Medwell-Everett v Daltug Pty Ltd & Ors [2025] ICQ 33

Industrial Court of Queensland|2025-12-24|Before: O'Connor VP

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - HUMAN RIGHTS - DISCRIMINATION LEGISLATION - where the appellant filed a complaint in the Queensland Human Rights Commission Queensland alleging contraventions of the Anti-Discrimination Act 1991 (Qld) (the 'AD Act') - where complaint heard and dismissed by the Queensland Industrial Relations Commission ('QIRC') - where the appellant filed appeal in the Industrial Court of Queensland - where appellant seeking five grounds of appeal - where appellant claims decision of commissioner unreasonable and appellant denied procedural fairness - where appellant appeals on ground commissioner failed to give adequate reasons and make necessary findings of fact and conclusions of law - where commissioner relied on irrelevant material by determining the provision of adjustments pursuant to s 35 of the AD Act would have imposed unjustifiable hardship on employer - where commissioner relied on hypothetical comparator - where commissioner erred at law by permitting the first respondent to cross-examine the second respondent - where appellant seeks decision should be set aside and the matter remitted to the QIRC for rehearing before a different industrial commissioner - whether grounds of appeal allege error of law pursuant to s 557 of the Industrial Relations Act 2016

Australian Gift and Homewares Association Limited v Melbourne Convention and Exhibition Trust & Anor (Ruling No 1) [2014] VSC 481

Brandi v Mingot (1976) 51 ALJR 207

Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6

Curran v Yourtown & Anor [2019] QIRC 059

GPI Leisure Group Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

Jones v Dunkel [1959] HCA 8

Lee v The Queen [1998] HCA 60

Medwell-Everett v Daltug Pty Ltd & Ashworth [2024] QIRC 002

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Subramaniam v Public Prosecutor [1956] UKPC 21; (1956) 1 WLR 965

Walton v R [1989] 16 CLR 283

Woodforth v State of Queensland 4 [2017] QCA 100

Mr K. Bond, National Legal Officer, Maritime Union of Australia for the appellant.

Mr B. Heath, Carter Newell Lawyers for the first respondent.

[1] This is an appeal by Brad Medwell-Everett ('the appellant') against a decision of the Queensland Industrial Relations Commission ('the Commission') dismissing his discrimination and victimisation complaint made under the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').[1]

[2] The respondents are Daltug Pty Ltd ('the first respondent') and Mr Scott Ashworth ('the second respondent').

[3] On 29 January 2024 the appellant filed an appeal in the Industrial Court of Queensland ('the Court') seeking the Primary Decision of the Commission be set aside and the matter be remitted for hearing before a different Industrial Commissioner. The appellant also seeks a stay of any further proceedings before the Industrial Commissioner pending the outcome of this appeal.[2]

[4] The first respondent seeks the appeal be dismissed and costs pursuant to s 548 and Schedule 2 of the Industrial Relations Act 2016 ('the IR Act'). Section 548 provides:

(1) The provisions for costs in schedule 2 apply to a proceeding -

(a) heard by the commission under the Anti-Discrimination Act 1991; or

(b) for an appeal to the court under part 6 against a decision of the commission in relation to a proceeding mentioned in paragraph (a).

(2) If a provision of schedule 2 is inconsistent with any other provision of this Act, the schedule prevails to the extent of the inconsistency.

[5] The appellant filed a notice of appeal on 29 January 2024 seeking eight Grounds of Review (Appeal). At the commencement of the proceedings on 29 April 2024, the appellant sought and was granted leave to amend the Grounds of Appeal by deleting grounds 3, 4 and 7 in the original application to appeal.[3]

[6] The amended Grounds of Appeal are as follows:

The Commissioner's decision is unreasonable in that she failed to take into account relevant considerations, took into account irrelevant considerations, and denied the appellant procedural fairness by:

relying solely on a hearsay statement attributed to a medical specialist who cleared the appellant to safely return to work after recovering from an Achilles injury in concluding that the appellant could not safely perform the essential functions of his role;

at [92] determining that it was open to the first respondent's Human Resources Manager, as well as the Commissioner, neither of whom have medical training, to conclude that the appellant was not fit to perform his role when the medical report commissioned by the first respondent concluded that he was;

the hearsay statement attributed to the medical specialist who cleared the appellant to return to work does not support a conclusion that the appellant was any more likely to suffer an injury than any other seafarer; and

at [129] concluding that it was reasonable for the first respondent to determine that the appellant was "not fit to return to duty" when the sole medical evidence was that "Dr Whiting provided a medical clearance".

The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by failing to apply a Jones v Dunkel inference against the first respondent for its failure to produce Dr Whiting as a witness.

The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by determining that "the provision of adjustments by way of special services or facilities per section 35 of the AD Act would have imposed an unjustifiable hardship on Daltug per section 5 of the AD Act".

The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by concluding that the appropriate comparator was a hypothetical comparator when:

Shane Ping was clearly the appropriate comparator; and

The first respondent admitted in paragraph 24 of its Response to the appellant's Statement of Facts and Contentions that "the person or persons hired or rostered to perform the role that the Complainant had been offered to perform would be the appropriate comparators".

The Commissioner erred at law by, over the appellant's objections, permitting the lawyer for the first respondent to cross-examine the second respondent, thereby putting words in the second respondent's mouth, when the first respondent's interests were wholly aligned with the interests of the second respondent.

[7] An appeal from the Commission to the Court is sought pursuant to s 557 of the IR Act. Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law or excess, or want, of jurisdiction. Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the Court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act.

[8] The first respondent submits in this matter no leave has been sought therefore the appeal is limited to grounds alleging an error of law or excess, or want, of jurisdiction. The appellant has failed to identify any error of law in the Primary Decision.[4]

[9] The first respondent submits that the appellant has not complied with paragraph [10] of Practice Direction No 2 of 2023[5] by not providing a chronology of relevant events and the procedural history of the matter as an appendix to his appeal submissions.[6]

[10] In his submissions filed on 22 March 2024, the appellant includes a 'Background' which is set out below.[7] The first respondent submits the Background "is inaccurate and contains editorial comment as to matters in issue between the parties".[8] Those matters not in agreement are identified in bold as follows:

Brad Medwell-Everett (Brad) commenced employment with Daltug Pty Ltd (Daltug) on 9 October 2019 as a Full-Time Casual Tug Master/General Purpose Hand.

On 5 July, acting through its General Manager, Scott Ashworth, Daltug offered Brad full time permanent employment as a General Purpose[9] hand beginning 17 August 2021. Brad promptly accepted the job offer.

On 21 July 2021 Mr Ashworth informed all Daltug employees via a memorandum that Brad had been appointed as a full-time shareholder.[10] That statement materially misstates the import and effect of the memorandum of 21 July 2021 which stated that the appellant "would become" a full-time employee and shareholder, but, in order to do so he must sign an employment contract and then buy shares in the first respondent. The appellant at no time became a "full-time shareholder" of the first respondent.

On 24 July 2021, outside of work, Brad ruptured his Achilles Tendon.[11] Due to Brad's injury, Daltug extended Brad's start date for permanent employment from 17 August 2021 to 14 September 2021.[12] The appellant was not fit to return to work on 14 September 2021.

On 7 October 2021 Brad advised Daltug that his surgeons and physiotherapist verbally cleared him to return to full duties.[13] On 7 October 2021 the first respondent's workplace health and safety officer, Ms Kyte informed the appellant that, before he could return to work, he would be required to undergo a "full functional capacity test (FFCT)" at the first respondent's expense.[14]

On 11 October 2021 Brad attended the BCERTA[15] full functional capacity examination that Daltug's Safety Officer, Diane Kyte, had scheduled. While there, BCERTA also conducted two Australia Maritime Safety Authority (AMSA) Medical Examinations.[16] For the purpose of the examination, the appellant completed a "pre-employment medical/health assessment" comprising a "personal statement" in which the appellant declared that the information contained in his "personal statement" was "true and correct. I understand that if any of the information given is knowingly false, my employment may be terminated by the Employer Company".[17] However, the appellant incorrectly completed the pre-employment medical/health assessment by describing himself as a "tug master", not as a general purpose hand. The positions require the performance of materially different duties. The job of general purpose deckhand is more physically demanding.[18]

The full functional capacity examination included an examination by a physical therapist who noted that Brad had suffered an Achilles injury 12 weeks previous and, even though there was a low-to-medium risk that the injury could affect his employment, Brad was "safe to commence work".[19] Not surprisingly, the physio also recommended that Brad continue "strength and conditioning through regular physio stretching".[20]

Nonetheless, fully understanding that Brad needed to continue physio, Dr Whiting concluded that Brad was "FIT to undertake his position at Daltug".[21] It is inappropriate for the appellant to state what Dr Whiting "fully understood" in circumstances in which he was not called by the appellant to give evidence at the hearing. There is, moreover, no evidence that Dr Whiting ever considered the "standard" promulgated by the Australian Maritime Safety Authority[22] in reaching his conclusion concerning the appellant because the form that Dr Whiting completed, by ticking boxes and making limited handwritten notes stated only that he has "evaluated the appellant according to Marine Orders Part 9 made under the Navigation Act 1912". Those Marine Orders were not before the Commission.

Further, the appellant's chronology also omits the fact that, on 7 October 2021, Ms Kyte sent the appellant a roster for work and informed him that "[i]f he was cleared to return to work, he would be rostered to work as a casual".[23]

Even though Dr Whiting cleared Brad to return to work, Ms Kyte sent an email to Brad on 11 October 2021 in which she wrote that she was seeking clarification about language in the physio portion of the full functional capacity examination, and that the company would not permit him to return to work until it was sure that doing so wouldn't put him "at risk of further injury".[24]

According to Ms Kyte, she expressed her concerns to Dr Whiting during a brief telephone conversation the following day. Ms Kyte says that she made clear to Dr Whiting that Brad would be working as a General Purpose Hand "which is fairly rigorous and a heck of a task in - in rough weather or adverse weather, to be able to keep your footing and balance".[25]

Ms Kyte's hearsay evidence was that Dr Whiting told her that he didn't have a crystal ball and that he couldn't guarantee that Brad was 100% fit.[26] She also said that Dr Whiting told her that Brad "may be required to stop work and sit down if any twinge or other event is experienced".[27] It is inaccurate to describe Ms Kyte's evidence as "hearsay evidence"; she gave direct evidence as to what Dr Whiting told her. Ms Kyte's account of her conversation with Dr Whiting was accepted by the Commission under an exception to the rule against the admissibility of hearsay evidence.[28]

Despite the concerns raised by Ms Kyte, Dr Whiting stood by his expert medical opinion that Brad was fully fit to perform the deckhand position that Daltug had offered him, and that Brad had accepted. This statement is a submission and is unsupported by any evidence because Dr Whiting was not called by the appellant to give evidence at the hearing. It is not known whether, or not, Dr Whiting "stood by" the opinion expressed in the document dated 7 October 2021.

On 28 October 2021 Di Kyte emailed Brad and informed him that, before returning to work, he would be required to provide a full physiotherapy report demonstrating that he was fit to return to work.[29] This statement misstates the effect of Ms Kyte's email, which was in the following terms: "Before commencing back in casual GPH position we will require you to complete all physiotherapy as directed by any treating medical practitioner and/or physiotherapist. Once you have attended all appointments and completed all requirements as indicated by your physiotherapist, Daltug will require a full report from them. The receipt of this report will assist us to determine whether we will require a further functional capacity assessment prior to you commencing back in a casual position as GPH".[30]

In compliance with Ms Kyte's direction, on 17 November 2021 Brad e-mailed to Mr Ashworth the cover letter to a report from physiotherapist, Chris Elphinstone, who confirmed that Brad was fit to return to full duties of both General Purpose Hand and Tug Master roles.[31] This statement misstates the report of the physiotherapist dated 16 November 2021.[32] The one page of the physiotherapist's report provided to the first respondent, by way of screenshot, did not disclose that the physiotherapist had any appreciation as to the real nature of the duties that the appellant was required to discharge. In this regard, the appellant had briefed the physiotherapist, on 15 November 2021,[33] with an email in which the appellant described himself as "currently employed as a casual tugmaster/general purpose hand, I have no requirement for any heavy lifting excessive or hard manual lifting". The appellant's description of his role as deckhand as requiring "no heavy lifting or hard manual lifting" was not accurate.[34]

Despite providing the physio report as requested by Ms Kyte, neither she nor Mr Ashworth or anyone from Daltug, for that matter, ever contacted Brad again. Ms Kyte's evidence was that, on 28 October 2021, she passed dealings with the appellant onto the second respondent.[35] Mr Ashworth's evidence was that, after receipt of the physiotherapist's report on 17 November 2021 "I hadn't heard from Brad. Eventually we heard that he got another job".[36] Mr Ashworth gave evidence that, in January 2022, he had heard that the appellant had secured another position.[37]

In January 2022 Brad's Union, the MUA, advocated for Mr Ashworth to put Brad to work in the position that he had been promised. Mr Ashworth lied to an MUA official, Paul Gallagher, telling him that he would need to sack someone in order to give Brad the position that he had been promised. In fact, though, that position was not filled for another 13-months.[38] The allegation that Mr Ashworth lied is hyperbolic and untrue. The evidence of Mr Ashworth's was that, as at January of 2022 "the roster was full. So who do we take out of the roster?"[39] Furthermore, Mr Ashworth then testified that he "probably would" have had to sack somebody if the appellant was to be returned [to] work.[40][41]

[11] Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'. Section 7 prohibits discrimination on the basis of various defined 'attributes':

Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes -

(a) sex;

(b) relationship status;

(c) pregnancy;

(d) parental status;

(e) breastfeeding;

(f) age;

(g) race;

(h) impairment;

(i) religious belief or religious activity;

(j) political belief or activity;

(k) trade union activity;

(l) lawful sexual activity;

(m) gender identity;

(n) sexuality;

(o) family responsibilities;

(p) association with, or relation to, a person identified on the basis of any of the above attributes.

[12] Section 8 of the AD Act provides the meaning of discrimination:

Meaning of discrimination on the basis of an attribute

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of -

(a) a characteristic that a person with any of the attributes generally has; or

(b) a characteristic that is often imputed to a person with any of the attributes; or

(c) an attribute that person is presumed to have, or to have had at anytime, by the person discriminating; or

(d) an attribute that a person had, even if the person did not have it at the time of the discrimination.

[13] Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'. Section 9 prohibits 'direct' and 'indirect' discrimination, while s 10 defines the meaning of direct discrimination:

(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

C is English and R doesn't like English people
C's friend, B, is English and R doesn't like English people
R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(2) It is not necessary that the person who discriminates considers the treatment is less favourable.

(3) The person's motive for discriminating is irrelevant.

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R's conduct amounts to discrimination against C.

(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5) In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

[14] Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'. Division 2 of Part 4 deals with 'Work and work-related areas'. Section 15(1) identifies types of discrimination in the area of 'work':

(1) A person must not discriminate -

(a) in any variation of the terms of work; or

(b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or

(c) in dismissing a worker; or

(d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(e) in developing the scope or range of such a program; or

(f) by treating a worker unfavourably in any way in connection with work.

[15] Victimisation is prohibited pursuant to s 129 of the AD Act. Victimisation is defined in s 130 of the AD Act as follows:

(1) "Victimisation" happens if a person (the "respondent") does an act, or threatens to do an act, to the detriment of another person (the "complainant") -

(a) because the complainant, or a person associated with, or related to, the complainant -

(i) refused to do an act that would amount to a contravention of the Act; or

(ii) in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or

(iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; or

(b) because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).

(2) In this section, a reference to involvement in a proceeding under the Act includes -

(a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and

(b) involvement in a prosecution for an offence against the Act; and

(c) supplying information and producing documents to a person who is performing a function under the Act; and

(d) appearing as a witness in a proceeding under the Act.

[16] This ground of appeal is based on the contention that the Commissioner's decision is unreasonable in that she failed to take into account relevant considerations, took into account irrelevant considerations, and denied the appellant procedural fairness by:

relying solely on a hearsay statement attributed to a medical specialist who cleared the appellant to safely return to work after recovering from an Achilles injury in concluding that the appellant could not safely perform the essential functions of his role;

at [92] determining that it was open to the first respondent's Human Resources Manager, as well as the Commissioner, neither of whom have medical training, to conclude that the appellant was not fit to perform his role when the medical report commissioned by the first respondent concluded that he was;

the hearsay statement attributed to the medical specialist who cleared the appellant to return to work does not support a conclusion that the appellant was any more likely to suffer an injury than any other seafarer; and

at [129] concluding that it was reasonable for the first respondent to determine that the appellant was "not fit to return to duty" when the sole medical evidence was that "Dr Whiting provided a medical clearance".[42]

[17] The appellant claims the respondents' case relies on hearsay statements given by Ms Kyte upon receiving the comprehensive report of Dr Whiting who was not called to give evidence.[43] Based solely upon the statements by Ms Kyte, the Commissioner determined that the appellant was not fit to perform his job.[44]

[18] In the view of the appellant the Commissioner not only allowed the hearsay evidence given by Ms Kyte but also found the statements attributed to Dr Whiting to be determinative of the case. It was argued that despite Dr Whiting not giving evidence, the Commissioner found, "I accept on the balance of probabilities that the conversation occurred and that the content of that conversation was as Ms Kyte has reported in her evidence".[45]

[19] The appellant referred to the Full Court of the High Court in Lee v The Queen[46] in relation to the unfairness of permitting a party to prove its case through hearsay evidence which said:

The common law of evidence has long focused upon the quality of the evidence that is given at trial and has required that the evidence that is given at trial is given orally, not least so that it might be subject to cross‑examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered - by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the "best evidence rule" and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross‑examine the maker of the statement. Confrontation and the opportunity for cross‑examination is of central significance to the common law adversarial system of trial.[47]

[20] The appellant contends that he was denied the opportunity to call Dr Whiting. During oral argument before the Court the following exchange took place:

MR BOND: - - - I was denied an opportunity to ask him "Does that cause you to change your opinion? Did you determine that he was not fit to return to his work?" I mean, those are the types of cross-examination questions I was entitled to make if the doctor - - -

HIS HONOUR: Okay. So this evidence arose during the hearing, and it caused you some concern. You could have asked for the doctor to be called, couldn't you?

MR BOND: I mean, I guess I could have. I mean, in hindsight, if I thought that the Commissioner - - -

MR BOND: - - - was going to rely on a hearsay statement to defeat my client's claim, yeah, of course, I would call the doctor. But in my wildest dreams, it did not occur to me that there is a hearsay statement out here; I'm going to have to call the doctor to disprove a hearsay statement. In hindsight, yes, I could have called him.

MR BOND: Did it cross my mind? No, it did not cross my mind at the time.[48]

[21] The claim advanced by the appellant before the Commission was that he was discriminated against by the first and second respondents when they determined that he was unable to return to work following an injury he sustained outside of work. What was contended by the appellant was that, although he had a full medical clearance from Dr Whiting to return to work, the respondents determined that it was not safe for the appellant to return to work and as such he was discriminated against on the basis of an attribute.

[22] The first respondent in his oral reply submissions to the Court said:

MR HEATH: My learned friend made a submission to the effect that he had no idea that the issue about being described as a tug master or a general-purpose hand wouldn't be of any significance at the hearing, and he was taken by surprise. That's wrong. If you look at the response that we filed to the application, dated the 4th of October 2022, it's paragraph 8, and it states this:

The first respondent does not admit that the medical reports from the Australian Maritime Health Safety Authority and the medical examinations, or the Bcerta Occupational Health and Sports Medicine Clinic, confirm the complainant was fit to perform his duties, because they refer to the complainant's position as being a tug master, not a general purpose hand.

That's dated the 4th of October 2022. So my friend was on notice of the significance of that. The email that my learned friend referred to that Kyte sent to Whiting before the appointment is extracted at paragraph 11 of her Honour's judgment, and she states there that:

We would like a full fitness capacity test carried out, especially testing the area of injury. As you know, the guys need to be able to withstand extremely rough weather up and down the stairs and the vessels, and we'd like to ensure they are is -

...risk of aggravating the injury.[49]

[23] It is not the case that the appellant was denied the opportunity to cross-examine Dr Whiting. The evidence of Dr Whiting was important to the appellant's case. The appellant, for whatever reason did not call Dr Whiting.

[24] The first respondent submits the appellant's reliance upon 'hearsay evidence' misapprehends the admissibility of a statement to a witness by a person who was not called as a witness.[50] The evidence of Ms Kyte as to what she was told by Dr Whiting fell within the exception to the rule against the admissibility of hearsay evidence.[51]

[25] In Subramaniam v Public Prosecutor,[52] the Privy Council held:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.[53]

[26] In Australian Gift and Homewares Association Limited v Melbourne Convention and Exhibition Trust & Anor (Ruling No 1)[54] the Supreme Court of Victoria, when considering whether or not the evidence sought to be adduced is inadmissible hearsay, determined it is necessary to consider the party's purpose in seeking to adduce such evidence.[55]

[27] In Walton v R,[56] Mason CJ described the rule against hearsay as follows:

The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue.[57]

[28] As the trial proceeded, the state of mind of Ms Kyte was relevant. Ms Kyte had to make a decision whether the appellant was fit to return to work. As the Commissioner observed:

[94] With regard to Mr Medwell-Everett writing on the intake form for the medical, 'Tug Master' as his role, the Complainant says that it does not matter that he wrote 'Tug Master' when the job was for 'general deckhand'. This, the Complainant says, is because Dr Whiting 'would have known' Mr Medwell-Everett would be required to 'be able to adjust to the often violent motions of the vessel'. Again, the difficulty I have with this submission is that Dr Whiting was not called to give evidence before the Commission and so I have no way of knowing whether he would have provided a different report had Mr Medwell-Everett accurately listed his role on the intake form. Likewise, the Complainant's submission that it is 'unimaginable that a registered doctor would find a seafarer fit to work as a Tug Master, but unfit to work as a deckhand' was not tested by way of an examination of Dr Whiting. Further to this, no other expert evidence was adduced to convince me that a finding by a doctor that a person was fit to be a Tug Master would also mean that they were fit to work as a General Purpose Hand.

[97] It was open to Ms Kyte to hold concerns that the medical report had been undertaken on the basis of the Tug Master position rather than a General Purpose Hand position. Ms Kyte was concerned that the position Mr Medwell-Everett was being assessed against was 'not as strenuous as a GPH'.

[98] It is also the case that Ms Kyte was not obliged to return Mr Medwell-Everett to work on the basis of the report. I understand that Ms Kyte found herself in a position where, based on her knowledge, experience, and the duties she was required to perform in her role, she gave a consideration to risk and made a judgment call about Mr Medwell-Everett's capacity. (citations omitted)

[29] The first respondent submits that the Commissioner did not accept Ms Kyte's evidence of the conversation with Dr Whiting as establishing the truth, however relied upon Ms Kyte's evidence that a statement was made to her by Dr Whiting and this was one of the matters Ms Kyte considered as the first respondent's Workplace Health and Safety Officer.

[30] The Commissioner accepted the evidence of Ms Kyte that she had a conversation with Dr Whiting. As a consequence of that conversation, Ms Kyte formed the view that the appellant was not fit to return to work as a General Purpose Hand. [58]

[31] No error has been disclosed. This ground is dismissed.

[32] The error identified by the appellant is that the Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law and relied on irrelevant material by failing to apply a Jones v Dunkel inference against the first respondent for its failure to produce Dr Whiting as a witness.

[33] The appellant claims the Commissioner's acceptance of the hearsay evidence is closely related to her refusal to apply a Jones v Dunkel[59] inference against the first respondent for failing to call Dr Whiting as a witness.[60]

Dr Whiting would be expected to be called by the First Respondent;
the Commission would have benefited from hearing from him; and
the company made no attempt to explain Dr Whiting's absence.[61]

[35] What was submitted by the appellant was that rather than applying a Jones v Dunkel[62] inference against the first respondent for failing to call Dr Whiting to give evidence, the Commissioner held it was incumbent on the appellant to call Dr Whiting to refute the hearsay evidence and the respondents' speculation the appellant was fit to return to work due to him writing "tug master" rather than "deck hand" on the intake form.[63]

[36] The first respondent submitted that the appellant's submission must fail as it was the appellant's case that relied upon Dr Whiting, not the first respondent's case.[64] As the Commissioner correctly concluded, the first respondent relied on the evidence of Ms Kyte and her concerns about the appellant's fitness to return to work following her assessment of the medical report, and statements provided by Dr Whiting to her by phone on 7 October 2021.[65]

[37] Drawing a Jones v Dunkel inference is found where an uncalled witness is a person presumably able to put the true complexion on the facts relied on by a party as the ground for any inference favourable to that party. The three conditions to be applied are: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained.

[38] The Commissioner dealt with the appellant's Jones v Dunkel submission in her decision:

[116] The Complainant says that there are three circumstances making it appropriate for me to draw a Jones v Dunkel inference in this matter. Firstly, that Dr Whiting would be expected to be called by the Respondents and not by the Complainant and that his 'hearsay' statement serves as Daltug's sole defence to the discrimination claim. Mr Medwell-Everett, on the other hand, would not be expected to call Dr Whiting as a witness as he was content to rely on Dr Whiting's report concluding that he was fit to return. Secondly, the Complainant says that Dr Whiting's testimony would have elucidated the matter. Thirdly, the Complainant says that Daltug made no attempt to explain why Dr Whiting was not being called to give evidence. On this basis, the Complainant invites me to infer that Dr Whiting's evidence would not have assisted the Respondents' assertion that Mr Medwell-Everett was unfit to perform the duties of the full-time role that the company had offered him.

[117] I have considered the submissions inviting me to make a Jones v Dunkel inference regarding the Respondents not calling Dr Whiting to give evidence.

[118] However, it seems to me that the Respondents are content to rely on Ms Kyte's evidence that she formed a concern about the report, sent an email to follow up, and then had a phone conversation with Dr Whiting where she says he told her that he did not have a crystal ball and could not guarantee that Mr Medwell-Everett would not reinjure himself. When I consider the timeline of events, the provision of the medical report, the email sent by Ms Kyte, and events which occurred following the phone call, I accept on the balance of probabilities that the conversation occurred and that the content of that conversation was as Ms Kyte has reported in her evidence.

[119] At one point, the Complainant put to Ms Kyte that the conversation did not occur. Ms Kyte's evidence was that it did. If the Complainant sought to demonstrate that no conversation ever occurred, it would seem to me that it the Complainant could have decided to call Dr Whiting as a witness to adduce evidence that the phone call never happened.

[120] When I look at the totality of the evidence and the extensive submissions made by the Complainant regarding what the Complainant says Dr Whiting knew, understood or thought about Mr Medwell-Everett's condition and the duties required of his role, it seems to me that the Complainant could have formed a view that Dr Whiting would be able to provide evidence to support its case and elucidate the matter.

[121] This is also the case in circumstances where Mr Medwell-Everett's evidence was that despite writing 'Tug Master' on the medical assessment form in circumstances where the role was full-time General Purpose Hand, he had fully explained to Dr Whiting the type of duties he would undertake as General Purpose Hand.

[122] I am unwilling to conclude that Dr Whiting is a witness who could have only been called by the Respondents, or that his evidence was only relevant to the case for the Respondents. If the Complainant wished to demonstrate that it was completely unreasonable for Ms Kyte and Mr Ashworth to form a concern about Mr Medwell-Everett's return to work, I find that their case would have benefited from additional evidence from Dr Whiting to that effect. After all, the onus is on the Complainant to make its case. [66]

[39] The inference which can be drawn in a circumstance such as this is no more than the evidence which was not called would not have helped the party who failed to call the witness.[67] In this case, one might expect the appellant to call Dr Whiting, given the nature of the case advanced by him and the assertion that Dr Whiting had certified him as fit to return to work. I do not think that it is appropriate to draw the Jones v Dunkel inference in this case.

[40] Underlying a number of grounds of appeal is an assertion that the Commissioner failed to set out appropriately the reasons for the conclusions she reached.

[41] In this ground of appeal, it was argued by the appellant that the Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law and relied on irrelevant material by failing to apply a Jones v Dunkel inference.

[42] The appellant's argument was not developed in either the written or oral submissions.

[43] The obligation on the decision maker to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision, and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal.[68] Whilst the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision.[69]Accordingly, a decision maker will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties - this applies both to evidence and to argument.[70]

[44] In DL v The Queen, the High Court observed that "... the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial."[71]

[45] The appellant has failed to identify any inadequacy in the written reasons of the Commissioner.

[46] The Commissioner has adequately disclosed in her decision the pathway of reasoning for concluding as she did. It is well accepted that it is not a valid ground of appeal that a disappointed party disagrees with the findings below, an error of law must be demonstrated.

[47] No error has been demonstrated. This ground is dismissed.

[48] The third ground of appeal asserts that the Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by determining that "the provision of adjustments by way of special services or facilities per section 35 of the AD Act would have imposed an unjustifiable hardship on Daltug per section 5 of the AD Act".[72]

[49] The appellant submits that the Commissioner committed reversible error by wrongly determining that "the provision of adjustments by way of special services or facilities would have imposed an unjustifiable hardship on Daltug".[73]

(1) It is not unlawful for a person to discriminate on the basis of impairment against another person with respect to a matter that is otherwise prohibited under subdivision 1 if -

(a) the other person would require special services or facilities; and

(b) the supply of special services or facilities would impose unjustifiable hardship on the first person.

(2) Whether the supply of special services or facilities would impose unjustifiable hardship depends on the circumstances set out in section 5.

[51] The first respondent submits that, in considering reasonable adjustments that could have been made to facilitate the appellant's return to work, regard must be had to whether he could "properly fulfil the inherent duties of the role in circumstances where he may need to sit down and not perform his duties in the event of feeling any issues related to his injury", and this involved placing a third general purpose deckhand to cover for the appellant whilst at sea or cancelling a voyage if the appellant was not fit for the task.[74]

[52] The Commissioner dealt with "special services" to facilitate the appellant's return to work and the "unjustifiable hardship" which would have been imposed on the first respondent in the Primary Decision commencing at paragraph [134] and concluding at paragraph [140].

[53] The appellant's submissions and arguments amount to a re-arguing of the matters considered in the Commission. Moreover, it is apparent from the appellant's submissions that he is fully aware of how the Commissioner considered the relevant issues before her but his case on appeal is simply that he disagrees with the decisions made.

[54] As observed earlier in these reasons, the adequacy of written reasons required is dependent upon the nature of the application before the court, the matters in issue, the legal principles involved, and the extent of the submissions made by the parties. The reasons should, at least, be sufficient to enable the party against whom orders are made to appreciate why its case, whether by way of claim or defence, has not succeeded. In short, the reasons 'are to be understood as recording the steps that were in fact taken in arriving at that result', a failure to state reasons may reveal an error in the process of fact finding.[75]

[55] The Commissioner considered the evidence of both the second respondent and Mr Ramsamy and concluded that: "... the provision of adjustments by way of special services or facilities per section 35 of the AD Act would have imposed an unjustifiable hardship on Daltug per section 5 of the AD Act."[76]

[56] The appellant raises a broad and unspecified dissatisfaction with the level of consideration given to the evidence by the Commissioner in her reasons for decision.

[57] The Commissioner clearly sets out her reasoning, and while the appellant points to what he says is evidence to the contrary this alone does not satisfy the test. It was open on the evidence before the Commissioner to make the findings that she did.

[59] The fourth ground of appeal advanced by the appellant was that the Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by concluding that the appropriate comparator was a hypothetical comparator when:

Shane Ping was clearly the appropriate comparator; and

The first respondent admitted in paragraph 24 of its response to the appellant's Statement of Facts and Contentions that "the person or persons hired or rostered to perform the role that the Complainant had been offered to perform would be the appropriate comparators".[77]

[60] The appellant submits the Commissioner erred in using a hypothetical comparator when an actual comparator was appropriate. In the appellant's post hearing reply submissions, Mr Shane Ping, a co-worker was suggested as an appropriate comparator.[78]

[61] The first respondent submitted that despite their reference to the comparator in their response to the statement of facts and contentions dated 4 October 2022, the appellant has wrongly omitted the following sentence from their response, the appellant was: "unfit to commence employment as a full-time General Purpose Hand on 14 September 2021[sic]".[79]

[62] The first respondent argued, that the comparator proposed by the appellant was not appropriate.[80] The first respondent submits that utilising Mr Ping as a comparator ignores the crucial, distinguishing circumstance required to be considered in the appellant's case, namely that, on the information provided to Ms Kyte by Dr Whiting: "the appellant may have to sit down and cease performing his duties for an indeterminate period of time, without any prior notice to his colleagues".[81]

[63] In the reply submissions, the appellant asserts that the hypothetical comparator is 'nonsensical'. If the comparator did not have the appellant's protected attribute, it is unfathomable why such an employee would sit down and not perform his duties for an indeterminate period of time.[82]

[64] The inquiry to be undertaken by the Commissioner was whether the respondents treated the appellant less favourably than another person without that attribute, or a characteristic of that attribute, because of his impairment or a characteristic of his impairment in circumstances which were the same or not materially different.[83]

[65] The requirement to prove that a person has been treated less favourably than a person without the attribute or a characteristic of the attribute gives rise to a contingent requirement of identifying the proper other person against whom a comparison can be made, or a "comparator".[84]

[66] The comparator must be a person without the Complainant's relevant attribute, but who was in the same circumstances as the Complainant.

[67] In Woodforth v State of Queensland,[85] a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. McMurdo JA wrote:

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be "in circumstances that are the same or not materially different" from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes. The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a "characteristic". In the present case it proscribed discrimination on the basis of the applicant's inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a "circumstance" in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.

Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant's impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis. They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis, caused by the student's behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant "treatment" was the response of police to a complaint of criminal conduct. ... 63 [2000] NSWADTAP 5, [46]. 21 The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator. The applicant's case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. This error affected the Appeal Tribunal's conclusions on relevant factual issues....[86]

[68] The hypothetical comparator was accepted by the Commissioner where she considered the Complainant's submission that he was treated less favourably than a person without his attribute of impairment:[87]

[145] The Complainant has argued that Mr Shane Ping is an appropriate comparator as he was offered the full-time role at the same time as Mr Medwell-Everett, did not suffer an injury, and went on to take up the role on the planned date.

[146] The First Respondent says that an appropriate hypothetical comparator is an employee of the First Respondent who: (a) was without the applicant's impairment; (b) was employed in a casual role by the first respondent as a general purpose hand on a line boat; (c) would potentially sit down, and not perform his duties while on active duty on a line boat, for an indeterminate period of time, without any prior notice to his colleagues.

[147] I am of the view that the relevant comparator in this situation is not simply Mr Ping, the colleague who was offered a permanent role at the same time, did not suffer an Achilles injury and went on to take up the position. It is necessary to consider that the circumstances need to be 'the same or not materially different'. In this case, the circumstances are that there was a concern about whether Mr Medwell-Everett could return to his job and properly fulfil the inherent duties of the role in circumstances where he may need to sit down and not perform his duties in the event of feeling any issues related to his injury. Therefore, I agree with the First Respondent that the appropriate hypothetical comparator was an employee of Daltug who:

(a) was without the Complainant's "protected attribute", being an impairment sustained outside of the workplace;

(b) was employed in a casual role by Daltug as a general purpose deckhand (GPH) on a line boat; and

(c) would potentially sit down, and not perform his duties whilst on active duty on a line boat, for an indeterminate period of time, without any prior notice to his colleagues.

[69] The Commissioner concluded that the appellant was not treated less favourably than another person and determined that the first respondent had not discriminated against the appellant by not allowing him to return to work:

[148] I am satisfied that Mr Medwell-Everett was not treated less favourably than another person who may potentially sit down and be unable to perform duties without prior notice for any reason. The evidence regarding operational impacts and also health and safety risks associated with a crew member who may need to withdraw from duties during operations leads me to find that any such person would be deemed unfit to perform the genuine occupational requirements of the role or position.

[149] On this basis, I find that Daltug has not discriminated against Mr Medwell-Everett by not allowing him to return to work.[88]

[70] The Commissioner directed herself to the relevant provisions of the AD Act, addressed the submissions and then identified the appropriate comparator.

[72] The appellant submits that the Commissioner erred at law by, over the appellant's objections, permitting the lawyer for the first respondent to cross-examine the second respondent, thereby putting words in the second respondent's mouth, when the first respondent's interests were wholly aligned with the interests of the second respondent.

[73] On the first day of the hearing, Mr Bond expressed concern that the first respondent proposed to cross examine the second respondent, Mr Ashworth, who was not legally represented before the Commission.

[74] On the first day of the hearing, the following exchange ensued by the appellant's solicitor:[89]

MR BOND: I have no issues with you asking questions of Mr Ashworth, and clarifying anything, but the first respondent had an opportunity to represent Mr Ashworth. My understanding is Mr Ashworth actually requested that the first respondent provide him representation, and they declined to do that. We are alleging that the first respondent, the Daltug, is vicariously liable, almost exclusively because of the actions of Mr Ashworth. So it would seem fundamentally unfair if my friend was able to put the words in his mouth - into Mr Ashworth's mouth - that benefits Daltug. I have no problem with him examining him; questioning him; trying to clarify. But doing it in the form of closed-ended questions seems fundamentally unfair.[90]

[75] On the third day of the hearing the appellant made the following objections and the Commissioner responded as follows:

MR BOND: I have to interject an objection here. Mr Heath is feeding answers to Mr Ashworth that are completely at odds with what's been in response in his outline of evidence.

COMMISSIONER: Well, can I just say this. The outline of evidence isn't the evidence, the evidence what's said under oath, and to that extent, we're cross-examining both the evidence we've heard, and you know you can bring up other matters in cross-examination. So I'm not going to - I'm not going to pin people to preparing based on outlines of evidence; that's the whole point of viva voce evidence, that we hear it on the day and we respond.[91]

[76] In further discussion about cross-examination of the second respondent by the first respondent, the following exchange occurred:

COMMISSIONER: - - - they are separate respondents, and the first respondent has a right to cross-examine the second respondent. And based on your approach yesterday, which was that it's perfectly permissible to attempt - and I disagreed with you, I don't think the purpose of cross-examination is to put words in people's mouths, but I don't accept your objection. Please continue, Mr Heath.

MR BOND: And I'd just like to make - for the record, I accept your ruling and I was - simply need to make for the record that I think it's a denial of procedural fairness for Mr Heath, the first respondent's lawyer, to question a witness who's - - -

MR BOND: - - - perfectly aligned with his client's - - -

[77] On the third day the Commissioner revisited her earlier determination concerning the second respondent's evidence as follows:

COMMISSIONER: But I also - and I think I may have said this on the first day, but, Mr Ashworth, after you've given your evidence and after the cross-examination has happened, my - it would be my intention to take a break for you to think about what evidence you gave, to think about what's come up in the cross-examination and to make some notes for yourself about anything else that you'd like to cover off in your evidence, so we'll give you some time to think about that at the end of the cross-examination. So thank you - - -

COMMISSIONER: - - - for that. Mr Bond, anything on that?

[78] The appellant submits that he was disadvantaged in that the evidence of the second respondent was contrary to the evidence of the first respondent:

MR BOND: Well, the disadvantage is that the evidence of Mr Ashworth was contrary to the evidence of Daltug, and once my friend was able to cross-examine him, suddenly, his evidence became the same as Daltug's, and that's where my client was disadvantaged.[94]

[79] It was argued by the appellant that the Commissioner accepted the second respondent's evidence after cross-examination was done, even though it contradicted completely what his evidence was.[95] The appellant contends that the evidence of the second respondent should not have been admitted.

[80] The first respondent submits the proposition advanced by the appellant, that his interests were affected by the manner in which the second respondent provided his evidence, is false and unsubstantiated.

[81] The Commissioner dealt appropriately with the challenges of an unrepresented party giving evidence as follows:

COMMISSIONER: How about we do this: because I've put some thought to it since you raised that objection. My view is that we'll allow Mr Heath to cross-examine after your cross-examination, and you can either raise objections if you're concerned about the form of those questions, or you can make submissions - given that we're going with final written submissions - with the benefit of the transcript, you can make submissions as to what weight if any I should give to responses that Mr Ashworth gives to Mr Heath during cross-examination.

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Judgment (273 paragraphs)

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Cases Cited (7)