Kim Rielly v Bank of Melbourne & Ors [2001] VCAT 660

3. On 21 August 2000, VCAT held a preliminary hearing to set a time-frame for the further stages of the matter, and to consider an application by Ms Rielly for the joinder of a third Respondent, Ms Caroline Kilgariff. Shortly after, the solicitors acting for the First and Second Respondents and for Ms Kilgariff advised that their clients had no objection to Ms Rielly's application to join Ms Kilgariff as a Respondent. Ms Kilgariff was therefore joined as the Third Respondent.

4. VCAT referred the matter to mediation on 20 September 2000. The matter was not resolved through mediation and so it proceeded to a hearing.

5. The hearing took place over three days (8, 9 and 10 November 2000). At the hearing, Ms Rielly, the Complainant, was represented by Mr I R Fehring of Counsel instructed by J M Zigouras and Co., and the Respondents were represented by Mr R J Maidment of Counsel instructed by Minter Ellison.

6. The matters of which Ms Rielly complained took place between February and May 2000 when Ms Rielly was a thirty-three year old employee of the Bank.

7. Ms Rielly had commenced work with the Bank in 1988 and had been appointed an Home Finance Manager ("HFM") in 1995.

8. Ms Rielly's position remained that of HFM throughout the events that are the subject of her complaint, and Ms Rielly remained in employment with the Bank at the time of the hearing. As an HFM, Ms Rielly's principal duty was to arrange loans with customers of the Bank. Ms Rielly's remuneration consisted of a base salary and bonuses - if targets were exceeded with regard to arranging new loans.

9. Ms Rielly contended, and the Respondents acknowledged, that at all material times, Ms Rielly was a person with an "attribute", namely an "impairment" (within the meanings of those terms in section 6 of the EO Act). The impairment was Crohn's disease, defined as:

"A condition in which segments of the alimentary tract become inflamed, thickened, and ulcerated. It usually affects the terminal part of the ileum; its acute form (acute ileitis) may mimic appendicitis. Chronic disease often causes partial obstruction of the intestine, leading to pain, diarrhoea, and malabsorption. Fistulae around the anus, between adjacent loops of intestine, or from intestine to skin, bladder, etc., are characteristic complications. The cause is unknown. Treatment includes rest, corticosteroids, immunosuppressive drugs, antibiotics, dietary modification, or (in some cases) surgical removal of the affected part of the intestine."

(Concise Medical Dictionary, Oxford University Press, Fourth Edition, 1994, p.157).

10. In summary, Ms Rielly's complaint was that she was subjected to unlawful discrimination on the basis of her impairment because the Respondents required her to work at inappropriate Bank branches - branches which Ms Rielly contended were inappropriate because their toilet facilities were too far away from the workplace to allow Ms Rielly to work effectively, while managing her condition (Crohn's disease). In his opening, Ms Rielly's Counsel put the matter as follows:

"It will be the complainant's ultimate submission to the Tribunal that the respondent through its appropriate officers ... was aware in relation to the respondent, being the corporation, first of all, that the complainant had Crohn's Disease on 17 February 2000, and that by 27 or 28 March the respondent was aware that there were special requirements necessary for the applicant to remain in her employment, to carry out her employment duties, and that that involved having fairly immediate and ready access to toilet facilities, because otherwise she would be not able to carry out her duties.

It will be submitted that there was an acceptance by the respondent that the requirements of the applicant were reasonable, in that once she raised these matters initially in respect to the transfer to Keysborough, there was a response and she was permitted to return to the Pakenham branch, which was an appropriate facility, but that thereafter the respondent, for reasons best known to itself, failed to act reasonably and did discriminate against the complainant, in that it was required for her to go to Endeavour Hills, which was an inappropriate facility, to remain there when she was complaining of her difficulties and seeking to have the situation alleviated, and that the complainant was forced to give up her employment effectively on 2 May because of the discrimination.

And other than the short return for some two weeks in October she has not been able to return to her duties, and that that inability flows from the act of discrimination which occurred in that period of late March and through April till early May. (Transcript, page 6, hereafter T6).

11. Ms Rielly returned to work at the Bank's branch at Lonsdale Street, Dandenong, in October 2000 on a part-time basis. Ms Rielly's return to work lasted only two weeks. On medical advice, Ms Rielly discontinued the return to work attempt (T89). It was Ms Rielly's case that her inability to return to work flowed from discrimination which occurred in the period from late March to early May 2000.

12. Ms Rielly contended that she had been subjected to both direct discrimination (ss 8 and 14 of the EO Act) and indirect discrimination (ss 9 and 14 of the EO Act). At my request, Counsel for Ms Rielly provided a written statement setting out details of how Ms Rielly's case was put in terms of direct discrimination and indirect discrimination. Ms Rielly also contended that by virtue of s 102 of the EO Act, the Bank was vicariously liable for the discrimination of the Second and Third Respondents.

13. In her Particulars of Complaint, the Complainant sought:

B. Damages for depression and anxiety reaction and humiliation.

C. An order for employment in a branch of the First Respondent which has adequate toilet facilities or alternatively full-time employment duties from the Pakenham branch where she worked prior to the discrimination.

14. In his opening, Counsel for Ms Rielly stated that point C was no longer being pursued as the Bank had provided an appropriate branch for Ms Rielly to work at - the Lonsdale Street branch in Dandenong, a branch with internal toilet facilities.

15. The Second and Third Respondents denied that there had been any discrimination. The Bank also denied any vicarious liability.

16. Before considering the evidence, I note that I made two rulings during the course of the hearing. The circumstances were briefly as follows.

17. First, on the second day of the hearing, Counsel for the Respondents objected to the inclusion of a claim in the written statement provided by the Complainant's Counsel detailing how her case was put. Counsel for the Respondents objected that the claim in question raised a new matter, one not included in the Complainant's Particulars of Complaint. After a short adjournment, I overruled the objection, stating that in my view the claim in question did form part of the complaint made by Ms Rielly (T64 - 71).

18. Second, during his cross-examination of the Second Respondent on the second day of the hearing, Counsel for the Complainant sought to question Ms Mackevicius regarding a statement she had made in the context of a WorkCover proceeding involving Ms Rielly. Counsel for the Respondents objected to Mr Fehring's use of the document, referring to s 242A of the Accident Compensation Act 1985. After a short adjournment, I upheld the objection, ruling that s 242A was a bar to the use by Mr Fehring of the document in question in his cross-examination of Ms Mackevicius. (T104 - 115).

19. At all relevant times, Ms Rielly lived at Beaconsfield. Her manager was Ms Trish Mackevicius, Area Sales Manager of the South Region of the Bank. As Area Sales Manager in the South Region, Ms Mackevicius managed twenty-eight HFMs of whom Ms Rielly was one. HFMs were meant to be flexible in their work practices and to work in locations in their Region as directed by their Manager. The Bank's aim was to utilise HFMs across the relevant Region to meet customer demands as and where they arose, and to cover staff absences (when staff members were on leave, etc.). HFMs often worked flexible hours, including weekend work.

20. On 3 February 2000, Ms Mackevicius carried out Ms Rielly's performance review for the first quarter of the Bank's 1999/2000 year (that is, covering the period 1 October to 31 December 1999). The review was carried out at the Bank's Berwick branch. Ms Rielly had been working principally at the Bank's Pakenham branch prior to the review, but also at the Bank's Berwick branch. Present at the performance review meeting were Ms Rielly, Ms Mackevicius and Mr Tony Calder, the Bank's District Leader. Ms Mackevicius considered Ms Rielly's sales results for the first quarter to be below an acceptable level. A concern raised by Ms Rielly at this meeting was that staff at Pakenham were not directing inquiries to her when they should have been. Ms Mackevicius accepted that this was a matter which needed to be investigated and that it would not be fair to conclude that Ms Rielly had failed to meet her target if others were not fulfilling their role. (T116). Several steps to help improve Ms Rielly's performance were noted on the performance review report. The report was signed by Ms Mackevicius but was not signed by Ms Rielly. (Exhibit 4 and attachment TM4).

21. On 14 February 2000, Ms Rielly commenced a period of sick leave. On 17 February 2000, Ms Rielly spoke to Ms Mackevicius by phone and informed Ms Mackevicius that she had just been diagnosed with Crohn's disease, and that she might be off work for some time.

22. Ms Rielly was off work from 14 February until 27 March 2000 when she returned to work at the Pakenham branch.

23. There is a difference in the evidence as to how much knowledge Ms Mackevicius had of Crohn's disease when Ms Rielly returned to work on 27 March 2000. Ms Mackevicius' evidence was that she had minimal knowledge of the disease, including of its symptoms. Ms Rielly's evidence was that she had told Ms Mackevicius the symptoms of Crohn's disease, namely diarrhoea, and that it was an incurable ulcerative disease. (Exhibits A, 4 and T17). I accept Ms Rielly's evidence on this matter and find that at the time Ms Rielly returned to work on 27 March 2000, Ms Mackevicius knew that Ms Rielly had a bowel disease, a symptom of which was diarrhoea. However I find that Ms Mackevicius did not know the severity or otherwise of Ms Rielly's condition and symptoms.

24. In giving evidence about her understanding of Crohn's disease, I found Ms Mackevicius to be particularly guarded. For example, when I asked what she understood Crohn's disease to be when Ms Rielly informed her that she (Ms Rielly) had the disease, Ms Mackevicius replied:

"I didn't know what Crohn's disease was at that stage.

Question: So it could have been a heart condition as far as you were concerned?

Answer: No, No. I am trying to remember exactly the conversation with her. I remember her calling me and telling me that she had been diagnosed with Crohn's disease, but I cannot recall the other words that she used at the time.

Answer: Yes, I did. I did ask her what that was, yes.

25. As well as finding that Ms Mackevicius knew the general nature of Crohn's disease when Ms Rielly returned to work on 27 March 2000, I also find that at that time, Ms Rielly:

(a) had asked Ms Mackevicius to keep confidential the fact that she (Ms Rielly) was suffering from Crohn's disease;

(b) had not told Ms Mackevicius that she required toilet facilities located within the branch where she was working;

(c) had not told Ms Mackevicius that toilet facilities needed to be within a particular distance or time from her actual place of work within a branch. (T17); and

(d) was not asked for a medical clearance certificate by Ms Mackevicius (or by anyone else at the Bank).

26. When Ms Rielly returned to work at the Pakenham branch on Monday, 27 March 2000, Ms Mackevicius spoke by phone with Ms Rielly, welcoming her back to work, saying several Bank staff members were away so that everyone was under considerable pressure, and asking her to phone a Ms Margaret Edwards who was the Relieving District Leader (while Mr Calder was on leave).

27. Ms Mackevicius gave evidence, which I accept, that she had discussed with Ms Edwards a redistribution of HFMs to cover certain staff absences; that there was insufficient work for Ms Rielly at the Pakenham branch, and that she was needed more urgently elsewhere; and that she had not informed Ms Edwards of Ms Rielly's illness in view of Ms Rielly's request to Ms Mackevicius that she keep the illness confidential.

28. When Ms Rielly telephoned Ms Edwards on 27 March 2000 as requested, Ms Edwards asked Ms Rielly to commence work on a full-time basis at the Bank's Keysborough branch the next day, Tuesday, 28 March 2000. Following discussion between Ms Edwards and Ms Rielly, it was agreed that Ms Rielly would normally work three days per week at Keysborough (Mondays, Wednesdays and Fridays) and two days at Pakenham (Tuesdays and Thursdays). However, it was agreed that Ms Rielly would commence at Keysborough on Tuesday, 28 March 2000.

29. Ms Rielly commenced at the Bank's Keysborough branch on Tuesday, 28 March 2000, but worked there only that day. When Ms Rielly inspected the toilet facilities, she found they were public toilets "approximately 240 paces from the Keysborough branch office" (Exhibit A). At lunch time, Ms Rielly phoned Ms Mackevicius to say that the toilets were too far away from the Keysborough branch office: "The toilets are miles away and I need toilet facilities close to my office and within the branch ... the problems of incontinence and diarrhoea can occur very suddenly". (Exhibit A). Ms Rielly told Ms Mackevicius that she was worried about having to leave a client interview to visit the toilet, and having to "disappear for some time".

30. Ms Rielly gave evidence, which I accept, that Ms Mackevicius said there was "lots of business to be done from the Keysborough branch and that there were good figures there", and that Ms Rielly replied, "I understand that, but I need to have toilets close at hand because of my problems". (Exhibit A).

31. In the event, Ms Mackevicius agreed (during the phone conversation on 28 March 2000) that Ms Rielly could return to the Pakenham branch - given the difficulties Ms Rielly had outlined regarding her circumstances and the distance to the toilet facilities at the Keysborough branch. Ms Rielly therefore finished work at the Keysborough branch at about 4.00 pm on Tuesday, 28 March 2000.

32. As mentioned, I accept that Ms Rielly told Ms Mackevicius that she needed toilet facilities located within the branch because of difficulties with incontinence and diarrhoea. However, Ms Rielly did not explain to Ms Mackevicius why it was important for her to have toilet facilities located within the branch (as opposed to toilet facilities located nearby, but outside the branch). The reason Ms Rielly wanted toilet facilities located within the branch - so she could leave a change of clothes there - only became apparent during the hearing when Ms Rielly responded to a question during cross-examination as follows:

"Part of Crohn's, as we know, is the diarrhoea. If you are in a customer interview situation, then you can politely make up an excuse, I need to get a photocopy, you can also securely leave clothes within the branch's toilets so that you then don't have to go, okay, I need to go to the toilet, go to the toilet, find that you did not make it there on time, come back into the branch, get your bag and then go back to the toilet all while there is customers sitting there. So there is a difference to having secure toilets within a branch." (T29 - 30).

33. It can be noted that Mr Tony Calder of the Bank gave evidence, which I accept, that the toilet facilities at Keysborough "were located outside the branch and were accessed in the main shopping centre public toilets. Distance is approximately less than 100 metres". (Exhibit 5, para 6.2).

34. Ms Rielly resumed work at the Bank's Pakenham branch on Wednesday, 29 March, and Thursday, 30 March 2000. (The Pakenham branch had internal toilets which Ms Rielly could reach in approximately ten seconds; the toilets were approximately eight metres from Ms Rielly's office (Exhibit 5, para 6.1(a)).

35. On or about 31 March 2000, Ms Mackevicius phoned Ms Rielly to inform her that she (Ms Rielly) was to work at the Endeavour Hills branch of the Bank, taking over the role of Mr Calder who was at that branch but who was going to be taking on a new role. At the time, Ms Mackevicius knew where the toilets were located at Endeavour Hills, and that they were external toilets, as she had been there on several occasions. She thought that the Endeavour Hills situation would be better for Ms Rielly than the Keysborough one (so far as the location of toilets was concerned), and that the location of the toilets at Endeavour Hills would be satisfactory for Ms Rielly. (T141). I accept this evidence.

36. Ms Rielly gave evidence that, "I had never been to Endeavour Hills [branch] and had no idea about the [toilet] facilities that were there but I agreed to go as directed. I then rang Mr Calder at Endeavour Hills and spoke to him. It was agreed that I would commence at Endeavour Hills on 3 April 2000". (Exhibit A, para 10).

37. Ms Rielly gave evidence that she did not ask Ms Mackevicius about the toilet facilities at the Endeavour Hills branch when Ms Makevicius telephoned and asked her to work at the Endeavour Hills branch. Ms Rielly explained that she did not ask about the toilet facilities at the Endeavour Hills branch because when she had telephoned Ms Mackevicius from the Keysborough branch, "I was very specific as to what I needed. I said to her that I needed toilets within the branch. In hindsight I should have clarified that yes, they were within the branch [at Endeavour Hills]. But I took it in good faith that she was doing as I requested". (T45).

38. When Ms Rielly phoned Mr Calder to make arrangements to begin work at the Endeavour Hills branch, she did not ask him about the toilet facilities at the branch because she assumed Ms Mackevicius would have considered her needs when deciding to assign her to the branch. Ms Rielly gave evidence that in her experience, it was normal for Bank branches to have internal toilet facilities. (T46).

39. When Ms Rielly arrived at the Endeavour Hills branch on Monday, 3 April 2000, she met with Mr Calder to discuss the work she would be doing. Ms Rielly told Mr Calder of her Crohn's disease and of her need for readily available toilet facilities in the office area. Ms Rielly then found that the toilet facilities were external toilets for use by shopping centre staff, accessible by key, some sixty metres from the office area of the Bank's branch. Ms Rielly considered that she could walk to the toilets from the Bank branch "within a minute". (Exhibit A, para 11, and T22 - 23).

40. Once Ms Rielly had inspected the toilet facilities provided for Bank staff and for other shopping centre staff at Endeavour Hills on 3 April, she did not complain to Mr Calder (who was at the Endeavour Hills branch for only part of that day), nor did she telephone Ms Mackevicius or anyone else at the Bank to raise concerns. (T23 - 24). However, Ms Rielly did attend her doctor, Dr Michael O'Gorman, who wrote a letter (dated 3 April 2000) regarding her condition and the need for "toilet facilities in her immediate work vicinity. During flare-ups which Kim [Rielly] is currently experiencing, she may need to use the toilet as frequently as half to one hourly". (Exhibit 1). Ms Rielly did not raise Dr O'Gorman's letter with anyone at the Bank until 10 April 2000 (when she raised it with Ms Mackevicius).

41. Ms Rielly attended work at the Endeavour Hills branch on 3, 5 and 7 April (as she was to attend there three days a week and two days a week at Pakenham).

42. A key concern of Ms Rielly's while at the Endeavour Hills branch was that on occasions, she had to leave an interview with Bank customers to go to the toilet, and that on such occasions, the customers could see her leaving the branch. In answer to questions from her Counsel, Ms Rielly put the matter as follows:

"Question: Can you explain to us the way you approach your duties, how those difficulties arose when you would have to leave an interview?

Answer: When I would have to leave, what would I say to the customers? I would say to the customers, excuse me, and, you know, try and say to them that I need to go and do something outside of the office. I might say that I needed a brochure, because it was very difficult to say that I needed photocopying or something, and then I would politely try and leave.

Answer: Why was it embarrassing? Because the customers could actually see me leaving the branch, and here I was trying to portray a professional image that I was giving them very one-on-one focussed attention, and I am physically walking out of the branch. And then to be gone for - because when you actually go to the toilet it is not like you just go to the toilet and you are finished. You can be on the toilet for an extended length of time." (T50 - 51).

43. At a regular meeting of Bank staff held at Bentleigh on Friday, 7 April 2000, Ms Rielly spoke with Ms Mackevicius and asked if she could meet with Ms Mackevicius to discuss her Crohn's disease. Ms Mackevicius agreed and a meeting between Ms Mackevicius and Ms Rielly took place at the Bank's St Kilda Road offices on Monday, 10 April 2000.

44. It can be noted that Mr Calder of the Bank gave evidence, which I accept, that the toilets at the Endeavour Hills Shopping Centre are staff toilets located outside the branch office. "In order to access the toilets from the HFM office at that time, you walk straight out of the HFM office to the door of the Bank, which is a distance of approximately 10 metres. The staff toilets are located in a utility corridor, which is opposite the branch's entrance. The toilets are located approximately 40 metres from the branch. It takes approximately 45 seconds to walk from the HFM's office to the toilet. You need a key to access the toilet." (Exhibit 5, para 6.3).

45. This meeting was initiated by Ms Rielly. I accept that at the meeting, Ms Rielly said that the toilet facilities at Endeavour Hills were unsatisfactory, given her condition; that she had soiled herself while working at the Endeavour Hills branch because the toilet facilities were unsatisfactory for her needs; that she discussed the need for a move away from the Endeavour Hills branch, and that a move away might mean a change in her role; that she read Dr O'Gorman's letter out to Ms Mackevicius (Exhibit 1) but did not give the letter or a copy to her; that Ms Mackevicius seemed "fairly sympathetic" to Ms Rielly's situation; that Ms Mackevicius said she would speak to the Bank's Human Resources department about employment options for Ms Rielly within the Bank; that Ms Rielly would herself explore employment options (with Ms Vivian Allen, Regional Manager for the Gippsland area); and that employment options for Ms Rielly within the Bank were constrained by the fact that she (Ms Rielly) would not consider a move to a position in the city (because of the risks associated with travelling on a daily basis to and from Beaconsfield while having Crohn's disease). (Exhibits A and 4, T26 - 30).

46. I also accept that at Ms Rielly's meeting with Ms Mackevicius on 10 April 2000, Ms Rielly did not say that her circumstances at the Endeavour Hills branch were intolerable and that she could not carry on there another day. Rather, I find that an understanding was reached that Ms Rielly would "soldier on" at the Endeavour Hills branch until other arrangements could be made. (T30).

47. I accept Ms Mackevicius' evidence that at the conclusion of the meeting, she telephoned the Bank's Human Resources department and informed the person she spoke to (either Mr Michael Fisher or Ms Michelle Durban, T95) of Ms Rielly's desire to move to a different role within the Bank.

48. On 12 April 2000, Ms Mackevicius conducted a regional meeting for Bank staff at Chelsea which Ms Rielly attended. Ms Mackevicius told Ms Rielly that she had contacted the Bank's Human Resources department and told them that Ms Rielly was seeking other positions.

49. Ms Rielly gave evidence that she then became frustrated with what she saw as a lack of action by the Bank with regard to her circumstances. She said she phoned Mr Calder to complain about the lack of action and that Ms Calder said she should speak to Ms Mackevicius, and that there was nothing he could do. (Exhibit A, para 17). In the event, Ms Rielly did not contact Ms Mackevicius, as had been suggested by Mr Calder.

50. On 17 April 2000, Ms Mackevicius had a meeting with Ms Michelle Durban of the Bank's Human Resources department and informed her that Ms Rielly wished to take up another role within the Bank, one with less customer contact. This meeting was a follow-up to Ms Mackevicius' phone call to the Human Resources department on 10 April 2000. (T98 - 99).

51. On or about 21 April 2000, Ms Mackevicius telephoned the Bank's Occupational Health and Safety Manager, Ms Caroline Kilgariff. Ms Kilgariff told Ms Mackevicius that when she starts working with a Bank employee, such as Ms Rielly, she normally requests a medical certificate (or a "clearance certificate") from the employee's treating doctor. The reason for this is to confirm that the employee is able to return to work, and to understand any medical restrictions placed on the employee. Ms Mackevicius said she would ask Ms Rielly for a clearance certificate when Ms Mackevicius met with Ms Rielly shortly (for a performance review meeting) and that she (Ms Mackevicius) would ask Ms Rielly to contact Ms Kilgariff.

52. On 1 May 2000, Ms Mackevicius and Mr Calder met with Ms Rielly at the Hampton Park branch of the Bank to carry out a six monthly performance review. The review covered the six month period from 1 October 1999 to 31 March 2000 (T91). Ms Mackevicius adjusted Ms Rielly's targets (down) because she had been on sick leave (from 14 February to 27 March 2000).

53. I accept that Ms Rielly raised difficulties she was having with Crohn's disease and incontinence, but that Ms Mackevicius said the emphasis of the meeting was to be on Ms Rielly's performance and on what was expected of her in the coming period.

54. I accept Ms Rielly's evidence that she raised her difficulties with Crohn's disease and with incontinence because I considered her evidence on this matter (including under cross-examination) to be consistent and convincing. For example, Counsel for the Respondents asked Ms Rielly the following questions:

"Question: Now, I suggest to you that at the meeting on 1 May, which was your performance review, that at no stage during that meeting did you tell the meeting that the toilet facilities at Endeavour Hills were intolerable, or words to that effect?

Answer: I informed both Trish [Mackevicius] and Tony [Calder] that even on the Saturday, because I had to work on the Saturday before the meeting because there was appointments scheduled, that I hadn't reached the toilets on time and that I was still experiencing incontinence and it was very difficult.

Question: And I suggest that at no stage did Ms Mackevicius tell you that your illness or health concerns were not open for discussion?

Answer: She said that we had to separate my performance from my illness, and this meeting was to focus on my performance.

Question: I suggest to you that the meeting proceeded really on the basis that you were content to continue to work at the Endeavour Hills branch?

55. As will be apparent, I do not accept the evidence from Ms Mackevicius and from Mr Calder that Ms Rielly did not raise her medical condition at the meeting.

56. On Ms Mackevicius' evidence, Ms Rielly's performance was regarded as poor as she had achieved 61.5 per cent of her (revised) "commitment target" of $8.64 million and 71.1 per cent of her (revised) "draw down target" of $7.776 million. (Exhibit 4, para 6).

57. During the course of the performance review meeting, Ms Mackevicius said she had contacted Ms Kilgariff and that Ms Kilgariff had informed her that Ms Rielly should be providing a clearance certificate if she was back at work. Ms Mackevicius informed Ms Rielly that she should contact Ms Kilgariff.

58. Ms Mackevicius ranked Ms Rielly's performance as "needs improvement", a ranking that meant a bank employee was either new or learning the role or was taking steps to get their results to the required level. In Ms Mackevicius' view, Ms Rielly was given this ranking as she was taking steps to improve her performance. Both Ms Mackevicius and Ms Rielly signed the report of the performance review meeting on 1 May 2000 (Exhibit 2).

Ms Rielly's Telephone Conversation with Ms Kilgariff on 1 May 2000

59. Ms Rielly phoned Ms Kilgariff on 1 May 2000, in accordance with Ms Mackevicius' request.

60. I accept Ms Kilgariff's evidence that she explained her role to Ms Rielly, that she said she wanted to assist Ms Rielly in her return to work and in the management of her illness, and that she explained that when a staff member had been away from work for an extended period or their condition had not stabilised, it was the Bank's practice to request a medical clearance to ensure that the Bank was providing appropriate support for the employee concerned. I accept Ms Kilgariff's evidence that Ms Rielly told her that she had recently suffered an exacerbation of her symptoms and that she was undergoing a series of medical tests. I also accept Ms Kilgariff's evidence that she told Ms Rielly that there were several options open to her whilst she (Ms Rielly) determined whether her condition had stabilised. The options included part-time work at the Bank.

61. Because Ms Kilgariff needed to find out more about Ms Rielly's condition and her symptoms, Ms Kilgariff asked Ms Rielly if she was prepared to consent to her (Ms Kilgariff) talking directly to her doctor about her condition. Ms Kilgariff said that Ms Rielly agreed to her talking with Dr O'Gorman, and that she provided Ms Kilgariff with Dr O'Gorman's contact details. (Exhibit 6).

62. Ms Kilgariff spoke with Dr O'Gorman on 2 May 2000, and arranged for Ms Mackevicius to speak with him, which Ms Mackevicius did (also on 2 May 2000). Dr O'Gorman advised both Ms Kilgariff and Ms Mackevicius that he considered Ms Rielly needed to be located at a branch with internal toilets, because of her condition. (This was the first occasion on which a doctor had said that Ms Rielly required internal toilet facilities). Ms Mackevicius told Dr O'Gorman that she would see what could be done. Ms Mackevicius then actively explored options, looking for a branch with internal toilet facilities, sufficient business opportunities so that Ms Rielly could improve her work performance, and relatively close to Ms Rielly's home. As a result, on 5 May 2000, Ms Mackevicius was able to offer Ms Rielly a position as an HFM at the Bank's Dandenong Plaza branch. (Exhibits 4 and 6, and attachment TM6 to Exhibit 4).

63. On 3 May 2000, Ms Rielly attended Dr O'Gorman and gave evidence that he said, "I would have to take time off work unless I was provided with proper toilet facilities and that Endeavour Hills was not adequate. I have not resumed employment since that time. I rang Tony Calder on that day to tell him that I would not be coming back to work given the problems that I was having at Endeavour Hills and my Crohn's disease". (Exhibit A, para 23).

64. On 5 May 2000, Ms Mackevicius telephoned Ms Rielly and said she could be located in the Bank's Dandenong Plaza branch immediately. Even though Ms Rielly accepted Ms Mackevicius' advice that the toilet facilities at the Dandenong Plaza branch were suitable (T37 - 38), Ms Rielly declined to take up the position as she was ill.

65. It can be noted that the toilets at the Dandenong Plaza branch are internal. It would take an HFM approximately twenty seconds to reach the toilets from the HFM's office. (Exhibit 5, para 6.4).

66. Ms Rielly subsequently resumed part-time work with the Bank on 17 October 2000, at its branch at Lonsdale Street, Dandenong. Ms Rielly worked part-time for two weeks before discontinuing work due to ill health.

67. It can be noted that at the Bank's branch at Lonsdale Street, Dandenong, the toilets are internal and are immediately adjacent to the HFM's office. It would take an HFM approximately ten seconds to reach them from the HFM's office. (Exhibit 5, para 6.5).

68. As mentioned earlier (Para.12 above), at my request Counsel for Ms Rielly produced a written statement setting out details of how Ms Rielly's case was put in terms of both direct discrimination and indirect discrimination. I will now consider whether a case of discrimination has been made out, in view of the matters of fact which I have found to be established.

69. To succeed, Ms Rielly must prove - on the balance of probabilities - that she has been subjected to discrimination in breach of provisions of the Equal Opportunity Act 1995.

70. The relevant provisions of the EO Act are as follows:

(1) Discrimination means direct or indirect discrimination on the basis of an attribute.

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

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

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

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

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

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including-

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

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

10. Motive is irrelevant to discrimination

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

11. Discrimination by acting with others and by not acting

It is irrelevant whether discrimination occurs by a person-

(a) acting alone or in association with any other person;

An employer must not discriminate against an employee-

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(d) by subjecting the employee to any other detriment."

71. As mentioned earlier, the Respondents acknowledged that Ms Rielly had the attribute of impairment (within the meaning of s. 6(b) of the EO Act) at all relevant times, namely Crohn's disease.

72. Ms Rielly contended that there were eight instances of direct discrimination. The instances, the alleged discriminators, and my analysis, are as follows:

1. Transfer of Ms Rielly to the Keysborough branch of the Bank on

73. The contention was that Ms Mackevicius breached s. 14(a) and/or (d) of the EO Act and that the Bank was vicariously liable for any such breach.

74. While Ms Rielly was on sick leave in the period from 14 February to 27 March 2000, Ms Mackevicius came to the conclusion that there was not sufficient work at the Pakenham branch of the Bank to keep an HFM there full-time. When Ms Rielly returned to work on 27 March 2000, Ms Mackevicius put in train steps that led to Ms Rielly being assigned to the Bank's Keysborough branch for three days per week, while remaining at the Pakenham branch for two days per week. Ms Mackevicius consulted Ms Margaret Edwards (Relieving District Leader) in reaching a decision that Ms Rielly should be assigned to the Keysborough branch. (T119 - 121).

75. The reason Ms Rielly was assigned to the Keysborough branch (for three days per week) was because there was considerable business there which needed to be serviced, and because Ms Mackevicius had formed the view that there was insufficient business at Pakenham to keep an HFM fully occupied. While Ms Rielly gave evidence that she considered there was sufficient work at Pakenham to keep her fully occupied, Ms Rielly did not have Ms Mackevicius' and Ms Edwards' broader view as to the distribution of work within the Bank's South Region.

76. At the time Ms Rielly was assigned to the Keysborough branch, Ms Mackevicius knew that Ms Rielly had Crohn's disease and understood that it was a bowel disease, a symptom of which was diarrhoea. Ms Mackevicius did not know the severity of Ms Rielly's condition or symptoms.

77. At the time Ms Rielly was assigned to the Keysborough branch, I accept Ms Mackevicius' evidence that she did not know the layout of the toilet facilities at the Keysborough branch, including whether there were internal or external toilet facilities. (T121). And at this time, on her own evidence, Ms Rielly had not told Ms Mackevicius that she needed internal toilets, or that toilet facilities needed to be available to her within a particular distance or time from her place of work. (T17).

78. For Ms Mackevicius to have discriminated against Ms Rielly in taking steps to assign her to the Keysborough branch of the Bank, Ms Rielly must establish that a substantial reason for the decision was her impairment (s. 8(2)(b) of the EO Act). This has not been proven. There is no evidence to link the decision to assign Ms Rielly to the Keysborough branch with her impairment, nor would it be safe to draw an inference that this was a substantial reason for the reassignment of Ms Rielly to the Keysborough branch. The real reasons why Ms Rielly was transferred to Keysborough (on a part-time basis) were because her manager, Ms Mackevicius, had formed the view that the amount of work at the Pakenham branch did not justify Ms Rielly remaining there in a full-time capacity, and because Ms Rielly's services were needed at the Keysborough branch to bolster the staff resources there. Ms Rielly acknowledged that there was no shortage of work at the Keysborough branch and that this would provide an opportunity to improve her performance in arranging new loans. (Exhibit A, para 7, and T14).

79. Counsel for Ms Rielly submitted that Ms Rielly was subjected to discrimination because the consequences to her of being assigned to the Keysborough branch were serious, given that she had an impairment (Crohn's disease). Counsel submitted that if an hypothetical HFM, John Smith, who did not have an impairment, were assigned to the Keysborough branch, there would be no adverse consequences for him. Hence, Counsel submitted that Ms Rielly was treated less favourably than the hypothetical John Smith because the consequences for Ms Rielly were serious, in view of her impairment. (T206 - 209).

80. I do not accept this submission. In my view, it is necessary, first, to ask whether a substantial reason for Ms Rielly being assigned to the Keysborough branch was her impairment. This is not an inquiry as to anyone's motive. It is an inquiry to ascertain the true basis for a decision. In my view, Ms Rielly's impairment was not a reason - let alone a substantial reason - for the decision to assign her to Keysborough. In these circumstances, there can be no direct discrimination - notwithstanding that the assignment of Ms Rielly to the Keysborough branch had unfortunate consequences for her.

2. The transfer of Ms Rielly to the Endeavour Hills branch of the Bank on 31 March 2000 and the retention of her at that branch.

81. The contention was that Ms Mackevicius breached s. 14(a) and/or (d) of the EO Act and that the Bank was vicariously liable for any such breach.

82. Why was Ms Rielly assigned to the Endeavour Hills branch of the Bank?

83. The assignment of Ms Rielly to the Keysborough branch had failed on the first day. Ms Rielly had telephoned Ms Mackevicius and said that, "the toilets are miles away and I need toilet facilities close to my office and within the branch ... the problems of incontinence and diarrhoea can occur very suddenly". (Exhibit A).

84. On hearing that Ms Rielly was not able to work effectively at the Keysborough branch because of her condition and the location of the toilets, Ms Mackevicius immediately accepted that the Keysborough placement was not going to work out, and allowed Ms Rielly to return to the Pakenham branch the next day, 29 March 2000.

85. On or about 31 March 2000, Ms Mackevicius phoned Ms Rielly and asked her to commence work at the Endeavour Hills branch shortly. This matter is outlined above in Paras. 35-38.

86. Ms Rielly was assigned to the Endeavour Hills branch because her manager had decided there was insufficient work to justify her remaining at Pakenham on a full-time basis, and because Mr Calder was leaving the Endeavour Hills branch, and a replacement was needed. Ms Rielly was assigned to the Endeavour Hills branch in circumstances where her manager, Ms Mackevicius, considered that the location of the toilets would be better than at Keysborough, and that the location of the toilets would be satisfactory for Ms Rielly. (T141). In objective terms, the toilets at Endeavour Hills were closer than at Keysborough (approximately 50 metres away versus "approximately less than 100 metres" away at Keysborough) and were staff toilets accessible by key, whereas at Keysborough, the toilets were public ones. (Paras. 33 and 44 above.)

87. There is no evidence on which to find that a substantial reason for the decision to assign Ms Rielly to Endeavour Hills was her impairment, nor would it be safe to draw such an inference.

88. The evidence indicates clearly that Ms Mackevicius (and the Bank) wanted Ms Rielly to succeed in her assignments at Keysborough and at Endeavour Hills. For example, change-over arrangements were put in place at both branches. It was not in the interests of Ms Mackevicius or the Bank to assign Ms Rielly to a branch where she was not going to be effective and productive.

89. Regarding the contention that Ms Rielly was subjected to direct discrimination through Ms Mackevicius' (and the Bank's) decision to retain her at the Endeavour Hills branch, I take this to be an assertion that as a result of the meeting between Ms Rielly and Ms Mackevicius on 10 April 2000, Ms Mackevicius (and the Bank) should have taken immediate steps to end Ms Rielly's assignment at the Endeavour Hills branch and to reassign her to a branch with toilet facilities that met Ms Rielly's needs. I understand this to be a contention based on s. 11(b) of the EO Act in that discrimination is said to have occurred through Ms Mackevicius, "omitting to do an act".

91. There is no evidence that Ms Mackevicius (and the Bank) omitted to move Ms Rielly on the basis of her impairment, nor would it be safe to draw an inference that this was the case.

92. Ms Mackevicius took steps after the 10 April 2000 meeting to address what she understood to be Ms Rielly's concerns. On 10 April, Ms Mackevicius telephoned the Bank's Human Resources department after the meeting and spoke with either Mr Michael Fisher or Ms Michelle Durban. On 17 April 2000, Ms Mackevicius met with Ms Durban to inform her that Ms Rielly was interested in a role with less customer contact, and on or about 21 April 2000, Ms Mackevicius telephoned Ms Kilgariff.

93. Ms Rielly may have expected the Bank to take urgent action to find her a new position but steps were being taken by Ms Mackevicius to address Ms Rielly's concerns. This was in circumstances where Ms Rielly had not told Ms Mackevicius at the meeting on 10 April 2000 that she could no longer work at the Endeavour Hills branch - as she had done when she had been assigned to the Keysborough branch.

94. Therefore, it has not been proven that a reason - let alone a substantial reason why Ms Mackevicius (and the Bank) retained Ms Rielly at the Endeavour Hills branch - was her impairment.

3. The meeting between Ms Rielly and Ms Mackevicius on 10 April 2000 at the St Kilda Road premises of the Bank.

95. The contention was that Ms Mackevicius breached s. 14(a) and/or (d) of the EO Act and that the Bank was vicariously liable for any such breach.

96. The contention, as I understood it, was that Ms Mackevicius should have acted urgently to find Ms Rielly an alternate position within the Bank, once Ms Rielly voiced her concerns at the meeting; and that by failing to act urgently, Ms Mackevicius was discriminating against Ms Rielly by "omitting to do an act" (s. 11(b)), and was thereby subjecting Ms Rielly to a detriment (within s. 14(d)).

98. In my view, there is no evidence that Ms Mackevicius conducted the meeting in a discriminatory manner. Ms Mackevicius took follow-up action after the meeting by contacting the Bank's Human Resources department on the same day (10 April 2000), by meeting with Ms Durban of the Human Resources department on 17 April 2000, and by contacting Ms Kilgariff on 21 April 2000. These actions were a response to the matters raised by Ms Rielly at the meeting.

99. While Ms Rielly may have preferred Ms Mackevicius to take more urgent action, the fact is Ms Mackevicius took steps in accordance with her understanding of Ms Rielly's circumstances, principally that Ms Rielly would "soldier on" at the Endeavour Hills branch until another position for her could be identified. I do not consider this approach to be discriminatory.

4. The performance review meeting held on 1 May 2000.

100. The contention was that Ms Mackevicius breached s. 14(a) and/or (d) of the EO Act and that the Bank was vicariously liable for any such breach.

101. The performance review covered the first six months of the Bank's financial year, the period from 1 October 1999 to 31 March 2000. I understand the contention of discrimination to be twofold. Firstly, that at the performance review meeting, Ms Mackevicius refused to discuss Ms Rielly's medical condition and how this had affected her performance, and secondly, that while Ms Rielly's performance targets were adjusted downwards at the meeting to take into account her period of sick leave (14 February to 27 March 2000), the performance targets had not been further adjusted downwards (and should have been) to reflect the fact that on her return to work, Ms Rielly's performance was adversely affected by the continuing symptoms of Crohn's disease.

102. Regarding the first of the two matters - Ms Mackevicius' refusal to discuss Ms Rielly's medical condition - I consider that this does not amount to discrimination. This is because one needs to consider Ms Mackevicius' action in the light of the definition of "direct discrimination" in s. 8(1) of the EO Act. By refusing to discuss Ms Rielly's medical condition, did Ms Mackevicius treat Ms Rielly (a person with an attribute) less favourably than Ms Mackevicius would have treated someone without that attribute, or with a different attribute, in the same or similar circumstances? In my view, Ms Mackevicius would have treated an HFM who, for example, had recently experienced a death in the family ("someone without that attribute ... in the same or similar circumstances"), in the same way. That is, I consider Ms Mackevicius would have said that as this is a performance review meeting, we need to focus attention on whether you have met your targets, and other matters need to be put to one side.

103. It is irrelevant whether or not I agree with the approach taken by Ms Mackevicius in the performance review meeting. The question is: did her conduct at the meeting amount to discrimination (within the meaning of s. 8(1))? In my view, the answer is no.

104. Regarding the second of the two matters - the contention that Ms Rielly's performance targets should have been further adjusted downwards to reflect the fact that on her return to work, Ms Rielly's performance was adversely affected by the continuing symptoms of Crohn's disease - there is a practical issue to be noted. The practical issue was addressed by Counsel for the Respondents in his closing submission (T225 - 226). This is that on Monday, 27 March 2000, Ms Rielly returned to work after sick leave at the Pakenham branch, a branch Ms Rielly was familiar with and where the toilet facilities were satisfactory. On Tuesday 28 March, Ms Rielly spent the day at the Keysborough branch, reached the conclusion that because the toilets were "miles away", the branch was not going to be satisfactory for her, and made arrangements with Ms Mackevicius to return to the Pakenham branch the next day. Ms Rielly therefore spent Wednesday, 29 March, back at the Pakenham branch, and she also spent Thursday, 30 March, and Friday, 31 March, at the Pakenham branch. Given that the toilet facilities at the Pakenham branch were entirely satisfactory - in view of Ms Rielly's needs - and given that Ms Rielly wished to be located at the Pakenham branch, I do not see how a claim of discrimination can be sustained regarding the four days Ms Rielly spent at the Pakenham branch. Regarding the one day Ms Rielly spent at the Keysborough branch, I consider that it was not discrimination for Ms Mackevicius to decline to adjust downwards Ms Rielly's performance targets to take into account the non-productive nature of the day. Ms Mackevicius gave evidence that while it was the Bank's policy to adjust a person's performance targets if the person had been on extended sick leave, Ms Mackevicius was not aware of any basis for adjusting the performance targets of a person who was at work but whose ability to perform in the workplace was adversely affected by a health issue. (T84). In my view, the fact that Ms Mackevicius did not adjust Ms Rielly's performance targets for the (unproductive) day she spent at Keysborough, does not amount to discrimination. Again, in terms of the definition of discrimination in s. 8(1), I consider that if an HFM was assigned to a new branch and due to, for example, a personality clash with the manager, the HFM requested and was granted a new placement after one day, I consider that Ms Mackevicius would not have adjusted that person's performance targets for that unproductive day. In this hypothetical example, the HFM would be "someone without that attribute .... in the same or similar circumstances".

105. Therefore I consider that the manner in which Ms Mackevicius conducted the performance review meeting on 1 May 2000 does not amount to discrimination.

5. The telephone call of Ms Rielly to Ms Kilgariff on 1 May 2000 in which a request was made (by Ms Kilgariff) to provide a medical clearance and Ms Rielly informed Ms Kilgariff that she needed ready access to a toilet.

106. The contention was that Ms Kilgariff breached s. 14(a) and/or (d) of the EO Act and that the Bank was vicariously liable for any such breach.

107. The contention here, as I understood it, was that Ms Kilgariff's request on 1 May 2000 for Ms Rielly to provide a medical clearance certificate - Ms Rielly having been back at work since 27 March 2000 - was said to be discriminatory in that the request subjected Ms Rielly to a detriment within the meaning of that term in s. 14(d) of the EO Act.

109. There is no doubt that Ms Kilgariff acted in the way she did because of Ms Rielly's impairment. The impairment was the substantial reason, if not the only or dominant reason (s. 8(2)(b)). But was Ms Kilgariff's request discriminatory? The answer is no. This is because - in terms of the definition of direct discrimination in s. 8(1) - I consider that Ms Kilgariff did not treat Ms Rielly ("someone with an attribute") less favourably than she would have treated "someone without that attribute, or with a different attribute, in the same or similar circumstances".

110. To consider whether discrimination has occurred in terms of the definition in s. 8(1), one needs to construct a scenario involving a "comparator", that is, a person without the attribute of impairment, or with a different attribute, "in the same or similar circumstances".

111. I take as a hypothetical comparator a pregnant HFM ("someone with a different attribute", that is, pregnancy) who had:

(a) requested a meeting with her manager at which she had raised difficulties about her ability to go up and down stairs to visit her branch's toilet facilities (and I note in passing that the Bank's Berwick branch has upstairs toilet facilities - Exhibit 5, para 6.1(b));

(b) that the manager then contacted Ms Kilgariff for advice;

(c) that Ms Kilgariff's advice was that the HFM's medical practitioner should be asked for a letter addressing the issue of whether it was safe/advisable for the HFM to be ascending and descending stairs to access her workplace's toilet facilities; and

(d) that Ms Gilgariff requested the HFM to provide such a letter.

112. In my view, Ms Kilgariff's request to Ms Rielly for a medical clearance certificate was not discriminatory. I consider that "in the same or similar circumstances", Ms Kilgariff would have dealt with a person with a different attribute in the same way. Ms Kilgariff's treatment of Ms Rielly was not less favourable than the manner in which I consider Ms Kilgariff would have treated a pregnant HFM in the scenario outlined.

113. Therefore, I consider that Ms Kilgariff's request for Ms Rielly to provide a medical clearance certificate was not discriminatory.

114. It can be noted in passing that Ms Mackevicius acknowledged that she was unaware of the Bank's practice of asking an employee who had been on sick leave - for a month or more - to provide a medical clearance certificate on their return. (T100 - 101). Ms Mackevicius' lack of knowledge on this point led to the delay in Ms Rielly being asked for a medical clearance certificate.

6. The telephone calls to Dr O'Gorman by Ms Mackevicius and Ms Kilgariff and related conversations with Ms Rielly, on 2 May 2000.

115. Ms Rielly decided not to pursue this matter (T202). It is therefore not considered further.

7. The telephone calls to Mr Calder during April 2000 in which Ms Rielly voiced her concerns at the delay in dealing with her complaints and the problems she was having at Endeavour Hills.

116. The contention, as I understand it, was that Mr Calder discriminated against Ms Rielly by failing to act on her complaints to him (thus breaching s. 14(a) and/or (d) of the EO Act, and that the Bank was vicariously liable for the breach(es)).

118. When Ms Rielly complained to him about the Bank's lack of action, Mr Calder said she should speak to her manager, Ms Mackevicius, about the issues she was raising.

119. I consider Mr Calder's response to Ms Rielly's complaints to be an appropriate one and certainly not discriminatory.

8. Ms Rielly also submitted that the overall conduct of the Respondents amounted to discrimination.

120. The submission, as I understood it, was that the Respondents engaged in a pattern of behaviour which, when taken as a whole, amounted to direct discrimination (being a breach of s. 14(a) and/or (d) of the EO Act).

121. This submission was not developed and I do not accept it. I find that none of the individual incidents said to make up the pattern of behaviour was discriminatory, and I find that the so-called pattern of behaviour when taken as a whole was not discriminatory.

122. Ms Rielly contended that further and in the alternative (to her contentions of direct discrimination), she had suffered indirect discrimination in that the Bank had imposed a requirement and/or condition with respect to her place of work with which she could not comply (that is, that she attend at the Keysborough and Endeavour Hills branches of the Bank when such branches did not have appropriate toilet facilities for her, given her impairment); that a higher proportion of people without the attribute of impairment (namely, Crohn's disease) could comply with; and that the requirement to attend at the Keysborough and/or Endeavour Hills branches of the Bank was not reasonable in the circumstances.

123. In contending that she was subjected to indirect discrimination, Ms Rielly relied upon the incidents numbered 1, 2, 3, 4, 5 and 7 above, and upon the Bank's failure to adjust Ms Rielly's budget, given her impairment, and upon the Bank's requirement that Ms Rielly continue with client interviews after her meeting with Ms Mackevicius on 10 April. (The Complainant's Particulars of Complaint paras. 18 and 19, and the written Particulars of Discrimination provided by Counsel for the Complainant at the commencement of the second day of the hearing). Ms Rielly asserted that the indirect discrimination was in breach of s. 14(a) and/or (d) of the EO Act.

124. For indirect discrimination to occur pursuant to s. 9 of the EO Act, a requirement or condition that has been imposed must first be identified. Ms Rielly contended that the requirement or condition that was imposed was the requirement or condition that she attend the Keysborough and Endeavour Hills branches of the Bank for the purposes of work when these branches did not have appropriate toilet facilities for her - in terms of their proximity to her work place - given her impairment. Ms Rielly did not state the requirement or condition which she said was imposed in any greater detail.

125. For a requirement or condition to be imposed (within the meaning of s. 9), the normal meanings of "requirement" and "condition" suggest that two pre-conditions must be fulfilled. First, the requirement or condition must have some longevity, some enduring quality attached to it. Second, the requirement or condition must have inflexibility associated with it; the requirement or condition must indeed be an "inflexible" requirement or condition.

126. In the present case, I am not satisfied that Ms Rielly has identified, and proven the existence of, a requirement or condition imposed by the Bank (within the meaning of s. 9). My reasons are as follows.

127. In the events the subject of Ms Rielly's complaint, there were two occasions when the Bank clearly understood that Ms Rielly had special requirements so far as access to toilet facilities was concerned. On both occasions, the Bank acted quickly to accommodate Ms Rielly's needs. First, when Ms Rielly voiced her unhappiness with her assignment to the Keysborough branch (given that the toilets were "miles away"), the Bank moved quickly, ending Ms Rielly's assignment there after one day and returning her to the Pakenham branch. Second, when the Bank understood that Ms Rielly's doctor, Dr O'Gorman, considered that Ms Rielly required toilet facilities located within the branch at which she was working (and Ms Mackevicius and Ms Kilgariff received this advice from Dr O'Gorman by telephone on 2 May 2000), Ms Mackevicius quickly identified a branch which would meet Ms Rielly's needs. The branch was the Dandenong Plaza branch and Ms Mackevicius offered Ms Rielly a position there on 5 May 2000.

128. When Ms Rielly was asked to go to the Endeavour Hills branch, Ms Edwards first asked her to work there on a full-time basis. However, Ms Rielly negotiated with Ms Edwards and it was agreed that she would work there three days a week and two days at Pakenham. I mention this as indicative of the Bank's willingness to attempt to meet Ms Rielly's preferences as to work location.

129. As mentioned earlier (Para. 86), the toilet facilities at Endeavour Hills were about half as far away as they had been at the Keysborough branch, and they were staff toilets accessible by key (rather than public toilets as at Keysborough). When Ms Rielly commenced work at the Endeavour Hills branch on 3 April 2000 and found out where the toilets were located, she did not complain to Mr Calder, nor did she complain to Ms Mackevicius or to anyone else at the Bank. However, Ms Mackevicius did consult her doctor, Dr O'Gorman, on 3 April 2000, and Dr O'Gorman wrote a letter which Ms Rielly read out to Ms Mackevicius at a meeting initiated by Ms Rielly on 10 April.

130. Even though Ms Rielly voiced concerns about her work circumstances at Endeavour Hills at the meeting on 10 April 2000, she did not say that her work conditions there were intolerable (as she had done regarding the situation at Keysborough). Rather, Ms Rielly and Ms Mackevicius reached an agreement at the 10 April meeting that Ms Rielly would "soldier on" at Endeavour Hills while both explored other work possibilities within the Bank.

131. After the meeting on 10 April, Ms Rielly expressed her frustration to Mr Calder (in phone conversations) about the length of time it was taking Ms Mackevicius to contact her again, but Ms Rielly did not contact Ms Mackevicius to raise concerns, nor did she contact her union - as she had done regarding her assignment to Keysborough (Exhibit A, para 7; T20, T34 and T230).

132. In fact, after her meeting with Ms Rielly on 10 April, Ms Mackevicius did take steps to address Ms Rielly's concerns. Ms Mackevicius contacted the Bank's Human Resources department, met with Ms Durban and contacted Ms Kilgariff.

133. At the performance review meeting on 1 May 2000, Ms Mackevicius reviewed Ms Rielly's performance (adjusting her targets down for her period of sick leave), asked Ms Rielly whether she had provided a medical clearance certificate on her return to work, and suggested she contact the Bank's Occupational Health and Safety Manager, Ms Kilgariff.

134. It is noteworthy that Ms Rielly signed the performance review meeting record on 1 May 2000 (Exhibit 2) which included the following comment written by Ms Mackevicius:

"Continuation of 2 days p.w. Pakenham and 3 days p.w. Endeavour Hills should ensure adequate business to achieve targets".

135. Ms Rielly made a written comment on the report: "It has been a very disappointing half year, hopefully [in] the next six months I will have full quarters in the branch." Ms Rielly did not write anything about her work circumstances or conditions at Endeavour Hills being unsatisfactory.

136. Ms Rielly contacted Ms Kilgariff after the 1 May 2000 performance review meeting with Ms Mackevicius and gave Ms Kilgariff permission to speak to her (Ms Rielly's) doctor. Once Ms Kilgariff (and Ms Mackevicius) had spoken with Dr O'Gorman, they understood Ms Rielly's precise requirements regarding toilet facilities (that is, that internal toilets were required). Ms Mackevicius then took urgent steps to accommodate this need, phoning Ms Rielly (at home) on 5 May to say that she could begin work immediately at the Bank's Dandenong Plaza branch, a branch with internal toilets. As mentioned earlier, Ms Rielly declined the offer.

137. In my view, the above does not indicate that the Bank was imposing a requirement or condition on Ms Rielly that she work at branches with unsuitable toilet facilities (bearing in mind her impairment). If Ms Rielly had been required to stay at the Keysborough branch after clearly voicing her concerns to Ms Mackevicius about the location of the toilets, then a claim of indirect discrimination would require close consideration, as it would if Ms Rielly had clearly stated to Ms Mackevicius when she commenced work at the Endeavour Hills branch, or at any time thereafter, that the toilet facilities were unacceptable to her - and the Bank had then required her to continue working there. But neither of these scenarios is what occurred.

138. As will be apparent, I consider that the claim of indirect discrimination has not been made out.

139. In the circumstances, as the claims of direct and indirect discrimination have not been found to be proven, the complaint will be dismissed. In my view, Ms Rielly has not succeeded in proving that the Respondents have contravened provisions of the EO Act. I acknowledge, however, that Ms Rielly has experienced real difficulties in attempting to continue her work as an HFM with the Bank while doing her best to manage her medical condition.

140. In conclusion, I note that when Ms Rielly returned to work on 27 March 2000 after six weeks' sick leave, no one at the Bank asked her for a medical clearance certificate. The Bank's usual practice was to ask an employee who had been on sick leave for a month or longer to provide such a certificate so the Bank could be assured that the employee's doctor was overseeing the return to work. (Ms Kilgariff's evidence at T188 - 189). Ms Mackevicius acknowledged that due to an oversight on her part, Ms Rielly had not been asked for such a certificate (T100 - 101). Had Ms Rielly been asked for a medical clearance certificate on her return to work on 27 March 2000 - in accordance with the Bank's usual practice - then it may be that Ms Rielly would not have considered it necessary to bring this complaint. This is because Ms Rielly's medical status on her return to work would have been monitored, and any special requirements met, if possible.