//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] VSC 344
Supreme Court of Victoria
2013-05-17
Original judgment source is linked above.
reasons for decision 1EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, A Lowe - Non-Judicial Member, N Hiffernan - Non-Judicial Member): In this matter, the Applicant, Mr Smith, alleges that he was unlawfully discriminated against on the ground of disability in relation to his employment with the Respondent, the Department of Education and Communities (the Department), under s 49D of the Anti-Discrimination Act 1977 (NSW) (the ADA). 2Mr Smith's complaint involves a number of claims of discrimination. The first claim is that Mr Smith was discriminated against by an officer of the Department, Mr Moore, sending an email on 9 February 2010 to Mr Smith's supervisor referring to Mr Smith's conduct as "daily lunacy". 3The other claims of discrimination all relate to Mr Smith's unsuccessful attempted return to work in the first week of August 2010 and what happened as a result. In particular, it is alleged that the unlawful discrimination was constituted by the Department's: (1)Directing Mr Smith from 9 August 2010 to absent himself from the workplace until he and his nominated treating doctor (NTD) signed a return to work plan (RTW plan) which had been prepared by the Department; (2)Failing or refusing to permit Mr Smith to perform suitable duties (which were available) during the period from August 2010 to 25 July 2011; (3)Failing to take steps promptly to resolve the dispute as to how to manage Mr Smith's congenital back condition in the context of his return to work, between August 2010 and 25 July 2011 by directing Mr Smith for a medical assessment as to what adjustments were required to manage his back condition; and (4)Placing Mr Smith on unpaid leave between 9 August 2010 and 25 July 2011. 4On the bases set out below, the Tribunal finds that the Department did unlawfully discriminate against Mr Smith on the ground of disability by directing him to absent himself from 9 August 2010 from the workplace and by placing him on unpaid leave from that date.
The Complaint 5The matter comes before the Tribunal as a result of a complaint lodged by Mr Smith with the President of the Anti Discrimination Board of New South Wales (the ADB) on 17 January 2011 which raised the claims of discrimination referred to above, in so far as they had arisen to that date. 6After obtaining information from Mr Smith and the Department and considering various proposals and submissions, the ADB decided it would not be appropriate to hold a conciliation conference in the matter. On 26 April 2012 Mr Smith advised the ADB that he wished to pursue his complaint and requested that it be referred to the Tribunal. The President of the ADB accordingly referred the matter to the Tribunal and the President's Summary of Complaint was filed in the Tribunal on 9 May 2012. The period of complaint was noted in the President's Summary as being from 8 February 2010 to 17 January 2011 and the complaint included claims not only of direct discrimination in employment on the ground of disability under s 49D of the ADA but also victimisation under s 50.
Interlocutory Matters 7Points of Claim and Points of Defence were filed by the parties in accordance with the Tribunal's directions. The claims referred to above were set out in the Points of Claim. 8In the Points of Defence, the Department took issue with the inclusion in the Points of Claim of conduct that occurred after the expiration of the period of complaint as specified in the President's Summary. 9On 24 April 2013, on the application of Mr Smith and for the reasons given at that time, the Tribunal amended the complaint so that the period of complaint is now from 8 February 2010 to 25 July 2011. 10In addition to taking issue with whether various of the elements of the alleged contraventions of s 49D were established, the Points of Defence raised matters which could been seen as seeking to rely on a defence under s 54 of the ADA - see for example paragraph 29 of the Points of Defence. 11At the interlocutory hearing on 24 April 2013, Mr Smith indicated that he did not press the claim for victimisation in his complaint and was granted leave to amend his Points of Claim to delete this claim. Accordingly, the Tribunal has not considered the victimisation aspect of the complaint.
The Hearing and Evidence 12The matter was heard on 15, 16 and 17 May 2013. At that hearing, the President's Summary of Complaint was admitted into evidence. In addition, Mr Smith gave evidence in the form of a statement received by the Tribunal on 15 November 2012 and a reply statement dated 28 March 2013, both of which were orally verified subject to some minor corrections and explanations. In addition, Mr Smith tendered a number of documents which were admitted into evidence and are referred to in these reasons for decision where relevant. 13The Department called evidence from Mr David Collins, General Manager of State Training Services, by way of a verified statement received by the Tribunal on 8 March 2013 and from Michael Taylor, Assistant Director, Workplace Health and Safety, by way of verified statements received by the Tribunal on 8 March 2013 and 9 May 2013. This was supplemented by some short additional evidence in chief and the Department relied upon documents that were also admitted into evidence. 14All of the witnesses were cross examined. The Tribunal formed the view that Mr Smith was a careful witness, even to the point of being extremely precise where such precision did not always aid the understanding of the evidence or the points being explored. Nonetheless, the Tribunal has no doubt that Mr Smith was attempting to give his evidence honestly and to the best of his ability. Similarly, the Tribunal accepts that Mr Collins and Mr Taylor were honest witnesses doing their best to put before the Tribunal what occurred as they perceived it. Accordingly, the Tribunal has no reason not to accept generally the evidence of any of the witnesses before it. This is not to say, however, that the Tribunal has not reached its own conclusions as to how various persons might have acted in different circumstances and as to similar matters, taking into account the evidence given. In addition, the Tribunal has generally relied upon the documentary evidence of what occurred where this conflicted with the recollections of witnesses.
Background 15Although the complaint focuses upon conduct in February 2010 and August 2010, it is necessary to review the background of this matter in some detail to understand the significance of the events in 2010. 16In May 2003 Mr Smith was employed by the Department and at all the times that are relevant for the present matter was a Training Advisor, Clerk 5/6, in State Training Services, Western Sydney and Blue Mountains, a division of the Department. 17Mr Smith has a congenital back condition known as Scheuermann's disease which he disclosed to the Department when he commenced employment in May 2003. Mr Smith said that this condition had caused him a lot of back and neck pain and leads to osteoarthritis. 18For a number of years until about late 2006 Mr Smith worked at the Liverpool office of the Department where his back condition was accommodated by his being allowed to undertake reduced field activities, that is by making enquiries by telephone rather than face to face, and by certain adjustments to his office work environment including the use of a particular chair. When the Liverpool office closed in 2006, Mr Smith transferred to the Parramatta office where work adjustments for his back conditions were also implemented. In addition to what had been the case at Liverpool, Mr Smith was also permitted to work within an area that was reasonably close to Westmead Hospital, his treating doctor and his home and that allowed him to walk to appointments when required. 19As a result of this accommodation for Mr Smith's back condition and his management of the condition, it appears that his back condition did not cause Mr Smith to have any time off work while he was working either at Liverpool or Parramatta. 20After an unsatisfactory meeting on 25 September 2008 with his regional manager, Mr Chris Davis, and a telephone call from his superior, Mr Moore, Mr Smith attended his treating doctor, Dr Sivaguru. She diagnosed Mr Smith as having "Adjustment disorder with anxiety" as a result of a work place injury described by the doctor as "Actions taken against pt. [patient] without his knowledge and without any valid reason." In her Workcover NSW Medical Certificate dated 26 September 2008, Dr Sivaguru certified Mr Smith as unfit for pre-injury duties from 26 September 2008 to 20 October 2008 and agreed to be Mr Smith's NTD and to assist in his return to work. 21As Mr Smith understood it, although the Workers Compensation insurer initially declined to accept his claim, the claim was subsequently accepted after he was seen by a psychiatrist, Dr Selwyn Smith, on 10 November 2008. Dr Sivaguru continued to certify Mr Smith as unfit to return to pre-injury duties throughout the period until June 2009. 22In about early April 2009 a rehabilitation provider assigned by the Workers Compensation insurer developed a program that involved Mr Smith returning to work although his NTD had certified that he was unfit to do so. A dispute accordingly arose and the Department on 29 April 2009 filed an Application to Resolve a Workplace Injury Management Dispute with the Workers Compensation Commission of New South Wales (WCC) (matter number 003248/09). 23On 13 May 2009, the WCC directed an Injury Management Consultant, Dr Louise Crowle, to conduct a work place assessment and to provide a report to the WCC. 24Mr Smith was seen again by Dr Selwyn Smith on 25 May 2009. In his report of that date Dr Selwyn Smith noted: "There is no psychological or psychiatric condition that prevents Mr Smith from returning to his pre-injury duties with the respondent" but went on to note that: "His prognosis in regard to re-engaging at work, in my opinion, is poor, given his ongoing anger and hostility towards his employer whom he feels has not been frank, forthright or truthful in their allegations against him." 25On about 2 June 2009, Mr Smith and Dr Sivaguru met with the rehabilitation provider, Ms Kenny, and a proposed return to work plan was agreed with a return to work on a part-time basis 3 days per week, 4 hours per day from 26 June 2009. Dr Crowle in her report to the WCC dated 8 June 2009 recommended that Mr Smith participate in this plan and noted that: "It is expected that the worker will update his work hours and return to his pre-injury work duties within a 6-8 week period." From the portion of Dr Crowle's report set out by the WCC in paragraph 18 of its Statement of Reasons dated 7 July 2009, it appears that Mr Smith's agreement to return to work involved returning to the Parramatta office and not to another office of the Department. Indeed, Dr Crowle recorded the following concerning the location of Mr Smith's return to work in her report: "The rehabilitation provider also indicated that the worker specifically stated that he did not want to move to the Bankstown or Chatswood office. He stated that he resides in the Parramatta region and he is concerned about the impact of additional travel on a non-compensable work condition." 26The WCC forwarded Dr Crowle's report to the Department and to Mr Smith on 18 June 2009. On 19 June 2009 the solicitor for the Department advised the WCC by email that "We are instructed that in view of the return to work plan agreed to between the parties, there is no need to pursue these proceeding further and accordingly, we are amendable to the proceedings being discontinued forthwith." The Tribunal finds that the "work plan agreed to" was a plan for Mr Smith to return to work at the Parramatta office. 27On 26 June 2009, Dr Sivaguru certified that Mr Smith was fit for suitable duties (being 7 hours per day, 3 days per week) from 29 June 2009. 26 June 2009 was also the date of a return to work case conference to be held between Mr Smith, the rehabilitation provider, Dr Sivaguru and the Department. Before that conference, however, the Department informed Mr Smith and the rehabilitation provider that a return to work at Parramatta was out of the question and instead he would have to work at the Department's offices in Oxford Street, Darlinghurst. This was contrary to the position expressed by the Department to the WCC on 19 June 2009 which gave the clear impression that the Department agreed to Mr Smith's returning to work at Parramatta. 28At this point the Tribunal should note that the account of what occurred in June 2009 concerning Mr Smith's proposed return to work given in the Department's Regional Referral Advice dated 17 August 2011(Annexure G-2 to Mr Taylor's statement of 9 May 2013) and Fitness to Continue Medical Assessment Referral dated 17 August 2011 (Annexure G-3 to Mr Taylor's statement of 9 May 2013) is not consistent with the Tribunal's findings set out above. Why the Department's account in those documents differs from what is recorded in the Workers Compensation Commission's statement of reasons dated 7 July 2009 and Mr Smith's evidence was not explored in oral or written evidence before the Tribunal. The Tribunal does not accept that the Department's account in those two documents dated 17 August 2011 is accurate. 29Notwithstanding the apparent change of intention on the part of the Department as to the location of Mr Smith's return to work, neither party requested the WCC at that time to make any recommendation, and it did not do so. No further steps were taken in the application to the WCC. 30Despite what it had indicated to the WCC by the Department on 19 June 2009, Mr Smith was not permitted to return to work at Parramatta as had been agreed. On 7 July 2009, Ms Minslow, Manager, Training Services, of the Department wrote to Mr Smith in the following terms: Your return to work program, as presented at the Nominated Treating Doctor Case Conference with you on 26 June 2009 required that you report to myself at Training Services Level 12, 1 Oxford St Darlinghurst from Monday 29 June for three days per week and then full time from Monday 13 July 2009. Your duties will include undertaking work to rewrite material from the apprenticeships and traineeship website .... I was informed on the afternoon of 26 June that you refused to attend work at 1 Oxford St because of a non-compensable medical condition. I have now been informed that your benefits from GIO ceased on 6 July 2009. I would like to advise you that you are required to apply for leave from the Department if you are unable or unwilling to attend Training Services Level 12, 1 Oxford St Darlinghurst. The application for leave can be via e-laps, a letter or via email. An application for sick leave should be accompanied by a medical certificate. Cam you please contact me on ..., via email or letter regarding your intention to return to work at 1 Oxford St Darlinghurst or to continue on leave? 31The Tribunal finds that Mr Smith's refusal to return to work at 1 Oxford Street was not difficult to understand in the circumstances. At 1 Oxford Street, Mr Smith would be required to work in proximity to Mr Moore and Mr Davis who had both played a part in the psychological injury he had suffered on 25 September 2008. Even Dr Selwyn Smith had recommended that there be "mediation of his work situation" in his first report and in his second report the doctor noted that "There would be no restrictions, in my opinion, in regard to him undertaking such work provided his work-related conflicts can be resolved". Peremptorily requiring Mr Smith to return to work at 1 Oxford Street instead of Parramatta would not appear to have been conducive to resolving work-related conflicts. 32Furthermore, the workplace adjustments that had been put in place to deal with Mr Smith's back condition first at Liverpool then at Parramatta do not appear to have been taken into account at all when requiring Mr Smith to work at 1 Oxford St on 26 June 2009. Mr Smith was entitled to believe that, in returning to work after his psychological injury, he should be returned to his "pre-injury duties" which included those workplace adjustments. Finally, apart from the workplace adjustments, the duties proposed in the letter of 7 July 2009 appear to be significantly different from Mr Smith's pre-injury duties and there was nothing in the evidence to establish that Mr Smith was trained to carry out those different duties. 33On the same day as Ms Minslow wrote to Mr Smith, 7 July 2009, Mr Carmody, Staff Support Officer of the Department, also wrote to Mr Smith in the following terms I refer to your Case Conference on 26th June 2009 with your doctor Dr Sivaguru and Ariana Kenny, AW Workwise. At this meeting you indicated that you did not agree with the proposed suitable duties at 1 Oxford Street, Darlinghurst due to non compensable medical conditions and associated physical needs. To assist the Department in the development of future return to work plans I will need to contract your doctor and obtain information in relation to those medical conditions. Accordingly, it would therefore be appreciated if you would sign the attached consent form and return to me .... 34On 21 July 2009, Ms Minslow wrote another letter to Mr Smith to a similar effect to that written on 7 July 2009. On 7 August 2009, Mr Moore, Director, Apprenticeships and Traineeships, Commissioner for Vocational Training, wrote to Mr Smith directing him on his return to work to report to Ms Minslow at 1 Oxford Street, Darlinghurst and reiterating that his duties would be as previously set out in Ms Minslow's letters. 35Mr Smith did not return to work at 1 Oxford Street in July or August 2009 or subsequently. He did, however, continue to provide medical certificates to the Department and wrote letters requesting a return to work at Parramatta. 36During the second half of 2009, after the unsuccessful attempt to have Mr Smith return to his pre-injury duties at Parramatta in June 2009, Mr Smith continued to attend on his NTD each month and each month obtained a Workcover NSW Medical Certificate identifying his diagnosis as "Adjustment disorder with anxiety" and indicating that he was "fit for suitable duties" namely "seven hrs/day three days/week". Each of these were supplied to the Department. From 9 December 2009, the Workcover NSW Medical Certificate also noted in the Fitness for Work box in relation to the heading "Other" the following: "To return to work at Parramatta office to undertake his position as a TRAINING ADVISOR Needs to be Re Trained where required/ familiarization". 37Mr Smith continued to obtain these monthly certificates into 2010 and to submit them to the Department. 38In addition, almost each month from about October 2009 Mr Smith wrote to the Department indicating in effect that he was ready to take up suitable duties at Parramatta. Mr Smith's letters included those of 6 October 2009, to the Office Manager of the Parramatta Office and to Mr Carmody, 20 December 2009 to Ms Boland of the Parramatta Office, 12 January 2009 to Ms Boland and 8 February 2010 to Ms Boland. Ms Boland was instructed by her superiors in the Department not to respond to Mr Smith's correspondence herself but to refer it to a more senior level. Mr Collins gave evidence that he made the decision that Mr Moore should be the point of contact with Mr Smith because of Mr Moore's responsibilities and in order to simplify the process and ensure a consistent approach to Mr Smith's return to work. 39At this point the Tribunal should note that Mr Smith's letters to Ms Boland of 12 January 2010 and 8 February 2010 are couched in language which is either offensive or verging on the offensive and they contain suggestions or questions as to whether Ms Boland has been placed under duress by officers of the Department. While it might have been a genuine reflection of the frustration and anger Mr Smith was feeling at the time, this language and the tone of the correspondence was inappropriate and unhelpful in achieving any resolution of the apparent impasse. In a way, it makes the Department's conduct, which might otherwise be difficult to understand, somewhat more explicable. 40As to Mr Smith's letter to Mr Carmody dated 6 October 2009, Mr Moore responded to this letter by his letter of 11 October 2009 to Mr Smith. In that letter, Mr Moore reiterated his direction to Mr Smith to report to Ms Minslow at 1 Oxford Street, Darlinghurst and directed him to provide outstanding leave forms. Furthermore, under Clause 6 of the Department of Education and Training Code of Conduct 2004, Mr Moore formally directed Mr Smith to:
9 February 2010 Email 47In reply to Ms Boland's email, Mr Moore wrote an email to Ms Boland at 10:13 am on 9 February 2010 which stated: Not L2 & I keep DC up to date with daily lunacy. We just play a straight bat. Your reply should simply be that you have referred his correspondence to me for my attention & I'll keep replying to him that he should call me to discuss his options PM (emphasis added) 48The use of the words "daily lunacy" in this email of 9 February 2010 constitutes the first item of alleged discriminatory conduct relied upon by Mr Smith in this matter as establishing discrimination on the basis of disability under s 49D of the ADA. 49In relation to this email, Mr Collins noted that he was aware at the time that there was a high level of frustration in the relationship between Mr Moore and Mr Smith. Mr Collins also drew attention to a number of emails passing between Mr Moore and Mr Smith on 13 and 14 March 2008. Although these emails demonstrate an unco-operative and at times offensive attitude on the part of Mr Smith towards Mr Moore, the Tribunal does not believe that they have any direct bearing upon the content of Mr Moore's email of 9 February 2010.
February 2010 to July 2010 50After February 2010, Mr Smith continued to submit monthly Workcover NSW Medical Certificates to the Department. These were essentially the same as before except that a further addition was made to the certificates issued after 11 February 2010 in that the words: "And not to work with the people who were the substantial contributing factor to his phychological Injury" were added to the words "To return to work at Parramatta office to undertake his position as a TRAINING ADVISOR Needs to be Re Trained where required/ familiarization" which had previously appeared under the heading "Other" in the Fitness for Work box on the form. 51From 13 April 2010, the certificates also contained a changed entry next to the heading "Management Plan" in the Medical Certification box on the form. For the certificate dated 13 April 2010 this now stated "For suitable duties" and from 14 May 2010 on, the certificates stated "For suitable duties + Work Place assessment to be done". 52In addition, Mr Smith continued regularly to request a return to his pre-injury duties at Parramatta on the reduced hours recommended by his NTD. For example, correspondence of this nature was apparently received by the Department on about 23 February, 19 April and 20 May 2010. 53It appears that Mr Smith sent a letter to Mr Moore on 15 February 2010 and that the Department sent letters to Mr Smith dated 10 and 11 March 2010 but the Tribunal does not have copies of those letters before it. They are referred to in Mr Smith's letter to Mr Collins, General Manager, State Training Services of 17 March 2010 in which Mr Smith in effect complains of the lack of response to his correspondence and asks why the Department has acted or failed to act as it did. 54At this point in the narrative of events, a significant change occurred. By about 18 March 2010, it appears that those responsible within the Department for managing Mr Smith and his return to work had received advice that the Department did not "have the basis simply to transfer [Mr Smith] from Parramatta". This was disclosed by the email from Jane Thorpe to Ms Minslow and Ms Boland, among others at the Department, dated 18 March 2010 and sent at 12.27 pm. From the oral evidence, it was clear that the substance of the advice received was that the Department had no justification for requiring Mr Smith to return to work after his psychological injury at 1 Oxford Street, and not his pre-injury place of work which was the Parramatta office. He had agreed to return to work at Parramatta back on 2 June 2009 and his return to work there had also been recommended by Dr Crowle. The Department's determination in June 2009 to have Mr Smith return to work at 1 Oxford Street instead of Parramatta was never explained. Nonetheless, this determination appears to have been the only reason why Mr Smith had not been able to return to work on suitable duties at Parramatta since June 2009. 55At about this time in March 2010, the Department from its internal communications also appears to have decided that it needed a new return to work plan for Mr Smith. Why the return to work plan agreed on 2 June 2009 was not appropriate in the Department's view was not explained. At this point, Mr Smith's back condition which had in the past been successfully managed by local workplace adjustments appears to have become a concern for those preparing the new return to work plan within the Department. 56By letter dated 30 March 2010, Mr Collins replied to Mr Smith's letter of 17 March 2010. Mr Collins referred to Mr Carmody's letter of 7 July 2009 and stated that Mr Smith had not yet given his consent for the Department to liaise with Mr Smith's treating doctor to discuss his medical condition, being his back condition rather than his psychological injury, and subsequent fitness to return to work. The letter continued: In order to progress your return to work I intend to initiate a referral for an independent Fitness to Continue medical examination, which will be undertaken by an occupational physician. This will assist the Department obtain the necessary medical information to facilitate a safe and durable return to work for your non-compensable physical injury. Following the medical examination, the occupational physician will provide both you and the Department with a written report of the findings. The Department will take the assessment and recommendations into account to determine what strategies should be put in place for the management of your employment. As part of the referral process you will receive a copy of the referral documentation so that you are aware of what information is being submitted to the occupational physician. ... 57By letter dated 8 April 2010, Mr Smith responded to Mr Collins letter. Perhaps understandably, Mr Smith's response covered a number of grievances which he had against the Department but he did legitimately point out that the return to work program which Dr Crowle had recommended in her report to the WCC in mid-2009 and to which he had agreed had been apparently ignored and not acted upon by the Department and as a consequence he had suffered loss of financial benefits. He also noted that he had continued to seek suitable duties at Parramatta in accordance with the Workcover NSW Medical Certificates from his NTD regularly up to that point. Mr Smith indicated at paragraph numbered 29 that he had consented to Dr Sivaguru discussing his medical condition with the Department. Again, perhaps understandably, Mr Smith also questioned the Department's intentions in relation to the Fitness to Continue examination. 58Mr Collins's response, by letter dated 22 April 2010, treated Mr Smith's letter as consenting to the Department contacting Dr Sivaguru concerning his back condition and proposed a return to work date of 24 May 2010. 59Mr Smith replied by letter dated 4 May 2010 indicating he was happy to return to work at the Parramatta office subject to clarifying a number of issues concerning which position he would be returning to, what the inherent requirements of that position were, whether he would be provided with a signed return to work plan and providing certain information to Dr Sivaguru. 60There appears to have been additional correspondence between Mr Smith and Mr Collins which is not before the Tribunal, for example Mr Smith's letters of 19 April and 3 May 2010. As far as the Tribunal can tell these do not bear one way or another upon the relevant events. 61By Mr Collins's letter of 13 May 2010, the Department confirmed that Mr Smith was to return to work in the Parramatta office in a permanent and on going role and that Dr Sivaguru would be informed of the inherent requirements of the position. 62Apparently, on 16 May and 19 May 2010 Mr Smith wrote letters to the Director General of the Department and to Mr Collins in which Mr Smith raised queries concerning how his return to work had been managed by the Department, although the Tribunal does not have before it a copy of that letter. Mr Collins addressed these queries in his letter in reply dated 1 June 2010. 63On 20 and 21 May 2010, Mr Smith wrote separate letters to Mr Carmody to assist in establishing a return to work plan and suggesting that Mr Angeli would be able to provide information concerning the previous adjustments that had been made at Parramatta to accommodate his back condition. Mr Smith also asked that copies of that information be sent to him and Dr Sivaguru. 64At about this time, Ms Boland obtained the information from Mr Angeli concerning the local adjustments previously put in place to deal with Mr Smith's back condition as well as "a general local return to work plan that with input and consultation from Graham we should be able to support his return to work" prepared by Mr Angeli . 65Mr Carmody replied to Mr Smith's letters of 20 and 21 May 2010, by letter dated 25 May 2010 in which Mr Carmody noted that he had sent Dr Sivaguru a letter dated 17 May 2010 requesting information in relation to any reasonable adjustments that may be appropriate to support his return to work but he had not yet received a response form the doctor. As a result Mr Carmody was not in position to expedite the process. Mr Carmody indicated in effect that when the information was provided by the doctor, a draft return to work plan would be distributed to all parties for review and approval. 66Mr Smith also wrote further letters to the Director General on 17 June 2010, to the Minister for Education and Training on 25 June 2010 and to Mr Collins on 29 June and 1 July 2010 which were not before the Tribunal. Mr Collins responded to all of that correspondence by letter dated 7 July 2010. In that letter, among other things, it was noted that Dr Sivaguru had not replied to the letter dated 17 May 2010 requesting information concerning the reasonable adjustments that might be appropriate to support Mr Smith's return to work. In these circumstances, Mr Collins informed Mr Smith that he had asked Mr Carmody to re-commence the process of making a referral for an independent fitness to continue examination. 67Dr Sivaguru provided the information sought by the Department by a facsimile sent to Mr Carmody on 9 July 2010. As to the current diagnosis and treatment, Dr Sivaguru noted: SCHEUERMANN'S DISEASE, OSTEOARTHRITIS On Analgesics when he is in pain +physiotherapy 68In response to the question whether this condition would impact upon Mr Smith's undertaking the inherent requirements of his position as disclosed, the doctor stated: According to patient, there is reasonable adjustment had been put in place to accommodate for the above medical conditions (at work place.) 69As to medical restrictions applicable in Mr Smith's case, Dr Sivaguru responded: - Driving: Large car with appropriate leg space will be helpful where patient can stretch his legs. - Sitting for prolonged periods at a work station using a computer: Egonomic chair need. - Walking and walking on uneven ground (including stairs, ramps etc): Prolonged walking can cause pain in the lower limbs. Able to walk uneven ground + ramp +one to two flights of steps. - Using and accessing public transport (train, bus etc.): Avoid daily use of public transport but able to use in case of emergencies. - Other, please comment: Patient lives close to work and to access medical facilities/ if required urgent medical assistance eg. physiotherapist, hospital, GP. 70Finally the doctor was asked to comment on: the restriction noted in her Workcover NSW Medical Certificate of 13 April 2010 in which she stated "...And not to work with the people who were the substantial contributing factor to his psychological Injury ..."; the fact that if Mr Smith returned to work at Parramatta the people whom he perceived to be the "substantial contributing factor to his psychological Injury" would not be working out of the same location on a day to day basis but would be required to make contact with Mr Smith through email or another person from time to time and those people may also facilitate or attend meetings where Mr Smith was also in attendance; and, the fact that a new relieving manager had now taken up duty at the Parramatta office where Mr Smith would be working. Dr Sivaguru commented: This is acceptable. Patient will understand that a team work is needed/ necessary for this type of organisation. 71On 15 July 2010, Mr Smith wrote to Mr Collins noting that Dr Sivaguru had now replied to Mr Carmody and that: ... there are now no impediments to my RTW at Parramatta. As you have indicated that you are unable to nominate a RTW date I nominate Monday 2 August 2010 as the RTW date. Unless the Department directs me otherwise, I will report for work at Parramatta STS Centre on the morning of 2 August 2010 and take up duties in accordance with the medical advice of my NTD as contained in the attached Workcover NSW Medical certificate dated 15/7/2010. Presenting for work on the 2 August 2010 will give the Department sufficient time to finalise any procedural details necessary for my impending RTW. 72On 15 July 2010, Mr Carmody sent a letter to Dr Sivaguru seeking clarification of some of her responses. 73By a facsimile sent to Ms Boland on 18 July 2010, Mr Smith informed Ms Boland of his intention of returning to work at Parramatta on 2 August 2010 and requested her to "provide suitable duties at Parramatta in accordance with the medical advice of my Nominated Treating Doctor as indicated on my Workcover NSW Medical certificate date 15/07/2010". He also referred to his previous correspondence containing a similar request dated 6 October 2009, 20 December 2009, 12 January 2010, 29 January 2010, 8 February 2010, 22 February 2010, 19 March 2010, 17 April 2010, 3 May 2010, 18 May 2010 and 17 June 2010 which was said to have been "to no avail". 74Dr Sivaguru provided the clarifications sought by Mr Carmody by facsimile sent on 27 July 2010. In particular, in respect of the comment "Prolonged walking can cause pain in lower limbs": (1)the doctor was asked "specify a timeframe and what distance limitations there might be so that appropriate risk management strategies can be put in place" and she responded "As per tolerance of the patient. Unable to specify timeframe/distance limitation."; (2)she was also asked "could you please provide further medical advice as to how this is related to the diagnosis provided", to which she replied "Unable to comment on this question. Diagnosis: Scheuermann's Disease + Osteoarthritis". 75In the same facsimile, Dr Sivaguru indicated that Mr Smith was able to walk up 5 to 10 stairs for each flight she had previously referred to. In relation to whether Mr Smith had any lifting or driving restrictions, the doctor wrote: Patient is able to lift 5 - 10 kg weight. Patient is able to drive a large car with appropriate leg space for him to stretch his legs. No other restrictions for being a passenger in a motor vehicle. 76In response to Mr Smith's letter to Mr Collins of 15 July proposing a return to work date of 2 August 2010, Mr Collins replied by letter dated 21 July 2010 saying: I support your commencement of duties on the abovementioned date, subject to the Department receiving the return to work plan signed and endorsed by your doctor. Can you please ensure we receive this as soon as possible. 77Whilst Mr Collins's letter of 21 July 2010 might give the impression that a return to work plan had been sent to Mr Smith or his doctor prior to that letter being sent, it appears to the Tribunal that this is not the case. Mr Smith says it was first presented to him on 2 August 2010 by Mr Ross and this is confirmed by the account given by Mr Ross in an email of 5 August 2010 sent at 9.55 am. 78The first record of a return to work plan for 2 August 2010 is found in an attachment to an email sent on 30 July 2010 by Ms Boland to Ms Surace, A/Injury Management Advisor, Human Resources Services, of the Department and copied to Mr Ross, Ms Minslow, Mr Moore, Mr Collins and Mr Carmody of the Department. The subject of the email was stated to be "Graham Smith - signed return to work plan attached" and the attachment was a return to work plan signed by Ms Boland and dated 30 July 2010. 79Ms Surace in a slightly later email on that date in response to a query from Mr Collins commented that: This is the Return to Work Plan that has been drawn up by Paul Carmody for Mr Smith's return to work on Monday morning. Mr Smith is required to sign this RTW plan before he commences his duties on Monday. If Mr Smith refuses to sign this plan he is to be sent home on his own sick leave. 80This RTW plan was headed "Interim Return to Work Plan Number 1" and under this heading it was noted as follows: The Return to Work Plan (RTW Plan) must be complete for all injured or ill employees whose conditions requires modification to their normal duties in order to resume work. It shall be developed in consultation with all relevant parties and must be consistent with the employee's current medical certificate. A new RTW Plan is to be completed with any change to the employee's medical status and must be in line with their most recent medical certificate. Suitable duties provided under a RTW Plan are intended to be of a temporary nature and designed to assist the injured employee return to pre-injury duties and hours. The duties are available for a limited period and must be reviewed at the end date of the plan. 81Under the heading "Employee Details" the RTW Plan, information concerning Mr Smith, his employment, the date of the original psychological injury, his claim number and other information was provided. In addition, the "Injury or Condition" was described as "Adjustment Disorder with anxiety and Scheuermann's Disease & Osteoarthritis". In the box labelled "Overall Return to Work Goal", this was stated to be "To return to pre-injury duties at State Training Services, Parramatta" and the box labelled "Current Medical Restrictions (as per medical certificate)" contained the wording: "As per NTD advice 09.07.10 and 27.07.10: Patient is able to lift 5 - 10 kg. Patient is able to walk up 2 flights of stairs consisting of 5 - 10 stair for each flight". The start date was noted as 2 August 2010 and the end date, 16 August 2010. The location was identified as the Parramatta office. 82Under the heading "Other Considerations", it was noted:
Attempted Return to Work - 2 to 9 August 2010 90On 2 August 2010, Mr Smith reported for duty at the Parramatta office. Mr Michael Ross who was the Acting Regional Manager for Parramatta at that time spoke to Mr Smith and gave him a copy of the RTW Plan signed by Ms Boland. As noted above, a copy had not been provided to Mr Smith prior to this. In accordance with the Workcover NSW Medical Certificates and the RTW Plan, he was to work 3 days per week, Monday, Wednesday and Friday, for two weeks. 91Mr Ross discussed the RTW Plan with Mr Smith who indicated that he did not have any difficulties with the plan but he wanted to discuss it with his NTD before he signed it. He told Mr Ross that he had an appointment with Dr Sivaguru on 4 August 2010. Mr Ross indicated that, if there were no substantive outstanding issues with the plan after he had discussed it with the doctor, Mr Smith would be required to sign the plan. Mr Ross and Mr Smith's immediate supervisor Mr Angelli, took steps to get Mr Smith back on the payroll, arranged IT access and brought him up to date with changes in the work environment. 92Apparently, Mr Ross was not aware at this time of Ms Surace's email of 30 July 2010, referred to above, in which she stated that "Mr Smith is required to sign this RTW plan before he commences his duties on Monday. If Mr Smith refuses to sign this plan he is to be sent home on his own sick leave." From the email record before the Tribunal it does not appear that this email was copied to Mr Ross at the time. 93A work place assessment was also carried out by an occupational therapist, Ms Leanne Gale, on 2 August 2010, in accordance with the RTW Plan and as required by Dr Sivaguru in her medical certificates. Ms Gale prepared a report dated 10 August 2010. She identified the purpose of the assessment as being to assess Mr Smith's workstation, the physical demands of his work duties and the ergonomics of the cars and to determine whether any workplace modifications were required to assist Mr Smith in returning to work. Ms Gale made certain recommendations in relation to equipment that would be suitable for Mr Smith to use and recommended that her report be forwarded to Dr Sivaguru and advice sought from her concerning whether a Hyundai I30 vehicle would be suitable. It was also recommended that Dr Sivaguru discuss with Mr Smith the type of chair that he used at work. 94As envisaged in the RTW Plan, Mr Smith next attended for work on 4 August 2010 and after work he had an appointment with Dr Sivaguru at which the plan was apparently discussed. After this Mr Smith spoke to Mr Ross and told him that he had seen his doctor and she wanted to speak to Ms Surace to clarify a number of issues before signing off on the plan. He also indicated that he would not sign the plan until Dr Sivaguru did. 95On 5 August 2010, Dr Sivaguru spoke to Ms Surace and the conversation appears to have been unsatisfactory. Dr Sivaguru appears to have objected to the RTW Plan on formal rather than substantive grounds and Ms Surace, perhaps not surprisingly, had difficulty understanding why the doctor would do this. Ms Surace recorded what occurred in an email sent on 5 August 2010 at 4:20 pm as follows: I have just finished speaking with Mr Smith's doctor, Dr Sivaguru. Dr Sivaguru advised that she is unhappy with the "injury or condition description" on the return to work plan. Dr Sivaguru advised that Scheuermann's Disease and Osteoarthritis should not be on the plan and that her only concern is the psychological diagnosis of Adjustment Disorder with anxiety related to Mr Smith's workers compensation claim from 2008. I explained to Dr Sivaguru that the workers compensation claim has been declined and finalised and that in the questionnaire sent to her on 09.07.10 she stated that she found the current work situation to be "acceptable" for Mr Smith given his current psychological restrictions. Dr Sivaguru told me that I did not understand and that she did not need to waste time talking to me. She unfortunately hung up on me before I could seek clarification on what she wanted. I believe what she is seeking is a RTW plan based solely on the psychological injury. I would like to seek advice from either Paul or Carolyn in regard to the next step. Should there be two return to work plans in place, 1 each of the psych injury and the physical condition. It does not seem that Mr Smith will sign the current RTW plan without his doctors consent and I don't think Dr Sivaguru will consent given that she only seems to be interested in the psych injury. 96Mr Smith again went to work at the Parramatta office on Friday 6 August 2010. Towards the end of the day, Mr Ross had a conversation with Mr Smith in which Mr Ross told him that he was required to sign the RTW Plan or take sick leave from Monday morning. Mr Smith replied that he could not take sick leave as he was not sick and was fit for suitable duties. He also said that his doctor would not provide him with a certificate. Mr Smith said that the Department should direct him to absent himself from work. Mr Ross indicated that he did not have authority to do this and said that if he did have a medical condition it was unsafe for Mr Smith and the rest of the staff if he remained at the workplace whilst his medical situation remained unaddressed. Mr Ross also said that until there was agreement as to what medical condition needed to be addressed in the plan he needed to take sick leave. Mr Ross reported this conversation to Mr Collins by email who passed it on to Mr Michael Taylor, Assistant Director, Occupational Health and Safety of the Department. 97Mr Taylor replied by email sent on 6 August 2010 at 4:25 pm to Mr Collins as follows: As discussed there would be no reason for the department to direct him to absent himself when we are in fact trying to affect Mr Smith's return to work. I would suggest that Michael writes to Graeme asking for his reasons why he will not sign a return to work plan which is in line with the medical information received. Whilst Mr Smith continues to refuse to sign the return to work plan the department cannot ensure a safe return to work for him as it does not have his commitment that he will follow the restrictions outlined by his gp. I would also write to Mr Smith and advise him that should he not sign the rtw plan he is required to enter leave via elapse [the Department's computer system]. Should he fail to do this we need to instruct payroll accordingly and they will most likely put him on sick -no pay. 98The Tribunal accepts the common sense of Mr Taylor's comment that there would be no reason for the Department to have directed Mr Smith to absent himself from work when it was trying to effect his return to work. 99It does not appear, however, that Mr Taylor was informed that Dr Sivaguru refused to signed the RTW Plan because it covered not only the psychological injury but also the back condition or that Mr Smith's pre-injury duties already included local adjustments previously put in place to address that back condition. Thus, Mr Taylor appears not to have been aware that the problem could have been resolved by separating the two issues perhaps by two return to work plans or by a plan in respect of his psychological injury and a letter of commitment from Mr Smith in relation to his back condition. As a consequence of this lack of information, Mr Taylor gave advice that unless Mr Smith signed the RTW Plan he would be required to take leave, most likely "sick leave - no pay". This was based upon the premise that "whilst Mr Smith continues to refuse to sign the return to work plan the department cannot ensure a safe return to work for him as it does not have his commitment that he will follow the restrictions outlined by his gp." In the circumstances, the Tribunal does not accept that that premise was well founded. Mr Smith's commitment could have been obtained in other ways. Furthermore, the Department's perceived inability to ensure a safe return to work appears to be based only on the restrictions deemed to be necessary as a result of Mr Smith's back condition. 100Mr Collins immediately forwarded Mr Taylor's advice to Mr Ross, Ms Minslow and Ms Surace. It is unclear why Ms Surace or someone else did not take the time to explain the basis of Dr Sivaguru's reluctance to sign the return to work plan to Mr Taylor. 101The documentary record before the Tribunal shows next that Ms Surace wrote to Dr Sivaguru a letter dated 6 August 2010 headed "Offer of Suitable duties for Graham Smith". In that letter, somewhat strangely, Ms Surace did not expressly refer to her telephone conversation with Dr Sivaguru on 5 August 2010 concerning Mr Smith's return to work. Ms Surace did not seek to address the issue that was apparently troubling the doctor, namely, that Mr Smith's return to work to his pre-injury duties was from a psychological injury which was largely if not totally resolved and his pre-injury duties had already been adjusted to take account of this back condition. Ms Surace appeared to ignore the fact that, in these circumstances, a return to work plan that dealt principally with the back condition could strictly be said to be unnecessary. 102Nonetheless Ms Surace did note that : "The Department has already met all restrictions in regard to the latest medical certificate stating the diagnosis as 'Adjustment Disorder with anxiety" which she had earlier set out in the letter as follows: "to return to Parramatta office to undertake his position as Training Advisor, not work with the people who were substantial contributing factor to his psychological injury except for general meetings, needs to be retrained where required/familiarisation". On this basis, the Tribunal concludes that the psychological injury aspect of the case was not at this point an issue for the Department or Mr Smith in his return to work. 103Ms Surace then addressed what appears to have been the real problem from the Department's point of view, namely the facts that Mr Smith had disclosed during the discussions in June 2009 his pre-existing back condition and that adjustments to his working environment had been recommended by Dr Sivaguru in response to the Department's enquiries. Ms Surace stated in the letter "These conditions [Scheuermann's Disease and Osteoarthritis], as specified by you, require adjustment in the workplace for Mr Smith and The Department has met this obligation by providing suitable duties and arranging a Workplace Assessment." Ms Surace did not acknowledge that the adjustments to Mr Smith's workplace to accommodate his back condition pre-dated the psychological injury. Ms Surace then indicated that a return to work plan had been prepared by the Department taking into account Mr Smith's physical restrictions on account of his back. Dr Sivaguru was asked to consider that plan and review it with Mr Smith. Ms Surace went on to say that she would welcome the opportunity to discuss any medical restriction with the doctor. 104The Tribunal finds it difficult to understand why this letter does not seek to engage with or address Dr Sivaguru's concern that a return to work plan was not necessary or appropriate for Mr Smith's back condition as he was returning to work from his psychological injury to his pre-injury duties which already included adjustments for his back condition. 105Mr Smith presented for work on the next Monday, 9 August 2010, and spoke to Mr Angelli but was directed to sit in the foyer and did so for all of the day. Mr Ross's email to Mr Collins, Ms Minslow, Mr Taylor and Ms Surace sent on 9 August 2010 at 1:13 pm records what occurred in the following terms: Graham Smith had a doctor's appointment today and then returned to the office. I asked him to sign the plan and he again refused. I've asked him for a written explanation of his reasons for refusal which, at varying time, he both agreed to provide then offered a verbal explanation. At this stage I've advised him that when we get his written response we can then address the issues that concern him. In the meantime since he is not willingly to comply with the provisions of his rtw plan the workplace is not a safe place for him or his colleagues; particularly considering there is evidence of some mental disorder. He is persistently asking for a direction from me to make him leave. I've told him repeatedly that I don't have that authority and I'd like common sense to prevail. At this stage he is refusing to leave the office. 106Mr Ross then sent an email to Mr Smith at 2:28 pm on 9 August 2010 which assured Mr Smith that Mr Ross was committed to Mr Smith returning to work at Parramatta and offered assistance. He encouraged Mr Smith to consult his NTD and provide a written outline of his objections to the plan. Mr Ross also said: "I'm confident that with a degree of goodwill whatever objections you or your doctor may have to the plan can be resolved with Nicky Surace ... expeditiously. It's my hope that you might return to work fulltime from next week as originally envisaged." 107The email, however, concluded: "In the meantime you should not return to the work place until you are in a position to sign an agreed return to work plan. I've taken this decision as I'm unable to provide you with a safe work place." Although the email referred to an "agreed return to work plan", the only option which appears to have been given to Mr Smith up to this point was to agree to the Department's proposed work plan. 108As the Tribunal understands it, Mr Ross (relying on Mr Taylor's advice) formed the view that the work place would not be safe for Mr Smith unless the Department had Mr Smith's written commitment by way of a signed return to work plan, in the form determined by the Department, to abide by the restrictions required as a result of his back condition. This was because it was necessary for Mr Smith to abide by those restrictions if the risk of future exacerbation of his back condition was to be avoided. Mr Ross did not, in his email, mention the possibility of separating the issue of returning to work from the psychological injury from the issue of the appropriate adjustments to be implemented for Mr Smith's back condition. This is somewhat surprising given that Mr Ross should have been aware that failing to separate these issues was the cause of the problem. This had been disclosed in Ms Surace's email to Mr Ross, and others, of 5 August 2010 sent at 4:20 pm referred to above in which she recounted her conversation with Dr Sivaguru on 5 August 2010. 109On 9 August 2010, Dr Sivaguru replied to Ms Surace and stated that the medical diagnosis for Mr Smith's return to work plan was "Adjustment Disorder with Anxiety". The clear implication was that this was the only condition that ought to be the subject of any limitations or conditions on Mr Smith's return to work at this time. It was consistent with what Dr Sivaguru had earlier said to Ms Surace. 110It does not appear that the RTW Plan was the subject of co-operative negotiations at about this time. Nor was there discussion initiated by either side as to whether the work place adjustments for Mr Smith's back condition could be addressed by any means other than by signing the RTW Plan prepared by the Department. As the Tribunal understands it Mr Smith did not have objection to those adjustments or any difficulty agreeing to those adjustments provided they were not linked to his psychological injury in a return to work plan that dealt with both issues. Nonetheless, this was not put forward as a solution to the problem. 111The Tribunal is of the view that the Department could have overcome these issues immediately on about 9 August 2010 if it had separated the return to work after the psychological injury from the workplace adjustments consequent upon the back condition. On the other hand, the Tribunal also finds that Mr Smith could have sought to resolve the impasse on about 9 August 2010 by agreeing in writing to accept and abide by the workplace adjustments for his back condition and by signing a return to work plan limited to his psychological injury. 112Unfortunately, the impasse was not resolved on or soon after 9 August 2010. Mr Smith did not sign the Department's return to work plan and after 9 August 2010 was put on unpaid leave. The Department refused to allow him access to his workplace.
August 2010 to 25 July 2011 113In the months following 9 August 2010, the Department continued to take steps in relation to Mr Smith's return to work but was focused upon having him sign a RTW Plan dealing with both his psychological injury and his back condition. This Mr Smith refused to do. He did not, however, suggest any alternative. Nor did the Department apparently consider any. There was continued correspondence and the provision by Mr Smith of Workcover NSW Medical Certificates certifying that he was fit to return to duties, initially on a reduced hours basis. 114Ms Surace again met with Mr Smith and Dr Sivaguru on 16 September 2010 but no resolution was achieved. Dr Sivaguru's notes of the conference recorded: She [Ms Surace] wanted to discuss RTW Plan due to medical condition Explained to Her That RTW is Due to Adjustment disorder with Anxiety Work Cover Medical Certificate is for The Above + is not for his medical conditions 5 years ago things were put in place for his medical conditions Pt know not to undertake any duties that will aggravate his medical conditions he is aware not to perform anything outside his capabilities Did Not discuss any further as she kept reiterating the same thing 115The Tribunal is forced to conclude that neither side attempted to negotiate or find a solution that met the other side's concerns or objectives. 116Ms Surace apparently prepared another RTW plan for Mr Smith on about 17 December 2010 which was sent to Dr Sivaguru for her consideration. This plan contained a proposed return to work date of 10 January 2011. The plan, however, once again covered both the psychological injury and the back condition. In this regard, it was not substantially different from the plan prepared July/August 2010 which the doctor and Mr Smith had refused to sign. It does not appear that Ms Surace made any attempt to address Dr Sivaguru's problem with, and concerns about, the original proposed RTW plan in the revised plan. 117As no response was apparently received from Dr Sivaguru, Ms Surace wrote again on 22 February 2011 asking for a response in response to a further proposed RTW Plan which was substantially the same as the others except that the proposed return to work date was 23 February 2011. Further correspondence passed between Mr Smith and the Department in March and April 2011 but no resolution was achieved. 118As has already been noted in these reasons for decision, the principal basis for Mr Smith's, and Dr Sivaguru's, continued refusal to sign the various proposed RTW plans was that the plans were not "consistent with the employee's current medical certificate" or "in line with their most recent medical certificate" as required on the face of each of the RTW plans. This followed from the fact that Dr Sivaguru in each certificate had stated that the diagnosis was "Adjustment Disorder with anxiety" whereas the "Injury or Condition Description" on the RTW plans included an additional reference to "Scheuermann's Disease & Osteoarthritis". Furthermore, the "Current Medical Restrictions (as per medical certificate)" on the RTW plans specified lifting and stair restrictions which were not referred to in any relevant Workcover NSW Medical Certificate issued by the NTD in relation to Mr Smith. As the RTW plans made clear those restrictions were derived not from any medical certificate but from one or more of the facsimiles received by the Department from Dr Sivaguru dated 9 July and 27 July 2010 in relation to Mr Smith's back condition. For the reasons given above, this view is not necessarily the only view that is open. The fact that the "Management Plan" in the certificates after 14 May 2010 stated "Work place assessment to be done" means that the medical certificates could be seen as supporting the inclusion of restrictions relating to Mr Smith's back condition in his RTW plan. 119Nonetheless, the problem in this matter is that neither the Department nor Mr Smith during the latter half of 2010 and early 2011 took any effective steps to address the impasse which arose out of Mr Smith's and his NTD's refusal to sign the RTW Plans proposed by the Department. 120In March or April 2011, Mr Smith spent some time in Condobolin District Hospital after what he described as a panic attack. Between April and July 2011 Dr Sivaguru diagnosed that Mr Smith was suffering from "Adjustment Disorder with anxiety and Depression" and the doctor certified that it was her opinion that Mr Smith's employment was a substantial contributing factor to the injury. He was certified unfit for work on this account from about April 2011 till late July 2011. 121In response to the information that Mr Smith was unfit for work because of his psychological condition, Ms Surace wrote to him on 15 April 2011 indicating that when she had received certain information from Dr Sivaguru concerning his "current fitness to work relating to your psychological condition", the Department would resubmit "a return to work plan to Dr Sivaguru in relation to both your physical and psychological conditions for her consideration and signature". Dr Sivaguru eventually provided the information sought by the Department on 16 May 2011 although it was scrupulously limited to Mr Smith's psychological condition or referred to the Workcover NSW Medical Certificate issued on 21 April 2011 which dealt only with Mr Smith's psychological condition at that time and made no reference to anything to do with Mr Smith's back condition. 122By 6 May 2011 Mr Smith had engaged a solicitor, Ms Sui, to act on his behalf in securing his return to work. Ms Sui wrote to GIO General Insurance - Treasury a letter dated 6 May 2011 seeking return to work on suitable duties for Mr Smith and indicating that if nothing was heard in response, Mr Smith would have no alternative but to file an Application in the Workers Compensation Commission. Ms Linda Watts, OH&S Liaison Manager, Western Sydney Region, of the Department, responded by letter on 24 May 2011 giving some history of the matter and a detailed list of the correspondence. She also noted that the latest Workcover NSW Medical Certificate indicated that Mr Smith was unfit for work from 25 April to 25 May 2011. She also sought Ms Sui's assistance in obtaining a signed return to work plan for Mr Smith. Mr Smith continued to be certified unfit for work until July 2011. 123At his monthly review with Dr Sivaguru on 22 July 2011, she assessed that he was fit to return to work for suitable duties being 7 hours per day 3 days per week and provided a medical certificate to that effect.
Mr Smith's Return to Work - 25 July 2011 124Armed with a Workcover NSW Medical Certificate stating that he was fit for suitable duties, Mr Smith presented himself for work at the Parramatta office on Monday 25 July 2011. 125Mr Smith spoke to Mr Brod Binns, the Western Sydney and Blue Mountains Regional Manager of the Department, who said that he needed to speak to Ms Surace. After a telephone conversation, Mr Binns told Mr Smith to leave the office and they had a conversation as follows: Mr Smith:Could you put that in writing please. Mr Binns:Why? Mr Smith:I need to know who I am going to sue. If the Department is going to stop me from coming back to work when I am medically fit to do so, I need to know who to sue. Mr Binns:I need to call Nicki Surace again. 126During the telephone conversation which Mr Binns had then with Ms Surace, she advised Mr Binns that Mr Smith was able to remain at the workplace and that a suitable return to work plan would be developed. Mr Smith's evidence, which we accept, was that he heard Mr Binns say during that telephone conversation: "OK, so you're saying it's not necessary to send Graham home and we will develop a return to work based on the medical certificate he has supplied." Mr Binns then told Mr Smith to go to his desk and he would organise with Mr Angelli to commence the training to get him back into the workplace. 127Mr Smith was supplied with a proposed RTW Plan dated 27 July 2011 under cover of a letter dated the same date from Ms Minslow. That letter contained the following: It is important that you understand that there is a risk involved with any return to work which is based upon limited medical information, such as in your case. We would therefore request that you sign the return to work plan dated 27 July 2011. If you do not sign the return to work plan your attendance at the workplace will be deemed as your assent to the return to work plan and you acknowledge that risk and commit to following the agreed actions within the document. 128Mr Smith did not sign the plan. He stayed on restricted hours until September 2011 when he resumed work on full hours after being certified as fit for full time pre-injury duties by Dr Sivaguru. 129During the period from 9 August 2010 to 25 July 2011 Mr Smith was on a form of unpaid leave. 130Mr Collins gave evidence which we accept that it was he who authorised Mr Smith's return to work despite a RTW Plan not having been signed. This, he said, was against the Department's proper practice but it was done in consultation with the Department's Work Health and Safety officers.
Events after 25 July 2011 131Further evidence was presented to the Tribunal concerning Mr Smith's work and other conduct of the Department after 25 July 2011. Given the period of the complaint in this matter which only extends until 25 July 2011 and the specific conduct identified as constituting the alleged discrimination, it is not generally necessary for the Tribunal to consider or make findings as to what occurred after 25 July 2011.
Mr Smith's Claims of Discrimination 132As outlined above, in this complaint Mr Smith makes a number of claims of unlawful direct discrimination on the ground of disability. They can be summarised as follows: (1)The 9 February 2010 Email - By Mr Moore sending the 9 February 2010 email to Ms Boland referring to Mr Smith's conduct as "daily lunacy" the Department discriminated against Mr Smith in contravention of section 49D(2)(a), (b) and (d) of the ADA; (2)Not Permitting Mr Smith to Return to Work in August 2010 - By: (a)Directing Mr Smith from 9 August 2010 to absent himself from the workplace until he and his doctor signed the RTW Plan; (b)Failing or refusing to permit Mr Smith to perform suitable duties during the period from August 2010 to 25 July 2011; (c)Failing to take steps promptly to resolve the dispute as to how to manage Mr Smith's congenital back condition in the context of his return to work, by directing him to attend a medical assessment between August 2010 and 25 July 2011; and (d)Placing Mr Smith on unpaid leave between 9 August 2010 and 25 July 2011, the Department discriminated against Mr Smith in contravention of section 49D(2)(a), (b) and (d) of the ADA.
Relevant Legislation 133The relevant section of the ADA rendering discrimination on the ground of disability in relation to employment unlawful is s 49D which provides: (1)It is unlawful for an employer to discriminate against a person on the ground of disability: (a)in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b)in determining who should be offered employment, or (c)in the terms on which the employer offers employment. (2)It is unlawful for an employer to discriminate against an employee on the ground of disability: (a)in the terms or conditions of employment which the employer affords the employee, or (b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c)by dismissing the employee, or (d)by subjecting the employee to any other detriment. (3)Subsections (1) and (2) do not apply to employment: (a)for the purposes of a private household, or (b)where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or (c)by a private educational authority. (4)Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a)would be unable to carry out the inherent requirements of the particular employment, or (b)would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5)For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth. 134"Employment" is not defined in the ADA except to the extent that s 4(1) provides that "employment" includes "work under a contract for services". 135"Disability" is defined in s 4(1) of the ADA to mean: (a)total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b)the presence in a person's body of organisms causing or capable of causing disease or illness, or (c)the malfunction, malformation or disfigurement of a part of a person's body, or (d)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 136The concept of disability is expanded in s 49A of the ADA as follows: A reference in this Part to a person's disability is a reference to a disability: (a)that a person has, or (b)that a person is thought to have (whether or not the person in fact has the disability), or (c)that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d)that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 137What constitutes discrimination on the ground of disability for the purposes of s 49D is set out in s 49B of the ADA. The relevant provisions of that section include: (1)A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a)treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b)requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2)For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 138Accordingly, in respect of each claim of direct disability discrimination made by Mr Smith, the following issues arise for determination under s 49D: 1) Did Mr Smith have a disability within the meaning of that term in the ADA? 2) Was the Department an employer and Mr Smith an employee within the meaning of the ADA? 3) Did the Department discriminate against Mr Smith on the ground of disability within the meaning of s 49B(1)(a)? 4) Did the Department so discriminate against Mr Smith in the terms or conditions of employment which the employer afforded him (s 49D(2)(a)), by denying Mr Smith any other benefits associated with employment (s 49D(2)(b)) or by subjecting Mr Smith to any other detriment (s 49D(2)(d))? 139Each of these issues will be dealt with in turn.
Disability 140In the present case, there was no dispute that Mr Smith's back condition and his psychological injury and its sequelae were both disabilities for the purposes of the ADA.
Employment 141Similarly, there was no dispute that the Department was an "employer" and Mr Smith was an "employee" within the meaning of those terms in the ADA.
Discrimination on the Ground of Disability 142In order to establish direct discrimination falling with s 49B(1)(a) of the ADA in the present case, it must be established that: 1) the Department treated Mr Smith less favourably than in the same circumstances, or in circumstances which are not materially different, the Department treated or would have treated a person who did not have Mr Smith's disability - the differential treatment issue; and 2) that differential treatment was on the ground of his disability - the causation issue. 143Where there exists an actual person whose treatment can be compared with that of the complainant, these questions can be and should be dealt with sequentially - Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. Where as in the present case, however, there is no actual comparator, there is a problem because it is difficult, if not impossible, to determine how another, hypothetical employee would have been treated without first determining why the complainant was treated as he or she was. Thus, where the comparator is hypothetical, the two questions as to 'less favourable treatment' and 'on the ground of disability' can be addressed as part of the same reasoning exercise - see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65] and Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 at [78].
Differential Treatment 144In respect of each claim of discrimination made in the present complaint, in order to determine the differential treatment issue, it is necessary that a comparison be made between the way in which Mr Smith was treated and the way in which someone who did not have "that disability" would have been treated in not materially different circumstances. Consequently, there are three elements to are required to be considered. First, what was the relevant disability from which Mr Smith suffered in each situation. Secondly, Mr Smith's circumstances must be identified and then it must be determined which of those circumstances have to be taken into account in determining how another employee without Mr Smith's disability would have been treated. And, thirdly, it is necessary to address what treatment Mr Smith received and what treatment the comparator would have received. 145In the present case, "that disability" refers to either Mr Smith's psychological injury or his back condition, depending on which claim of discrimination is being considered. 146As to the circumstances that must be taken into account, the High Court's decision in Purvis v State of New South Wales (2003) 217 CLR 92 gives some assistance as the language of the Federal statute applicable in that case was not different in presently material respects from the language of the ADA. In that case, Gummow, Hayne and Heydon JJ held at [224]: The circumstances referred to in s 5(1) [relevantly equivalent to s 49B(1)(a) of the ADA] are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different. 147Further at [229], those Justices also held that the section equivalent to s 49B(1)(a) "requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person". 148As the High Court's decision in Purvis made clear at [230], the circumstances that must be taken into account in determining how a person without Mr Smith's disability would have been treated do not exclude all of the circumstances that arise out of, or are the effect or consequence of, Mr Smith's having a disability. At [230] the High Court held that the construction adopted by the Court: "embraces the importance of indentifying (as part of the relevant circumstances) all the effects and consequences of the disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?" 149Applying these principles to the present case, the objective features that surrounded Mr Smith's treatment by the Department can be summarised as including that the Department's treatment concerned: 1) A permanent employee of the Department with Mr Smith's position and work history and who had had and continued to have difficult interpersonal relations with his or her superiors on the same bases as Mr Smith; 2) A person who had a work related injury which had the same consequences as to acceptance and rejection of a workers compensation claim, time off work and fitness to return to work and the same management regime as Mr Smith's psychological injury; 3) A person who had a pre-existing medical condition which had required local adjustments to be made to the workplace prior to the work related injury, which adjustments had been such as to obviate the need for the person to take any time off work because of that pre-existing condition; 4) The pre-existing medical condition, with the benefit of the local adjustments, had not prevented the person from performing the inherent requirements of his or her position. 5) Where it is necessary to elaborate upon this summary, this will be done when each of the claims for discrimination is considered in turn. 150Under this approach, where the claim of discrimination relates to Mr Smith's psychological disability, the comparison is to be made with how a person with a work related injury, but not Mr Smtih's particular psychological injury, would have been treated. In relation to the claims for discrimination based upon Mr Smith's back condition, the comparator should be taken to be a person with the same work related injury as Mr Smith but a different pre-existing condition from his. Approaching the matter in this way is consistent not only with Purvis but also with the decision of the Victorian Supreme Court concerning equivalent Victorian legislation in Collier v Austin Health [2011] VSC 344, see for example at [63] and [104]. 151As to the question of whether Mr Smith was treated "less favourably", this merely requires a comparison of Mr Smith's treatment with how the comparator would have been treated in the circumstances and a determination of whether Mr Smith's treatment was less beneficial or advantageous than that which the comparator would have received - Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 at 19 and Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619 at [36]. 152As Kirby P held in Haines v Leves (1987) 8 NSWLR 442 at 471: The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; ; [1979] 1 All ER 474 (Eng CA) .
On the Ground of Disability 153The question of whether differential or less favourable treatment was "on the ground of" disability requires the characterisation of the conduct in terms of its causation - Haines v Leves (1987) 8 NSWLR 442 at 471. 154In this context it can be noted that s 4A of the ADA provides: If: (a)an act is done for 2 or more reasons, and (b)one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 155Notwithstanding the terms of s 4A, the comments of Kirby P in Haines v Leves (1987) 8 NSWLR 442 at 471 sound a useful reminder of the difficulty involved in this area of the law: Most activities of life have multiple causes. The assignment of the ìgroundî of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the ìgroundsî is a difficult one which calls for judgment and discernment. Thus in Boehringer, a married female complained that she had been discriminated against on the ground of marital status. The employer contended that the decision not to employ her was based on the ground of the possibility that she might disclose (whether by inadvertance or otherwise) confidential information to her husband who was employed by a competitor. The tribunal upheld the complaint. This Court (Moffitt P, Mahoney and Priestley JJA) unanimously allowed the appeal and dismissed the complaint.
Conduct Falling Within Section 49D 156Mr Smith's complaint is that the Department by treating him less favourably on the ground of disability engaged in conduct which is rendered unlawful by s 49D of the ADA. He alleges that the Department treated him less favourably: 1) in the terms or conditions of employment which the Department afforded him, in particular his working environment including the respect of his superiors (s 49D(2)(a)); 2) by denying him benefits associated with employment, in particular refusing to allow Mr Smith to attend work and earn his salary and receive the other benefits derived from employment (s 49D(2)(b)); and 3) by subjecting him to a detriment, in particular requiring Mr Smith to take unpaid leave and depriving him of the opportunity to work and earn his salary and other benefits derived from employment (s 49D(2)(d)). 157An idea of the width of the concepts of "detriment" and "condition of employment" referred to in s 49D can be gained from the Tribunal's decision in Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221. In that case it was held that mocking an employee's name, suggesting he should change his Lebanese/Muslim name to an Anglo-Saxon name and using nicknames such as "bombchucker" and "Osama Bin Laden" led to the workplace being hostile to him and that this hostile atmosphere amounted to a detriment to him in the workplace - at [90]. The same conduct was also held to amount to "a discriminatory condition of employment" at [96]. These aspects of the case were not disturbed on appeal - Toll Pty Ltd t/as Toll Express v Abdulrahman [2007] NSWADTAP 70. 158Whether the Department discriminated against Mr Smith on the ground of disability and thereby contravened one or more of the previsions of s 49D referred to in the preceding paragraph will be considered separately for the 9 February 2010 Email Claim and each of the Not Permitting Mr Smith to Return to Work in August 2010 claims.
9 February 2010 Email 159The first claim of unlawful discrimination made by Mr Smith concerns the 9 February 2010 email. As has been noted above, Mr Moore sent an email to Ms Boland on 9 February 2010 which stated: Not L2 & I keep DC up to date with daily lunacy. We just play a straight bat. Your reply should simply be that you have referred his correspondence to me for my attention & I'll keep replying to him that he should call me to discuss his options PM (emphasis added) 160Mr Smith's claim was that Mr Moore's sending this email amounted to discrimination on the basis of his psychological disability. It was submitted that the words "daily lunacy" referred to his psychological disability diagnosed by Dr Sivaguru as Adjustment Disorder with anxiety. It was also said that, by writing this email, Mr Moore promoted a "discriminatory view" to Mr Smith's superior that he was unstable and promoted a negative perception of Mr Smith. 161As has been noted above, there was no dispute that Mr Smith's psychological condition was a disability within the meaning of the ADA. Nor was there any dispute that Mr Moore's conduct and that of other officers of the Department was to be taken as conduct of the Department. This approach is supported by the terms of s 53 of the ADA in the circumstances of this case. 162As to the questions of whether there was differential treatment and whether it was on the ground of disability, it is necessary to have regard to the circumstances in which Mr Moore's conduct occurred. The relationship between Mr Moore and Mr Smith was accepted by both sides as being strained and subject to a high level of frustration. In addition, Mr Smith had been submitting requests for return to work at Parramatta and Workcover NSW Medical Certificates on a regular, monthly basis to Ms Boland. This appeared futile to the Department as it had already made clear the basis (albeit later acknowledged to be misguided) upon which it had determined that Mr Smith could return to work, namely, that he should report for work at 1 Oxford Street and not Parramatta. Despite the correspondence, neither side was moving towards a resolution of Mr Smith's return to work. In addition, as already noted in these reasons, some of Mr Smith's correspondence to Ms Boland at this time could be seen as being unnecessarily offensive. 163Furthermore, it should also be taken into account that Mr Moore's email was a singular event and did not involve a pattern of repeated conduct. The email was a communication between officers of the Department and was not intended to be published generally or to Mr Smith in particular. 164Finally, it is necessary to have regard also to the meaning of the email. In the Tribunal's view, when the email is read as a whole and in context, the reference to "daily lunacy" was not a reference to Mr Smith's psychological condition but rather related to the regular correspondence from Mr Smith, some in offensive terms, which served no useful purpose from the Department's point of view. No doubt it was an exaggeration to describe this as "daily", but exaggeration of this type, especially when the writer is frustrated and communicating a private opinion not for general publication, is not unusual. Furthermore, "lunacy" can refer to instances of extreme foolishness. It may, in hindsight, have been inaccurate or unjustified to describe Mr Smith's conduct as extremely foolish but the Tribunal finds that it appeared so to Mr Moore in the heat of the moment. For these reasons, the Tribunal is of the view that Mr Moore's email does not refer to Mr Smith's adjustment disorder with anxiety but rather to his repeated requests for employment at Parramatta. 165It can be noted that neither Mr Moore nor Ms Boland was called to give evidence. No explanation was given for Ms Boland's absence and an unsatisfactory explanation was given from the Bar Table as to why Mr Moore was not called. The Tribunal does not intend to take its consideration of the unsatisfactory nature of explanation of Mr Moore's absence any further because, even if there had been no explanation at all of his not being called, the Tribunal's view would not be different. Even if the Tribunal inferred, relying on Jones v Dunkel (1959) 101 CLR 298, that Mr Moore's and Ms Boland's evidence would not assist the Department, the Tribunal would not reach a different conclusion as to the meaning of the email and what would probably have occurred if there had been a different employee in the same circumstances as Mr Smith but with a different disability. 166The Tribunal finds that, if another employee, who had the same history of strained employment relations with the Departmental officers as Mr Smith and who had had a work related injury (other than adjustment disorder with anxiety) from which he had recovered and who was seeking a return to work at Parramatta when the Department had decided only to agree to a return to work at 1 Oxford Street, had interacted with the Department and corresponded with Ms Boland in the same manner as Mr Smith, Mr Moore would probably have written the same email. Mr Moore was not referring to Mr Smith's psychological condition in his email and did not write the email because of the nature of Mr Smith's work related injury or his psychological condition. 167Thus, the Tribunal finds that there was no differential treatment of Mr Smith. Another employee, without Mr Smith psychological disability but with a different disability, if the circumstance were otherwise the same or not materially different would have elicited the same response from, and not been treated differently, by Mr Moore. Further, the treatment Mr Smith received, namely his conduct being described as "daily lunacy", was not caused by, or on the ground of, his psychological disability. 168Accordingly, the Tribunal rejects the conclusion that Mr Smith was discriminated against on the ground of disability by Mr Moore's sending the 9 February 2010 email. 169Even if the Tribunal were wrong in this conclusion, the Tribunal is not satisfied that a single email, not intended for general distribution and not shown to Mr Smith, written in circumstances of high frustration and offensive correspondence received from Mr Smith, amounted to discriminatory conditions of employment or a detriment of the type found in Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221. There was no evidence that Mr Smith suffered any detriment as a result of this one email nor that his work environment was rendered hostile by this single communication. The sending of this email did not amount to or cause the denial of a benefit in employment. 170On this basis, the Tribunal concludes that, even if discrimination on the ground of disability were established within s 49B(1)(a), no conduct falling with in any relevant paragraph of s 49B(2) has been established. 171Accordingly, the claim of discrimination based on the 9 February 2010 email should be dismissed.
Not Permitting Mr Smith to Return to Work in August 2010 172As has already been noted, Mr Smith identified four different instances of disability discrimination in relation to his attempted return to work in August 2010, namely: (a)Directing Mr Smith from 9 August 2010 to absent himself from the workplace until he and his doctor signed the RTW Plan; (b)Failing or refusing to permit Mr Smith to perform suitable duties during the period from August 2010 to 25 July 2011; (c)Failing to take steps promptly to resolve the dispute as to how to manage Mr Smith's congenital back condition in the context of his return to work, between August 2010 and 25 July 2011 by directing Mr Smith for a medical assessment as to what adjustments were required to manage his back condition; and (d)Placing Mr Smith on unpaid leave between 9 August 2010 and 25 July 2011. 173Nonetheless, it appears to the Tribunal that instances (a), (b) and (d) are in substance just describing slightly different aspects of the one item of conduct by the Department. What occurred was that the Department refused to allow Mr Smith to perform his duties and thereby earn income from 9 August 2010 as a consequence of his refusal to sign the proposed RTW Plan. As a result, each of (a), (b) and (d) should not be treated as potentially giving rise to three different instances of discriminatory conduct. Rather the Tribunal should examine whether the Department's refusal to allow Mr Smith to perform duties or be paid from 9 August 2010 amounted to disability discrimination. 174The claim of discrimination identified in subparagraph (c) raises a separate question of whether the Department discriminated against Mr Smith by failing to resolve the dispute promptly by directing him for a medical assessment in relation to his back condition. 175The Tribunal will consider whether the Department's refusal to allow Mr Smith to perform paid duties first and then will consider whether failing to resolve the dispute promptly by a reference for a medical assessment involved unlawful disability discrimination.
The Department's Refusal to Allow Mr Smith to Perform Paid Duties from 9 August 2010 176As the Tribunal has set out in some detail above, Mr Smith's attempt to return to work in early August 2010 was unsuccessful. On 9 August 2010, Mr Ross, on behalf of the Department, told Mr Smith by email not to return to work and he was not permitted to go to his work station. In addition, from that date, Mr Smith was placed on unpaid leave by the Department. 177The stated explanation for this was that until Mr Smith signed the RTW Plan Mr Ross, and the Department, were unable to provide Mr Smith with a safe place of work. The reasoning behind this approach was that it was necessary for Mr Smith to abide by the restrictions if the risk of future exacerbation of his back condition was to be avoided and his written agreement to do this meant that the Department could demonstrate that it had taken all the necessary precautions to protect him. 178In determining whether the Department has unlawfully discriminated against Mr Smith by this treatment, the Tribunal must address: 1) whether there was differential or less favourable treatment of Mr Smith by the Department; 2) whether any differential treatment was on the ground of disability; and 3) whether the differential treatment of Mr Smith involved denying him a benefit or subjecting him to a detriment in relation to his employment within s 49D(2)((b) or (c).
Differential Treatment 179In relation to this conduct, Mr Smith's case was that he was not allowed to perform paid duties without signing the RTW Plan on account of his pre-existing back condition. Accordingly, the comparator against whom Mr Smith's treatment must be compared is a person with the same work related injury as Mr Smith but a different pre-existing condition and otherwise in the same or not materially different circumstances from Mr Smith. Thus, Mr Smith's treatment must be compared to the treatment that would have been accorded to a person: 1) who was a permanent employee of the Department with Mr Smith's position and work history and who had had and continued to have difficult interpersonal relations with his or her superiors on the same bases as Mr Smith; 2) who had the same work related injury which had the same consequences as to acceptance and rejection of a workers compensation claim, time off work and fitness to return to work and the same management regime as Mr Smith's psychological injury; 3) who had a different pre-existing medical condition from Mr Smith but one which had required local adjustments to be made to the workplace prior to the work related injury which adjustments had been such as to obviate the need for the person to take any time off work because of that pre-existing condition; 4) whose pre-exiting medical condition, with the benefit of the local adjustments, had not prevented him or her from performing the inherent requirements of his or her position; and 5) who refused to sign a proposed RTW Plan because it dealt with the pre-existing medical condition and not just the work related injury. 180In this case, the key consideration which caused the Department to act as it did was Mr Smith's refusal to sign the proposed RTW Plan. 181The RTW Plan that Mr Smith was required to sign dealt in some detail with restrictions that were proposed to deal with his back condition. From all of the evidence, the Tribunal finds that the reason for the Department's requiring this RTW Plan to be signed was in order to have Mr Smith's written agreement to abide by the restrictions said by his doctor and others to be necessary because of his back condition. 182Mr Ross's email to Mr Smith of 9 August 2010 stated: "In the meantime you should not return to the work place until you are in a position to sign an agreed return to work plan. I've taken this decision as I'm unable to provide you with a safe work place." This was written upon advice from Mr Taylor. The Department's inability to "provide ... a safe work place", in the light of the evidence from Mr Taylor, appears to the Tribunal to be a reference not to a physical inability to provide a work place that was safe for Mr Smith. That was achievable by implementing the local adjustments which had been in place before the psychological injury, the recommendations of Ms Gale her report dated 10 August 2010 and Dr Sivaguru's restrictions as set out in her responses to the questionnaires returned on 9 and 27 July 2010. Rather, it appears to be a reference to the Department's perceived inability to avoid liability under provisions such as s 8 of the Occupational Health and Safety Act 2000 (NSW) without a signed RTW Plan. 183Contravention of s 8 would have resulted in the Department being guilty of an offence and liable to a monetary penalty (potentially as high as $825,000) under s 12 of the Act. Section 8(1) of that Act at the relevant time provided: An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a)ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b)ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c)ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d)providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e)providing adequate facilities for the welfare of the employees at work. 184For completeness, it can be noted that s 28 established a defence upon which an employer such as the Department could rely in the following terms: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a)it was not reasonably practicable for the person to comply with the provision, or (b)the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 185The duty imposed by s 8(1) was to "ensure" the stated outcome and, in the present context, the duty of "ensuring that systems of work and the working environment of the employees are safe and without risks to health" appears to be most relevant. The defences provided by s 28 probably did not significantly diminish the absoluteness of the duty under s 8 in the present circumstances. 186The Tribunal finds that the Department was legitimately concerned that if Mr Smith did not agree to abide by the restrictions which were set out in the RTW Plan then the Department's system of work and working environment, which included the work station, chair, motor vehicles required to be used and similar matters, could not be said to be "without risks to health" in the light of Mr Smith's back condition. The relevant risk to health was the risk that Mr Smith's back condition might be exacerbated if he did not comply with the restrictions. In these circumstances if it had not obtained Mr Smith's agreement to comply with the restrictions, the Department might be found to have failed to "provide [Mr Smith] with a safe work place". 187The fact that the Department had such a legitimate concern, however, does not entail that the Department did not treat Mr Smith less favourably on ground of disability. Having Mr Smith sign the proposed RTW Plan was one way in which the Department could have obtained evidence of Mr Smith's agreement to abide by the restrictions necessary to accommodate his back condition. If this were done, the Department thought it would be able to prove that it had discharged its duty to ensure that his work environment was "without risks to health". 188In so far as a RTW Plan was required, this was because Mr Smith was returning to work for the first time since his work related psychological injury and some of the restrictions in the plan related to that condition. 189Although it was possible for a RTW Plan to be prepared and agreed in the case of a non-work related injury or condition, the evidence was that it was not a requirement in every case that the RTW Plan procedure be followed for non-work related injuries or conditions suffered by employees. Indeed, Mr Smith's own case provides two examples of where a signed, agreed RTW Plan was not required in the case of a non-work related condition. The proposed RTW Plan agreed to by Mr Smith in early June 2009 did not deal with his back condition which had been adequately managed on the basis of local adjustments up to that time. In addition, on his return to work in July 2011, no RTW Plan was signed by Mr Smith. The Department was prepared to proceed on the basis that Mr Smith's presenting himself for work after having been informed of the restrictions with which he was required to comply because of his back condition was a sufficient indication of his agreement to abide by those restrictions as to render the work environment safe and "without risks to health" for him. The Department did not, in those two instances, require a signed RTW Plan dealing with his back condition before it would allow Mr Smith to perform paid duties. There were also other instances of employees of the Department who returned to work after time off as a result of a non-work related injury or condition who were not required to agree and sign a RTW Plan. 190The Department on 9 August 2010 refused to allow Mr Smith to perform paid duties because he refused to sign the proposed RTW Plan. How would the Department have treated an employee in circumstances not materially different from Mr Smith's but who did not have a back condition but rather had another non-work related condition and who was returning to work from a work related psychological injury which had largely resolved? 191The evidence did not address head on what the Department would have done in the case of a person returning to work from a psychological injury the same as Mr Smith's who had a pre-existing non-work related disability different from Mr Smith's. There was no specific evidence that a RTW Plan in that case would have covered both the work related injury and the pre-existing condition, especially if the pre-existing condition had been adequately accommodated by local adjustments previously put in place and did not involve a significant risk of exacerbation if certain restrictions or adjustment were not complied with. The evidence that was given by Mr Taylor indicated that in most cases the Department negotiated RTW Plans with employees who were returning to work in a co-operative manner and did not just demand a signature on a RTW Plan which had not been the subject of negotiation and discussion. 192Although it is not an easy question to determine on the evidence, the Tribunal is persuaded on the balance of probabilities that the Department would have treated another person in Mr Smith's circumstances but with a non-back related pre-existing condition differently. One significant factor that caused the Department to act as it did was the risk of future exacerbation of Mr Smith's back condition if the restrictions were not complied with. 193Confronted with the situation of a person in the same circumstances as Mr Smith returning to work from the same psychological work related injury but with a non-back related pre-existing condition who refused to sign a RTW Plan (covering both the injury and the pre-existing condition), the Department would not have refused to allow the person to perform paid duties until that particular RTW Plan was signed. It is more likely that the Department would have either after negotiation been satisfied with a RTW Plan limited to the work related injury or negotiated in a co-operative manner with the person a more comprehensive RTW Plan which the person was prepared to sign. If obtaining the person's agreement to abide by the appropriate adjustments to address the pre-existing disability was necessary to protect the Department from potential exposure to liability under workplace health and safety legislation, that agreement could have been obtained in some way other than by signing the RTW Plan. It would only have been if a suitable agreement could not be reached after proper negotiation that the Department would have taken the step it took in Mr Smith's case. 194Thus, the Tribunal is satisfied that in Mr Smith's case there was different and less favourable treatment of Mr Smith by the Department.
On the Ground of Disability 195The Tribunal now turns to the question of causation. The Tribunal is satisfied that the Department's treatment of Mr Smith was based on their view (which was not unreasonable) that his back condition could have been exacerbated by the Department's system of work and working environment if Mr Smith did not abide by the restrictions set out in the RTW Plan. If this occurred, the Department feared it could be found guilty of an offence under a provision such as s 8(1) of the Occupational Health and Safety Act, especially if it had allowed Mr Smith to return to work without his agreement to abide by the restrictions. For this reason, it was insistent upon Mr Smith's RTW Plan including restrictions relating to his back condition as well as dealing with the work related injury and upon his expressly agreeing to those restrictions by signing the plan. 196As Mr Smith refused to sign the plan, the Department refused to let Mr Smith work in the Department because it did not have his agreement to abide by the restrictions in relation to his back. Accordingly, the Tribunal concludes that the Department's treatment of Mr Smith was, at least partly, on the ground of his back condition. As his back condition was the relevant disability relied upon in relation these claims, it follows that the Department's treatment of Mr Smith was on the ground of his disability. 197In reaching this conclusion the Tribunal is not suggesting that there may not have been other features in the relationship between Mr Smith and the Department that caused or contributed to the Department adopting the approach it did. It does appear that Mr Smith could be pedantic and difficult in dealing with Departmental policies and procedures. It is likely that the Department was insistent upon his signing the RTW Plan in order to ensure that there was no basis for future dispute as to the restrictions with which Mr Smith was required to comply. It may be that the Departmental officers behaved in the way they did and made the decisions they did because they were frustrated and annoyed with Mr Smith. Nonetheless, even if this is so, it would not follow that Mr Smith's treatment was not on the ground of, or relevantly causally related to, his back condition. 198Section 4A of the ADA has been referred to above. It provides: If: (a)an act is done for 2 or more reasons, and (b)one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 199The expression of this section is not without some difficulty because the description of one of the reasons as consisting of "unlawful discrimination" suggests that the reason has to be discrimination as opposed to a reason which would support a finding of discrimination. Nonetheless, the Tribunal has explained the correct approach and the effect of the section in Trevanion v Wyangala Country Club Ltd (No 2) [2013] NSWADT 27 at [28] as follows: The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. (emphasis added) 200Mr Smith's treatment by the Department may have been done for more than one reason but the Tribunal is satisfied that one real and genuine reason why the Department acted as it did was because of his back condition, which is the relevant disability. 201On these bases, the Tribunal is satisfied that: 1) the Department treated Mr Smith differently and less favourably than it would have treated a person with a non-back related disability in the same or not materially different circumstances; and 2) it did so on the ground of his back disability. 202In so finding, the Tribunal wishes to make it clear that it is not concluding that the Department intended to discriminate against Mr Smith or that the officers of the Department were not trying to perform their duties conscientiously in a situation which might be seen as involving difficult interpersonal relationships. The Tribunal's finding is merely that Mr Smith received differential treatment from the Department on account of his back condition and thus was directly discriminated against by the Department within s 49B(1)(a) of the ADA. 203The Tribunal now turns to consider whether the conduct falls within s 49D(2) of the ADA.
Denying a Benefit or Subjecting to a Detriment in Employment 204In this regard, by refusing to let Mr Smith perform his duties as a training advisor and be paid for doing so, there can be little if any dispute that the Department denied him benefits associated with employment. These benefits included the ability to work and the right to be paid his salary as well as receiving the other benefits derived from employment. Thus, given the Tribunal's findings in relation to discrimination on the ground of disability within s 49B(1)(a), the Department's conduct amounted to unlawful discrimination within s 49D(2)(b) of the ADA. 205Similarly, by doing what it did, the Department subjected Mr Smith to a detriment because it deprived him of the opportunity to work and to receive his salary and other benefits. As a result, the Department's conduct could also be characterised as unlawfully discriminating against Mr Smith within s 49D(2)(d). 206In the Department's points of defence, it was argued at paragraph 30 that Mr Smith's conduct prevented the Department from ensuring his health, safety and welfare and in those circumstances Mr Smith "was not unreasonably denied access to a benefit or subjected to a detriment." 207In response to this argument, two things should be noted. Frist, neither s 49D(2)(b) or (d) refers to a person being "unreasonably" denied access to a benefit or subjected to a detriment. In cases of alleged direct discrimination such as the present, provided there has been discrimination on the ground of disability within s 49B(1)(a) in the withholding of a benefit or the subjecting to a detriment, within s 49D(2)(b) or (d), there is unlawful disability discrimination. There is no additional element of unreasonableness required to be established. 208Secondly, it is not correct to conclude that it was Mr Smith's conduct alone that prevented the Department from ensuring his health, safety and welfare. One way in which the Department could have been achieved that, as the Tribunal understands it, was for the Department to have limited the RTW Plan to Mr Smith's psychological injury, which Mr Smith would have been prepared to sign, and to have him indicate in some other way that he was prepared to abide by the restrictions required because of his back condition. The Department's apparent inflexibility as to the proposed RTW Plan as well as Mr Smith's refusal to sign together caused the impasse. It can also be noted that the Department was prepared to let Mr Smith return to work in July 2011 without signing a RTW Plan, notwithstanding the Department's occupational health and safety obligations. In that latter situation, the Department believed its obligations were satisfactorily addressed by recording in a letter Mr Smith's implied acceptance of the restrictions. This demonstrates that there were ways in which the Department could have discharged its obligations without Mr Smith's signing a proposed RTW Plan. The Tribunal rejects the Department's arguments in this regard.
The Department's Failure to Resolve the Dispute Promptly by a Medical Assessment 209The remaining claim of discrimination is that the Department discriminated against Mr Smith by failing to resolve the dispute promptly by directing him for a medical assessment in relation to his back condition. 210This claim of discrimination, in so far as it is different from the claims already dealt with, appears to be based upon the reasoning that if Mr Smith had been referred for a medical assessment in relation to his back condition the dispute between Mr Smith and the Department would have been resolved promptly as a result of the assessment. The Tribunal does not accept the premise upon which that reasoning is based. It appears to the Tribunal that the impasse between Mr Smith and the Department would not have been resolved by his being referred to a medical assessment. The nature of the restrictions required to accommodate Mr Smith's back condition were not in dispute nor was Mr Smith unwilling to abide by them. The impasse arose out of the fact that Mr Smith, supported by Dr Sivaguru, was not willing to sign the proposed RTW Plan for his psychological injury because it dealt not only with that injury but also with his back condition. As the Tribunal understands it, Mr Smith's objection was one of form. He did not object to the substance of the restrictions only the fact that they were contained in the proposed RTW Plan. As a result, whatever a further medical assessment of Mr Smith's back condition produced, it was not likely to resolve the issue of the form of the proposed RTW Plan. 211Accordingly, the Tribunal finds that the factual presupposition for this claim of discrimination has not been made out. This has consequences for the analysis of differential treatment, causation and discriminatory conduct.
Differential Treatment 212The Tribunal finds that a person in the same or not materially different circumstances as Mr Smith, who had a non-back related pre-existing condition but who was in dispute with the Department concerning the form of a proposed RTW Plan for a psychological injury, would not have been referred for a medical assessment concerning the pre-existing condition in order to attempt to resolve the dispute. This is principally because the subject matter of dispute at hand was the form of the RTW Plan not the nature and consequences of the pre-existing condition medical. As a result, and as in Mr Smith's case, a further medical assessment in relation to the pre-existing condition would not have been of assistance in resolving the dispute. 213Accordingly, the Tribunal is not satisfied that the differential treatment element has been made out.
On the Ground of Disability 214Further, were it necessary to consider the question, the Tribunal does not accept that the reason why the Department did not refer Mr Smith for a medical assessment in relation to his back condition was because of, or on the ground of, Mr Smith's disability, namely his back condition. 215One likely reason in the Tribunal's view for the Department's not referring Mr Smith for such a medical assessment was that the Department did not believe it would assist to resolve the problem. 216In addition, the Department had tried to return Mr Smith to work with a RTW Plan that addressed all his medical conditions. Mr Smith's refusal to sign the RTW Plan appeared to the Department to be unjustified, if he was genuinely seeking to return to work, because it did not address the substance of what the Department was trying to do but only involved a criticism of the form of the document. In these circumstances, the Department was content to let Ms Surace deal with the matter and attempt to obtain a signature on the RTW Plan by the steps she took after August 2010. For those reasons as well, it did not refer him for a medical assessment in relation to his back condition. 217Accordingly, the Tribunal finds that, even if there had been differential treatment of Mr Smith, the failure to refer him for a medical assessment as a means of resolving the dispute was not on the grounds of disability. As a result, this claim for unlawful discrimination fails and should be dismissed. 218Nonetheless, in case the Tribunal is wrong in reaching those conclusions, we intend briefly to consider whether the Department's conduct fell within any relevant paragraph of s 49D(2).
Denying a Benefit or Subjecting to a Detriment in Employment 219The conduct identified as being discriminatory was the Department's failing to resolve the dispute over how to manage the back condition promptly by directing him for a medical assessment in relation to that condition. This also appears to the Tribunal to be somewhat misconceived. As already noted, whether or not the Department referred Mr Smith for an assessment was essentially irrelevant to Mr Smith's signing the proposed RTW Plan and returning to work. 220Furthermore, to have to undergo an assessment could be seen as a detriment. Not being required to be assessed, could therefore be seen as benefit. 221In all the circumstances, the Tribunal does not accept that the Department's failure to refer Mr Smith for a medical assessment which would not have resolved the issue concerning the contents of the RTW Plan amounted to depriving Mr Smith of an employment related benefit or subjecting him to a detriment. 222Thus, even if there were differential treatment on the ground of disability, the Tribunal would not be satisfied that any provision of s 49D(2) had been contravened in the circumstances.
Conclusion on Claims of Discrimination 223Subject to any defence available under s 54 of the ADA, for the reasons given above, the Tribunal finds that by refusing to let Mr Smith perform his duties as a training advisor and be paid for doing so on 9 August 2010 because he refused to sign the proposed RTW Plan, the Department unlawfully discriminated against Mr Smith within s 49D(2)(b) and (d) of the ADA.
Section 54 Defence 224In the Department' s points of defence, the Department raised its obligation under the Occupational Health and Safety Act apparently by way of defence, although s 54 was not expressly referred to. In relation to the Department's obligations under s 8(1) of that Act (which have been referred to above), in paragraph 29 of the point of defence it was stated: Given the absolute and non-delegable nature of the obligations under that Act, the Respondent would be in breach of tis obligations if it allowed the Applicant to attend work without giving his cooperation and commitment to the development of RTW Plan, particularly in circumstances in which the Respondent was on notice of him having disabilities which potentially could be impacted upon by his return to work. 225In so far as this raises a defence based upon s 54 of the ADA, the Tribunal is not satisfied that s 54 is engaged in the present case. 226Section 54 of the ADA relevantly provides: (1)Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a)any other Act, whether passed before or after this Act, ... 227As has already been discussed above, the Tribunal does not accept that it was necessary for the Department to refuse to allow Mr Smith to perform his duties and be paid in order for it to comply with s 8 of the Occupational Health and Safety Act. In so far as ensuring that the workplace was safe for him required his commitment to abide by the restrictions necessary to accommodate his back condition, the Department could have obtained Mr Smith's commitment in ways other than requiring Mr Smith to sign the proposed RTW Plan which dealt with both the work related injury and his pre-exiting back condition. 228In these circumstances, the Tribunal is not satisfied that the Department can rely upon s 54 of the ADA as a defence to the claim for unlawful discrimination which the Tribunal finds has been otherwise made out in the circumstances of this case.
Relief 229In relation to the claim of discrimination which the Tribunal finds has been made out, Mr Smith seeks various forms of relief under s 108 of the ADA including relevantly: 3) A finding under s 108(1)(b) that the complaint is substantiated in respect of the claim of unlawful disability discrimination by the Department's refusing to allow Mr Smith to perform duties and be paid on and after 9 August 2010 because he refused to sign the proposed RTW Plan; 4) An order under s 108(2)(a) for compensation for any loss or damage suffered by reason of the respondent's conduct that amounted to unlawful discrimination, including: a) lost wages and superannuation from 6 August 2010 to 25 July 2011 of $84,415.32; b) wasted accommodation expenses of $300; c) lost benefits such as accrued sick leave, annual leave and long service leave for that same period; and d) an amount for non-economic loss in the nature of hurt, humiliation and distress. 230The finding that the complaint has been substantiated in part should be made for the reasons already given above. 231As to the what compensation order might be appropriate, the Tribunal will first consider the general principles applicable in respect of s 108(2)(a). It will then deal with the question of compensation for loss of wages and related employment expenses. The final question which the Tribunal will address is compensation for hurt, humiliation and distress. 232Compensation orders are made under s 108(2) of the ADA which relevantly provides: (2)If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a)except in respect of a matter referred to the Tribunal under section 95 (2) [which does not apply in the present case], order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, ... 233It has been held by the Appeal Panel of the Tribunal In Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 at [27] that this provision (as it was previously found in s 113(1)(b)(i) of the ADA in substantially the same terms) "vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent's conduct, but they are not controlling". 234The Appeal Panel in that case (at [28] ff) also found that assistance in the proper approach to take to the Tribunal's power to award compensation could be derived from the High Court's approach to the similar statutory compensation regime established by s 82 of the former Trade Practices Act 1974 (Cth), now s 82 of the Competition and Consumer Act 2010 (Cth) and s 236 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act). In relation to s 82 the High Court held in Henville v Walker (2001) 206 CLR 459 at [18] per Gleeson CJ: Section 82 of the Act is the statutory source of the appellants' entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word "by" [in the case of the ADA "by reason of"]. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case." 235In relation to the particular circumstances of that case which involved a claim by a plaintiff to recover the amount of loss and damage suffered by the misleading and deceptive conduct of the defendant, it was also held at [13] per Gleeson CJ: It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. 236Note should also be taken of the comments of McHugh J at [106] where a similar point was made as follows: If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional. 237A further issue for consideration arises in claims for compensation under s 108(2)(a) where the complainant's conduct has caused or contributed to the loss, especially where that conduct could be characterised as an unreasonable failure to mitigate the extent of the loss suffered. Section 108(2)(a) does not expressly refer to a duty on the victim of discrimination to mitigate any loss or damage suffered. Nor does s 82 of the Trade Practices Act. Yet notwithstanding that lack of express reference, in s 82 cases it has been held that the requirement that the loss or damage be suffered "by" the contravening conduct imports with it the principle that loss or damage that could reasonably have been avoided by the claimant is not loss or damage recoverable under that section. 238In Murphy v Overton Investments Pty Ltd (2001) 112 FCR 182 at [47] it was held by Branson J (R D Nicholson J agreeing) in the Full Court of the Federal Court as follows: .... However, an applicant will not recover under s 82 of the TPA loss or damage which he or she could reasonably have avoided (Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 per Lockhart J at 519; Leigh Enterprises v Transcrete Pty Ltd (1984) ATPR 40-452 per Fitzgerald J at 45,234; Brown v Jam Factory Pty Ltd [1981] FCA 35; (1981) 53 FLR 340 per Fox J at 351). While the authorities speak of a duty to mitigate loss, the basis of that duty is to be found, in my view, in the statutory requirement that the loss or damage recoverable under s 82 be loss or damage suffered "by conduct of another person". Where any loss or damage could reasonably have been avoided, it is, in the context of s 82 of the TPA, to be regarded not as loss or damage suffered by reason of the conduct of another, but loss or damage suffered by reason of the unreasonable conduct of the applicant. 239This analysis was not dealt with on appeal to the High Court (Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388) and the High Court remitted the question of the assessment of damages to the trial judge with comments at [70] that were not inconsistent with what the Full Court had said. 240The approach to determination of loss and damage set out above was generally supported in a discrimination case under Federal anti-discrimination legislation by French J (as his Honour then was) in Hall v A & A Sheiban Pty Ltd (1989) 29 FCR 217 at 281 where it was held: Having found the complaint substantiated, the President was empowered by s.81(1)(b)(iv) to make a declaration that Sheiban pay to each of the women "damages by way of compensation for any loss or damage suffered by reason of" his conduct. The damage which may be so compensated extends by force of s.81(4) to "injury to the complainant's feelings or humiliation suffered by the complainant". Its measure is to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission's discretion than that the loss or damage be "by reason of" the conduct complained of. That is not to say that every adverse consequence, however remote, is to be compensated. For in this context, as in the wider reaches of the law, "causation is to be understood as the man in the street, and not as either the scientist or metaphysician would understand it" - Yorkshire Dale Steam Ship Co. Ltd v Minister of War Transport (1942) AC 691, 706 (Lord Wright). And within the cause-effect framework created by the words of the statute the selection of effects which give rise to liability may be influenced by policy and not merely by logic. In this regard the reasoning of Gummow J. in relation to s.82 of the Trade Practices Act 1974 is of assistance - Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [1987] FCA 230; (1987) 75 ALR 271 at 279; see also Munchies Management Pty Ltd v Belperio unreported (Federal Court of Australia, Full Court, 30 November 1988) and Pavich v Bobra Nominees Pty Ltd unreported (Federal Court of Australia, French J. 4 August 1988). ... the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it. It may be that while there are events for which the conduct complained of is a sine qua non, they would not be recognised in any practical sense as arising "by reason of" it. Exclusion principles analogous to concepts of remoteness, and failure to mitigate may then be seen to operate. In the end however, these are to be subsumed in a practical judgment of cause and effect. ... 241This was also the approach adopted by the Appeal Panel of the Tribunal in Commissioner of Police v Mooney (No 3) [2004] NSWADTAP 22 at [45] and [46] where it was held: 45In this case, where the claim was for loss of wages for a period of 12 months, it was quite appropriate for the Tribunal to consider whether some of that loss occurred by reason of Mr Mooney's failure to take reasonable steps to find an alternative source of income, rather than by reason of the Commissioner's unlawful conduct. In other cases it may not be appropriate for the Tribunal to take this approach for, as Spigelman CJ observed in Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232 at 245, "denunciation, punishment and deterrence", as well as compensation, are primary purposes of the AD Act. The need to denounce, punish or deter may sometimes render it inappropriate for the Tribunal to consider whether an applicant has reasonably mitigated his or her loss when determining the measure of damages to be awarded. 46When considering whether any of Mr Mooney's claimed loss occurred by reason of his own conduct rather than that of the Commissioner, the Tribunal applied the common law principle that "[w]hile an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant's refusal to mitigate his or her loss was unreasonable". It was appropriate to apply that principle in this case. ... 242Turning now to a consideration of the appropriate order to compensate Mr Smith for loss wages and other employment related entitlements, it should be noted that this is not a case where denunciation or punishment are necessary or appropriate. Nonetheless, the Tribunal did find that the Department unlawfully discriminated against Mr Smith by refusing to allow him to perform his duties and earn an income from 9 August 2010 because he refused to sign the proposed RTW Plan. The Tribunal also found that the Department would not have taken this step with another person in the same circumstances but with a disability other than Mr Smith's back disability. We found that the Department would after negotiation have not required a signed RTW Plan which included the pre-existing condition or would have negotiated another acceptable outcome with that person. If no suitable agreement could be agreed after proper negotiation, the Department may well have required the person to take unpaid leave at that point. 243In the circumstances, the Tribunal concludes that a period of loss of wages and employment benefit was caused by the Department's refusal to allow Mr Smith to work while he refused to sign the proposed RTW Plan. This period could be seen as reflecting the period that it would have been likely to have taken two parties properly negotiating to arrive at an acceptable RTW Plan and agreement to abide by the restrictions required because of the pre-existing condition. Another way of considering the issue is to note that after 9 August 2010 it was always within Mr Smith's power to effect a return to work at any time of his choosing if he and his doctor had either signed the proposed RTW Plan or agreed with the Department another suitable arrangement. 244The Tribunal has accepted that Mr Smith and Dr Sivaguru would have been prepared to sign a RTW Plan that only dealt with the psychological injury and Mr Smith had no objection to complying with the restrictions specified by Dr Sivaguru in respect of his back condition. Similarly, the Tribunal has already found that the Department would have accepted such an arrangement. Thus, all that was required in order for Mr Smith to be able to perform his duties and earn his income was for him and the doctor to sign the proposed RTW Plan, notwithstanding its perceived defects in form, or for Mr Smith to indicate clearly to the Department that he was prepared to abide by the restrictions nominated by Dr Sivaguru in order to accommodate his back condition in his work environment and that he and his doctor would also be prepared to sign a RTW Plan if it were limited to his psychological injury. This would have addressed the Department's legitimate concerns and the Tribunal finds that Mr Smith would then have been permitted to return to work by the Department. Thus, Mr Smith had the ability to resolve the impasse and so put a stop to any loss of wages or other employment benefits from which he was suffering. 245Was it unreasonable for Mr Smith not to take those steps and if so when did it become unreasonable? In this context it must be borne in mind that the obligation to co-operate in achieving Mr Smith's return to work was not a one-sided obligation. While the Department was required to co-operate with Mr Smith in developing his RTW Plan and returning him to work in August 2010, Mr Smith was also required to co-operate with the Department. The Tribunal is not satisfied that Mr Smith showed the co-operation required of him after it should have been apparent to him that he had to reach an arrangement with the Department that addressed his and his doctor's concerns and also met the Department's legitimate objectives. 246Mr Smith relied upon the fact that his treating doctor, Dr Sivaguru, was not prepared to sign the proposed RTW Plan in August 2010 because it dealt with both the psychological injury and the back condition. The Tribunal does not accept that this provides a justification for Mr Smith merely to say that until his doctor signed the plan, he would not sign the plan and it remained ever thereafter the Department's sole responsibility to resolve the issue. 247As far as the Tribunal can understand Dr Sivaguru's position she was apparently not willing to discuss the matter with the Department while the proposed RTW Plan related to both the pre-existing condition and the psychological injury. The doctor was not called to give evidence and the Tribunal was left in the position that the only apparent basis for Dr Sivaguru's refusal to sign was her perception that it was defective in form. 248After it became abundantly clear from the approaches the Department made to him and Dr Sivaguru later in 2010 and into 2011 that the Department was continuing to seek to resolve the issue but in a way which did not address Mr Smith's and Dr Sivaguru's concerns with the form of the proposed RTW Plan, a reasonable response on Mr Smith's part would have involved him articulating his substantive objections to the proposed RTW Plan (not just its perceived formal defect) and proposing a way forward which adequately addressed his and his doctor's concerns and the Department's objectives. 249The Tribunal finds that it should have been abundantly clear by about the time Ms Surace submitted the proposed RTW Plan to Dr Sivaguru on 22 February 2011, at the very latest, that the Department was still attempting to have Mr Smith return to work and that if that was to be achieved it would require Mr Smith to take reasonable steps on his part to propose a solution that satisfied his and Dr Sivaguru's objections as to the form of the proposed RTW Plan and at the same time met the Department's objectives. Mr Smith did not take these steps or seek to explore them with the Department. This failure was not reasonable on Mr Smith's part. 250Although the Department may have acted in a peremptory and even unreasonable manner in June 2009, by August 2010 this did not, in the Tribunal's view, justify Mr Smith failing to co-operate in planning his return to work after 9 August 2010. Mr Smith had raised his back condition in the context of his return to work from his psychological injury. His nominated treating doctor had included the requirement for a "Work place assessment [which was only related to Mr Smith's back condition] to be done" in her medical certificates provided in relation to the psychological injury from 14 May 2010. It was not unreasonable for the Department to seek to address both his psychological injury and his pre-existing back condition in planning his return to work. Nor was it unreasonable in the circumstances for the Department to include in the proposed RTW Plan restrictions relating to the back condition. While the Department continued to propose RTW Plans in late 2010 and early 2011 that were not materially different from what had been rejected in August 2010, it did not receive any assistance from Mr Smith in finding a resolution to the impasse. 251The Tribunal has found above that the Department would not have refused to accept a solution in which Mr Smith agreed in writing to comply with the back related restrictions and signed a RTW Plan limited to the psychological injury, if that had been proposed by Mr Smith and his doctor. Although the Department was inflexible in its approach to resolving the issue in August and the later part of 2010 and early 2011, the Tribunal is not satisfied that there was such unreasonableness on the Department's part after about February 2011 that would have justified Mr Smith's continued failure to take the reasonable steps open to him in order to end the impasse and return to gainful employment. This is so especially as it should have been obvious to him by that time that the Department was seeking to achieve his return to work and that all that was standing in the way was a resolution of RTW Plan issue. 252Thus, the Tribunal concludes Mr Smith suffered a loss of wages and employment benefits by reason of the Department's unlawful discrimination against him during the period up to about late February 2011 when it was arguably justifiable for Mr Smith not to have taken the steps reasonably available to him to resolve the impasse. Thereafter, however, the Tribunal finds that Mr Smith's loss of wages and benefits was not suffered "by reason of" the Department's unlawful discrimination against him but rather because of his failure then to take reasonable steps to achieve his return to work. Depending as it does on an assessment of when it should have been clear to Mr Smith that he had to take reasonable steps to resolve the impasse with Department, the determination of the period is not precise. 253Mr Smith's fortnightly gross salary during the period from August 2010 to February 2011 was $2908.09 gross and superannuation contribution was $261.73. Taking into account taxation and the impact of not being employed for that period upon leave and similar entitlements, the Tribunal believes that a figure of $38,000 is appropriate to compensate Mr Smith for loss of wages and other employment benefits for the period from 9 August 2010 until it should have been clear that to Mr Smith that if he was to return to work it was up to him to respond to the Department's attempts to achieve this with reasonable proposals that addressed both his and his doctor's concerns and the objectives of the Department. The loss thereafter should not be found to have been suffered "by reason of" the Department's discriminatory conduct. 254As to the claim for wasted accommodation expense, this was not pressed in final submissions. In any event, even if the evidence had established the payment of this amount and that Mr Smith forfeited it when he did not return to work at Parramatta in August 2010, the Tribunal would not be minded to have awarded such an amount as its forfeiture was not brought about by and was not "by reason of" the Department's unlawful discrimination. 255As to the claim for damages for hurt, humiliation and distress, the Tribunal accepts that Mr Smith was distressed by the Department's contravening conduct and may well have felt hurt and even humiliated by being made to wait in the foyer of the building on Monday, 9 August 2010. For substantially the reasons given above in relation to the loss of wages claims, however, the Tribunal is of the view that the hurt, humiliation and distress that was caused by or was suffered "by reason of" the Department's unlawful discrimination against Mr Smith was quite limited. That is not to say that there was not a lot of other hurt, distress and humiliation felt by Mr Smith arising out of the Department's conduct in the period 2008 to 2011. It is just that such hurt, distress and humiliation is in large measure not compensable under s 108(2)(b) in this proceeding. 256The Tribunal notes the comments made by a differently constituted Tribunal in Bonella v Wollongong City Council [2001] NSWADT 194 at [121] : The complainants also sought general damages for humiliation and stress. All of the complainants gave evidence about the negative impact which the operation of the motor vehicle policy had had upon them. The respondent submitted that if there was to be any award of general damages the sum should be minimal. Damages for non-economic loss are always difficult to quantify. The English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 warned that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy." Any award of general damages in this case should include a component for the complainants' loss of opportunity, or chance, to be considered for a work related benefit in a non-discriminatory matter. In the circumstances of this case we believe that each complainant is entitled to an award of $7500 for general damages. The damages should be paid at the expiry of the statutory appeal period. 257The maximum amount awardable at the time of that decision was $40,000 not $100,000 as applies in the present case. 258In the circumstances, the Tribunal considers that an award of $2,500 is appropriate in this regard.
Conclusion and Orders 259On the bases set out above, the Tribunal is satisfied that the Department unlawfully discriminated against Mr Smith by refusing to permit him to return work and earn his income from 9 August 2010 because he refused to sign the proposed RTW Plan and that Mr Smith suffered loss and damage thereby which the Tribunal assesses amounted in total to $40,500. Otherwise, the complaint should be dismissed. 260Accordingly, the Tribunal:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2013
Smith
Department of Education and Communities
(2003) 217 CLR 92
(1987) 8 NSWLR 442
(1959) 101 CLR 298
(2001) 206 CLR 456
(2001) 112 FCR 182
(2004) 216 CLR 388
(2001) 206 CLR 459
(1988) 80 ALR 486
(1981) 53 FLR 340
(1989) 29 FCR 217
(1987) 75 ALR 271
(2002) 55 NSWLR 232