Slattery v Manningham CC

Slattery v Manningham CC - [2013] VCAT 1869 - VCAT 2013 case summary — Zoe

[32]

Mr Slattery is prohibited from attending any building that is owned, occupied or managed by Manningham City Council. The initial decision to impose this ban was made in April 2009. In final submissions, the Respondent argued that, since the amendment of the application, I must presume the 2009 decision to be valid. On this basis then, submitted the Council, any implementation of the ban on or after 1 August 2011 was simply the result of Council officers doing what they were required to do, that is to implement lawful decisions of the Council.
The Applicant characterised the treatment as the ongoing refusal after 1 August 2011 of Mr Slattery's access to Council owned, occupied or managed premises, the ongoing refusal to allow direct contact with Council, failure to review the need for these arrangements, and failure to make reasonable adjustments on and after 1 August 2011.
I do not accept the submission of the Respondent that everything that occurred after 1 August 2011 was incapable of being challenged or considered by this Tribunal because it simply comprised of Council officers carrying out orders imposed on them prior to the relevant date, orders over which they had no control or to which they applied no thought. I do accept that it is not open to me to consider the legality of the 2009 decision, but do not accept that I must presume it to have been a valid decision. The reason why it is not open to me to consider the legality of the 2009 decision is that the transitional provisions in the EO Act 2010 operate in the way set out at paragraph 10.
In any case, since 1 August 2011, there is evidence that Council officers did consider the terms of the treatment and make ongoing decisions about it. For example, on 17 September 2012, Mr Slattery was permitted to attend a session at Council offices conducted by the Victorian Electoral Commission. [9] Most significantly, on 5 November 2012, Mr Slattery wrote to the Council, requesting a formal review of the ban. On 16 November 2012, the Acting Chief Executive Officer wrote to Mr Slattery saying that he was not prepared to recommend revocation of the ban.[10]
It was open to the Council at any time on or after 1 August 2011, to review the ban. I find that the relevant treatment was the decision to leave the ban in place, and in particular the decision on 16 November 2012 to do so, following Mr Slattery's formal request for review of the ban.

[54]

The Respondent submitted that I ought read s 8 of the EO Act 2010, together with the Explanatory Memorandum, as meaning, essentially, that what is required to be applied is not that comparator test, but a different comparator test.[16] The Respondent submits that it would be impossible to answer the question of whether or not someone has been treated unfavourably without engaging in a comparative analysis.
I accept that considering the treatment afforded to other people in the same situation may be of assistance in undertaking the task of assessing whether or not someone had been treated unfavourably, but I do not consider that the section requires me to do so. Unlike the previous provision, that in the EO Act 1995, which specifically required comparison, this provision does not. The Explanatory Memorandum indicates that the shift away from the previously clearly expressed requirement to compare relative treatment was purposeful.
Under s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) the Tribunal must interpret statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistent with their purpose. To do this, where the words of a statutory provision are unclear, or capable of more than one meaning, or the meaning is, as the Court of Appeal has noted, unresolved, I should give them whichever of the possible meanings is most compatible with human rights. The relevant human rights are set out at paragraph 161.
Taking into account the wording of s 8 of the EO Act 2010 on its face, the extrinsic materials, the available authority and s 32 of the Charter, it is my view that the definition of direct discrimination in the EO Act 2010 does not require a comparator. What it requires is an analysis of the impact of treatment on the person complaining of it. This analysis may be informed by consideration of the treatment afforded to relevant others, particularly in circumstances where it is not clear whether the treatment is unfavourable.
Was the treatment complained of unfavourable to Mr Slattery?
Mr Slattery has described the impact of the ban, and the continuing effect of the ban, in his own words. He wrote that:

[70]

Dr Farnbach, in oral evidence, further described Mr Slattery as having compulsive disorder, or impulse control disorder. He said that Mr Slattery had strong views about public safety and about people doing the right thing. He experienced a strong and urgent compulsion to report, or complain about, what he saw as behaviour that created risk, and then a feeling of relief when he had made a phone call or sent a letter.
Dr Farnbach, in his oral evidence, described the symptoms of manic depression as including elevated mood, racing speech, profusion of thoughts, excessive energy and confidence, being fixated on new plans and schemes, and having downswings of depression. He described the symptoms of PTSD as including the experience of intrusive recollections of traumatic events. He said that, for Mr Slattery, these included nightmares and intrusive recollections of traumatic deaths he had witnessed. These recollections and nightmares affected his sleep.
Dr Farnbach agreed with Counsel for the Respondent that what Counsel described as the incessant complaining would be unlikely to stop unless something changed. When asked what he would recommend as treatment that might cause such a change, Dr Farnbach said that cognitive behavioural therapy, looking at the patterns of thinking, the thoughts and beliefs leading up to the actions, may be an effective treatment. He agreed with Counsel for the Respondent that continuing to engage in persistent complaining behaviour would probably not assist Mr Slattery's recovery.
The Applicant tendered a report from Bernadette Walsh, Psychologist, dated 26 April 2006. This report does not carry great weight, as Ms Walsh was not called to give evidence and so was not cross-examined. Also, the report is over seven years old, and so did not directly address the issues before this Tribunal. It was written to the Accident Compensation Conciliation Service for the purpose of confirming the diagnosis of PTSD. I have noted it, however, as it does refer to two of the specific incidents that gave rise to the PTSD suffered by Mr Slattery, in December 1986 and November 1987. The report offers the opinion that, for Mr Slattery, a symptom of his PTSD is a compulsion to lodge complaints about potentially hazardous situations.
Also submitted, with no accompanying oral evidence, was a report written in 2001 by Dr Paul Brown, a psychiatrist engaged by the Council in late 2000 to assess the level of risk posed to Council by Mr Slattery, following an incident, and to make recommendations to the Council as to how best to negotiate the relationship with Mr Slattery. This referral occurred in the context of an ongoing dispute between Mr Slattery and the Council about him keeping two pigs when he had a permit for only one. The report has less probative value than Dr Farnbach's, being many years old, and being offered without the opportunity for the writer to give oral evidence, but it does bear some relevance, as it directly addressed the issues between Mr Slattery and the Council. I note that Mr Slattery objected to the reference to Dr Brown's report, as he objected to the Council calling for Dr Brown's involvement when it did so in 2000. The report is, however, before the Tribunal, and I have read it. In the report Dr Brown states:

[79]

In his own evidence, Mr Slattery described his acquired brain injury as affecting his capacity to sort things out. He said that since having the ABI he had lost skills, and the ability to handwrite. He said that the PTSD left him feeling hyper-vigilant. As to his hearing loss, Mr Slattery said that it was very frustrating being in situations where he could not hear properly. He said that he felt respected, and less frustrated, when he could hear properly and could be understood.
Mr Slattery's wife was present for the whole of the hearing. At the end of his evidence, in a moment of reflection, Mr Slattery noted that, at the lunch break which had recently concluded, his wife had been horrified when hearing about all the things Mr Slattery had said and written to people at the Council. He said that he had told her that this was 'part of the package', an effect of his brain disorder. He said that he realised, on reflection, that he had offended people, and that he wished to 'unequivocally' apologise for doing so.
The definition of disability, as set out above at paragraph 21, includes behaviour that is a symptom or manifestation of a disability.
The Respondent submitted that I should conclude that there is no relationship between the behaviour that caused the Council to make the decisions it did, and Mr Slattery's disabilities, that is that Mr Slattery's behaviour (which the Respondent characterised as rude, offensive, threatening, aggressive) was not a symptom or manifestation of his disability. The Respondent said that the reason it made the decisions was not because of Mr Slattery's disabilities, but to protect the health and safety of its employees and the wider public.
I agree with the Respondent that it is necessary to identify what are the relevant symptoms of Mr Slattery's disabilities, based on the evidence, and then to consider whether the Council treated him unfavourably because of those symptoms.
I do not accept the submission that I may infer that Mr Slattery experiences symptoms typical of people with the disabilities he suffers from. [20] Mr Slattery must establish, on the evidence available to the Tribunal, what are the symptoms he experiences consequent to his disabilities.
It is sufficiently clear from the evidence, in my view, that Mr Slattery's compulsive complaining is a symptom of his disabilities. Dr Farnbach's report is clear on this point, and his oral evidence supported this finding.
I am satisfied that, to at least a significant extent, Mr Slattery's 'irrational and anti social behaviours'[21] are a manifestation of his disabilities, in particular his bipolar disorder. I am satisfied that, to at least a significant extent, Mr Slattery's 'aggressivity' [22] is a manifestation of his disabilities, in particular his bipolar disorder and PTSD.
I note that Dr Farnbach's evidence is that it is the combination of symptoms - 'Mr Slattery's compulsion to make complaints and to otherwise behave in a manner which the Manningham Council considers to be objectionable and unwarranted' that are a manifestation of his psychiatric condition.
I find that this combination of symptoms - compulsion to complain, irrational and anti social behaviours, aggressivity, behaviour that is considered objectionable and unwarranted - constitute the relevant symptoms and manifestations of disability, based on the evidence.
The definition of disability in s 4 of the EO Act, as discussed, includes behaviour that is a symptom or manifestation of a disability. There is no qualification in this definition. By this I mean that it does not address the situation where some other cause in addition to the disability may be operative. On the available medical evidence I am satisfied that the relevant behaviour is symptomatic of disability to at least a significant extent. I cannot say for certain, on the evidence, that there is no other possible contributing factor. I read the definition in the context of the way in which the rest of the Act operates to require something a little less than absolute and total certainty, for example s 8, which requires that an attribute be a substantial reason for treatment, not the only reason, for discrimination to occur. I also take into account s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) which requires that the Tribunal interpret statutory provisions in a way that is compatible with human rights, so far as it is possible to do so consistent with their purpose. To this end, I take into account, also, the objectives of the EO Act 2010 set out at s 3.
Did the Council treat Mr Slattery unfavourably because of these symptoms, or for other reasons?
I have found that the conduct, or treatment, is the decision to leave the ban in place in the period from 1 August 2011, in particular after Mr Slattery's formal request for this to occur in November 2012. In order to understand what was the reason for the conduct, or treatment, it is necessary to look at what took place during this period, but also at what took place prior to the ban being imposed in 2009. This is because Council decisions subsequent to 1 August 2011 were informed by what had occurred prior to that date. The parties agreed that it was relevant and necessary to consider events that occurred prior, as it would not otherwise be possible to understand the context in which the claim stands. Most of the evidence given related to the period prior to 1 August 2011.

[87]

In his oral evidence, Mr Goldsworthy recounted an incident in 2009 when Mr Slattery had allegedly held his hand in the shape of a gun and pointed it at the Mayor of the time. Mr Goldsworthy said that he did not actually see this occur, but heard about it. He also spoke about a conversation he had with Mr Slattery, during which Mr Slattery noted that Mr Goldsworthy was on record as living in one place and his wife in another. Mr Goldsworthy said that he found this conversation disturbing, because it indicated that Mr Slattery had sought out his home address. He was also distressed when Mr Slattery sent a letter to Mr Goldsworthy's wife at home. He also gave evidence about an incident at the Council in 2012, when Mr Slattery was permitted to attend a meeting for prospective candidates for election, because he had nominated to be a candidate. Mr Goldsworthy attempted to give Mr Slattery a letter but he refused to take it, pushed Mr Goldsworthy, then tore the letter up.
Mr Goldsworthy noted that the Council had a device that assists people with hearing impairment, and also that there was comprehensive material available on the website for any person to access. He agreed that the many thousands of complaints from Mr Slattery, as well as the insulting comments in letters, were a drain on Council resources.
Mr Goldsworthy said that he had always treated Mr Slattery with respect, and tried to remain calm and non-reactive. He agreed that, once or twice, he "might have been human".
In his evidence, Mr Slattery said that he had not pointed his hand in the shape of a gun. He said that he had taken note of the apparently different addresses of Mr Goldsworthy and his wife, because he found this interesting. He agreed that he had written to Mr Goldsworthy's wife at home, and had contacted some other Council officers at home, because he was frustrated at not being able to contact anyone at the Council offices. He disagreed as to what occurred at the Council meeting in 2012, saying that he was simply attempting to enter the Council chamber and Mr Goldsworthy blocked his entrance. He agreed that he tore up the letter.
The second witness was Mr Zahid Anver, a former Local Laws Officer with the Council. The full summary of his evidence as submitted prior was as follows:

[101]

In his oral evidence, Mr Wilkins described an incident with Mr Thomas that occurred on 18 October 2000. Mr Slattery came to the counter to see Mr Thomas, became agitated, and - according to Mr Wilkins - took a swing at Mr Thomas. The reason Mr Slattery was agitated, said Mr Wilkins, was because Mr Thomas had called Mr Slattery's psychiatrist for information.
It is unclear whether or not Mr Wilkins actually saw the incident. Mr Slattery's version of the incident was that he had been distressed because Mr Thomas had called his psychiatrist, and had also called the Office of Births Deaths and Marriages to find out if Mr Slattery's wife was really married to him. He saw these enquiries as breaches of privacy. Mr Slattery said that what occurred was that he was holding a piece of A4 paper and he threw it at Mr Thomas.
Mr Wilkins also gave evidence about difficulties he had experienced in the 1990s persuading Mr Slattery to relinquish his pigs.
Mr Wilkins said that he saw Mr Slattery in a shopping centre recently, and Mr Slattery spoke aggressively to him and threatened to sue him. Mr Slattery agreed he had seen Mr Wilkins.
Mr Wilkins said that in 2000 Mr Slattery told him that he had called one of his dogs 'Blackfella', and Mr Wilkins understood this to be a racial insult against himself. Mr Slattery said the name of the dog was not related to Mr Wilkins.
In addition to the evidence given by witnesses for the Council, there was considerable correspondence between Mr Slattery and Council tendered as evidence. This correspondence was tendered (and summarised in a chronology) to demonstrate the nature and tone of Mr Slattery's dealings with the Council. I will not restate all of it, but note that some examples include a letter to the then CEO saying that he was 'unsuitable by design, and unfit by stealth'[23]; a letter to 'ladies of all shapes, sizes, indifferences and personalities... women don't know what they want but they are willing to fight dam hard to get it!'[24]; a letter describing Council officers as 'pricks' and one officer as an 'incestuous malingerer' and a 'self righteous pompous arse', 'weak as piss'[25]; a letter that asks 'whatever happened to beautiful, well mannered secretaries?'[26]; a letter that says that Mr Wilkins' 'greed and corrupt practices make me puke.'[27]. Mr Slattery continued to send letters after the 2009 ban, including one to the CEO saying 'I will do everything I can to expose the cancer that is spreading from yourself, the inoperable tumour'[28]; 'from our research the ugliness of the customer service desk and telephonist is of great concern to ratepayers!'[29]; a letter that refers to the CEO as 'a liar, deceitful and can't be trusted' [30]; an email to a Councillor stating '... it seems you are deeper in the shit than ever before, why aren't you like a real man? I know you find it hard to find any semblance of one at the Council... I know headway is being made in clearing the blockages, with your freind Lydia Wilson being cleaned out from the blockage, however I have heard a few fish jokes lately and apparently the walrus is taking to the haddock like a fish out of water'.[31] This is a sample of the correspondence, and is representative.
There was also evidence given as to personal interactions with Council, where the language used by Mr Slattery was in the same vein. The tendered document which provided the most detail was a comprehensive and transparent file note made by the then CEO Mr Bennie, on 21 February 2006. He agreed to meet with Mr Slattery who immediately told him 'You are not competent to hold your position' and then showed him some asphalt and other materials inside a box he was carrying. This was the subject of a complaint Mr Slattery was making about a road in the municipality. The interaction was heated, and Mr Slattery said 'You're nothing but a fuck-wit' to which Mr Bennie replied 'no, you're the fuck-wit'. Mr Slattery said '... why don't you come outside and say that?' Mr Bennie then noted that he said 'On your way Paul'. Mr Slattery said 'Why don't you just fuck off' and Mr Bennie responded, No, you fuck off'.

[125]

It is not for the Tribunal, given the jurisdictional issues and the consequent amendment to the application, to determine whether or not the 2005 to 2009 protocols were effective or appropriate, or whether the 2009 ban was lawful. The protocols and the ban do, however, provide a background to the conduct in respect of which this claim is made, that which has occurred since 1 August 2011. No evidence has been given to suggest that the reasons the ban has remained in effect since 1 August 2011 are any different from those relied upon earlier. Indeed the opposite is the case. Almost all of the evidence before the Tribunal relates to the period prior to 1 August 2011, apart from ongoing correspondence to the Council from Mr Slattery, and the interaction at the Council candidate information session, where Mr Slattery tore up the letter given to him by Mr Goldsworthy and there was the alleged physical contact between them. The evidence as to reasons for the ban informs my findings about the reasons for the decision to leave the ban in place since 1 August 2011, in particular after Mr Slattery's formal request for this to occur in November 2012. The 2012 letter emphasises the behaviour but does not suggest that a new ban, for new reasons, is what is in place.
It is clear that the ongoing interactions, between 1998 and the present, have been challenging for Council.
I am satisfied that one of the reasons for the decision to leave the ban in place, as best as I can understand those from evidence as to the reasons for the original ban, as well as the letter dated 16 November 2012, is because Mr Slattery was an inveterate, demanding, resource-consuming complainant. The letters setting out and reinforcing the protocols, and the legal advice upon which the Council says it relied, refer consistently to the Council needing to ensure that it did not continue to apply resources to managing the high volume of Mr Slattery's complaints. These documents set out concerns that Mr Slattery's complaints, over many years, had been costly and time consuming for the Council to manage. The 'inordinate numbers of requests for service' were a drain on Council resources, and Council took steps to 'ensure that its resources [were] used efficiently'.
To this extent, I am satisfied that the unfavourable treatment was due to the attribute of disability, as there is clear evidence from Dr Farnbach that Mr Slattery's compulsion to complain relates to his disabilities.
I am also satisfied, however, that Mr Slattery's tendency to complain was not the only reason for the treatment. I accept that Council took the steps it did for other reasons as well, those being the nature and tone of Mr Slattery's communication with Council. I accept that the way in which the complaints were made, the insults given and the aggressive and offensive language used, constituted a reason for the treatment, and that this was clearly expressed in the letter dated 17 November 2012.
The insults and comments were often incoherent and random. They were often nonsensical. They asserted unspecified corruption and incompetence. They demonstrated a lack of respect for the Council officers, certainly, and may well been troubling to read or hear. They were at odds with Mr Slattery's very occasional comprehensive apologies (via Dr Brown and in the hearing).
I note Dr Farnbach's evidence, discussed above, that 'one or more of Mr Slattery's disabilities manifested as a compulsion to make complaints and to otherwise behave in a manner which the Manningham Council considers to be objectionable and unwarranted...' This opinion, offered by the expert who has had the most recent opportunity to assess Mr Slattery's condition, describes Mr Slattery's symptoms of disability as somewhat of a package. The compulsion to make complaints is associated with the compulsion to behave in a manner that is identified as objectionable (rude, offensive, insulting) and unwarranted.
I have noted above the evidence that, at least to a significant extent, Mr Slattery's 'irrational and anti social behaviours' [35] are a manifestation of his disabilities, in particular his bipolar disorder and acquired brain injury, and that, at least to a significant extent, Mr Slattery's 'aggressivity' [36] is a manifestation of his disabilities, in particular his bipolar disorder and acquired brain injury.
Based on this evidence, in particular the reports of Dr Farnbach and (to a lesser extent Dr Brown) what I find as to these aspects of Mr Slattery's behaviour is that it is more probable than not that, at least to a significant extent, Mr Slattery's style of communication with Council, as well as his compulsion to complain, was affected by his disabilities.
It is a complicated picture. Taking all of the above into account, I find that there is not the evidence before me such that I can be satisfied that the attribute of disability is the only reason for the treatment. I am, however, satisfied that the attribute of disability, including the combination of behaviours that constitute symptoms and manifestations of the disability or disabilities, is a substantial reason, a reason of substance, for the treatment.

[140]

When these questions are asked of the situation before this Tribunal in this application, the answer becomes, in my view, sufficiently clear to say that the exception does not apply. The class is, primarily, the Council staff and Councillors who are, I certainly agree, entitled to a safe workplace. The class includes, according to the Council, members of the public. There is no evidence that the health or safety of members of the public is directly affected by Mr Slattery's complaints, or by his letters or visits to Council. Council also argued that Mr Slattery is a member of the class, that it is not good for him to be complaining so frequently, and that allowing him to do so is contrary to his interests. While Dr Farnbach did give evidence that continued complaining was likely to run counter to any effective treatment of Mr Slattery's compulsive tendency to complain, I do not accept that the maintenance of the ban can be said to be protective of Mr Slattery. His evidence is clear - the maintenance of the ban causes him considerable distress. Dr Farnbach, in suggesting cognitive behaviour therapy as a treatment option, did not give evidence that the current prohibitive environment provides the best possible conditions for such treatment.
The evidence as to the risk is slight. The following incidents allegedly occurred, over a period of fifteen years; one unproven incident fourteen years ago where a brick was thrown towards a Council officer; one heated interaction at the customer service counter in 2000; one alleged threatening hand gesture in 2009; one alleged incident of contact in 2012. There were innumerable letters from Mr Slattery containing unpleasant, somewhat incoherent, and no doubt offensive comments. These did not need to be read by all the class; indeed the original protocol proscribed how this correspondence was managed. The maintenance of the current ban has patently not eliminated or reduced such risk as there is; Mr Slattery continues to write to Council.
There was evidence that some individuals were offended, and angered, and frustrated by Mr Slattery's behaviour. This is understandable. Many of the comments were offensive and rude. There was no evidence that any person had suffered harm, or was afraid.
Are there non-discriminatory alternatives that will give the class protection from the risk, that is equal to or better than the ban? If there are, is there any reason why it may be impracticable for the Respondent to adopt these alternatives? These are questions that urgently need to be addressed. The ban cannot remain in place forever. It is disproportionately extensive and unspecified. It is blunt, broad and insufficiently tailored. It bars Mr Slattery from venues in the municipality where, on the evidence, he has caused no one any concern whatsoever. It is indefinite, and incorporates no transparent process of review. It is discriminatory, for the reasons set out above.
The Respondent tendered a document entitled Managing Unreasonable Complainant Conduct Practice Manual, published by the NSW Ombudsman in 2009. This is some years old now, and I understand that research and publication continues in this important area. Such challenges are faced by all public sector organisations. The document sets out comprehensive and detailed strategies for training and supporting staff; offering consistent, calm and structured responses in difficult situations; taking responsibility and apologising for any organisational departures from that consistent, calm approach; de-briefing; structuring contact with the person so that a few comprehensively trained staff members are the main point of contact, but ensuring that they are not isolated or unsupported. The document records the following considerations:[39]

[146]

Whatever was in place between 2001 and 2005 appears to have been effective in moderating the relationship between Mr Slattery and his Council. There was no evidence of concerns during those years. The protocols that were in place after 2005 were targeted specifically to the concerns themselves, for example if Mr Slattery's correspondence contained personally abusive comments it would be dealt with in a certain way. The ban from 2009, and relevantly, for the purpose of this application, from 1 August 2011, has been broad and untargeted.
The evidence is that the responses were not always calm, structured and consistent. While it is understandable that Council officers were, from time to time 'human' as Mr Goldsworthy put it, and as Mr Bennie demonstrated in his file note, the NSW Practice Manual makes it clear that organisations need to provide structured support for staff so that these reactions are contained, and not permitted to exacerbate a situation. Apart from during the period of Dr Brown's involvement, there was no evidence before the Tribunal that staff were trained, supported, offered consistent de- briefing, or instructed as to how to respond.
In the context of the ongoing research into and development of processes to deal with interactions between public sector organisations and complainants, where conflict may arise, there are, more probably than not, non-discriminatory alternatives to the indefinite maintenance of the ban. Furthermore, any person who breaches the Summary Offences Act 1996, for example, or Council meeting procedure rules, may be dealt with in accordance with those laws and rules in a non-discriminatory manner.
Balancing all the factors as set out in Hall v Victorian Amateur Football Association I find, therefore, that the exception in s 86 of the EO Act 2010 does not apply. This is not to say that it would be unreasonable, within the meaning of s 86 of the EO Act 2010, to implement proportionate and tailored strategies that are informed by research and training, that are regularly reviewed and that provide an appropriate and commensurate measure of protection from an identified level of risk.
The s 75 exception sought to be relied upon relates to similar considerations, that is whether or not Council was required make the decisions it did about Mr Slattery, in order to ensure, as far as reasonably practicable, the health and safety of staff and members of the public under the Occupational Health and Safety Act (Vic) 2004 (OHS Act). The Applicant referred me to the Court of Appeal decision of HJ Heinz Company Australia Pty Ltd v Turner[40] which considered the same provision from the EO Act 1995. President Winneke said that:

[165]

Section 45 is a stand-alone provision, meaning that contravention of it constitutes unlawful discrimination separate from any consideration of whether there has been direct or indirect discrimination. It requires service providers to make reasonable adjustments to the way they deliver services, so that service users can access the services despite disabilities.
The Applicant submitted that the Council had an obligation to make reasonable adjustments to the way it delivered its services so that Mr Slattery could access those services despite his disabilities. Reasonable adjustments proposed by the Applicant were that:
- Additional information about Council processes should be provided;
- The Local Law should be modified to allow for interjections by Mr Slattery;
- A case manager should be appointed to assist with management of Mr Slattery's interactions with Council.
The Commission submitted that reasonable adjustments could include providing a hearing loop for hearing impaired people to participate in Council meetings, and developing strategies to enable the Applicant's engagement with Council.
I do not have before me any evidence that these measures will be effective adjustments, or that they will constitute reasonable adjustments for Mr Slattery's disabilities, taking into account all of the factors set out in s 45(3). There was no evidence put to establish that a particular adjustment would accommodate Mr Slattery's disabilities, or as to what the consequences for Mr Slattery would be of such adjustments being made. Dr Farnbach gave no such evidence. Nor was there evidence provided as to the effects on the Council of making such an adjustment. Just as I needed to closely examine the evidence as to Mr Slattery's disabilities and the evidence as to the relationship between those disabilities and the behaviour that led to the decisions by Council, so I need to examine the evidence as to the requirement to make reasonable adjustments. As I see it, I cannot make unsupported assumptions and inferences about Mr Slattery, his disabilities or his needs.
I note that one of the remedies, or reasonable adjustments, sought by Mr Slattery, was a hearing loop. The Council gave evidence that there already exist facilities for ensuring that people with a hearing impairment can hear what occurs at Council meetings and so can participate in the meetings. I accept this evidence. It is unclear whether this meets, or could meet, Mr Slattery's need to communicate effectively with Council. It is unclear, for example, whether or not this, or some other form of assistive technology, is available to Mr Slattery and other people with hearing impairments who wish to attend at the service counter of the Council, or in other Council buildings. Mr Slattery noted in the hearing that he was greatly assisted by, and able to participate fully and calmly in the hearing because of, the small, relatively simple piece of equipment available to him at the Tribunal.[42] Mr Slattery did indeed engage with the hearing process in exactly the same perfectly appropriate way as did every other person present. There was no evidence as to what, if any, assisted hearing equipment is available to Mr Slattery and other people attending at the customer service desk and other Council venues. Neither party raised this issue or provided evidence as to it. I note, however, that should such equipment not be available at the Council, it appears that it would not only be of considerable assistance to provide for it, but the lack of it could well constitute a failure to make reasonable adjustments.
I note that the document tendered by Council, the NSW Ombudsman's Practice Manual, sets out strategies for ensuring that public sector agency staff are supported and trained to offer consistent, structured and calm responses in situations where service users present challenges. These include strategies for ensuring that inflammatory exchanges such as that documented by Mr Bennie, and those Mr Goldsworthy described as occasionally being 'human', are minimised. The range of strategies set out in the Practice Manual, which possibly include, in effect, some of the strategies put in place by the 2000 interventions and the pre-2009 protocols, might allow for Mr Slattery's engagement with Council in a way that is non discriminatory yet moderates the effect on Council staff of Mr Slattery's behaviour and ensures that effective communication is maintained. I cannot see, however, that these could be described as reasonable adjustments. They would more likely be restrictive, rather than enabling, strategies, even though they might have the effect of enabling better communication and so more responsive service delivery. At this point, it would be speculative to infer that they might constitute reasonable adjustments.
If specific adjustments, supported by medical or other expert evidence, were proposed to the Council, the Council would have the opportunity to make a decision as to whether or not to make such adjustments.
I do not find the claim that the Council has failed to make reasonable adjustments proven, on the evidence before me.

At a glance

Court

Decision date

Source

Judgment (251 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (1)

Slattery v Manningham CC (Human Rights) [2013] VCAT 1869 (30 October 2013)