Peng v Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division

NCAT Administrative and Equal Opportunity|2018-04-06|Before: Dr J

Solicitors: B Edghill (Agent for Applicant) Legal officers of Respondent (Respondent) File Number(s): 2017/00194166

REASONS FOR DECISION

Mr Peng was a laboratory scientist in the Drug Toxicology Unit at Macquarie Hospital. He suffered from mild bilateral epicondylitis, colloquially known as "tennis elbow." The condition may be exacerbated by lifting heavy objects.
In March 2016, the respondent ("the employer") terminated his employment. The employer explained that this decision had been made on the basis that Mr Peng was unable to fulfil the inherent requirements of his position due to his medical condition.
Mr Peng claimed that his employer, in dismissing him, had directly discriminated against him on the ground of his perceived or actual disability, contrary to s 49D(2)(c) of the Anti-Discrimination Act 1977 (NSW) ("the Act"). He sought damages of $100,000 by way of compensation for loss or damage suffered as a result of his dismissal.
We have found that the employer did discriminate against Mr Peng on the ground of disability when dismissing him. However, we have also found that this discrimination was not unlawful, because we are satisfied that Mr Peng was unable to carry out the inherent requirements of his particular employment and could not have done so with any reasonable additional services or facilities.

Background

Mr Peng commenced work as a research scientist at the Royal North Shore Hospital in 1992. In 2008, he transferred to the Drug Toxicology Laboratory in Macquarie Hospital.
Mr Peng's work involved testing up to 120 samples a day. The samples were generally tested to determine whether they contained drugs of abuse and/or therapeutic compounds. This involved repetitive work using his hands and arms, including capping test tubes tightly using a screwing motion. He had to move chemical bottles weighing up to 4 kilograms from a cabinet to a bench and pour the chemical solutions into smaller bottles 12 or 13 times a day. He also had to move sixty trays holding the samples. The trays weighed about 3 kilograms each.
Towards the end of 2008, Mr Peng developed pain in both his wrists. This later spread to his elbows.
In 2011, Mr Peng made a claim for workers compensation, which was accepted. He worked part time for seven weeks then returned to his usual duties. Mr Peng experienced pain in his wrists again in 2012 and took more than two months off work.
Mr Peng worked part time until his workers compensation claim was declined in November 2014. He took leave without pay for two months then returned to work on restricted duties, working 20 hours per week.
In February 2015, Mr Peng informed his manager that he was experiencing pain. Mr Peng was directed to take sick leave due to concerns for his safety in the workplace.
On 11 May 2015, Mr Peng's employer directed him to attend an independent medical examination with Dr Bosanquet, a consultant orthopaedic surgeon.
Dr Bosanquet provided a report on 26 May 2015. Dr Bosanquet expressed the following opinions in his report: 1. Mr Peng has mild bilateral lateral epicondylitis of the elbows; 2. The condition has stabilised; 3. There was no reason why Mr Peng could not resume his role as a hospital scientist with some modifications. Rotating through various roles would assist in minimising aggravation of his underlying condition; 4. "The condition is aggravated by repetitive lifting. Minimising the amount he lifts, ie 2 kg, would certainly reduce recurrence. With the modifications mentioned above, an upgrade could occur after three months pending review"; 5. With appropriate modifications to Mr Peng's workplace, which should involve rotation through various tasks, he should be able to return to his full-time duties.
In June 2015, Mr Peng attended a meeting at work to discuss Dr Bosanquet's report and Mr Peng's ongoing employment situation, including whether he could perform the inherent requirements of his position. After the meeting, Mr Peng chose to take long service leave at half pay.
Mr Peng was dismissed on 6 March 2016. The letter of dismissal stated that the decision to terminate his employment "has been made on the basis that you are unable to fulfil the inherent requirements of your position due to your non-work related medical condition and that there is no medical information that suggests a return to your substantive position in the foreseeable future."
Mr Peng complained to the President of the Anti-Discrimination Board that his employer had discriminated against him in various ways. The President declined the complaint as lacking in substance: Act, s 92(1)(a).
The Tribunal, constituted by Magistrate Hennessy, granted leave for his complaint of disability discrimination to proceed: Peng v NSW Health Pathology [2017] NSWCATAD 288.

Claim of disability discrimination

Mr Peng claims that his employer directly discriminated against him on the ground of disability by dismissing him.
Section 49D(2)(c) of the Act provides that it is unlawful for an employer to discriminate against an employee on the ground of disability by dismissing the employee. A "disability" includes a disability that a person is thought to have (whether or not the person in fact has the disability) (Act, s 49A(b)).
What constitutes direct discrimination is set out in s 49B(1)(a) of the Act. That relevantly provides: "(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability …"
Section 49B(2) provides, by way of clarification: "(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability."
As Magistrate Hennessy said when granting leave for Mr Peng's complaint to proceed (Peng v NSW Health Pathology [2017] NSWCATAD 288 at [13]): "… in order to substantiate a complaint of direct discrimination on the ground of disability, Mr Peng would have to prove that: (1) he has a disability as defined in the Anti-Discrimination Act; (2) the respondent dismissed him; (3) in the same or similar circumstances the respondent would not have dismissed a person without that disability; (differential treatment) (4) one of the reasons for the dismissal was Mr Peng's disability (causation)."
It is not contentious that Mr Peng has a disability within the Act, or that the respondent dismissed him or that he was dismissed because of his disability. The contentious issue, in terms of the case Mr Peng has to prove, is whether the respondent treated him less favourably than, in the same circumstances, or in circumstances which are not materially different, the respondent would have treated a person who did not have his disability.

Differential treatment

In order to establish differential treatment, Mr Peng relies upon a hypothetical comparator. He identifies the comparator as a person in Mr Peng's position, with his qualifications, skills, training and experience as a hospital scientist, but without his disability and without the same alleged lifting capacity restrictions.
The employer submits that "the correct question which the Tribunal ought to ask itself is whether [the employer] treated Mr Peng less favourably than they would have treated another employee (without Mr Peng's disability) who was subject to the Lifting Limitation and the Training Requirement." The respondent described the "Lifting Limitation" as the "perceived inability to perform tasks which involve repetitive lifting and lifting more than 2kg" and the "Training Requirement" as the "requirement to employ staff (who themselves require training) to train the employee (over months if not years), as existing staff levels did not allow the training to be undertaken."
The respondent suggests that the hypothetical comparator is a person subject to the requirement that the respondent employ staff to train the person. This should be rejected. Dr Bosanquet recommended that Mr Peng be rotated through various roles, some of which he had not been trained to perform. However, Mr Peng was not a person subject to a "requirement to employ staff" (the respondent presumably means that Mr Peng was a person who required training, which required the respondent to engage and train further staff). We do not accept that this characteristic may be imputed to a hypothetical comparator, at least not in the way suggested by the respondent. Mr Peng wished to be rotated through duties, and needed training to undertake some of those duties, but never suggested that the employer was required to employ additional staff to train him.
The hypothetical comparator is someone with Mr Peng's skills and experience, without his disability, not someone subject to the requirement to employ staff.
The main issue between the parties is whether the hypothetical comparator is a person who has a perceived inability to engage in repetitive lifting and/or lifting certain weights. There is no dispute that the respondent perceived that Mr Peng was unable to do this at the time of the dismissal, whether or not this perception was justified.
The High Court decision in Purvis v New South Wales (2003) 217 CLR 92 ("Purvis") is relevant to the question of whether the hypothetical comparator is a person with perceived lifting restrictions. In that case, a teenage boy had behavioural problems which included behaving violently towards others. These behavioural problems were a result of his disabilities, which included brain damage. The school he attended suspended him several times due to his violent behaviour and finally excluded him from the school on the basis that he posed a danger to staff and students. The Human Rights and Equal Opportunity Commission found that the school had directly discriminated against the boy on the ground of his disability, contrary to the Disability Discrimination Act 1992 (Cth) ("the Commonwealth Act"). Section 5(1) of that Act was in similar terms to s 49B(1)(a) of the Act. The wording of the two provisions has been described as being "relevantly identical": Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 at [56].
The High Court by a majority of five to two held that s 5(1) of the Commonwealth Act required a comparison of how the discriminator treated or would have treated a person without a disability in the circumstances of the person's violent behaviour. It was argued for the disabled child that, since his disability is a disorder that results in disturbed behaviour, and since the disturbed behaviour took the form of violent conduct, then a person without the disability in the same circumstances must be taken to be a person who does not engage in violent conduct.
Gleeson CJ considered the boy's propensity to violence (at 101 [11]): "In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil 'without the disability' would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave."
In coming to the conclusion that the appellant's argument was incorrect, Gleeson CJ took into account that, "if the appellant's argument is correct, the Act places a school authority in a position of conflict between its responsibilities towards a child who manifests disturbed behaviour and its responsibilities towards the other children who are in its care, and who may become victims of that behaviour" (at 101 [12]).
Gummow, Hayne and Heydon JJ said at 160 [222] - 161 [224]: "It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the 'circumstances' to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability."
Callinan J agreed with the reasons of the plurality with respect to the comparator issue, adding that, in his opinion, "the Act cannot be sensibly read… as extending to behaviour which constitutes criminal or quasi-criminal conduct" (at 174 [271]).

Should differential treatment and causation be dealt with together?

Mr Peng's representative submitted that the correct approach, when there is a hypothetical comparator, is set out in Hunter v Deerubin Local Aboriginal Land Council [2011] NSWADT 202 ("Hunter"), as follows: "When there is no actual comparator and the comparator is a hypothetical person, the differential treatment question and the causation question amount to a single question; that is, 'Why was the person treated as he was?'"
A number of decisions of the former Administrative Decisions Tribunal support this position: see, for example, Green v Department of Family and Community Services [2013] NSWADT 193 at [86] and Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176 at [80].
Hunter is informed by the much-cited case of Dutt v Central Coast Area Health Service [2002] NSWADT 133 ("Dutt") at [63], where the Administrative Decisions Tribunal identified two questions to be asked when considering whether a person has been directly discriminated against, the first relating to differential treatment and the second relating to causation. It continued: "When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were."
Mr Peng also refers to the comment of the plurality in Purvis (at 163 [236]) that "the central question will always be - why was the aggrieved person treated as he or she was?"
We are not persuaded that the correct approach to determining whether there has been differential treatment, in this case, is that put forward by Mr Peng. The formulation of the question in Hunter relied on the formulation in Dutt. Dutt was decided before Purvis, so should be treated with some caution.
The "central question" referred to by the plurality in Purvis was only "central" to the "third issue argued in the appeal: was there less favourable treatment 'because of' disability?" (at 162-163 [234]). That is, their Honours only came to this issue after they had dealt with the issue of differential treatment. They described the proper approach this way: "Section 5(1) of the Act requires comparison between the treatment which the discriminator gives, or proposes to give, to the aggrieved person and the treatment that the discriminator would give, or would propose to give, to a person without the aggrieved person's disability 'in circumstances that are the same or are not materially different'. If that comparison reveals that the disabled person was treated less favourably, the further question which must be asked is whether that was because of the disabled person's disability."
The plurality criticised the primary decision-maker for eliding and treating as one "the two separate questions we have identified as being presented by s 5(1)" (at 162 [232]).
The plurality's judgment in Purvis, then, does not provide support for the approach advocated by Mr Peng; rather, it provides support for a two-stage approach, whereby the first question is whether there was differential treatment, and the second is whether the person was treated less favourably because of the person's disability. Callinan J appeared to agree with this approach, expressing his agreement with the plurality's reasons on the "comparator" issue (at 175 [273]). Gleeson CJ also adopted a two-step approach (at 100 [8]): "Two related questions arise. First, in comparing the treatment of the aggrieved person (here, the pupil) with the treatment that would be given to a person (another pupil) without the disability in the same circumstances, what, if anything, is the other pupil to be assumed to have done? On the appellant's argument, the answer is - nothing. Secondly, was the supposedly less favourable treatment of the pupil because of (on the ground of) the disability?"
Accordingly, High Court authority is clearly to the effect that the two issues should be dealt with sequentially.
We note that, in Vuong v Casabake Pty Ltd [2009] NSWADT 279 ("Vuong"), the Administrative Decisions Tribunal observed that, in Purvis, the High Court said that differential treatment and causation "must be treated separately and sequentially." The tribunal then said that this approach only applied to situations where there was an actual comparator. The tribunal continued: "when the comparator is a hypothetical person the differential treatment question and the causation question amounts to a single question, that is, why was the person treated as he was?" (at [35]-[36]). However, as the comparator in Purvis was hypothetical (see Purvis at [116], [135]), we consider that the comments in Purvis apply to a hypothetical comparator, notwithstanding what was said in Vuong.
For these reasons, we have given separate consideration to the questions of differential treatment and causation.

Was Mr Peng treated less favourably than a person without a disability?

Mr Peng argues that Purvis does not require the Tribunal to compare Mr Peng with a hypothetical person with the same alleged lifting capacity restrictions, because: 1. In accordance with the definition of disability provided at s 4 of the Anti-Discrimination Act, any lifting capacity restriction attributed to Mr Peng forms part of his disability; and/or 2. Purvis, in relation to the comparator issue, was based on behavioural issues and violent conduct. The decision does not require that everything associated with an applicant's disability, including the physical features of the disability, must be separated from the disability for the purposes of the comparison; and/or 3. The alleged lifting capacity restriction is not an objective fact, or part of the objective circumstances, that is to be attributed to the hypothetical comparator.
It may be accepted, as Mr Peng submits, that Mr Peng's disability is the malfunction of a part of his body within paragraph (c) of the definition of "disability" in s 4(1) of the Act. It may also be accepted, at least provisionally, that the "malfunction" includes an inability of his arms to function properly when lifting some objects, as Mr Peng also submits. However, we do not accept Mr Peng's submission that the "lifting capacity restriction" is part of Mr Peng's disability, because this is clearly a medical response to the disability, just as, say, a requirement that a person wear prescription glasses might be a medical response to an eyesight problem, but is not part of the disability itself.
Even if any lifting capacity restriction attributed to Mr Peng is a direct consequence of his disability, this does not produce the outcome Mr Peng contends for. That is because, in Purvis, where the statutory definition of "disability" included "a disorder … that results in disturbed behaviour," the High Court found that, notwithstanding the disabled child had such a disability, the "required comparison is with a pupil without the disability; not a pupil without the violence" (per Gleeson CJ at 101 [11]; see also Gummow, Hayne and Heydon JJ at 157 [210]-[212], 160 [222]).
The plurality in Purvis maintained (at 161 [224]) that the same or the similar circumstances, which must be considered when comparing the treatment of the disabled person with that of the comparator: "are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability."
Thus, Purvis explicitly rejected the argument that the circumstance that an attribute is a direct consequence of the claimant's disability or is connected with it means that it cannot be imputed to a hypothetical comparator.
Mr Peng's second point is essentially that Purvis should be distinguished on the basis that it was concerned with violent behaviour. He says that it does not require the physical features of a disability to be "separated from" the disability, for the purposes of the comparative exercise.
The majority's finding in Purvis that the comparator was a person exhibiting violent behaviour was explicitly connected in all three majority judgments with the legal issues concerning such behaviour. For Gleeson CJ, the legal context, including the educational authority's duties "to protect the young and vulnerable" (at 99 [7]), was relevant to the question of whether the comparator was a person exhibiting violent behaviour. His Honour said (at 99 [7]): "The Act, in its application to educational authorities, and in its prohibition of discrimination against persons on the ground of a disability, requires a judgment both as to alleged differential treatment and as to the ground upon which action was taken. In both respects, it is impossible to ignore the context in which the first respondent, by its officers, was acting. It was charged with the care and protection of all the pupils in the school in question. … If there is a reasonable construction of the Act which avoids a conflict between those responsibilities [to pupils and staff] and the obligations imposed by the Act, then that construction should be preferred."
Gummow, Hayne and Heydon JJ gave, as a reason in favour of their construction of the relevant provisions, that it "allows for a proper intersection between the operation of the Act and the operation of State and federal criminal law," pointing out that the boy's "actions constituted assaults" (at 161 [227]). Callinan J expressed the opinion that "the Act cannot be sensibly read… as extending to behaviour which constitutes criminal or quasi-criminal conduct" (at 174 [271]).
To that extent, there is some basis for considering that the circumstance that the behaviour in question was dangerous and unlawful formed a rationale for the Court's decision.
However, the Court in Purvis endorsed some general principles as to how s 5 of the Commonwealth Act, the provision equivalent to s 49B(1)(a) of the Act, was to apply. The plurality commented, for example, that, when considering the circumstances surrounding the treatment of the disabled person, it "would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability" (at 161 [224]). The plurality also justified its construction as being one "which embraces the importance of identifying (as part of the relevant circumstances) all the effects and consequences of disability that are manifested to the alleged discriminator" (at 162 [230]). These are comments of general application, which are not restricted to a situation where the circumstances connected with the disability include violent conduct.
Mr Peng says that his difficulties in lifting should not be attributed to a hypothetical comparator, because those difficulties are part of the disability. He submits (footnotes omitted): "Where, according to s 49B(l)(a), the Tribunal must determine whether the respondent treated Mr Peng 'less favourably than in the same circumstances, or in circumstances which are not materially different' the respondent 'would treat a person who does not have that disability', 'that disability' means Mr Peng's injury and/or medical condition affecting his elbows and/or arms and the physical malfunction that followed from them. To say that the physical manifestation of Mr Peng's disability (that is, the inability to lift certain objects or the difficulty in lifting certain objects) must be separated from his disability and attributed to the hypothetical comparator is akin to saying, in the case of an aggrieved person with paraplegia, that the appropriate hypothetical comparator is a person without paraplegia but who suffers from paralysis of the lower part of the body which renders them unable to walk. It has the effect of attributing the physical disability to the comparator and frustrates the operation of the Act."
The cases on which Mr Peng relies provide some support for his position, but more limited support than Mr Peng asserts.
In Baker v D & D Traffic Management Pty Ltd [2013] NSWADT 175, the Administrative Decisions Tribunal said that the "disability" to be considered under s 49B(1)(a), in the circumstances of the case, was the applicant's "ankle and back injuries and what followed from them" (our emphasis). However, it did not provide any explanation for these additional words, nor authority for this proposition, and it was not central to the tribunal's reasoning.
The Supreme Court (Greg James J) considered the question of the correct comparator for a firefighter who had lost an eye, in Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 ("Lavery"). The Appeal Panel of the Administrative Decisions Tribunal had upheld the Tribunal's decision that there had been differential treatment on the basis that the appropriate comparator for a non-operational Level 3 firefighter with a disability was a Level 3 fire-fighter without the applicant's disability. On appeal to the Supreme Court, the Commissioner submitted that the appropriate comparator was a non-operational Level 3 firefighter. Greg James J rejected this argument, as follows: "Applying Purvis the test is how would he have been treated if he was not disabled. The answer given by the Tribunal and the Panel was clearly right."
Lavery does not have anything to say, directly, about whether the comparator is a person with the physical limitations associated with a disability. Mr Peng's submissions quote the Appeal Panel's comments, cited by the judge, that "the consequence of Mr Lavery having a disability cannot be used to render the circumstances materially different"; however, this referred to the circumstance that the Commissioner had deployed Mr Lavery as a non-operational firefighter because of his disability. It has no direct application to the present case.
A case of greater relevance is the recent decision of the Queensland Court of Appeal in Woodforth v State of Queensland [2018] 1 Qd R 289. In that case, the applicant suffered from a severe hearing impairment and had a limited capacity to communicate orally. She claimed that the State had directly discriminated against her on the basis of impairment under the Anti-Discrimination Act 1991 (Qld) ("the Queensland Act"). Section 8 of that Act provided that discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that a person with any of the attributes generally has or a characteristic that is often imputed to a person with any of the attributes. The Queensland Civil and Administrative Tribunal had found that there was no differential treatment on the basis that the comparator was a person without the applicant's disability, who had communication difficulties.
McMurdo JA (Holmes CJ and Bond J agreeing) pointed out the differences between the Commonwealth Act, which was considered in Purvis, and the Queensland Act. His Honour commented at [53] "The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a 'characteristic'. In the present case it proscribed discrimination on the basis of the applicant's inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a 'circumstance' in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic. The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10."
The Court distinguished Purvis on the basis of s 8 of the Queensland Act and proceeded to find that the correct comparator was a person without communication difficulties. The Act has no equivalent of s 8 of the Queensland Act, so this reasoning does not assist Mr Peng. (We note, as an aside, that s 4 of the Disability Discrimination Act was amended in 2009 to include the following: "To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability": see Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112 at [57]. Again, there is no New South Wales equivalent).
In Woodforth, McMurdo P provided another reason why the comparator was not a person with communication difficulties (at [54]): "Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant's impairment [that is, the communication difficulties] with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis . They were occurrences which formed part of the factual context in which the student was treated. He was treated, by suspension and expulsion, in response to those occurrences. The required comparison was between the treatment of this student and the hypothetical treatment of another student. That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind. The complication in Purvis , caused by the student's behaviour also being an incident of his disability, did not exist in the present case. In the present case the relevant 'treatment' was the response of police to a complaint of criminal conduct."
This passage provides only limited assistance to Mr Peng, if any. Mr Peng was dismissed in response to his lifting restrictions, or perceived lifting restrictions. To that extent, the perceived lifting restrictions were "part of the factual context" in which Mr Peng was treated.
Mr Peng's third reason for distinguishing Purvis is that the alleged lifting restriction is not an objective fact, or part of the objective circumstances, that is to be attributed to the hypothetical comparator. The term "objective circumstances" is a reference to the plurality's comment in Purvis that "[t]he circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the 'discriminator'."
In Chalker v Murrays Australia Pty Ltd [2017] NSWCATAD 112, the Tribunal described as the "objective features" surrounding the treatment of the disabled applicant in that case as being his competence, skills and experience and his behaviour. The Tribunal explicitly rejected the proposition that the relevant circumstances included "the diagnosis or the opinions expressed about his suitability for the position" by medical professionals. It said that, "[w]hen making the comparison, it is the relevant objective circumstances, rather than professional opinions that must be identified."
Mr Peng submits that the perceived lifting restriction was based upon Dr Bosanquet's report and is medical opinion, not an objective fact or circumstance. Further, as Mr Peng submitted, it was an out-of-date opinion and a qualified one; Dr Bosanquet had not stated that Mr Peng could not lift more than two kilograms, but rather had expressed the opinion that minimising the amount he lifted would minimise recurrence. The employer's perception as to the amount Mr Peng could safely lift was not an "objective feature" surrounding his treatment; it was self-evidently a subjective feature.
Mr Peng's submissions on this point are persuasive. The objective features of Mr Peng's treatment included his work and medical history and his competence, skills and experience as a hospital scientist. They did not include the employer's interpretation of a medical report which was many months old. The comparison required by s 49B(1)(a) of the employer's treatment of Mr Peng with the way it would have treated a hypothetical comparator in the same circumstances, or in circumstances which were not materially different, does not include circumstances relating to the employer's perception of Mr Peng's working requirements.
The test then becomes, did the employer treat Mr Peng less favourably than the employer would have treated an employee with Mr Peng's work and medical history, and Mr Peng's skills and experience, who did not have Mr Peng's disability (that is, who did not suffer from bilateral lateral epicondylitis of the elbows)?
Mr Peng has established that the employer would have treated such a person differently. The employer's own evidence indicates that it would not have dismissed an employee who did not have Mr Peng's disability. Mr Peng was dismissed because the employer considered that he could not "fulfil the inherent requirements" of his position due to his medical condition. Mr Peng has persuaded us that the employer would not have dismissed a person without his disability in the same or similar circumstances.
Accordingly, Mr Peng has established differential treatment, within s 49B(1)(a) of the Act.

Causation

We are also satisfied that Mr Peng was treated less favourably in the same or similar circumstances than a person without his disability, "on the ground of" his disability. Such is clear from his dismissal letter, and the respondent did not seriously contend that causation was not established.
Accordingly, Mr Peng has established that the employer directly discriminated against him on the ground of disability within s 49B(1)(a) of the Act.

Inherent requirements defence

The employer relies upon the defence in s 49D(4) of the Act. This provides: "(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer."
The matters to be taken into account when determining what constitutes "unjustifiable hardship" are the subject of s 49C of the Act, which provides: "In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship."
The respondent has the onus of establishing the defence: Act, s 104.
The equivalent provision to s 49D(4) in the Commonwealth Act, s 15(4), was considered by the High Court in X v Commonwealth (1999) 200 CLR 177. McHugh J said at 190: "[39] Section 15(4) must be read as a whole. When it is so read, it is clear enough that the object of the subsection is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide."
This is an authoritative statement of the law as it relates to s 49D(4) of the Act: see Zraika v Commissioner of Police, New South Wales Police [2004] NSWADT 67 at [35]-[36] and Green v Department of Family and Community Services [2013] NSWADT 193 at [118].
The employer contends that any discrimination, if established, was not unlawful, by operation of s 49D(4) of the Act, because, taking into account all relevant factors, Mr Peng was unable to carry out the inherent requirements of his employment, because of his disability.
Mr Peng submits that the exception under s 49D(4) cannot be made out because: 1. When the respondent dismissed him, the respondent did not know what his medical restrictions were; 2. The respondent did not properly identify what the inherent requirements of the job were or which of the inherent requirements Mr Peng could not perform; 3. Mr Peng could perform the inherent requirements of the job; and/or 4. If Mr Peng did require additional assistance to perform the inherent requirements of his role, that assistance was to be rotated through a greater variety of duties and to enable that to happen, to be provided with training; and, possibly, to be allowed some small adjustments in the processes used in the laboratory.

Inherent requirements of Mr Peng's employment

The employer submitted that the inherent requirements of the position of Hospital Scientist in the Drug Toxicology Unit required Mr Peng to carry out analyses and, in doing so, undertake frequent light lifting and carrying of up to 9 kilograms. Santiago Vazquez, a Laboratory Manager in that unit, gave evidence that there was no area in the laboratory where staff do not have to lift more than two kilograms. Mr Peng accepted, under cross examination, that as part of his role in the extraction room within the Drug Toxicology Unit, he lifted bottles weighing between 2 and 4 kilograms. He also gave evidence that it was unusual for him to have to lift more than 4 kilograms. We accept this evidence given by Dr Vazquez and Mr Peng.
The employer's position description for a hospital scientist sets out a number of activities an analyst is required to perform. These include "conduct analyses on biological and other exhibits as requested by clients and report on the findings" and "handle hazardous biological and chemical substances." These were tasks Mr Peng regularly performed. In the "Job Demands Checklist" at the end of the position description it states that the requirement for "light lifting and carrying: 0-9 kilograms" is "frequent."
We consider that the employer has established that frequent light lifting is an inherent requirement of Mr Peng's particular employment, irrespective of whether that employment is defined to consist of all tasks as a hospital scientist or only those which Mr Peng was regularly required to undertake.
There is a question as to whether Mr Peng's "particular employment," for the purposes of s 49D(4)(a), was his employment as a hospital scientist in the assay preparation section of the Drug Toxicology Unit, or whether it extended to the other duties which hospital scientists could be asked to perform. The evidence was that Mr Peng performed duties in the assay preparation section. He had worked in the sorting room (specimen reception) for a brief period at the commencement of his employment. He had not been trained to a point where he was competent to perform duties in other areas.
In our view, Mr Peng's "particular employment" was his employment as a hospital scientist working in the assay preparation section of the Drug Toxicology Unit. This was where he had worked for a long period of time, performing duties relevant to his training and experience.
This is consistent with the opinion of McHugh J in X v Commonwealth (1999) 200 CLR 177 at 189-190 [37] that "the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment" and that "appropriate recognition" must be given "to the business judgment of the employer in organising its undertaking." The employer deployed Mr Peng to the position in the assay preparation section of the Drug Toxicology Unit and considered that that was the only position suited to his training and experience. This was his "particular" employment in that it was the employment which Mr Peng, in particular, was required to engage.

Has the employer established that Mr Peng was unable to carry out the inherent requirements of his job?

The first question is whether the employer has established that s 49D(4)(a) applies; that is, that, at the time of dismissal, Mr Peng was unable to carry out the inherent requirements of his particular employment.
Mr Peng has a work and medical history which is relevant to determining this issue.
A medical report dated February 2014 states that Mr Peng "is fit for work in the sedentary to light category," that he "may be able to upgrade to full-time hours on a graded return to work program" but that there should be no increase in the number of assay extractions or assay set up due to the repetitive upper limb movements involved. This contemplates full-time work but on modified duties.
A medical assessment report of Dr Kafataris dated May 2014 expressed the view that Mr Peng was fit for full time work although he could not perform his current duties on a full time basis and it was unlikely that Mr Peng would return to pre-injury duties given his persistent epicondylitis and some form of redeployment may be required. The report also stated, "[b]ased on the duration of his symptoms, his failure to recover to date it is less likely that a return to pre-injury duties will be achievable." Dr Kafataris recommended a five kilogram lifting restriction and advised that Mr Peng should avoid any repeated duties that are performed with the wrist pronated.
An email sent by Mr Peng to his manager on 10 February 2015 stated that after doing two "setups," including moving 60 tray samples, his arms were sore and he had difficulty coping. He suggested that he could "take turn work with computer" as an alternative to doing extraction and setup. The employer directed Mr Peng to take sick leave on 12 February 2015.
Mr Peng provided the employer with a number of medical certificates stating he could not perform his pre-injury duties, including a WorkCover NSW medical certificate dated 28 February 2015.
The report of Dr Bosanquet dated 26 May 2015 recommended minimising the amount Mr Peng lifts and rotating him through different tasks. Dr Bosanquet contemplated that, with these modifications, "an upgrade could occur after three months pending review." The report therefore appears to anticipate that Mr Peng may be able to lift more than two kilograms after three months. However, it also states that Mr Peng's "condition had stabilised," that Mr Peng had had the condition since 2008 and whilst it did not appear to have deteriorated nor had it improved. Further, it states that the condition is aggravated by repetitive lifting.
At a meeting held on 22 June 2015 between Mr Peng and the employer, Mr Peng stated that, having had time off work, he felt he was improving. However, he also asked for a further eighteen months off work so that he could have traditional Chinese medical treatment, and supported the doctor's recommendation that he should be allowed to rotate through different duties.
The employer sent Mr Peng a letter on 28 January 2016 with the subject line "Re: Show cause." The letter advised that the employer considered that Mr Peng was unable to fulfil the inherent requirements of his position as a hospital scientist, noting that it could not accommodate his 2kg lifting restriction or the recommendation that he be rotated through various duties. The letter invited him to show cause why his employment should not be terminated.
Mr Peng responded by email on 3 February 2016, forwarding an email he had sent to the employer in September 2015. In his response, Mr Peng said that Dr Bosanquet recommended that he should have eighteen months to resolve his condition, and that that time had not yet expired. He also asked the employer to "give a bit of compassion to an injured sixty one years old staff member who work for government health department over 23 years, allow him taking all his entitlement leave for his injury recovery." Mr Peng did not assert that he could lift two kilograms or more. He did not challenge Dr Bosanquet's report or the employer's interpretation of it or provide a current medical report, as he had been invited by the employer to do. Instead, he relied upon the report as a basis for taking more leave. The September email he forwarded focused on the employer's failure to rotate him and others in their duties and his perception that his managers bullied and/or failed to support him.
Mr Peng gave evidence that, at the time he was dismissed, lifting four to five kilograms would only have been a problem if he had to repeat such a lift many times. He said that, if he was rotated through different tasks in the laboratory, he would only have had to lift those weights occasionally. This evidence does not address the issue that repetitive lifting aggravated his condition. Mr Peng's request to be rotated is an implicit acknowledgement that this remained a problem.
We are persuaded that, at the time of the dismissal, it was more likely than not that Mr Peng was unable to carry out the inherent requirements of his particular position.
It is true, as Mr Peng's representative pointed out, that Dr Bosanquet's report did not, in terms, impose a two kilogram lifting restriction and it is also true that that report contemplated the possibility of an "upgrade" (a term which was not explained). However, Dr Bosanquet also expressed the view that Mr Peng's condition had stabilised and that the condition was aggravated by repetitive lifting. Repetitive lifting was an inherent requirement of the job.
In March 2016, Mr Peng had been suffering from the condition since 2008, a period of seven to eight years. He had had a significant amount of time away from work as a result, and had also spent a reasonable amount of time on modified duties and reduced hours. In the meeting of 22 June 2015, his position was clearly that he needed time away from work to recover and, on his return, did not want to solely perform pre-injury duties, but wanted to be rotated through various roles. His attitude in February 2016 appeared to be the same. He again requested more time away from work for his recovery and did not dispute the employer's view, expressed in the show cause letter, that he could not fulfil the inherent requirements of his position.
The evidence, as at the date of dismissal, supported the conclusion that Mr Peng was medically unfit to return to his pre-injury duties. Modification of those duties was necessary for Mr Peng to be able to work safely. He was not able to perform the inherent requirements of the particular employment with "reasonable safety" to himself: X v Commonwealth (1999) 200 CLR 177 at 210 [109].
The employer has therefore satisfied us that s 49D(4)(a) applies, in the circumstances of the case. According to the employer, "the inquiry ends there." However, such a position is not consistent with what McHugh J said in X v Commonwealth (1999) 200 CLR 177 at 190 [39] (quoted above). Rather, in order for the employer to make out the defence under s 49D(4), the employer must persuade the Tribunal either that Mr Peng could not carry out the inherent requirements of his position with additional services or facilities, or that, if he could do so, the provision of those services or facilities would impose an unjustifiable hardship on the employer.

Could Mr Peng carry out the inherent requirements of his position with assistance?

Mr Peng's main request was that his injury be accommodated by the employer rotating him through various positions within the Drug Toxicology Unit. As indicated above, we have found that the inherent requirements of his "particular employment" are the requirements of his employment in the assay preparation section. Rotation is not a service or facility which would enable him to carry out those inherent requirements; on the contrary, it would take him away from his "particular employment" in that section.
We have considered whether any services or facilities provided by the employer could have enabled Mr Peng to carry out the inherent requirements of his position in the assay preparation section.
Mr Peng's representative suggested to Dr Vazquez, in cross examination, that the trays containing specimens could be only partially laden, to accommodate Mr Peng's disability. It is not clear to us that this is properly described as a "service" or "facility." In any event, Dr Vazquez's evidence, which we accept, was that the employer had to maximise the number of pots on the tray, because the Drug Toxicology Unit has limited trays and limited storage space. He explained that the laboratory was essentially a production line and that the trays had to be fully populated for it to work effectively. His evidence was that the use of partially laden trays would start undermining the way the laboratory operates. Dr Vazquez said that, after Mr Peng had been terminated, the employer had looked at getting the trays redesigned. This would have cost nearly $100 per tray, and they would need a few hundred trays. We accept Dr Vazquez's evidence that this was cost prohibitive, given the Unit's budget at the time.
It was put to Mr Peng's former manager, Mr Stathopoulos, that trays or plastic blocks could have been carried by more than one person. He said that this would not be possible. Again, the question of whether such a measure is properly described as a "service" or a "facility" is not free from doubt.
Whilst it is clearly the case that there would be times when other staff members could assist Mr Peng with carrying heavy objects, we accept that requiring other staff members to do so on a regular basis would take them away from their own jobs, probably requiring them to complete tasks which are not in their job description. The evidence also indicates that there would not always be a staff member available to do this. This proposed measure would therefore not be sufficient to enable Mr Peng to carry out the inherent requirements of the particular employment, with safety to himself.
We are not persuaded that Mr Peng could have carried out the inherent requirements of the position with the modifications put to Dr Vazquez and Mr Stathopoulos by Mr Peng's representative. In his submissions, Mr Peng said that the adjustments needed were to be rotated and "possibly, to be allowed some small adjustments in the processes used in the laboratory." The principal request for rotation and the word "possibly" are consistent with the evidence that the adjustments in laboratory would not have solved one of the main problems. That was, according to Dr Bosanquet, that repetitive lifting aggravated Mr Peng's condition.
We are satisfied that there were no other services or facilities which the employer could have provided to enable Mr Peng to safely undertake the inherent requirements of his position.

Would the defence be established if Mr Peng's employment included all tasks as a hospital scientist?

In case we are wrong about the nature of Mr Peng's "particular employment" and it extends to all work as a hospital scientist in the Drug Toxicology Unit, including work for which Mr Peng had not been trained, we have considered whether the employer would be able to establish the defence upon this assumption.
We accept the evidence of the manager Mr Stathopoulos that: 1. Mr Peng "was originally trained in assay preparation and extraction and was not able to learn other areas of work when he was trained in them (other areas that fitted with his restrictions)." 1. Mr Peng was not competent in computer assay checking, cross-checking or CSV upload (an area to which he suggested he could be rotated); 2. Factors impacting on the rotation of staff include staffing numbers, whether a staff member has an injury, and whether there are vacant positions; 3. Mr Peng could not be rotated through all areas of the laboratory because he did not have the skills or training to work in other areas of the laboratory, or attempts to train him were unsuccessful, or he had already been injured in an area and/or the workload in that area was very high or very physically demanding.
We also accept the evidence of Dr Vazquez that: 1. rotating tasks would not solve the problem of repetitive lifting and movements because of the high volume of the specimens received in the laboratory and the repetitive nature of the work performed in the laboratory; 2. the employer was short-staffed at the time of Mr Peng's dismissal and did not have the resources to train Mr Peng in other duties, which could take months or years to complete; 3. the evidence of other staff members, reported to Dr Vazquez, was that Mr Peng had progressed slowly with learning the relatively simple task of transcription; 4. it takes at least six months to train staff members in result analysis and it removes two staff from work; 5. it was unlikely that Mr Peng could have fulfilled the role of hospital scientist, even with restrictions, in any area.
Assuming that rotation is properly described as a "service" or a "facility," we are not satisfied that rotation through various positions, of itself, would have enabled Mr Peng to safely carry out the inherent requirements of his position. This is because, as Dr Vazquez stated, there was no area in the laboratory where staff did not have to lift more than two kilograms and repetitive manual work was required in all areas. Further, the evidence of Mr Stathopoulous indicates that the other areas in the laboratory are also "highly manual" and that Mr Peng was not moved to a higher volume part of the laboratory as this would have aggravated his injuries.
We also consider that it would have imposed an unjustifiable hardship on the employer to train Mr Peng to work in the other areas, assuming that training is a "service." Despite Mr Peng's evidence to the contrary, we are satisfied from the evidence of his managers that he performed tasks slowly and did not respond to training quickly or effectively. We accept that the employer was short of funds at the relevant time. We consider that, in all the circumstances, rotating Mr Peng through various positions would have required additional training, much of it extensive. The employer did not have the requisite staff to perform such training. In the circumstances pertaining at the time of Mr Peng's dismissal, the provision of such training would have imposed an unjustifiable hardship on the employer.

Conclusion

For the reasons given above, we are satisfied that the employer has established the defence under s 49D(4) of the Act, and that its discrimination against Mr Peng when dismissing him is therefore not unlawful.

Orders

We make the following orders: 1. The respondent's name is changed to Secretary for the NSW Ministry of Health in respect of the NSW Health Service, NSW Health Pathology Division. 2. Leave is granted for the applicant to be represented by an agent, Brendan Edghill. 3. The applicant's application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2018

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