Morrow v Secretary, Department of Education - [2022] NSWCATAD 409 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Morrow v Secretary, Department of Education

[2022] NSWCATAD 409

NCAT Administrative and Equal Opportunity|2022-10-04

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2022-10-04

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Introduction

In 1993 Carlos Morrow started working with the NSW Department of Education as a teacher of woodwork and computer skills (since restyled Technology and Applied Studies, or TAS).
Shortly after commencing his teaching career Mr Morrow was involved in a serious motorcycle accident which resulted in the above-elbow amputation of his right arm and the above-knee amputation of his right leg. He returned to work in August 1993 and has been with the Department ever since.
In August 2021 the Department informed Mr Morrow that he was permanently unfit to perform his substantive role of TAS teacher. The Department considered whether any suitable alternative roles might be available for Mr Morrow but was unable to identify any. The Department then notified Mr Morrow it was considering whether he should be medically retired. Mr Morrow was directed to take 'appropriate leave' while the medical retirement process was conducted. He took sick leave and, when that was exhausted, he took some of his long service leave.
Eventually the Department decided not to medically retire Mr Morrow and he is undergoing retraining to become a Mathematics teacher.
Mr Morrow claims he has been discriminated against on the ground of his disability. The claimed discriminatory action is the Department's direction that he take leave while it was considering whether he should be medically retired. Mr Morrow lodged a complaint with the President of the Anti-Discrimination Board (the ADB). The matter went to conciliation but did not settle. A delegate of the President of the ADB then formed the view that the matter was unable to be resolved by conciliation. The matter has now been referred to the Tribunal for resolution.
We have decided that Mr Morrow was not discriminated against on the ground of disability and we dismiss his complaint. Our reasons follow.

[2]

[11]

Independent Medical Capacity Assessment and supplementary report

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).
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).

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.

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).

[21]

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?

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.
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.
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.
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).
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).
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.
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.
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).

[23]

Causation

The next issue to consider is causation: was Mr Morrow treated less favourably on the ground of his disability?
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]).
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].
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.
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.

Morrow v Secretary, Department of Education

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Judgment (26 paragraphs)

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Cases Cited (6)