The Applicant's current delivery run allows him to go to the toilet at each pick up/delivery destination (noting the furthest distance apart from one destination to another on his currently allocated route would be 60km and about 60 minutes travel time, subject to traffic; and

The Applicant also has the ability to use the toilet at service stations, public rest stops, McDonalds, KFC, Red Rooster, Hotels (Pubs), Tullamarine Airport (which is on his run) and the Company's Depot at Port Melbourne. There are ample spots for him to stop and use a toilet whenever he needs to go provided he keeps in communication with management that he will be delayed for these reasons.

1. On 7 March 2013 Mr Young wrote the following to the applicant:

We confirm receipt of your latest Certificate of Incapacity and note that your treating Doctor (Dr Baxter) has listed your work restrictions as "unable to work under current condition" until at least 1 April 2013. We also note that you have not worked since 7 June 2012.

We wish to confirm that the functions you performed prior to 7 June 2012 remain critical to the business and have not been permanently reallocated in anticipation of your return to work. Continuing to hold this position open is becoming increasingly difficult from both an operational and cost perspective and as such we require an indication when you are likely to return to work. Please note that for reasons that you have been made aware of on numerous occasions over an extended period of time returning to the run that you were performing prior to 2010 is not an option.

Please advise us in writing by Friday 15 March 2013 of your intentions and when you will be returning to work to perform your Contract of Carriage. Failure to do so will result in us reviewing your engagement with Toll Priority.

1. A further meeting occurred on 20 March 2013. The applicant as well as Messrs Banbury, Walker and Cameron Lucas attended. A file note of the meeting was made by Mr Walker. According to Mr Walker's note, the purpose of the meeting was to achieve some outcome of Mr Muller's situation. Mr Muller advised that the run on offer was unsuitable due to his medical condition. Again he referred to the difficulty encountered on freeways if he was stuck in traffic. A break in the meeting occurred after which Mr Muller stated he needed to see his doctor again which might not be for a couple of weeks. Mr Cameron informed Mr Muller that the company needed a resolution more quickly and requested a decision by the end of the week. Mr Muller again contended he had been treated unfairly when he lost his original run four years ago but was informed this "was old ground".
2. Mr Walker gave evidence that at that meeting he had again explained to Mr Muller that there are plenty of rest stops and that if he needed to go to the toilet more regularly, then this would not be an issue provided he kept the depot informed if there was to be any delay.
3. Counsel for the applicant submits that the respondent failed to make any adjustment, let alone reasonable adjustment, to enable the applicant to perform the genuine and reasonable requirements of his employment. He submits that even though Mr Young assumed responsibility in June 2012, he still did nothing. As I understand the evidence, from 3 November 2011 (formalised in letter dated 14 November 2011) the applicant was required to work in the Same Day department. His previous tasks (pre-3 November) had been ad hoc and late freight deliveries. As already mentioned this involved driving between the two Toll depots at Tullamarine and Port Melbourne which involved freeway driving. It is pertinent to note that Mr Muller did not spent a lot of time in the Same Day Department; the evidence is that, following the November 14 warning, he did not work between 23 November 2011 and 15 April 2012, and only sporadically between 16 April 2012 and 7 June 2012 and not at all after that. Be that as it may, he maintains his assertion that driving along the freeway aggravates his disease and that the Same Day run is not suitable.
4. The Tribunal understands that since 2009, the applicant has consistently requested he be reinstated in his old Noble Park run but it is clear this run has long ago been allocated to another contracted driver and his request simply cannot be accommodated given the context of the operative industrial agreement and the reason for his removal.
5. The applicant's counsel submitted that what the applicant proposed in 2013 (and presumably still does) was the type of work he used to be given on the same terms "enjoyed by 80% of other drivers". The Same Day run is said by him to be unsuitable as it involves multiple airport runs and lengthy time on freeways. Counsel submitted that the airport runs were more problematical because of the number of runs required per day. As I understand the evidence, that proposal was never put to the respondent as the applicant's insistence was to return to his 2009 status. Evidence was given about the accessibility of toilets at both the suburban depot and the airport and the availability of other public sites around the city.
6. In AB v Ballarat Christian College [2013] VCAT 1790, Member Wentworth had occasion to consider section 40 of the Act - that is, a requirement to provide reasonable adjustments in the field of education. The two sections (20 and 40) are similar in form and intent. At paragraph 160 onwards she made the following observations;

Section 40 undoubtedly requires a school to consider how funds and other resources might be used to make adjustments that will increase and improve participation by a student with a disability in education, and consider whether reasonable adjustments can facilitate the student's participation in an educational program, and/or derive a substantial benefit from it.

Examples given in section 40 include providing a teacher's aide or particular software packages for computers; moving a course or event from an inaccessible venue to an accessible.

The requirement to make reasonable adjustments and the factors included in 40(3), make it clear that section 40 is not a requirement to create a perfect environment for every student with a disability regardless of the nature and extent of the disability, and regardless of the funding or teacher time required.

1. Counsel also referred me to Reilly v Bank of Melbourne & Ors [2001] VCAT 660. That was a case alleging discrimination in employment because of an impairment, in her case Crohn's disease. The complaint was of both direct and indirect discrimination and had to do with the complainant's access to toilet facilities in various bank branches. I infer that the reason for referring to this case was that the bank in that case took steps to accommodate her problems and even identified a suitable branch to meet her needs. Of course, this case was brought pursuant to the 1995 act and naturally, does not deal with reasonable adjustments even though the steps taken by the bank would satisfy such a requirement. In any event the complainant in that case was unsuccessful for other reasons.
2. The Tribunal understands the respondent has some 250 drivers. Of those, 7 are employed on Same Day runs, 50 on ad hoc deliveries and the balance on permanent runs.
3. In relation to the applicant's contention that he had not been given proper opportunity to apply for other runs (the evidence being that in 2009-2011 two runs were advertised), Mr Young said that the applicant was unsuccessful because, at the time his vehicle was not a suitable size to accommodate the volume of work, along with his demonstrated history of poor performance.
4. Mr Young told the Tribunal that the removal of the applicant from his ad hoc delivery run was due to performance issues and that Mr Muller had a history of poor performance. At that time, given most runs were the subject of permanent allocation, and given the limited numbers of runs available, there were no options other than the Same Day runs. In his written statement Mr Young stated -

The company has limited runs all of which are filled by other drivers. It cannot simply rearrange or vary delivery runs as it would:

a. Disadvantage a number of other drivers who have set runs that are valuable to them;

b. Have a considerable negative impact of efficiency and productivity and on customer service by doing so;

c. Have a considerable negative impact in doing so given these runs, as should be expected, have been designed to maximise productivity, minimise cost and maximise financial return for the Company's business; and

d. In any event, as far as I am aware, the Applicant has never, at any stage, requested a new, varied or altered delivery run as a means of accommodating his Disease, or that he go home to use the toilet each time he needs to go to the toilet. All he has only ever wanted is his old 2009 run back, which is not possible and which has been allocated to another driver after the 2009 incident.

1. Mr Young said that pursuant to the operating industrial agreement, the company has a wide discretion to change runs but it would not be commercially viable given the investment of long-term drivers. The Tribunal accepts the evidence of Messrs Young and Walker that to remove an existing driver from his or her run to make room for Mr Muller was neither advisable, reasonable or acceptable practice and I accept that is so.
2. The facts that are found are as follows:

Mr Muller only informed Toll of his disease in November 2011. Before that date, it had no knowledge of his impairment. The requirement to make reasonable adjustments can only date from that time.

The removal from his Noble Park run in 2009 was due to a customer complaint. It had nothing to do with his disease.

Apart from the undated letter from Dr Baxter stating a need for easy access to toilets, there is no medical evidence about the severity or otherwise of Mr Muller's affliction, no medical evidence of its effect on him and no professional advice about his needs and how any particular adjustment might accommodate those needs.

The applicant has never suggested any positive adjustments that the company might provide to accommodate his disability; rather, he has repeatedly requested his old job back and constantly avowed that the Same Day run was unsuitable. Since November 2011, his only request was for his old run to be returned to him and his constant repeating that ad hoc, late freight and Same Day services were unsuitable because of his disease.

1. There is no evidence to support his claim that freeway driving is more fraught than elsewhere, the inference being that any run with substantial freeway driving is unsuitable. As the Toll personnel explained, traffic is a hazard for all courier drivers. In cross-examination, Mr Young stated that there are exits every three minutes of so from freeways (although my recollection is that he was only speaking of the Tullamarine freeway). Whether this is correct I do not know but it strikes me that the problem is the same whether stopped in traffic on a freeway or on a city street. Either way, there is a problem.
2. Whilst there is no proper medical evidence about how the disease affects Mr Muller, about its severity or otherwise, about the frequency of urgency, about what treatment he is receiving, about the existence (if any) of options other than oral medication, it is fair to say that general knowledge leads one to the conclusion the Crohn's disease in its most severe form is a nasty affliction.
3. Whilst one does not expect a perfect workplace (to quote Member Wentworth in the AB case) one might have expected that some time post- November 2011, an applicant with or without problems of poor performance would have sat down with his employers, armed with proper medical evidence about his disability and its effect on him, spelled out the adjustments he and his medical practitioners considerable desirable within the confines of their medical advice and his current treatment, and engaged in meaningful negotiations. Certainly he was not without assistance as union representatives seem to have been freely available at the respondent's places of work. And if the cases of AB and Reilly are at all relevant in this instance, it is clear from them that the process of attaining and delivering reasonable adjustments is not, and cannot be, the product of unilateral decision-making.
4. It is not expected that these negotiations, had they occurred, would have produced an instant result giving the fluctuating nature of the courier business, the existing paucity of available contracts and the longevity of contract holders. Toll is a large conglomerate and no doubt has a constantly changing workforce even though the turnover of courier drivers is slight. Perhaps such an approach might have produced a plan for some future set run, even if it was not immediately as financially rewarding as in the past. But in any event that is not what happened. It is clear the applicant has been the target of censure about his lack of productivity and other performance matters and he narrowly avoided having his contract terminated back in November 2011. He has a history of performance issues.
5. It is also clear that he has been absent from the workplace for a considerable time (see paragraphs 3 and 4). According to Dr Newlands, a consultant forensic psychiatrist (her report 4.12.2012), he presents with an adjustment disorder with mixed anxiety and depressed mood relevant to workplace difficulties, his altered employment situation, the loss of his father and resulting financial problems. The undated reports from Dr Baxter speak to the applicant's work-related stress but are predicated on his assumption that the applicant's work routine was changed for no apparent reason and that his health would improve were he to be returned to his former routine. Of course, that assumption is incorrect.
6. I do accept the evidence of the Toll personnel that Mr Muller continually focussed on the return to his old job, and continually ploughed past ground. He continued to maintain he should not have been removed from it. I also accept that he continued to complain about the problems of freeway driving and its unsuitability without any real connection between the delivery routes and his specific needs.
7. Notwithstanding the submission of the applicant's counsel that Toll had not only failed to make reasonable adjustments, it had failed to do anything, I am not persuaded that is so. In June 2012 Mr Young confirmed with Mr Muller that, provided he kept the company informed if there were to be delays, his need to take toilet breaks was not an issue and was understood. Mr Walker also communicated a similar view. The comments said to have been made by Cameron Lucas in the 21 March 2013 meeting that the applicant's illness was not a company issue, were not at all helpful and not worthy of a company such as Toll. That said, their frustration at this late stage is however perfectly understandable.
8. The concept of "reasonable adjustment" does not mean an employer must simply comply with an employee's demands. It surely must be a product of proper consultation by parties armed with appropriate (in this case) medical information and advice and appropriate knowledge of the genuine and reasonable requirements of the particular job. That much is clear from s.20 (3) (a), (b) and (c) of the Act. It is not for the respondent to work out what is required in an information vacuum. There must be some initiative from the worker. The comprehensive requirements of s. 20(3) make it clear considerable information is required in determining reasonability - "all relevant facts and circumstances" must be considered. That obviously requires a proper understanding of the requirements of an employee (in this case a courier driver) having regard to the nature and specifications of his employment and having regard to the nature and difficulties of his disability. And the latter is what is missing from this case. It is unclear to the Tribunal why appropriate medical evidence about the applicant's condition was not obtained. The applicant's attempt on 23 March 2013 to get the Toll personnel to read material about Crohn's disease is no substitute for proper medical evidence about the applicant's health and the severity or otherwise of his disease. As I said in paragraph 68, there is a critical absence of relevant information. The medical reports provided to the Tribunal focus more on his emotional health and the only relevant information about his disease is that he needs easy access to a toilet.
9. Insofar as the applicant's requirement of an adjustment is his request to be given another run with fewer freeways (if indeed such a properly articulated request was ever made) that cannot possibly be considered reasonable in the circumstances of a complete absence of medical evidence about the nature and severity of his disease, no details of his current treatment, the absence of medical advice of how his condition might be ameliorated, with all of this being available to be viewed in the context of the genuine and reasonable requirements of his employment. The present "state of play" is that the applicant maintains he requires a new run with easy access to toilets and the respondent maintains this can be accommodated within his existing Same Day run by taking such time as is required to divert, the only proviso being that he keep his base informed if delay is likely. He has been reassured (more than once) that such a course would be permissible and would be understood by his employers.
10. I am not persuaded the respondent has, in the circumstances outlined before me, failed to provide reasonable adjustments. Mr Muller's application fails and it is dismissed.