Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664

Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 - FMCA 2005 case summary — Zoe

[32]

Jirra Ware is a former employee of OAMPS Insurance Brokers Limited. He brings these proceedings under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). A complaint of disability discrimination in employment was terminated by a delegate of the President of HREOC on 18 June 2004. Mr Ware suffers from Attention Deficit Disorder. He alleges that OAMPS discriminated against him in his employment because of his disability by changing the terms and conditions of his employment, by terminating his employment and by subjecting him to other detriments. He alleges both direct disability discrimination contrary to s.5(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA") and also indirect disability discrimination contrary to s.6 of the DDA. He asserts that OAMPS breached s.15(2)(c) and (d) of the DDA. He also relies upon ss.11 and 123 of the DDA.

The background facts relevant to the terminated complaint are set out in a letter from the delegate of HREOC to Mr Ware's solicitor dated 18 June 2004. OAMPS acquired the company Mr Ware previously worked for on 1 October 2001. Mr Ware claims that after OAMPS assumed ownership of the company his volume of work increased and he was given very little support. He states that he found it difficult to cope and he submitted his resignation in September 2002 but he was persuaded to stay and his salary was increased to $80,000 per annum plus commission. As a result of an internal restructure he was given an assistant, but he claims that the assistant was kept busy with her own portfolio of clients and offered little practical support to him. In early 2003 OAMPS transferred Mr Ware to a technical/marketing role. Mr Ware claims that he was not consulted about the change, nor was he provided with an outline of his role and responsibilities. He states that due to the high volume of work and unrealistic time frames, he struggled to meet deadlines and complete tasks. As a result of these pressures, and other personal problems, he states that he sustained psychological damage and also developed a drinking problem. He had a tendency to consume alcohol at lunch time on Fridays which was affecting his work. He states that he negotiated with his manager that he would not return to work after lunch on Fridays and he would make up the time during the week or on weekends.

Mr Ware sought medical assistance in May 2003 and this led him to being diagnosed with a medical condition and being admitted to hospital on 5 June 2003[1]. He states that the nature of his illness was known to his manager and colleagues. Mr Ware states that in early July 2003, while he was on leave, he received an email from the Parramatta branch manager, Mr Don Crocker, which contained criticisms of his work, advice that he would be placed on probation when he returned to the office and a list of restrictions that would apply to his duties. He claims that he had not previously been informed that there were issues with his performance. Mr Ware returned to work on 14 July 2003, initially for three days a week.

Mr Ware states that at a meeting in the workplace on 17 September 2003 Mr Crocker advised him that he was to be demoted to the position of internal account executive for disciplinary reasons. The new role was to commence on 22 September 2003.

Mr Ware states that he took sick leave on 22 September 2003 due to his depressive illness and he obtained a medical certificate from his treating psychiatrist. He claims that he had no opportunity to provide the medical certificate to OAMPS as he received written advice on

26 September 2003 that his employment had been terminated.

OAMPS denies unlawfully discriminating against Mr Ware on the ground of disability and disputes that Mr Ware's medical condition was the reason for the decision to change the conditions of his employment or the decision to terminate his employment. OAMPS asserts that the company provided a great deal of support to Mr Ware at the time when he appeared to be experiencing personal problems which impacted on his work performance. OAMPS states that there was an arrangement in place whereby Mr Ware left work early once a fortnight to visit a psychiatrist, and management was unaware of the nature of his medical condition until he provided a medical certificate in June 2003.

OAMPS states that Mr Ware was transferred to a technical/marketing role in late January 2003 because he had expressed a preference for more involvement in technical matters as opposed to customer related work. OAMPS claims that the new position was offered to Mr Ware around 25 January 2003 and he confirmed the following week that he would accept the new position. It therefore denies that there was no consultation with Mr Ware or that he had no choice about his new role.

OAMPS states that Mr Crocker sent an email to Mr Ware on 2 June 2003, outlining a series of concerns about Mr Ware's performance and attitude. The email was sent to Mr Ware's home as he was not at work and OAMPS claims that it had not been informed of the reason for his absence or that he was in hospital. The decision to place Mr Ware on probation on his return to work was deemed necessary because of performance and behavioural issues over the preceding 12 months. OAMPS claims that Mr Crocker and Mr Greg Crosby had discussed issues such as attendance, punctuality and interpersonal skills with Mr Ware on several occasions. OAMPS also suggested that Mr Ware's failure to observe company policy and procedures had exposed the company to litigation.

OAMPS confirms that the decision to place Mr Ware in a position with less responsibility and lower pay was conveyed to Mr Ware in a meeting on 17 September 2003 and claims that this decision was based on the performance issues outlined above, not his disability. OAMPS states that it was recognised that Mr Ware needed time to make adjustments to his expenditure and hence the reduction in salary was not to take effect until 20 October 2003.

OAMPS states that Mr Ware did not report for work on Monday,

22 September 2003 and did not advise his manager of the reasons for his absence. OAMPS claims that numerous attempts were made to contact him on his mobile phone, without success, and, when no contact had been made by Friday the decision was made to terminate his employment. OAMPS states that Mr Ware's depressive illness was not a factor in the decision.

The complaint was terminated by the delegate of the President on the basis that an attempt to conciliate the complaint had been unsuccessful.

[37]

In his first affidavit Mr Ware recites his employment history and the facts which form the basis of his complaint to HREOC. In his second affidavit Mr Ware responds to affidavits prepared by the respondent's witnesses. He denies being abusive towards his colleagues although he admits urinating in a waste paper bin. He denies absenting himself from his employment in September 2003 without advising his employer and he asserts that he informed Donald Crocker of his Attention Deficit Disorder in about July 2002. He denies he was given preferential treatment in his employment and he asserts that he addressed Donald Crocker's concerns raised in relation to his performance of duties. He admits taking extended lunch breaks at the Parramatta Leagues Club but asserts that a number of his co-employees also did so and also consumed alcohol on these occasions. He denies exposing OAMPS to the risk of litigation or causing the loss of a client. He denies responsibility for the presence on his computer system of email correspondence containing or referring to pornographic material.

While denying abusive behaviour, Mr Ware admits that he may have been "very direct" in his approach with some staff but asserts that this was due to the pressure of work, coupled with his depression.

I permitted Mr Searle to file in court a third affidavit by Mr Ware detailing his asserted economic loss. In that affidavit, made on 19 May 2005, Mr Ware deposes as to the work he undertook following the termination of his employment with OAMPS on 26 September 2003. He also deposes as to the medical consultations he undertook and the cost of them. He claims $2,490 in medical expenses and $82,681.80 in lost earnings, taking into account his earnings since the date of his termination.

I permitted Mr Searle to lead short additional oral evidence from Mr Ware. Mr Ware states that during the latter part of 2003 he was absent from work on a regular basis because he was being treated as an outpatient at the Northside Clinic three days a week following a period as an inpatient. He states that his working hours were adjusted to accommodate this. He received treatment at the clinic for ten weeks commencing on 14 July. In relation to his absences from work on 1, 8 and 12 September 2003, Mr Ware could only specifically recall that on 12 September 2003 he attended a funeral in Melbourne. He states that he sought leave from Greg Crosby and that leave was granted. He states that on 30 May and 2 June, when he was absent from work, he sent a SMS message to either Mr Crosby or Mr Tyler to advise of his absence. Mr Crocker was his supervisor and Mr Crosby was also in a senior position at the time. I accepted as exhibits Mr Ware's employment agreement[2], his complaint and annexed documents put before HREOC[3], a leave application for 26 days leave commencing on 29 May 2003 signed by Mr Ware on 19 June 2003[4] and a reference relating to Mr Ware signed by or on behalf of Neil Tyler of OAMPS dated 29 September 2003[5].

Under cross-examination Mr Ware was an impressive witness. He had an excellent recall of detail and gave no hint of attempting to evade any question or give a false answer. He admitted that he had had trouble in his personal life and it was this that led him initially to seek help from a psychologist who later referred him to Dr Mastroianni with a preliminary diagnosis of Attention Deficit Disorder. He admitted seeking help with anger management, specifically in relation to his interpersonal skills. He admitted binge drinking on occasions. He first sought help from a psychologist in the first half of 2000. He admitted that at this time, while there were problems in his personal life, he was not having work problems. He stated that he received medication for his Attention Deficit Disorder. He stated that he took the medication.

Mr Ware agreed that in the latter part of 2002 his remuneration had been increased but said that this was a restoration to the position he had been in before his former employer was taken over by OAMPS. He stated that he believed he was entitled to commission after that point of about $5,000 although none had been paid. He admitted that between October 2001 and September 2002 his duties generally stayed the same and said that while he felt stressed, he felt under control and felt that he was coping. He agreed that nevertheless it was possible that he may have resumed binge drinking in mid 2002. He admitted being counselled by Mr Crocker and being sent on a supervisor's training course to help with his interpersonal skills. He denied any specific allegation of rude or obnoxious behaviour by him. He agreed that his binge drinking had recommenced by October 2002. He admitted a conversation with Mr Crosby relating to the desirability of him not returning to work after long lunches but denies the terms of the conversation asserted by Mr Crosby. He conceded that Mr Crocker had not endorsed his absence from work on such occasions. He admitted marital problems from 2001, around the time of the birth of his first daughter[6]. He admits that he was rebuked in July 2003 for not satisfactorily carrying out insurance endorsement work. He admits that he still had alcohol problems and still took long lunches early in 2003. He agreed that OAMPS had arranged for his work to be more office based at this time and that those arrangements were still in place in June 2003 when he entered hospital. He admitted that his father died in May 2003 and that he also lost two half brothers at around the same time. He admitted that at this time his marriage had broken down and his wife and daughter had moved out of the family home and that his wife had obtained an apprehended personal violence order. He agreed that he had had two serious motor vehicle accidents prior to his entry to hospital and that he had been charged by the police. He also admitted driving an unregistered motor vehicle and driving while his licence was suspended.

Mr Ware accepted that the employment conditions he was placed on following his released from hospital were fair. He agreed that he was counselled by his employer in mid September 2003 and that he did not return to the workplace thereafter.

Mr Ware denied ever being reprimanded by Mr Crocker for being rude to other staff. He stated that when he entered hospital in June 2003 his medication was in part increased and was also augmented. He insisted that at this time he was required to use his annual leave as he had exhausted his sick leave entitlements.

In re-examination Mr Ware said that while he did return to the workplace inebriated after "long lunches" he was not the only employee to do so. He asserted that five or six of his fellow employees also drank regularly on such occasions. He states that he did not drink alone, but with colleagues or clients. He states that other employees also returned late from work on Friday afternoons. To his knowledge, no other employees were counselled, had their duties altered, were demoted or had their employment terminated. He said that Mr Crosby suggested to him that he should not return to the office inebriated. He states that he was directed not to return to the office after a Friday long lunch and that he worked on weekends to more than make up for lost time.

In additional cross-examination relating to his third affidavit Miss Henderson asked Mr Ware about the work he undertook for an organisation called D & W Hospitality Consulting. Mr Ware explained that this was a partnership he undertook with his wife and that the documents annexed to his third affidavit set out the amount earned by him by arrangement between that partnership and clients of the partnership. Miss Henderson put to Mr Ware that his latest evidence as to his earnings contradicted statements he had made to Dr Mastroianni on various occasions. Mr Ware explained that the doctor's records of those conversations simply indicated his thoughts at that time, whereas the evidence he now presented set out what had actually happened. Mr Ware stated that the evidence he presented was complete and accurate and provided all documents that were readily available to him.

Mr Ware admitted that on 24 October 2003 he was told of the possibility of obtaining employment with GIO on a salary package of over $100,000. In re-examination he stated that he had been asked to supply a curriculum vitae to GIO which he did but he was not asked to come for an interview and was never offered a job.

Miss Henderson also asked Mr Ware about his medical expenses. He admitted that health benefits would have been claimed in respect of those medical expenses. He also admitted that he would have still needed to see Dr Mastroianni if he had not been dismissed by OAMPS but asserted that the consultations would not have needed to have been so frequent. In re-examination Mr Ware stated that the amounts claimed in his affidavits for medical expenses were amounts unreimbursed from Medicare or any private health insurance.

[38]

Elizabeth Ware is the estranged wife of Mr Ware. She remains married to him but lives apart. Mrs Ware deposes that her husband is a good and caring partner and that she had enjoyed a good relationship with him. She states that he began having difficulties in his family life when he commenced working for OAMPS. She deposes that he worked long hours and was initially denied an office when other employees of equal status had one. She deposes that in July 2002 Mr Ware told her that he had been commended on his work in doing a presentation. She corroborates Mr Ware's resignation in September 2002 which was later retracted. She deposes that in April 2003 Mr Ware became distressed and depressed following the alteration of his job description. She deposes as to a conversation she had with him at this time about his long working hours. She deposes that on a number of occasions she met her husband for lunch at a pub close to the OAMPS premises and that "many people" from the office would also be present, including Greg Crosby.

Mrs Ware deposes that her husband was directed not to attend work by his doctor and that he was absent from work between May and July 2003. While Mr Ware was away from work she had a conversation with Don Crocker and obtained from him by email a sick leave form. She deposes that Mr Crocker told her that Mr Ware's sick leave would not cover all the period of absence and that he would have to use his annual leave.

Mrs Ware deposes as to a further conversation with Mr Crocker on 27 June 2003 when she discussed with Mr Crocker Mr Ware's return to work following his release from hospital and the need for him to attend an outpatient's clinic three days a week on Tuesdays, Thursdays and Saturdays. She deposes that Mr Crocker in this conversation expressed some unhappiness about Mr Ware returning to work before he was "better" and said that his job would need to change and there would need to be an agreement entered into. She deposes to further conversations relating to Mr Ware's return to work with Mr Crocker on 30 June 2003 and 3 July 2003.

Mrs Ware deposes that the demotion of Mr Ware in September 2003 had a detrimental effect on Mr Ware and the family. She was at this time expecting her second child. She deposes that Mr Ware was "devastated". She deposes that after the demotion Mr Ware did not attend work any longer and that on or about 24 September 2003 he was directed by his treating doctor to take more time off work.

Mrs Ware deposes that she gave birth to her second child on 17 October 2003 and that she ceased working for a period of three months thereafter. During that period she and Mr Ware had to rely on their savings and neither was in employment. She denies that Donald Crocker said to her that Mr Ware's behaviour was "appalling" or that it had caused "considerable exposure" to OAMPS. She denies other statements attributed by Mr Crocker to her in paragraph 26 of Mr Crocker's affidavit.

Under cross-examination Mrs Ware contradicted her husband in stating that their marital problems began earlier than the birth of their first child on 21 August 2001. She asserts that the problems began after Mr Ware's former employer was taken over by OAMPS. She admitted that her knowledge of the cause of the problems experienced by Mr Ware was based upon what he had told her. She also admitted that she believed Mr Ware was under pressure at work because of his long working hours but that she acted on a belief in the truth of his statements that he was spending long hours at work because he needed to in order to get his work done. She admitted discussing with Mr Ware the possibility of him resigning from work as a way of obtaining increased pay.

Miss Henderson asked Mrs Ware when she became aware of Mr Ware's drinking problems. She said that this was in late 2001. She insisted that Mr Ware was put under an obligation to use his recreation leave at the time he was in hospital in 2003.

In re-examination Mrs Ware stated that as well as speaking to her husband about his employment issues she had obtained some knowledge from speaking with other OAMPS employees including Neil Tyler.

[39]

Dr Mastroianni is a consultant psychiatrist who has been treating Mr Ware for several years. Annexed to his affidavit made on 1 March 2005 is his curriculum vitae and a report concerning Mr Ware. I accepted at the trial from the curriculum vitae that Dr Mastrionanni was qualified to give opinion evidence. In his report, Dr Mastrionanni states that Mr Ware has a disability arising from a depressive illness, in addition to being diagnosed as suffering from Attention Deficit Disorder. Dr Mastrionanni states that Mr Ware suffered a depressive episode in late 2001. This was after Mr Ware had first been referred to see him in March 2000 with a history that was consistent with a diagnosis of Attention Deficit Disorder since childhood, social anxiety and alcohol abuse. He states that Attention Deficit Disorder is a neurophysiological condition starting in childhood that impairs concentration, executive cognitive function, planning and organisation skills and an ability to inhibit impulses. The severity of this disorder diminishes in adulthood. Dr Mastrionanni states that, since receiving treatment from 2000 onwards, Mr Ware has remained very motivated to improve himself and manage his Attention Deficit Disorder. He was always compliant with medication and attended counselling on a regular fortnightly basis to help manage his anxiety, anger, communication skills and self esteem.

Dr Mastrionanni reports that Mr Ware has used alcohol to reduce his social anxiety throughout his adulthood, especially after the demise of a sporting career in early adulthood. Alcoholic binge drinking was a significant part of his presentation when he first sought psychiatric treatment in 2000. Dr Mastrionanni reports that Mr Ware appeared subsequently motivated and committed to reducing his alcohol use. As a result, he was able to maintain lengthy periods of either abstinence from or controlled use of alcohol during 2001 and early 2002 (prior to the emergence of his depression). He reports that underlying marital difficulties were often inflamed during times of alcoholic intoxication.

Dr Mastrionanni reports on the history of Mr Ware's depressive illness and its sequelae. He confirms that Mr Ware first presented with symptoms of a major depressive illness in late 2001. Symptoms included pervasive depressed and irritable moods, a reduced ability to cope with work stress, reduced energy, social withdrawal and a reduced interest in his usual activities. Symptoms did not improve despite regular counselling. Dr Mastrionanni introduced a trial of medication which produced an improvement.

Dr Mastrionanni recounts family issues impacting upon Mr Ware's condition as well as work stress reported around August 2002. He increased Mr Ware's anti-depressant medication in September 2002 and mood difficulties stabilised. Dr Mastrionanni reports that by early 2003 Mr Ware reported significant anxiety at work. This was associated with frequent alcoholic binges. Dr Mastrionanni also reports marital problems including the apprehended violence order obtained by his wife in April 2003. He also mentions a motor bike accident suffered by Mr Ware in May 2003 and the death of a half brother.

Dr Mastrionanni refers to Mr Ware's hospitalisation at the Northside Clinic in June 2003. He confirms the increase at that time of Mr Ware's medication, and the positive impact of the removal of work stress. At the same time he reports that Mr Ware feared his return to work and his ability to cope with its stressors. Dr Mastrionanni reports on the depressive impact of Mr Ware's return to work, in particular following the letter of demotion in September 2003. He reports that Mr Ware's depression persisted despite the birth of his second daughter in October 2003. He reports that Mr Ware's depressed mood was perpetuated by his perceived sense of failure for having lost his job following the termination of his employment in September 2003, fears about his family's financial position and his ongoing marital problems. He reports on Mr Ware's slow improvement during 2004 and improved position currently.

Dr Mastrionanni states that Mr Ware's prognosis is uncertain. He states that his depressive illness is in remission but that his prognosis will depend upon his ability to remain abstinent from alcohol abuse and his ongoing efforts to address anxiety and anger issues. He reports that Mr Ware is currently fit for work.

Dr Mastrionanni offers the following opinion as to the causes of Mr Ware's depressive condition:

[41]

Dr Mastrionanni also ventures the opinion that the perceived lack of support and eventual termination of his employment by OAMPS during Mr Ware's workplace re-integration did, on the balance of probabilities, exacerbate and prolong his depression and its sequelae as well as cause financial hardship.

Dr Mastrionanni states that Mr Ware attended on 54 occasions with him between October 2002 and September 2004 with each session costing an average of $190, of which $100 was reimbursed by Medicare.

Under cross-examination, Dr Mastrionanni stated that Mr Ware abstained from the use of alcohol between the time of his admission to the Northside Clinic in mid 2003 until 2004, when significant new alcohol abuse occurred. He also stated that while it was not his responsibility to certify Mr Ware's fitness for work in September 2003, Mr Ware had difficulties at the time which meant that he was unfit at that time for full time work. He was, nevertheless, fit to undertake the reintegration programme that had been arranged for him. Dr Mastrionanni stated that he saw Mr Ware on 16 September 2003, at which time Mr Ware had received the letter of demotion sent to him.

I asked Dr Mastrionanni some questions about depression in general and the condition of Mr Ware. Dr Mastrionanni stated that depression can be a disorder in its own right or a symptom of some other disorder. He said that in the case of Mr Ware the depression was a condition in its own right. The condition emerged at the time of the period of significant alcohol abuse that Dr Mastrionanni was aware of in late 2001. He said there was no direct link between the depression and Mr Ware's Attention Deficit Disorder. In his opinion, if there had been a link, the depression would have occurred much earlier. He said that Attention Deficit Disorder makes people more prone to depression but does not necessarily cause it. He did not consider that alcohol was the cause of the depression either, although it was associated with it. He considered that while some work problems were reported by Mr Ware in 2001 these were in themselves insufficient stressors to account for the severe depression. In the doctor's opinion, the depression occurred independently of any particular external stimulus, although he stated under re-examination that work stressors would exacerbate the condition. He considered that the demotion letter received by Mr Ware in September 2003 was an important factor in the exacerbation of the depression at that time.

Mr Ware's evidence was completed by the tender of a bundle of leave records (exhibit A5), a bundle of documents relating to OAMPS' business (exhibit A6) and two emails dated 5 June 2002 (exhibit A7) and 9 July 2002 (exhibit A8). These were evidence of superior work performance by Mr Ware at the time.

[43]

Mr Crocker is the manager of OAMPS with relevant knowledge relating to these proceedings. At the relevant time he was the manager of the North Parramatta branch of OAMPS. He deposes as to Mr Ware's employment details. He deposes as to Mr Ware's employment performance and personal behaviour. Mr Crocker says that he reprimanded Mr Ware on 1 February 2002, 2 June 2003 and on several other occasions between January and September 2002. He asserts that Mr Ware was rude and abusive to fellow staff members.

Mr Crocker deposes that in early October 2002 Mr Ware remained at a hotel all afternoon and returned to the office inebriated. This was the occasion on which he urinated in the wastepaper bin.

Mr Crocker deposes that on a number of occasions he warned Mr Ware by telephone that his drinking was "unacceptable". He deposes that Mr Ware's job description was changed from account executive to technical/marketing and that Mr Ware's workload was reduced at the same time. He deposes that Kerry Banwell, a fellow employee, had complained in August or September 2002 that she did not want to work with Mr Ware as he was rude and "has Attention Deficit Disorder". Mr Crocker states that this was when he became aware for the first time that Mr Ware had this disorder. He deposes that Mr Ware confirmed his condition in approximately October 2002 but stipulated that the information was strictly confidential.

Mr Crocker deposes that he arranged for Mr Ware to have his own office after he complained that he could not concentrate on his work due to distractions from other staff. Mr Crocker deposes that Mr Ware was the only person in his position to have an office of his own.

Mr Crocker deposes that Mr Ware did not earn any commission income during his employment. Mr Crocker deposes that he did not consent to Mr Ware taking off Friday afternoons after "long lunches".

Mr Crocker deposes as to further reprimands given to Mr Ware between November 2002 and January 2003 and as to more "late lunch" problems in January 2003. He deposes as to unsatisfactory work performance between February and June 2003. He states that Mr Ware became "uncaring and disinterested" in his work. He deposes as to unexplained absences from work on 30 May 2003 and 2 June 2003. He deposes as to unsatisfactory performance exposing OAMPS to a potential liability and causing the loss of a client in mid 2003. He deposes that following his return to work Mr Ware failed to attend work on 1, 8 and 12 September 2003 without explanation. On 13 September 2003 Mr Ware was demoted. There were further unexplained absences on 22 and 24 September 2003.

I permitted Miss Henderson to lead short additional oral evidence from Mr Crocker. She asked him about "long lunches" and the workplace attitude to them. Mr Crocker stated that there were instances of tolerated long lunches but the degree of toleration was "fairly restricted". He said that if he became aware of someone taking long lunches he would "have a word to them". He said that Mr Ware consistently took long lunches and that some others also did (including Mr Tyler). He said that in addition to Mr Ware, there were instances of other employees being reprimanded in writing for taking excessive long lunches and that one other employee had received written warnings and that his work had suffered. He had since left OAMPS.

Under cross-examination Mr Crocker accepted that clause 6 of Mr Ware's employment agreement (exhibit A1) covered sick leave. He also accepted that clause 10 of the agreement dealt with settlement of disputes and that that procedure had not been followed in the case of the termination of Mr Ware's employment. He was taken to clause 11 dealing with notice of termination and agreed that that notice had not been given. He agreed that by acting prior to the expiry of the employment contract on 1 October 2003 OAMPS had been able to avoid paying termination benefits to Mr Ware but denied that this was a consideration in the timing of the termination of his employment. Mr Crocker stated that he had made the decision to terminate Mr Ware's employment in consultation with Mr Romano (a HR manager with OAMPS).

Mr Searle challenged Mr Crocker on a number of aspects of his affidavit and he resisted attacks upon his credibility. He stated that Mr Ware had a "fiery tempter" and that it never occurred to him that this might be associated with a disability. He stated later that he had drawn no link in his own mind between Mr Ware's employment problems and his health problems. This was so notwithstanding paragraph 4 of his letter to Mr Ware dated 14 July 2003 setting out the conditions for his return to work following his hospitalisation.

Mr Crocker was questioned at length by Mr Searle about Mr Ware's absences from employment. Mr Crocker insisted that the absences he referred to in his affidavit as supporting disciplinary action were unexplained and unauthorised. He conceded that the absences may have been explained after the event and that leave might have been granted for them after the event. He denied that there had been any contact with him on the dates of the absences referred to to explain the absences.

Mr Crocker conceded that the documents annexed to his affidavit did not directly support the allegations against Mr Ware contained in paragraphs 24 and 25 of his affidavit. He nevertheless maintained that Mr Ware had put OAMPS at risk through his handling of the two insurance covers referred to.

Mr Crocker stated that he met Mr Ware on 15 September 2003 to counsel him concerning his demotion. There was one other person in attendance. He conceded that he had not offered counselling to Mr Ware through the HR area of OAMPS but stated that this was always available as was made clear in the employee handbook.

In relation to the absences from the workplace which Mr Crocker gives as the reason for Mr Ware's dismissal, Mr Crocker conceded that a medical certificate had been received from Dr Mastroianni stating that Mr Ware was unfit for work for the relevant period. However, Mr Croker stated that he had not seen the letter prior to the dismissal.

Mr Crocker was asked about paragraph 30 of his affidavit. He stated that the "straw that broke the camel's back" leading to the demotion of Mr Ware were the absences from work on 1, 8 and 12 September 2003. He accepted that annual leave may have subsequently been granted for these absences but stated that the absences had not been explained "at branch level". Mr Crocker had not seen any link between those absences and Mr Ware's medical condition. Mr Crocker also stated that a factor in the demotion decision was pornographic email received by Mr Ware on his office computer, although that was not made clear in his affidavit.

Mr Searle asked Mr Crocker about the absence of other employees from work on "long lunches". He accepted that Vanessa Leahey had taken long lunches excessively and stated that she had been reprimanded. He also stated that Ken Scott was a "continual offender" who had been reprimanded. He also stated that Neil Tyler had taken long lunches excessively. He denied that any of the other employees named by Mr Ware took excessive long lunches, with the exception of Phil Reithburger, who had been reprimanded, and who had not taken such long lunches as Mr Ware. He stated that two employees had been known to return to work drunk and that they had been reprimanded. He did not consider that their work had suffered. He stated that Mr Ware was not unique in his conduct in this regard but that there were stronger obligations upon him because of the potential adverse impact on clients. He stated that Mr Ware was the only employee that he knew had been receiving pornographic emails and that this came to light during the long period of Mr Ware's absence in hospital because email was automatically diverted to Mr Crocker.

I asked Mr Crocker questions about his reasons for the demotion and dismissal decisions. He agreed with me that the absences referred to in paragraphs 29 and 31 of his affidavit were very important factors but he said that they were not the only factors. He regarded the problems concerning Mr Ware encountered prior to his hospitalisation in mid 2003 as having continuing relevance and also took into account the pornography issue. He stated however that the pornography issue was a relatively minor one which would not in itself have led him to dismiss Mr Ware.

I asked Mr Crocker why there appeared to be no assessment of the performance of Mr Ware against the five conditions imposed upon him when he returned to work following his hospitalisation, as set out in the letter dated 14 July 2003. Mr Crocker said that this was because there was no work undertaken in order for an assessment to be made. In further cross-examination by Mr Searle, Mr Crocker said that a factor in this was that Mr Ware was working part-time following his release from hospital. Another factor was his absences from the workplace at other times. I asked Mr Crocker why there was no mention about unexplained and unauthorised absences in the letter dated 14 July 2003. Mr Crocker said that the issue was so fundamental that it did not need to be specifically mentioned in that letter[7].

[44]

Mr Tyler deposes that he has known Mr Ware since the 1990s and deposes as to changes in employer that led ultimately to the acquisition of the business by OAMPS. Mr Ware was initially employed as an external account executive, which role was continued within OAMPS for a time. He deposes that Don Crocker changed Mr Ware's position to be an internal position reducing his client contact. He deposes as to a strong relationship with Mr Ware. He deposes that following the takeover by OAMPS Mr Ware's demeanour and ethic were good. However, he deposes that Mr Ware's ability to achieve results deteriorated over time. He deposes that Mr Ware tried to take on too much and assist everyone. He deposes that Mr Ware became upset by his inability to complete all his work or his inability to complete work to the standard he required of himself.

Mr Tyler deposes that while he was aware, before the OAMPS takeover, that Mr Ware took medication, he did not know what it was for. He was not aware at any time that Mr Ware suffered from depression. He deposes as to Mr Ware sleeping in the office and increasing alcohol consumption. He deposes as to Mr Ware's behaviour "intimidating" female staff.

Mr Tyler ventures the opinion that Mr Ware's problems came about as a result of his move from a small office to a big office and as a result of Mr Ware coming to the view that his job was unrewarding and unrecognised.

I permitted Miss Henderson to lead short additional oral evidence from Mr Tyler. He stated that on occasion he went to lunch with Mr Ware and that this might be between two to six times a month. They drank on such occasions but not always. He denied returning to work inebriated himself. He said that "external staff"[8] had no specific time constraints on their attendance at the workplace. Other external staff included Mr Crosby. Staff would sometimes take a long lunch break. Some staff would take a long lunch break more regularly than others. He was not aware of any staff other than Mr Ware being adversely affected in their employment as a result of taking long lunches and drinking alcohol.

Under cross-examination Mr Tyler impressed me as an honest and frank witness. He admitted that while he did not become directly aware of Mr Ware's depression until some time in 2003, another employee had earlier commented on depression and linked the condition to Mr Ware.

Mr Tyler was asked about paragraph 7 of his affidavit. He said that he was dependent upon what the female staff member involved told him. He said that there had been a clash between Mr Ware and a female staff member. He said that there was friction between the two. Based upon what he was told he believed that Mr Ware's response had been abnormal. He had intended to refer to only one incident at this point in his affidavit.

Mr Tyler was shown exhibit A4 and agreed that this was the reference he had provided for Mr Ware and that he believed it was true at the time he made it.

In re-examination Mr Tyler said that he could not be sure that Mr Ware's "explosions" were limited to one incident with Ms Banwell. He said that he believed that other female employees felt uncomfortable or intimidated around Mr Ware.

[45]

Mr Crosby commenced employment with OAMPS on 1 May 2000 as sales manager, broking. He deposes that Mr Ware's work role changed in around July 2003 to a research position. He deposes that he did not agree to Mr Ware not returning to work after lunch on Fridays. He deposes as to a conversation he had with Mr Ware on 23 December 2002 concerning "long lunches". He also deposes as to a conversation he had with Mr Ware on 24 January 2003 about his relations with his assistant, Alison Kerr. He deposes that on another occasion he told Mr Ware that his behaviour was "not acceptable". He deposes that on this occasion Mr Ware raised his voice, stood up and glared at him in a manner which made him feel personally threatened. He deposes that Mr Ware never advised him of any illness.

I permitted Miss Henderson to lead additional short oral evidence from Mr Crosby. He was asked whether there was a culture of long lunches in 2002 and 2003 at OAMPS. He said that there were certainly occasions involving a few individuals (perhaps two or three) who on irregular occasions took long lunches and drank alcohol. He said that the work of some of these employees (in addition to Mr Ware) did as a result suffer.

Under cross-examination Mr Crosby said that other employees who sometimes drank at long lunches were Ken Scott, Neil Tyler and Phil Reithburger. He was asked whether he took long lunches and he said occasionally he did and that he would drink alcohol. He also admitted that Michael Twogood and Vanessa Leahey occasionally attended such long lunches but were not regular attendees. He felt that the work of Ken Scott had suffered and that Neil Tyler's work had also suffered although to a lesser extent. He was the supervisor of Neil Tyler and not Mr Scott. He was Mr Ware's supervisor in 2002 and 2003 and he sought in that role to monitor, help and encourage him.

Mr Crosby denied ever agreeing to Mr Ware not returning to work on Friday afternoons. He said that he had asked Mr Ware to call him if he got "caught out" on occasions. He said that he had stressed that it was not an "open invitation" not to return to work on Friday afternoons.

Mr Crosby was shown annexure A to his affidavit, which was a record of incidents occurring in January 2003. Mr Crosby was asked about his record and said that it was not a complete record of all incidents. Mr Crosby said that he ceased recording incidents because he had referred the issue to Mr Crocker and that Mr Crocker had indicated that he would take some action. He recalls saying to Mr Crocker that things were not improving but said that he got little feedback from Mr Crocker.

Mr Crosby was asked whether, following his report to Mr Crocker, he regarding the problem as Mr Crocker's. He stated that he got the impression that Mr Crocker would handle it. He said that he reported his concerns to Mr Crocker both before and after January 2003. He had not raised the issue with the HR area of OAMPS although a Mr Rob Romano had spoken to him after Mr Ware had left OAMPS.

The respondent's evidence was completed with the tender of exhibit R1, which is a memorandum to Mr Crocker from Mr Scott dated 16 February 2004 relating to the insurance cover referred to paragraph 25 of Mr Crocker's affidavit.

[49]

This was not accepted by the rest of the High Court. Gleeson CJ held that a p.5, paragraph [11], the comparison required by s.5(1) of the DDA was with "violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. ... The required comparison is with a pupil without the disability; not a pupil without the violence."

Justices Gummow, Hayne and Heydon reached the same conclusion in paragraphs [214], [223], [224] and [229] on pages 38, 39 and 40. The comparison to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or not materially different".

The circumstances attending the treatment given (or to be given) to the disabled person must be identified and then a comparison 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. In this process, their Honours found, it would be artificial to exclude from consideration circumstances because they are identified as being connected with that person's disability; in any case, there was no basis in the wording of the statute for excluding such circumstances.

In short, s.5(1) requires comparison with a person without the disability in the same position in all material respects as the aggrieved person.

The case for the complainant failed, in the view of the majority, because the conclusion reached about the reason for the treatment (the suspension and then exclusion) were seen as determinative of the question of less favourable treatment. The circumstances surrounding the student's treatment were not identified, nor was there any determination of how a person without a disability would have been treated in circumstances the same or not materially different.

The judgment of Gummow, Hayne and Heydon JJ at [236] made the point that distinctions between motive, purpose or effect do not assist in determining whether or not discrimination occurred "because of disability". The central question will always be, Why was the aggrieved person treated as he or she was? While motive, purpose or effect all bear on this question, it is ultimately a question of fact in a given case.

The minority judgment of McHugh and Kirby JJ at paragraphs [160] and following support the view that while motive is a factor the question for the court must be what the real reason for the act was. This approach has been adopted also by the Full Federal Court in Forbes Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (5 May 2004) at paragraph [63] and should be followed by this Court.

Gleeson CJ found that the question before the court was the lawfulness of the conduct of the school and with the true basis of the decision to suspend and then expel the student. At paragraph [14] of his decision, His Honour the Chief Justice determined that the expressed and genuine basis for the decision was the danger to other pupils and staff constituted by the pupil's violent conduct and the responsibilities of the school to those people.

His Honour continued at [15]:

[64]

Discrimination by an employer against one of its employees is relevantly unlawful if the employer discriminates against the employee in the terms or conditions of the employment of the employee (s.15(2)(a)), by denying the employee access, or limiting the employee's access to promotion, transfer or training, or to any other benefits associated with employment (s.15(2)(b)) or by subjecting the employee to "any other detriment" (s.15(2)(d)) or by terminating the employment relationship (s.15(2) (c).

The expression "terms and conditions of employment" in s.15(2)(a) is not restricted to the matters contained in the contract of employment, but is designed to encompass all demands, requirements, benefits and concessions in the actual employment which the employee must comply with or can accept: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 55. Similarly, the expression "any other benefits associated with employment" is not limited to legal entitlements of employees, but extends to any advantage or opportunity generally provided by an employer to an employee: Leonard v Youth Hostels Association of Australia (1995) ECO 92-763 at 78,651.

The word "detriment" for the purposes of s.15(2)(d) has a broad meaning and can include an disadvantage of any kind, as long as that disadvantage is significant in the sense of being not trivial: Leonard v Youth Hostels Association of Australia (1995) ECO 92-763 at 78,651. The term "detriment" is wide enough to encompass financial disadvantages and any other limitations of the type of work undertaken by an employee. For example, in Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [44], the Tribunal found that the actions of the employer in denying an employee access to overtime constituted a "detriment" even though it caused no financial loss due to the receipt of workers compensation payments. Detriment is not be measured by financial loss alone. Loss of opportunity, particularly when it contributes to insecurity or other suffering is also "detriment" within the meaning of the legislation.

It is submitted that the actions of the respondent in changing the applicant's duties as described in the Description of Events document.

Imposing work restrictions on the application from 14 July 2003 constitute unlawful discrimination in the terms and conditions of his employment, in denying him access, or limiting access, to benefits associated with employment and/or in subjecting him to other detriments as follows:

[68]

To demonstrate that the relevant treatment took place "because of" or "on the ground of" a person's disability requires an examination of the real reasons or grounds for the conduct: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 63 and Purvis v Department of Education [2003] HCA 62; (2003) 78 ALJR 1 at [166] and also [236]. Section 10 of the DDA makes clear that the disability need only be one of the reasons for the relevant conduct. It is enough if the unlawful consideration played "a causative part" in the decision of the alleged discriminator: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 63.

Direct discrimination will also extend to circumstances in which a person is discriminated against on the ground of a "characteristic" imputed or appertaining generally to persons of a nominated ground of discrimination: see, for example, Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 at [168]. If it is imputed that a person with a particular disability is unable to perform work, then the person will have been discriminated against "because of" or "on the ground of" the disability: see Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [52].

The actions of the respondent in imposing restrictions upon the work of the and other conduct constituted treatment which was less favourable than the respondent treats or would have treated a person without the applicant's disability in circumstances that are the same or not materially different: s.5(1). For example in Trindall v NSW Commissioner for Police [2005] FMCA 2 (5 February 2005) the imposition of work restrictions on the applicant were held to be unlawfully discriminatory in that they were known to be unnecessary and were imposed 'on the ground of' or 'because of' the disability: paragraphs [168] to [170].

The proper comparator is a person who does not have ADD and depression, but would have a position and responsibilities within the respondent equivalent to that of the applicant ("the comparator"): see the approach in Purvis v Department of Education [2003] HCA 62; (2003) 78 ALJR 1.

There is ample evidence before the Court for it to be comfortably satisfied that the treatment of the applicant was less favourable than the manner in which the respondent would have treated another employee without the disabilities of the applicant:

[69]

a)

In September 2002, the applicant had resigned because the respondent failed to provide to him adequate support to enable him to cope with the considerable growth in the volume of his work: paragraph (3) of the Description of Events document.

b)

When his duties altered in about April 2003 (paragraph (9) of the Description of Events document) although he liked the duties the failure to provide proper support to him resulted in the difficulties highlighted by the applicant at p5 of the Description of Events document, the end of paragraph (9) and paragraph (10). This is consistent with his evidence in cross-examination.

c)

Specifically, the changes to the applicant's work duties in or about April 2003, including the loss of the use of an assistant caused the applicant to not be able to meet deadlines, complete tasks in an organised and comprehensive manner, and communicate information in a timely and effective manner: Description of Events, paragraph (9). This change also deprived him of the opportunity to earn the commission component of his remuneration: Description of Events, paragraph (8).

d)

The applicant was expected to meet his budget but no budget was ever provided to him, despite repeated requests. In addition, the applicant was never given any clear direction as to his responsibilities: Description of Events, paragraph (10) (ii)

e)

No job specification reflecting the changed role was ever provided to the applicant: Description of Events, paragraph (10) (iii).

f)

From April 2003 until the termination of employment, the applicant was expected to complete tasks within unrealistic timeframes: Description of Events, paragraph (11).

g)

The content of (a) to (f) above in the applicant's evidence was never contradicted in evidence or challenged in cross-examination.

h)

After the applicant's return to work after his hospitalisation and treatment for depression, the respondent imposed, without any discussion or consultation, work restrictions on the applicant as set out in the July 2003 letter(s) at Annexure "C" to the affidavit of Jirra Ware dated 15 July 2004, a letter dated 14 July 2003, and Annexure "B" to the affidavit of Jirra Ware dated 13 May 2004, the same letter dated 8 July 2003.

i)

The evidence does not support any contention (nor did the respondent advance any) that the work restrictions imposed upon the applicant were reasonable or necessary having regard to the applicant's condition or any operational requirement of the respondent.

j)

The work restrictions comprised a significant and unilateral alteration (and downgrading) of the applicant's duties and also of his status and autonomy in the organisation: see the applicant's evidence contained in the document entitled Description of Events at paragraph (9) as to his duties before hospitalisation and at (19) for his restricted duties thereafter. See also the July letter(s).

k)

It is clear that the respondent through Mr Crocker would have dismissed the applicant from employment because of certain conduct. The evidence shows that this conduct was entirely caused by the disabilities from which the applicant suffered. Instead of dismissal at this time, and in recognition of his illness, these restrictions were imposed.

l)

Consequently, the restrictions were imposed by the respondent "on the ground of" or "because of" the applicant's disabilities.

m)

Towards the end of paragraph 5 of the letter (prior to the enumerated restrictions) Mr Crocker indicates that failing the rules set down for the applicant "could ultimately end in dismissal". It is only "could", not "will".

n)

By letter dated 13 September 2003 from Mr Romano, Group Human Resources Manager for the respondent, (at paragraph 3) it is stated that the applicant has not been able to produce the expected satisfactory results, meet agreed timeframes or display a positive approach to the earlier implemented measures (the work restrictions) designed to assist him. As a consequence, the applicant is further demoted in terms of his role and duties and also has his remuneration reduced from $80,000.00 (plus commission) to only $45,000.00 to be effective from 20 October 2003.

o)

In cross-examination, Mr Crocker indicated that the applicant's performance had not been measured by the respondent against the criteria set down for him in the July letter. Mr Crocker explained that this was because (due to the work restrictions) the applicant had not been able to perform sufficient work in order to be so assessed. In other words, the applicant had his remuneration slashed because he could not "produce the expected satisfactory results" even though his severely restricted duties ensured that this was so. This confirms the evidence of the applicant at paragraph (20) of the Description of Events document that the restrictions placed upon him made the performance of his duties "impossible." It is also significant that no examples were given (either by way of document or oral testimony by Mr Crocker) of any failure by the applicant to "meet agreed timeframes" in respect of duties performed between July 2003 and 13 September 2003.

p)

From about 10 September 2003, the applicant was not fit for work due to his continued illness. See the letter of Dr Mastroianni dated 24 September 2003 (Annexure "B" to the affidavit of Jirra Ware dated 14 July 2003) indicating that on this date the applicant had not been fit for work due to depression for two weeks and would likely not be fit for work for another two weeks. This explains the absences from work on 22 and 24 September 2003 complained of in the affidavit of Mr Crocker at paragraph 31. In any case, the leave records of the respondent show that on these days the applicant was credited with valid sick leave.

q)

The applicant in his evidence states that his employment was terminated before he could provide this letter of Dr Mastroianni to his employer: paragraph 15 of the affidavit of Jirra Ware dated 14 July 2004, and paragraph (22) of his evidence in the document entitled Description of Events.

r)

Mr Crocker in his oral evidence says he did not receive the letter prior to the termination of the applicant's employment. Significantly, he also stated that even if he had it would not have changed his view or his recommendation to the respondent to terminate the applicant's employment.

s)

However, the evidence of Dr Mastroianni indicates that the respondent did in fact receive the letter of 24 September and knew its content prior to the termination of employment. See the report of Dr Mastroianni at page 4, paragraph three, fourth sentence from the end of the paragraph: "OAMPS Pty Ltd terminated Mr Ware's employment after receiving my medical certificate in late September 2003." Dr Mastroianni was not challenged on this evidence. Nor has the respondent brought evidence from Mr Romano to the contrary.

t)

The letter from Dr Mastroianni is addressed to Mr Romano. The evidence of Mr Crocker is that Mr Romano was the more senior person in the organisation with whom he dealt in relation to issues with the applicant. Mr Crocker conceded that Mr Romano could have received the letter. On the basis of the evidence, the court should be comfortably satisfied that the respondent did in fact receive this letter before terminating the applicant's employment.

u)

By letter dated 26 September 2003, the respondent terminates the applicant's employment because of his failure to respond to the contents of the letter dated 13 September 2003 (which letter does not in its terms call for any response from the applicant), and also because of his unsatisfactory "attendance and commitment to the company". This is despite the fact that each absence was explicable and justified, apart from attendances at funerals by the applicant's disability, and covered by leave entitlements. In addition, the respondent has not shown that the absences of the applicant did or would cause any real difficulty or prejudice to the respondent such that by reference to the respondent's activities its actions could be judged to be reasonable.

v)

It is submitted that this Court should be comfortably satisfied that each of the actions taken by the respondent were "on the ground of" or "because of" the applicant's disability. The "real reason" disclosed by the evidence is that the employer took the steps it did because of its perception of the applicant's conduct, work performance and absences from work. To the extent that this perception was valid (and it is also submitted that as set out in these submissions in part the perception of the respondent was not valid) it was a direct result of and attribute of the applicant's disability.

w)

It is submitted that the respondent would not have treated another comparable employee without the applicant's disabilities in this way. There is no evidence that any other comparable employee was, or in circumstances that are not materially different would have been, treated in this way.

[70]

The inherent requirements defence set out in s.15(4) of the DDA, if invoked by the respondent, would not provide a complete answer to the present application. Section 15(4) provides only the conduct in contravention of s.15(1)(b) or s.15(2)(c) is not rendered unlawful if the person is unable to carry out the inherent requirements of the particular employment. That is, a respondent may only rely upon the inherent requirements defence where the claim concerns a refusal to employ or dismissal from employment, not where discrimination has taken place concerning the terms and conditions of employment, benefits of employment or other detriments: see Coleman v Commissioner of Police [2001] NSWADT 34; (2001) EOC 93-133.

In any case, the respondent has not to date asserted that the applicant could not fulfil any inherent requirement of the employment.

The evidence does not support any contention that the applicant was unable to return to his pre-hospitalisation duties. Nor does the evidence disclose any necessity on the part of the respondent to impose the restrictions outlined in the July letter(s).

The applicant had been in hospital with his illness. On the advice of his doctor, a gradual reintegration to his usual hours of work was proposed, which would also permit him to undertake an outpatient clinic to monitor his depression for ten weeks. The applicant would attend work three days a week. This was accepted by the respondent. See the evidence of Jirra Ware at paragraph (16) of the document entitled Description of Events; the affidavit of Elizabeth Ware at paragraphs 13 to 15; and also the oral evidence of Dr Mastroianni.

It is unchallenged evidence that the applicant returned to work on Monday 14 July 2004, and that he undertook the outpatient clinic from that week on Tuesdays, Thursdays and Saturdays. A ten week period would run up until the end of September 2004.

Upon his return from hospital, and although the respondent did make an adjustment in favour of the applicant regarding days and hours of work, the respondent nevertheless discriminated against the applicant in failing or refusing to investigate what duties he could perform and instead unilaterally determining to subject the applicant to the work restrictions contained in the July 2004 letters.

This is contrary to the proper and fair approach.

The respondent does not contend that it had no alternative but to do this. There is no suggestion that the applicant was not good at performing the role and duties that he had up until this time. For example, see Exhibits "A7" and "A8" wherein the applicant's work is praised by Mr Crocker and the evidence of Mr Neil Tyler.

Regarding the performance of his duties, the letters of July 2004 refer to an "exposure to legal action" but contain no details which would have permitted the applicant to respond. The letter also contains an allegation of lying against the applicant, which is also not particularised. The letter of 13 September 2004 refers to "possible professional indemnity exposures to the company" but once more this is not particularised. In paragraphs 24 and 25 of his affidavit, Mr Crocker deals with this subject matter. The applicant in his reply affidavit of 13 May 2005 denies Mr Crocker's assertions. The applicant was not challenged on this evidence.

In respect to the Kruusmagi Crash Repairs issue, there is nothing to substantiate that the respondent was "forced" to pay the money. Indeed, the material tendered by the respondent indicates that there is a denial of liability by the respondent. Any settlement must be seen as a purely commercial decision and not one forced upon them by any act or omission of the applicant.

It was always open for the respondent to contact the applicant to discuss what may be suitable duties and to obtain more information about his health if necessary. The respondent did not do so.

The work restrictions which were imposed upon the applicant were unfair, relevantly discriminatory and unlawful.

In light of these circumstances, it is open to the Court to find that respondent sought to exploit the circumstance of the applicant's medical condition to deny him benefits derived from his employment and ultimately seek to have him removed from his employment.

For these reasons, the applicant submits that the respondent has directly discriminated against the applicant for the purposes of ss.5(1) and 15(2) of the DDA.

Indirect discrimination

Further, and in the alternative, the applicant submits that the conduct of the respondent constituted indirect discrimination for the purposes of the DDA. Indirect discrimination occurs in circumstances dictated by s.6 of the DDA which provides as follows:

6 Indirect disability discrimination

For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

[82]

The applicant was also required by the respondent to complete tasks within unrealistic timeframes.

After his return from hospitalisation, the requirement or condition is the restrictions outlined in the July letter(s) combined with the requirement to "produce the expected satisfactory results" and "meet agreed timeframes". This requirement was described by the applicant as "impossible" which is, in essence, confirmed by Mr Crocker in cross-examination: see paragraph 128 (o) above.

The decision to terminate the employment of the applicant was taken because of his "attendance and commitment to the company". The requirement or condition imposed here by necessary implication, and supported by the evidence of Mr Crocker to this Court, was that the applicant was required to attend his place of work even if not medically fit to do so.

Substantially higher proportion - s.6(a):

The next step in determining whether there has been an act of indirect discrimination under s6 of the DDA is to identify whether a "substantially higher proportion of persons without the disability comply or are able to comply" with the requirement or condition.

In order to determine this question, it is necessary to identify an appropriate base group, against which it can be said that a substantially higher proportion of persons without the disability are able to comply with the requirement or condition: Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 per Deane and Gaudron JJ at 178-9; Dawson J at 187.

The selection of a base group will involve a mixed question of fact and law and will vary, according to the factual context Commonwealth Bank v HREOC (1997) 150 ALR 1 at 42, per Sackville J. The selection of the base group should be calculated to reveal the significance, if any, of the particular disability to compliance.

In the present case, the base group would consist of other employees of the respondent. The base group provides a pool against which the significance of the applicant's disability can be measured. If all (or even most) of the employees in the base group except the applicant are able to comply with the requirement or condition, and the only material difference between those persons and the applicant is the applicant's disability, then the requirement of a substantially higher proportion in s.6(a) of the DDA will be met.

Having regard to the various requirements or conditions imposed upon the applicant by the respondent, it is submitted that this Court should be comfortably satisfied that a substantially higher proportion of employees without ADD and depression (and the consequent unfitness for work) would be able to comply with the requirements. This is, of necessity, a hypothetical exercise in that no other employee had such requirements or conditions imposed upon them.

Not reasonable - s.6(b):

The next step in determining whether there has been an act of indirect discrimination under s.6 will be to consider the reasonableness of the requirement or condition.

The reasonableness of a requirement or condition will be determined by weighing all relevant factors, which will differ from case to case: Commonwealth Bank v HREOC (1997) 150 ALR 1 at 33, per Sackville J. The test of reasonableness "is less demanding than one of necessity, but more demanding than a test of convenience": Secretary, Department of Foreign Affairs and Trade v Styles and Anor [1989] FCA 342; (1989) 88 ALR 621 at 634 per Bowen CJ and Gummow J; Waters v Public Transport Corporation at 395 per Dawson and Toohey JJ.

In Styles v Secretary Department of Foreign Affairs and Trade [1988] FCA 364; (1988) 84 ALR 408 at 429, Wilcox J considered the approach to determining reasonableness in the context of the then s.5(2) of the Sex Discrimination Act 1984 (Cth) which was in almost the same terms as s.6 of the DDA.

Justice Wilcox said that first, it is necessary to `ascertain the reasons underlying a respondent's insistence upon the relevant requirement or condition' and then ask `whether, having regard to such discriminatory effects as it is shown to have and considering the question in a practical and not merely theoretical way, it is, under all the circumstances, objectively justified.'

In the Full Court, Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621 at 634 agreed with the Wilcox J approach and said:

[95]

The applicant clearly suffered very significant injury to his feelings and emotional and psychological distress as a result of the conduct of the respondent constituting unlawful discrimination. This case warrants an award of damages that properly reflects the extent of that damage.

Economic loss

The applicant claims damages for economic loss he has suffered as a result of the gap in his earnings between what he did in fact earn and what he would have earned but for the discrimination: see, for example, Boreland v Brambles Security Services Limited [2000] NSWADT 147 at [101].

In this matter, the applicant submits that the Court can ascertain the loss of earnings by reference to the applicant's evidence contained in his affidavit of 19 May 2005. As the applicant was employed on $80,000.00 (without factoring in any commission), the total amount that would have been paid to him between the date of termination at 19 May 2005 was some $131,282.00. The applicant has made significant efforts to mitigate this loss and has done so in the amount specified at paragraph 8 of the affidavit of the applicant dated 19 May 2005.

Although in cross-examination there did appear to be a record of earnings in May 2004 not included in the documentary material attached to his affidavit of 19 May 2005, the material provided to this Court is sufficient to quantify the economic loss occasioned to the applicant by the conduct of the respondent as that missing amount is in the same order as other records included in evidence before this Court.

There was some challenge to the evidence of the applicant regarding the costs of his medical treatment. The applicant estimates the cost of consultations with Dr Mastroianni after the Medicare rebate as being $50.00 per session.

In the penultimate paragraph of the report of Dr Mastroianni the total cost of each consultation is specified as being $190.00 with $100.00 reimbursed by Medicare, leaving the applicant to pay $90.00 for each consultation. The total cost contained in the report of Dr Mastroianni is in the order of $4860.00.

While not all of this amount would be referable to the unlawful discrimination by the respondent, it is submitted that, on the basis of the evidence before this Court it would be comfortably satisfied that a substantial proportion is so referable.

[99]

(c) Less favourable treatment

Purvis[10] indicates that the relevant question is how, in those circumstances, the employer would have treated an employee without the applicant's disability. Gleeson CJ was of the opinion that the relevant circumstances include the respondent's responsibility for the welfare of others[11], which in the present case would mean the respondent's other employees.

The answer to the question is self-evident: any employee who behaved as the applicant did would undoubtedly have been treated as the applicant was treated.[12]

The applicant was required to prove that the respondent treated him less favourably than it would have treated another employee who behaved as he did.[13] He has failed to do so. His case, at its highest, addressed only a very limited part of the circumstances which the Court is required to take into account: he gave evidence that other employees consumed alcohol at lunch and sometimes returned late, and that as far as he was aware they were not disciplined for doing so. The evidence before the Court does not establish that those employees were treated more favourably than the applicant: Mr Crocker, who was responsible for the management of the branch, gave evidence that those persons were reprimanded and were given written warnings. As the applicant acknowledges, Mr Crocker also pointed out that "no other employee was in the same category as the applicant in this regard".[14]

(d) Because of the person's disability

Given the answer to (c), it is unnecessary to answer the "central question .... why was the aggrieved person treated as he ... was".[15] However, the answer is that the applicant was treated as he was because of his unsatisfactory work performance, his interpersonal problems with other staff, and his attendance record.[16]

The motives of the respondent are at least relevant to, and possibly determinative of this issue.[17] Mr Crocker, who made the decisions about the applicant's change of duties in February 2003, his demotion and his eventual termination withstood all suggestions in cross-examination that he had been motivated by the applicant's disability, or that he had attributed any of the applicant's behaviour to Attention Deficit Disorder or Major Depression. At the time when he took the decision to terminate the applicant's employment, Mr Crocker had not seen Dr Mastroianni's 24 September 2003 letter. He said that did not, in any case, think that depression caused the applicant to behave as he did.

Indirect discrimination

(a) The relevant base group

The respondent agrees with the applicant that the relevant base group of persons to be considered when deciding whether the applicant was subjected to indirect discrimination is the other employees of the respondent.[18]

(b) The requirement or condition

"The relevant requirement or condition must be one imposed not only on the applicant but also on the class of other persons to whom the applicant is to be compared".[19] It will be "facially neutral ... and imposed on a class of persons who are not disabled as well as the applicant", but be one "which potentially might adversely upon the applicant by reason of [his]disability."[20]

The applicant has not identified any requirement or condition which falls within the above description. No requirement or condition of that nature has emerged in the course of the evidence.

It is the applicant's task to prove that indirect discrimination occurred[21], and he has failed to do so.

[135]

I make the following factual findings relating to the disputed questions of fact. First, there is no doubt on the evidence that Mr Ware's duties were altered in early 2003. Written notification of those duties was given by Mr Crocker to Mr Ware by email on 7 February 2003. This was after OAMPS had decided to alter Mr Ware's duties. However, under cross-examination Mr Ware agreed that in early 2003 Mr Crocker talked to him about alleged unsatisfactory performance and told him that his duties would be changed. I find that there was some discussion between Mr Crocker and Mr Ware about the need for new duties before Mr Ware's duties were changed but that the specific notification of the new duties occurred in writing after Mr Crocker decided to change the duties. Mr Ware made no complaint about his new duties. Indeed, he accepted under cross-examination that he liked his new duties and performed them up to the time when he was hospitalised in mid 2003. Further, it appears from Mr Searle's own review of the evidence that Mr Ware's duties were not in fact changed until April 2003. Mr Ware therefore had two months to consider his position and make representations to his employer if he was dissatisfied.

Mr Ware's employment agreement is in evidence: exhibit A1. On 1 October 2002 Mr Ware's remuneration was increased from $65,000 to $80,000. It is clear from the evidence of both parties that a critical factor in the decision of OAMPS to agree to that increase was complaints from Mr Ware of his inability to earn commission income because of the nature of his work. It appears to have been accepted by both parties that Mr Ware had minimal capacity to earn commission income and hence an increase in general remuneration was justified. Nevertheless, Mr Ware's employment agreement was not amended to exclude his entitlement to receive commission income for new business should he be able to secure any. I find that from 1 October 2002, Mr Ware's remuneration package was $80,000 plus commission on new business for clients.

I accept, from the evidence of Dr Mastroianni, that Mr Ware, at all material times, had Attention Deficit Disorder and that Mr Ware also suffered from a major depressive illness independently of his Attention Deficit Disorder during his employment with OAMPS.

Some staff at OAMPS knew or suspected that Mr Ware suffered from Attention Deficit Disorder and depression. Mr Tyler knew that Mr Ware had suffered from Attention Deficit Disorder prior to the takeover of the business by OAMPS. Under cross-examination Mr Tyler admitted being made aware directly of Mr Ware's depression during 2003 and having discussed his condition with another employee earlier. Mr Crocker had several discussions with Mrs Ware about Mr Ware's condition while Mr Ware was hospitalised in mid 2003. OAMPS was aware that Mr Ware was consulting a psychiatrist (Dr Mastroianni) during 2003 and received medical certificates. OAMPS agreed to a regime of a graduated return to work following Mr Ware's discharge from the Northside Clinic and agreed to arrangements for him to continue to visit the clinic as an outpatient during working hours. In his letter to Mr Ware dated 14 July 2003 Mr Crocker referred to Mr Ware's "illness". On Mr Crocker's own evidence he was aware that Mr Ware suffered from Attention Deficit Disorder in October 2002 and was aware that he suffered from depression at least by 4 June 2003 when he was told that by Mr Ware. I find that OAMPS was aware that Mr Ware suffered from both Attention Deficit Disorder and depression by June 2003.

The question of whether, at the relevant time, Mr Ware had a disability within the meaning of s.4 of the DDA is a mixed question of law and fact. Although there is no concession on the point by OAMPS the question is not seriously disputed in Miss Henderson's written submissions. "Disability" is defined in s.4 of the DDA to mean, relevantly, a total or partial loss of a person's bodily or mental functions, or a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour. I have already accepted, based upon the evidence of Dr Mastroianni, that Mr Ware suffered at all material times from disorders of the mind being Attention Deficit Disorder and an independent depressive illness. I find that both conditions are disabilities for the purposes of the DDA.

The substantial issues to resolve remain whether OAMPS treated Mr Ware any less favourably than other employees by reason of his disabilities or whether OAMPS imposed upon Mr Ware any condition, requirement or practice that he could not comply with because of his disabilities.

[138]

I discount as a factor the fact that Mr Crocker became aware, when Mr Ware was hospitalised in mid 2003, that Mr Ware had received pornographic material by email on his work computer. Mr Crocker conceded under cross-examination that he did not regard that issue in itself as critical, and there is no mention of it in the disciplinary correspondence which issued in July and September 2003.

Mr Ware asserts that OAMPS breached ss.15(2)(c) and (d) of the DDA. Leaving aside the dismissal, which I will return to later, Mr Ware asserts that he suffered a detriment through the unilateral changing of his duties, the removal of his assistant, the placement of restrictions upon his performance of duties, the setting of criteria against which his performance was to be judged, and not providing him with any opportunity to fulfil those criteria on any realistic, or fair timeframe, and through demotion. I accept that Mr Ware's duties were changed unilaterally by OAMPS in early 2003 but I do not accept that this constituted a detriment. As I have already noted, Mr Ware did not object to the change in duties. On the contrary, he expressed happiness with them. The change in duties reflected his employer's concern with his work performance and was a measure to better fit Mr Ware's duties with his capacity. It was not a detriment.

The removal of Mr Ware's assistant at about the same time was a detriment but could not constitute less favourable treatment by reference to the nominated comparator. Mr Crosby told Mr Ware on 24 January 2003 that the way he treated his assistant was unacceptable. I accept from Mr Crosby's affidavit and cross-examination that Mr Ware had abused his assistant. OAMPS had a duty to protect its staff from such abuse. I have no doubt that OAMPS would have acted in the same way in relation to the hypothetical comparator. There was no discrimination.

I also accept that the imposition of work restrictions on Mr Ware from 14 July 2003 was also a detriment in that it was made clear to Mr Ware that if he failed to meet his employer's requirements, he could expect further disciplinary action, including dismissal. Again, however, the action of OAMPS was not discriminatory by reference to how the comparator would have been treated in the same or similar circumstances. It is clear from Mr Crocker's letter to Mr Ware dated 14 July 2003 that Mr Ware would have been dismissed, by reason of his behaviour, if he did not suffer from his disabilities. Mr Crocker refers to Mr Ware's excessive drinking and his belief that Mr Ware had lied to him concerning an important insurance contract. Mr Crocker also referred to the fact that he had cause to speak to Mr Ware over a long period of time in regard to other indiscretions including loss of time and unsatisfactory performance. Mr Crocker said:

[140]

I accept the respondent's evidence as to Mr Ware's declining work performance, his mercurial and fiery temperament, his drunkenness and offensive behaviour, his unauthorised absences, his neglect of duties and, ultimately, his untruthfulness to Mr Crocker. Mr Ware had breached the trust and confidence essential to the employment relationship between him and OAMPS. Over a period of at least six months Mr Ware had given OAMPS sufficient cause to dismiss him summarily. The hypothetical comparator in the same circumstances would have been dismissed by 14 July 2003. In the circumstances, the imposition of conditions upon Mr Ware's employment was not less favourable treatment: it was more favourable treatment.

I do not accept that unrealistic work demands were placed upon Mr Ware by OAMPS. The evidence of Mr Ware and his wife was that Mr Ware had substantial personal problems (including marital problems) which I find were a factor in his deteriorating work performance. The evidence of Mr and Mrs Ware was not consistent on the cause or timing of their marital problems. I prefer the evidence of Mr Ware. He showed greater insight into his condition than his wife, who appeared unduly anxious to support her husband's claims through her evidence. Mr Ware's marital problems became significant following the birth of his first child. Over time, Mr Ware suffered other personal difficulties which adversely impacted upon him, including the death of his father and half brothers. Mr Ware's work ethic had been good but I accept the respondent's evidence that during 2003 Mr Ware's work performance declined and he became disinterested in his work. This may well have been a result of his bouts of depression. The cause of that depression is unknown. Dr Mastroinanni was unable to nominate Mr Ware's work stressors as a cause. Mr Crocker and Mr Crosby were well aware that Mr Ware was, during 2003, finding it increasingly difficult to cope with his work. This was not because the work demands placed upon Mr Ware were unreasonable but because Mr Ware's capacity to perform his duties was declining. His duties were modified twice in order to assist him (and no doubt, in order to protect OAMPS from potential damage through the inefficient performance of more onerous duties).

I find that the demotion of Mr Ware on 13 September 2003, with effect from 22 September 2003 (with a reduction of salary to $45,000 with effect from 20 October 2003) was directly discriminatory. Mr Romano's letter to Mr Ware dated 13 September 2003 refers to Mr Ware's graduated return to work in a reduced capacity and his being relieved of a range of responsibilities by Mr Crocker. The letter then states:

[142]

This is expressed to be the reason for the demotion. However, Mr Crocker, under cross-examination, admitted that there had been no assessment of Mr Ware's performance against the stipulated criteria set out in his letter of 14 July 2003. He said that this was because no work had been done against which performance could be assessed. Importantly, at paragraph 30 of his affidavit Mr Crocker states that the reason for Mr Ware's demotion was his failure to attend his place of employment or give a valid or reasonable explanation for his lack of attendance. Mr Crocker sought to retreat somewhat from that position under cross-examination but agreed that it was the "straw that broke the camel's back". Mr Ware was absent from the workplace on 1, 8 and 12 September 2003. Mr Ware was granted access to his annual leave entitlement for those absences subsequent to the absences. On one of those days Mr Ware had been attending a funeral. Miss Henderson in her submissions concedes that, to that extent, Mr Crocker was mistaken in his evidence that there had not been a reasonable explanation for Mr Ware's absence. Mr Ware could not recall the reason for his absences on the other two days but it is probable that Mr Ware was struggling to cope with his graduated return to work following hospitalisation with serious disabilities.

Mr Crocker had, probably against his better judgement, been persuaded to keep Mr Ware on following his release from hospital. He set out very clearly in his letter dated 14 July 2003 the criteria against which Mr Ware would be judged. There was no assessment done by reference to those criteria before Mr Ware was demoted. Mr Ware was not given a fair opportunity to prove himself by reference to the criteria against which he was meant to be judged and against which he was not judged. He was punished by demotion for three absences from the workplace which were respectively approved by the granting of leave but for which Mr Ware did not have prior approval.

There was no mention, in Mr Croker's letter of 14 July 2003, of any obligation on the part of Mr Ware to ensure there were no unauthorised absences from the workplace. For a long time, Mr Ware had been in the habit of adopting a rather relaxed attitude to his attendance, especially following drinking bouts. These absences were never authorised by OAMPS but they were for a long time tolerated. There was a culture within the workplace of "long lunches" being tolerated provided that it was kept within reasonable bounds. Mr Ware's habit was not kept within reasonable bounds and he was counselled about it. It was a factor in Mr Crocker's mind in imposing work restrictions on 14 February 2003. The letter instructed Mr Ware that he was not to consume alcohol during working hours, including lunch times. It beggars belief that there would be no mention of unauthorised absences in the conditions set out in that letter to which Mr Ware was made subject if it was to be the predominant consideration concerning the future treatment of Mr Ware.

I find that Mr Ware was treated less favourably than the hypothetical comparator would have been in the same or similar circumstances. There is an initial logical hurdle to overcome here, in that the hypothetical comparator would have been dismissed by 14 July 2003. In my view the proper approach is to treat Mr Ware as being placed in the same position as an employee under probation and subject to a written warning. If the hypothetical comparator had had the same work restrictions placed upon him as had Mr Ware, it is reasonable to suppose that those work restrictions would have reflected the concerns of OAMPS and that the hypothetical comparator's performance would have been judged against the criteria stipulated. In the case of Mr Ware, the employer, having accepted his return to work on a restricted basis, having regard to his disabilities, treated him unfavourably by demoting him by reference to a factor about which no notice was given in the letter of 14 July 2003 setting out the conditions which Mr Ware must meet and the criteria against which his performance would be assessed. I find that the hypothetical comparator would not have been treated in that way.

Accepting, as I do, that Mr Ware was demoted because of his non attendance at the workplace, the question then is whether Mr Ware was demoted because of his disability. It is not necessary for Mr Ware to prove that OAMPS intended less favourable treatment because of his disabilities: Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 at [359] per Mason CJ and Gaudron J[25]. Motive may nevertheless be relevant to determine whether or not an act is done "because of" a disability: see Purvis at [236]. The question is why was Mr Ware demoted? Was it because of or by reason of his disabilities?

At the time Mr Ware was demoted, Mr Croker knew that Mr Ware suffered from Attention Deficit Disorder and depression. He knew that he was progressing through a graduated return to work following a period of hospitalisation. I gained the strong sense from Mr Croker's evidence under cross-examination that he was "fed up" with Mr Ware and regretted the generous view that he had taken in his letter of 14 July 2003. Mr Ware's absences from the workplace provided Mr Croker with what he regarded as sufficient cause for demotion but the real reason for the demotion was that Mr Crocker had exhausted his capacity to accommodate Mr Ware's condition. To my mind, this establishes a sufficient causal link between the less favourable treatment and Mr Ware's disabilities. I find that in demoting Mr Ware, OAMPS treated Mr Ware less favourably than it would have treated a person without the disability by reason of Mr Ware's disabilities.

I also find that OAMPS discriminated against Mr Ware in terminating his employment on 26 September 2003. That letter, like the letter of 13 September 2003, was written by Mr Romano but Mr Crocker acknowledged that it was he who made the decision. That letter identifies areas of concern with Mr Ware's personal behaviour and professional neglect that had earlier been identified on 2 June 2003 and 7 July 2003. To that extent there was nothing new justifying dismissal. More importantly, the dismissal letter contradicts the letter of 14 July 2003 which told Mr Ware that, although his performance merited dismissal, he would not be dismissed and any future dismissal decision would be based upon his future performance. That letter stated:

[147]

This appears to be the expressed reason for the dismissal.

The fact is that after being handed the demotion letter, Mr Ware consulted Dr Mastroianni. I accept Dr Mastroianni's evidence that Mr Ware suffered a major depressive episode as a direct consequence of being demoted. Following the demotion decision Mr Ware was medically unfit to work, a fact that Dr Mastroianni subsequently verified by the provision of a medical certificate. Under cross-examination Mr Crocker accepted that, while he took into account his pre-existing concerns about Mr Ware, important factors were the absences from the workplace referred to by Mr Crocker in paragraphs 29 and 31 of his affidavit. The absences referred to in paragraph 29 were the absences that Mr Crocker used to justify the demotion decision. They could hardly be used to justify the dismissal as well. The only absences referred to in paragraph 31 of Mr Crocker's affidavit were two absences on 22 and 24 September 2003.

I find that the absences of Mr Ware on 22 and 24 September 2003 provided Mr Crocker with what he saw as the appropriate opportunity to terminate Mr Ware's employment. Mr Crocker admitted under cross-examination that by acting when he did, OAMPS avoided the need to pay termination benefits to Mr Ware[26]. He denied that that was a factor in his decision. I do not believe him. By 26 September 2003, Mr Crocker had decided that Mr Ware had to go. One wonders why Mr Crocker did not simply wait for Mr Ware's contract to expire and pay the termination benefits that Mr Ware would have then received[27]. The contract was due to expire on 1 October 2003. However, Mr Crocker was unwilling to wait. In my view, the reason why Mr Crocker asked as he did was because OAMPS, in the demotion letter of 13 September 2003, rather unwisely represented to Mr Ware that his contract would be renewed. That representation came about because the letter stated that Mr Ware's salary would be reduced with effect from 20 October 2003, nearly three weeks after the expiration of the then current contract. Mr Crocker saw an expedient means of avoiding the need to renew Mr Ware's contract and took it.

To the extent that the termination decision was based upon Mr Ware's absence from the workplace on 22 and 24 September 2003, this was less favourable treatment than the hypothetical comparator would have received in the same and similar circumstances because of Mr Ware's disabilities, for the same reasons as I have found the demotion decision was discriminatory. The absences were properly explained after the event and a medical certificate was provided. The hypothetical comparator would not have been dismissed for two days absence for which sick leave was subsequently granted. On no view could those absences warrant summary dismissal pursuant to clause 12 of the employment contract, which provides:

[157]

Mr Ware seeks damages for both non economic and economic loss. I accept the principles by which loss should be assessed set out in Mr Searle's written submissions. I accept Mr and Mrs Ware's evidence that Mr Ware suffered significantly as a result of his demotion and dismissal. More particularly, I accept the evidence of Dr Mastroianni that Mr Ware's demotion and dismissal caused a significant deterioration in his condition, at the very time when it was starting to recover following his hospitalisation. I will award Mr Ware the sum of $10,000 as general damages for non economic loss. That is the same amount that I awarded in Trindall, in comparable circumstances.

As to economic loss, Mr Ware should receive the termination payments that he would have received if his contract of employment had been terminated by notice pursuant to clause 11 of the employment contract. OAMPS was entitled to take advantage of that clause at any time and no reasons for termination were required. Clause 11.6 states that the parties agree that termination pursuant to the clause shall be taken to be because of redundancy. OAMPS, in its letter to Mr Ware dated 13 September 2003, had represented to him that he could expect continuing employment at least until 20 October 2003. OAMPS was not entitled to summarily disappoint that expectation. Therefore, notice of termination could not have been given until 20 October 2003. It follows that the damages Mr Ware should receive is his remuneration of $80,000 pa between 26 September 2003 and the expiration of the 13 week notice period after 20 October 2003, less the two weeks remuneration in lieu of notice that OAMPS undertook to pay and which I assume was paid by OAMPS. The parties can calculate the precise figure.

In calculating the termination payments payable to Mr Ware, no account needs to be taken of commission that Mr Ware might have earned. He asserts that he did earn commission during the period of his employment of around $5,000 but has not been paid it. I have found that, pursuant to the terms of his employment, Mr Ware was entitled to receive commission payments in addition to his other remuneration. Mr Ware is entitled to receive any commission payments he can quantify, pursuant to his employment contract. It does not need to be assessed as damages for unlawful discrimination. No contractual claim was made in these proceedings. If the parties cannot agree on what, if any, commission payments should be made to Mr Ware under his employment contract, Mr Ware can sue for them in a court of competent jurisdiction.

Mr Ware should also receive as damages for economic loss part of the unreimbursed cost of consulting Dr Mastroianni. Mr Ware's condition was aggravated by the demotion and dismissal decisions. Mr Ware conceded under cross-examination that he would have had to consult Dr Mastroianni anyway even if he had not been demoted or dismissed, but asserted that more consultations were required because of the aggravation of his condition. I accept that evidence. It is impossible to quantify precisely how many consultations are attributable to that aggravation. An assessment of loss in the circumstances is arbitrary. I will allow 20 per cent of the unreimbursed costs of the consultations as damages for economic loss. Once again, the parties can calculate the precise figure.

I will not make a declaration as it serves no purpose where monetary compensation is awarded and the means of calculating the required payment is clear without a declaration. Mr Ware should receive interest up to judgment at the rate of 10.5 per cent, which is the rate that I applied in Trindall at [189]. Interest is payable from 26 September 2003 when Mr Ware's cause of action was complete.

I will hear the parties as to costs.

At a glance

Court

Decision date

Source

Judgment (172 paragraphs)

Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 (29 July 2005)

Parties

Legislation Cited (3)

Cases Cited (13)