical employee, in circumstances that were not materially different to his own. Rather, Mr Jenkins focussed on the "injustice" of the medical retirement decision.
5. There is no material before me about the Secretary's approach to decisions relating to the medical retirement of teachers. For example, there is no material about whether such decisions are generally made only when the teacher has been certified unfit for work for a minimum period, and, if so, the length of that period. Nor is there evidence about the approach taken where there is conflicting medical evidence about a teacher's fitness to undertake some position in the teaching service, but not their "substantive position".
6. Without that material it is not possible to undertake the evaluative exercise necessary to determine whether Mr Jenkins was or was not subject to less favourable treatment. If the matter proceeds to hearing Mr Jenkins will bear the onus of proving that he was subjected to less favourable treatment. Nonetheless, on the available material and in the absence of considered submissions I am not persuaded that the contention that Mr Jenkins was subjected to less favourable treatment is not reasonably arguable.

The "inherent requirements" exception in s 49D(4)

1. If it is found that the Secretary would otherwise have contravened s 49D(2)(c), the "inherent requirements" exception in s 49D(4) is available. The Secretary bears the onus of proof in relation to that exception: s 104 of the Act. In determining whether that exception applies, the Tribunal would be required to: 1. identify Mr Jenkins' particular employment; 2. identify the inherent requirements of that employment; 3. determine whether the Secretary has established that Mr Jenkins could not perform the inherent requirements of the particular employment with the aid of services or facilities which are not required by teachers without his disability; and, if so 4. determine whether it would impose an unjustifiable hardship on the Secretary to provide Mr Jenkins with those services or facilities which would enable him to perform the particular employment.
2. The Secretary asserts that Mr Jenkins' "substantive position" is his role as head English teacher at the School and that position is his "particular employment". In support, the Secretary points to the following passage in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57]: The first part of this process - identifying the inherent requirements of the job - does not require the employer to alter the duties of the job in question in order to render the job suitable for a person with a disability. What it does require the employer to do is to focus upon what the occupant of the job actually does in the workplace rather than to proceed with assumptions about what the occupant might theoretically do but never in fact does as part of the job.
3. The term "particular employment" is not defined by the Act. Without considered submissions I could not be satisfied, as the Secretary appears to contend, that it is not reasonably arguable that it would not be able to rely on the inherent requirements exception. If the Tribunal were to interpret particular employment to mean "head English teacher" and not head English teacher at the School, on the basis of the Panel's opinion, it is at least arguable that the Secretary would be unable to establish the s 49D(4) exception.

Section 54 defence

1. In the alternative, the Secretary submits that he is entitled to rely on the exception available under s 54 of the Act which provides that nothing in the Act makes unlawful anything done if it was necessary to do the act in order to comply with a requirement of another statute. The Secretary relies upon s 76 of the Teaching Service Act 1980 (NSW). 76 Retirement or transfer of officers through invalidity or incapacity (1) Where the Secretary determines: (a) that an officer of the Teaching Service is, because of invalidity or physical or mental incapacity, unable to perform the duties of his or her position, (b) that the invalidity or incapacity is likely to be of a permanent character, and (c) that the invalidity or incapacity has not arisen from actual misconduct on the officer's part or from causes within the officer's control, the Secretary: (d) may cause the officer to be retired from the Teaching Service, or (e) with the consent of the officer, may transfer the officer: (i) to some other position in the Teaching Service, or (ii) to ongoing employment in the Public Service (with the approval of the head of the Public Service agency concerned), … with salary and other conditions of the officer's employment appropriate to that position or employment. …
2. As is the case with the inherent requirement exception, the Secretary bears the onus of proving that the decision to medically retire Mr Jenkins falls within the s 54 exception - specifically that that decision was made in order to comply with s 76 of the Teaching Service Act. While there can be no argument that s 76 permitted the Secretary to medically retire Mr Jenkins, in my view if did not require the Secretary to make that decision. That is clear from the use of the word "may" in s 76(1)(d) - "the Secretary… may cause the officer to be retired…" together with the alternatives available to medical retirement set out in s 76(1)(e) of the Teaching Service Act.
3. I reject the Secretary's submission that if the matter were to proceed to hearing he would be able to rely on the exception in s 54 of the Act.

Out-of-time

1. As set out above, the stated reason given by the President for declining the complaint was because "it is not in the public interest to take any further action in respect of the complaint in circumstances where the conduct complained of occurred more than 12 months before the complaint was lodged": s 92(1)(a) of the Act. The complaint was lodged on 9 October 2020.
2. In the initiating complaint Mr Jenkins claimed that the decision to medically retire him was made on 10 October 2019. Later when questioned by the President he stated he had his dates "mixed up" and the decision was in fact made on 19 August 2019.
3. In these proceedings Mr Jenkins stated that the reason he delayed making the complaint was because after the medical retirement decision was made, he was an inpatient at the Yugaipa Mental Health Unit.
4. The Secretary points out Mr Jenkins has provided no evidence about the period he was in Yugaipa or how that admission, or some other factor, rendered him unable to lodge a complaint within 12 months of the medical retirement. In addition, the Secretary points out that in the period between being notified of the medical retirement decision and lodging the complaint with the President, Mr Jenkins demonstrated his ability to make a complaint to a government agency, as evidenced by the making of numerous complaints to multiple state and federal agencies, including the Independent Commission Against Corruption and the Australian Federal Police, about the Secretary and others.
5. I agree with the Secretary that on the material provided Mr Jenkins has not demonstrated that the reason he delayed making the complaint was because he was an inpatient at a mental health facility or for some other reason related to his mental health. Nonetheless, given the relatively short delay in making the complaint, the lack of any evidence that the Secretary was materially disadvantaged by that delay, together with the evidence of Mr Jenkins' ongoing mental health problems, I have decided not to exercise the discretion to decline the complaint on the ground that it was lodged more than 12 months after the medical retirement decision.

Should leave be granted or not granted?

1. In deciding whether it is "fair and just" to grant or to refuse leave, in addition to the grounds discussed above, I have taken into account the evidence of Mr Jenkins' ongoing incapacity for work after the medical retirement decision was made. I have also taken into account the manner in which Mr Jenkins presented his application for leave, which tended to suggest an inability or unwillingness to engage with the issues raised by that application. In the voluminous material filed in support of his application, Mr Jenkins focused on the injustice of the medical retirement decision rather than the elements which must be established for the complaint to succeed. In addition, he made numerous allegations of mistreatment by the Secretary, the insurer and others, which appear to lack any proper basis.
2. I have also taken into account that while I am not persuaded that the complaint lacks substance, on the available material the prospects of success could not be described as strong.
3. Nonetheless, while not an easy decision, I have decided that the balance of consideration favours the grant of leave.

Order 1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Secretary, Department of Education to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2021