Walsh v Hunter New England Local Health District

Statutory framework

1. Section 49D(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability: 49D Discrimination against applicants and employees … (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. …
2. Section 49B explains what constitutes "discrimination on the ground of disability": 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 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. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

The issues

1. While the parties disagree whether Ms Walsh's hearing impairment impacts on her ability to discharge her duties as a Registered Nurse, it is agreed that Ms Walsh has a significant hearing impairment which amounts to a "disability" within the meaning of the Act. The Act defines disability to include "total or partial loss of a person's bodily functions" and "the malfunction, malformation … of a part of a person's body": s 4.
2. To succeed in her complaints of unlawful discrimination on the ground of disability, Ms Walsh must establish that: 1. the LHD required that she comply with a requirement or condition; and 2. compliance with that requirement or condition is within the terms or conditions of Ms Walsh's employment and/or amounts to a detriment; and 3. Ms Walsh was not able to comply with that requirement or condition; and 4. a substantially higher proportion of employees who do not have Ms Walsh's disability, or a disability that is substantially the same as that disability, comply or are able to comply with the requirement or condition in comparison with employees who do have not have that disability; and 5. the requirement or condition was not reasonable having regard to the circumstances of the case.
3. The President of the Anti-Discrimination Board (now Anti-Discrimination NSW) determined the periods of the First Complaint and Second Complaint to be 22 August 2017 to 16 August 2018 and 17 August 2018 to 22 October 2018, respectively. Each complaint contains an allegation of discrimination on the ground of disability. Therefore, in considering whether the above elements are established, the relevant period is from the start of the First Complaint to the end of the Second Complaint, 22 August 2017 to 22 October 2018.

What is the relevant requirement or condition for the purpose of s 49B(1)(b)?

1. Ms Walsh described the "requirement or condition" imposed by the LHD, with which she claims she was not able to comply, variously as being required to work a rotating roster and being required to work morning and night shifts.
2. The Act does not define the expression "requirement or condition" as it is used in s 49B(1)(b) and corresponding provisions of the Act. The authorities have consistently emphasised the need to identify the subject "requirement or condition" with some degree of precision: Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 (Banovic) at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 (Waters) at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 (Clarke) at 143. However, "considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain": Walker v State of Victoria [2011] FCA 258 at [194].
3. Although s 49B(1)(b) speaks of the "perpetrator" "requir[ing] the aggrieved person to comply with a requirement or condition" (emphasis added), read contextually, it is plain that the subject requirement must apply to more than one employee. This is because, as explained by the Tribunal in Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 at [19], in order to determine whether the requirement has a disparate impact, a comparison must be made between the proportion of people with the aggrieved person's characteristic who can comply with the requirement and the proportion of people without the aggrieved person's characteristic who can comply with the requirement.
4. While the LHD asserts that Ms Walsh, like all other Registered Nurses employed by the Hospital, is required to work morning, evening or night shifts, as rostered, it has not required Ms Walsh to work night shifts since 2004. Nonetheless, the LHD states that it reserves the right to roster Ms Walsh to work night shifts. Therefore, we proceed on the basis that the subject requirement is to work any shift as rostered. In these reasons we will refer to that requirement or condition as "the subject requirement". It is not in dispute that the LHD required all nursing staff to comply with the subject requirement. We find that the subject requirement is a requirement within the meaning of s 49B(1)(b) of the Act.

Was compliance with the subject requirement within the terms or conditions of Ms Walsh's employment, and/or does it amount to "subjecting her to a detriment"?

1. Section 49D(2)(a) makes it is unlawful for an employer to discriminate against an employee on the ground of disability "in the terms or conditions of employment which the employer affords the employee".
2. In a letter dated 10 February 1992, confirming Ms Walsh's appointment to work as a Registered Nurse, the then CEO of the LHD wrote that the position was part-time (five shifts per fortnight) on a "rotating roster basis". Between 2014 and August 2018 the LHD excused Ms Walsh from the subject requirement. Nonetheless it was a term of her employment. It follows that the subject requirement is capable of falling within s 49D(2)(a) of the Act.
3. In case we are wrong in concluding that the subject requirement is capable of falling within s 49D(2)(a) of the Act, we will address whether compliance with the subject requirement is also capable of falling within s 49D(2)(d) of the Act, which makes it unlawful for an employer to discriminate against an employee on the ground of disability "by subjecting the employee to any other detriment". The Act does not define the term "detriment". We adopt the definition of that term used by NCAT and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), namely something, objectively assessed, that amounts to loss, damage or injury that is real and not trivial. (See, for example, Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]; Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75].
4. For reasons we discuss below, we find that Ms Walsh is not able to comply with the subject requirement. We are satisfied that when that requirement was reimposed in October 2017, Ms Walsh suffered loss. It follows that the subject requirement is also capable of falling within s 49D(2)(d) of the Act.

Was the subject requirement a requirement with which Ms Walsh does not or is not able to comply?

1. Ms Walsh contends that throughout the relevant period she was not able to comply with the requirement to work morning shifts because after working those shifts she was left "completely exhausted". She claims the reason for this was two-fold: first, insufficient sleep because of anxiety that she would not hear her alarm in the morning, and second, the intense concentration required to communicate with colleagues and patients against the background noise of the morning shift.
2. The LHD disputes Ms Walsh's claim that she was not able to comply with the subject requirement, pointing to, among other things, the opinion of Dr Mellick and the evidence of Ms Walsh working morning shifts exclusively between October 2017 and April 2018, and thereafter on a rotational basis.

Meaning of "not able to comply"

1. Whether Ms Walsh is "not able to comply" with the subject requirement must be assessed in a practical, not a theoretical, sense: Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 at 565-6; Banovic at 197 (McHugh J); Styles v The Secretary of the Department of Foreign Affairs and Trade & anor [1988] FCA 364 at [64] (Wilcox J).
2. In Hurst v Queensland [2006] FCAFC 100; (2006) 151 FCR 562 (Hurst), the Full Court of the Federal Court considered the meaning of the expression "not able to comply" in s 6 of the Disability Discrimination Act 1992 (Cth), which is in similar but not identical terms to s 49B(1)(b) of the Act. Hurst involved a claim of indirect discrimination on the ground of disability brought by a profoundly deaf primary school student, Tiana Hurst. Miss Hurst claimed that she was not able to comply with the subject requirement, formulated as "to accept an education and receive instruction in English without the assistance of an Auslan teacher or interpreter" (Hurst and Devlin v Education Queensland [2005] FCA 405 at [80]-[87]; Hurst at [32]).
3. At first instance, Lander J found that Miss Hurst was able to "cope" with her work at school without Auslan assistance and therefore she had not established that she was "not able to comply" with the subject requirement. The Full Court concluded that Lander J had misconstrued the expression "able to comply" in s 6(c) by focusing on whether Miss Hurst was able to "cope", and failing to address the real issue in that case, namely whether, "by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage": at [106]. The Full Court cited with approval the following passage from Clarke v Catholic Education Office [2003] FCA 1085; (2003) 202 ALR 340, a case also involving a claim of indirect discrimination brought by a profoundly deaf student. Madgwick J at first instance found that the applicant student could not meaningfully participate in classroom instruction without Auslan interpreting support and would have faced serious disadvantages that his hearing peers would not face (at [49]): "The second submission, that Jacob could comply with the model, implicitly and, in my view, correctly concedes that compliance must not be at the cost of being thereby put in any substantial disadvantage in relation to the comparable base group. In my opinion, it is not realistic to say that Jacob could have complied with the model. In purportedly doing so, he would have faced serious disadvantages that his hearing classmates would not. These include: contemporaneous incomprehension of the teacher's words; substantially impaired ability to grasp the context of, or to appreciate the ambience within which, the teacher's remarks are made; learning in a written language without the additional richness which, for hearers, spoken and "body" language provides and which, for the deaf, Auslan (and for all I know, other sign languages) can provide, and the likely frustration of knowing, from his past experience in primary school, that there is a better and easier way of understanding the lesson, which is not being used. In substance, Jacob could not meaningfully "participate" in classroom instruction without Auslan interpreting support. He would have "received" confusion and frustration along with some handwritten notes. That is not meaningfully to receive classroom education."
4. The Full Court went on in Hurst to state (at [125]): "... A hearing impaired child may well be able to keep up with the rest of the class, or "cope", without Auslan. However, that child may still be seriously disadvantaged if deprived of the opportunity to reach his or her full potential and, perhaps, to excel."
5. Adopting that approach it is necessary to consider whether in complying with the subject requirement, Ms Walsh experienced serious disadvantage or hardship. See, also Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 at [43].

Ms Walsh's work history

1. As noted, since 2004 Ms Walsh has not been rostered to work night shifts. Ms Walsh requested not to be rostered on night shifts because, after losing the hearing in her left ear, she claims she found it difficult to maintain balance in the dark.
2. Until 2009, Ms Walsh worked primarily in the emergency ward of Tamworth Hospital. On her account, while the loss of hearing in her left ear made work "a little harder", until then she had been able to cope and carry out her "normal duties", apart from working night shift, which had not done since 2004. Ms Walsh claims that after losing hearing in her right ear, her "good ear", in 2009, she started to have a "lot of trouble" hearing patients and colleagues and needed to "constantly concentrate" to hear what was being said, especially when there was any significant background noise. Ms Walsh claims she found having to concentrate to communicate at work "quite tiring". For these reasons, Ms Walsh requested to be moved to the Hospital's rehabilitation ward which she understood to be generally a quiet environment.
3. On her return to work in March 2010, following a left ear cochlear implant, Ms Walsh commenced in the Hospital's rehabilitation ward, working predominantly evenings and some morning shifts. According to Ms Walsh, in late 2013 she told Nurse Unit Manager, Sue Simpson, that she was finding it increasingly difficult to work morning shifts because of the "sensory overload" and because she had difficulty sleeping the night before morning shift on account of being anxious that she would sleep through the alarm. Ms Simpson agreed to Ms Walsh's request to be rostered exclusively on evening shifts. That arrangement continued until August 2017 when the LHD requested Ms Walsh to provide medical evidence of her claimed inability to work morning shifts.
4. In mid-August 2017, the LHD advised Ms Walsh that she was to be stood down until it received medical evidence that she was fit for work. Ms Walsh was permitted to return to work on 3 October 2017 and was rostered to work morning shifts exclusively, three shifts per week. On 16 April 2018, following the conclusion of an investigation into allegations of misconduct by Ms Walsh, the LHD rostered Ms Walsh to work morning and evening shifts on a rotating basis. At her request, since May 2019 Ms Walsh has been rostered to work two shifts per week. According to Ms Walsh, she requested the reduction because she was becoming increasingly exhausted and finding it difficult, if not impossible, to cope working morning shifts.
5. Ms Walsh was off work between 5 September 2018 and 2 April 2019. The LHD's insurer declined a claim for workers compensation for that period made by Ms Walsh in respect of a psychological condition.

Waking in the morning

1. Ms Walsh gave evidence that she cannot rely on a conventional alarm clock or wakeup phone call to wake in the morning. She says that for a number of years she has used an alarm clock designed for people with a hearing impairment. The clock features a vibrating "disc" and flashing lights, which are activated at the designated "alarm time". Ms Walsh claims that she cannot rely on the alarm clock because, first, she has a tendency to roll off the pillow while sleeping, which means she cannot feel the disc vibrating. Second, the clock is powered by electricity and power outages in her home, which is in an isolated rural location about 60 minutes by car from the hospital, are not uncommon.
2. When taken in cross-examination to one of the advertised features of the phone - "a powerful battery back-up that will step in whenever the power goes out" - Ms Walsh claimed that she has trialled disconnecting the alarm from the electricity supply, and found that the alarm did not, as advertised, revert to the purported back-up battery power supply.
3. Ms Walsh states that because of her concerns about the reliability of her alarm, she is anxious that she will fail to wake in the morning and that this affects her sleep. She claims for this reason she often stays at her partner's home the night before she is rostered to work morning shifts.

Noise on the morning shift

1. According to Ms Walsh, on the rehabilitation ward, the noise on the morning shift is at a higher level and more constant than on the evening shift. She claims that after working a morning shift she feels "absolutely exhausted", much more so than after working an evening shift.
2. Ms Walsh states that since losing hearing in both ears, background noise has made communicating with people difficult, requiring her to concentrate intensely on what is being said. She claims that to communicate she relies on a combination of her assisted residual hearing and lip reading. She claims she often guesses what people are saying. She claims that she tries to place herself in close proximity to the speaker and to ensure that their face is in good light. She states that at work she frequently asks her colleagues and patients to repeat what they have been saying.
3. Ms Walsh claims that the noise level on the morning shift is much higher than on the evening shift for several reasons, including: 1. Higher staff numbers: a Nurse Unit Manager and six nurses are rostered to work morning shifts on the rehabilitation ward; four nurses are rostered to work evening shifts. Between 13:30 and 15:00, when the shifts overlap, there are 11 nursing staff on the ward. (There are between 18 to 22 patients on the rehabilitation ward.) 2. Health practitioners visiting the ward: according to Ms Walsh, medical practitioners generally do patient rounds before lunch and are usually accompanied by interns. In addition, other health practitioners, such as physiotherapists and dieticians, visit and treat patients, mostly in the morning but never later than 16:00. 3. Friends and relatives of patients: according to Ms Walsh, visitor numbers are significantly higher during the morning shift compared with the evening shift. While conceding that the Hospital's visiting hours are 11:00 to 20:00, Ms Walsh claims that, reflecting the age group of most patients, most visitors are elderly and prefer to visit during the day. She claims that there are very few visitors to the ward after dinner. 4. Phones ringing: according to Ms Walsh, throughout the morning shift the ward phone rings constantly and staff are required to field enquiries from health practitioners, other care facilities and friends and relatives of patients. On her account, while phone enquiries are made to the ward during evening shifts, the number of enquiries is significantly less than on the morning shift.
4. According to Ms Walsh, on the evening shift the noise reduces significantly after dinner. Most patients start going to bed around 18:30 to 19:00. Ward staff finish work at 20:00.
5. When questioned, Ms Walsh agreed with the proposition that, as found by Dr Mellick, she did not pose a risk to patient safety. She said she manages by, among other things, relying on her significant nursing experience and seeking assistance from colleagues when required. She claims that working morning shifts is not conducive to doing her "best work" and it leaves her exhausted. She claims that the reason that in May 2019 she requested a reduction in hours was because she felt she was unable to cope with the exhaustion of working morning shifts.

Working nights

1. According to Ms Walsh she is not able to work at night because of difficulties maintaining balance while navigating the wards in darkness. She claims that therefore she would find it difficult to attend to patients and perform rounds. In addition, she claims that a further difficulty of working nights would be that to communicate with patients she would have to require that they speak loudly, which would likely disturb other patients.
2. Ms Walsh claims that with the assistance of a torch she is able to manage for the final two hours of the evening shift when the main lights have been turned off, but she would not be able to do that for an entire shift.

Medical evidence

1. In August 2017, the LHD decided to review the arrangement put in place in 2014 which permitted Ms Walsh to exclusively work evening shifts. The LHD requested that Ms Walsh provide evidence about her alleged inability to work morning and night shifts. In a letter dated 17 August 2017, Dr John Fraser wrote: "This is to certify that Denise Wash has worked successfully with a serious disability since 2009 in Hunter New England Health. This has been due to ensuring a safe environment. I attach correspondence documenting her disability. I am of the opinion that working day shift will mean Denise is exposed to excessive background noise making her ability to do her job more difficult. At night when the ward is darkened, she is at risk of ataxia and a potential falls risk as her balance is reduced. Using a flashlight would be difficult for her at night, particularly if she needed to care for a patient in the dark due to the ataxia and reduced visual input in the dark. Can she be considered for rostering in afternoon shifts which better suit her disabilities?"
2. The following is the correspondence referred to by Dr Fraser in that letter, documenting Ms Walsh's disability:

Report of neurologist, Michael Halmagyl dated 27 May 2011

1. In a report addressed to Dr Cameron Henderson (Dr Henderson and Dr Fraser work at the same medical practice and apparently share care of Ms Walsh) dated 27 May 2011, Professor Halmagyl wrote that Ms Walsh has "virtually no vestibular function as well as virtually no hearing now". He wrote that since 2004 Ms Walsh has had "symptoms of vestibular deficiency with ataxia in the dark". He wrote that despite a cochlear implant in her left ear, Ms Walsh prefers to use the hearing aid on the little residual hearing on her right. He explained that in essence Ms Walsh has "bilateral, asymmetrical asynchronous loss of balance and hearing on both sides" which he explained is the "typical pattern of immune inner ear disease".
2. Professor Halmagyl concluded "unfortunately nothing else medically can be done".

Report of audiologist Polly Ballantyne dated 6 July 2011

1. In a report dated 6 July 2011, Ms Ballantyne wrote that after suffering "sudden hearing loss", first in one ear and then the other, Ms Walsh's hearing continued to deteriorate over time. Ms Ballantyne wrote that Ms Walsh's audiogram now indicates a "profound sensorineural hearing loss bilaterally". Ms Ballantyne wrote that while Ms Walsh benefits from her cochlear implant, in many situations she continues to be "reliant on visual information, such as lip reading". Ms Ballantyne explained that this is "in keeping with most hearing aid/cochlear implant users".
2. Ms Ballantyne wrote that Ms Walsh has "good access to conversational speech … in quiet situations, where there is a single speaker". She wrote, however, that in more complex listening environments Ms Walsh is more reliant on verbal cues and even a small amount of competing noise, such as an urn boiling or other people talking, leads to a "significant amount of communication difficulties with Denise's degree of hearing loss". Ms Ballantyne stated that those difficulties are overcome to an extent by having the speaker face Ms Walsh and being at a "conversational distance", that is, not more than one metre away. However, for successful communication, background noise needs to be minimised, "wherever possible".

Report of Ms Ballantyne dated 30 June 2014

1. In a handwritten report dated 30 June 2014, responding to a series of questions asked by the LHD, Ms Ballantyne wrote that when Ms Walsh uses her cochlear implant and right hearing aid she has "good access to conversational speech" and performs well on speech tests in quiet situations. Ms Ballantyne wrote that in a complex listening environment, for example where there is background noise, Ms Walsh uses her lip-reading ability.
2. Under the heading, "Please provide your medical opinion on any options that enable us to better accommodate the restrictions", Ms Ballantyne wrote that Ms Walsh would be assisted by any measures that would minimise competing noise, particularly where she is being given specific instructions or during handovers and meetings. Ms Ballantyne recommended that Ms Walsh be "provided information in visual form and for the speaker to be reasonably close to and facing Ms Walsh".
3. Ms Ballantyne noted that Ms Walsh has some balance issues but to her knowledge they did not appear to restrict Ms Walsh's ability to fulfil her work duties.

Email sent by Ms Ballantyne to Ms Walsh on 10 March 2015

1. In an email sent to Ms Walsh on 10 March 2015 Ms Ballantyne wrote: "I can see evening shifts have been suiting you well … the quieter environment makes a big difference to communication ability when you have a severe hearing loss. It is interesting to note that one of your colleagues noticed this with you."
2. Ms Ballantyne stated in the email that working morning shifts is "probably manageable but when they are consecutive fatigue is likely to impact". She wrote that fatigue in these situations usually has several causes, and that the amount of concentration needed to be able to concentrate for a day in noise "is extremely tiring … so after several days it generally takes a toll". Ms Ballantyne wrote that some of her clients who are nurses choose night shift because it is much quieter "but your balance makes this a bit more complex", referring to Professor Halmagyi's comments on the effect of darkness for people with compromised hearing.

LHD requests Dr Fraser to provide a further report

1. Following receipt of Dr Fraser's letter of 17 August 2017, the LHD wrote to Dr Fraser requesting an opinion about whether Ms Walsh is "fit to complete the inherent requirements of [her] position". The LHD stated that "the Registered Nurse role requires the incumbent to do all the duties outlined in the Position Description, but more specifically:

• Communicating effectively with individuals and groups
• On a rotating roster, she may be deployed to other area[s]
• Hearing - Use of hearing is an integral part of work performance, eg Telephone Enquiries and Follow Up Phone Calls.
• Frequently addressing distressed people eg emergency or grief situations
• Frequent noise - Environmental/background noise necessitates people to raise their voice to be heard."

1. In a letter in response dated 25 August 2017, Dr Fraser wrote: "I note that Denise Walsh has successfully completed work in [the rehabilitation ward] from March 2010 in evening shift driving herself home. I note that her sensorial hearing loss and balance has not deteriorated in this time. I note that the nature of that work has not changed in this period. Since Denise has successfully completed work for the period of time and there are no changes to the work role, I am of the opinion that she can continue to work."

Opinion of Dr Mellick

1. Following receipt of Dr Fraser's letter, the LHD directed Ms Walsh to attend an independent medical examination to be conducted by consultant neurologist, Dr Ross Mellick.
2. In a letter dated 13 September 2017, addressed to the Director of the Hospital, Dr Mellick advised that he conducted an assessment of Ms Walsh on 12 September 2017. Dr Mellick recorded that Ms Walsh wore to the assessment a hearing aid in her right ear and a magnetic hearing device in the left. He noted that during the assessment there was no difficulty in "her understanding of me and my understanding of her". He recorded that when Ms Walsh removed the hearing aid from her right ear, he noted no difference with regard to her ability to hear and to communicate. He wrote that when she removed the aid from her left ear, Ms Walsh indicated that she was unable to hear, "however it was not evident on further communication".
3. Dr Mellick wrote that on testing using a tuning fork "placed over the vertex" with both aids in place, Ms Walsh said the sound was inaudible but not when it was placed at the front of the forehead. Ms Walsh reported that the sound was "completely inaudible" on the left side without the hearing aid but audible on the right side for approximately a second.
4. In response to a series of questions asked by the LHD, Dr Mellick wrote:

• He found no neurological basis to consider Ms Walsh to be a "clinical risk" to patients or herself.
• He found no evidence of "physical or mental impediments to receptive capabilities".
• He found no evidence that modifications are necessary to allow Ms Walsh to safely carry out her role.
• In his opinion, Ms Walsh is "perfectly capable of performing the work she has been doing for the lengthy period described above".
• His understanding is that there has been "no indication or evidence that [Ms Walsh] is incapable of doing her work quite successfully until very recently".
• He did not identify any barriers of a medical nature to Ms Walsh's return to full capacity or any evidence that she requires restrictions or is unfit for duties.

1. Dr Mellick gave the response below to following question asked by the LHD: "Can you please assess this worker against the attached position description and job demands checklist to determine her ability to undertake the inherent requirements of this position? Please be as descriptive as possible regarding any restrictions that the worker may have and provide an indication of the timeframe she would need to be on such restrictions. My understanding is that she is able to perform all of the duties required in the tasks she had been doing for the periods of time outlined above, those tasks including Sister-in-Charge and performing appropriate rotatory tasks with other nurses."

Further opinions provided by Ms Walsh's GPs

1. Apparently in response to Ms Walsh's disclosure of a history of depression, the Hospital's Director of Nursing asked Ms Walsh's general practitioners for their opinion about Ms Walsh's fitness for work. In a letter sent on 7 November 2017, Dr Henderson noted that for the previous three years Ms Walsh had been working 24 hours per week on evening shifts. He wrote: "It would be reasonable to recognise her strengths and weaknesses and harness her periods of peak performance in a flexible rostering system. It would be prudent to set her up for success rather than failure, eg her preferred shift is evenings… Denise is ready and happy with 24 hours/week and evening shifts would enable her to perform full function."
2. On 27 February 2018, the LHD wrote to Dr Fraser asking for further information about Ms Walsh and for comments about Dr Henderson's report. In an undated letter in reply, Dr Fraser pointed out that he was not the author of that report and therefore could not answer the questions asked by the LHD about the opinion contained in that report.
3. He went on to comment on Ms Walsh's fitness for work and Dr Mellick's report. Explaining that sensory ataxia means a "lack of sensation in the long tract fibres which can aggravate balance control", he wrote that he agreed with Dr Mellick's statement that Ms Walsh does not suffer from that condition. However, he stated that Ms Walsh suffers from "sensorineural deafness" and noted that a "lack of visual or auditory input can aggravate balance in poorly lit environments".
4. Dr Fraser went on to disagree with two comments made by Dr Mellick, which were: 1. "There aren't any restrictions as to hours or working requirements (required). 2. No modifications are necessary to allow you to safely carry out your role."
5. Dr Fraser noted that Ms Walsh has successfully worked evening shifts since October 2017, which "attests to her capacity to perform her role". Referring to Ms Walsh's statement that background noise on day shifts impairs her ability to comprehend and follow statements, he pointed out that the document "Hearing-implications in the workplace", published by the Public Service Commission: "[A]dds further weight towards a refutation of Dr Mellick's claims and concurs with Ms Walsh's observations about her capacity to perform her role in a noisy area…"
6. Referring to a recommendation contained in that document about "being prepared to move to [a] quieter location when there is lot of background noise to facilitate communications", Dr Fraser wrote that working in a "rehabilitation ward offers this opportunity with some modifications". He wrote that Ms Walsh "finds evening shifts easier to complete her duties where she observes less background noise and she is able to concentrate better". Noting that the ward is lit at this time, he wrote that "Ms Walsh relies on visual cues to do her work". In his opinion, Ms Walsh should "avoid working in a darkened ward at night as there are no visual cues to compensate for her hearing loss as she navigates a darkened ward".

Submissions

1. In support of her claim that she is unable to comply with the requirement to work morning shifts, Ms Walsh points to her evidence of experiencing difficulty in communicating with patients and staff, which is exacerbated by background noise. In addition, she points to her evidence of feeling exhausted at the end of each shift as a result of having to concentrate to communicate, particularly during morning shifts, which she claims are both busier and noisier than evening shifts. On her account, her exhaustion is exacerbated by lack of sleep. She contends that her account of struggling to communicate with background noise and feeling exhausted as a result is consistent with the opinions expressed by Ms Ballantyne and Dr Fraser.
2. The LHD disagrees. It contends that Ms Walsh's claim of struggling to hear at work is not supported by Dr Mellick who, being a specialist in neurology, is well qualified to assess whether Ms Walsh is fit for work. The LHD contends that Dr Fraser's opinion is internally inconsistent and should be given little weight. The LHD contends that Dr Fraser's opinion "appears to be an expression of support for Ms Walsh's shift preferences". The LHD points out that in his most recent report, Dr Fraser states on one hand that Ms Walsh is "fit to undertake her duties" but on the other hand disagrees with Dr Mellick's opinion that no restrictions in Ms Walsh's hours or working arrangements are required.
3. The LHD contends that Dr Fraser's opinion about Ms Walsh's ability to work night shifts is also contradictory in that, on one hand, he states that she would have difficulty working nights because of problems maintaining balance while working in the dark, but on the other hand states she is able to work evening shifts, notwithstanding that part of those shifts are worked after sunset.
4. In addition, the LHD submits that the evidence of Ms Walsh working morning shifts exclusively between October 2017 and April 2018 and thereafter on a rotational basis, demonstrates that she is able to comply with the subject condition.

Conclusion

1. The question posed is whether, in a practical sense, Ms Walsh is able to comply with the subject requirement. Adopting the approach taken in Hurst, the answer to that question turns on whether in complying with that requirement Ms Walsh experienced serious disadvantage or hardship.
2. As a first step in answering this question, it is necessary to address the following disputed issues of fact: 1. Whether, as Ms Walsh claims, the morning shift on the rehabilitation ward is noisier than the evening shift? 2. If so, whether this requires Ms Walsh to concentrate more intently when communicating with staff and patients? 3. Whether Ms Walsh has trouble sleeping before morning shifts? 4. If so, whether as a consequence of having to concentrate intently and/or having trouble sleeping before morning shifts, Ms Walsh is exhausted after working a morning shift? 5. Whether, as claimed, Ms Walsh is likely to have difficulty maintaining balance while working on night shift?
3. If the answers to questions 1 to 4 are "yes", we must then consider whether it can be said that, as a consequence, Ms Walsh experiences serious disadvantage or hardship as a result of complying with the requirement to work morning shifts? If the answer to question 5 is "yes", the question to be determined is whether she is able to comply with the requirement to work night shifts?
4. The parties agree that the rehabilitation ward is significantly quieter than the emergency ward. However, they disagree about whether, as claimed by Ms Walsh, evening shifts on the rehabilitation ward are quieter than morning shifts.
5. Ms Walsh's claim that there is a greater level of background noise on morning shifts is consistent with the evidence of a greater level of activity on the ward of a type likely to generate noise during the morning. That greater level of activity is reflected in disparate staffing numbers: six nurses and a Nurse Unit Manager are rostered to work morning shifts; four nurses are rostered to work evening shifts. It is reflected in Ms Walsh's claim, which we accept, of higher visitor numbers, both health practitioners and relatives and friends of patients during the morning shift. It is also reflected in Ms Walsh's unchallenged claim of the ward receiving more phone calls during the morning than on the evening shift. In addition, it is consistent with Ms Walsh's unchallenged claim that the level of activity on the ward decreases significantly after dinner is served and most patients retire to their rooms.
6. While not addressed by either party, we think it likely that noise levels and the duration of noise within morning and evening shifts, is variable. For example, during the period that the two shifts overlap, 13:30 to 15:00, and the number of nursing staff increases to 11, it seems likely that noise levels will increase. In addition, we think it likely that the duration of noise and noise levels on individual morning and evening shifts, will vary depending on a range of factors, such as the volume of individual staff members, patients and visitors, the number of phone calls made to the ward, whether there is an emergency on the ward and so on. Nonetheless, while noise levels are likely to be variable, we are satisfied that, generally, evening shifts are quieter than morning shifts.
7. Ms Walsh's claim that she has difficulty communicating and is heavily reliant on lip reading, is consistent with our observation throughout the two-day hearing. Throughout that hearing, Ms Walsh was only able to understand what was being said when the speaker looked directly at Ms Walsh and spoke loudly. From time to time, when a member of the Tribunal or the LHD's representative failed to look directly at Ms Walsh when speaking, Ms Walsh asked for the words to be repeated. Throughout the hearing she was accompanied by a support person who assisted her from time to time by repeating what had been said.
8. Ms Walsh's claim that the sustained background noise on morning shifts makes it difficult for her, as a person with a hearing disability, to communicate and requires a greater degree of concentration is inherently plausible and consistent with the opinion expressed by Ms Ballantyne. Ms Ballantyne's comment that "even a small amount of competing noise, such as an urn boiling or other people talking, leads to significant communication difficulties for people with [Ms Walsh's] level of hearing loss", highlights the extent of the challenge for Ms Walsh in effectively communicating with patients and colleagues at work
9. Ms Walsh's claim that she finds it more taxing and exhausting to work morning shifts is also consistent with the statement made by Ms Ballantyne in her email to Ms Walsh, dated 10 March 2015, that "working some day shifts is 'probably manageable' but when consecutive 'fatigue is likely to impact'". As Ms Ballantyne explained in that email, the amount of concentration required to communicate for a day in noise is extremely tiring and after several days "generally takes a toll". According to Ms Ballantyne, this creates a "vicious circle" as the more tired the person becomes, the harder it is to concentrate.
10. As to the issue of waking in the morning, as the LHD points out, despite her concern that she will sleep through her alarm, Ms Walsh apparently has never reported late for work on morning shifts. Arguably, there is no rational basis for her concern. It does not follow, however, as the LHD urges, that Ms Walsh's claim of feeling anxious that she might sleep through her alarm, and losing sleep as a result, must be rejected. It is a matter of common knowledge that some individuals are anxious about matters where there is no rational basis for their apprehended fears. We accept Ms Walsh's claims that on those evenings where she does not stay with her partner, she is anxious that she might sleep through her alarm and has a restless night's sleep as a result.
11. In our view, the opinion expressed by Dr Fraser is not internally inconsistent and should not be disregarded as urged by the LHD. A fair reading of his three reports is that, in his opinion, Ms Walsh is able to cope at work and does not pose a risk to patients. However, he shares Ms Ballantyne's view that Ms Walsh finds it difficult to communicate with background noise and finds this to be taxing. It also should be observed that when Dr Fraser speaks of Ms Walsh being able to cope with work, the work to which he is referring is very largely that done on the evening shift Ms Walsh has been performing almost exclusively for a considerable period.
12. In circumstances where Dr Mellick, a specialist in the field of neurology, has unequivocally expressed the opinion that Ms Walsh is fit to work without restriction, can it be said that in complying with the requirement to work morning shifts Ms Walsh experienced serious disadvantage or hardship? Before considering Dr Mellick's opinion, it is useful to refer to the context in which it was given. Two weeks before being referred to Dr Mellick, Ms Walsh had been stood down from her position as a Registered Nurse.
13. Dr Mellick does not address in his report Ms Walsh's claimed difficulties in communicating against background noise. Whether this is because Ms Walsh did not report these difficulties or for some other reason is not possible to say. Nor does he comment on the opinions given by Dr Fraser or Ms Ballantyne. Whether this was because he was not provided with, did not consider, or considered and dismissed, those reports, again is not possible to say. The only reference to background noise in Dr Mellick's report, is the comment made under the heading "Examination" - "she was able to communicate easily at a normal volume of voice and with background traffic noise". But, significantly, Dr Mellick did not perform any tests either in the environment in which the LHD requires Ms Walsh to work or by other means that simulated the background noise to which she is subjected on morning shifts. Dr Mellick does not appear to have measured nor to have been provided with measurements of the level of background noise that typically prevails during morning shifts. Moreover, he did not appear to take into account, or, at least place any significant weight on, Ms Walsh's history of deteriorating hearing.
14. Dr Mellick's opinion that there is no indication that Ms Walsh is incapable of "doing her work quite successfully" or that "modifications are necessary to allow Ms Walsh to carry out her role", was made against the background of Ms Walsh having worked evening shifts for a number of years. Nonetheless, Dr Mellick's report could not be read to suggest that in his opinion Ms Walsh was unfit to work morning or night shifts.
15. In our view, the reports prepared by Ms Ballantyne and Dr Fraser provide a more reliable guide to the difficulties experienced by Ms Walsh in working where there is background noise. Each has had the benefit of treating Ms Walsh over an extended period. Given the nature of her hearing loss, each considered her claim of experiencing difficulties in communicating when there is background noise to be unremarkable. Each considered that in light of those difficulties Ms Walsh was better suited to working in a quieter environment. Nonetheless, neither went so far as to state that Ms Walsh is not fit to work morning shifts.
16. None of the health practitioners whose opinion is before us in these proceedings has expressly addressed whether, to use the expression used by the Full Court of the Federal Court in Hurst, Ms Walsh "experienced serious disadvantage or hardship" as a result of being required to comply with the requirement to work morning shifts.
17. As argued by the LHD, the fact that Ms Walsh has been working morning shifts, apparently without incident, since October 2017, is powerful evidence that she is able to comply with the subject requirement. However, that evidence cannot be considered in isolation from the totality of the evidence, including Ms Walsh's self-report of finding working morning shift tiring because of her difficulties communicating in a noisy environment and the need to concentrate, which as predicted by Ms Ballantyne, leaves her feeling exhausted at the end of the day. It is also relevant, in our view, that because of these difficulties, last year Ms Walsh requested that her hours of work be reduced by one-third.
18. Ms Walsh's work history demonstrates that she is able to cope, up to a point, with working morning shifts. However, in working those shifts we find that she has experienced difficulties in communicating on account of the increased background noise and as a result she feels exhausted. Those difficulties, in our view, are not of a minor or trivial nature but are significant and ongoing. "Coping" is a sub-optimal way for a person to work. It implies that the person has few reserves of physical or mental energy on which to call when the demand arises. It is clear that working morning shifts, even if Ms Walsh is able to "cope", is significantly harder for her than it would be for a person with normal hearing. This is because of the increased cognitive load placed on her by the need to concentrate hard to hear or comprehend speech by using her lip-reading or other skills. If morning shifts are worked on consecutive days, and each of them is exhausting, we accept that this must have a cumulative detrimental effect on her. We therefore find that in being required to work morning shifts Ms Walsh has experienced serious hardship. It follows that she is not able to comply with the requirement to work morning shifts.
19. Different considerations arise with respect to the question of whether Ms Walsh is able to comply with the requirement to work night shifts. Ms Walsh's claimed inability to comply with that requirement results not from difficulties communicating when there is background noise but her claimed difficulties maintaining balance in darkness.
20. As noted above, the LHD has not rostered Ms Walsh to work night shifts since 2004, apparently having accepted her claim that after losing hearing in her left ear she finds it difficult to maintain balance while working for sustained periods in darkness. It would appear that the LHD has no plans to change that arrangement but nonetheless insists that it is entitled to direct Ms Walsh to work night shifts.
21. Dr Mellick makes no mention in his report of Ms Walsh's claimed difficulty of maintaining balance at night. He dealt with the issue of balance in a single line under the heading "Examination": "Proprioception was intact and there was no indication of sensory ataxia".
22. Dr Fraser, on the other hand, dealt with the issue of balance expressly in his report of 17 August 2017 and the undated report apparently sent to the LHD on 2 March 2018. While accepting Dr Mellick's opinion that Ms Walsh does not suffer from "sensory ataxia", he explained that because of "sensorineural deafness", Ms Walsh's balance problems can be aggravated in poorly lit environments. In his view she is potentially at risk of falls if she were to work at night and should avoid doing so because of the lack of "visual cues to compensate for her hearing impairment as she navigates a darkened ward". That opinion is consistent with that expressed by Professor Halmagyl in 2011, which we note was given outside the context of the dispute over rostering arrangements.
23. The veracity of Ms Walsh's claim of experiencing balance problems is not undermined, as contended by the LHD, by the evidence of Ms Walsh being able to work the last two hours of an evening shift and to walk to her car after that shift. The circumstances are not comparable. It is one thing to be able to compensate for balance problems for sustained periods, and another to be able to do so for relatively shorter periods. Ms Walsh's claim of experiencing difficulty in maintaining balance in darkness is consistent with the opinions given by Dr Fraser and Professor Halmagyl and is accepted by us.
24. For these reasons we find that Ms Walsh is not able to comply with the requirement to work night shifts.

Do a substantially higher proportion of nurses who do not have a hearing impairment comply, or are able to comply with the subject requirement in comparison with nurses who do have not have that disability?

1. Ms Walsh must establish that a substantially higher proportion of nurses who do not suffer from her "particular disability", that is, profound sensorineural hearing loss bilaterally, or a substantially similar disability, comply, or are able to comply, with the subject requirement. In Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77] the Tribunal usefully summarised the steps that must be undertaken to determine whether this element is established. Applied to the facts of this case, Ms Walsh must: 1. Identify a pool or base group. (The base group identified by Ms Walsh and accepted by us is Registered Nurses engaged by the Hospital to work in the rehabilitation ward. Throughout the period of the complaint, at any one time 16 Registered Nurses, including Ms Walsh, were engaged to work in the rehabilitation ward.) 2. Identify the members within that group who have a hearing impairment and can comply with the subject requirement. (Ms Walsh claims, and the LHD does not dispute, that throughout the relevant period, within the base group no one except for Ms Walsh had a hearing impairment.) 3. Third, identify the members of the base group who do not have a hearing impairment and can comply with the subject requirement. (Ms Walsh claims, and the LHD does not dispute, that all members of the base group who do not have a hearing impairment comply or are able to comply with the subject requirement.) 4. Finally, compare the proportion of nurses without Ms Walsh's particular disability who comply or are able to comply with the subject requirement (15/15), with the proportion of nurses with the subject disability who can comply (0/1).
2. Applying these steps, it follows that a substantially higher proportion of nurses without Ms Walsh particular disability comply or are able to comply with the subject requirement (100%) as compared with those nurses with Ms Walsh's particular disability who comply or are able to comply with that requirement (0%).

Was the subject requirement not reasonable?

1. It falls to Ms Walsh to establish that the subject requirement is "not reasonable having regard to the circumstances of the case".
2. In Waters, Brennan J stated at 378 that provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. His Honour explained that there are two aspects to this criterion of reasonableness: "first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory". Brennan J went on to say at 378-379 that, "[E]ven where the imposition of the condition is appropriate and adapted to the performance of the relevant activity … it is necessary to consider whether performance … might reasonably have been achieved without imposing so discriminatory a requirement or condition".
3. In Clarke, in considering s 6(b) of the Disability Discrimination Act, Sackville and Stone JJ observed at [115] that the principles governing the element of reasonableness in a claim of indirect discrimination are "well settled" and include: "(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances ... (ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other ... Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable ... (iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case ..."
4. Ms Walsh contends that the subject requirement was not reasonable because she was unable to comply with it and a workable alternative was available, namely that she be rostered exclusively to work evening shifts. She points out that there is no evidence that the LHD had difficulty maintaining adequate staffing levels on morning or nights shifts between 2014 and August 2017 when she was rostered exclusively to work evening shifts and there is no evidence, nor has the LHD suggested, that there had been a change which might affect its capacity to maintain 24-hour staffing.
5. We understand the LHD to contend that the subject requirement was reasonable because its decision was taken in conformity with the applicable policy, Procedures for Managing Non-Work Related Injuries or Health Conditions, dated March 2014 and made on the basis of the medical opinion given by Dr Mellick that Ms Walsh was fit to work without restrictions.
6. It was entirely reasonable and appropriate that the LHD decided to refer Ms Walsh for a medical assessment on receipt of Dr Fraser's original report which raised issues about her fitness for employment. We reject the suggestion made by Ms Walsh that that decision was motivated by improper motives. These considerations of themselves do not render the subject requirement reasonable.
7. Self-evidently, hospital patients require 24-hour nursing care. To discharge its obligations to patients, the LHD was required to roster sufficient numbers of nursing staff to cover each shift. On its face it would appear that it was reasonable to impose the subject requirement in order to provide continual nursing care to patients. We find the imposition of the requirement was, to adopt the expression used by Brennan J in Waters, "appropriate and adapted" to the performance of the relevant activity, here providing continuous nursing care to patients.
8. In this case there was an alternative requirement available which could have ameliorated the disadvantage experienced by Ms Walsh resulting from her hearing impairment, that is, rostering her to work evening shifts alone, as she had been doing between 2014 and 2017. While relevant, this is not determinative of the issue of reasonableness. The availability of a reasonable alternative is but one of the circumstances that must be considered.
9. The LHD has adduced no evidence that it would be unable or find it difficult to provide adequate and appropriate nursing care without imposing the requirement on all nursing staff or on Ms Walsh in particular. Notably, as Ms Walsh points out, there is no evidence that the LHD had difficulty maintaining adequate staffing levels on morning shifts, or indeed any other shift, between 2014 and August 2017 when she was rostered exclusively to work evening shifts.
10. Having received the opinion of Dr Mellick that Ms Walsh was fit to work all shifts, the LHD might reasonably have considered that Ms Walsh could work morning shifts and that, as a matter of general policy, it was inappropriate to give favoured treatment to a particular nurse in its rostering arrangements. While it was not the subject of evidence, it is common sense that, all other things being equal, in a working environment, people doing the same jobs should be offered equal conditions of service. Favouritism and unfair discrimination have insidiously corrosive effects on morale and efficiency in the workplace because of the sense of grievance and injustice they cause.
11. Where, however, all things are not equal, this general principle does not apply. Applying a general principle regardless of significant differences between people can, depending on the circumstances, be unreasonable and unjust. This is such a case. The shortcomings of Dr Mellick's advice to the LHD have been revealed by the totality of the medical evidence which confirms Ms Walsh's evidence of a history of genuine hearing disability and corroborates her account of suffering serious hardship when working in a noisy ward.
12. In summary, the objective unreasonableness of the subject requirement arises from four facts: first, Ms Walsh's serious disability; second, the LHD's knowledge of that disability from the time when Ms Walsh first informed the LHD of it and sought a quieter working environment because of it; third, the LHD's reliance on a medical opinion which has been revealed to be inconsistent with the totality of the most reliable medical evidence available to the LHD; and, fourth, the availability of a reasonable alternative to the subject requirement.
13. For these reasons, we conclude that the requirement was not reasonable in all the circumstances.

The victimisation allegations

1. In the First and Second Complaints, Ms Walsh alleged that the LHD subjected her to "bullying, harassment and victimisation" in contravention of s 50 of the Act. Section 50 states: 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. …
2. At the request of Ms Walsh and with the consent of the LHD, we exercised the discretion to amend the Second Complaint to include several instances of alleged victimisation said to have post-dated the Second Complaint, that is, after 22 August 2018.
3. Ms Walsh claims that the LHD victimised her by: 1. Questioning her fitness for work and referring her to Dr Mellick for assessment. 2. Rostering Ms Walsh to work exclusively on morning shifts, Monday to Friday, between October 2017 and April 2018. 3. Conducting an investigation into 10 instances of alleged misconduct by Ms Walsh, said to have occurred between 16 August 2017 and 31 October 2017. 4. Raising "misconduct issues" in the course of proceedings before the NSW Industrial Commission, commenced by the NSW Nurses Association on Ms Walsh's behalf for the purpose of challenging the rostering decision described in (2) above. 5. Disclosing "confidential information" given by Ms Walsh to Nurse Unit Manager, Ms Simpson, in September 2018, namely Ms Walsh's history of depression. 6. Following that disclosure, requesting Ms Walsh's GP to provide an opinion about whether she was "mentally fit" for work and delaying giving the GP the questions to enable that assessment to be undertaken. 7. Delaying determining Ms Walsh's request to take long service leave in August 2018. 8. Failing to grant/delaying approving Ms Walsh's request for paid leave following the death of her father. 9. Delaying recrediting Ms Walsh's long service leave, despite agreeing to do so in the NSW Industrial Commission proceedings. 10. On occasion, miscalculating Ms Walsh's wages and not rectifying those errors within a reasonable period. 11. Giving allegedly false information to the LHD's insurer following a claim made by Ms Walsh in 2018 in respect of an alleged psychological condition.
4. To establish her complaints of victimisation, Ms Walsh must establish in respect of one of more of the above allegations, that: 1. The LHD subjected her to a "detriment", that is, loss or damage that was real and not trivial; and 2. That one of the "real", "genuine" or "true" reasons she was subjected to that detriment was because she did one of the things listed in s 50(1) of the Act: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
5. For current purposes we will assume but not decide that each alleged act of victimisation is capable of being characterised as a detriment.
6. Turing to the question of causation, Ms Walsh must first identify the act listed in s 50(1) said to have triggered the LHD to subject her to the alleged detriment. There is no evidence that the LHD was aware that Ms Walsh intended to make a complaint to the Board before the Board notified the LHD on 11 September 2018 that Ms Walsh had lodged the First Complaint. Nor is there any evidence that Ms Walsh had informed the LHD that its conduct towards her amounted to a contravention of the Act. To fall within s 50(1)(c) there is no requirement that the "person victimised" state that the discriminator has committed an act which would amount to a contravention of the Act. It is enough that the person victimised alleges that the discriminator has committed an act which could amount to a contravention of the Act. Therefore, it is arguable that Ms Walsh's challenge to the LHD's decision to end the 2014 agreement that she be rostered exclusively to work evening shifts, which Ms Walsh describes as LHD's "failure to provide reasonable adjustment", falls within s 50(1)(c) of the Act.
7. Accordingly, the questions posed are: 1. Whether in respect of any of the alleged detriments that took place before 11 September 2018, the evidence supports a finding that one of the "real", "genuine" or "true" reasons the LHD subjected Ms Walsh to those detriments was because she challenged the LHD's decision to end the 2014 agreement? 2. Whether in respect of any of the alleged detriments that took place after 11 September 2018, the evidence supports a finding that one of the "real", "genuine" or "true" reasons the LHD subjected Ms Walsh to those detriments was because she challenged the LHD's decision to end the 2014 agreement and/or made the First Complaint?
8. Ms Walsh readily concedes that she is unable to point to any evidence to support her belief that the reason she was subjected to any of the identified detriments was because she challenged the LHD's decision to end the 2014 agreement or made the First Complaint. She contends that because she can think of no other explanation for the LHD subjecting her to any of the alleged detriments, the only explanation can be that she was being "punished" for her temerity to accuse the LHD of discrimination.
9. A review of the available material reveals that the relationship between the LHD and Ms Walsh deteriorated from about September 2017. In May 2018, an investigation conducted by the LHD found proven four of ten allegations of misconduct relating to Ms Walsh. Two allegations were proven in part; four were found not to be substantiated. The allegations relate in the main to instances where Ms Walsh is said to have been verbally aggressive in the context of challenging the rostering arrangement that came into effect in October 2017. The stated reason given by the LHD for its decision to conduct that investigation - that it had received complaints about Ms Walsh from several managers - appears plausible.
10. With respect to Allegation 1, questioning Ms Walsh's fitness for work and referring her for assessment to Dr Mellick, the stated reason given by the LHD for that decision also appears plausible. That is, receipt of Dr Fraser's initial report which raised concerns about Ms Walsh's fitness for work. In such circumstances, the LHD claimed that its policy, Procedures for Managing Non Work-Related Injuries or Health Conditions, required it to investigate Dr Fraser's concerns. The LHD gave a similar explanation for its decision to request a medical opinion following Ms Walsh's disclosure in September 2017 that she suffered from depression and "was unable to eat or sleep".
11. With respect to the LHD's decision to roster Ms Walsh to work weekdays only between October 2017 and April 2018 (Allegation 2) in circumstances where Ms Walsh had previously been rostered to work weekends, which attracted penalty rates, the stated reason given for that decision - to ensure that Ms Walsh received an appropriate degree of supervision until such time as the misconduct investigation had been concluded - again appears plausible.
12. With respect to the allegations relating to payroll and leave issues (Allegations 7 to 10), the explanation given by the LHD appears plausible: they were the result of administrative errors made by the LHD's payroll unit or a difference of opinion between Ms Walsh and her managers about the proper interpretation of the Award provisions relating to leave entitlements.
13. With respect to Allegation 11 - that the LHD gave "false evidence" to its insurer in connection with Ms Walsh's workers compensation claim - Ms Walsh has failed to articulate the factual assumption on which that allegation is based.
14. That plausible explanations have been given for the LHD subjecting Ms Walsh to the alleged detriments does not establish that these were the real reasons the LHD acted as it did. However, in circumstances where there is no direct evidence that the LHD subjected Ms Walsh to one or more of the alleged detriments because she asserted that its decision to require her to work morning shifts was discriminatory or because she complained to the Board, and the evidence is insufficient to permit that inference to be drawn, the complaints of victimisation must fail. However genuinely held, Ms Walsh's belief is insufficient to discharge the evidentiary burden in respect of causation.
15. It follows that the complaints of victimisation are not substantiated.

Summary

1. The complaints of discrimination on the grounds of disability are substantiated. The complaints of victimisation are dismissed.

Should orders be made under s 108(2) of the Act?

1. Ms Walsh seeks several orders, a number of which are no longer relevant because we have concluded that the complaints of victimisation are not substantiated. Those now relevant, which are sought by Ms Walsh, are an apology, compensation and "written confirmation that I will be rostered on evening shifts".
2. Section 108(2) of the Act states: 108 Order or other decision of Tribunal (1) … (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), 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, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), … (g) decline to take any further action in the matter. …

Claim for compensation for economic loss

1. Ms Walsh seeks an order for compensation of $34,000. This includes an unspecified figure for damages said to be been caused by the LHD's alleged acts of victimisation.
2. It falls to Ms Walsh to establish that the LHD's contravention of s 49D(2) of the Act materially contributed to the claimed economic loss: Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 (Mooney) at [23]-[35].
3. The LHD's decision to roster Ms Walsh to work morning shifts "materially contributed" to Ms Walsh losing income as a result of losing shift penalties payable for evening shifts worked on weekdays. In our view it is proper and appropriate that Ms Walsh receive compensation for that loss. The available material is insufficient to enable us to calculate that loss. We urge the parties to reach agreement about the quantum of loss. To assist the parties in undertaking that task we set out below our view of what should be included in that figure. It must:

• be based exclusively on Ms Walsh's loss of wages from 1 October 2017 to date, and
• not include any amount for loss resulting from Ms Walsh:
• not being rostered on weekends between October 2017 and April 2018,
• being stood down between August 2017 and 3 October 2017,
• having the number of her shifts reduced from six to four per fortnight in May 2019, and
• any loss resulting from the LHD's actions said to amount to victimisation.

1. If agreement is reached the parties may file proposed consent orders within 28 days. If agreement is not reached within 28 days of this decision, Ms Walsh may request the Tribunal to determine the amount of compensation payable to Ms Walsh.

Claim for order that "discriminatory conduct to stop"

1. We have decided that it is appropriate to exercise the power conferred by s 108(2)(b) of the Act and propose to make the following order. "The LHD must refrain from rostering Ms Walsh to work morning shifts and night shifts. This order does not prevent the LHD requiring Ms Walsh to attend meetings, professional development, training or associated activities outside the period 13:00 to 22:00".
2. The parties are invited to comment on the form of the proposed order.

Apology

1. In our view no useful purpose would be served in requiring the LHD to provide Ms Walsh with an apology. We decline to make that order.

Orders 1. The complaints of discrimination on the grounds of disability are substantiated. 2. The complaints of victimisation are dismissed. 3. Within 28 days of the date of this decision, Ms Walsh must notify the Tribunal if agreement is unable to be reached on the amount of compensation payable under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW). 4. Any party wishing to comment on the form of the following proposed order must file and serve brief submissions within 28 days of the date of this decision: "The LHD must refrain from rostering Ms Walsh to work morning shifts and night shifts. This order does not prevent the LHD requiring Ms Walsh to attend meetings, professional development, training or associated activities outside the period 13:00 to 22:00".

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 19 May 2020