Human Rights and Equal Opportunity Act 1986, ss.5, 6, 10, 15(2)(a), 15(2)(b), 15(2)(c), 15(2)(d), 46PH(1)(b), 46PH(1)(c), 47, 123(4)

Disability Discrimination Act 1993, ss.47, 123(4)

Corrections Act 1986 (Victoria)

Accident Compensation Act 1985

Rainsford v State of Victoria [2001] FMCA 115

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

McNeil v Commonwealth of Australia [1995] HREOCA 9; (1995) EOC 92-714, 78-367

R v Equal Opportunity Board; Ex parte Burns [1985] VicRp 31; (1985) VR 317

(1) The Respondent shall pay to the Applicant damages in the sum of $5,000.

1. This is an application by Mary Edel McBride (the Applicant) alleging unlawful discrimination against the State of Victoria (the Respondent). The Application was filed in the Federal Court of Australia on 2 June 2000.

2. The Applicant had lodged a complaint of disability discrimination with the Human Rights and Equal Opportunity Commission (HREOC). The complaint was terminated pursuant to s.46PH(1)(b) and 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act) on the ground that the delegate of the President was satisfied that the complaint was lodged more than 12 months after the alleged unlawful discrimination took place and because the complaint was lacking in substance. The notice of termination is dated 27 April 2000. The original complaint was in the form of an undated letter from the Applicant which was then the subject of a further undated letter with an attached "Statement of Complaint" which regrettably was also undated.

3. The Application although initially filed with the Federal Court of Australia was transferred to the Federal Magistrates Court and thereafter was subject to a number of amendments at the request of the Applicant pending consideration of other workers compensation proceedings in the County Court. A preliminary issue concerning an extension of time was decided by the Court on 24 July 2001 and an order was made that the Applicant be granted an extension of time within which to bring the application before the Court. Unfortunately the hearing was somewhat disjointed with the first four days of evidence involving a number of witnesses who had to be interposed. There was then a week's delay between the fifth day of evidence and submissions being made on the sixth day. Both Counsel for the Applicant and the Respondent provided detailed written submissions in addition to detailed contentions of fact and law which had been filed pursuant to an order of the Court.

4. After the decision was reserved an issue of concern to the Court arose in relation to the application of the Commonwealth Human Rights Legislation against the State of Victoria and some consideration was given to the issue of whether in fact the Commonwealth Legislation applied at all to the Victorian Government and the Respondent in the present case. That matter was the subject of a decision by the Court in the matter of Rainsford v State of Victoria [2001] FMCA 115. It was then the subject of amending legislation which removed any doubt that the Commonwealth Human Rights legislation would apply to the State of Victoria and without analysing the legal personality of the current Respondent it is clear that that legislation ensured that the present claim could proceed.

5. The Applicant was born on 9 December 1967 and is now currently

35 years of age. The Applicant had been employed by the Respondent as a prison officer from 25 September 1989 until retirement on the ground of disability on 1 September 2000.

6. In her affidavit material the Applicant deposes that she is unable to work because of injuries she received at work and because of the medical condition called fybromyalgia. She has been in receipt of a full disability pension and regarded as permanently unable to work since September 2000. She also receives a disability support payment from Centrelink.

7. The Applicant had completed her Higher School Certificate in 1985 and had unsuccessfully applied to join the Federal Police Force. Employment as a police officer had been a childhood ambition of the Applicant and after her rejection as a police officer in the Federal Police Force she worked for a short time as a secretary and then in 1989 applied for the position as a prison officer with the then Department of Justice.

8. The employment background is further set out in the contentions of fact and law of the Applicant wherein it is noted that in December 1989 after completing initial training the Applicant was employed at the Melbourne Remand Centre (the MRC). In about June 1990 the Applicant sat and passed the Senior Prison Officer's test. After passing that test she performed higher duties as a Senior Prison Officer at the MRC. In about January 1994 the Applicant applied for the position of Prison Officer Unit 9 (Intensive Programs Unit). The application was successful. The Applicant performed her duties in that position and it is stated enjoyed her work as a Prison Officer. By 1994 it is claimed that the Applicant had established a basis for a long term career with the Respondent with opportunities for advancement in the prison service.

9. The Applicant claimed to have enjoyed the duties offered by the employment as a prison officer and referred to the work as both interesting and varied. She performed higher duties or what was described as "acting up" on a number of occasions. As a result of her prison service she was able to save enough money to place a deposit on a home and to fund a mortgage.

10. In January 1997 the MRC was renamed the Melbourne Assessment Prison (the MAP). It is managed by CORE the Public Correctional Enterprise (CORE) which is a service agency within the Department of Justice of the State of Victoria. The Applicant was employed at the MAP when she ceased work in about July 1997.

11. During the course of her employment the Applicant suffered injuries which were the subject of WorkCover claims.

12. On 2 September 1993 the Applicant received an electric shock while conducting a routine search of a cell at the MRC (the first injury). Following this incident the Applicant complained of pain, migraine like headaches, muscle spasms in her neck, back and shoulders and chest and leg pain.

13. On about 21 October 1994 the Applicant allegedly injured her left knee in the course of her work at the MRC (the second injury).

14. On or about 23 October 1994 the Applicant fell heavily on the left side of her body while attempting to negotiate the back steps of her house using crutches for the left knee injury and injured her left shoulder (the third injury).

15. Following the left shoulder and left knee injury the Applicant claimed to have experienced severe pain in her neck, shoulder, chest, back and leg.

16. A diagnosis by the Applicant's general practitioner Dr Ian Calcutt referred to her condition as myofascial pain syndrome in her left upper back and later referred to the diagnosis as fybromyalgia.

17. A further incident occurred on 18 January 1996 when the Applicant was allegedly struck in the back by a heavy door during a parade at the start of her shift at the MRC.

18. Following the incident of 18 January 1996 the Applicant claimed that she experienced consistently increased pain and exacerbation of her condition.

19. The Applicant claims that at all relevant times from October 1994 the myofascial pain syndrome and/or fybromyalgia suffered by her constituted a "disability" for the purposes of the Disability Discrimination Act 1993 (Cth) (the DDA).

20. In about October 1994 the Applicant submitted a WorkCover claim in respect of the knee and shoulder injury she suffered in that month. The first claim was accepted by the Respondent's WorkCover insurer.

21. On or about 12 October 1996 the Applicant submitted a second WorkCover claim arising out of the incident alleged to have occurred on 18 January 1996. That claim was not accepted. On or about

8 January 1998 the Applicant submitted a third WorkCover claim said to have arisen from a discussion with her supervisor Mr Frost on

16 July 1994. That claim was not accepted though it is noted that on 17 July 1997 the Applicant's doctor certified her as being unfit for any work duties and she remained unfit for work duties from that date until retirement on the ground of ill health on 1 September 2000. It is understood that although compensation was paid apparently under the Accident Compensation Act a common law claim remains outstanding.

22. It is asserted by the Applicant that in or about August 1997 she had attempted suicide by taking an overdose of medication. An earlier incident on 28 February 1996 had also occurred according to the Applicant's claim when she likewise attempted suicide on that occasion by taking an overdose of Temazepam sleeping tablets.

23. The claim as it unfolded at the hearing and which is substantially consistent with the original complaint to HREOC may be identified in general terms as a claim for direct disability discrimination as defined in s.5 of the DDA. The Applicant relies upon the appropriate test which I accept for determining whether less favourable treatment occurred because of the disability being the "but for test" referred to in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 32 per Toohey J and at 63-4 per Kirby J. It is said that the less favourable treatment is referable to behaviour that is directly connected with a disability is less favourable treatment because of the disability (McNeil v Commonwealth of Australia [1995] HREOCA 9; (1995) EOC 92-714, 78-367). Reliance is also placed appropriately upon s.10 of the DDA which provides that if one of the reasons for the act was the Applicant's disability whether or not it was the dominant or substantial reason then the act is taken to be done for that reason.

24. A number of instances are referred to during the course of the Applicant's employment with the Respondent and it is convenient to list those instances in accordance with the Applicant's Outline of Submissions and note at the outset that the matters which are now the subject of this claim are substantially the same as those raised before HREOC though some of the earlier claims have not been pursued. The claims relied upon may be listed as follows:-

* Allocation of duties after first return to work - 14 November 1994

* Transfer to Sheriff's Office - alternate duties - 9 February 1995

* Counselling over sick leave record - February 1996

25. The claims will be dealt with in the light of the evidence and it is noted the Applicant relies upon s.123(4) of the DDA to assert that the Respondent is vicariously liable for the conduct of its employees unless it can establish that it took reasonable precautions and exercised due diligence to avoid that conduct.

26. In addressing reliance by the Respondent upon s.47 of the DDA namely that some of the conduct complained of was done in direct compliance with the Corrections Act 1986 (Victoria) so it could therefore not be unlawful by reason of s.47 of the DDA, the Applicant asserts from the outset that the exemption created by that section should be construed narrowly. In any event it is asserted by the Applicant that none of the conduct which is the subject of the complaints was specifically required to be done pursuant to the Corrections Act nor was it was necessary conduct to comply with the provisions of that legislation.

27. The claim for loss and damage in brief terms is said to be one which would indicate a substantial award of damages at the higher end of the range for the psychological injury said to be either depression and post traumatic stress disorder or adjustment disorder with anxiety and depression together with anger, humiliation and distress.

28. Although initially confining the claim to psychological damage said to have occurred as a result of the discrimination it was made clear in the course of the evidence of the Applicant that she wished to claim for "non economic loss" which it was asserted is in the present case a broader claim than simply relying upon psychological damage. No claim was made for loss of income.

Allocation of duties after first return to work - 14 November 1994

29. The Applicant claimed that Dr Calcutt her treating general practitioner had advised that she would be able to return to work on 14 November 1994 though on alternative duties. It is claimed that as a result of a conversation between Governor Herron and the treating general practitioner a proposal was put forward by the Governor that the Applicant be placed in a telephonist's position as the Governor was then going on annual leave. Certificates from the doctor were produced. The first dated 11 November 1994 refers to the injury as being "left knee and left shoulder injury" and the diagnosis is "soft tissue injury left knee, myofascial pain left shoulder and left side of neck". The work restrictions are stated to be, "alternative duties as discussed". Reference is made to no lifting of more than 10 kgs and with 5 minute rest breaks each half hour if needed. The Applicant was certified fit for alternative duties from 14 November 1994 to

27 November 1994. On that certificate there seems to be an assertion which appears somewhat inconsistent that the Applicant is unfit for "any work duties until 25/11/1995". A certificate dated 22 November 1994 refers to the same injury and a similar diagnosis though on this occasion reference is made to "left trepisias muscle" in lieu of "left side of neck". The same work restrictions are imposed. A certificate dated 16 December 1994 refers to the same injury and a similar diagnosis with work restrictions being referred to as "minimal use of stairs, no repetitive movement left arm". A certificate dated 1 January 1995 refers to an injury being "continuing pain in left shoulder and chest" and refers to the Applicant being expected to be fit for normal duties from 4 January 1995. That certificate was issued by the Werribee Mercy Hospital and is not a certificate issued by Dr Calcutt. The next certificate from Dr Calcutt is dated 4 January 1995 which refers to the same injury of left shoulder and left knee and the diagnosis states "acute flare up of myofascial pain syndrome left upper back". No details are provided for work restrictions in that certificate. A certificate dated 9 January 1995 from Dr Calcutt refers to the same area of injury and the diagnosis is "myofascial pain syndrome left upper back". Work restrictions on that certificate are "minimal use of stairs, no repetitive use of left arm".

30. In addition to the certificates the Applicant exhibited a letter dated

12 November 1994 from Ms Helen Pearce, a return to work coordinator with the Department of Justice which states in part, "Information received from your treating practitioner indicates you are fit to resume work on a full time basis." An offer is made for modified duties structured to "ensure that consideration is given to your medical condition". Details are then given of duties at a telephone switchboard with restrictions in accordance with the treating doctor, physiotherapist and chiropractor to continue as required. Those duties were said to commence on 14 November 1994 with the first day of duty to be 15 November 1994 until review by the treating doctor. The arrangement is purportedly signed by Ms Pearce, Mr Herron the Deputy Governor, the general practitioner and the Applicant. The Applicant states that she was on light duties as the prison telephonist on 15 November for two weeks. She then started annual leave on 27 November until 10 December 1994 and did so according to the Applicant because James Doran the WorkCover Coordinator who according to the Applicant's affidavit said something to the effect that there were no light duties available for me and that I should take annual leave which I did. The Applicant states, "I now believe this was unfair and discriminatory as there were light duties posts available." The Applicant claims on her return to work the pain was unbearable and she had to take further sick leave on 19 December 1994. The Applicant claims that it was on her return to work in December 1994 that her problems commenced with the employer because she claims the employer did not adhere to the medical restrictions referred to in the WorkCover certificates issued by the Applicant's treating doctors. She claimed to be still suffering from pain in her knee which was still strapped as well as ongoing symptoms to the shoulder. She claims to have been rostered into positions at work which aggravated her position and produced roster sheets showing that she was allegedly rostered to positions which required repetitive use of her left arm and as a result she suffered severe chest pains at work. By way of example the Applicant referred to rosters on 31 December 1994 and 1 January 1995.

31. In her evidence the Applicant referred to the alternative duties including the telephonist position as being positions without prisoner contact and that this was not the designated ruling of her doctor. She claimed that she had to repetitively use her left arm when placed in a position in the minor control room in the prison. This would control movement of prisoners from one level to another, such as a gymnasium to a medical unit or education unit. The number of prisoners moving through the minor control room would vary with 50 some days and sometimes up to 200 movements within a few hours. The Applicant said she could not use her right arm to undertake this task to operate door buttons and then turn back and scan identification numbers. She agreed that the prison officer foyer duties involved processing the prison information using a keyboard but did not have to use her left hand for that processing as she is right hand dominant. The Applicant denied having any difficulties involving keyboard operation and that that was not a medical restriction at the time.

32. In relation to this issue evidence was given by Dr. Calcutt who adopted medical reports dated 17 April 1997 and 5 July 2001. The doctor also examined a series of work cover certificates. These covered the period starting 2 November 1994 and ending 4 May 1995. The doctor referred to the diagnosis of the Applicant as being "myofascial pain syndrome in her left upper back". When asked how that would impact on the ability of the Applicant to undertake duties of a prison officer the doctor stated, "That is a rather difficult question because I am not - I have to imagine what her day as a prison officer would be." When specifically asked what affect the pain syndrome would have on the Applicant's strength in her upper body the doctor stated, "Not a lot - I mean using the upper body might cause pain but actual strength I don't believe was diminished."

33. The doctor indicated that he would have been concerned if the Applicant had to do any restraining if an emergency happened, "whether she might have injured herself more". He noted that there was an agreement that the Applicant would work on the switchboard initially. He did not see any problem with the Applicant working in relation to the checking of vehicles. The return to work program which had been outlined appeared to be "plausible at the time" according to Dr Calcutt. It is noted that in a number of the work certificates under the heading "Work restrictions" reference is made to "alternative duties as discussed, no lifting > 10 kgs, 5 min rest break each half hour if needed".

34. In evidence the doctor referred to the report dated 17 April 1997 and in particular the record which provides, "Mary is unhappy with the way she was accommodated at work and with the lack of any rehabilitation". He agreed that would have related to the period 1994 and 1995 even though a later incident occurred in 1997.

35. Under cross-examination Dr Calcutt agreed that he had never been inside a prison and stated, "I wouldn't say my knowledge is deep". The restrictions placed upon the Applicant at work he agreed were "fairly general, it wasn't specific to the job task". He agreed that the Applicant commenced the position as a prison officer with apparently high expectations. He was unable to recall the diagnosis of post traumatic stress syndrome prior to that diagnosis being made by Dr Hacker, a psychiatrist. He agreed however he would not be surprised of that diagnosis following at least one of the incidents, that is the incident relating to the electric shock. Dr Calcutt agreed that he may have suggested that fybromyalgia was a possibility but conceded that such a diagnosis was beyond his expertise. He had no recollection of any discussion with Governor Herron of the prison concerning specific alternative duties on the switchboard for the Applicant though presumed that he had spoken to somebody at the prison. In the material set out in the clinical notes of the doctor, reference was made to what he described as a number of stressors including a relationship break up, a concern about losing her house together with the Applicant's concern at that time regarding her mother who had cancer. Those notations were made on or about 17 November 1995. In general the doctor agreed that the Applicant had a perception of discrimination and had felt disappointed and disillusioned by the medical profession in general after seeing a number of medical specialists. He stated she was "definitely disillusioned with her employers and the medical profession". He agreed that he had only commenced seeing the Applicant from 2 November 1994.

36. During the course of re-examination Dr Calcutt in referring to an overdose of the Applicant in August 1997 agreed that it was related to the Applicant's anger. He stated that at that stage the "biggest issue was the way she had been treated at work". He referred to "one particular incident where she was reprimanded by one of the Governors for not pulling her weight and she did not agree with that". Dr Hacker in evidence referred to expertise in diagnosing post traumatic stress disorder (PTSD) and under cross-examination stated that she thought that that condition was related to the Applicant's perception that she was discriminated against. She then stated that the fybromyalgia - the pain syndrome arose as a result of the electric shock and agreed that when considering whether there was a threat to life as a result of discrimination of a kind that might be relevant for the DSM-IV stated "There is certainly a threat to her well being but no threat to life". The initial injury which helped her develop fybromyalgia was the electrocution and the "pain that then caused her to in her view be discriminated against". In further evidence Dr Hacker agreed that fybromyalgia was not her area of expertise and was a matter for a rheumatologist. Dr Hacker also stated that when referred to the history in the affidavit of the Applicant of events after the electrocution which had occurred on 2 September 1993 which included a reference to increasing difficulty in coping at work and the physical symptoms starting to cause psychological problems with debilitating headaches that she did not get that history from the Applicant.

37. In relation to this issue Dr Hacker who gave evidence referred to in other parts of this judgment agreed that the Applicant was angry because she had been offered rehabilitation which involved a cut in wages.

38. The Respondent called evidence from Ms Helen Pearce in relation to the return to work issue. Ms Pearce referred to the WorkCover Authority and stated that officers in receipt of WorkCover benefits have access to that authority and that there is a WorkCover officer stationed in the staff office. She stated that the Respondent at all times had in place systems and procedures to guarantee employee rights and prevention of discrimination on the grounds of disability or otherwise and that the Respondent had at all times adhered to medical restrictions placed on employees by their doctors. In particular she stated that "At no time is an officer to be discriminated against because of disability. The officer with a disability is free to choose positions they may work in. They are free to voice positions they are unable to work in. They have that freedom to - there are procedures in place for people with disabilities who feel they are - they have been unfairly treated." She acknowledged a need to take into account medical restrictions when preparing rosters. The responsibility is on the officer to advise in relation to any difficulties in performing rosters or shifts. She stated that the Respondent has quite a few officers on alternative duties and that has always been the case. Modified duties are referred to on a WorkCover certificate and that certificate is handed to the staff office so that the WorkCover officer can manage the claim. In November or December of 1994 Ms Pearce was aware that the Applicant had restrictions which involved not using her left arm repeatedly. She was also aware that there was to be minimal use of stairs. She agreed with the alternative light duties as stated by Governor Herron in his affidavit where he stated that, "In November 1994 the light duties positions were telephonists, prison office foyer, sally port minor control room, sally port searcher, level 2 minor control room, level 3 minor control room, level 5 minor control room, prison officer level control room and prison officer vehicle gate." She agreed that those positions would not involve prisoner contact. When asked the basis upon which she had stated that the Applicant could not be placed in a position where there was prisoner contact Ms Pearce stated, "It is a duty of care position. It is something I personally would have done on the rosters had I made an adjustment for her on the rosters." She further stated that "To protect her it may not have been the best thing to put her in a position where she had prisoner contact and may have had to respond to an incident and further harm herself". She explained the issue of supervision as not referring to direct supervision and stated officers are very rarely placed in a situation where they would be described as working "one out". Other reference was made by Ms Pearce to restrictions including the need for using stairs when undertaking vehicle checks and difficulties with constant keyboard operation and conceded that the position in the prison foyer would not involve constant keyboard operation but rather occasional use of the keyboard.

39. It was submitted by the Applicant that on the return to work issue the telephonist duties were consistent with the medical restrictions and that for reasons not fully explained the Applicant was not rostered to that position from December 1994. Instead the Applicant was rostered to other light duties described by Mr Herron. These were inconsistent it was submitted with the medical restrictions known at the time. Despite requests to change to more suitable posts the Applicant continued to be rostered to these duties said to be unsuitable which were then claimed to aggravate the Applicant's condition. Other restrictions imposed by the Respondent included a restriction on prisoner contact or imposed in addition to the medical restrictions and had effectively limited the Applicant to designated light duties. It is submitted that by rostering the Applicant to unsuitable posts the Applicant was then required to perform duties which officers without her medical restrictions could perform, which were not reasonable in the circumstances and which the Applicant was not able to perform. Each of these requirements constituted indirect discrimination pursuant to s.6 of the DDA. It was further submitted that by rostering the Applicant to unsuitable posts following her first return to work she had been the subject of both direct and indirect discrimination on the ground of her disability in the conditions afforded to her in breach of s.15(2)(a) of the DDA and subjected to a detriment in breach of s.15(2)(d) of the DDA.

40. The Respondent submitted in relation to the return to work that the contraventions were denied. The restrictions imposed between December 1994 and February 1995 were imposed on the basis of the medical restrictions and knowledge of the prison environment which it was submitted the treating medical practitioner did not possess. Despite the Applicant being aware that she could complain about designated duties she did not complain about being rostered to a position other than a telephonist position or any of the other positions in the period December 1994 to February 1995. The dispute in relation to Mr Coates is a separate issue. Reference was made to the only complaint recorded by the treating doctor from the Applicant at the relevant time and it dealt with a pay issue and it was noted that there was no other record of any complaint until 1997. The complaint concerning pay was recorded on 19 January 1995 and arose from a dispute about the pay office docking pay because of a strike day when the Applicant was off work on workers compensation.

41. It was submitted by the Respondent that the Court should find that the Applicant did not complain about being rostered to any position that did not comply with the restriction that she wanted to perform. It was submitted the Applicant was not "required" to perform the rostered shift nor was it a condition that she do so. Instead it was a flexible roster and according to the evidence a person with a disability could always be accommodated. It was submitted this was not a detriment but was rather a positive aspect of the employment for the Applicant who had enjoyed her work and otherwise would not be able to attend work unless she was fully fit. The return to work agreement it was submitted did not prevent the Applicant performing any work she wanted to perform. What occurred was reasonable in the absence of any complaint and the fact that the Applicant performed duties without complaint was good evidence according to the Respondent that the Applicant was able to perform those duties. The allegation of aggravation of injuries had not been established and the Applicant had not established that other light duty posts were available at the relevant time. Having moved her shifts to suit herself, it was submitted the Applicant could not now complain that the Respondent had contravened any provision of the DDA.

42. In my view the Respondent's submissions are correct. The claim for discrimination arising out of the provisions of the DDA did not appear to arise contemporaneously with the return to work program. Although there may be some criticism of the range of work available and to some inconsistency between the medical restrictions imposed and the work allocated, I am satisfied that the work so allocated was provided by the Respondent in discharge of its duty of care to an injured worker and that in those circumstances the Respondent is perfectly entitled to rely upon the knowledge it has of the work place requirements combined with the work restrictions. The discrimination legislation should not be used as an alternative vehicle to pursue a grievance in relation to the rehabilitation which is an integral part of the workers compensation process. That process involves consideration of return to work agreements based in part on medical evidence and in part on availability of alternative duties which would enable a worker who otherwise may be unable to work at all to at least participate in alternative tasks whilst recovering from injury.

43. I am satisfied on the material before me that the Applicant has retrospectively chosen to dwell on this issue when at the time she failed to make any contemporaneous complaint.

44. The issue of whether the Respondent has contravened the DDA should be viewed in the context of the requirements placed upon the employment under the Accident Compensation Act 1985 which provides a duty for employers to ensure that workers are safely employed and returned to work. It is not simply a matter of placing a worker in a position consistent with medical restrictions but rather considering the placement of a worker in a situation where having regard to the injuries there would be a minimum risk of further injury. I do not accept the evidence of the Applicant that the duties allocated to her had aggravated her condition or were duties which she was unable to perform as a result of her duties or that she was in any other way the victim of discrimination in her return to work rosters.

45. For those reasons I do not find that in relation to the return to work allegations that a claim has been established.

46. Having found that there is no basis for a claim of unlawful discrimination in relation to the return to work events, I should add for the sake of completeness that I am not satisfied that s.47 of the DDA would otherwise apply in the present circumstances. I am not satisfied that the conduct of the Respondent could be said to be conduct which would be conduct undertaken by the Respondent in "direct compliance with another law". The general nature of the conduct, whilst no doubt complying with the requirements of the Respondent to properly administer prisons as a public correctional enterprise and service agency within the Department of Justice of the State of Victoria, does not of itself provide a sufficient basis which would enable s.47(3) to apply to this application. I am mindful of the fact that the Corrections Act 1986 and regulations made thereunder place upon the Governor of the prison duties and obligations which relate to security and welfare and officers, subject to directions (see ss.19, 20 & 21). However compliance with that Statute as indeed the Respondent is required to comply with the Accident Compensation Act 1985 does not of itself constitute direct compliance with a law which would otherwise attract the operation of s.47(2) and (3). To do so would be to ignore the reality of the general nature of the allegations in this matter though of course if part of the response in the matter includes compliance with the law then that would be relevant but not determinative of the merits of the application. Where part of the conduct of a Respondent may be said to be compliance with the law but forms only part of the overall conduct then it would be inappropriate to then excuse all of the conduct of the Respondent in a claim for unlawful discrimination.

47. In any event it is unnecessary for me to further consider the operation of s.47 of the DDA as I have found on the facts that there is no unlawful discrimination arising out of the return to work allegations.

48. The Applicant claims that on 17 January 1995 she had protested to

Mr Coates about the rostering. She claimed that Mr Coates was unsympathetic and said words to the effect of "What the fuck can you do then?". That incident according to the Applicant upset her greatly and she consulted her medical practitioner who gave her a certificate for the next four days. The Applicant relied upon a diary note of

17 January 1995 where she had written the words allegedly uttered by Mr Coates. After this incident the Applicant apart from taking four days off due to a medical certificate then had two weeks off work as part of her recreation leave. She claimed that at that stage she felt she had lost all support from the staff office and that this had an "enormous effect on my ability to continue to work as they controlled the rosters and my WorkCover entitlements". The Applicant then claimed that she requested the Governor to allow her to see a prison psychologist which she did on 9 February 1995 and was advised to seek counselling.

49. It was claimed by the Applicant that following this incident Mr Coates refused to provide her with a print out of her leave entitlements in response to a request.

50. The conduct of Mr Coates was claimed to be sufficient to constitute direct discrimination against the Applicant on the ground of her disability and in contravention of s.15(2)(a), (b), (c) and (d) of the DDA and in the alternative that that conduct constituted harassment of the Applicant in relation to her disability in contravention of s.35(2) of the Act.

51. Mr Coates gave evidence in relation to the incident and denied using the words alleged. He agreed in evidence that the comment if made would be offensive. During cross-examination Mr Coates was referred to a letter dated 5 January 1999 from the Respondent to the Equal Opportunity Commission where the specific issue was addressed. In that letter the author states the following,

"Mr Coates has no recollection at all of making such a comment, and certainly denies that he would have made the comment maliciously or to denigrate Ms McBride. If he made a comment, he says, it would have been asked somewhat rhetorically and while at a loss to know what might be able to be arranged for her."

52. When asked questions about that response Mr Coates agreed that although not familiar with that response he agreed that that contains everything he could remember at that time and claimed that he still could not recall saying those words to the Applicant. The witness was shown the entry from the diary of the Applicant (Exhibit 29 and also Exhibit 50 to the Applicant's affidavit). Some confusion occurred during the course of his evidence having regard to the numbering of the Applicant's affidavit and duplication of exhibits incorporating the diary notes of the Applicant. Mr Coates was taken to his own affidavit where he states in relation to the diary entry the following,

"... I refer to MEMcB-29 being diary entry for 17 January 1995. It appears the Applicant had at 2 pm on that date a physiotherapy appointment and would as a result attend work at 3 pm or 3.15 pm on that date on the first watch. It appears that this is the date she alleges an incident occurred. I would normally go home at 3.30 pm. At that time in the afternoon my major responsibility was to ensure the prison was fully staffed and running for the next day. It was a very intense task and I could not do it if distracted. The Applicant said on 17 January 1995 that some time after 21 January 1995 she was rostered in a position that was inconsistent with her WorkCover documents. I said that I was busy and would she please fill out an exchange of duty form for any dates where she had difficulties with the roster. I recollect that she just left when I said that to her. At the time I was aware her restrictions of work as appears in MEMcB-22. ..."

53. Questions were asked of Mr Coates concerning difficulties created by the Applicant in relation to the roster and the following extract is relevant to note,

"A staff member coming to you and saying, `well come and look I can't do this job because of my restrictions and I can't do that job because of my restrictions,' was creating a difficulty for you. Would you agree with that? --- I would agree that that would be the case."

54. The witness did say after further questioning that it would not be true to say that the Applicant had become particularly difficult. He did not have any clear recollection of being overly frustrated with the Applicant on that day. He then further denied uttering the words alleged.

55. It was submitted by the Applicant that her evidence should be accepted over Mr Coates denial and that her evidence is supported by her diary entry of 17 January 1995 and the roster produced in evidence for that day. It was submitted that but for the disability the incident would not have occurred and that the disability was the reason for the conversation and the inability to do the allocated duties resulted in the alleged outburst from Mr Coates. If uttered, the words should be found to be less favourable treatment and amount to discrimination in employment in the conditions of employment afforded to the Applicant in breach of s.15(2)(a) and by denying the Applicant quiet enjoyment of her employment which should be a benefit associated with the employment (see R v Equal Opportunity Board; Ex parte Burns [1985] VicRp 31; (1985) VR 317) and that this would be in breach of s.15(2)(b) of the DDA. It was further submitted that by subjecting the Applicant to a detriment this constituted a breach of s.15(2)(d). In the alternative it was submitted that the conduct amounted to harassment in relation to the Applicant's disability in breach of s.35(2) of the Act.

56. The allegation that Mr Coates refused access to the Applicant's records was only supported by one other witness and not supported by the Governor or indeed two other witnesses called by the Respondent. The Court was invited to infer that Mr Coates refusal to give the Applicant the information was due to her disability.

57. It was submitted on behalf of the Respondent that the Court should accept the evidence of Mr Coates denial in relation to using the alleged words. Further submissions were made in relation to the phrase if used should be regarded as a question with the expletive held to be what was described as "an intensifier". It was submitted the probable scenario was that the Applicant left the change to the last minute because she was under the belief that she was fully fit for the post. As a result of the pain she decided she could not work the post and approached Mr Coates who was working to staff the prison in circumstances described as "an intense time for him". It was submitted that the Court should find that Mr Coates looked in the book and asked her fill out the exchange of duty form for a post that she could work and because of her pain the Applicant became angry that he had made that request and left.

58. In my view it is perhaps not surprising that Mr Coates does not have a clear recollection of uttering the alleged words. It is common ground that the process undertaken by him at the material time would involve a significant degree of pressure in organising rosters for the next day for the prison officers. This does not appear to me to be a case where credit is significantly in issue for either party as Mr Coates on the one hand does not have a recollection of making the statement though an attempt was made to explain the circumstances if the statement was made.

59. It is significant that the earlier response to the allegation involves a suggestion that Mr Coates had no recollection of making the comment and then denies that he would have made the comment maliciously or to denigrate the Applicant.

60. Having regard to the diary note of the Applicant and that it coincides with difficulties in the roster produced in evidence, I find as a matter of fact that Mr Coates did utter the words alleged.

61. If words of that kind are alleged by a responsible officer to a worker then suffering injuries requiring restricted duties and adjustment to rosters then in my view it is proper to conclude that the uttering of those words should be found to be as a consequence of the disability then suffered by the Applicant. To that extent I am satisfied that the Applicant has been treated less favourably than a person would be treated without a disability and that this conduct in the circumstances can properly be found to be unlawful discrimination in contravention of s.15 of the DDA. I am satisfied that the conduct as found by uttering the words in the circumstances claimed is sufficient to constitute a denial of the Applicant's quiet enjoyment of her employment which I find to be a benefit associated with the employment for the purposes of s.15(2)(b) of the DDA. I am further satisfied that the conduct is sufficient to constitute what would properly be described as "any other detriment" contemplated by s.15(2)(d) of the DDA. I do not believe that the conduct could properly be said to be part of the terms or conditions of the employment, that the employer afforded the Applicant and therefore do not find a breach of s.15(2)(a) of the DDA.

62. I am further satisfied for the reasons referred to in paragraph 46 of this judgment that s.47 of the DDA would not apply as a defence to this claim.

63. I further accept that it is not necessary for the Court to find that Mr Coates intended to discriminate against the Applicant when he uttered the offensive words.

64. Specifically the finding I have made does not in my view require the Court to consider whether or not Mr Coates had acted in a way consistent with legislation or in any other way acted in a manner which would provide a defence for the Respondent. To conduct himself in that way could not possibly be regarded as discharging his duty under any other law or that it somehow could be regarded as conduct relevant to ensuring security in the prison.

65. This incident is alleged to have occurred on 14 February 1995 when the Applicant attended the staff office and handed WorkCover certificates to Mr Doran with a request that he take care of them for the Applicant. After handing the certificates to Mr Doran the Applicant alleged that Ms Grech shouted at her "Why don't you take care of them yourself Mary seeing as you are so efficient?" The Applicant claims she then picked up the paperwork and then stated, "I will then". The Applicant claimed that she then left the staff office with Ms Grech following her and entered the locker room and claimed she kept hearing Ms Grech call her name. The Applicant did not respond and did not approach Ms Grech and claims to have been very upset about the incident. She claims that she then informed staff that she was leaving and when attempting to exit the building was again confronted by Ms Grech in front of Mr Penny yelling. "Governor Herron wants to see you because I have complained about .... Where are you going? Governor Herron wants to see you". It is claimed that Mr Penny was on the switchboard at that time endeavouring to get relief officers for those who were to take part in a fire arm exercise that day. The Applicant claimed that Ms Grech behaved to her in that manner due to the Applicant's need for restrictive duties and that she had become a problem for Ms Grech and her department. It is claimed this is why a complaint was lodged about her to management. The Applicant claims that she was distressed by the incident and reported to her doctor. She further claims that during the same period she had had trouble with Mr Doran in relation to documents which had apparently been mislaid. She believes that was the reason why Ms Grech made a "caustic reference to (the Applicant's efficiency)". The Applicant claims that after this incident she had further difficulty with accessing leave entitlements.

66. It was submitted by the Applicant that the conduct referred to in relation to Ms Grech constituted direct discrimination against the Applicant on the ground of her disability and thereby contravened s.15(2)(b) and (d) of the DDA or in the alternative constituted behaviour where it could be said that the Applicant had been harassed in relation to her disability in contravention of s.35(2) of the DDA.

67. Evidence was given in relation to this issue though Ms Grech was not called to give direct evidence. Instead evidence was given by Mr Doran and Mr Herron and neither were cross-examined about the issue. It was submitted therefore by the Respondent that the allegations do not establish the contravention as claimed. There is no suggestion that Mr Doran refused the request to deal with the documentation and the reference to the Applicant being efficient is not sufficient to substantiate the claim.

68. Whilst the Respondent anticipated this claim would be abandoned it was not abandoned and indeed was pursued. Criticism was made of the Respondent's failure to call Ms Grech and to that extent the evidence of the Applicant stands.

69. Whilst I accept that the assertions made by the Applicant stand as uncontradicted evidence, I am not satisfied that that evidence is sufficient to constitute breach of the provisions as claimed under the DDA. In my view the evidence of the Applicant does no more than to demonstrate that there were certain tensions within the office and I am not satisfied however that the filing of documents and/or dealing with the material lodged by the Applicant could amount to anything other than administrative difficulties. Those difficulties do not in my view provide a proper basis for a claim of discrimination. Claims in relation to discrimination and breaches of the DDA are serious matters which effectively involve conduct of unlawful activity as defined in the relevant legislation. In my view having considered the evidence and notwithstanding the failure of the Respondent to call Ms Grech, I am not satisfied that the material provides sufficient evidence of contraventions. I accept the Respondent's submissions that even if true the allegation that Ms Grech called the name of the Applicant and/or told her to deal with the forms herself would not be a sufficient basis to lead to a conclusion that there had been a breach of the relevant provisions of the DDA.

Transfer to the Sheriff's Office - alternate duties -

70. In February 1995 the Applicant was offered alternative duties at the Sheriff's office. The offer was set out in a letter dated 9 February 1999 from Mr Doran of the Respondent (although signed by Ms Pearce).

It is relevant to set out part of the letter as follows:

"Medical information indicates you are fit to continue work on a full time basis on modified duties.

I am pleased to formally offer you modified duties at another location which are structured to ensure that consideration is given to your medical condition.

In accordance with the instruction of your treating doctor, physiotherapy will continue as required. Your work restrictions - minimal use of stairs and no repetitive use of left arm - have been taken into consideration in this job offer."

71. The letter further notes that staff at the MRC would continue to have responsibility for processing leave credits and any administrative aspects of the Applicant's WorkCover claim. The letter was signed by the Applicant, her medical practitioner, Ms Pearce, the return to work co-ordinator, the return to work co-ordinator at the alternative work place and by the Deputy Governor.

72. In her evidence the Applicant claims that she advised Ms Pearce that she would have to decline the offer due to personal and financial reasons. The position she claimed did not include any penalty rates or overtime and would constitute a financial detriment which the Applicant claims she could not then afford given she had to meet mortgage commitments. The Applicant claimed that the signature on the letter to which I have referred was not her signature. The Applicant further claimed that another issue was that her then partner worked in the Sheriff's Office and the Applicant felt that would be detrimental to their relationship if they worked and lived together. The Applicant claims having told Ms Pearce she would decline the offer that she would be redeployed to the Sheriff's Office whether she agreed to it or not. The Applicant was concerned about the position and sought advice from her union. The Applicant was upset about the decision to relocate to the Sheriff's Office. When she worked there between

22 February 1995 and 7 May 1995 she claimed the work aggravated her injuries because the duties involved clerical based work which demanded predominant use of a standard computer and keyboard. Notwithstanding assistance from the Sheriff's Office in the supply of an orthopaedic chair and recommendations concerning the work station, the Applicant claimed her condition was exacerbated.

73. The Applicant exhibited a work side visit report dated 10 April 1995 from a vocational consultant/occupational therapist. That report produced a number of recommendations and noted that an orthopaedic chair had been provided to the Applicant in dealing with the work at the Sheriff's Office. The author of the report states,

"This involves largely computer based work. Mary states that she is enjoying the work at the Sheriff's Office; that it is diverse and provides her with the opportunity to be constantly occupied."

74. Reference is made as I indicated to an orthopaedic high back office chair with additional cervical support and the author states, "This is an excellent chair in that it provides full spinal support for the occupant and is adjustable to the individual's body size and shape by a tensioning at the rear of the seat. The chair enables Mary to be well positioned and supported whilst working".

75. The report identifies additional difficulties which require modification and suggest further consultation may occur if the work station problems continue to be problematic. The report does state that,

"The work itself demands static loading of postural muscles which can cause increasing tension in the neck and shoulder areas."

76. In relation to the issue of whether the Applicant signed the return to work program attached to the letter of 9 February 1995, it is useful to set out the following extract of the Applicant under cross-examination:-

"I suggest to you that in the presence of Helen Pearce and Mr Galvin on page 3 of the document which is MEMB52 you signed that document, didn't you?

There was no reason at that time though for you not to sign it, was there? --- I had refused to sign this document earlier.

But you'd decided that, despite what you say was your opposition, that you'd start work? --- Yes, I went there anyway. I had to.

And if the document was placed in front of you at that time you would have signed it, wouldn't you? --- I did not sign this. I did not sign this document. I did not want to be at the sheriff's office from the beginning. I refused to sign their document.

Helen Pearce swears that that did occur. Are you saying that she must be lying about this issue? --- I'm saying she's incorrect. She must be confusing me for one of the other WorkCover people on the project.

But she says that she there and you signed in her presence and she identifies you signing? --- I definitely did not sign this document in the presence of Helen Pearce or Brian Galvin. I did not sign this document at all."

77. The Applicant also stated in cross examination that it was correct to suggest that her doctor approving the work at the Sheriff's Office never discussed the matter with her at all or whether she wanted to return to work at the Sheriff's Office or indeed was able to do so. She agreed however that her reluctance to go to the Sheriff's Office was due to financial and relationship issues.

78. Ms Pearce in her evidence confirmed that at the time of the Sheriff's Office secondment she was then acting as a WorkCover officer and became aware of an opportunity at the Sheriff's Office for light duties for return to work officers. She confirmed in her evidence that the Applicant had a lot of reservations about the position though asserted it did not involve a pay cut. It was agreed that at the time when the offer of secondment was made to the Sheriff's Office the Applicant was not working restricted hours and accordingly if she worked over time she would receive additional payments over and above her base salary. At the time of arranging the return to work at the Sheriff's Office Ms Pearce was not aware that the Applicant's partner also worked at that office. The main concern of the Applicant expressed to Ms Pearce however was the prospect of losing her job at the prison and in her evidence the witness claimed the following:

"Once I had spoken to her and explained that it was temporary secondment, it was to give her time to heal, to give her time out, and then she could return to the prison on perhaps full duties, which is what she wanted."

79. The Applicant claimed the transfer to the Sheriff's Office again was in breach of s.15(2)(a) and 15(2)(d) of the DDA in that it constituted discrimination in the terms and conditions afforded to her and subjected the Applicant to a detriment. It was submitted that the Applicant had been compelled to accept the secondment to the Sheriff's Office. The decision to move the Applicant to the Sheriff's Office it was submitted was inappropriate as suitable duties were available for her at the prison and the Applicant should not have been considered as part of a group of prison officers to be re-located for rehabilitation at the Sheriff's Office. It was noted that the evidence from the Respondent and in particular Mr Galvin who was the return to work co-ordinator and occupational health and safety officer that if the Applicant refused the posting to the Sheriff's Office she may not have received WorkCover payments on that ground that that would be a refusal of an offer of suitable alternative work.

80. The Respondent argued that the Sheriff's Office transfer was made with the consent of the Applicant and that she did sign the return to work form. Any difference in her apparent signature could be explained by her initial anger and resentment in relation to signing the form. It was noted that evidence was given by the Applicant that she was initially advised by the union that she could not be forced to go to the Sheriff's Office without a return to work agreement. The Court was invited to conclude that the Applicant's treating doctor, Dr Calcutt had signed the return to work form after discussing it with the Applicant on the day it was signed. The Court was reminded of the evidence of Dr Calcutt that on 14 February 1995 clinical notes refer to an offer of a `rehab job' at the Sheriff's Office.

81. It was submitted by the Respondent that the return to work having been signed by the treating medical practitioner there was no reason why it should not proceed. The Applicant was not forced to accept the transfer and it was submitted he conceded in evidence that it was her perception that the law in the prison forced her to accept the secondment. The concern was financial and that she agreed that the reason she had to go was due to her obligations in relation to WorkCover payments. The Applicant had failed to establish that there were alternative light duties available at the prison which could have been allocated to her for the period February to May 1995. It was further submitted that any allegation that the transfer to the office aggravated her condition is not established.

82. The substantive submission of the Respondent is that the Applicant's needs were accommodated by the transfer and supply of other equipment including an orthopaedic chair and that she was not the only person on light duties who had been transferred. Reliance was placed on the evidence of Mr Galvin, Ms Pearce and Mr Herron that this was an appropriate placement.

83. In my view the sequence of events leading up to the job offer and return to work program at the Sheriff's Office in my view seem entirely consistent with the duty of the Respondent under the appropriate workers compensation legislation. There is a duty to offer suitable duties and in the present circumstances appropriate consultation has occurred with the Applicant's treating doctor. I do not accept her evidence that she did not discuss the matter with her doctor though I do accept that she may have been angered by the apparent temporary loss of pay over and above her base salary and may have been concerned in relation to the prospect of working at the same place for a short period of time as her current partner. None of that however would lead the Court to conclude that there has been discrimination particularly in circumstances where I prefer the evidence of the treating doctor relying upon his contemporaneous clinical note that he did discuss the transfer with the Applicant and did sign the return to work program and acknowledged that it was medically suitable. Hence there is a medically suitable alternative duties arrangement in place which accommodates the medical condition of the Applicant with appropriate restrictions and further it was the subject of ongoing revision and report by an appropriate occupational health worker who clearly reported that the Applicant was coping with the job subject to certain modifications which seemed readily available. Further ongoing monitoring was also readily available.

84. I reject the Applicant's evidence that she did not sign the return to work program as in all the circumstances there would be no reason for her not to sign having conceded that she was required in any event under the workers compensation legislation to accept an offer of suitable employment by way of rehabilitation in order to ensure that she returned to full time unrestricted duties. The difference in signature I accept may well have occurred as a result of the Applicant grudgingly signing the return to work form or doing so, as submitted by the Respondent, in a moment of anger. I am satisfied on the evidence that no other person has forged or indeed had any reason to forge the Applicant's signature. That is a serious allegation which requires a high standard of proof which is simply not on the evidence before me apparent and accordingly the appropriate conclusion to draw is that on medical advice as discussed with her doctor and having regard to her legal obligations the Applicant did in fact sign the return to work program.

85. In the circumstances it is my view that the program offered was an option offered to the Applicant and other light duties workers as part of rehabilitation and there is nothing in the material in my view which would justify reaching a conclusion that this conduct by the Respondent constituted contravention of the DDA as alleged.

86. The Applicant's complaint in relation to her return to prison in May 1995 was that she was rostered on less favourable shifts than other prison officers. She had been rostered on her return to prison to day shift on 8 May 1995. She claims to have been singled out by Governor Herron because he knew about her disability. When he challenged her in front of other officers as to where she should be working on her first day back whilst she was actually leaving work to attend a medical appointment. The allocation of shifts further constituted alleged discrimination according to the Applicant who understood a detailed analysis of her return to work and the shifts rostered which she claimed to be against normal rostering policy. The Applicant claimed that she had been unable to swap her shifts which included night shift because that is an unpopular shift and that she had been deliberately rostered on that shift due to Mr Doran's attitude to her disability.

87. This incident was claimed to be direct discrimination on the ground of the Applicant's disability by denying her quiet enjoyment of her employment in breach of s.15(2)(b) and by subjecting her to her detriment in breach of s.15(2)(d). In the alternative it amounted to disability harassment.

88. Evidence called by the Respondent included Mr Herron who has been variously referred to as the Governor but whose formal title is Prisons Operations Manager. He has over 30 years experience in prison management. In relation to the rosters he deposed that they were undertaken having in mind any restrictions which recipients of WorkCover may have imposed and that a roster would not be put in place which would be inconsistent with restrictions in a WorkCover certificate. Mr Herron denied that he had singled out the Applicant because of her disability or was annoyed that she had managed to return from the Sheriff's Office. He further denied that she was a nuisance.

89. He did claim that the incident where it is alleged the Applicant was singled out and that occurred in the foyer but did not occur in the manner described by the Applicant and his recollection is that other staff were present with her and could not recall whether the Applicant was wearing different clothing to the uniform.

90. It was submitted by the Applicant that the roster had been arranged in a way that the Applicant was required to work what was described as "double headers" which means working back to back shifts. This occurred on 10 May 1995 and a detailed analysis was undertaken of shifts thereafter. It was submitted that the rostering in this manner constituted disability in contravention of s.15(2)(a) and (d) of the DDA. It was noted that following the Applicant's return to normal duties in May 1995 she performed her normal duties for the rest of that year and into early 1996.

91. The Respondent submitted that the complaint regarding the "double header" was simply a decision made in the normal manner regarding rosters and reliance was placed on the evidence of the Applicant who when it was put to her that the "double headers" if they occurred would be rostered six weeks ahead and occurred as a result of prisoner staffing at the time to which she replied, "I guess so, yes." (transcript p.135). As the Applicant was fully fit for duties at the time there is no evidence of the contravention alleged.

92. In my view there is no substance to the claim that there has been a contravention of the DDA either as a result of the alleged singling out of the Applicant by Mr Herron or the rostering as alleged.

93. I accept the submissions on behalf of the Respondent and the evidence of the Respondent's witnesses that the rostering occurred in a normal manner and was not something which occurred in relation to any disability. In any event at the time of at least a significant part of that rostering including the "double headers", the Applicant was not then suffering from any disability. She was fully fit for duties at that time.

94. There is clearly an evidentiary dispute relating to the alleged singling out of the Applicant by Mr Herron of the Respondent but in the circumstances I prefer the evidence of Mr Herron and note that there are significant delays in relation to the details being provided concerning this complaint and that in any event I am not satisfied that there is sufficient evidence which would justify a conclusion that what occurred, even according to the Applicant's version, would constitute discrimination of a kind which would be regarded as unlawful discrimination in contravention of the provisions of the DDA as alleged.

95. On 18 January 1996 it is alleged the Applicant was struck in the back by a heavy door during a parade at the start of her shift at the prison. It is alleged that after that incident the Applicant suffered increased pain and exacerbation of her conditions. The substance of the complaint regarding counselling over sick leave records arose after this incident when the Applicant sought a day of sick leave or Workcover to receive medical treatment. It is alleged that she approached Mr Herron and advised him of the difficulty she had in coping with the pain and her requirement for medical treatment in the form of injections. The Applicant claimed that three days after that meeting she was counselled by Mr Trevor Beever, a Human Resources Development Officer.

It was claimed by the Applicant that Mr Beever had previously encouraged her to sit for examinations for promotion early in her career. On this occasion the Applicant claims that Mr Beever said words to the effect that he was concerned with the amount of sick leave and WorkCover leave that she was taking and allegedly said something to the effect that if she was sick she would require more than one day's absence with the Applicant drawing the inference that by making that suggestion she was not sick. Further reference was made to her absence causing difficulties with the overtime budget of the prison. A suggestion was made that at that time offers were being given to other officers for individual employment contracts and that Mr Beever had allegedly said something to the effect that the Applicant would not be offered a contract if her pattern of absences due to illness continued. The Applicant deposed that she took that to mean that her employment would be terminated. She then felt she had to attend work no matter how much pain she was then suffering. It is alleged that this discussion was repeated some three weeks later. The Applicant asserted that sick leave was legitimately covered by medical certificates and felt she was being threatened and treated differently to a person with no medical condition.

96. It was submitted that this counselling constituted direct discrimination on the ground of the Applicant's disability in contravention of s.15(2)(a)(b) and (d) or in the alternative that it constituted harassment in breach of s.35(2) of the DDA. It was claimed that as a result of being counselled the Applicant felt her career was under threat and shortly after that period of time she was diagnosed as suffering from fybromyalgia. On 28 February 1996 the Applicant gave evidence that she attempted suicide by taking an overdose of sleeping tablets. In March 1996 her treating general practitioner diagnosed her as suffering severe reactive depression in addition to fybromyalgia and that she was not fit for duties from 29 February 1996 until November 1996.

97. The Respondent relied upon the evidence of Mr Beever and Mr Doran. Mr Doran denied ever discussing the issue of the Applicant's sick leave entitlements with Mr Beever. Mr Beever deposed that he did say to the Applicant that he was concerned with the amount of sick leave and WorkCover and otherwise denied saying that if the Applicant was sick she would require more than one day's absence. He asserts that that would be "ludicrous" as all staff were allowed five single days sick leave without a certificate per year. He claims to have said nothing to suggest the Applicant was not sick. As Human Resources Development Officer he had a duty of care to be concerned about the Applicant and to ensure she was being well looked after by the staff office to assist her at work. He agreed he would speak to the Applicant from time to time about personal matters raised with him as this was part of his job. He recalls being told the Applicant's mother was suffering from cancer and was very sick and would ask her about her mother's progress. He denied suggesting to the Applicant that she would not be offered a contract if she was sick and that her absence was a concern to the prison. He claims that he was aware that a person's disability could be not a reason for not offering a contract to an employee. He otherwise denied allegations of further counselling the Applicant some three weeks after the initial allegation or otherwise in the manner described by the Applicant.

98. Under cross-examination Mr Beever conceded there was a government policy that as many people as possible should be moved to individual contracts but denied that he encouraged anyone to do so. Under cross-examination he denied that it was not his role to counsel staff in relation to an absentee record and stated it was not his job to do that. His main thrust was training and he was not a sick leave officer but a human resources officer. Mr Beever was questioned about a letter from the Respondent to Dr Kornan a psychiatrist called to give evidence in this application. The letter dated 22 May 2001 provided a brief background and also attached other correspondence setting out the Respondent's position dealt with earlier by the Equal Opportunity Commission. Mr. Beever was referred to paragraphs 15 and 16 of the letter dated 5 January 1999 which referred to his position and stated in part that, "One of his responsibilities was to follow up all staff members who were taking substantial numbers of days sick leave - in order to ascertain whether there were any issues which were contributing to the staff member taking time off which the President could assist with (eg. roster changes, shift changes). Ms McBride was not `counselled' over her sick leave ..."

99. Paragraph 16 of the same letter contained the following:

"Mr Beever's second conversation with Ms McBride about sick leave would appear to be the four week follow up and was certainly independent of any discussions which Ms McBride may have had with Governor Herron. She was not formerly cautioned and no record of this conversation appears on her file. ..."

100. When asked questions about the extracts from the letters Mr Beever stated he did not know anything about the letter at all and stated the following:-

"There was a concern then about sick leave, the high levels of sick leave.

... but I certainly did not talk to officers about their sick leave. I talked to people who were on sick leave asking if there was anything that we could do to help them if they had any problems."

101. Mr Beever was taken to his affidavit material and agreed that sick leave would have been mentioned but that "wasn't the thrust of the meeting". He again maintained he could not remember the second occasion when a discussion occurred. He went on to state in his evidence the following:-

"All I was worried about was if Mary had any problems that weren't being attended to, like, she could go in the staff office, if she didn't want to do a particular shift, she could have it changed and that sort of thing, which I would do if the staff office wouldn't do it ..."

102. When pressed about the issue of sick leave Mr Beever stated the following:-

"She had been taking a lot of sick leave and I - what I would do would speak to people who I knew had taken a lot of sick leave and ask them if there was anything we could do to help them because they obviously have a problem if they keep taking days off. But I certainly wouldn't say to Mary, the reason I have called you in is because you have got a lot of sick leave, or whatever. That's not - because prison officers are allowed sick leave. They are given I think ten full days and ten half days per year. They are also allowed five days uncertificated. IF somebody has got a certificate I am not a doctor. I can't say whether they are supposed to be off sick or not."

103. Mr Beever agreed that the records show that the Applicant would be on the higher scale (of those taking sick leave) and that it was a matter of concern. When pressed further on the issue he stated the following:

"I definitely did not bring up the fact that she had high levels of sick leave because I really wouldn't be aware of how high her levels of sick leave were. I knew that she had sick leave but I wouldn't know facts."

104. Mr Beever did not otherwise deny mentioning sick leave but stated he would have mentioned it "in passing".

105. It was submitted by the Applicant that the conversations or counselling over sick leave should lead to a finding that the Applicant took sick leave and WorkCover because of her disability and that but for her disability she would not have been counselled over the sick leave record. Again it was asserted this constitutes a breach of s.15(2)(a) and (d) and in the alternative an alleged breach of s.35(2) of the DDA.

106. The Respondent submitted that the discussions with Mr Beever were consistent with the role of a Human Resources Development Officer concerned about how he might assist the Applicant who had taken periods of sick leave. The Applicant was a permanent employee and it was submitted that in the circumstances Mr Beever was unlikely to be a person to raise the legitimacy of the Applicant's sickness leave or indeed budgetary issues. Any connection between the suicide attempt and the discussion with Mr Beever should be rejected and on balance the Court should find in the alternative that that attempt was related to the diagnosis of fybromyalgia.

107. In my view the evidence of Mr Beever is preferred and in any event is not altogether inconsistent with the evidence of the Applicant. In reality there is only a difference in emphasis. I am satisfied that there were at least two discussions between the Applicant and Mr Beever and that during the course of those discussions the issue of sick leave was raised. It was raised however I accept in the context of concern by Mr Beever as indicated in his evidence rather than the perception by the Applicant that it was connected to budgetary considerations or her record. The reaction of the Applicant and her perception whilst being perfectly understandable against the back drop of absences and unresolved medical conditions which had not been satisfactorily diagnosed up to that point may well provide some basis for the Applicant feeling aggrieved by the discussions with Mr Beever. However on the evidence before the Court I am satisfied that it is more likely than not that Mr Beever raised the issue of sick leave in the context of concern for the Applicant as this is consistent with his stated role and further consistent with the duty of care that the employer had towards staff who may have taken sick leave considered to be at high levels where suggestions may be made for and on behalf of the employer to alleviate the problem. I accept the evidence of Mr Beever that if there are any problems with certificates and the like he would intervene and ensure that there was due compliance. This indicates a positive and constructive role rather than the perception which I have rejected of the Applicant that this was an attack on her based upon a disability causing high levels of sick leave.

108. In the circumstances I do not find that there has been unlawful discrimination of the kind alleged arising out of this incident. It is not necessary for me to then consider whether the attempted suicide was related to this event or the unsatisfactory and prolonged process of diagnosing the Applicant's medical condition.

109. The discrimination claim arose on 16 July 1997 where the Applicant deposed that she had been discriminated against by her then supervisor Mr Max Frost. The Applicant claimed that on that day she had to complete tasks usually attended to by four staff members due to short staffing. The supervisor was not present and 15 prisoners had arrived who needed to be processed. The Applicant claimed she completed the paper work for the prisoners and despatched them to the doctor after having worked through her lunch break with a co-worker Eric Brown. The Applicant said that she took advantage of a break in the process to attend the medical unit to obtain pain killers for herself. She asked her colleague to cover for her and passed on all paper work and relevant information to him. The Applicant claimed she was away from the work place for approximately 10 minutes and did not advise her supervisor. On her return the supervisor was present and asked why she had not completed more assessments and asked where the Applicant had been. The Applicant explained that they had been short staffed and she had been to the medical unit for about 10 minutes in order to obtain pain killers for herself. The Applicant claims that Mr Frost said something to the effect that he could see that she was in considerable pain and the Applicant replied, "Yes Max, its no different to any other day". The Applicant then states that Mr Frost asked whether or not she thought she should come to work when she was in pain and the Applicant told him something to the effect that she had to keep trying to come to work because I am stuck with the pain. The Applicant then stated that her supervisor adopted what she describes as an `unsympathetic attitude' and then further said something to the effect to the Applicant that did she not think she was being unfair to her work mates because "they have to carry me". The Applicant became upset about the remarks and considered that she had been persisting with work despite the pain but without support from her superiors in relation to her disability. The Applicant then stayed home for a few days in order to recover from this incident and claimed to be so upset that she then took a further overdose of medication in or about August 1997 and was hospitalised. The Applicant claims the overdose was a direct result of the treatment by her colleagues and claims that since August 1997 she has been unable to return to employment and claims to have suffered from anxiety attacks, depression, thoughts of suicide, chronic pain, chronic fatigue syndrome, insomnia, migraines and fybromyalgia. The Applicant now claims to be permanently disabled.

110. Mr Frost in his evidence deposed that he had been a prison supervisor at the relevant time with approximately 30 years experience in corrections. He retired on 4 December 1997. He agreed that when the Applicant had returned from her unexplained absence in July 1997 he asked why she had not completed more assessments. He did not recall the Applicant saying that they had been short staffed but does recall her saying that she had been to the medical unit for about 10 minutes to obtain pain killers. He claims that he accepted that and did not at that stage want to embarrass the Applicant and ask her any other questions but decided to speak to her later. He deposes that later in the evening at the end of the shift the Applicant came into his office in relation to another task and he said to her something in a friendly way like,

"I could see you were in pain today". He claims that she then said to him, "Why are you commenting on that?" He deposed that he did not expect that to be her response as it was apparently hostile. He asked, "Are you sure that you are fit to be at work?" and claimed that he said that because the work she completed had been less than the work assigned to her and she was obviously not coping well and that placed staff and the Applicant at risk at harm. Mr Frost claimed that he had been faced with other staff who were having to complete the Applicant's work and who were complaining about that and as a supervisor he claimed that he could not fail to act and raise the issue fairly with the Applicant. The area in which the Applicant worked required some intensive work at times and he claims there were risks created when work was not done in a timely way as prisoners being received would become unsettled and the risk factor increased when prisoners were not taken up to the units before staff members were reduced. He claims not to be unsympathetic to the Applicant and had known for some time that her work had not been satisfactory and other staff had raised the issue with him. He claims that after raising the matters with the Applicant she left his office but returned shortly after and threw the keys on the desk and said words to the effect, :"I don't have to take this". The Applicant then left his office_._

111. Under cross-examination Mr Frost agreed that if he received a complaint about an officer under his supervision then he would draw that complaint to the officer's attention and in certain instances might indicate the source of the complaint to give the officer a chance to tell their side of the story.

112. During the course of cross-examination though not conceding the version of events of the Applicant in precisely the same detail Mr Frost agreed with the proposition that the input of what he was saying was that the Applicant was in pain and she was in so much pain she was not able to do her job then she should not be coming to work. However, he indicated that he did not believe that he said it was unfair for the Applicant to come to work when she was in pain and when asked what he said to the Applicant stated the following:-

"What I began to say to her or what I - I actually rehearsed this speech to myself looking for a kind of way to approach her because I had a lot of sympathy for Mary and still do. I also had, as a team leader, a responsibility for my team. If she wasn't able to perform her share of the team's work then I had to try and do something for that. I was trying to say to her that we understood her to have a disability and that she couldn't do 100% of a fit prison officer's work. But there has to be a percentage that she can perform. It may be 80%. If it gets too much lower than that, then the expectation on other staff is unfair. That's what I was hoping to say but it never got said."

113. He claimed he did not get to the point where he was able to ask the Applicant whether there was any substance in the complaints from co-workers. It was submitted on behalf of the Applicant that the facts and circumstances of the incidents are not significantly in dispute and that whether Mr Frost intended the comments to have any harm is irrelevant. The Court should conclude that he criticised the Applicant's work performance because of her disability. On the evidence the criticism was unfounded and for a conscientious employee such as the Applicant the comments were upsetting. The comments amount to direct discrimination against the Applicant on the ground of her disability in contravention of s.15(2)(b) and 15(2)(d) and in the alternative amount to harassment in breach of s.35(2).

114. It was submitted on behalf of the Respondent that the reference by

Mr Frost suggesting that all of us at some stage go to work in pain and this does not affect other people was only part of what Mr Frost wanted to say to the Applicant and that he never got to say what he wanted to say and what he had rehearsed.

115. It was submitted that in the circumstances the allegations do not constitute a contravention of the respective provisions of the DDA.

116. In relation to the medical evidence it was further submitted that the Applicant presents with a complicated presentation and that it would be difficult for the Court to dissect the mental reaction to the physical trauma from any mental reaction to alleged or perceived discrimination. Both Dr Hacker and Dr Kornan who gave evidence it was submitted referred to the Applicant's complaints as being consistent with a person suffering from chronic pain. In the case of Dr Kornan's evidence consistent with a WorkCover claim. That is the Applicant was a person who was angry and paranoid and had considerable complaints and anger about treatment during rehabilitation and return to work procedures. It is appropriate to consider further the medical evidence at a later stage in the judgment when considering consequences if any in relation to the alleged contraventions.

117. In relation to the specific allegation concerning Mr Frost it is my view that the conversation claimed by the Applicant does not constitute a breach of the DDA. I prefer the evidence of Mr Frost that he had intended to simply bring to the attention of the Applicant that if she was in pain she should not attend work. There is nothing at all unusual about that conversation. Nor could it be said in the context of perceived work performance of the Applicant which I find was a perception genuinely held by Mr Frost that his comment amounted to unlawful discrimination. He was simply endeavouring to make a reasonable enquiry in relation to the Applicant and her capacity to continue full time duties in a high-risk environment.

118. It is clear that the Applicant had on all the evidence suffered pain from time to time and was dissatisfed with her medical treatment and/or diagnosis. In those circumstances it is understandable that when suffering pain she may be more vulnerable and susceptible to interpreting remarks as being discrimination when objectively they are no more than a demonstration of concern and care by the Respondent for the Applicant's ongoing welfare and capacity to continue her duties. On the material before me I am satisfied accepting the evidence of Mr Frost in particular that he had and indeed still has a genuine concern for the welfare of the Applicant and the words uttered by him should not be construed as unlawful discrimination.

119. The damages issue in the present case is particularly complex as it necessarily requires some analysis of the detailed medical history presented by the Applicant.

120. The Applicant has submitted that in this matter Dr Hacker's diagnosis of post traumatic stress disorder and depression should be accepted and that this diagnosis consistent with the diagnosis of the treating general practitioner. Although Dr Kornan called for the Respondent provided a diagnosis of adjustment disorder with anxiety and depression, it was submitted that his diagnosis of depression in any event is similar to that made by Dr. Hacker.

121. If the Court were to find that the Applicant was particularly vulnerable to psychological injury it is submitted by the Applicant that given she was highly motivated and suffering chronic pain affecting her ability to work that that would not detract from the injury but rather the opposite. The attribution of the Applicant's pain by Dr Kornan to the litigation process was difficult to understand given that it commenced years before she lodged the current complaint or commenced proceedings in the County Court. She had not been a litigant when she attempted suicide in February 1996 or August 1997. The opinions ultimately of Dr Hacker and Dr Calcutt should be preferred over that of Dr Kornan.

122. The psychological injury, anger, humiliation and distress suffered by the Applicant together with loss of her career and opportunity to continue rehabilitation indicate a substantial award of damages at the higher end of the range.

123. Those submissions in relation to damages are based upon a finding that each and every one of the allegations have been found proved. During the course of my reasoning I have in fact only found that one of the allegations has been substantiated and that relates to the claim against Mr Coates on 17 January 1995. Hence the submissions for and on behalf of the Applicant must be viewed in the light of that claim.

124. Likewise the Respondent made very detailed submissions concerning the analysis of the Applicant's condition based upon the evidence and in particular invited the Court to accept the evidence of Dr Kornan who viewed the Applicant as an angry and paranoid person consistent with the WorkCover claim. In relation to any form of harassment or discrimination Dr Kornan had conceded in evidence that there would have been some temporary extra anxiety or stress. The other stress factors then in the life of the Applicant apart from the pain said to be related to the claimed injuries include the question of maintaining payments for her house and the fact that her mother at the relevant times was suffering from cancer.

125. In my view the diagnosis of post traumatic stress disorder in the current application as suggested by Dr Hacker is not appropriate. There were differing views from Dr Hacker about whether the post traumatic stress disorder could be linked to the electrocution which had originally been said to have caused fybromyalgia. In my view there is a degree of vagueness about the diagnosis and I prefer instead to accept that a more appropriate diagnosis would be depression and to some extent that condition with associated anxiety and an adjustment disorder more appropriately fits the background facts and circumstances of the present case. In the present case there is a significant history of injury, pain, dissatisfaction with medical treatment and diagnosis and other non work related stress factors including difficulties in making payments with her house and the illness of the Applicant's mother.

126. As the Court has only found one of the allegations proved it is in my view more likely than not that the consequence of that conduct would be a short term anxiety and depression though no doubt causing at the time significant hurt and upset. There is little doubt that the level and extent of the upset and hurt suffered by the Applicant given her extensive medical history and WorkCover claims may be greater than would be the case if she did not have that extensive history.

127. In relation to the Coates incident which I have found to have been established, it is my view that this has not caused the mental reaction to the trauma which is clearly established and which was part of the scenario in the presentation of the Applicant's claim pending in the County Court. The discrimination held to have occurred in this decision has occurred in my view only in relation to the one incident described as the Coates incident and the impact of that incident is limited.

128. It is appropriate however to make some assessment however difficult of the damages which should be paid by the Respondent to the Applicant as a consequence of the unlawful discrimination found by the Court to have been established. Whilst not accepting that the discrimination has led to any ongoing or permanent contribution to the Applicant's mental state and in addition finding that in the circumstances there is no connection between that incident and the attempted suicides and other more significant consequences, I am satisfied that it still caused significant upset and hurt to the Applicant and in the circumstances it is appropriate that the Respondent should pay the Applicant damages in the sum of $5,000. In my view it is entirely unacceptable and inappropriate for staff members with disability to be exposed to an outburst of the kind which I have found was made by Mr Coates on 17 January 1995 as it not only constitutes unlawful discrimination but would have a deleterious impact upon the Applicant's short term recovery and success of any return to work program. However the long term claimed "permanent disability" of the Applicant relates in my view to factors other than this incident of unlawful discrimination and hence the damages awarded needs to be considered in the context of the specific conduct found to be unlawful discrimination and the evidence of the impact of that discrimination shortly after the event, that is shortly after 17 January 1995.

129. It is not necessary for the Court to further consider other matters raised given the finding of only one act which would constitute unlawful discrimination.

130. The appropriate orders of the Court will be as follows:-

(1) The Respondent shall pay to the Applicant damages in the sum of $5,000.

131. I shall hear Counsel in relation to any other orders sought in this matter.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of McInnis FM