Owen v Serendipity

Federal Court of Australia|2020-12-21|Before: McKerracher J

Leave to commence this proceeding, which is otherwise barred by operation of s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth), is refused.
Unless the respondent applies within 10 days from the date of these orders for its costs, there be no order as to costs.
If the respondent does apply for its costs in compliance with order 2, the parties are to file and serve submissions (not exceeding three pages) within 14 days of that compliance, such application to be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 The applicant, Mr Owen, seeks leave to institute proceedings in this Court after his complaint to the Australian Human Rights Commission, alleging unlawful disability discrimination, was terminated by the President of the Commission on the ground that it is lacking in substance. The respondent, Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM), is Mr Owen's former disability employment service (DES) provider. It is contracted to the Commonwealth through the Department of Social Services to provide employment services under the 'Disability Employment Services Grant Agreement'. Having indicated that it neither consented to, nor opposed the grant of leave, APM was excused from appearing in relation to the question of leave. Orders were made accordingly and Mr Owen was given a further opportunity to file materials in support of his application before the matter came on for hearing. 2 Relevantly, APM's role as a DES provider includes the creation of a job plan for people who apply for certain types of income support payments from the Commonwealth through the Department. Receipt of these support payments is contingent on meeting the requirements of the job plan. To date, Mr Owen has made two complaints to the Commission regarding a Job Plan that APM created for him on 26 September 2018. Mr Owen presently seeks leave in relation to the second complaint. 3 In the initial complaint to the Commission dated 1 February 2019, Mr Owen disputed the assessment in the Job Plan of his weekly work capacity which was set at 22-29 hours. APM responded to that previous complaint. The complaint was closed on 9 September 2019 on the basis that the President's delegate was satisfied that the complaint was lacking in substance. 4 The present complaint was filed in relation to the same Job Plan of 26 September 2018. This complaint related to the number of job searches that Mr Owen is required to undertake each month. 5 Mr Owen relies on the following matters: (a) a diagnosis of chronic back pain following a work place accident in August 2000; (b) his father suffers from dementia and Mr Owen is committed to visiting him during the day and returning at 8.00 pm to settle him each night; (c) on 26 September 2018, he met with an employee of APM and discussed his employment needs and the ways he needs to assist his father; (d) APM created the Job Plan for Mr Owen, which required the search for 12 jobs per month, rather than six, which was the number that was set out in a previous job plan. It informed Mr Owen that this was based on Centrelink's assessment of his work capacity and that he would have to pursue any complaint about this assessment with Centrelink; and (e) Mr Owen says that APM did in fact have the discretion to change the number of job searches he was required to conduct per month, but failed to enter into any discussions or negotiations with him about this and gave no consideration to his pain management and his obligations to his father's care and his current employer. 6 The Commission obtained clarifying information from APM in December 2019, which was also sent to Mr Owen in April 2020. The response from APM explained that: (a) job search requirements are determined by DES providers such as APM based on a participant's current circumstances and local labour market conditions. The majority of participants are usually required to undertake 20 job searches per month; (b) when setting and approving the terms of a participant's job plan, the DES provider must take into account a range of individual circumstances, such as illness, injury or disability, education level, travel, vulnerabilities, cultural factors, family and caring responsibilities; (c) the fact that Mr Owen's job search requirements were reduced from 20 per month to 12 per month demonstrates that his circumstances were taken into account; (d) a copy of the job plan is given to the job seeker when updated and signed, and includes information on what to do if the job seeker disagrees with a decision the DES provider has made, namely, to contact the Department of Jobs and Small Business' national customer service line. The job plan also provides the Ombudsman's Office as a further escalation point. APM also have a national complaints process that could have been accessed by Mr Owen to request a review of the Job Plan if he had concerns with the number of job searches being listed in the Job Plan; and (e) APM have no additional records of complaints, other than the two Commission complaints that they have received. 7 APM provided the Commission with a copy of the 'Job Plan and Scheduling Mutual Obligations Requirements: Guidelines for DES providers', which confirmed that participants are usually required to undertake 20 job searches per month. 8 On 13 May 2020, Mr Owen provided further information to the Commission, indicating that: (a) he live in community housing with his mother who was recovering from breast cancer and has become gradually more reliant on him for day-to-day needs; (b) his father was in a high care facility with dementia and Mr Owen visited him regularly and took him to the shops whenever possible. He also attend art classes on Monday mornings; (c) he was required to submit 72 job applications between 26 September 2018 and 12 March 2019; (d) APM stated that the requirement that he complete 12 job searches per month is of general application for all APM's participants, which implies that a portion of job plans do not meet the requirement to consider a participant's individual circumstance when setting mutual obligations; and (e) the Job Plan did not take into consideration how Mr Owen's disability affected his ability to look for work, to meet his family and caring responsibilities, and his participation within the labour market and beyond. 9 In the course of considering whether the complaint should be terminated pursuant to s 46PF(1)(b) of the Australian Human Rights Commission Act 1986 (Cth), the President noted that she must terminate a complaint if satisfied that the complaint is misconceived and/or lacking in substance. The President said that having considered all the information provided, she had decided to terminate the complaint under s 46PF(1)(b) and s 46PH(1B)(a) of the Act. 10 Section 46PH of the Act relevantly provides as follows: 46PH Termination of complaint … Mandatory termination of complaint (1B) The President must terminate a complaint if the President is satisfied that: (a) the complaint is trivial, vexatious, misconceived or lacking in substance; or (b) there is no reasonable prospect of the matter being settled by conciliation. 11 The President then gave her reasons in the following terms: … Reasons for my decision The Law Direct disability discrimination is defined in section 5 of the DDA. To support a claim of direct disability discrimination, a complainant is required to provide or point to information which indicates that because of their disability, they were treated less favourably than a person without the disability would have been treated in circumstances that are not materially different. Indirect disability discrimination is defined in section 6 of the DDA. To support a claim of indirect disability discrimination a complainant is required to provide, or point to, information which indicates that: • a respondent requires them to comply with a requirement or condition; • they are unable to comply with that requirement because of their disability, • or would be able to comply but for the respondent's refusal to make a reasonable adjustment; and • the requirement has the likely effect of disadvantaging persons who have the disability. The law says that it will not be indirect disability discrimination where a respondent can demonstrate that the requirement or condition is reasonable in the circumstances. In your complaint and further submissions on 13 May 2020, you refer to your role caring for your mother and father, however the DDA does not contain provisions specifically relating to discrimination in relation to people who provide care to others who may have a past or present disability. The DDA does provide for discrimination on the ground of a person's association with a person with a disability, but it is very unclear how it could be argued that this section applies to the subject matter of your complaint. Consideration of the provided information Your complaint is understood to be about APM's assessment that you search for work by contacting 12 employers per month, as part of meeting your mutual obligation requirements. The information before the Commission indicates APM, as a DES provider, determined your job search requirement and that your Job Plan states that you agreed to contact 12 employers per month. You appear to say that you only agreed to this because you believed that APM had no discretion to change this requirement because it was assessed by Centrelink. Possible claim of direct disability discrimination To support a claim of direct disability discrimination it is not enough for a person to say that they have a disability and that they were treated in particular manner. Rather, there needs to be information to support a causal connection between their disability and the way they were treated. Similarly, there needs to be information to support that you were treated less favourably compared to a person who does not have your disability in circumstances that are not materially different. I understand that you disagree with APM's assessment of the appropriate number of job searches in your Job Plan and you also appear to say that APM failed to follow the 'Job Plan and Scheduling Mutual Obligation Requirements Guidelines,' (the Guidelines) which requires that your individual circumstances are taken into account. However, there is insufficient information to support that APM determined that you complete 12 job searches per month or failed to take into account your individual circumstances, because of your disability. Similarly, there is insufficient information to support that you were treated less favourably than a person who does not have your disability (chronic back pain) in circumstances that are not materially different, noting that all Participants of the DES program who have a Job Plan also have a disability. In fact, the Guidelines state that the majority of Participants will usually be required to undertake 20 job searches per month. It therefore it [sic] appears that this requirement was reduced in your case to 12 searches per month, taking into account your individual circumstances. You also raise concerns about the number job searches [sic] having increased from your previous Job Plan and you claim that APM incorrectly advised you that the number of job searches was determined by Centrelink and not APM. However, it is unclear how it could be argued that any increase in the number of job searches or the provision of any incorrect information was because of your disability and/or that you were treated less favourably than a person who does not have your disability in circumstances that are not materially different. Possible claim of indirect disability discrimination It is unclear what specific requirement or condition you say APM has imposed on you. Case law supports that for the purposes of section 6 of the DDA, the requirement or condition must be of 'general application' or 'facially neutral' [Abela v State of Victoria [2013] FCA 832] and that the requirements or conditions are identified with a degree of precision necessary to allow a respondent to respond to the claim [Walker v Victoria (State of Education and Early Childhood Development) [2005] FMCA 954]. There does not appear to be information currently before the Commission to support a claim that the requirement that you complete 12 job searches per month is of general application to all APM's participants. I have considered that a possible requirement imposed by APM may be that it requires participants to agree to a Job Plan with mutual obligation requirements/compulsory Participation Requirements. However, it is unclear how you say you could not comply with a Job Plan because of your chronic back pain or that the requirement to agree to a Job Plan disadvantages people with chronic back pain. Rather, as noted above, you appear to disagree with APM's assessment of your individual circumstances in determining the number of job searches in your Job Plan. As noted above, APM has indicated that where a person disagrees with a decision of the DES provider, they may contact the Department of Jobs and Small Business National Customer Service Line and the Ombudsman's office. Also, a person may access APM's internal complaints process to request a review of the Job Plan. It appears that you have not pursued these avenues. Overall, after considering the above factors, I have decided to terminate the complaint as I am satisfied that the complaint is lacking in substance. Possible further action The [Act] says that after a complaint is terminated, the person affected by the alleged discrimination may be able to apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court of Australia (FCA) to have the allegations decided by the court. The law also says that if a complaint is terminated under section 46PH(1B)(a), an application to the court can only be made if the court concerned grants leave to make the application. If you apply to the FCCA or the FCA, you will need to attach the following documents to the application: • this letter; • the enclosed Notice of Termination; and • the enclosed copy of the complaint. Any application to the court must be made within 60 days of the date on the Notice of Termination. If a matter proceeds to court, the FCCA and FCA can award costs against either party. Information about the court or the court process is available from a court registry or from its websites at and . …

THE APPLICATION IN THIS COURT 12 In support of his application to commence proceedings in this Court, Mr Owen relies upon two affidavits, which substantially repeat the material outlined above and a proposed statement of claim. 13 In the course of brief oral submissions at the hearing of this application, Mr Owen confirmed that his contention was that the demands of the care he committed to his father, combined with his commitment to work made it difficult for him to manage his chronic back pain and meet his domestic needs and responsibilities. These factors led him to reduce his weekly work commitment to one shift of three hours per week. 14 He contends that he has been indirectly discriminated against for the purposes of s 6 of the Disability Discrimination Act 1992 (Cth) (the DDA). Mr Owen confirmed that his case was put on this basis. 15 As a consequence of Mr Owen's disability and, he contends, in contravention of s 6 of the DDA, the Job Plan created by APM required him to commit hours of his time each month, which he would otherwise spend with his father, to search for work. He was unable to commit this amount of time, without reducing the time he spent with his father and the time he spent with meeting his domestic needs and responsibilities and maintaining his mental health. He says it was the responsibility of the consultants, APM, to ensure that he was able to meet his mutual obligations in his Job Plan. The employment consultants at APM made no effort, he says, to help him comply with his Job Plan. 16 Mr Owen confirmed that he is aware now, but was not at the time of the complaint being terminated by the President of the Commission, that where a person disagrees with a decision of the DES provider, the person can contact the Department of Jobs and Small Business' national customer service line and the Ombudsman's Office and a person may also access APM's internal complaints process to request a review of the Job Plan. 17 Even though that information has been in the hands of Mr Owen for some time, he has not pursued any of those avenues. Mr Owen explained that he told the staff at APM that he was taking a complaint to the Commission from the outset and that pursuing the matter through the Department of Jobs and Small Business just created more work. He anticipated that by going to the Commission, the complaint would have been resolved by mediation between the parties.

CONSIDERATION 18 The issue to be determined is whether leave should be granted pursuant to s 46PO(3A)(a) of the Act for Mr Owen to institute proceedings for a claim of unlawful discrimination under the DDA. 19 Section 5 and s 6 of the DDA provide as follows: 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. 6 Indirect disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. (Underlining added, emphasis in original.) 20 In James v WorkPower Inc [2018] FCA 2083, Mortimer J said (at [37]-[38]): 37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. (Emphasis added.) 21 The views of Mortimer J were confirmed in Matthews v Markos [2019] FCA 1827 by Abraham J (at [29]-[33]) and also in Budini v Sunnyfield [2019] FCA 2164, where Charlesworth J said (at [52]): To her Honour's observations I would add the qualification that in a case where a respondent to a complaint alleges that the allegations have no reasonable prospects of success, the Court may be guided by the same principles informing the exercise of discretionary powers such as that conferred by r 26.01 of the Federal Court Rules. It would not serve the interests of the administration of justice to grant leave to commence an action that would be liable to be the subject of an order for summary judgment in whole or in part either because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or … (c) no reasonable cause of action is disclosed (Emphasis added.) 22 As noted in Jones v Westpac Banking Corporation [2020] FCA 238 by Kerr J (at [87]), granting leave to commence a claim with 'no realistic prospects of success…' would be contrary to the purpose of s 46PO(3A) of the Act, 'which was designed to filter out cases where the merits are disproportionate to the time and resources likely to be consumed'. 23 That approach has also been recently applied by Gleeson J in Rossi v Qantas Airways Limited (No 2) [2020] FCA 1080. I respectfully concur with all those analyses and would add that allowing misconceived applications to be maintained only produces an ultimately deleterious outcome for the applicant as well as the respondent. No good purpose at all can be served by mindlessly permitting such applications. 24 I do note also that Mr Owen seeks an extension of time within which to file the application. He explains the minor delay in filing the application and nothing in my assessment turns on that minor delay. Clearly the Court has a discretion under s 46PO(2) of the Act to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, other than by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (at 40). There was an adequate explanation for the delay. There is no prejudice to APM (in fact, APM does not wish to be heard on the application), but the real consideration is the prospects of success of the application if an extension were to be granted.

MERITS OF THE APPLICATION 25 Mr Owen has made it clear that his claim is based on indirect disability discrimination, but these concepts are not without their complexity and I would approach the matter on the basis that the application might better be considered on a claim of direct disability discrimination as well as indirect disability discrimination. 26 When doing so, I am unable, with respect, to fault the reasoning of the President of the Commission which is set out above (at [11]). 27 Dealing first with a possible claim of direct disability discrimination, for the purpose of s 5 of the DDA there needs to be information to support a causal connection between Mr Owen's disability and the way he was treated, such that he could demonstrate he was treated less favourably compared with a person who did not have his disability in circumstances that are not materially different. In that regard, there was no information to support a conclusion that he was treated less favourably than a person without the chronic back pain disability in circumstances that are not materially different. All other participants of a DES program also have a disability. In fact, whilst it might not satisfy Mr Owen, he was treated more favourably than the majority of participants. The Guidelines suggest a usual requirement to undertake 20 job searches per month, whereas that requirement was reduced in his instance to 12 searches per month on account of his individual circumstances. It may well be that Mr Owen considers that in light of his other family and personal responsibilities that he should have to undertake fewer job searches, but that is not the appropriate yardstick for this form of discrimination. 28 Turning to indirect disability discrimination, Mr Owen has not identified any information to support a claim that the requirement that he complete 12 job searches per month is of general application to all of APM's participants. Indeed, the only evidence appears to be that this is not so. The President was correct to observe that it is unclear how Mr Owen can contend that he could not comply with a job plan because of his chronic back pain or that the requirement to agree to a job plan disadvantaged all people with chronic back pain. The real gravamen of his complaint is the assessment by APM of his individual circumstances in determining the number of jobs searches he was required to carry out in his Job Plan. Again, it may well be that Mr Owen considers that in light of his other family and personal responsibilities that he should have to undertake fewer job searches, but that is not the appropriate yardstick for this form of discrimination either. 29 To the extent that the discretion to be exercised requires consideration of the interests of justice, as will always be so, it is clear that there are other avenues through which these complaints can be pursued. Those avenues have not been explored. I am not suggesting any particular outcome from doing so, but I am simply pointing out that Mr Owen is not without a potential remedy.

CONCLUSION 30 In all these circumstances, the complaint raised by Mr Owen does not fall within the legislative compass of the relevant discrimination legislation. As such, it would not enjoy sufficient prospects of success to warrant the granting of leave to pursue it in this Court. Mr Owen himself would be exposed to a claim in costs should he fail and it is preferable, I think, that the claim with no real prospects of success should be finalised at an early stage before Mr Owen is exposed to disappointment and expense in the court process. 31 As leave to bring the application has been refused, it is unnecessary to rule on the application for an extension of time. There will be no order as to costs unless APM applies within 10 days for costs. In that event (which at least on the relevant facts as I know them, seems unlikely in this instance), the parties should exchange submissions not exceeding three pages and the question of costs will be resolved on the papers unless the Court otherwise orders. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.

Australian Human Rights Commission Act 1986(Cth)ss 46PF(1)(b), 46PH(1B)(a), 46PO(1), 46PO(2), 46PO(3A), 46PO(3A)(a)

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