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[2006] FMCA 235
Federal Magistrates Court of Australia
2006-03-02
Original judgment source is linked above.
(1)
The application filed on 20 January 2005 is dismissed with costs, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth).
I have before me an application filed on 6 February 2006 seeking the dismissal, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules"), of two applications made under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). The respondent's interlocutory application seeks the summary dismissal of the substantive applications with costs on the basis that no reasonable cause of action is disclosed. The matter has proceeded on the basis that the summary dismissal application should be dealt with pursuant to the (Cth) ("the ") and the as they stood prior to 1 December 2005, because the substantive applications were filed well before amendments made to the and Rules on 1 December 2005.
The procedural history of this matter to date is somewhat drawn out. The proceedings began with an application filed on 20 January 2005 in matter number SYG185 of 2005. In that application Ms Penhall-Jones asserted direct and indirect disability discrimination in her employment with the New South Wales Department of Transport, as well as harassment and victimisation. A further application filed on 30 August 2005 sought interlocutory relief in order to prevent asserted ongoing victimisation. That application was dismissed on 6 December 2005 for want of prosecution. I had, at an earlier stage, ruled that I had no jurisdiction to consider a claim of victimisation as no complaint of victimisation had been terminated by HREOC. This was remedied by the termination of a complaint of victimisation on 20 September 2005, which was followed by a further application under s.46PO of the HREOC Act filed on 18 October 2005, seeking relief for asserted breaches of s.42 of the Disability Discrimination Act 1992 (Cth) ("the DDA")[2].
On 6 December 2005 I ordered that the two applications be consolidated. I made further interlocutory orders directed towards commencing a trial of the matter commencing on 17 January 2006. However, on that day, it was obvious that the matter was not ready for trial and the hearing dates in that week were vacated. The hearing was adjourned until 10 April 2006. I made further procedural orders for the filing of an amended application and points of claim in both matters.
The respondent advances three grounds for the dismissal of the applications, pursuant to rule 13.10(a). The first is that the respondent was described as the Director-General of the New South Wales Ministry of Transport which is an office but not a legal person. At the hearing of the respondent's application on 20 February 2006 I accepted the point but permitted the applications to be further amended in order to delete the Director-General as respondent and substitute the State of New South Wales. I acted pursuant to rule 7.03(2) of the Federal Magistrates Court Rules.
The second ground was that the respondent is not and was not the applicant's employer. Mr Neil, for the respondent, did not press this ground following the substitution of the State of New South Wales as the respondent. It is not disputed that Ms Penhall-Jones is employed by the State of New South Wales.
The third and more substantial ground for summary dismissal is that the applicant's claims under the DDA are unarguable. In short, the respondent asserts that:
a) it is not conceded that Ms Penhall-Jones ever had a "disability" at a relevant time and there is no admissible evidence of one;
b) there is no causal link between the conduct complained of by Ms Penhall-Jones and any asserted disability;
c) Ms Penhall-Jones' main complaint appears to be that the impugned conduct caused a disability, not that she was adversely treated because of it;
d) there is nothing before the Court that could support the claim of indirect disability discrimination;
e) there is no relevant connection between the asserted harassment and any asserted disability, except as an alleged cause of the disability;
f) in relation to the victimisation claim, the applicant cannot establish a causal connection between the conduct complained of and her complaint of disability discrimination.
For her part, Ms Penhall-Jones asserts that the material she has filed supports the claims that she has made. She submits that the only way to determine her claims fairly is to have a final hearing on them. She told me from the bar table that she is content with the current form of her applications and points of claim but she would like to file some more evidence, in particular medical evidence supporting her claim to suffer from a disability.
Ms Penhall-Jones is currently self-represented. She has been previously represented by three different firms of solicitors in these proceedings.
The Court's jurisdiction to summarily dismiss an application should be exercised with great caution[3]. The power to dismiss, pursuant to rule 13.10(a) may be exercised if the applicant's case is unarguable, in the sense that no arguable case is advanced and there is no reasonable prospect that an arguable case could be advanced. In this matter, unlike in Rana, I have the benefit of points of claim and, pursuant to procedural orders that I have previously made, all affidavit evidence should have been filed. Indeed, the trial of the matter was to have commenced in January. I have examined all of the material filed by Ms Penhall-Jones in support of her claims for direct and indirect disability discrimination and harassment and I have come to the view that the claim is so irredeemably bad as to be hopeless.
First, it is open to serious question whether Ms Penhall-Jones now suffers from, or ever suffered from a "disability" for the purposes of the DDA. A "disability" is relevantly defined by s.4 of the DDA as including a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour. In her complaint to HREOC, Ms Penhall-Jones asserted that she suffered from a post-traumatic stress disorder and had received workers compensation for it. However, in her amended points of claim filed on 30 January 2006, Ms Penhall-Jones asserts that she suffers from an anxiety and stress condition producing symptoms including insomnia and panic attacks. She notes that the symptoms have been differentially diagnosed as being post-traumatic stress disorder or adjustment disorder. Ms Penhall-Jones also asserts that she has an overuse syndrome which appears not to have formed part of her complaint to HREOC.
Annexed to an affidavit filed on 7 February 2006 by Ms Penhall-Jones is a bundle of documents which purport to be medical opinions obtained from various practitioners at various times for various purposes. Assuming that these were admissible as proof of the opinions contained in them (which is disputed by the respondent) the opinions are equivocal. The opinions largely re-state the history recited to the practitioners by Ms Penhall-Jones and her assertions against her employer. There are various diagnoses of PTSD, anxiety, an obsessional personality (with no mental disorder at all), depression, adjustment disorder and chronic adjustment disorder with depressed and anxious mood. None of these opinions appears to me to be definitive. No medical opinion has yet been obtained for the purposes of these proceedings. Ms Penhall-Jones asserts that two workers compensation claims have been accepted by her employer and those might provide evidence of a disability if they were put into evidence. A further medical report that Ms Penhall-Jones says that she is still seeking might also provide useful evidence. At the present time the question of what, if any, disability Ms Penhall-Jones suffers from is an open question.
Secondly, even if I could be satisfied that Ms Penhall-Jones suffers from a disability for the purposes of the DDA, there is nothing in the substantial volume of material Ms Penhall-Jones has filed to support, in any objectively persuasive way, the proposition that she has been treated relatively unfavourably because of it, or that she was subjected to a condition, requirement or practice that she could not meet because of it, or that she was harassed because of it. The scope of these proceedings is limited to the scope of the complaint made to HREOC. I believe that in her affidavit material Ms Penhall-Jones may have strayed beyond the boundaries of that complaint, and to put her claim in its proper context reference must be made to it. Her compliant to HREOC comprised seven allegations. The first allegation was that Ms Penhall-Jones had "lost" a position of a senior policy officer because of her disability between 1998 and April 2001. It has never been disputed that Ms Penhall-Jones made a claim for workers compensation on the basis of alleged bullying leading to PTSD. However, Ms Penhall-Jones herself agreed before HREOC that her position was deleted because of a restructure. She considers that there was a plan to get rid of her. However, she was not alone. At its highest, Ms Penhall-Jones' evidence points to a dysfunctional workplace beset by bullying and where individuals were punished as a result of pointing out management or policy failures or causing political embarrassment. In paragraph 240 of her affidavit filed on 7 February 2006 Ms Penhall-Jones refers to a survey of displaced staff in the Department of Transport and asserts that not one person who had been displaced believed that their displaced status was genuine, and that most believed that they were displaced as a means of reprisal or "political payback". Ms Penhall-Jones may have been subject to workplace bullying and that may have resulted in her suffering from a disability. However, there is no evidence that she was bullied because of her disability and there is no evidence that she has lost any position because of her disability. The delegate of the President of HREOC found this allegation lacking in substance and I find that it is unarguable.
The second and third allegations were that the Department of Transport failed to "accommodate" Ms Penhall-Jones' disability. These allegations recognise that s.5(2) of the DDA ensures that special measures needed to achieve equality of treatment of a disabled person with other persons are taken into account in making a comparison. In other words, some reasonable adjustment may be required in order to accommodate a disability and that the need for such an adjustment may be relevant to a comparison of a disabled person with a comparator. However, while an accommodation may need to be taken into account for the purposes of drawing a comparison for the purposes of s.5 of the DDA, it does not follow that the section imposes on employers an obligation to provide any "accommodation" to disabled employees: Commonwealth of Australia v Humphries (1998) 86 FCR 324 at 335. Further, the High Court has expressly rejected a suggestion that s.5(2) imposes an obligation to accommodate disabilities: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 202 ALR 133 at 184 [217]- [218]. Also, in the employment context, the Full Federal Court has found that ss.5 and 15 of the DDA do not require an employer to provide different or additional services for disabled employees: Forbes v Australian Federal Police [2004] FCAFC 95 at [85].
The delegate of the President of HREOC found that the two allegations of failing to accommodate Ms Penhall-Jones' disability were, on the facts, lacking in substance. I find that, in addition, they cannot succeed on a question of law.
The fourth allegation made to HREOC was that Ms Penhall-Jones was bullied at a job interview when she was asked questions she had difficulty answering. The delegate of the President found that this allegation was lacking in substance. I agree.
The fifth allegation was that Ms Penhall-Jones was not provided with assistance in order to find a transfer for a new job. The delegate of the President of HREOC found that this allegation was lacking in substance. I agree. The available evidence indicates that Ms Penhall-Jones was offered assistance but declined to use it because she did not consider herself displaced.
The sixth allegation was that Ms Penhall-Jones was bullied and marginalised by her then supervisor, a Mr Mitchell. Ms Penhall-Jones has put forward evidence of alleged bullying or intimidating behaviour by Mr Mitchell. There is evidence of a complaint of bullying against him made to the Department of Transport. There is also evidence that he was counselled. However, Ms Penhall-Jones is unable to link the asserted behaviour to her disability. In addition, she appears to misunderstand the concept of indirect disability discrimination. In paragraph 21 of her amended points of claim she asserts that the conduct of Mr Mitchell was a "constant condition of her workplace". However, she fails to assert any condition, requirement or practice that she was unable to comply with and which a significantly greater proportion of people without her disability could comply with. I find that this aspect of her claim must fail.
The last allegation made to HREOC was that another supervisor (Ms Lange) made inappropriate comments in relation to Ms Penhall-Jones' disability when she raised stress as an explanation for her work performance. However, there is persuasive evidence that the comments made by Ms Lange were in relation to perceived poor performance and asserted falsification of flex time sheets and were not in any way caused by Ms Penhall-Jones' disability. The delegate of the President of HREOC found that this allegation was lacking in substance. I agree.
I find that the application under s.46PO, insofar as it depends upon the notice of termination dated 20 December 2004 must fail and I accordingly dismiss it, pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
Costs should follow the event and, subject to any claim that costs should be paid on a basis other than the usual party-party basis, costs would fall to be assessed on the Federal Magistrates Court scale.
The second application filed on 18 October 2005, which is based upon the notice of termination dated 20 September 2005, falls into a different category. Ms Penhall-Jones complained to HREOC that she had been victimised after complaining of disability discrimination. A specific allegation of verbal abuse on 27 September 2004 is made. A further alleged threat on 18 November 2004 is identified. A specific allegation of cancellation of a return to work programme is made. This complaint was terminated on the basis that there was no reasonable prospect of the matter being settled by conciliation.
The affidavit evidence in support of this application is presently rather limited. However, the allegations made to HREOC, if supported by affidavit evidence and proved (whether by evidence in chief or by cross-examination) could establish victimisation, pursuant to s.42 of the DDA. This proceeding is much more recent than the application in matter number SYG185 of 2005. In that matter Ms Penhall-Jones has had ample opportunity to present all relevant material in support of her application and has been assisted at various times by three different firms of solicitors. The same cannot be said of the victimisation claim. There is no doubt that Ms Penhall-Jones did make a complaint of disability discrimination to HREOC. The specific allegations of conduct that could constitute victimisation are denied but it is possible that admissions might be obtained at a trial. The claim is, in my view, arguable and should proceed to a final hearing.
I will make directions towards that end.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
[1] In particular s.17A of the Federal Magistrates Act does not apply in this case
[3] Rana v University of South Australia [2004] FCA 559 at [72]- [73]
Penhall-Jones
State of New South Wales [2006] FMCA 235
(1998) 86 FCR 324
(2003) 202 ALR 133