Ms James' notice requiring attendance at counselling

At the end of July 2004, another event occurred in the applicant's employment which further fuelled his paranoia.

This arose out of his attendance on 21 May 2004 at a staff training session on 'aggression minimisation' conducted by 'trainers' from outside the applicant's work unit. It seems that the applicant strongly disagreed with the policy underlying the training, which was contained in a NSW Department of Health Policy Directive entitled "zero tolerance to violence in the NSW Health Workplace". The applicant thought that "zero tolerance" was an inappropriate response to patients in his wards, whose problematic behaviour was likely to be a symptom of their illness, requiring treatment not intolerance. He expressed his views forcefully, and admitted saying that "zero tolerance was crap". Another colleague, nurse Brady, supported his opinion, and they were both asked to leave the training session on the ground that their conduct was disruptive.

On 27 May 2004, Mr Graham spoke to the clinical nurse educator facilitating the training session. She complained that Ms Brady "appeared hostile" and "made inappropriate comments" with racist overtones. She told Mr Graham that Ms Brady and the applicant had made critical comments concerning the zero tolerance policy, and her attempts "to steer the class discussion back to the course content were thwarted by continual complaining" from them. Their points were made "in an aggressive manner and inappropriate forum which resulted in distressing the trainers and disrupting the learning process for other employees".

Two months after this event, on Wednesday 28 July 2004, Ms James wrote a letter to the applicant which said:

Dear Mr Rawcliff

As a result of concerns regarding your performance you are requested to attend a first stage counselling meeting on Tuesday 03/08/2004 at 13:45 in the office of Ms Paula James, Service Director at East Wing.

In accordance with the NHS Counselling and Discipline Policy (attached) you will be given at this meeting the opportunity to discuss these concerns and an agreed course of action will be determined. Ben Blunt, Deputy Human Resources Manager will also be present at the meeting.

Concerns regarding your performance include the following:

Disrupting a NSH Staff training course resulting in the trainer requesting you leave the class and return to the workplace.

Please be assured that the management of this matter will be a private, confidential and impartial process. Please also note that the Peer Support Program can be contacted on 9962 9000, Page 145338.

You are entitled to invite a silent support person of your choosing to accompany you to the meeting.

Yours Sincerely

Paula R James

The attached counselling and disciplinary policy detailed a lengthy procedure which could lead to disciplinary sanctions, including summary dismissal, if "everything that was agreed to at the first counselling meeting is not progressing well".

The letter was left at the nurses' station at East Wing, and also posted to the applicant's residential address. However, due to his being rostered off work at the time, the applicant did not receive the letter until one or two days before the appointed meeting. He complained to HREOC that he was given little time to organize an appropriate person to accompany him, and could only ask a nursing colleague, Mr Neville, "on his lunch break" to accompany him as his "silent support person".

However, on Tuesday 3 August he did attend the meeting with Ms James and Mr Blunt, a deputy human resources manager. They prepared a record of meeting, which the applicant accepts is accurate. This describes the content of the discussion:

7. List the explanations the person being counselled gave at the meeting about their performance/behaviour (or anything else relevant)

• Cliff understood the training session to be interactive and that discussion amongst attendees was encouraged.

• Cliff had strong ideas and opinions about the issue of 'Zero Tolerance to Violence' policy and how this applies to the workplace in a mental health setting.

• Cliff stated that he is not afraid to voice his opinions and that he has an authoritative voice and manner, which is useful in his role as a mental health nurse.

• Cliff stated that he does not believe he did, nor that he intended to harass or intimidate the Educator who was running the Aggression Minimisation course.

• Cliff does not believe he disrupted the training course.

8. List the agreements made about what the person being counselled will do.

• It was explained to Cliff that although he did not intend to disrupt the training course the Educator/s and at least some of the other attendees present found his questions and comments intimidating and disruptive.

• Cliff agreed that at future training sessions he will remain mindful of his authoritative and opinionated manner and that he will not be as forceful in making his opinions known within a classroom setting where Educators are trying to teach and may find his comments disruptive.

• If future training sessions trigger thoughts and reactions in Cliff regarding problems within his own department he should take these issues up with the appropriate mental health management.

A separate counselling session for Ms Brady was conducted by Mr Graham on 13 August 2004. In his affidavit, he said that this date was chosen by reference to her roster, as a day on which they would both be in attendance at work.

The applicant complains that the shortness of notice of his counselling session made it much more stressful for him, and it appeared discriminatory because Ms Brady, who was also required to attend counselling, was given fourteen days notice of her meeting. This was the first time that he had been the subject of a disciplinary proceeding at a workplace, and he regarded it as unfairly convened. He notes that his thoughts of being victimised were influenced by his state of health at the time.

In one of the applicant's affidavits, he states that Ms Bright "suffers from epilepsy also". However, no further evidence was presented concerning this by either party, and the applicant's submissions did not identify its relevance to his complaint of discrimination. Prima facie, although this evidence might suggest that he was "treated less favourably" than another employee, it points against the discrimination occurring because of his epilepsy.

Ms James said in her first affidavit:

31. I deny that the difference in the notice of the meeting given to Mr Rawcliffe, in comparison to Ms Brady, had anything to do with Mr Rawcliffe's epilepsy.

32. I met with Mr Rawcliffe. I understand that Mr Graham met with Ms Brady. There was no specific reason for this arrangement.

33. At my meeting with Mr Rawcliffe on 3 August 2004, Mr Rawcliffe did not raise epilepsy as a reason for conduct at the aggression minimisation training session. Nor did he complain that he had been given insufficient notice of the meeting.

34. Notes of my meeting with Mr Rawcliffe were taken. A copy of these notes was provided to Mr Rawcliffe shortly after the meeting. Annexed to this affidavit and marke 'PJ 4' is a copy of these notes.

35. So far as I am aware, Mr Rawcliffe was dealt with in the same manner as Ms Brady in relation to this disciplinary process.

36. Both staff received notice in accordance with the relevant policy and meetings were scheduled with Mr Rawcliffe and Ms Brady when they were available.

37. I did not act any differently toward Mr Rawcliffe as I would have toward any member of staff who had been ejected from a training session due to unsatisfactory conduct.

38. On other occasions when disciplinary issues have arisen with other staff, I have instigated a similar disciplinary process to the process conducted in respect of Mr Rawcliffe.

39. I did not 'single out' Mr Rawcliffe on the basis of his epilepsy.

40. To the best of my recollection, Mr Rawcliffe did not at any stage raise the issue of the period of notice with me.

41. Had Mr Rawcliffe ever stated that the notice he received of the disciplinary meeting was insufficient I would have rescheduled the meeting, to be fair to him.

6. In providing notice to Mr Rawcliffe of the disciplinary meeting on 3 August 2004, I endeavoured to provide him with the same notice as Ms Sheridan Brady. The difference in notice provided was not intended to cause any detriment to Mr Rawcliffe or contribute to his alleged complex partial seizure disorder. Had Mr Rawcliffe asked me to change the date of the disciplinary meeting I would have done so.

The applicant did not seek to cross-examine Ms James on her affidavits. When he was cross-examined, the applicant agreed that he did not request a rescheduling of the meeting. He explained why he thought that he was discriminated against in relation to notice of the meeting:

Do you say that that was unfair because Ms Brady had more time to prepare? --- No. I say it's unfair as it contributed to my negative mental state at the time because of such an obvious disparity between three days, of which I had two of them off, which you can check on the roster, and I had come to work and find that I have got to go to a disciplinary meeting and find that the other person involved for exactly the same thing, who actually did call people ethnics etcetera, gets a further two weeks to prepare themselves, and I perceive that - that is an obvious discrepancy, and one that I took in light of my failing health, took a view - a degree of paranoid ideation and might of thought created that discrepancy that - obvious discrepancy of 10 days, there was obviously a difference in the way people were being treated. That is as I perceived it and that contributed to my mental health.

So yours is discrimination because it contributed to your ill health. Is that right? --- Yes.

After considering all the evidence relating to the counselling episode, I have come to the same conclusion as in relation to the applicant's complaint about Mr Graham's communication to the NRB. I am unable to find evidence supporting a finding that the applicant's disability provided a basis for his being required to attend counselling, nor for his being given a different period of notice than Ms Brady. I accept Ms James' evidence in this respect. Her actions, whether or not they provided notice which was reasonable in the circumstances of the applicant's disability, were not attributable to the applicant's disability. I am not persuaded that the short notice he was given, though less favourable than that given to Ms Brady, would not also have been given to a person without the applicant's disability.

I accept that Ms James' actions had an effect on the applicant arising from his perception of less favourable treatment, that effect being an aggravation to his disability's mental symptoms and difficulties arising from his sleep deprivation at the time. However, this effect on his disability does not alter the basis upon which her actions were taken. I am unable to find actions of direct discrimination arising under s.5(1) in the course of this event.

In relation to indirect discrimination, I would not find that the applicant did "not or is not able to comply" with the requirements conveyed in Ms James' letter, within s.6(c). The concept of "able to comply" is not absolute, since "it is sufficient to satisfy that component of s.6(c) that a disabled person will suffer a serious disadvantage in complying with a requirement or condition of the relevant kind, irrespective of whether that person can "cope" with the requirement or condition" (Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 at [134]). However, I am unpersuaded that the applicant suffered any "serious disadvantage" arising from the manner in which Ms James gave notice or conducted the counselling meeting. In fact he attended the meeting and, according to the note of the meeting, was able to defend himself more than adequately, notwithstanding the symptoms of his disability which he was developing at that time.

Since I do not find paragraph (c) of s.6 to be satisfied in the context of the applicant's complaint about the counselling which occurred on 3 August 2004, I do not need to consider the issues raised by paragraphs (a) or (b) of s.6 in relation to this complaint.

The applicant's complaint that he was required to work a roster in the week of 7 to 13 August 2004, which was unreasonable in the circumstances of his disability at the time, was at the centre of his complaint to HREOC and to this Court. He claims that it precipitated his resignation from his employment, and caused an epileptic seizure which contributed to a lengthy period of incapacity for work. For reasons which I shall explain below, I have decided that the rostering of the applicant by Ms Kuling did involve indirect discrimination falling within s.6, although I am unpersuaded that direct discrimination was involved. I shall then need to consider what remedies should be ordered.

The evidence as to the content of Ms Kuling's roster directions and their effects on the applicant was essentially not disputed by any evidence led by the respondents, and supports a finding that the applicant was not "able" to comply with Ms Kuling's final direction as to his roster for the purposes of s.6(c) due to the condition of his disability at the time. However, the content of oral communications between the applicant and Ms Kuling leading up to her direction is disputed. These communications are relevant to an appreciation of the applicant's mental state at the time, and become particularly relevant to whether I should characterise her direction as "not reasonable having regard to the circumstances of the case" for the purposes of s.6(b). The conceptually difficult issues raised by s.6(a) also need to be addressed.

The applicant's employer gave to the nursing unit manager (NUM) of the East Wing mental health wards at Manly Hospital the responsibility for setting a roster for the nurses, who worked there on a variety of shifts providing 24 hour nursing services. During August 2004, there were 33 nurses covered by the roster. Under Mr Allan's management of the rosters up to June 2004, the applicant was rostered on all the available shifts, without any requests on his part to be treated differently than other nurses.

Mr Allan's established practice, which I infer was approved by his own supervisors, was to invite the nurses to nominate and negotiate their preferred shifts for the next four weeks, before himself determining and publishing the work roster for that period. Further alterations to the shifts could then be made with the approval of the NUM.

It is apparent, in my opinion, that it was a "term or condition" of the applicant's employment for the purposes of s.15(2)(a) of the Disability Discrimination Act, that he should work the shifts allotted to him by the NUM. I also consider that the NUM's directions in relation to the shifts to be worked, constituted "requirements or conditions" within the opening language of s.6. I did not understand the respondents to contest these conclusions (and compare Dawson J in Banovic (supra) at 185, followed in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393 and 406).

Ms Kuling became acting NUM when Mr Allan went on leave in June 2004. Mr Allan may have been involved in determining a roster for the period ending on Friday 30 July 2004. However, I find that the roster for the subsequent period was entirely Ms Kuling's responsibility, and I do not accept her claim in her affidavit that it was "prepared under the supervision of Mr Allan". She retreated from this claim under cross-examination, and it is inconsistent with the evidence as to the chronology of his departure and of the publication of the roster.

In the middle of July, a blank schedule was posted up, with vertical columns for each day in the four week period commencing on 31 July, and horizontal columns for the 33 nurses. They then "pencilled in" their suggestions of the shifts they would work. Alterations were then made by the NUM to the draft roster, before she published the final roster.

The applicant's evidence, which I accept, was that around the time that the draft roster was prepared, he was aware of "the effect of my epileptic medication was having on my liver which was making me tired, a commonly recognised symptom of hepatitis". He therefore pencilled in "EC" to identify his preferred shifts throughout the period. This indicated a request to be rostered only for afternoon shifts, from 1.30pm to 11pm. He said that this would allow him to address his tiredness and sleeping difficulties by getting up in the middle of the day. He said that at some stage around this time he explained his ill health to Ms Kuling "on the ward", and that in conversation he referred to his liver function tests showing problems with his anti-convulsant medication which was causing hepatitis. He said that she must have been aware from this, and from earlier conversations or observations, and from the general knowledge amongst his colleagues, that he was under treatment for epilepsy.

The photocopy of the draft roster, which is in evidence, appears to confirm the applicant's original request for all EC shifts for the four weeks. It also appears to show that for the second week of the roster period, this has been erased and someone has inserted the shifts which were ultimately determined by Ms Kuling, except that the roster for the 11th is shown as MN rather than the TC which was ultimately provided. Ms Kuling gave differing evidence as to the hours of the MN and TC shifts, and the applicant's evidence as to their difference was also not clear. On her evidence they were both day shifts, both of about 10 hours, MN commencing at 9am and TC at 11.30am. According to descriptions on an official compilation of the rosters (Exhibit 3), the TC shift was a 10 hour shift commenced at 7.30am, and there is no mention of a MN shift. I am inclined to prefer this evidence as to the official hours of a TC shift, since Ms Kuling's evidence lacked consistency and confidence.

I accept the applicant's evidence as to the state of his health over this period and as to his communication of it to Ms Kuling in his conversation "on the ward", and in a subsequent meeting in her office which I shall narrate below. The substance of the applicant's evidence was, in my opinion, consistently given throughout his written and oral evidence, and was not substantially shaken in cross-examination. His deteriorated medical condition at the time is corroborated by Dr Levenston's certificate, and is consistent with the other medical evidence. His account of conversations is consistent with the documented history of the roster, with Ms Kuling's written directive to the applicant on 9 August which I shall describe below, and with the documented evidence of the behaviour of the applicant at the time. As a witness, he gave oral evidence in a manner which impressed me with his effort to give honest recollections, and which showed a remarkable capacity to be objective about his history of paranoid thoughts. Those thoughts might have distorted his appreciation of events, but I do not consider that his recollection of the events in which he was directly involved was distorted by his paranoia.

Ms Kuling's published roster was issued to nurses in a printed table dated 19 July 2004. It was also published on 20 July in the form of a daily ward diary, listing each nurse rostered on each day, and their rostered shift. Any further changes approved by Ms Kuling were then written into this diary. The published roster showed the applicant working only EC shifts in the first and third week, and also in the fourth week except for one morning shift. However, in the second week it required the applicant to work a TV night shift from 9.30pm on Sunday 7 August to 7.30am on 8th, a TV night shift from 9.30pm on 9th to 7.30am on 10th, a TC day shift from 7.30am to 5.30pm on 11th, and a TV night shift from 9.30pm on 12th to 7.30am on 13th. I find that there was, in the language of the applicant's complaint to HREOC, "a ten hour day shift sandwiched in the middle of two ten hour night duties". It is true that the shifts were not immediately 'back to back', but they required the applicant to adopt significantly shifting sleep patterns in one week.

When the applicant saw this roster, he formed the opinion that he would have difficulty working the shifts for the second week, due to their disruption to his sleep patterns while he was suffering from chronic tiredness. He then "organised to see Ms Kuling", and had a meeting with her in her office between the 21st and 28th July. At this meeting he told her that he could not work those shifts, and wanted them altered because of his epilepsy and ill health in general. He reminded her about what he had told her on the ward. He said to her: "can I not do that day shift in the middle of the night shifts?", and Ms Kuling agreed. The applicant then altered, in his own handwriting, the nursing daily diary, so as to show that he would be working a night TV shift on 11-12th August, rather than the TC day shift on the 11th.

The applicant then worked the roster until his night shift of 9th to 10th August. At the commencement of that shift he found a directive from Ms Kuling, written on a sheet of humorous note paper. It said:

Hi Cliff

I don't know who changed you to night duty on 11/8/04 but the ward needs you to stay on the TC.

If your short ? hours you can do a 10 hr day - not sure what has gone on.

Thanks

Jayne K.

This abrupt change to the roster, back to the "sandwiched" day shift, caused the applicant to submit his resignation "on the spot". He typed on an office computer: "Dear Jayne, I would like to tender my resignation as of today, 09/08/04. I will be working my 14 days notice as of today."

However, he did not work that 14 day period. When he returned home, he "had a severe grand mal fit in which my head hit the wall and I never went back to work because I was on sick leave." Dr Levenston's medical certificate given on 11 August certified his unfitness for work from 11 August to 11 November 2004, and gave the diagnosis which I have described in full above. This included his opinion that there had been symptoms for the preceding month of "difficulty to control epilepsy with (secondary) sleep deprivation & paranoid ideation." The applicant was then placed on the disability support pension, upon Dr Levenston's medical certificate.

In the course of his cross-examination, the applicant explained his state of mind at the time that he received Ms Kuling's direction on 9th August and wrote his resignation letter:

When you received the note on 9 August 2004 you did not ring Ms Kuling and ask her why the change had been reverted? --- No, because I had made the point of going and asking her and explaining my health condition and when she changed my day I just went, "Hey, they are just trying to make me sick. I am leaving". And then I did have a seizure and my head hit the wall and it stuck between iron bars and I was given days off and I took the roster in to Dr Levenston and showed him, and he said, "You are going off work now".

...

After you received the note, you did not ring Ms Kuling and ask her to take the issue to Ms James, for example, did you? --- No, because I wasn't very well, obviously. People are doing things like that to generate paranoia - you know, like, I went into an office, agreed to change the roster, and I didn't say I don't want to do any nightshifts. I said I don't want to do a day shift amongst the nightshifts. I was a team player and then, you know, two weeks later it gets changed back to the original things and that was one of the things that generated paranoia and probably most likely contributed to the rest of the ill health, but it's you know, those sort of things where you have a meeting and like, you go and meet the boss and you go and discuss something and then a week later there is a note saying, "I don't know what happened. Who changed the night shift" when you can see it's my writing who changed the nightshift, that made me feel paranoid.

The applicant says that he suffers from postictal memory loss about subsequent events. There are records showing that on 20 August 2004 he executed a formal "notice of resignation" witnessed by Ms Kuling, in which he gave two weeks notice of resignation on that day, for the reason of "exacerbation of health condition" with an attached health certificate, which I infer was that of Dr Levenston. The applicant's "employment separation certificate" which allowed him to qualify for Centrelink income support, was signed by his employer on 27 August 2004, and certified that his reason for termination was "health". He received a $6,599.04 termination payment in lieu of accrued leave.

The applicant has no recollection of any telephone conversations with Ms Kuling at this time, but does not deny her claim that she telephoned him on 11th August. She claims that he told her "I'm not coming in to work anymore", and that "he did not say anything ... about not attending work because of epilepsy and/or for a complex partial seizure disorder". I have doubt as to the likelihood of his saying nothing to her about his epilepsy in response to her enquiry about his absence from work, but do not need to rule upon this. She also claims that she "subsequently" telephoned the applicant "to discuss the arrangements for him to be paid his termination entitlements", and that this led to his attendance at the hospital to sign the form of resignation.

Ms Kuling's account of her rostering of the applicant and knowledge of his health has developed over time, and it received further elaboration when she gave oral evidence. For reasons explained above and below, where her evidence is not corroborated by contemporaneous documents and is inconsistent with the applicant's evidence, I prefer to accept his account of events. Thus:

a) In her statement dated 18 November 2005, given to HREOC in response to the applicant's complaint, she said:

While I was aware that Mr Rawcliffe suffered epilepsy, I was unaware of his impaired nurse status and / or that he had any special needs with regard to his roster. At no time did Mr Rawcliffe or management discuss this matter with me and / or provide any medical evidence of his disability.

Consequently I followed the usual ward process for rostering Mr Rawcliffe's shifts. This process involved staff initially self rostering shifts on a draft roster template and I, as the NUM, altering the roster to meet the requirements of the unit. The final roster was then posted for the staff to read.

Mr Rawcliffe followed this process and I believe that his requests were generally met.

I do not recall a conversation with Mr Rawcliffe about the shift in question. However, given my note to Mr Rawcliffe, I assume that there was some communication about the shift between us.

b) I consider that the equivocal "and/or" elements in this statement, and its denial of recollection about events leading to her 9th August direction, reveals lack of candour by Ms Kuling. The events immediately leading to the applicant's resignation would be expected to have been memorable, and I consider that her statement to HREOC attempted to limit the significance of a clear admission that she, as the applicant's supervising colleague working closely with the applicant, was aware that he suffered epilepsy. The statement suggests an attempt to avoid admitting the obviously probable nature of the "communication about the shift" which explained her "note". This was that the applicant had requested an accommodation in relation to the roster for health reasons, which she had granted, and then changed her mind about for reasons which she preferred not to explain or could not reasonably justify.

c) My impression that Ms Kuling has attempted to avoid admitting the true background and reasons for her 9th August direction, is reinforced by the disingenuous suggestion in the note itself, which was repeated in her affidavit in this Court, that she was unaware that the applicant had changed the nursing diary after obtaining her approval for the roster change. Her oral evidence about the alteration to the diary retreated from this suggestion, and, in its content and demeanour, revealed a witness whose testimony I would not generally rely upon (compare transcript 18/4/07 p.15 line 47 and p.26 lines 15-41).

d) An impression of a desire to avoid revealing, rather than truthfully recounting, her oral communications with Mr Rawcliffe concerning his health, is confirmed by the contents of her affidavit, sworn on 19 September 2006, in these proceedings. In this she said that she had known the applicant since she commenced employment with the first respondent in June 2003, and worked with him as a registered nurse "in both the PGU (i.e. psycho-geriatric unit) and East Wing".

e) The affidavit contains some discreditable allegations about the applicant as a nurse, whose relevance to the applicant's present complaints is not clear. I observed a similar tendency to make gratuitous discreditable statements about the applicant in the course of her answers to cross-examination, and was left with an impression of personal animosity felt on her part towards Mr Rawcliffe. However, this possible explanation for her rostering direction to the applicant, although suggested in some of the documents filed by the applicant, was not put to her clearly in cross-examination. There are other possible explanations, and I am unable to make any positive finding as to the motivation for her refusal to accommodate the applicant's disability. As I have found above, I do not accept her denial that he ever requested her to give any accommodation. However, Ms Kuling's lack of candour about the background and reasons for her direction of 9th August, and the absence of any other evidence to shed clear light on her motivations, means that I would not make findings that it occurred "because of" the applicant's disability, within s.5(1) of the Disability Discrimination Act.

f) Her affidavit's account of events was:

18. In the past I have heard staff on PGU refer to the fact that Mr Rawcliffe suffers from epilepsy and took medication. This was in the context of general conversation and was never discussed formally with me.

19. Mr Rawcliffe at no time confirmed with me that he had epilepsy. Mr Rawcliffe and I did not at any time have a conversation regarding his epilepsy.

46. On the finalised roster for that week, Mr Rawcliffe was granted shifts reflecting the draft roster, with the exception of the MN shift on Wednesday 11 August 2004. I recall I had a conversation with Mr Rawcliffe in which he indicated he did wish to work the MN shift. He did not indicate that his reasons for this were related to epilepsy and/or a complex partial seizure disorder. I changed the shift and on the final roster Mr Rawcliffe was allocated the TC shift on Wednesday 11 August 2004.

50. Mr Rawcliffe has alleged he requested a meeting with me to discuss the August 2004 roster. I do not recall him making any such request nor having any formal meeting with him where he discussed the proposed roster with me.

51. However, I do recall having a short telephone conversation with Mr Rawcliffe in words to the effect of:

Rawcliffe: I don't want to work the night shifts you have rostered me on.

Kuling: I'll see what I can do. The ward is desperate for staff so if you can do it I would be grateful.

52. At no time during that conversation or any other conversation did Mr Rawcliffe advise me that he did not want to work night shift because of his epilepsy or for any other health related reason.

60. Mr Rawcliffe never requested any adjustment or modification to his work to accommodate problems arising out of epilepsy and/or a complex partial seizure disorder. If he had done so, I would have acted upon this information to ensure he was receiving appropriate support.

61. Because Mr Rawcliffe had worked full-time since I had known him, it did not occur to me that this shift pattern would affect him.

g) At the commencement of her oral evidence, Ms Kuling altered her evidence as to the "short telephone conversation" narrated in paragraph 51 of her affidavit, so that the applicant's statement would read: "I don't want to work the day shift between night shifts you have rostered me on". In my opinion, this was a belated attempt to address the implicit admission in her note of

9 August that there must have been communications explaining why the applicant's day shift on 11th August had been changed in the diary to a night shift, so as to conform to the surrounding night shifts. However, the altered version of the conversation in paragraph 51 sits very awkwardly with paragraph 46 of her affidavit, which was not withdrawn.

h) Paragraph 46 of her affidavit appears to make an unbelievable suggestion that the applicant himself had requested the week's night shifts and that they should be disrupted by a day shift. I consider that in her affidavit, and in her oral evidence modifying it, Ms Kuling attempted to construct explanations for the recorded history of the roster and for her note of 9th, which avoided admitting that she was aware why the applicant had requested changes to her roster. I do not accept that the applicant ever requested Ms Kuling to give him a 10 hour day shift for 11th August. Nor do I accept that he requested any night shifts for that week. I accept his evidence that, once presented with those night shifts in the amendments to the draft roster, he requested, and was initially given by Ms Kuling, permission to change the 'sandwiched' day shift to a night shift. I have been presented by Ms Kuling with no explanation why he would not have explained his reasons for that request, if they were not already apparent to her, before she agreed to the change. I consider that she must have been aware of his reasons, but has been unwilling to admit this, because of a consciousness that this would make manifest a lack of reasonable justification for her direction of 9th August.

i) In an affidavit in reply, sworn on 21 February 2007, Ms Kuling recalled for the first time (cf. paragraph 50 of her earlier affidavit), that there had been a conversation with the applicant in her office about the published roster. Although she did not recount the contents of the conversation, she maintained her denials that he ever referred to his health reasons for requesting changes to the roster. She also maintained her admissions to the effect that, if she had been so informed, accommodation would have reasonably been given. She said:

6. My involvement with the August 2004 roster was not intended to "single out" Mr Rawcliffe and the roster was done with the intention of staffing the unit appropriately.

7. At the time of preparing the August 2004 roster I had not seen any documentation which indicated that Mr Rawcliffe was suffering from epilepsy and/or complex partial seizure disorder relating to his inability to undertake shifts. If I had such knowledge I would have acted upon it and discussed ways that I could have assisted, as manager.

8. I was appointed to the position of Acting Nurse Unit Manager from July 2004 and then Nurse Unit Manager from August 2004 of East Wing and the Psychiatric/Geriatric Unit (PGU) at Manly Hospital. I am aware that Mr Rawcliffe alleges that I was put into this position with "a task of practice reform in the unit". I deny that.

9. I did not receive any instructions at the time of appointment to "remove" any staff member, including Mr Rawcliffe from the unit. I did not, in that position have authority to recruit and dismiss staff, including Mr Rawcliffe.

10. Any changes brought about in East Wing and PGU when I was Nurse Unit Manager were done so at my own initiative.

11. I am aware that Mr Rawcliffe claims that he was suffering from hepatitis in August 2004 which caused him to be tired and this was one of the reasons he asked me to adjust the roster of August 2004. At no time did Mr Rawcliffe ever tell me that he suffered from hepatitis or was tired as a result of same. He did not request an alteration to the roster in August 2004 because of same

12. I am aware that Mr Rawcliffe claims he discussed his 'health status' with me in July and August 2004, both informally on the ward and in a meeting in my office to discuss his inability to work the proposed 2004 roster. I did not have a formal meeting with him to discuss this. I did talk to Mr Rawcliffe in my office about the roster but he did not mention that he was unable to do the shifts rostered because he had epilepsy or because of his health.

13. I did not authorise Mr Rawcliffe to change the roster of August 2004 at any time nor to change the diary to reflect the same. I did tell Mr Rawcliffe that I would consider any roster requests that he had, as I would for any staff member.

14. In August 2004 Mr Rawcliffe did not tell me that he had hepatitis nor did he request that his roster for August 2004 be adjusted because of that.

j) In her oral evidence in chief, Ms Kuling recalled for the first time another relevant conversation with the applicant. She said that "on the corridor outside the NUM's office" there was a "sort of quick conversation" in which "we just discussed the shift (for 11th August) and I just said that I'd do what I could to change it for him". She then changed the day shift so that it commenced at 11.30 am rather than 9am. She appears to have presented this evidence to explain why the draft roster was changed to an MN on that day, but the published roster showed a TC. She then suggested that TC was an easier shift, because it started later and was only 8 hours. However, on the corrections which her counsel lead from her, TC was a 10 hour shift from 11.30am to 10.pm. Moreover, as I have held above, I prefer the official description of TC shown in Exhibit 3, as a 10 hour shift starting at 7.30am. In relation to this aspect of her evidence, I was again left with an impression that Ms Kuling's evidence contained reconstructions designed to prop up her unconvincing claim that the applicant never explained the need to accommodate a temporary worsening of his disability.

k) On all the evidence on this issue, I accept the applicant's evidence that Ms Kuling, in the draft and published rosters, required the applicant to work a week of night shifts interrupted by a 10 hour day shift on 11th August, and that she later ameliorated this by allowing him to change that shift to a night shift - only to change her mind and to direct him to work the day shift. I accept the applicant's evidence as to what he said to her before she agreed to the change which he inserted in the diary, and do not accept that he made no mention of his difficulties coping with a sandwiched day shift due to his illness from his epilepsy medication. I consider that it would have been most improbable that he would not have explained his reasons for requesting changes to the published roster, or that Ms Kuling would not have required an explanation before making her initial changes, if he did not offer one. I have carefully considered her evidence under cross-examination and, as I have illustrated in some particular findings above, its content and delivery left me entirely unpersuaded by her denials of the applicant's claim to have made clear to her the reason why he needed, at least, the accommodation he was originally given. As I have indicated, I prefer his evidence in this respect.

Having accepted the applicant's evidence as to his symptoms at the time, and in the light of Dr Levenston's contemporaneous opinions, I consider that the applicant has established that Ms Kuling's required roster for the week of 7 to 13 August 2004, confirmed by her direction on 9th August, made a "requirement ... with which the (applicant) ... is not able to comply" within s.6(c). Perhaps his physical condition might have allowed him to "cope" with the roster as directed, but in my opinion this would have been only with "serious disadvantage" by aggravating his tiredness and sleep deprivation (cf. the test in Hurst (supra) quoted above). As I shall indicate below, there was evidence that even in normal circumstances a nurse would have found the "split shifts" tiring, although workable. I consider that the applicant's claim that he was not able to work the shift as directed is confirmed by ordinary human experience as to the requirements of sleep and the normal effects of intrusions which disrupt sleep patterns (cf. Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 153). Moreover, the applicant was not only suffering from sleep deprivation, his mental balance was under serious stress from his disability, and his ability to cope with Ms Kuling's abrupt change of direction must have triggered further paranoid ideation. Ultimately, in my opinion, the confirming evidence that the applicant's disability rendered him unable to comply with Ms Kuling's direction is his resignation letter.

My above findings as to communications between the applicant and Ms Kuling also, in my opinion, lead to a clear conclusion that that Ms Kuling's directions as to the roster for that week were not "reasonable having regard to the circumstances of the case". This conclusion seems inevitable upon her own admissions that, if she had been aware of the deterioration in his health, and if he had "requested any adjustment or modification to his work to accommodate problems arising out of epilepsy", she would have "acted upon this information to ensure he was receiving appropriate support". As I have found above, she was so aware, and gave a direction which was unreasonable in the circumstances known to her.

I do not accept her oblique suggestions that she was justified in turning a blind eye to his requested accommodation because she had not been "formally" notified of his disability and of a need for accommodation. In the situation in which she was placed by her employer, it was her responsibility to consider and give proper responses to the applicant's requests to have his disability accommodated.

Moreover, as I have indicated, her employer was "formally" aware of his disability from the inception of his employment. Her employer also had "formal" knowledge of his history of mental breakdown in 2002 and its association with his declared disability. There is no evidence presented to me by the first respondent that this information was ever properly considered and discussed with the applicant and his immediate supervisors in relation to his possible need for accommodation in the course of his on-going employment. In these circumstances, if Ms Kuling had any doubts about whether she should give him accommodation during this episode of illness in response to his requests, it was her duty to obtain and consider the information about the applicant's disability available on his personnel files and, if in doubt, to discuss the issue with her own managers.

In all the circumstances, I consider that Ms Kuling's directions were unreasonably given, and that in the broader perspective of the applicant's employment, his employer - through its agent, Ms Kuling - made requirements of the applicant in relation to his rostering for the week of 7 to 13 August 2004 which were "unreasonable" in the circumstances of his employment and disability. I am therefore satisfied as to the requirements of s.6(b).

In reaching this conclusion as to 'reasonableness', I have applied the principles summarised in Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [115]. I do not consider it necessary to discuss the application of those principles at length. In short, their application leads to a clear outcome in this case, since the respondents did not advance any "reasons in favour of the condition or requirement" which was placed on the applicant as an employee with a known disability.

My above findings provide an introduction to the issues raised by s.6(a). This requires me to consider whether Ms Kuling's roster for the relevant week, including her direction given on 9th August, made a "requirement with which a substantially higher proportion of persons without the disability comply or are able to comply". As authorities establish, this requires identification of a "base group" of persons without the disability suffered by the applicant at that time, to consider the proportion of them who could comply. Another group of persons who have the disability is also to be considered to discover its proportion of members who could comply. The test is satisfied if the proportion of the first group is "substantially higher" than the proportion of the second group (cf. Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [111]). The identification of the two "groups", and the "pool" from which they may both be taken, is a matter for which the authorities allow considerable flexibility, since there is no requirement for a general or statistically chosen population to be identified. The appropriate groups are to be determined by considering the particular factual context in which the indirect discriminatory effect of the "requirement" is being examined. The two base groups should allow consideration of "whether (the disability) is a significant factor in compliance" (cf. Banovic (supra) at 178-9).

In the present case, neither parties presented evidence clearly directed at identifying appropriate base groups, nor at exploring the proportions of their members who would have been able to work under Ms Kuling's roster for the applicant. On the applicant's part, this was probably due to his lack of legal representation, and the complexity of this element of the Act. On the first and second respondent's part, their legal representatives preferred to try to win this issue by submissions pointing to paucity of evidence, notwithstanding the first respondent's likely ability to provide statistical or other evidence as to the capacities of nurses to perform mixed day and night shifts in one week, and of the composition and capacities of the relevant nursing population at Manly Hospital in particular.

In this situation, I am able to take into account the respondents' failure to lead relevant evidence, since "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" (see Russo v Aillo [2003] HCA 53; (2003) 215 CLR 643 at [11]). However, I still must find some basis for making positive findings under s.6(a) from the evidence before me or from ordinary human experience of which I can take judicial notice.

It is not uncommon in discrimination matters for there to be a lack of statistical or general evidence on issues raised by s.6(a), and it would be inappropriate to insist upon it unnecessarily in a jurisdiction conducted in an inferior court established to "operate as informally as possible in the exercise of judicial power" using "streamlined procedures" (Federal Magistrates Act 1999 (Cth)). Even in the Federal Court, judges have felt able to draw upon their "commonsense" when addressing s.6(a) (cf. Forest v Queensland Health [2007] FCA 936 at [69]). As has been said in the comparable State jurisdiction in Jordan v North Coast Area Health Service (No 2) [2005] NSWADT 258 in a case of alleged sex discrimination:

57. The first stage is to identify all the people who had to comply with the requirement (the base group, or 'pool'). No evidence is necessary to establish this: it is apparent from the facts. Just as in Bradley (No2) (at [64]), "the pool is easily defined in this case as all the people to whom the requirement or condition was directed". Thus the pool in this case is all those NRAHS employees who conducted ward collections of blood. We do not know how many were in the pool.

58. Within that pool we identify the two relevant groups and compare their rate of compliance with the requirement. The rate of compliance with the requirement is essentially a question of fact (Kumaran at [17]). As is often the case in indirect discrimination cases, no statistical evidence was tendered on the rates of compliance with the requirement by the comparator groups , in this case by men and by women in a late stage of pregnancy.

59. The desirable way, when possible, to deal with proof of indirect discrimination was clearly set out by Justice Browne-Wilkinson as he then was in Perera v Civil Service Commission [1982] IRLR 147 at 151-2 para 29:

it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the USA has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of [the legislation] are satisfied.

60. This was not a novel approach at the time (see eg Price v Civil Service Commissioner [1978] 1 All ER (EAT) 1228 at 1231f), and has since been explicitly and consistently followed in the UK.

61. There will be cases when a Tribunal will be unable, without statistical evidence, to assess rates of compliance because some aspect of the case will not be within common knowledge: the fact that men, on average, are taller than women could be relied on as common knowledge without the need for evidence, but whether men, in the particular circumstances of a case, make more use of a carpool than women would be a matter requiring evidence (eg Bonella & ors v Wollongong City Council [2001] NSWADT 194).

62. In our view, when reliance on common knowledge will suffice, it is appropriate for us to proceed without the time and expense of expert evidence (see, eg, Kumaran at [21]; Finance Sector Union v Commonwealth Bank of Australia [1997] HREOCA 12 at text associated with footnotes 164 and 165).

63. In addition, not only are we not bound by the rules of evidence and, subject to the rules of natural justice, empowered to inform ourselves in such manner as we think fit, we are obliged to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case (s73(2) and (3) Administrative Decisions Tribunal Act 1997).

64. The parties having offered no evidence either way on this issue, we have, in the circumstances, relied on matters of common knowledge in assessing the rates of compliance. In coming to a view as to rates of compliance, we have accepted as common knowledge, and as not reasonably open to question, that people who are employed to do a job are able do the job until and unless inhibited by pain, discomfort or distress, that men have no particular disposition to pain, discomfort or distress, and that women in a later stage of pregnancy do have a particular disposition to pain, discomfort or distress.

In the present case, I consider that the questions raised by s.6(a) can be answered shortly, by reference to the obvious and uncontested circumstances in which Ms Kuling's rostering directions occurred, and to the evidence given by the witnesses in the case.

In my opinion, the appropriate "pool" from which both groups should be considered is the group of about 33 nurses who were required to work the rosters determined by Mr Allan and Ms Kuling for East Wing nurses at Manly Hospital. This is a situation such as was suggested by Dawson J in Banovic (supra) at 187: "where a requirement is imposed upon existing employees, the relevant group may be the class of employees affected".

In the absence of evidence to the contrary, I consider that it is reasonable to infer that this pool probably included a number of workers, even a majority of workers, who were not affected by epilepsy with its associated symptoms which formed part of the applicant's disability at the time, including sleep deprivation and paranoid ideation. The evidence shows apparently successful rostering of the pool of nurses containing this group over several months, in a manner which included night shifts alternating with day shifts, and with an occasional alternation of day and night shifts.

The evidence of Ms Kuling suggested that in her experience such rosters were, in fact, worked by the nurses and that such rosters were reasonably required, at least for non-disabled nurses. She did acknowledge at one point that a "rotating roster" posed demands on "any employee" (transcript 18/4/07 p.25 line 10), but she also said: "split shifts happen all the time. On the week concerned re Cliff there were six other staff members doing similar shift patterns in that month period" (transcript p.27 line 14). The implication from the applicant's own evidence also was that in his experience he would have been able to comply with the roster but for the deterioration in his health. Mr Allan pointed to the adverse health implications of the roster given to the applicant, and suggested that it was generally unsuitable, but I would not find from his evidence that most people in the group of nurses subject to Ms Kuling's roster, who did not have disabilities such as were suffered by the applicant, would not have been able to comply with it. On all the evidence as to the past rostering of nurses in the East Wing wards, I consider it probable that most, or at least a high proportion, of the nurses without disabilities such as the applicant was suffering in July and August 2004 would have been able to comply with the rostering directions given by Ms Kuling to the applicant. I find, at least, that the proportion of non-disabled nurses rostered in East Wing who would have been able to comply with Ms Kuling's roster was significantly greater than nil.

I do not consider that it matters that I am not able to give more precision to my identification of the non-disabled group of nurses or of its exact proportion of complying nurses, since I have formed a clear opinion that no nurse in a group of nurses, suffering the same disabilities as the applicant and taken from the same pool, would have been able to comply with the directions given by Ms Kuling. This conclusion is, in my opinion, a proper extrapolation from my reasons for finding the applicant's own demonstrated inability to comply with her directions. It is also a reasonable extrapolation from Ms Kuling's own admission that such a person would require support from his or her nursing unit manager. The combination of sleep deprivation and mental imbalance present in the applicant's disability at the time would, in my opinion, give rise to "serious disadvantage" to any nurse working in a mental health ward who attempted to comply with the night and day roster given to the applicant for the week of 7 to 13 August 2004, and who was suffering from his disabilities.

I am therefore satisfied that a "substantially higher proportion" of non-disabled nurses on the East Wing roster would have been able to comply with the roster than the nil proportion of nurses disabled similarly to the applicant. I am therefore satisfied as to the issues raised by s.6(a).

94.

For the above reasons, I find that Ms Kuling, as a person acting on behalf of the applicant's employer, unlawfully discriminated against the applicant in relation to his conditions of employment within s.15(2)(a) of the Disability Discrimination Act, by requiring the applicant to work the roster directed for the week of 7th to 13th August 2004 in circumstances falling within s.6. Pursuant to s.123(2), I find that the unlawful discrimination of Ms Kuling is also taken to have been engaged in by the first respondent. I am not satisfied that any actions of the third and fourth respondent involved unlawful discrimination.

The Court's powers to provide remedies are given under s.46PO(4) of the HREOC Act:

46PO(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

In his June 2005 complaint to HREOC, the applicant blamed his loss of employment and incapacity to work in other employment on Ms Kuling's roster direction, and sought damages for financial loss and psychological damage. He said that at that time he had recovered and "am now fit to return to work". He sought $45,000 as a global award of compensation.

In his application to this court he indicated that he was seeking an apology and compensation, but did not particularise how this should be calculated. Later in the proceeding he provided the following "breakdown":

Loss of wages 9/8/04 through 2/8/06 when I recommenced employment

Loss of employment opportunities, increased wage rate for experience

Contribution to bankruptcy and associated financial hardship and social humiliation

Discrimination, psychological pain and suffering and the tarnishing of professional reputation

In oral submissions, the applicant largely left the determination of appropriate remedies to the discretion of the court.

In my opinion, the appropriateness of remedies other than compensation can be put aside. I have above made findings as to unlawful discrimination which I propose to address through the remedy of compensation, and I do not consider that they need to be further presented as declarations of the Court.

The applicant has not sought an order for reinstatement nor any other corrective action on the part of the first respondent, whether relating to his own position or to correct any systemic failing revealed in the present case.

Neither the first nor second respondent have offered an apology to the applicant, nor shown any disposition to recognise the possible need for one. Instead, they have vigorously opposed the applicant's allegations of unlawful discrimination. In this circumstance, I would follow cases suggesting that a court-ordered apology would serve little purpose (cf. Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [34], Grulke v K C Canvas Pty Ltd [2000] FCA 1415 at [4], and Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629 at [106]). The applicant's distress at the failure to be offered an apology is, however, a matter which I propose to take into account in a minor way when awarding compensation.

The significant difficulty facing the applicant's claim for substantial damages for mental injuries and lost earnings is that he has not presented any medical opinions addressing the requisite causal connections. That his seizure on 10th August and his subsequent period of incapacity to work was caused or contributed to by events on 9th August appears obvious to the applicant. However, I am not prepared to draw this conclusion merely from the sequence of events, in the absence of any expert evidence as to the aetiology of his seizure and subsequent incapacity. In adversarial proceedings such as the present, the court can only decide these issues on the evidence presented by the parties. Moreover, even had the applicant presented medical evidence showing a causal contribution from Ms Kuling's actions, he would still have faced difficulties obtaining his claimed compensation, due to the supervening effects on his health and earning capacity of the disciplinary proceedings which commenced in August 2004, and which have had an obvious effect on his health and employability over the subsequent years.

In my opinion, the applicant has failed to establish any financial "loss or damage because of the conduct" constituting the unlawful discrimination of the first and second respondents. He has not established any loss of earnings for which I would award compensation. Nor has he established physical or mental injuries causally related to the unlawful discrimination, for which substantial compensation could be given. This would require evidence to have been provided by medical experts as to their assessments of causation, gravity of effects and prognosis.

It is, however, well established in discrimination cases that the legislation permits an award of compensation for intangible injury to feelings, personal hurt and distress occasioned by conduct which Parliament has declared unlawful. In relation to such compensation, I summarised the effect of the authorities in Rankilor v Jerome Pty Ltd [2006] FMCA 922 at [41]:

The exact determination of the appropriate amount of compensation for the applicant's personal distress is never easy in these cases. Account must be taken of my assessment of the likely personal effects on this particular applicant of the discriminatory conduct, and an award should be arrived at which is "restrained" but not "minimal", taking into account the intangibility of an injury by way of hurt feelings and mental distress without an established medical injury (c.f. Hall & Ors v A&A Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217 at 238, 256, 281). See also QBE Travel Insurance v Bassanelli [2004] FCA 396; (2004) 137 FCR 88 at [89], and

In the present case, I consider that there are features which call for such an award at the upper level of appropriate awards. The immediate distress suffered by the applicant was clearly demonstrated by his resignation letter, before his subsequent seizure and disability. The applicant claims, and I accept, that Ms Kuling's conduct produced highly distressing paranoid thoughts at the time, and caused him to believe that his employer, through her agency, wished to undermine his health and force his retirement from nursing. To a real extent these distressing thoughts are still present, and have been revived in the course of this proceeding. They are apparent throughout the bulky documents filed by the applicant, in his fruitless efforts to discover documents shedding light on the motivations of Ms Kuling and his other managers, and in his oral evidence when undergoing a thorough cross-examination which attempted to discredit his recollection of events. Taking into account all his circumstances, and mitigating my award to take into account unquantifiable contributions to the applicant's long term mental distress from events other than the unlawful discrimination found by me, I consider that an appropriate award of compensation is $15,000.

I shall hear the parties further in relation to any application by the applicant for interest under s.76 of the Federal Magistrates Act in relation to a component of my award which relates to a past period of time, and in relation to costs.

I certify that the preceding one hundred and six paragraphs (106) paragraphs are a true copy of the reasons for judgment of Smith FM