Morrow v Secretary, Department of Education

Factual background

1. The broad background is not in dispute, and we find it to be as follows. Unless otherwise indicated, page references are to the pages in Exhibit JF-1 to the statement of Joanne Frearson (Exhibit R1). Ms Frearson is the Director, Workplace Health Management, in the Department of Education.

25 years of teaching

1. Mr Morrow's career has taken him to a number of public high schools over the years, including a stint of about 13 years at Morisset High School until 2018. Towards the end of his time at Morisset Mr Morrow's socket prosthesis, fitted after the amputation of his right leg some 25 years earlier, caused some dysfunction of the stump and deterioration of the associated tissues. The pain he experienced caused him to abandon the prosthesis, and for a time he got around in a wheelchair.

Osseo-integration surgery

1. In March 2018 Mr Morrow underwent osseo-integration surgery, which enabled him once again to use a prosthesis. The surgery and subsequent rehabilitation kept Mr Morrow away from work for some months.

Dr Kershaw's report

1. In July 2018, evidently wanting to establish whether Mr Morrow was capable of returning to his teaching role at Morisset, the Department sought an opinion from Mr Morrow's GP, Dr Juliet Kershaw. Dr Kershaw wrote that Mr Morrow was 'currently fit to perform some inherent requirements [of his role as a high school classroom (TAS) teacher] but not all requirements'. She also indicated he needed a 'level work site due to falls risk', which effectively made working at the uneven and multi-level Morisset site impossible (p 139).

Recovery at Work Plan

1. The Department's view at the time, based on Dr Kershaw's report, and as confirmed by Ms Frearson in re-examination, was that Mr Morrow's inability to return to his substantive role was temporary, rather than permanent.
2. The Department formulated a 'Recovery at Work Plan', sometimes referred to as a 'Return to Work Plan', with the overall goal (as it was expressed in the Plan - p 144) of having Mr Morrow 'return to full-time TAS teacher duties (35hrs/week) with the Department'. Mr Morrow would undertake a temporary placement (referred to as a 'suitable duties' arrangement) at Kotara High School, initially performing administrative duties and an IT co-ordinator role. Full-time teaching duties, albeit on a trial basis, were planned to commence from Term 4, 2018 (p 146), later adjusted to the start of the 2019 school year (p 155).
3. Although the temporary 'suitable duties' placement at Kotara was initially approved only for the period 27 August 2018 to 28 September 2018 (p 148), it continued for almost 3 years.

Workplace Assessment

1. In October 2020, by now working full-time at Kotara, Mr Morrow underwent a 'Workplace Assessment', conducted for the Department by Rehab Management Pty Ltd. Rehab's report indicated the assessment was undertaken 'for the purpose of reviewing [Mr Morrow's] capacity to complete the requirements of a TAS teaching position' (p 158).
2. On behalf of Rehab, Adrian Chad, an Exercise Physiologist, formed the opinion that TAS teaching was 'no longer an appropriate option' for Mr Morrow. The opinion was largely based on Mr Chad's finding (summarised at p 162) that Mr Morrow could not complete manual handling of heavy or awkward materials and use of power/hand tools safely, because of his inability to complete bilateral gripping, lifting, carrying, pushing and pulling.

Further information from Dr Kershaw

1. In January 2021 the Department asked Mr Morrow's GP, Dr Kershaw, some follow-up questions about Mr Morrow's condition and his ability to continue to fulfil the requirements of his substantive position as a TAS teacher. Dr Kershaw's opinion, in summary, was that Mr Morrow was 'permanently unfit to work as a teacher in the workshop' but 'fit to continue to perform current role', which she identified as 'IT co-ordinator' at Kotara High School (p 164).

Recovery at Work Plan Number 3

1. Dr Kershaw's responses to the questions put to her seem to have been the trigger for the Department's creation of the third iteration of Mr Morrow's Recovery at Work Plan. This iteration, at pp 166-168, reflected Dr Kershaw's opinion that Mr Morrow was 'permanently unfit to complete teaching duties'. It also noted Mr Morrow's temporary placement, specified in the form as from 19/04/2021 to 25/06/2021, was 'to be reviewed as new medical information is received'.

Independent Medical Capacity Assessment and supplementary report

1. Then, on 14 May 2021, the Department wrote to Mr Morrow to inform him that he was to undergo an 'independent medical capacity assessment' (IMCA). Sonic Health Plus would be the assessor (p 169).
2. Dr Andrew Frean's report on behalf of Sonic concluded Mr Morrow was 'permanently unfit to carry out the inherent requirements and demands of the substantive position in the Department'. He recommended Mr Morrow 'be considered for restricted teaching duties or suitable alternative duties', subject to certain restrictions specified elsewhere in his report (p 215). The restrictions included:

• Avoiding repetitive or forceful pushing or pulling or forward bending
• Avoiding walking on slopes or uneven ground
• Avoiding running or fast-paced walking
• Avoiding climbing multiple steps (more than 5 steps fitted with a handrail).

1. The Department asked Dr Frean further questions in light of the restrictions he had suggested. The questions (p 217) are set out in bullet-point form below; Dr Frean's answers (pp 220-1) follow each question:

• If Mr Morrow cannot walk quickly, cannot run, cannot climb more than 5 steps without a hand rail, cannot walk on uneven ground, cannot kneel and cannot squat, can you comment on how Mr Morrow can provide necessary supervision to students in an emergency situation? Answer: Mr Morrow has worked with a permanent impairment for almost 28 years. During this time, he has been able to provide supervision to students within the restrictions imposed by his permanent impairment. From my understanding, he has been assigned to selective supervisory duties and, where tasks have been limited by his restrictions, others (including teachers and students) have willingly stepped in to provide assistance. I consider that Mr Morrow continues to be fit to provide selective supervision to students within the restrictions outlined above, including in an emergency situation.
• Do these restrictions prevent Mr Morrow from safely performing the usual lunchtime supervision requirements [of] a teacher? Answer: For the reasons stated in my response to the first bullet above, I consider that Mr Morrow is fit to safely provide selective lunchtime supervision to students within the restrictions outlined above.
• Do you consider Mr Morrow is able to diligently and responsively supervise students as required in a classroom teacher role? Answer: I consider that Mr Morrow is fit to diligently and responsively supervise students as required in a suitable classroom teacher role, within the restrictions outlined above.

1. In conclusion, Dr Frean confirmed his initial assessment that Mr Morrow was 'permanently unfit to carry out the inherent requirements and demands of the substantive position in the Department' (p 221).

What the Department did next

1. The Department made some attempts to identify teaching vacancies that might suit Mr Morrow's skills and training. Very few opportunities were identified. Leah Anderson, a Director in Staffing Services, noted in an email dated 12 July 2021 that she was 'unclear […] what type of teaching role he IS recommended for', and that 'unless he is willing to undertake re-training, I can't see what we can do here' (p 223). Despite the apparent uncertainty, the retraining option does not seem to have been explored. Instead, the decision was made to go down the path of medical retirement.
2. Noelle Simon, a Health & Wellbeing Advisor in the Department's Health and Safety Directorate, spoke to Mr Morrow on 2 August 2021. After that conversation she sent him an email attaching a letter of the same date (p 229). The letter confirmed that the Department was recommending Mr Morrow be considered for medical retirement. The stated reason was that Dr Frean's report 'did not offer any alternative work fitness'. We take this to mean that Dr Frean, in concluding that Mr Morrow was 'permanently unfit' for his substantive position, had rejected the alternative options of 'temporarily unfit' and 'fit for duty with reasonable adjustments'.
3. The letter invited Mr Morrow to provide further information for the ultimate decision-maker to consider before making a final decision, but to do so 'as soon as possible'.
4. Ms Simon's email also notified Mr Morrow that his temporary placement at Kotara High School 'will cease following today and you will be required to apply for appropriate leave' (p 230). Mr Morrow applied for and was granted sick leave and, when that ran out, he started taking long service leave.

The Department decides to medically retire Mr Morrow

1. Mr Morrow's lawyers wrote to the Department the next day to ask for some time to gather additional information and evidence (p 231). The Department granted until 31 August 2021 for the submission of additional information. In the meantime, Mr Morrow was 'required to access his sick leave pending further medical information' (p 232).
2. The due date for additional information was subsequently extended to 14 September 2021 (p 292). On that very day Mr Morrow's lawyers submitted the additional information, together with written submissions arguing against medical retirement. However, on the same day the decision-maker in the Department, Tim McCallum, notified Mr Morrow in writing that he had approved Mr Morrow's medical retirement (pp 315-6).

The Department's reconsideration of the medical retirement decision

1. It soon became clear that the Department's decision to medically retire Mr Morrow had failed to take into account the further material and submissions provided by his lawyers on 14 September 2021. Mr McCallum apologised for this error and, to guard against the perception of prejudgment, referred the case to an alternative officer of equal rank to decide Mr Morrow's future (p 319).
2. The new decision-maker, Cathy Brennan, thought Mr Morrow had the capacity to perform different teaching work, subject to certain restrictions. She found the role of High School Mathematics Teacher was available. On behalf of the Department she offered Mr Morrow the opportunity to undertake retraining to become a Mathematics teacher.
3. In her letter dated 10 November 2021 (p 321) Ms Brennan explained: If you accept the opportunity, you will continue to be employed by the Department on a full-time salary while you complete the required retraining. The Department will assign you to a temporary role during that period of retraining. It is likely that the period of retraining will be two years, and you will be required to work part-time during the training period. However, specific arrangements will be confirmed in due course. While you are considering this offer, your current leave arrangements will continue to apply.

Mr Morrow accepts the retraining offer

1. Mr Morrow accepted the offer to retrain as a Mathematics teacher. In February 2022 he returned to work at Glendale Technology High School, where he co-supports a fully trained Mathematics teacher while he retrains as a Mathematics teacher himself.

Ms Frearson's evidence

1. The material Ms Frearson provided to the Tribunal includes not only the documents relating to Mr Morrow's specific case, some of which we have already referred to, but also copies of many of the Department's general policies and guidelines, including those dealing with Recovery at Work and Retraining and/or Redeployment. In her written statement she also commented on Mr Morrow's treatment in the context of the Department's general policies and guidelines. She was cross-examined on that statement and she also answered questions put to her by the Tribunal.
2. Ms Frearson's statement and oral evidence includes the following: 1. A teacher is employed at a specific school to do a specific job. A teacher is not employed as a generic 'teacher': statement [17]. 2. The process followed for Mr Morrow was the same as any staff member who has sustained a non-work related injury and is on a recovery at work plan, and he was treated the same as all other staff in the same situation: statement [24]. 3. Approximately 57 other staff were medically retired in 2021 using the same process. Many of those staff were directed to take personal leave prior to medical retirement: statement [24]. 4. A 'suitable duties' placement of the kind Mr Morrow had at Kotara is temporary: statement [26]-[27]. 5. There is no entitlement to indefinite alternative suitable duties when an employee cannot perform the inherent requirements and demands of their position: statement [17]. 6. As at 2 August 2021, nothing from a health perspective would have prevented Mr Morrow from continuing to performing the suitable duties at Kotara: oral evidence. 7. The Department's agreement to retrain Mr Morrow as a Mathematics teacher is an 'extraordinary' accommodation rather than something he was entitled to as a matter of right: statement [72].
3. We accept points (1), (4) and (6) and find accordingly. We will address the remaining points, to the extent necessary, later in these reasons.

Mr Morrow's claim

1. Mr Morrow asks the Tribunal to uphold the complaint of discrimination and to order the reinstatement of the leave he was directed to take while the medical retirement process was being conducted, or, in the alternative, the payment of damages equal to the value of the leave taken.
2. Mr Morrow claims that by being directed to take leave while the Department was making an administrative decision about his employment, he was subjected to a detriment. He claims the Department discriminated against him on the ground of disability by treating him less favourably than it would have treated a person without his disability (the hypothetical comparator).
3. He identifies the comparator as a teacher, who is awaiting an administrative decision about their employment, but who is otherwise employed in suitable alternative duties: Applicant's Written Submissions (AWS) [42]. In oral closing submissions, perhaps recognising the breadth of that formulation, Mr Morrow's counsel amended the formulation slightly to a teacher who is awaiting a decision that could impact the outcome of their employment, but who is otherwise employed in suitable alternative duties.

The Department's response

1. The Department submits Mr Morrow has suffered no detriment, but in any event he has not been discriminated against.
2. Once Mr Morrow was found unable to meet the inherent requirements of his substantive position, the Department had no obligation to continue to pay him. Nor was it obliged to provide him with alternative duties. It was entitled to direct him to take leave and if he had not done so he would not have been paid at all.
3. The Department identifies the comparator as a teacher who for whatever reason has become permanently unable to perform their substantive role: Respondent's Outline of Submissions (ROS) [32]. That person would have no entitlement to continue to receive wages, and would ordinarily be directed to take leave.
4. The Department accepts things may have been different if it had been under an obligation to provide alternative duties - such as where the disability arose from a work-related injury. But it says it is under no such obligation where the disability arose, as in Mr Morrow's case, from a non-work-related injury (or 'personal injury' as it is referred to in the Departmental policies).

Less favourable treatment

1. The first task we will embark upon is the examination of the less favourable treatment issue.
2. Section 49B(1)(a) of the ADA requires us to compare the treatment the Department gave Mr Morrow with the treatment it would have given to a person without Mr Morrow's disability 'in the same circumstances [as Mr Morrow's], or in circumstances which are not materially different' from Mr Morrow's circumstances. That means we must identify the circumstances that applied to Mr Morrow, and then examine what would have been done, in the same or not materially different circumstances, to a person who does not have Mr Morrow's disability.
3. The circumstances that applied to Mr Morrow were: 1. In March 2020 Mr Morrow, as a result of a non-work related injury, was assessed as being temporarily unable to return to his substantive role as a TAS teacher at Morisset High School; 2. He was placed on a Recovery at Work Plan with the overall goal of having him return to full-time duties as a TAS teacher. The Plan included his undertaking of 'suitable duties' at Kotara High School; 3. A Workplace Assessment by a rehabilitation provider concluded that because he would have some difficulty undertaking certain duties, Mr Morrow's return to a TAS teacher role was 'no longer an appropriate option'. The Recovery at Work Plan was amended to include a comment that the 'suitable duties' placement was 'to be reviewed as new medical information is received'; and 4. As a result of an Independent Medical Capacity Assessment Mr Morrow was assessed as permanently unfit to carry out the inherent requirements and demands of his substantive position.

How was Mr Morrow treated in those circumstances?

1. The Department tried to identify alternative teaching opportunities but was unable to find any. That search took place over a period of about 10 days, from 2 July 2021 to 12 July 2021 (pp 223-224). Ms Frearson confirmed in cross-examination, and we find, that this was the only time the Department attempted to find alternative opportunities for Mr Morrow. She also said, and we find, that it is sometimes the case that multiple attempts to find alternative teaching opportunities for someone on a Recovery at Work Plan are made. But that was not the case with Mr Morrow.
2. The Department terminated Mr Morrow's 'suitable duties' placement at Kotara High School and directed him to take 'appropriate leave'. It also notified him he was being considered for medical retirement.
3. On the basis of Ms Frearson's answers to questions put to her in cross-examination we also find: 1. the Department made no assessment as to whether Mr Morrow could be offered a role in any other NSW public sector agency; and 2. the Department had not explored the possibility of retraining Mr Morrow before Ms Simon wrote to him on 2 August 2021.

How would a person who does not have Mr Morrow's disability (the comparator) have been treated in the same or not materially different circumstances?

1. The logical way for us to approach this question is to assume the Department would have dealt with the comparator by fully complying with the relevant Departmental policies and guidelines. If there is a difference between the way Mr Morrow was treated and the way the comparator should have been treated then there is room for the view that Mr Morrow was subjected to less favourable treatment.
2. Mr Morrow's counsel brought to our attention, at AWS [47], the following statement by the Tribunal in Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106 at [43]: Contrary to the Department's submission, the objective circumstances do not include industrial awards and policies. If they were included, a respondent would be able to defend a complaint of discrimination by submitting that the conduct was in compliance with a policy or award. There is no exception in the Anti-Discrimination Act for acts done in compliance with such industrial awards or policies and the existence of those documents cannot be used as a basis for excusing action which is in breach of the Act.
3. However, as counsel acknowledged, we are not looking at the policies and guidelines in an attempt to excuse otherwise discriminatory behaviour. We are looking at them to try to find how a person in Mr Morrow's position, but without his disability, should expect to be treated if treated 'by the book'. It seems to us there is no other reliable way to undertake the comparison required.
4. We start with the helpful flowchart at page 8 of Exhibit JF-1. This maps out the broad process of the Recovery at Work Program. It includes developing a Recovery at Work Plan and then ongoing monitoring and updating of the Plan. The Plan will include a goal. The overall goal will be to return the employee to their pre-injury role unless medical evidence indicates this is not medically achievable (p 12).
5. During the Recovery at Work period the Department will explore and offer, where reasonable, 'suitable duties' for employees with a non-work related injury or illness (p 10). Suitable duties are provided where the employee has an injury or illness 'temporarily preventing them from performing the inherent requirements of their substantive position' (p 28). The availability of suitable duties should be reassessed, at a minimum, 'when medical progress occurs and is outlined through changes to the employee's medical certification' (p 29).
6. Eventually an assessment will be made that the employee either is or is not 'Recovered at Work'. If recovered, the employee will return to their pre-injury role. If not, alternative options are explored. Clause 2.6 of the Recovery at Work Program (pp 13-14) explains Alternative Options: When medical evidence indicates an employee may not recover to a point that would allow for a return to their pre-injury role, the focus of workplace rehabilitation and the goal of the recovery at work process will be on returning the employee to suitable employment which may involve: ongoing reasonable adjustments a different or modified position within the Department job seeking for work with an alternative employer. … When it is clear the employee is not able to be accommodated at the workplace, assistance is provided to the employee to explore all available return to work options including application for a transfer, if eligible merit selection via application for a vacancy via iworkfor.nsw application for roles beyond the department.
7. Appendix 5 (p 32) explains how retraining and/or re-deployment may be considered in appropriate cases. It notes that retraining in cases of non-work related health conditions is the responsibility of the employee. It continues: If it is identified that an employee will be permanently unable to return to their pre-injury duties or will be unable to work with the department as a result of their health condition, the department - in conjunction with the claims manager (for work related injuries or illnesses) - will work to identify suitable redeployment opportunities for the employee. This may involve assistance from a rehabilitation provider to determine an alternate vocational return to work goal.
8. If the employee is not 'Recovered at Work' and all rehabilitation options have been exhausted then medical retirement 'may be explored' (the final decision box in the flowchart at page 8).

Was Mr Morrow's treatment less favourable than the treatment of the comparator would have been?

1. If Mr Morrow had been treated 'by the book' then at the very least there would have been some 'assistance […] provided to the employee to explore all available return to work options including […] application for roles beyond the department': [58] above. This would have happened before the Recovery at Work process was terminated. It didn't happen.
2. Instead, the Recovery at Work process was terminated once the Department accepted the medical opinion that Mr Morrow was 'permanently unfit' to carry out the inherent requirements and demands of his substantive position. Termination of the process led to the withdrawal of the 'suitable duties' placement and with no duties available to him, Mr Morrow was directed to go on leave.
3. It doesn't matter that the Department's assistance in exploring the availability of other roles may not have secured a role for Mr Morrow. What matters is that he was not given that assistance.
4. We are satisfied Mr Morrow received less favourable treatment than the comparator would have received.

Causation

1. The next issue to consider is causation: was Mr Morrow treated less favourably on the ground of his disability?
2. In this regard we agree with the following comments of the Tribunal in Tebb v State of New South Wales [2021] NSWCATAD 104, at [66]-[67]: [66] The question the Tribunal should ask in this case when addressing the causation element is whether Mr Tebb's disability is at least one of the "real", "genuine" or "true" reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. In this case there is no direct evidence of the reason for his treatment relating to Mr Tebb's disability or his carer's responsibilities. A causal link between those matters and the alleged treatment would therefore have to be established by inference from the available facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. [67] Any such inference must be logical and reasonable, and must show that a connection is probable; an inference cannot be made where more probable and innocent explanations are available on the evidence (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
3. Ms Frearson's evidence about the process followed in Mr Morrow's case is critical. She is the person responsible for 'leading the delivery of workplace health, workers compensation, and claims management services based on policies and procedures developed by the Department': statement [2]. She said she checked that the Departmental policies and guidelines had been followed in Mr Morrow's case, and concluded 'he was treated the same as all other staff in the same situation': [24].
4. We accept Ms Frearson as an honest and reliable witness and we accept her statement at [24] represents her honestly held belief. From that it follows that either: 1. All other employees in the same situation as Mr Morrow during the same period were denied assistance with looking for other roles outside the Department - in other words, that it had become standard practice to ignore that step; or 2. The Department's failure to assist Mr Morrow in that regard was such a slight divergence from the policies and guidelines that Ms Frearson did not regard it as warranting a comment.
5. At worst, Mr Morrow's treatment resulted from a failure on the Department's part to follow best practice. But we don't think there is any reasonable basis on which we could infer that Mr Morrow's disability was one of the real, genuine or true reasons why he was treated the way he was. We have concluded, on the material before us, that Mr Morrow's disability played no part in his less favourable treatment.

Detriment

1. It is unnecessary for us to examine the detriment issue and in the circumstances we consider it would be inappropriate to do so.

Conclusion

1. We conclude that Mr Morrow was not discriminated against on the ground of disability. His complaint is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2022