[2004] VCAT 1040

1. The complaint is found not proven and is dismissed.

1 The complaint alleges direct and indirect discrimination pursuant to the Equal Opportunity Act 1995 ("the Act") on the ground of impairment which rendered the complainant unfit to teach at Highton Primary School from May 2001 to July 2003, but fit to work full time as a teacher at a site other than Highton Primary School. The respondents are the State of Victoria (Department of Education & Training)("the Department") and Craig Salmon.

2 Mrs O'Connor obtained a diploma of teaching in 1973 and has been teaching for over 30 years. She commenced teaching at Highton Primary School in 1994. From 1997 onwards, Mrs O'Connor's family had problems with her son, who had befriended one of the children of a family (the "D" family) at Highton Primary School. Mrs O'Connor's son left home for a period and was involved in drug use with one of the D family children.

3 During this period Mrs O'Connor learned that her son had been "placed" with the D family, and that his Centrelink payment was being paid to Mrs D. At Highton Primary School, Mrs O'Connor came into regular contact with the D children in the library and on yard duty and found this difficult. There were apparently a number of instances when Mrs D would attend the school and abuse Mrs O'Connor. From 1997 to 1999 Mrs O'Connor worked in the library at the school, and did not return to the classroom to teach until early 2000, when she taught Grade 3.

4 In early 1998, Mrs D wrote a letter of complaint to the Regional Manager in Geelong. This letter of complaint was later withdrawn.

5 Mrs O'Connor's son left the D family house in 2000, and at the end of 2000 the D family children had left Highton Primary School and the family left the area altogether. Her son returned home while completing his Year 12 and now lives in shared accommodation with friends.

6 By 2000, Mrs O'Connor said her situation at the school had become very difficult. She suffered symptoms including anxiety, insomnia and headaches, and felt alienated from her colleagues. In July 2000, she attended her general practitioner, Dr Skeen, in relation to these difficulties. She made two or three requests of the then Principal, Mr Donehue, for a transfer to another school, but these requests were denied.

7 The current Principal of Highton Primary School, Mr Craig Salmon, commenced his duties at the school in July 2000. Shortly after commencing as Principal he consulted each teaching staff member and developed a performance plan for each of them. In December 2000, he met with each of the teachers and reviewed their performance in the light of the plan agreed to earlier in the year. Between July and December 2000, Mrs O'Connor took sick leave on a number of occasions related to gynaecological problems. From about July 2000, Mrs O'Connor said she asked Mr Salmon on two or three occasions for a transfer to another school. This did not occur.

8 At the commencement of the 2001 school year, Mrs O'Connor was teaching Grade 3. Early in the year, in the context of a request by a parent of a child in Mrs O'Connor's class that her child be transferred out of that class, an allegation was made that Mrs O'Connor had hurt the child's arm in a computer lesson. The allegation was investigated by Mr Salmon at the time. Mr Salmon spoke separately to each of the children in the class and determined that the allegation was not substantiated. He communicated this verbally to Mrs O'Connor. Mrs O'Connor found Mr Salmon's investigation disruptive and humiliating. The child in question was transferred to another class.

9 The formal review document in relation to Mrs O'Connor's performance review, was signed by Mr Salmon on 6 February 2001. Mr Salmon concluded that Mrs O'Connor was failing to meet five of the eight required 'professional standards' expected of a teacher with her experience. The review document also acknowledged the work done by Mrs O'Connor in the second half of 2000 while she was "obviously struggling" with her health.

10 In February 2001, Mrs O'Connor commenced a period of pre-arranged sick leave in order to undergo an operation. Mr Salmon expected her to return to work at the end of Term 1 or the start of Term 2 of 2001. On 22 February 2001, Mrs O'Connor wrote to Mr Salmon expressing her distress at his handling of the complaint relating to the child in her computer class.

11 While on sick leave recovering from her surgery, Mrs O'Connor formed the belief she could not return to Highton Primary School, an environment where she had felt "undermined and vulnerable for nearly three years" (paragraph 32 of her statement, Exhibit A). Mrs O'Connor did not return to Highton Primary School at all after her operation.

12 In about May 2001, Mrs O'Connor lodged a claim for worker's compensation, claiming that her current workplace affected her mental state and ability to teach.

13 Mrs O'Connor's treating general practitioner, Dr Elizabeth Skeen, provided a report dated 20 June 2001 in relation to the worker's compensation claim in which she noted having treated Mrs O'Connor in July 2000 for a "depressed state associated with issues concerning her son and his relationship with another class member and that child's family." She was commenced on antidepressants, but ceased taking them in August 2000 due to intolerance. She attended in November 2000 with symptoms of an anxiety attack "which she attributed to her work situation". Mrs O'Connor refused to recommence medication "and felt she could deal with it". Dr Skeen noted a further attendance in May 2001, when Mrs O'Connor:

.. presented in a very agitated state, reiterating her inability to return to the school where she had suffered mental anguish. She felt she had very little support from other school staff and, while expressing a desire to continue teaching, felt she could not do it at the school and needed to be removed from the environment which was so strongly contributing to her disturbed mental state. Again, all the signs of a reactive depression were present with agitation, tears, inability to sleep and poor appetite. Aropax was commenced and counselling sought. A work cover certificate was issued.

14 Dr Skeen noted 2 further consultations with Mrs O'Connor and found her to be tolerating the antidepressant. Noting that Mrs O'Connor had over 20 years teaching experience and never suffered from any similar condition, Dr Skeen concluded:

...It is unlikely that the current illness will persist if an alternative workplace is secured and, therefore, the impairment is not permanent.

15 Dr Skeen provided a second report in largely similar terms dated 6 September 2001 to Allianz Australia Worker's Compensation Ltd. A third report dated 5 March 2002, prepared for the conciliation review, indicated that Mrs O'Connor was agitated and despondent about the lack of progress in her case, and that the fact that she remained without gainful employment "is significantly contributing to her lack of medical improvement". The report noted Mrs O'Connor's frustration with the failure of the specialist rehabilitation program to result in a return to work in a different school. In a report to Mrs O'Connor's solicitors dated 18 October 2002, Dr Skeen said Mrs O'Connor was fit to return to work at an alternative workplace. Dr Skeen concluded:

In summary, Mrs O'Connor did have a work related injury which, by its nature, has resolved with cessation of exposure to the specific workplace allegedly responsible. She is fit to work but would be advised to teach elsewhere in order to avoid ongoing conflict.

16 Dr Senadipathy, Psychiatrist, examined Mrs O'Connor on 26 June 2001 in relation to her Workcover claim. He found Mrs O'Connor suffered from "an adjustment disorder with anxiety, depression and grieving secondary to her son's drug addiction, problems complicated by his leaving home to live with another family and inter-family feud that followed in and out of school. Since then she had found it difficult to be at school and feels persecuted by principal and management." He concluded that she was not incapacitated by the illness, that returning to work would be helpful to her recovery and that avoiding school would contribute to further deterioration of her mental health. He concluded that her condition was not permanent, and was not work-related.

17 Mrs O'Connor's worker's compensation claim was rejected, but as a result of a conciliation conference in September 2001 the Department's insurer greed to provide Mrs O'Connor with one term's worth of return to work support. The insurer engaged the services of a rehabilitation provider to provide this support. Mr Salmon was in regular contact with the provider between September 2001 and January 2002, but was told the provider had found it difficult to obtain Mrs O'Connor's agreement to any of the return to work proposals put forward by it. Mrs O'Connor said the provider told her to apply for a few positions "but these were in the departmental bureaucracy in Melbourne" (Exh A, para 36) and otherwise little concrete was done by the provider to assist her.

18 A further conciliation conference was held on 8 March 2002. Mr Salmon attended the conference. Prior to doing so he had engaged in discussion with Mr Des Gorman, the Senior Education Officer for the North District of the Barwon South West Region of the Department, in an attempt to see what the Department could do to help resolve the situation. Mr Gorman indicated the possibility of Mrs O'Connor being placed at North Shore Primary School. Mr Salmon told Mrs O'Connor of this possibility on 6 March 2002.

19 At this time, the option of Mrs O'Connor working at North Shore Primary School on a return to work program was discussed. After the conciliation conference, the parties agreed to work towards achieving a sustained return to work program for Mrs O'Connor at a school other than Highton Primary School.

20 In around February or March 2002, Mr Des Gorman contacted the principal of North Shore Primary School , Ms Cherie Titman, to inquire whether Ms Titman would be willing to take Mrs O'Connor on as part of a return to work program. Ms Titman agreed to consider such a course after meeting with Mrs O'Connor. Mr Salmon also spoke to Ms Titman, who indicated she was prepared to meet with Mrs O'Connor to determine her suitability for placement at that school. Ms Titman met Mrs O'Connor on 12 March 2002. There is some issue as to the content of that conversation, and that is dealt with below. In any event, Mrs O'Connor advised Ms Titman on or around 14 March 2002 that she was willing to accept a position at North Shore Primary School. However, the transfer did not ultimately take place. The parties disagree as to the reasons for this failure, and this issue is dealt with below in the section on direct discrimination.

21 On 18 March 2002 Mrs O'Connor was advised by a representative of the Australian Education Union ("AEU") that the position was not available to her as she was on sick leave.

22 On 20 March 2002, after making inquiries of the School Staffing Unit, Mr Salmon wrote to Mrs O'Connor advising her the transfer to North Shore Primary School would not go ahead. The full text of the letter is set out in paragraph 71.

23 Mrs O'Connor applied for compassionate transfer in July and November 2001, and in March 2002. Those requests were rejected by the Department.

24 On 23 April 2002 Mrs O'Connor wrote to Mr Salmon requesting 6 months leave without pay. This request for leave without pay was later approved by the Department and later extended until 6 April 2003.

25 On 19 June 2002, Mrs O'Connor saw Dr Brendan Holwill, Psychiatrist, at the request of her solicitors, in relation to her worker's compensation claim. Dr Holwill took a history from Mrs O'Connor of increasing depression and distress from 1997 to 1999 in the context of domestic issues and interaction with the D family at Highton Primary School, as well as recurrent migraine every two or three weeks which ceased as soon as Mrs O'Connor was placed on sick leave. According to the report, Mrs O'Connor said she could not face returning to Highton Primary School after her sick leave ended, but was now well enough to return to work and wished to transfer to another school.

26 Dr Holwill concluded that in the two years prior to ceasing work at Highton Primary School Mrs O'Connor had "developed steadily worsening symptoms of depression, with agitation, phobic anxiety and recurrent migraines. Since ceasing work, the migraines have ceased. There is persisting mild to moderate phobic anxiety of the workplace and the depression has abated to a mild to moderate severity." Dr Holwill noted that despite the persisting symptomatology, he believed Mrs O'Connor was sufficiently well to return to work, but at an alternate work site.

27 On 23 August 2002, Mrs O'Connor lodged a complaint of discrimination with the Equal Opportunity Commission of Victoria ("EOCV"), which resulted in the current proceeding. A conciliation conference in relation to this claim was held in December 2002, as a result of which Mrs O'Connor agreed to be examined by a medical practitioner approved by the Secretary of the Department in order to determine whether she was fit to resume duties.

28 Mr Salmon wrote to consultant Psychiatrist, Dr Nathar, on 14 January 2003 requesting that he examine Mrs O'Connor prior to her return to work in any State school and provide a report as to her fitness to return to work as a teacher at Highton Primary School.

29 Dr Nathar examined Mrs O'Connor on 24 January 2003 and, according to Mrs O'Connor, told her at the end of the consultation that she was not fit to return to Highton Primary School but was fit to work elsewhere. Dr Nathar provided a report to Mr Salmon dated 28 January 2003 in which he concluded that Mrs O'Connor had suffered from an adjustment disorder with anxious and depressed mood. Dr Nathar concluded that Mrs O'Connor would be able to return to work as a teacher at a school other than Highton Primary School.

30 On 13 March 2003, Mr Salmon wrote to Dr Nathar again, providing further information concerning Mrs O'Connor's experiences at Highton Primary School. In particular, Mr Salmon noted that Mrs O'Connor "has a history of conflict with various school families, colleagues, principals and other department officers".

Ms O'Connor's performance issues go well beyond paperwork. She has a long history of conflict with students (particularly boys), parents, colleagues, principals and senior department officers".

32 Mr Salmon expressed the belief that Mrs O'Connor was presenting her situation to Dr Nathar "to gain your support for a transfer from Highton to avoid addressing her unsatisfactory performance as a teacher and she is aware that she will find it very difficult to achieve this in competition with other teachers in the merit-based system under which staff are locally selected".

33 In the final paragraph of the letter, he concluded:

In light of the additional information provided do you still believe that Ms O'Connor is not fit to resume at Highton Primary School or were she to obtain another teaching position and her performance continued to be monitored, would she be likely to develop or experience a recurrence of her current medical condition.

34 Dr Nathar did not re-examine Mrs O'Connor, but provided a second report, dated 17 March 2003, to Mr Salmon in which he said that Mrs O'Connor had made significant recovery from a stress-related disorder which appeared severe toward the end of 2000. Dr Nathar said that given this recovery and the fact that the stresses created by the D family had been removed, if Mrs O'Connor "returns to Highton Primary School, and she is no longer going to be exposed to any emotionally traumatic work situations involving parents or students or even other staff, then there would be no reason for her not to be able to return back to Highton Primary School...". Dr Nathar said:

I am now left with the inevitable conclusion that, from the psychiatric viewpoint, I cannot see any reasons why she cannot return to Highton Primary School, that is there is no psychiatric impediment or incapacity. I am left with the further conclusion that she has no wish to return to Highton Primary School for reasons best known to her and I can no longer support that her basis for not wanting to return would be the possible exposure to any potentially emotionally traumatic situations.

35 Mrs O'Connor was not provided at the time with notice of the conclusions in Dr Nathar's second report.

36 On 20 March 2003, Mr Salmon wrote to Mrs O'Connor advising her of Dr Nathar's conclusion that she was medically fit to resume teaching duties at Highton Primary School, and asking her to advise him if she intended to resume duties on 6 April 2003 when her approved period of leave expired. By letter dated 30 March 2003, Mrs O'Connor requested a further period of leave without pay for 6 months. This request was approved and her leave without pay extended until 5 October 2003, although Mr Salmon informed Mrs O'Connor in a letter dated 1 April 2003 that it was unlikely that any further period of leave without pay would be approved.

37 On or about 11 April 2003, Mr Salmon received a letter from Mrs O'Connor indicating that she was available to commence teaching in early Term 2, 2003. Mrs O'Connor's return to teach at Highton Primary School during Term 2 of 2003 would place the school "in excess" in terms of its staffing requirements for that term. An excess staff situation arises where the school has a greater number of employees than is necessary. The steps to be taken by a school in such a case are set out in the Victorian Government Schools School Staffing Handbook ("the Handbook"). Where a teacher volunteers to be declared "in excess", it means that teacher will be given priority over applicants without this status when applying for transfers to another school.

38 The School Staffing Unit, in consultation with Mr Salmon, decided to inquire whether Mrs O'Connor would volunteer to be declared "in excess". Mr Salmon wrote to Mrs O'Connor on 16 April 2003 asking her to indicate whether she wished to formally volunteer as part of the standard process to be declared "in excess". This request was repeated in letters from Mr Salmon dated 30 April 2003 (to Mrs O'Connor's husband) and 12 May 2003 (to Mrs O'Connor). On 13 May 2003, Mr Salmon received notification from Mrs O'Connor that she wished to be declared "in excess" at the school. No other school staff volunteered to be declared in excess by the 19 May 2003 deadline.

39 Following Mrs O'Connor's indication of her willingness to be declared "in excess", Mr Salmon adopted the department's standard process, including advising Mrs O'Connor of vacancies in alternative locations that may be suitable to her. By letter dated 16 May 2003 Mr Salmon provided Mrs O'Connor with the 15th May edition of the Education Times, which listed a position at Corio South Primary School.

40 Mrs O'Connor was appointed to a position as language library teacher at Corio South Primary School, commencing in Term 3, 2003. She continues to work there.

41 On 6 June 2003, the worker's compensation claim resolved on confidential terms with a denial of liability.

42 On 4 February 2004, Mrs O'Connor was re-examined by Dr Holwill at the request of her solicitors. He found her to be suffering residual mild anxiety and depression "attributable to her experiences at Highton Primary School". He noted her successful return to teaching at Corio South Primary School. He found her fit to work at Highton Primary School and elsewhere until February 2001 when her anxiety and depression worsened; since that time, he said she remained fit to work at a school other than Highton Primary School. He said she remained quite phobic of Highton Primary School, and that her "quality of life, mental state and finances have been adversely affected by the delay in obtaining an appropriate transfer in early 2001."

43 The parties agreed that the Tribunal should determine the question of liability and leave the parties to agree on quantum in the event that liability was established.

44 Mrs O'Connor gave evidence and was cross-examined. Dr Holwill (Psychiatrist), and Mr Brian Henderson (Vice President, Secondary, AEU, Victorian Branch) were called on her behalf. In addition, Mrs O'Connor relied on her own statements (dated 6 February and 15 March 2004), her correspondence with a rehabilitation service provider, Higher Solutions, 3 reports of Dr Elizabeth Skeen (dated 20 June 2001, 6 September 2001 and 18 October 2002), 2 reports of Dr Holwill (dated 19 June 2002 and 4 February 2004), as well as a bundle of documents provided by her solicitors to Dr Holwill in May 2002 to assist him with the preparation of his reports.

45 The following witnesses gave evidence on behalf of the respondent: Mr Craig Salmon; Dr Nathar (Pyschiatrist), Ms Nola Stacey, (Principal of Corio South Primary School), Mr Peter Hibbins (Manager of the Conduct and Ethics Branch of the Department ), Mr Robert Adams (Manager of Employee Relations- School Workforce), and Ms Cherie Titman (Principal of North Shore Primary School).

46 Section 7 of the Act provides:

(1) Discrimination means direct discrimination or indirect discrimination on the basis of an attribute.

(2) Discrimination on the basis of an attribute includes discrimination on the basis -

(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it any time.

47 Section 8 of the Act provides:

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment less favourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

48 Section 9 of the Act provides

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

49 Section 10 of the Act provides:

In determining whether or not a person discriminates, the person's motive is irrelevant.

50 Section 14 of the Act provides:

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for promotion, transfer or training or to any other benefits connected with the employment;

(b) by dismissing the employee or otherwise terminating his or her employment;

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

(d) by subjecting the employee to any other detriment.

51 Section 69 of the Act provides:

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of -

(a) an Act, other than this Act;

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

(3) Section 47(3) and 58(1) prevail over this section to the extent of any inconsistency between them.

52 Section 4(1) of the Act provides, inter alia:

"Enactment" means a rule, regulation, by-law, local law, order, Order in Council, proclamation or other instrument of a legislative character;

53 Section 11 of the Teaching Service Act 1981 (Vic) provides that the Minister for Education may make an order in respect of any matter relating to employment in the teaching service. Within the teaching profession in Victoria, this form of delegated legislation is commonly referred to as "Teaching Service Orders" ("TSO")

54 One such Teaching Service Order is Teaching Class (Employment Conditions, Salaries, Allowances and Selection) Order 2001 ("TSO 179"). Paragraph 6.2.10(2) of TSO 179 provides as follows:

(2) If any teacher is absent from duty on account of illness, and such absence has extended beyond thirteen weeks continuously, that teacher shall not be permitted to return to duty unless and until a medical practitioner approved by the Secretary has certified that he or she is fit to resume work.

55 The complainant contends that she has suffered from an impairment within the meaning of s.4 of the Act namely, depression with agitation and phobic anxiety, which has rendered her unfit to teach at Highton Primary School. It is also contended on behalf of the complainant that one of the characteristics of her impairment is that she was on sick leave.

56 Section 6(b) of the Act provides that impairment is an attribute under the Act. It is contended that as a result of this impairment the complainant has not been fit since May 2001 (and remains unfit) to work at Highton Primary School, although it is contended she has been fit (and ready and willing) to work as a teacher in other primary schools.

57 In support of this submission, counsel for the complainant relied on the decision of Justice Allsop in Thomson v Orica Australia Pty Ltd [2002] FCA 939 (30 July 2002), in which His Honour found that the taking of maternity leave is a characteristic of pregnancy.

58 The respondent contends that there is no support for the proposition that the word "characteristic" in s.7 of the Act should be so broadly construed as to include something which can be completely divorced from the impairment. Secondly, it was submitted, there was no evidence before the Tribunal from which it could conclude that being on sick leave is a characteristic of anxiety and depression. Thirdly, it was submitted that the complainant's own circumstances in continuing to suffer the impairment, not being on sick leave, and being able to work, suggest the absence of the necessary connection between the impairment and the characteristic of the impairment. Finally, it was submitted, the approach taken by the High Court in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 202 ALR 133 was to be preferred.

59 I do not accept the submissions made on behalf of the complainant in this regard, for a number of reasons.

60 I consider the decision in Orica to be of limited assistance in this case. The Court there found the necessary nexus between pregnancy and a period away from work, however short, on maternity leave at the time of delivery. There was no evidence before me to the effect that people with the complainant's impairment, or with an impairment of the severity of the kind suffered by the complainant, cannot work and have to take sick leave. For this reason, I do not consider on the material before me that being on sick leave is a characteristic that is generally imputed to people with the impairment suffered by the complainant, namely, depression with agitation and phobic anxiety. That being the case, even if the failure of the transfer to North Shore Primary School was substantially as a result of the complainant being on sick leave at the time, the claim of direct discrimination cannot succeed.

61 Another potential obstacle to the construction relied upon by the complainant is a factual one. The respondent's defence alleges that the complainant was on sick leave for a medical condition until 20 May 2001, but on Workcover leave from 21 May to 20 September 2001; then on certificates claiming psychological injury from September 2001 to April 2002; then on unpaid leave. This casts some doubt on the submission that the complainant was on "sick leave" from May 2001 onwards. This submission also sits awkwardly with the complainant's contention that, although she continued to suffer the impairment, she was fit to return to duty, albeit not at Highton Primary School, as from June 2002 (according to the report of Dr Holwill).

62 I therefore proceed to consider the issue of direct discrimination on the basis that the impairment consists of depression with agitation and phobic anxiety and does not include the characteristic of being on sick leave.

63 In the complainant's Outline of Major Points of Contention, it is alleged that the respondents discriminated directly against the complainant in breach of Sections 8 and 14 of the Act. The less favourable treatment or subjection to detriment is alleged to be the denial of a transfer in March 2002 of the complainant to North Shore Primary School, or the withdrawal of such an offer of a transfer which, it is alleged, was apparently agreed to by the Department, Mr Salmon, and the Principal of North Shore Primary School in early 2002.

64 It is alleged that the reason given by the respondents for the denial of the transfer or the withdrawal of the offer of the transfer was that the complainant was on sick leave which, it is contended, is a characteristic of her impairment. It is therefore contended that the complainant was treated less favourably than the Department and Mr Salmon did or would have treated other teachers offered such a transfer without an impairment or without the impairment suffered by the complainant.

65 The evidence reveals that the proposed transfer of the complainant from Highton Primary School to North Shore Primary School did not proceed. The evidence as to the reasons for this is summarised below.

66 Ms Titman's evidence in relation to this issue was straightforward and unequivocal. In her (undated) statement, she said that she was contacted by Mr Gorman of the Department in February or March 2002 and agreed to consider taking Mrs O'Connor in at North Shore Primary School as part of a return to work program, provided funding for her placement came from elsewhere. She arranged to meet Mrs O'Connor on 12 March 2002 and informed her of her concern that the school could not afford any additional staff unless funding was provided form elsewhere. She also informed Mrs O'Connor that North Shore Primary School could only accommodate her if such funding was made available and this issue was yet to be resolved.

67 At the hearing, Ms Titman confirmed that she raised the issue of funding with Mrs O'Connor and told her that any position depended on funding. She said she knew that someone else would pay Mrs O'Connor's salary and that it would not come out of her school's budget. She said there was no position available at her school for a teacher but that she was going to create a position for Mrs O'Connor as a grade 3-4 teacher by pulling a teacher out of that class and assigning that teacher to work on literacy development for the school. She said that after meeting Mrs O'Connor she rang Mr Gorman and told him she was interested in having Mrs O'Connor at the school, provided the funding was available. She said that Mr Gorman said he could not give her a response straight away, and that placement at North Shore Primary School was one of the options being considered. She said she heard nothing until April 2002, when she learned that the funding had fallen through. She said she was not told why the funding was not forthcoming. She said she could not afford to hire Mrs O'Connor without such external funding. She said she did not see the letter sent by Mr Salmon to Mrs O'Connor dated 20 March 2002.

68 Ms Titman said she did not raise the performance review received by Mrs O'Connor from Mr Salmon. She said that she subsequently employed Mrs O'Connor as a relief teacher on three or four occasions and confirmed she had told Mrs O'Connor she had trouble locating her on other occasions.

69 I found Ms Titman to be a forthright and reliable witness, and I accept her evidence. In particular, I accept her evidence where it conflicts with that of Mrs O'Connor, that she told Mrs O'Connor that she did not have the funding for the proposed position, that the position all depended upon funding, but also that Mrs O'Connor needed to express an interest in it for it to be able to proceed.

70 Mr Salmon said at paragraph 14 of his statement that he sought advice from the School Staffing Unit about the proposed transfer of Mrs O'Connor to North Shore Primary School, and was told:

(a) the Department was not able to approve the temporary transfer or placement in other schools of teachers who are on sick leave and that, in accordance with Department staffing guidelines, Mrs O'Connor was only eligible for placement at another location through local selection procedures; and

(b) teachers who had been absent from work for more than 13 weeks due to illness or injury, needed to be examined by a medical practitioner approved by the Secretary prior to being permitted to return to work.

71 On 20 March 2002, Mr Salmon wrote a letter in the following terms to Mrs O'Connor:

I wish to inform you that the Department of Education and Training is not able to approve your temporary transfer or placement in another state primary school in the Geelong region as discussed at the conciliation meeting dated 8th March 2008 (sic). This process is not available to a teacher on sick leave. In accordance with current staffing guidelines, you are only eligible for placement at another location, through local selection procedures.

I would also like you to consider a return to work at Highton Primary School where a position for you continues to be available. I have enclosed a copy of Section 6.9.2. Supporting documentation for sick/carer's leave from the Victorian Government Schools Reference Guide dated November 2001 to draw your attention to the need for an examination by a registered medical practitioner, approved by the Secretary, prior to your return to work in any state school. If you decide you would like to return to work, please contact me to arrange an appointment with an appropriate practitioner.

Thank you also for providing a medical certificate for the period 01.03.02-05.03.02. I would also like to remind you that a further certificate is required for the period commencing 21.12.01 to the 29.01.02. Due to the fact that you did not work a minimum of four weeks in the previous term, you are ineligible for school holiday payment. We also require a further certificate for the period commencing 06.03.02 through to 28.03.02 at which time your sick leave credits will be expired. This calculation takes into consideration your public holiday payment entitlements.

I would appreciate your support in informing me of your decision as soon as possible to enable us to organise our teaching contracts for next term. If you decide that you are still not well enough to return to Highton Primary School, then you may make application for the one of the following options:

Long service leave (Entitlement statement attached)

Please find enclosed a police records check application, as requested along with your current pay advice.

72 At the hearing, Mr Salmon said that he had not raised the issue of medical clearance with Mrs O'Connor in December 2002, nor did he raise it with Ms Titman. He said that this was because he only found out about the need for medical clearance after learning that Mrs O'Connor had visited North Shore Primary School. He said that after December 2002 he contacted the staffing unit of the Department, spoke with Robert Adams and learned of the requirement for medical clearance. He said Mr Adams did not mention any funding problem. He said Mr Adams advised him to inform Mrs O'Connor that the transfer could not occur. He said that the Department approved the final form of the letter dated 20 March 2002, and in particular the sentence on sick leave in the first paragraph of the letter. Mr Salmon agreed that the reason the letter did not specifically tell Mrs O'Connor to obtain medical clearance in order to enable her to be transferred to North Shore Primary School was that the transfer to that school was no longer possible, given the tight time lines.

73 Mr Salmon also agreed that after this letter was sent to Mrs O'Connor he did not pursue the option of other transfers to other schools, because she lacked the requisite medical clearance. He said he believed that once he had notified Mrs O'Connor of the need to obtain medical clearance, there was nothing he could do until she agreed to be medically examined for that purpose. He agreed that he did not notify her of any vacant positions between March 2002 and early 2003 because he was not asked to, and because he was waiting for her to request that a doctor's appointment be made to obtain medical clearance.

74 When asked why Mr Salmon did not simply require Mrs O'Connor to obtain the necessary medical clearance for the transfer to North Shore Primary School, Mr Salmon said he understood that the position needed to be filled quickly, and that there was not sufficient time for the whole medical clearance process to take place. He said he did not know that a new position was being created for Mrs O'Connor; and, in his mind, the problem was that the medical clearance process could not be completed in time and the particular transfer would not proceed.

75 At paragraphs 10-14 of her Statement in Reply, Mrs O'Connor said she was not told the transfer was contingent on funding, or on obtaining medical clearance. She said the first time she became aware of any requirement to obtain medical clearance was during the course of the processing of the complaint through the Equal Opportunity Commission in December 2002.

76 In cross-examination, Mrs O'Connor agreed that she was informed of the requirement for medical clearance in March 2002, but thought "it was in relation to the school - North Shore". She said she read Mr Salmon's letter carefully, but since her "certificates" said she was fit to teach anywhere else other than Highton Primary School, she felt she did not need clearance to go elsewhere. Although she did not specify the nature of the source of these certificates, I have understood her to be referring to medical reports provided by Dr Skeen in May and September 2001 in the context of Workcover matters.

77 Mrs O'Connor agreed that she did not obtain medical clearance to return to work at that time, and that she instead extended her sick leave. She said the letter from Mr Salmon was an effort to get her to return to Highton Primary School. She said she did not know she needed medical clearance to go to North Shore Primary School. She said she was upset that the transfer could not proceed. She said she "was not bothered" by paragraph 2 of Mr Salmon's letter (above), and that she could not believe she "was being asked to return to a school that caused me so much difficulty."

78 It was submitted on behalf of the complainant that the respondent had given three reasons for the failure of the transfer to North Shore Primary School to go ahead. The documents at the time, in particular the letter from Mr Salmon dated 20 March 2002, are said to support the proposition that the reason the transfer could not proceed was because the complainant was on sick leave. It was submitted that Mr Salmon agreed that he thought this was the reason at the time he wrote his letter dated 20 March 2002. It was submitted that it was only later that the Department and Mr Salmon said that the real reason for the failure of the transfer to go ahead was that funding fell through. It was submitted that the third reason, the absence of medical clearance, was not in issue between the parties at the time and was supplied in an attempt to reconstruct the facts. It was submitted that the complainant was never told that the reason for the failure of the transfer to proceed was that she lacked medical clearance, and the reason she was given was that it could not go ahead because she was on sick leave.

79 Since being on sick leave was a characteristic of the complainant's impairment, according to the submissions made by counsel for the complainant, it followed that the reason for the failure of the transfer to occur was by reason of the complainant's impairment.

80 It was submitted on behalf of the respondent that being on sick leave was not a characteristic of the complainant's impairment and that the complainant being on sick leave was only relevant to the failure of the transfer to proceed in the sense that she lacked the necessary medical clearance to permit her to return to duties. It was submitted that any teacher seeking to return to work after a period of 13 weeks continuous absence from duty due to illness would have to meet the requirements of TSO 179. And even with such clearance, it was submitted, such a transfer might not have occurred if the necessary funding was not available.

81 I am not satisfied on the evidence that the transfer to North Shore Primary School failed to proceed because of the complainant's impairment, namely that she suffered depression with agitation and phobic anxiety. Assuming for the moment that the complainant was on sick leave from May 2001 to July 2003, it does appear on the evidence that being on sick leave was one of the reasons for the failure of the transfer to proceed. It also appears that being on sick leave was only an obstacle in the sense that the complainant lacked the necessary medical clearance to return to work, and did not take any steps to obtain such clearance in accordance with TSO 179 until some time in 2003. If the absence of medical clearance is more appropriately viewed as a separate reason, as submitted on behalf of the complainant, there was still another reason on the evidence before me: the absence of funding.

82 However, even assuming that the substantial reason for the failure of the transfer to proceed was found to be that the complainant was on sick leave in March 2002, because of the failure of the complainant to establish that being on sick leave was a characteristic of her impairment, the reason for the treatment of her (in terms of the failure of the transfer to proceed), cannot be regarded as being related to her impairment, and therefore does not constitute direct discrimination within the meaning of s.8 of the Act.

83 Finally, even if it were appropriate to treat being on sick leave as a characteristic of the complainant's impairment of depression with agitation and phobic anxiety, and even if a substantial reason for the failure of the transfer to North Shore Primary School to proceed was the complainant's impairment, s.69(1)(b) of the Act would be made out by virtue of the provisions of TSO 179, preventing any teacher absent from duty on account of illness for more than 13 weeks from returning to duty "unless and until a medical practitioner approved by the Secretary has certified that he or she is fit to resume work."

84 Accordingly, the claim for direct discrimination must fail.

85 It is submitted on behalf of the complainant that during the period May 2001-July 2003, the respondents indirectly discriminated against Mrs O'Connor by imposing a condition or requirement on her that she work at Highton Primary School. It was submitted that she could not comply with this requirement by reason of her impairment, based on the medical reports of Dr Skeen and Dr Holwill, and the conclusions therein that she was fit to work at schools other than Highton Primary School. It was submitted that the requirement that she teach at Highton Primary School is a requirement with which a higher proportion of people without the complainant's impairment (namely depression with agitation and phobic anxiety) can or do comply with. Finally, it was submitted that the requirement was not reasonable in the circumstances.

86 It was submitted on behalf of the respondents that they imposed conditions that:

(a) the complainant be certified fit for her teaching duties before she could engage in teaching and that this occur through a medical examination by a practitioner appointed by the Secretary to the Department; and

(b) on being certified fit for teaching duties, if she did not wish to return to Highton Primary School, the complainant secure a position elsewhere in accordance with Departmental practices of merit selection, compassionate transfer and in excess transfer.

87 The respondent agrees that the complainant could not comply with the first condition while she remained unfit for teaching duties, although it submitted that the condition was plainly reasonable in the context of her employment. It was also submitted that the complainant could comply with the second condition, and that all teachers were required to comply with both conditions. It was submitted that the second condition was reasonable because it accords priority to merit selection procedures and limits transfers outside such procedures, for the whole workforce. It was submitted that the complainant was free to apply for a transfer through merit selection procedures, and that the reasons she was not appointed when such applications were made is not clear from her evidence.

88 It was submitted that the transfer to North Shore Primary School did not proceed because of the unavailability of funding and because of the complainant's refusal to be medically examined. It was submitted that the compassionate transfer policy applied to the complainant in the same way as it would to any teacher, and that important aspects of the policy include the support of the relevant principal and the absence of any outstanding performance issues. It was submitted that the evidence from Mr Adams was to the effect that the complainant was unlikely to have qualified under modified compassionate transfer criteria which have been in place since July 2003, and, in any event, she did not apply under those criteria.

The respondent also made submissions in the event that the complainant's characterisation of the relevant requirement or condition was accepted by the Tribunal. In this context, it was submitted:

i There was conflicting evidence as to whether the complainant could in fact comply with a requirement to return to Highton Primary School, and the expert opinion of Dr Holwill is not conclusive in light of the contrary evidence of Dr Nathar, but it is clear on the evidence that the department and Mr Salmon relied on Dr Nathar's opinion and believed it meant that the complainant was fit to resume her duties.

ii There was conflicting evidence as to whether it was the complainant's impairment, rather than her adoption of a stubborn refusal to return to Highton Primary School, which makes it difficult for the Tribunal to be satisfied that the reason she could not comply was because of her impairment.

89 If it were found that she could not comply with the condition because of her impairment, the respondent then submitted that it was open to it to rely on TSO 179 as founding a good defence pursuant to s.69 of the Act.

The condition or requirement imposed on the complainant

90 I do not consider that the narrative and the evidence in this case supports the conclusion that Mrs O'Connor was required, during the period from May 2001 to July 2003, to return to work at Highton Primary School.

91 First, there was little in her evidence to support a finding that the respondent "required" her to return to Highton Primary School between May 2001 and July 2003.

92 In one part of her evidence, the complainant agreed that the letter of 30 March 2002 included an invitation to her to contact Mr Salmon to arrange for the required medical appointment, and that she did not contact him. She said the letter of 30 March 2002 was an effort by Mr Salmon to "try to get me back to Highton", even though she agreed this was not stated in the letter. She said she did not think she needed medical clearance to go to North Shore Primary School . But she then agreed that she made no efforts to get the medical clearance referred to in the letter of 30 March 2002 and apply for jobs in the ordinary way and, instead, extended her sick leave.

93 Overall, I found the evidence of the complainant to be unconvincing and unsatisfactory. She displayed a rigidity of approach which made it difficult to accept her explanations of things. For example, she insisted that she did not have the ability or the knowledge to undertake applications on the merits to schools other than Highton Primary School because she did not understand or could not fill in the sections dealing with the selection criteria, or because she did not have a computer and could not access the Education Times on a regular basis, or because she did not have adequate support, but later agreed that she made her application to Corio Primary School after obtaining a copy of the Education Times. Later in cross-examination, however, she said she did not make any applications because she was "not allowed" to because she was on sick leave. Later again, when it was put to her that after April 2002 she was not on sick leave but on unpaid leave, she said that the reason for the failure to make applications was that she was hoping for a transfer. Finally, she alleged that the reason that she did not make applications was that Mr Salmon told her he would not give her any references when she applied for compassionate transfer. She agreed, however, that she had never asked Mr Salmon for references in relation to any such applications. When asked how she could regard herself as fit to resume teaching but not able to apply for a job, she responded that she was capable of applying, but "had no support".

94 I also found the complainant oddly intransigent about matters relating to her performance review by Mr Salmon. She maintained her insistence that the performance related matters raised with her concerned her poor paperwork, when it is clear on the material and the evidence that Mr Salmon considered she fell short of the required competencies in a number of areas. She insisted that she took on board the feedback in the performance review, and yet could not explain why she failed to sign the performance review undertaken by Mr Salmon.

95 For these reasons, I do not consider that the complainant's evidence assists me on the question as to the nature of the condition or requirement imposed upon her, her ability to comply with such condition or requirement, or the reasonableness of such a condition or requirement. The remaining evidence, particularly that of Mr Salmon and Mr Adams, supports the conclusion that the obstacle to a return to work by Mrs Connor was that, having been absent from duty on account of illness for more than 13 weeks, she was required to be certified medically fit by a medical practitioner approved by the Secretary to the Department, and that such examination did not occur until January 2003. Thereafter, the evidence was to the effect that there was no requirement that the complainant return to work at Highton Primary School. On the contrary, by April 2003, steps were being taken to allow the complainant to be declared in excess at Highton Primary School, which led to her current employment at Corio South Primary School.

96 The submissions made by counsel for the complainant merely assert that for the relevant period the requirement or condition was imposed that the complainant return to Highton Primary School. No evidence is cited to particularise the acts or facts relied upon. However, it appears that the letter of 20 March 2002 from Mr Salmon to the complainant is relied upon by the complainant as effectively marking the imposition of the requirement or condition that she return to Highton Primary School. No other later events or facts were relied upon by the complainant in submissions as establishing any other acts by which the imposition or a requirement or condition could be determined.

97 I therefore turn to consider the letter of 20 March 2002. Looking at the letter in its entirety, I do not consider that, in its terms, it requires the complainant to return to Highton Primary School. Paragraph 1 of the letter makes it clear that the complainant is only eligible for placement at another location through local selection procedures; while paragraph 2 makes it clear that medical clearance is required prior to a return to work to any state school. The final sentence of that paragraph merely invites the complainant to contact him to arrange an appointment with an appropriate practitioner if she wishes to return to work. The remainder of the letter deals with the mechanics of any further leave arrangements from Highton Primary School.

98 The subsequent narrative before me reveals no further requests by the Department of Mrs O'Connor until the letter from Mr Salmon dated 20 March 2003 advising her of Dr Nathar's conclusion, in his report dated 17 March 2003, that she was fit to resume her teaching duties at Highton Primary School and asking her to indicate whether she intended to resume duties on 6 April 2003. The complainant's response was to seek a further period of leave without pay which was approved and extended until 5 October 2003. By 16 April 2003, the process by which Mrs O'Connor would eventually be declared "in-excess" and obtain a position at Corio South Primary School, was well underway. I do not consider that the narrative or the evidence makes out any other imposition of a condition or requirement on Mrs O'Connor other than the ones to which I have referred namely, the requirement that she be certified medically fit for her teaching duties, and, if so certified, that if she wished to work in a school other than Highton Primary School, she secure such a position in accordance with the departmental practices of merit selection, compassionate transfer and "in-excess" transfer. As I understand the evidence, this is precisely what occurred.

99 In the light of my findings concerning the nature of the condition or requirement imposed upon the complainant, it is not necessary to further consider the questions as to the complainant's ability to comply and the reasonableness of the requirement.

100 I note, however, that counsel for the complainant referred me to a decision of Judge Duggan in this Tribunal dated 24 May 2002: Deborah Schou v State of Victoria. That decision was the subject of an appeal, which, at the time of the hearing of this complaint, had been heard but not determined by the Court of Appeal. The judgment in State of Victoria v Deborah Schou was published on 30 April 2004. On 11 May 2004, shortly before I was to hand down my decision in this case, an application was made on behalf of the complainant to file brief written submissions on the implications of the decision of the Court of Appeal. Orders were made at that time for the filing and exchange of such further written submissions by 25 May 2004. Written submissions have been filed on behalf of both parties, and these submissions have been considered.

101 By a majority (Phillips and Buchanan JJA, Callaway J dissenting) the Court of Appeal held that the Tribunal had misdirected itself by considering the reasonableness of the one-off proposal put forward by Ms Schou as opposed to the reasonableness of the "attendance requirement", as a general condition applicable to all employees and to be considered in that context.

102 Before me, the question of reasonableness was addressed on behalf of the complainant in terms of evidence and submissions relating to the alleged failure, between May 2001 and July 2003, of the Department to arrange alternatives to a return to Highton Primary School by Mrs O'Connor, such as brokered transfer, compassionate transfer or "in excess" transfer. However, in the light of my finding that the complainant has not made out the first part of her claim, that the respondents imposed a requirement or condition on her that she return to work at Highton Primary School, it is not necessary for me to consider the reasonableness of such a condition or requirement. Moreover, the complainant did not seek to establish that the conditions or requirements which I have found to have been imposed on the complainant were unreasonable. For this reason, it is unnecessary for me to consider the reasonableness of the condition or requirement which I have found was in fact imposed upon the complainant.

103 Finally, even if unlawful indirect discrimination is otherwise established, the respondents are entitled to rely on s.69 of the Act in respect of the requirements imposed on all teachers under TSO 179.

104 For all the above reasons, the claim of indirect discrimination also fails.

105 It follows that the complaint has not been proven and must be dismissed. I reserve the question of costs.