Razumic v Brite Industries

Razumic v Brite Industries - [2008] FCA 985 - FCA 2008 case summary — Zoe

[83]

The Applicant's evidence 28 The two proceedings were consolidated and listed for hearing on 18 March 2008. 29 Evidence on behalf of the applicant was received in the form of written witness statements by the applicant and her mother, Mrs Rosa Razumic, together with statements by two expert witnesses, Dr Chris Towie and Ms Janette Wilson. Mrs Razumic detailed her daughter's disabilities and recounted that she had been employed by the respondent for about twenty years before her services were terminated in about March 2006. Mrs Razumic also attested that, despite difficulties from time to time to which she was vulnerable, her daughter had been very happy as her work gave her life an interest and a focus. As well, Mrs Razumic purported, presumably on the basis of hearsay, to give evidence about the incident involving Lisa Ferrara. Apparently, Mrs Razumic accompanied her daughter to a meeting at the respondent's premises on about 15 March 2006 when it became clear that the applicant's employment was to be terminated. In the light of her observations of what happened at that meeting, Mrs Razumic stated: 'I do not believe that Brite Industries gave any proper consideration or time to my daughter's version of what had happened and they were determined simply to sack her, without consideration for her years of service, her good work at Brite Industries, the difficulty she would have in finding other employment and the devastating effect on her of no longer having a job. At the meeting the management people talked among themselves and I heard them whispering. They refused to give my daughter another chance.' 30 In her own witness statements the applicant recounted the history of her employment with Brite Services from November 1985 when she was sixteen until her dismissal in March 2006. Until about five years before then, she had worked full-time but had been reduced to three days a week because her supervisor, Mr John Wood, thought she was unsteady on her feet. The applicant acknowledged that, as a result of a stroke when she was two years old, she suffers from epilepsy, impaired ability to remember and process information and a loss of mental agility. Over the years of her employment by the respondent, she has variously been engaged in sorting hooks of different shapes, packing body lotions into blister packs, cleaning and canteen work. Her most recent internally assessed competency-based remuneration was $1.56 an hour. 31 The applicant also recounted difficulties which she experienced in inter-action with other employees, some of whom, she claims, were violent or abusive towards her. In effect, she corroborated the incidents particularised in her statement of claims as set out at [8] of these reasons. Her account of the incident which she claims to have resulted in her dismissal occurs in these terms at pars 15-17 of her statement dated 13 April 2007; '15. The incident that prompted my dismissal occurred on Tuesday, 7 March 2006. That day my Group leader, Debbie asked me to help another employee called Lisa Ferrara ("Lisa") to sort some hooks. As I was helping Lisa, she began screaming and swearing at me, saying hurtful things like "fuck your arse" and sticking up her fingers at me. I went to see Debbie to complain. Lisa came over to us and kept swearing at me in front of Debbie. She then tried to punch me in the left arm. I told Lisa to stop and said that she would get in trouble if she punched me. About 20 other employees were present at the time on the factory floor, and some witnessed what happened.

[102]

The Respondent's evidence 35 The evidence relied on by the respondent included a witness statement of Margaret Ruff, the Chief Executive Officer of the respondent. Ms Ruff noted that, although sometimes described as conducting a "sheltered workshop", the respondent - 'is now characterised as a business service and is expected to break even as a business. Where a profit is made, that profit is delivered back to employees in services and amenities.' Ms Ruff also recounted that the respondent has about 190 employees of whom about 145 have disabilities of varying degree. The rest are engaged in Employment Support ("ES") assisting, supervising and supporting the disabled employees. 36 According to Ms Ruff, the applicant has from time to time in the course of her employment exhibited aggressive, intimidating and abusive behaviour towards fellow employees. As a result, successive Behaviour Management Plans ("BMP's") were developed which the applicant was required to sign and which were designed to reinforce her compliance with the respondent's rules about behaviour in relation to other employees and her observance of occupational health and safety prescriptions. 37 Ms Ruff traced back to April 2005 the events which she claimed had led to the termination of the applicant's employment. They included disobedience and verbal abuse of a team leader, arguments with other employees and a threat by the applicant to kill herself. In September 2005 the applicant was given a written warning and asked to leave the workplace and seek external supportive counselling. During September 2005, the applicant continued what Ms Ruff called her "erratic" behaviour and was issued with a second written warning and, while discussing it, said that she might as well go out in front of a car and kill herself. She then had an epileptic seizure and was taken to the First Aid room to rest. 38 After consultations with Ms Ignys of Action on Disability within Ethnic Communities ("ADEC") and Mr De Marco, a psychologist, the applicant returned to work on 19 October 2005 when she was warned that further instances of unacceptable behaviour could jeopardise her continued employment. 39 On 7 March 2006, after the incident with Lisa Ferrara, the applicant was given a third written warning and a decision was taken by Ms Ruff in consultation with other ES staff that the applicant's employment should be terminated unless she could provide a reasonable explanation for her behaviour. Ms Ruff explained that provisional decision as prompted by a repetition on 7 March 2006 of the applicant's threat to throw herself in front of a car and kill herself and concern that the safety of other staff might be imperilled if they tried to prevent the applicant from giving effect to a threat of that kind. There was also a perception that the applicant's behaviour was subjecting other employees and ES staff to excessive stress. 40 The meeting on 15 March 2006 was attended by Ms Ruff, three members of the respondent's ES staff, the applicant and her mother and a Mr Barry Stimelj, an advocate from ADEC, who represented the applicant. According to Ms Ruff, the applicant was given a full opportunity to put "her side of the story". Nevertheless, Ms Ruff confirmed her decision to terminate the applicant's employment principally because "her behaviour in the workplace was giving rise to a serious occupational health and safety issue." Ms Ruff also contended that the respondent's inability to cope with the demands made by the applicant's stressful and disruptive conduct militated against her reinstatement in her previous employment. 41 Ms Ruff's evidence was corroborated in some respects by that of Ms Angela Pantalone, a part-time ES worker who has been employed by the respondent in that role for approximately nine years. Ms Pantalone has graduate qualifications in Applied Science (Intellectual Disability), Rehabilitation and Workplace Training and Assessment. She has had personal as well as professional experience as a result of the need to care for her adult daughter who is intellectually impaired. Ms Pantalone expressed the opinion that the applicant was unable to work at the respondent's premises without major conflict. She noted the development of BMP's for the applicant's benefit and referrals which she had been given to a psychologist for anger management and to Disability Services for case management. Ms Pantalone also supported Ms Ruff's contention that reinstatement of the applicant in her previous employment - 'would be quite disturbing and distressing for other employees with a disability and staff. I have noticed since the termination of Sandra's employment that many issues involving conflict between employees do not now occur.' She also said that she is not in a position to support the applicant on a one-on-one basis because she has to cater for the needs of 145 other employees. 42 Deborah Bloomer, a team leader employed by the respondent since 2006 recounted in a written witness statement filed on 31 January 2008 the incident on 7 March 2006 between the applicant and Lisa Ferrara. Her account continued with these paragraphs; '5. After I stepped in between the two girls, I asked Sandra to go and take a break so that I could try to calm down the situation. However, Sandra was very upset and distressed and it seemed as though I was not getting through to her. Sandra then ran out of the workplace. I saw Sandra run out onto the road outside of Brite.

[105]

43 Ms Catherine Millar had been employed by the respondent as a team leader for more than the last two years of the applicant's employment. On 15 March 2006 she was an acting operations manager. Ms Millar acknowledged that the applicant had demonstrated an ability to remember instructions and carry out tasks within the range of sorting and packing duties which she had been allocated. However, she considered that the applicant often required significant support to enable her to concentrate on the task in hand and frequently engaged in unacceptable behaviour which tended to disturb other employees. Ms Millar also attested to her perception of some incidents between the applicant and other employees which had been recounted by the applicant and other witnesses. Ms Millar's account did not attribute responsibility for those incidents solely to the applicant but she noted that, at times, when she was not following her current BMP the applicant tended to argue with, and bully, other employees. In Ms Millar's view, this tendency was largely attributable to problems in the applicant's personal life, particularly in relation to her father who, as recounted by other witnesses, had, on one occasion, stabbed the applicant causing her to be hospitalised. As a result, the applicant's mother had obtained an intervention or restraining order against the father. 44 Ms Millar also corroborated the evidence of other witnesses about the events of 7 March 2006 when Ms Millar saw the applicant run from the workplace on to the road. In Ms Millar's opinion, given the many previous warnings that her job was in jeopardy which the applicant had received, she was unable to continue working for the respondent without causing a good deal of conflict. As already noted, Ms Millar took part in the meeting of 15 March 2006 and her recollection of it accorded with Ms Ruff's account. 45 Renae Cummins, who had also participated in the meeting of 15 March 2006, has been employed by the respondent since March 2004, previously as a team leader and now as an employee co-ordinator. She had been a team leader for the applicant and kept a work diary, extracts from which related to incidents involving the applicant. Like Ms Millar, Ms Cummins noted that the applicant had difficulty in concentrating on her work and often reacted abusively or aggressively to real or perceived slights by other employees. On occasions, the applicant was moved to another location to avoid conflict with particular employees but that was not always practicable. 46 Ms Cummins noted various departures by the applicant from her current BMP and recounted an incident on 28 July 2004 when the applicant left the workplace and walked into the path of a hearse leading a funeral cortege down Blair Street, Broadmeadows. 47 Ms Cummins also recalled another occasion on or about 5 April 2005 when the applicant threatened to walk on to the road and kill herself. As well, Ms Cummins considered that animosity between the applicant and certain other employees was distracting the applicant from her work. Some of the resultant incidents led to written warnings being issued to the applicant on 27 September 2005 and 30 September 2005 when the applicant again threatened to "just go and kill herself, walk in front of a car". Ms Cummins corroborated the accounts given by other witnesses for the respondent of the incident on 7 March 2006 involving Lisa Ferrara and the meeting on 15 March 2006 when the applicant was notified of the termination of her employment. That was the only option available to the respondent according to Ms Cummins who strongly opposed the suggestion that the applicant should be reinstated in her employment. Ms Cummins justified that contention by deposing; 'The level of abuse and aggression was more than what is reasonable for other employees and staff to put up with. Of the many employees I work with who have disabilities, none have exhibited the behaviour shown by Sandra over an extended period of time. The workplace is a much happier and less stressful environment for other employees and staff since the termination of Sandra's employment.'

[112]

49 Mr Sorensen of Counsel for the applicant referred to of Purvis v New South Wales(Department of Education and Training)(2003)217 CLR 92, in particular at [11], [21] and [224]. He submitted, in relation to s 5(1) of the DD Act, that the applicant's level of remuneration and the fact that the respondent received government subsidies to assist in keeping disabled persons in meaningful employment should be taken into account when considering the requirement for different accommodation or services which the respondent had objected to providing to the applicant when it terminated her employment. The circumstances of the applicant's employment and dismissal were dissimilar to those which might have applied to a person without her disability. Taking account of an applicant's special circumstances, it was submitted, allows s 31(1A) of the DD Act to operate as the legislature intended. 50 It was next submitted on behalf of the applicant that the respondent's conduct must be regarded as discriminatory unless it can be shown that the provision of relevant services or facilities would constitute an "unjustifiable hardship" within the meaning of ss 11 and 15 of the DD Act. In determining where there has been "unjustifiable hardship", Counsel submitted, all of the relevant circumstances must be taken into account. 51 Mr Sorensen then submitted on behalf of the applicant that the "inherent requirements" of a person's employment must be determined in the context of s 15(4) of the DD Act, as explained by the High Court in X v Commonwealth (1999) 200 CLR 177 per McHugh J at [36]-[40] and per Gummow and Hayne JJ at [102]-[104]. The applicant submitted that in order to allow effective scope for the operation of s 15(4), an employer must be precluded from discriminating against an employee as a practical alternative to providing special services or facilities which it could provide without suffering unjustifiable hardship. 52 Counsel contended that the circumstances of the employment of the present applicant, together with the respondent's conduct should lead to a finding that there had been discrimination against the applicant in the relevant sense.

[113]

Respondent's submissions 53 Mr McNab of Counsel for the respondent submitted that the material difference between the applicant's two claims is that the applicant does not allege that the termination of employment was in breach of the DD Act and contended that the applicant has not properly pleaded either the cause of action based on a contravention of s 170CK(2)(f) of the Act or that framed as a breach of s 15 of the DD Act. 54 In relation to the DD Act, Counsel for the respondent referred to s 3 of that Act which provides that one of its objects is to; '(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community' Accordingly, he contended, a purpose of the DD Act is not to provide advantageous treatment but, as far as practicable, to provide equal treatment for persons with disabilities; see Purvis v New South Wales (supra) at [195]-[208] per Gummow, Hayne and Heydon JJ. 55 It was accepted on behalf of the respondent that the applicant has a disability as defined by s 4 of the DD Act but Counsel went on to submit that the applicant's employment had been terminated because her conduct at the workplace was such that it was regarded as no longer appropriate for her employment to continue. 56 Reference was made to the reason for the termination of the applicant's employment as explained by Ms Ruff in her evidence as summarised at [36]-[39] of these reasons. According to Counsel for the respondent, the evidence revealed that the applicant had been offered assistance throughout her employment, and particularly in the period leading up to the termination of her employment. That assistance, as detailed in the case notes, had been directed at helping her remain at the workplace and alleviating her personal problems. 57 Mr McNab next submitted that the applicant's employment had not been terminated because of her disability, but because her behaviour had caused a great deal of stress and tension in the workplace, and because she had not been responding to the assistance provided by the respondent to help her overcome her severe behavioural problems. Alternatively, it was contended, if the employment had been terminated because of the applicant's disability, then it was because the disability had caused the applicant to be unable to fulfil the inherent requirements of the position, as described in s 15(4) of the DD Act, ors 659(3) of the Act. 58 The respondent's analysis of the evidence was said to support an assumption that, if the same behaviour had been exhibited by a person without the disability, the employment of that person would have been terminated. According to the rationale to be distilled from Purvis, the required comparison for the purposes of s 5(1) of the DD Act is between the applicant and a notional person without the applicant's disability, whose circumstances include, or are not materially different from, the manifested symptoms of the applicant's disability; see per Gleeson CJ at [11] and per Gummow, Hayne, and Heydon JJ at [223]-[224]. Counsel for the respondent also referred to the reasoning of Harper J in Peninsula Country Golf Club Inc v Corp (1998) EOC 92-953 and of Heerey J in Featherstone v Peninsula Health [2004] FCA 485. 59 It was acknowledged on behalf of the respondent that the circumstances of this case are special in that all of the employees at the Brite Services workplace other than those in the ES category providing support and assistance have disabilities of one kind or another over a wide range. However, this was said not to change the comparator for the purposes of s 5(1) of the DD Act. The concern in this case had arisen because the behaviour of the applicant was causing health and safety risks for herself personally and the ES staff and other disabled employees who had to work with her. Mr McNab submitted that this concern was not due to the applicant's disability, and that the reason for the termination of her employment was not affected because her fellow employees also suffered from disabilities. The test as formulated in Purvis is applicable and should be given an operation which renders the termination non-discriminatory. 60 The respondent rejected the applicant's contention that it had failed to provide special services to her and submitted that it follows from the reasoning of the majority in Purvis that s 5(2) of the DD Act does not require the provision of different accommodation or services; see generally the discussion by Gummow, Hayne and Heydon JJ Purvis at [211]-[218], especially at [218] where it is noted; '… there is no textual or other basis in s 5 for saying that a failure to provide such accommodation or services would constitute less favourable treatment of the disabled person for the purposes of s 5.' 61 The totality of the evidence, in the respondent's submission, supports a finding that the applicant was treated with dignity and respect by her supervisors, and that her complaints against other employees had been dealt with appropriately. The largely unchallenged evidence of the respondent's witnesses borne out by the contemporaneous notes and records, the accuracy of which was not disputed, was relied on as contradicting the applicant's allegations. 62 Counsel for the respondent next submitted that the applicant's claim purporting to rely on s 170CK of the Act went beyond the scope and operation of that section. As formulated, this claim appears to invoke what was formerly s 170CE(1)(a), now s 643(1)(a), of the Act, as the allegations include a failure to accord natural justice, making the applicant's termination harsh or unjust. To the extent that a complaint invokes s 170CE(1) it is not justifiable in this Court. 63 Mr McNab also submitted that the applicant's claims in relation to an alleged failure to apply the disability standards, a failure to accord natural justice, and her allegations of misconduct by co-workers are extraneous to the question of whether the dismissal was for a reason arising from the disability of the applicant. The respondent's submissions have therefore been formulated on the basis that, if any relief was conceivably available to the applicant, it would be afforded by the DD Act rather than the Act. 64 The reasons for the termination of the applicant's employment were identified as essentially those explained by Ms Ruff. It was not open to the Court to find that those were notthe respondent's true reasons, particularly given the applicant's inability as a result of her poor memory and difficulty in articulating an alternative hypothesis, to contradict the accounts given by the respondent's witnesses. 65 Finally, it was submitted on behalf of the respondent, that if, contrary to its primary contention, relief were available under the Act, this would not be a case where the Court could properly exercise the discretion conferred by s 170CR(1)(b), (now s 665(1)(b)) to make an order requiring the respondent to reinstate the employee. The applicant has not put forward any evidence which supports the appropriateness of her reinstatement and, given the nature and context of employment at the respondent's workplace, and the limitations on the funding and resources available to the respondent, it would be contrary to the evidence to reinstate the applicant in circumstances where it has been demonstrated that she is unable effectively to work in the environment, and that her employment is likely to revive distress to fellow employees and members of the ES staff.

[114]

(a) The claim under the DD Act 66 In Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92, Gleeson CJ at [3] referred to s 4 of the DD Act which defines disability, as including; '(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.' 67 In that proceeding, the appellant alleged that he had been discriminated against when the principal of his primary school suspended, then excluded, him from school, due to his violent behaviour towards other students, which was a result of his disability. At [8] of his reasons, his Honour observed in relation to s 5 of the DD Act; 'Section 5 of the Act relevantly provides that a person, the discriminator, discriminates against an aggrieved person on the ground of a disability if, because of the aggrieved person's disability, the discriminator treats the aggrieved person less favourably than the discriminator would treat a person without the disability in the same circumstances.' Gleeson CJ then accepted, at [11] that the term "disability" in s 4 of the DD Act includes; 'functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability. However, it is necessary to be more concrete in relating para (g) of the definition of disability to s 5. The circumstance that gave rise to the first respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. 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. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.' His Honour next went on to point out, at [12], that; '… In characterising the actions of the first respondent, for the purpose of applying a law against unjust discrimination by making the comparison required by s 5 of the Act, and in considering all the circumstances in which the school principal acted, to compare the treatment of the pupil with the treatment of some other pupil who, without any disability, behaved violently permits due account to be taken of the first respondent's legal responsibilities towards the general body of pupils.' 68 Gummow, Hayne and Heydon JJ, concurring, also referred to s 5(1) of the DD Act, and observed, at [222]-[224]; 'It may readily be accepted that the necessary comparison to make is 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 that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.

[120]

71 I am satisfied on a review of the whole of the evidence that, by March 2006, the applicant, despite her long work history, had exhibited a deteriorating work performance and psychological and social dysfunction attributable to her epilepsy and family background which made her unable to carry out the inherent requirements of her employment. To have any prospect of carrying out those requirements, she would need to be isolated from many, if not all, of her co-workers and to be supervised almost "one-on-one" by ES staff. Even if, as is far from certain, facilities and services of that order would have enabled the applicant, after March 2006, to have carried out the inherent requirements of her employment, the evidence does not permit me to find that those facilities and services could have been provided by the respondent without undue hardship. 72 The evidence of each of the witnesses for the respondent summarised at [35] to [47] above was tested by cross-examination during the oral hearing of these applications. A review of that evidence makes it clear that none of the relevant members of the respondent's ES and managerial staff was actuated by malice or animus against the applicant. On the contrary, I was favourably impressed by the professionalism and concern displayed by each of those witnesses in an endeavour to accommodate the applicant's difficulties and preserve for her a viable place, in the respondent's workforce. Likewise, I have been persuaded that the decision to terminate the applicant's employment, which was ultimately that of Ms Ruff, was not, in any sense, taken unreasonably or capriciously. It was only taken after full consultation with those directly charged with supervising and assisting the applicant, and after giving the applicant every reasonable opportunity of advancing through her advocate, Mr Strmelj, any available alternative to dismissal. Accordingly, I am satisfied that, had a person without the applicant's disabilities caused the same degree and disruption within the respondent's unique workplace, he or she would have been dismissed long before that decision was taken in relation to the applicant.

[121]

(ii) The claim under the Workplace Relations Act 73 As far as it is justiciable by this Court, the applicant's claim is based on s 170CK(2)(f) (now s 659(2)) of the Act. That sub-section and paragraph provides; 'Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: …… (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.' Sub-section (3) achieves, effectively, the same exculpatory effect as s 15(4)of the DD Act by providing; 'Sub-section (2) does not prevent a matter referred to in paragraph (2)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position concerned.' 74 For the reasons explained at [69] to [72] above, I am satisfied that the reason for terminating the applicant's employment even if "for" her physical or mental disability, was based on the inherent requirements of the particular position concerned, particularly the need for reasonably harmonious inter-action with other employees and ES staff. As the relevant provisions of the Act do not qualify the exculpatory effect of sub-section (3) by referring to services or facilities which could be provided by the employer without unjustifiable hardship, it follows a fortiori that the claim under the Act must fail. 75 As far as the claim under the Act travels outside s 170CK(2)(f) or s 659(2(F) of the Act it may be taken to invoke the claim for relief afforded by s 170CE(1) or s 643(1) that the termination was harsh, unjust or unreasonable. For the reasons advanced by Counsel for the respondent and summarised at [62] and [63] above a claim of that kind is not justiciable by this Court. 76 Even if contrary to the conclusions already reached, I had been persuaded that the applicant had established a claim to relief under the Act, I would not have exercised the Court's discretion to order her reinstatement. The evidence to which I have already referred, cogently suggests that conscientious professional supervisors and assistants familiar with the applicant's disabilities and their effect on the workplace have formed the judgment that her continued employment is contra-indicated by serious concerns going to far-reaching matters of occupational and personal health and safety. In the face of suggestions of that kind, it would be rare, if ever, that the Court would exercise the discretion by substituting its own judgment that those concerns are outweighed by some personal benefit which an applicant might derive from reinstatement.

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