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Federal Court of Australia |
Last Updated: 24 July 2003
Daghlian v Australian Postal Corporation [2003] FCA 759
ANTI-DISCRIMINATION LAW - employment originally in public service - physical disability of employee by reason of bodily malfunction or malformation - public service later corporatised all premises remodelled - chair policy banning stools introduced for counter employees - employee removed from employment at counter upon basis of chair policy introduced by corporatised body - placed on long service leave - upon expiration of long service leave employment purportedly terminated - whether enforcement of chair policy not reasonable in circumstances of disabled employee - whether disabled employee unable to carry out inherent requirements of particular employment - whether facility in form of chair/stool required by disabled employee and not required by employees without disability imposed unjustifiable hardship on employer.
Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 46PH(1)(i) and 46PO(1) and (4)
Disability Discrimination Act 1992 (Cth) ss 3, 6, 11 and 15
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 44
Federal Court of Australia Act 1976 (Cth) s 21
Scott & Anor v Telstra Corporation Limited (1995) EOX 92-717
Scott and Bernadette Finney v The Hills Grammar School [1999] HREOC 14 (unreported, 20 July 1999)
The Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 658; (2000) 61 ALD 619
Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor [2000] FCA 1854; (2000) 180 ALR 635
X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177
Waters & Anor v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Telstra Corporation Ltd v Flynn [2002] NSWCA 315; (2002) 55 NSWLR 303
Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280
SARAH DAGHLIAN v AUSTRALIAN POSTAL CORPORATION
N 1479 OF 2001
CONTI J
23 JULY 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
BETWEEN: |
SARAH DAGHLIAN APPLICANT |
AND: |
AUSTRALIAN POSTAL CORPORATION RESPONDENT |
JUDGE: |
CONTI J |
DATE OF ORDER: |
23 JULY 2003 |
WHERE MADE: |
SYDNEY |
THE COURT DECLARES THAT:
1. The respondent has engaged in indirect disability discrimination in contravention of s 15 of the Disability Discrimination Act 1992 (Cth) by:
(i) the imposition of a term or condition of her employment that she not be seated at the retail counter at the Manly Post Office for intermittent rest or at all;
(ii) the subsequent discontinuance of her location of employment at the Manly Post Office, which she had held for about eleven years, and her deployment to Australia Post's head office at Strawberry Hills for the period of six days ending 23 February 2001, with a view to her possible further deployment to another post shop in the Sydney metropolitan area in the event that an administrative position, and not a retail counter position, might become available for her;
(iii) the subsequent classification of the applicant onto sick leave from 27 February 2001, upon the terms and conditions of Australia Post's letter of 23 February 2001; and
(iv) the subsequent absence of provision of any such employment position reasonably proximate to her location of residence in Manly.
THE COURT ORDERS THAT:
1. The respondent pay the applicant's costs of the proceedings.
2. The proceedings be re-listed by the applicant for directions as to assessment of compensation.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
|
BETWEEN: |
SARAH DAGHLIAN APPLICANT |
AND: |
AUSTRALIAN POSTAL CORPORATION RESPONDENT |
JUDGE: |
CONTI J |
DATE: |
23 JULY 2003 |
PLACE: |
SYDNEY |
The nature of the claim for relief
1 The applicant, formerly an employee of the Australian Postal Corporation (`Australia Post'), commenced the subject proceedings, by application filed in this Court on 31 October 2001, for relief against unlawful disability discrimination by Australia Post in its capacity as her employer, pursuant to s 46PO of the Human Rights And Equal Opportunity Commission Act 1986 (as amended) (`HREOC Act'). It is common ground that Australia Post is a `public authority of the Commonwealth' within s 4 of the Disability Discrimination Act 1992 (Cth) (`the DD Act'). The applicant claims that Australia Post has discriminated unlawfully against her as one of its employees, pursuant to its adoption of a workplace policy involving the banning of stools at the retail counters of its post offices, and its application of that policy to the employment circumstances of the applicant at the Manly Post Office. She seeks reinstatement of her former employment as a postal officer at the Manly Post Office with a suitable stool or chair provided to alleviate long periods of standing, reimbursement of lost income for the period from 27 February 2001, when her employment was terminated, to the date of the reinstatement of her employment, and reinstatement of annual leave and long service leave credits used by her since 27 February 2001. Additionally or alternatively, the applicant seeks orders in relation to economic loss, general damages arising from hurt and suffering, particularly in relation to her psychiatric condition, and an apology.
2 A substantial amount of oral and documentary evidence was tendered at the hearing, mainly by Australia Post. In order to gain sufficient understanding of the complex factual issues arising, it is necessary to provide a comprehensive review of the affidavit and viva voce evidence, and in a number of instances to extract the text or part of the text of the documentary material asserted to be of significance, particularly on the part of Australia Post, rearranged as far as practical in chronological sequence.
The applicant's origins and her early years of employment by Australia Post at Manly Post Office, including her 1991 employment injury
3 The applicant was born in Egypt in the year 1944. Her father originated from northern Greece and her mother from Ukraine. She was well educated, and spent her youthful years in France, and from the age of 23 years, she lived in Israel. In 1973 the applicant married her present husband, a person of Armenian extraction emanating from a Christian tradition. She gave birth to two children, the eldest of whom was a daughter she never actually saw. The applicant travelled to Paris to give birth to her second child (a son) in 1982. She worked as a make-up artist for films, the theatre and television in Israel and France for about 20 years, before coming to Australia with her husband and son in 1989. She and her husband have lived in the Manly district of Sydney since that time. The applicant's husband is employed or else freelances as a rug salesman. The applicant's son is presently studying in France, with financial assistance from the applicant and presumably also from her husband, the cost of which is said to have been her main reason for seeking to maintain her employment with Australia Post until her previously anticipated retirement on her 63rd birthday (in 2007). The applicant commenced employment with Australia Post or the statutory precursor to Australia Post in July 1989 at the Manly Post Office, and in November 1989, she was appointed as a postal services officer at that Post Office. Her duties mainly involved the serving of members of the public at the retail counter, but also clerical duties at her desk located on her side of the counter, the latter taking up an hour or so of her daily working time. She ceased to attend work for Australia Post on 27 February 2001.
4 Apparently from the outset of her employment by Australia Post at the Manly Post Office, the applicant suffered from physical disabilities which inhibited her from standing for lengthy periods of time without interruption at the post office counter, being disabilities stemming from osteoarthritis of the lumbosacral spine, bilateral spurs of heels and varicose veins. As a consequence, her back was painful from time to time, but she said that she was able to bend or crouch down in a normal way `all the time', though crouching tended to give her leg pain. What the applicant's counter duties partly involved was the acceptance of parcels from, and delivery of parcels to, members of the public in attendance at the retail counter, and conveying the same from that counter, per medium of a trolley, to the mail room in the Manly Post Office for further processing. When not in use, the trolley was parked against the back wall of the counter. The procedure for acceptance of parcels for dispatch included the weighing thereof on scales. Her other duties at the counter, as distinct from her desk, included selling stamps and cashing bills of exchange. It is unclear whether the latter activities occurred more often than the former, or vice versa.
5 Throughout her employment at Manly Post Office until a short time before her controversial dismissal, the applicant used what has been described as an `antiquated' four legged stool, upon which she would sit in the course of performing her functions at the service counter. Stools had been traditionally available to employees as and when they wanted to use the same. There were normally at least two other employees of Australia Post also engaged in serving members of the public at the counter attended by the applicant, though the applicant also spoke of six people working at the counter, including herself. A desk at which she performed her clerical duties was located behind the counter. However as will be later explained, in the context of the evolution of post offices in Australia from public service traditions to modern retail outlets more orientated to the attraction of custom from members of the public, the lay-out of the applicant's workplace underwent significant change from about the year 1996, in the context of which the applicant's claims as to discrimination ultimately arose.
6 An injury to the applicant's back, which may have accelerated her degenerative back problems, occurred towards the end of 1991 whilst she was engaged at work at the Manly Post Office counter, and more specifically, in the course of `putting parcels away'. From that time it appears that the applicant started to experience `mild back pain... when lifting heavy parcels' (see report below). A report was made on 7 November 1991 by Dr Coucher of the Department of Health, Housing and Community Services (who did not testify orally in the proceedings) in relation to the applicant in the following terms:
`Current Complaint/Diagnosis:Degenerative changes. Lumbosacral spine.
Lumbar back pain.
HISTORY:
47 year old woman who has worked for 2½ years as a Postal Officer. She noticed mild back pain over 6-8 weeks when lifting heavy parcels. On 21/10/1991 it became much worse and at lunch time went to see a doctor and went home. X-rays showed degenerative changes. Off for one week, then returned to work. By the end of the week, she had increased pain and visited Dr Galati who advised her not to lift for one month. She takes Digesics as needed. Pain is improving. She has had physiotherapy which was helpful.
CLINICAL FINDINGS:
Obese. Normal lumbar spine examination with normal reflexes. Full range of movement. She was mildly tender over L5/S1.
RECOMMENDATION:
1) She is fit to work as a Postal Officer with some restrictions.
° Continuous standing up to one hour only.
° Lifting up to 5 kgs only.
° No repeated bending.
° If possible, she should be able to vary her posture intermittently.
These restrictions should remain for approximately one month with a graduated return to full duties with the supervision of a rehabilitation counsellor.
2) She should be instructed re back care and safe lifting practices.
3) When working in a sitting position, requires an ergonomic chair, correctly adjusted.
4) She should follow a regular back exercise program.
5) Chances of recurrence could be reduced if she were to follow a graduated supervised weight loss program.'
Any such `ergonomic chair' was however never provided for the applicant. Nor however does it appear that she followed a `graduated supervised weight loss program'.
7 An occupational health and safety workplace assessment of the applicant was conducted by Ms Karen Smith for Australia Post on 13 November 1991, and she reported as follows:
`RESTRICTIONS: Continuous standing up to one hour onlyLifting up to 5kgs only
No repeated bending
If possible, she should be able to vary her posture intermittently
WORK HISTORY:
Sarah has been employed with Australia Post for approximately 2½ years as a Postal Services Officer at Manly. Previously Sarah performed part time work in a variety of fields.
CURRENT DUTIES:
Sarah's duties include those involved in a Postal Services position. In addition she also occasionally performs word processing duties for the CPM.
TASKS ASSESSED:
Word Processing Duties
Sarah may use the word processor for up to one hour, generally 2-3 times a week. She also performs a daily balance which takes about 15 minutes. These duties are performed in a seated position. Sarah states that she does not adjust the chairs correctly.
Postal Service duties
This duty includes serving customers over the counter. Sarah states that she predominantly stands to perform this duty. Stools are provided on the counter for staff to use while serving.
RECOMMENDATIONS:
1. When performing word processing duties or the balance (sic), it is important that Sarah adjust the chair to suit her individual needs. The correct chair adjustments and posture was demonstrated to Sarah and written information will also be supplied.
2. Correct lifting techniques were also demonstrated and Sarah will have to make a conscious effort to apply these principles whenever she is required to lift an object.
3. When working on the counter it is suggested that Sarah alternate between sitting and standing. To ensure that lumbar support is maintained it is also recommended that a counter chair be supplied for Sarah to use. The stools currently on the counter do not provide any lumbar support. Sarah will have to ensure that she also correctly adjusts the counter chair to suit her needs.
4. When pushing in and pulling out the counter advance draw (sic), Sarah should stand directly behind the draw (sic) and use two hands. This ensures an even distribution of pressure across the back.
5. It is important that Sarah continue to perform the stretching and strengthening exercises regularly throughout the day.'
The importance of Ms Karen Smith's recommendation that the applicant `alternate between sitting and standing' may be observed. The further recommendation `... that a counter stool by (sic) supplied for Sarah to use', because `... [t]he stools currently on the counter do not provide any lumber support' was, as I have already indicated, never implemented by Australia Post. The applicant appears to have continued to use the same counter stool (illustrated in the photographs tendered in evidence) which lacked lumbar support, from the time of commencement of her employment as a postal counter worker, and thereafter throughout the remainder of her employment at the Manly Post Office, until she was directed in early 2001 to cease to use the stool in the controversial circumstances giving rise to the present litigation. According to her oral testimony, it was the applicant's practice to sit on the stool when selling stamps or cashing bills for customers, but to stand when handling parcels.
8 The applicant said that it was no more than once or twice per day, and on some days never at all, that she undertook the task of handling the heaviest of the parcels accepted over the counter, namely those in the region of 16 kilograms, which usually contained books. Large parcels containing clothes were presumably more awkward than heavy. On those occasions when a parcel was too heavy, which for the applicant appears to have involved weights exceeding 7 kilograms, she was assisted by other members of the Post Office staff. She explained that customers would always and of their own accord place any heavy parcels brought into the post office onto the scales, which were located conveniently for that purpose at the centre of the customer counter. Thereafter it was the function of the staff on the counter to remove the parcels, once weighed, for processing. The applicant did not sit on the stool for that function. She further said that `the medical condition relating to my back and legs... prevented me from standing for extended periods', and that `[t]he use of the stool alleviated pain in my legs, which became a problem for me shortly after I commenced', but `did not interfere with my duties'. She further said that from about the end of 1991, she began to use her stool more often, `... as long periods standing aggravated both my leg and back condition'. The applicant claimed that whilst her back could be painful, she was able to bend and crouch down `normally all the time'.
Workplace controversies arising in 1996
9 At a time in 1996 not particularised in the evidence, Australia Post undertook refurbishments at the Manly Post Office in conjunction with the introduction of Australia Post's so-called new retail shop image, in the place of its traditional post office lay-out, involving the installation of an `island type counter' in the middle of the customer service area, and another at the rear of that area. It was in that context by 1996 that Australia Post introduced a policy requiring the removal of all stools from the customer service areas of its post offices, including of course the Manly Post Office. The applicant made a request to the Area Postal Manager (Mr Arundel), an executive not stationed at the Manly Post Office, that she be exempted from conformity with the policy, to the extent of being permitted to retain and use her stool for use as the occasion arose. In support of that request, which was made about 2 months prior to the change of format being implemented, the applicant provided Mr Arundel with medical certificates from her general practitioner Dr Artinian of Manly. Australia Post thereupon referred her to a medical practitioner of its choice, who is asserted by the applicant in evidence to have confirmed her need to continue to use her stool.
10 Australia Post thereupon arranged for a workplace assessment of the applicant by Ms Newton, an occupational therapist. She recorded on 6 May 1996 that `Mrs Daghlin (sic) is currently completing her full normal duties using a stool behind the counter', those duties being specified as serving customers at the counter, involving opening and closing a counter drawer, weighing parcels received at the counter and retrieving others from the parcel room, and removing the money tray and stamp books from the safe, which `may require opening heavy safe doors'. Ms Newton recommended as follows:
`1. Ms Daghlin (sic) should be referred to Rehabilitation for ongoing intervention regarding permanent restrictions.2. In the short term, Ms Daghlin (sic) should be allocated a work area not in a thoroughfare so she is able to continue to use her stool.
3. When completing her duties on the counter, Ms Daghlin (sic) should only sit on the stool for short periods in between serving customers. She should avoid sitting on her stool and reaching for items or reaching to serve customers. When completing tasks, Ms Daghlin should stand, serve the customer, then if necessary return to sitting.
4. If Ms Daghlin (sic) has any difficulty completing her work, she should immediately notify her supervisor and/or Rehabilitation Counsellor.'
The reference above to `thoroughfare' may have been to the retail area surrounding the `island counter'. Implicitly, Ms Newton acknowledged the need for the applicant to be provided with a seating facility for use on the occasions which Ms Newton described.
11 Australia Post caused the applicant to be additionally assessed by Dr Joan Chen, a consultant physician in occupational medicine. The conclusions of her report of 2 September 1996 in relation to the applicant were as follows:
`In view of her history of bilateral heel pain (currently not symptomatic) and bilateral varicose veins, it is recommended that Mrs Daghlian avoids prolonged standing. It is appropriate for her to interrupt periods of standing with short periods of sitting on an appropriate stool.I have read the report submitted by Ms Elizabeth Newton following a workplace assessment on 6 May 1996. I concur with Ms Newton's recommendations that Ms Daghlian should sit on a stool for short periods in between serving customers. I understand your concerns that sitting would reduce the individual's reach, particularly when serving customers or reaching for items. Therefore, I agree with Ms Newton that she should avoid sitting on her stool whilst reaching for items or serving customers.
Whilst I would prefer not to be dogmatic or absolute regarding standing or sitting spells, and consider it preferable to leave it up to individual discretion, as a rough guideline, standing periods of between half to one hour may be interrupted by short periods (a few minutes) of sitting.
I consider that she could continue to perform her full Postal Services Officer duties including overtime work, within these restrictions.'
12 The applicant said that she continued from and after the 1996 renovations, and in the context thereof, to perform all of her employment duties effectively, without interference with the day to day operations of Australia Post at the Manly Post Office. She further testified that `I still sat for some of the day only', and also that `I stood at times and moved into the retail space of the shop to assist customers as and when required'. No issue was raised by Australia Post as to her effectiveness or competence in the carrying out of her duties of employment.
13 The respondent ultimately elected on the third and final day of taking evidence not to read an affidavit which had been filed by the abovementioned Area Postal Manager for Australia Post, Mr Arundel, who apparently exercised a supervisory role in relation to the Manly Post Office. Thus there was no evidence before me that the applicant was directed in 1996, whether by Mr Arundel or otherwise, that she should not use her stool at all, or any other stool for that matter.
14 The applicant accepted however that Mr Arundel did not at any stage inform her that she could continue to use her stool, that being declared by counsel for Australia Post as the reason for not tendering Mr Arundel's affidavit testimony. As will shortly appear, there was in any event no settled or definitive policy within Australia Post as to the use of stools by counter staff, at the time of Mr Arundel's conversation with the applicant in March 1996. In that regard, on 21 March 1996, Mr Arundel sent an internal memorandum to a senior officer of Australia Post (Ms Brackenrig), which read as follows:
`I had an IP meeting at Manly this morning about the retrofit to a Post Shop. One of the staff Sarah Daghlian PSO Manly raised with me the question of using a stool to sit on whilst working at the counter which she now does. I advised Sarah that when Manly goes to a Post Shop she would not be permitted to sit on a chair whilst performing counter duties.She claims that there is a file at the Regional office which covers the restrictions under which she is employed. However, the Post Manager does not have any such information on hand at the office and he indicated that she will not lift any parcel heavier than 5 kgs.
Are you aware of any restrictions relating to this persons employment? Are we on firm ground in insisting that there is no use of stools under Post Shop conditions?'
Australia Post produced no evidence of a response by Ms Brackenrig to that memorandum. The Australia Post executive Mr Lowe, whose evidence will later be summarised, stated in his affidavit merely that `I believe Mr Arundel did not approve the use of the stool', but he gave no grounds for that belief, and accordingly I should not place any reliance on that statement of belief proffered by Mr Lowe, particularly given that by not reading Mr Arundel's affidavit, Mr Arundel was not exposed to cross-examination.
15 The applicant continued from and after 1996 to use the contentious stool, without any contrary direction from the local Australia Post management at Manly, nor from the head or regional office management of Australia Post, until the controversial events in early 2001 giving rise directly to the present proceedings. That finding on my part is implicitly supported partly by the following documentary evidence:
(i) the recommendations of the 1996 reports of Ms Newton and Dr Chen above extracted, which do not appear to have been explicitly refuted by internal Australia Post executives;
(ii) an extract from the Occupational Health and Safety Meeting at Manly Post Office of 19 May 1997 as follows:
`5. Sara Daghlian, use of stool on counter. Sara needs to use the stool all the time due to pain. Stipulations from AGMO suggest use is for the times between customers only. This needs to be ratified. Sara has presented a note from her doctor which states she needs to use the stool `as required'. To be referred by Postal Manager to Helen Brackenrig O.H.&S. officer North and East Metro (Retail) Region.6. The stool which Sara Daghlian uses has no back support. If, as point 5 suggests, use of a stool is to be continuous we also need to provide something more suitable for that arrangement. What is envisaged is a stool with back support. This matter will also be referred as an adjunct to point 5.'
No stool with `back support' was ever subsequently provided by Australia Post to the applicant.
(iii) The report of the Postal Manager of Manly Post Office (Mr McNamara), also of 19 May 1997, to the North and East (Metro) Retail Region of Australia Post, stating as follows under the heading `Use of Counter Stool - Sara Daghlian':
`Please refer to minutes of O.H.&S. Committee meeting on 19 May 1997 attached. Referred for your information and advice please.Point 5, relates to conflict with stipulation by AGMO that Sara uses stool in limited capacity. "Between customers" at this office realistically relates to very little time, Mrs Daghlian is almost constantly serving customers. A copy of a Medical Certificate from her own doctor suggests use of stool is `as required'. The use of the stool needs to be reassessed, please advise if you wish to refer the matter on to the AGMO.
Point 6, is related to the above. If as I suspect we find that Mrs Daghlian needs to use the stool continuously we need to assess the adequacy of the stool currently used. The stool used would be described as, round seat with four `fixed' (no movement) metal legs. My own unqualified opinion is that the stool should be of a design incorporating back support and some flexibility in back/support to aid in movement required to serve customers.
Should you require any further information please contact me on the telephone number above.'
That request or recommendation for what may be described as a more structured stool for the benefit of the applicant was never adopted by Australia Post executives, much less implemented, yet there is no evidence of any rejection of Mr McNamara's opinion and suggestion having been communicated by Australia Post executives to him.
(iv) The report of Ms Brackenrig of 29 May 1997 of Australia Post to Mr McNamara of Manly Post Office, made in the light of the reports of Ms Newton and Dr Chen earlier extracted herein, reading follows:
`Sara was examined in September 1996, by Dr J Chen, Consultant in Occupational Medicine.Her findings were, that Sara had a history of bilateral heel pain and bilateral varicose veins, and that wearing of compression stockings would probably assist in increasing her standing tolerance. Dr Chen also recommended that she avoids prolonged standing. It is appropriate for her to interrupt periods of standing with short periods of sitting on an appropriate stool.
Dr Chen concurred with Ms Newton's recommendation on the Workplace Assessment of May 1996, that Sara can sit on the stool for short periods in between serving customers. She also mentioned that she was not to sit on the stool whilst reaching for items or serving customers.
As previously discussed, Sara may sit on a stool, but when she serves a customers or needs to reach for items across the counter or below the counter she must stand up, otherwise she could be putting a lot of other stresses on her body. Sara should also take action to assist her condition, that is she should purchase the recommended compression stocking of a medical outlet, and wear them.'
Her report did not assist Australia Post, containing as it did implicit concurrence with the applicant's need for recourse to a `stool' in the limited circumstances therein set out. I should add for completeness that Ms Newton, Dr Chen, Mr McNamara and Ms Brackenrig, did not testify in the proceedings.
Further structural change to lay-out of Manly Post Office (circa 1998-1999)
16 About two or three years following the 1996 structural alterations to Manly Post Office, Australia Post again redesigned and refurbished the lay-out of the Manly Post Office, and the `island' retail counter was removed and a new counter installed. Counsel for the applicant described the latter as a `traditional counter'. The applicant was designated a work area at one end of the counter, with the consequence, so counsel for the applicant contended, that no other employee needed to pass behind the applicant's workstation. The applicant testified that she was allowed to continue to use her stool during those years of further structural change, her stool (being apparently still identical to that which she had been using at least since 1991) being placed `away from the counter', so as to minimise any `perceived trip hazard', to adopt the applicant's descriptions. There is no evidence of any offer having been made by Australia Post to the applicant to replace that apparently antiquated form of seating. No other employee, the applicant asserted, ever needed to walk behind her workstation, and none of her fellow employees, she further asserted, ever tripped on her stool on any occasion. She said that she continued to stand for part of her working hours, and to `move into the retail space when necessary', doubtless to serve members of the public at the retail counter. Moreover the structural change did not carry in its wake the removal of the trolleys used by the counter staff for the transportation of parcels to and from the mailroom located behind the space where the counter staff, including the applicant, were stationed, notwithstanding that the wheels on the trolleys could constitute a trip hazard, a matter which was common ground in the evidence of the parties to the proceedings.
Australia Post executive's deliberations upon and formulation in 1999 of a policy on the provision of chairs and stools at retail counters
17 Prior to 12 May 1999, Australia Post's Human Resources Department in New South Wales had set about the consideration or formulation of policy on the utilisation of `chairs/perch stools' at its retail counters for medically restricted staff. On that day, the following conclusions were reached by officers of the Department (as recorded by the Group Manager Human Resources):
`1. Staff will not be permitted to perform Retail counter duties from a seated position. This advice will be clarified in the revised National Policy on the provision of chairs for employees performing counter duties in retail outlets.2. Under certain circumstances, outlined below, a chair or stool - positioned away from the counter - may be provided for medically restricted staff on which to intermittently sit for rest purposes while not serving at the counter. Three criteria must be satisfied for the provision of the chair:
* That there is sufficient clear space for provision of the chair without encroachment of working space or staff access/egress;
* That there is sufficient medical evidence supporting the need for seated rest by the affected staff member;
* That the facility is able operationally to accommodate the chair and other issues associated with the requirement of the affected staff member to intermittently sit and rest.'
It was foreshadowed that those factors would be incorporated into a revised national policy for the provision of chairs to employees performing counter duties in retail outlets, which was to be distributed for comment in draft form prior to general release.
18 In the result, Australia Post's Group Manager (Mr S Parkes) wrote to Australia Post's General Manager on 4 June 1999 as follows:
`PROVISION OF CHAIRS/STOOLS AT RETAIL COUNTERSI refer to my letter of 31 March 1999 advising of Australia Post's policy on the provision of stools/chairs for medically restricted staff performing counter duties in retail outlets.
Given concerns raised about the possible misinterpretation of the policy and a resultant abrogation of our duty of care, it has been decided to re-issue the policy so as to remove any possible misunderstanding. The policy statement is at Attachment 1 and supersedes that issued on 31 March 1999.
The policy incorporates the outcomes of a recently conducted recent OHS risk assessment of the suitability of medically restricted staff using a sit/stand stool whilst performing counter duties at Australia Post retail outlets. The outcome of the evaluation, which was undertaken by Mr David Nelson, Corporate Ergonomist, was that the application of chairs/stools for counter based work be disallowed for OHS reasons. His conclusion was that the cupboard design under the counter top and the absence of a knee-well in the current design of the counter/work station creates restrained working postures while sitting and working at the counter which can become further constrained by the limited working spaces. Such postures are known to be the cause of long-term degeneration of the musculo-skeletal system.'
19 The policy statement referred to and attached to Mr Parkes' report was in the following terms (the underlining appearing was apparently present in the original text):
`Australia Post Policy on the Provision of Stools/Chairs in Retail Outlets
Australia Post's position regarding the provision of stools/chairs in retail outlets is that the use of chairs/stools is not permitted whilst performing any counter duties. The reason for this is that the design of the retail counter does not facilitate the use of seated operations and the use of stools/chairs in these circumstances introduces O.H.&S hazards for staff.
However, an approved chair/stool positioned away from the counter may be provided for medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken led by an OHS Adviser.
The following three criteria must be satisfied as part of that risk assessment, namely that there is:
1. Sufficient clear space for provision of the chair/stool away from the counter without encroachment of working space or staff access/egress. Generally it is considered that a "free space" of 1 metre x 1 metre will be required to accommodate a chair/stool. A clear space of approximately 1 metre is also required behind the counter for standing work and means-of-access at all times. Therefore, an overall minimum clear space of 1 metre x 2 metres (width x depth) is necessary for accommodation of a chair;
2. Medical evidence supporting the need for intermittent seated rest by the affected staff member away from the counter. The medical evidence should specify the time-limits, the employee may stand and work continuously, and the anticipated duration of these restrictions as it is not envisaged that the provision of a stool or chair would be an indefinite arrangement; and
3. The facility is able operationally to accommodate the chair and other issues associated with the requirement of the affected staff member to intermittently sit and rest. This will involve an examination of the system of retail sales work that prevails in that office so as to establish the effects of that change. The examination must establish that the chair/stool does not represent a hazard by impeding other staff movements or workflows.'
Australia Post did not subsequently provide for the applicant `an approved chair/stool positioned away from the counter', notwithstanding that she doubtless qualified as a member of staff who was `medically restricted'. The difficulty which nevertheless confronted the circumstances of the applicant, in the light of the text of the policy released on 4 June 1999, was whether her workstation created by the 1999 building alterations to the Manly Post Office (either independently of or by way of modification to the 1996 alterations), satisfied the first and third criteria above extracted as to sufficiency of `clear space' for the provision of an `approved chair/stool', and if not, whether Australia Post was prevented for structural reasons from providing any such `clear space' behind the counter where she worked, such that `... it did not represent a hazard by impeding other staff movements or workflows'.
20 It is unclear why two months later, the applicant obtained from her general practitioner Dr Artinian two further medical certificates on standard Australia Post forms, presumably submitted to Australia Post, containing the following information:
`...she will need to use a chair when required due to pain' (3 May 1998).`...she will need a chair to rest her back and feet from time to time permanently' (24 July 1999).'
The status quo of the applicant's work practices appears to have prevailed in any event for more than a year after the formulation of the new policy.
21 In about May 2000, the applicant testified, initially by her first affidavit of 4 October 2001, that one of the managers of Australia Post's Human Resources department, whose name she could not then remember, said to her at the Manly Post Office inter alia: `[y]our pain is normal because of old age. When are you thinking of retiring? How long are you going to continue working for Australia Post'? or words to that effect. She responded `as long as I can', and `at least until 65'. In her second affidavit sworn on 28 June 2002, she identified that person to be Mr Skeen, the Human Resources Manager (Retail North) of Australia Post, who had made an affidavit in the meantime on 23 May 2002 as to what he saw at Manly Post Office on an occasion approximating in time to that recalled by the applicant. He made no contemporaneous note in relation to that visit, nor did he appear soon afterwards to evince any official reaction to the applicant's working practices. Mr Skeen in his affidavit said that he did not know whether he was the person to whom the applicant had referred in her first affidavit, though I would infer that to have been the case, since he did attend Manly Post Office in May 2000 and noticed that the applicant was sitting on a stool at the end of the counter serving customers, which was located in such a way that no other staff could access the area, so he contended, without the risk of tripping on the stool. He denied the applicant's account of the conversation between them the subject of her first affidavit, but said that he asked her `How long do you propose to continue working for Australia Post?' to which she replied, `I would like to stick around as long as I can and at least to 65'. Mr Skeen did not make a note, contemporaneous or otherwise, of the conversation.
22 In her affidavit in reply, the applicant re-affirmed her foregoing version of the conversation, and conceded that she may have said `at least until 65'. In his oral evidence in chief, Mr Skeen said that his observations made of the applicant, when she was at the counter occurred in the absence of any conversation between them, and that the conversation occurred subsequently in the lunchroom. In her oral evidence, the applicant refreshed her memory from a contemporaneous note which she had made on the back of an envelope when she went home (the envelope was marked for identification but not tendered by either party in evidence), and claimed that Mr Skeen said to her that she should retire, and asked her `how long do you want to work, if you cannot stand up, it means that you cannot work in a retail shop like David Jones and Grace Bros, so you need to retire'. In his oral evidence, Mr Skeen said that he went to Manly specifically to investigate the applicant's circumstances, with the objective that `[I]f it was reasonable to make an adjustment to the workplace, I would organise that to happen', and further that `[i]f it was impossible to undertake... particular change, then there would be other consequences which I would manage on their merits'. Under cross-examination, Mr Skeen denied that he said to the applicant on that occasion words to the effect that she should retire because she was 56 years of age, but he did agree in the course of cross-examination that `... what we were trying to do was to turn Australia Post away from a public service over the counter type of organisation into this more retail oriented organisation not unlike Coles Myer...'.
23 Mr Skeen further testified in his affidavit that what he saw on the above occasion was the applicant sitting on `a very very old stool', which was `ergonomically inappropriate', and which `would put us in breach of the Occupation Health and Safety Act', and further that Australia Post's policy was that post office staff, as distinct from administrative staff, were not to be seated. Consequently he considered himself obliged to find alterative employment options for the applicant in an administrative role, and not to leave the applicant in her `particular environment' on the post office counter. He said further that `... in any post office environment including Manly, it was not possible to, for example, cut a hole in the counter so that she could be placed closer to the counter on a seat', irrespective of Mr Nelson's so-called evaluation referred to in [18] above and in any event, `[t]hat was still inappropriate from a safety perspective', for reasons he did not appear to explain. In any event, Mr Skeen claimed that his 15 years of experience with post office counters, particularly where there is a small area of space for counter staff, was that `... chairs... are definitely a hazard behind counters', and further that he had seen many instances of tripping because of the restricted space available due to the presence of chairs and counter trolleys.
24 The following observations may be made in relation to Mr Skeen's affidavit testimony:
(i) He did not take steps to obtain for the applicant an ergonomically appropriate stool or chair, despite what he recorded in his observations made in May 2000;
(ii) He gave no precise reasons for his view that irrespective of the availability of any `ergonomically designed seat', there was a risk of aggravation of the applicant's so-called `significant degenerative back condition', in circumstances which would have placed Australia Post in breach of whatever aspect of the Occupational Health and Safety legislation he had in mind; in that regard there does not appear, from the abundance of medical reports relating to the applicant provided after 1991, that her disabilities and discomforts had since deteriorated, in any event to a material or significant extent;
(iii) He gave no detailed reasons or explanations for his thesis as to the impossibility, whether structural or financial, of implementing appropriate alterations to the counter; nor is it apparent that he sought any expert building or architectural advice on the subject; and
(iv) He gave no apparent weight to the circumstance, which the applicant had postulated, and which it is likely his investigations would have revealed, of the absence of any evidence to the effect that the applicant's working habits the subject of his criticism had not been the cause of, nor had contributed to, any tripping on or against her stool during her preceding 10 or so years of service with Australia Post.
In relation to that absence of evidence of tripping, evidence was given on behalf of Australia Post by Mr Adam Lowe (whose evidence is later referred to in more detail) that not only was he unaware of any record of tripping on the applicant's stool, nor indeed generally at Manly Post Office, during the period of his tenure commencing in May 1996, but that Australia Post kept `very good records about accidents', in relation to which particular forms were required to be filled out and lodged.
25 On or about 24 May 2000, Dr Artinian completed yet another Australia Post standard form of so-called `Fitness For Work Certificate' in relation to the applicant, containing the following:
`Full duties & osteoarthritis lower back & bilateral spur of heels & will need a chair & back support on & off.'
The expression `on & off' did not of course imply any need for the applicant to be permanently seated at work. The report was provided to Australia Post. Subsequently on or about 20 June 2000, Dr Kandine, a medical practitioner specialising in rheumatology, provided a medical certificate for the information of the Manly Post Office administration, in the following terms:
`This is to certify that I examined Sarah Daghlian on 20/6/2000 - in my opinion she is suffering from spondylitis - she will need to have opportunity to sit on chair to rest back & legs permanently (while serving on counter) and have a course of hydrotherapy at Manly Hospital (about 12 weeks).'
That report was at worst equivocal. The interpretation which seems to me to be the more likely, consistently with Dr Artinian's report, is that `permanently' was intended to qualify `opportunity'. The expression `while serving on the counter' would appear to refer to the times when the applicant was engaged in counter duties, in contrast to those less frequent duties such as word processing (see [7] above). Neither Dr Artinian nor Dr Kandine testified orally or by affidavit in the proceedings. As appears in [46] below, Australia Post asserted that it was on the basis of those reports that the decision was made to relegate the applicant to sick leave, albeit not until seven or eight months later.
26 On 29 May 2000, a comprehensive workplace assessment was carried out by Ms Beazley, an Australia Post occupational health and safety advisor with post-graduate qualifications in ergonomics, on the instructions of the abovementioned Mr Adam Lowe, an executive of Australia Post who was subordinate in the Australia Post administration to Mr Skeen. In the words of the applicant, `Ms Beazley recommended that my stool be removed'. Ms Beazley testified both by affidavit and orally in the proceedings. I infer that she had been provided with the so-called `Postal Services Officer - Statement of Inherent Requirements' bearing date 3 May 2000, and was said to have been endorsed by the `State Manager Retail NSW and ACT', for the purposes of her report.
27 The material contents of Ms Beazley's assessment of the applicant are set out below:
`NORMAL DUTIES: Ms Daghlian reported that her primary tasks as a Postal Service Officer are counter duties.Counter work: This duty involves standing to serve customers at one of several service counters, each with a work surface located at waist height. Various transactions are carried out at the counter including retail and stamp purchases, various bill payments and other banking services using an EPOS (Electronic Point of Sale) register. The EPOS system consists of a standard "QWERTY" keyboard located on the bench at waist height, and a 9-inch VDU (Visual Display Unit) situated at head height. A counter drawer set in the top of the counter is frequently opened and closed so stamps/money can be collected and removed from the drawer and the cash advance maintained. Keyboard activity at the counter is interspersed with other aspects of the duty, including assisting customers to select products.
Stock presentation/Re-stocking: This duty involves maintaining a high standard of presentation of retail stock on shelves and involves straightening articles (ie stationary etc) on shelves and dusting. Shelves range from the floor up to head height.
Parcels: Parcels are received from customers and placed on the counter weigh scales, and parcels are retrieved from the parcel room, or a cupboard directly behind the main counter. Parcels vary in weight, with the average at approximately 3 kg.
Removal of advance from safe: The money tray and stamp books (wgt. approx 5 kg) are removed and carried from the safe to the counter. This may require opening heavy safe doors and squatting down to remove the money tray if kept on the bottom level.
WORK RESTRICTIONS: Medical certificate provided by Dr J Artinian 24.7.99 (this has already been earlier reproduced).
Needs a chair to rest her back and feet from time to time.
WORKING HOURS: Normal Hours.
ADDITIONAL INFORMATION GATHERED DURING WORKPLACE ASSESSMENT
1. Ms Daghlian was observed sitting on a non-swivelling circular four legged stool. The stool was positioned in the far end of one of two counter areas out of any thoroughfare. The stool was considered to be `quite heavy' when attempted to move with one hand. Whilst sitting on the stool Ms Daghlian's feet were positioned onto a small letter tray that was turning onto it's side against the under counter shelving. The open aspect of the letter tray was orientated towards Ms Daghlian.
2. Whilst sitting on the stool Ms Daghlian demonstrated a perched posture on the front half of the stool. Her knees were much lower than her hips and her waistline level approximated the top edge of the stamp drawer handle.
Sitting in the position as described in #1 and #2 raises several unacceptable risks, including:
* Potential for the letter tray collapsing under Ms Daghlian's feet causing her to fall forward;
* Tripping by catching a foot/feet in the letter tray or on a leg of the stool;
* Repetitive twisting and bending of the trunk when accessing the keyboard, money drawer, receipt printer, and customers;
* sustained elevation of arms to perform counter tasks;
* Extended reach to perform counter tasks;
* Static posturing of legs and lower back.
In addition, several risks are associated with standing to perform counter duties with the stool and letter tray positioned at the counter.
* Extended reach/forward bending to perform counter duties as the tray encroaches into the feet space approximately 160 mm;
* Tripping by catching a foot/feet in the letter tray or on a leg of the stool;
* Awkward posturing to access keyboard, money drawer, cheque machine and receipt printer due to position of stool.
The Australia Post Policy on the Provision of Stools/Chairs in Retail Outlets states that `... the use of chairs/stools is not permitted whilst performing any counter duties', due to OHS concerns of the nature described above. The policy goes on to state `... an approved chair/stool positioned away from the counter may be provided for medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken by an OHS Adviser' (the emphasis was provided in the original policy statement, as earlier appears in [19] above).
An area of 1190 mm extends behind the counter where Mrs Daghlian performs her duties currently, which is insufficient for provision of a chair positioned away from the counter.
RECOMMENDATIONS:
1. The existing chair used by Ms Daghlian for performing seated duties at the counter should be removed. Further medical assessment may be required to clarify Ms Daghlian's capacity to undertake counter duties. Specifically, the medical advice should specify the time-limits Ms Daghlian may stand and work continuously, and the anticipated duration of these restrictions.
2. A further workplace assessment should be undertaken, subject to the outcome of the medical assessment described above, to undertake risk assessment on the provision of a chair away from the counter for intermittent rest purposes.'
28 It does not appear that her two abovementioned recommendations were implemented. The following additional observations may be made:
(i) Ms Beazley's report did not refer to, and did not purport to take into account, the previous workplace assessments and reports which I have earlier summarised, and which addressed possible ways and means of accommodating the applicant's circumstances and duties of employment, which, as already indicated, were by no means confined to counter duties (albeit those were her predominant duties), and extended for instance to word processing and accounting for daily monetary balances;
(ii) The report also did not purport to address Mr McNamara's opinion that the applicant's stool `... should be of a design incorporating back support and some flexibility in back/support to aid in movement required to serve customers'; it spoke only of the possible provision of a chair to be used `away from the counter for intermittent rest purposes', in conformity with what had apparently become part of Australia Post's policy one year earlier, which was not in any event possible by reason of the apparent insufficiency of space available in the applicant's workstation, as described below; and
(iii) The report observed that the `area of 1190mm extends behind the counter where Mrs Daghlian performs her duties currently, [being] insufficient for provision of a chair positioned away from the counter'. A distance of 1190 millimetres would seemingly have accommodated room for an appropriate ergonomic chair located immediately behind the standing room adjacent to the counter, of the kind described by Dr Coucher (see [6] above) or by Ms Smith (see [7] above), or by Mr McNamara (see [15(iii)] above), given the applicant's testimony that other employees did not have cause in any event to enter her workstation area at the end of the counter, at least whilst she was on duty (see [16] above), because of insufficiency of space.
29 Ms Beazley provided the following additional explanations concerning her report, in the course of her viva voce testimony:
(i) The references to `tripping by catching a foot or feet' in her report applied not just to the applicant, but also to other employees of Australia Post who had access to the area where the applicant's stool was positioned; however she accepted that she had no instructions as to whether any such tripping had ever occurred during the preceding ten years or so of the applicant's employment at the Manly Post Office; moreover as I have already indicated, there was no room for any other employee to enter her working area whilst she occupied the same;
(ii) At the time she prepared her report, she observed the applicant carrying out her duties for about one hour; it may be inferred that Ms Beazley did not speak to the applicant;
(iii) She took into account in making her assessment the fact that the stool the subject of her report did not provide proper lumbar support, and was therefore not the sort of `...chair that you would want someone sitting on for any length of time'; and
(iv) She agreed that she `may have come to a different conclusion [to that set out in her report], if Australia Post had not had the stool policy that she referred to in her report, and if the stool had not been such an antiquated piece of furniture'. Her task, so she further testified, had been to assess the applicant `with the counter as it was and the stool as it was' in the work place that existed at the time of her report (ie 29 May 2000); and not to make suggestions `about how the counter might be changed'. However she agreed, over objection from counsel for Australia Post, that `there's potential' redesigns of the workstation which would have been of assistance to the applicant's limitations.
30 The applicant testified that prior to the report of Ms Beazley, her work performance had never been criticised or disapproved to her knowledge by or on behalf of Australia Post, and that she had performed her duties to the satisfaction of the management of Australia Post, and moreover that `[t]he stool did not interfere with my duties'. That testimony of the applicant is not inconsistent with the employment reference of Mr Cass Ressel later reproduced in these reasons, which established that so far as Manly Post Office management was concerned, she was a committed and amiable employee. No member of the Manly Post Office staff, that is to say, none of the applicant's fellow employees, gave evidence at the hearing either for the applicant or Australia Post (save as to Mr Ressel's attractive employment reference). The applicant joined issue, for what it may matter, with Ms Beazley's observations that `[w]hilst sitting on the stool Ms Daghlian demonstrated a perched posture on the front half of the stool'. In the course of cross-examination, Ms Beazley modified that contentious observation by conceding that `the weight bearing of Ms Daghlian would have been towards the front half of the stool so not necessarily centred over the seat of the stool', and further that `... the stool seat would have possibly been covered by Mrs Daghlian'.
31 The matter of stool policy for counter staff had continued to be the subject of discussions within Australia Post since the reformation of the policy, or at least the restatement thereof on or about 4 June 1999, that is to say, before Ms Beazley's report was issued. An internal Australia Post memorandum of 21 July 2000 from the Human Resources Department to the Injury Prevention and Management Unit (Mr David Nelson), which was issued after Ms Beazley's report, referred to a suggestion that Australia Post would commission a new counter design that would enable counters to be converted to accommodate chairs for staff with medical restrictions. Instructions upon that suggestion might well have been material to Ms Beazley's report. The response of 22 August 2000 of the Group Manager for Human Resources (Mr Rogan) contained the following:
`...As you will be aware, work has been proceeding for some time on the development of a new national shop fitout/counter... you will also be aware that we have received ongoing representations from the national office of the CEPU regarding the provision of chairs/stools for employees performing counter duties at retail counters.
As far as the new counter is concerned, the CEPU was advised that it would, like all other relevant stakeholders, be consulted on the design and that we would advise the union of investigations into "reasonable adjustment" to the new counter design to accommodate a chair/stool.
...
The new counter is designed for staff to work from a standing position consistent with normal practice at our retail outlets...
...
The union has been advised that our policy position on the provision of chairs/ stools allows for:
"The provision of an approved chair/stool positioned away from the counter, for pregnant and medically restricted staff, where warranted, for intermittent rest purposes, subject to a risk assessment being undertaken by an OHS Adviser Where the outcome of the risk assessment is that a stool/chair cannot be positioned at the outlet where the employee usually works, investigations will be undertaken to determine whether this can be accommodated within another outlet within the employee's work area."
...
The commitment given by Australia Post to the union at the Retail Consultative Forum is that a design accommodating seating behind the counter will be commissioned... The risk assessment will need to be undertaken by the corporate agronomist and the union will be invited to participate in that assessment which is expected to take place in early September 2000 ie after delivery of the approved it-stand stool.'
The applicant would fall within the above description of `medically restricted'. It is unclear from the evidence as to whether any such chair/stool was ever approved by Australia Post.
32 Mr Nelson's response of 5 September 2000 included the following:
`...The situation regarding chairs behind the counters is clear cut: the policy of A.P. is not to allow them due to egress way restrictions at a counter and ancillaries, built for standing.
The CEPU are opposed to the policy and want an (industrial?) agreement with [Australia Post] to allow chairs behind counters.
We believe that the only part of the policy that will allow sitting behind a postal shop counter, is that of a rehabilitee where medical advice states that sitting is a required part of the rehabilitation process.
It is envisaged that the only unit likely to work on any intermittent basis behind a counter, is a sit-stand form of seat. A risk-assessment to identify the hazard of the operator chair (fully equipped with 700mm dia base, ringed foot-rest, armrests) and an Ergonomics-Armdec form of sit-stand chair (the only type to be certified), is to be undertaken soon in the "model retail shop". I am awaiting the operator chair and foot-ring. If you desire it, I will embody your unit in the risk-assessment process.
It is likely that application of the policy will be extended in such a way that the rehabilitation manager is in control of the `chairs' (and not the retail facility manager), and that the chair be removed by the case manager at the appropriate time from the facility. It is unlikely that retail counter work will be offered under the policy to those staff who require anything more than short-term sitting whilst recovering from occupational injury.'
33 Given the nature of the applicant's work related disability stemming from the circumstances I have earlier identified as having occurred in 1991, it could not be said that by this time, she was involved in any `rehabilitation process' (see again [6] above). On the other hand, the last sentence of Mr Nelson's report might be read as applying only to staff who have not previously worked at an Australia Post retail counter, unlike of course the applicant.
34 The ensuing internal correspondence within Australia Post sought to clarify the then status quo of the process of relevant policy-making. It would seem that the status quo remained the policy reflected in the internal documentation of 4 June 1999 (see [18-19] above), subject only to `... the possible issue of an ergonomically approved sit-stand chair to an employee requiring intermittent seating on a short-term basis and as part of a rehabilitation program', and that upon resolution of that issue and a new national counter design being finalised, `... we will be seeking feedback from the States on the proposed changes to the current policy in relation to the sit-stand behind the new counter module'. In his oral evidence in chief, Mr Lowe said that he considered, `as part of the overall process', whether the existing counter at the Manly Post Office could be modified to enable her `to work safely at a stool behind the counter', and said that `... there is no design available that will allow Mrs Daghlian to sit at a counter, be it with a sit/stand stool or some other form of ergonomic chair that would enable her to conduct the activities that were a necessary part of her day-to-day job at Manly'. Yet whilst no counter modification has been made to accommodate any other employees with disabilities, counter modifications had been made for tall persons, by the creation of a `counter-raiser', so that they could `... effectively operate without stooping... and that actual apparatus could be attached to the top of the existing counter and could easily be removed'.
The events leading to the applicant's deployment from Manly Post Office
35 On 25 January 2001 the applicant met with Mr Adam Lowe (supra), an occupational health and safety manager employed by Australia Post, to whom reference has already been made in [26] above. Mr Lowe had been originally employed by Australia Post as a postal services officer with duties involving 23 locations. From 1990 to 1994, his work specifications had changed to those of a leave entitlements clerk. From 1994 to 1996, his work specifications changed again to that of an assessor/personnel officer in the Human Resources Department for the geographic region which encompassed Manly Post Office. Mr Lowe had a bachelor degree in occupational health and safety, a human resource practising certificate and an advanced certificate in personnel management. Also as earlier indicated, Mr Lowe was subordinate to Mr Skeen. Mr Lowe said to the applicant, according to her testimony, `you are to stop using the stool. I will be back in two weeks to take it away'. Mr Lowe does not appear to have denied the essence of that direction. He admitted to having been aware of the applicant's use of her stool since about May 1996. Mr Lowe did not subsequently return to Manly Post Office to take the applicant's stool away from her in any physical sense, though the applicant said that she was `too scared to continue using it'. Mr Lowe did not offer to replace the applicant's stool with a chair or stool away from the counter, where `warranted for intermittent rest purposes while not serving at the counter', to cite an expression used in Australia Post's policy statement of 4 June 1999, though in her case, she would have required a facility to that effect for the remainder of her working life. I confess to finding Mr Lowe's seemingly abrupt conduct somewhat enigmatic, not merely by reason of what I have earlier said in [24] above. Although he sought to justify the applicant's use of her stool as a trip hazard, `... because of the way it protruded in areas where there was very little space and where other employees have to have access to', he agreed in cross-examination that he did not `observe other employees having to have access to that area'. Moreover he also agreed that Australia Post made no suggestion that the applicant did not enter upon the post shop floor to sell products, as part of her responsibilities.
36 Mr Lowe testified that the applicant's reaction to the possibility of new employment opportunities of an administrative character as distinct from a counter description, if any such position became available at places in southern Sydney, Strathfield and Hornsby (no such opportunity of course existed at the Manly Post Office, or it would seem, anywhere on the northern beaches or lower north shore), was that of rejection, though she ultimately said to him that she was prepared to work at Australia Post's head office and administrative centre for the State of New South Wales at Strawberry Hills, where a temporary position had become available for seven days, during which time a vocational assessment of the applicant by Australia Post would be made. He further said that when he spoke to the applicant during that time, she said `I find it difficult walking from Central to Strawberry Hills. It is hurting me'. Mr Lowe's reaction was that `... he started to think that perhaps Strawberry Hills was not really an option as, even if a permanent position was found at Strawberry Hills, the applicant would be unwilling to take it up'.
37 On 12 February 2001, Mr Lowe wrote to the applicant in the following terms:
`PROVISION OF CHAIRS/STOOLS AT RETAIL COUNTERSI [r]efer to our previous meetings and discussions regarding Australia Post's Policy on the `Provision of Chairs/Stools at Retail Counters'.
You will recall that on 25 January 2001 you were offered an additional two weeks `fair opportunity' to provide further information to Australia Post relating to your medical condition and to consider your availability for redeployment.
I wish to advise that your two week "fair opportunity" period has expired. Given there has been no further information provided I have asked your Postal Manager, Mr Cass Ressel to instruct you that as from close of business today (12/2/01) you will no longer be permitted to use a chair or stool at the counter. You should be aware that if you fail to adhere to this instruction disciplinary action may be taken against you.
Australia Post is aware that you currently have a medical condition which requires permanent restrictions and would like to refer you to the Commonwealth Rehabilitation Services (CRS Australia) for a Vocational Assessment. The purpose of this assessment is to determine your inherent transferable skills and abilities in order to consider redeployment options both within and if necessary, outside the Corporation.
If you wish to avail of the opportunity of referral to CRS, you will need to tick the appropriate box and return the attached release authority to Cass Ressel who will forward it to me. For your information, CRS Australia provides vocational assessments for staff who need to seek alternative employment as a result of being unable to meet the inherent requirements of their position due to medical restrictions. The assessment results may assist Australia Post to determine if there are any suitable redeployment options either with the Corporation or in the wider community where your restrictions can be accommodated.
CRS Australia conducts a detailed assessment of your skills and abilities based on work history, education, etc and given the medical restrictions then provides a report which identifies specific fields of employment to which you may be suited. Australia Post will pay for this assessment.
If you agree to attend CRS Australia, I will make a referral and a CRS employee will contact you to arrange an appointment time. If you choose not to accept the offer of a Vocational Assessment, it may be more difficult for Australia Post to determine redeployment options for you and subsequently lead to a direction to take sick leave.
To enable this assessment to be arranged and further redeployment possibilities to be investigated, suitable duties will be provided until Friday 23 February 01. The provision of short term suitable duties may require you to temporarily change location, however any provision of long term duties will require your permanent transfer from Manly. You should be aware that the offer of redeployment is dependent on suitable vacancies being available. Failure to identify a suitable vacancy by 23/2/01 will lead to a direction to take sick leave.
If you wish to clarify any aspect of this letter or discussions to date or have any questions relating to possible future outcomes please contact me on 49 743 186 or 0417 247902.'
It is unclear what was the `further information... relating to your medical condition' which Australia Post had in mind. Ms Beazley's report had been on hand since the end of May of the preceding year.
38 Contemporaneously with Mr Lowe's above directions of 14 February 2001 given on behalf of Australia Post to the applicant, the Postal Manager at Manly Post Office, Mr Cass Ressel, who was identified in those directions, provided the following employment reference bearing date 14 February 2001 in relation to the applicant:
`To Whom It May ConcernThis is to verify that I have known and worked with Sarah Daghlian for over two years.
Sarah is punctual, well presented, always responsible, courteous and helpful with dealings with our customers and me.
She is committed to her job as a postal services officer, accurate and a good learner.
I have always found Sarah to be honest and I have no hesitation in recommending her to any position now or in the future.'
No testimony to the contrary of that employment reference has been adduced by Australia Post in evidence. Whether the reference (or a copy thereof) was provided to Mr Lowe at the time is unclear.
39 At the time when the above letter of offer of 12 February 2001 was written by Mr Lowe on behalf of Australia Post to the applicant, the likelihood of any redeployment of the applicant elsewhere in Australia Post, at least within what might conceivably have been a reasonable travelling distance from Manly for a person having the applicant's physical handicaps, would seem to have become close to unlikely, if not virtually remote, if the content of the letter of 12 February 2001, together with the following affidavit testimony of Mr Skeen as to his investigation of feasible working opportunities for the applicant, from and after his initial meeting with the applicant in about May 2000, are any guide:
`...we certainly looked at other employment options in an administrative role, for example, in many many other locations. Mrs Daghlian indicated to me that she wasn't prepared to move outside the Manly area initially and that certainly not beyond that northern beaches type of area. So I made exhaustive inquiries personally from everywhere, from the area manager's office in Hornsby down through all the postal centres in the north shore delivery centres and so forth and into our State head office at Strawberry Hills for opportunities. I think I personally made phone calls nine times to these different area managers and so forth over the period of time to ensure that there wasn't any options because clearly this case was taking some time to manage.'
All of those endeavours on Mr Skeen's part were directed to locating a vacant administrative position, and not a position as a postal officer behind the counter, such as the applicant had undertaken at the Manly Post office since 1989.
40 On 15 February 2001, Australia Post (Mr Lowe) notified the applicant as follows:
`TEMPORARY PLACEMENT - RETAIL SUPPORT GROUPI refer to our recent discussions (through the CEPU) regarding the application of Australia Post's policy on the provision of chairs/stools in Retail. As mentioned by Peter Jones (CEPU) arrangements have been made for you to commence temporary duty today (15/2/01) at 8.30 am with the Retail Support Group at the State Head Office in Strawberry Hills.
I wish to confirm verbal advice that you should report to the reception area at State Head Office, Ground Floor, 219-241 Cleveland Street, Strawberry Hills, where arrangements will be made for someone to meet you.
As mentioned to Mr Jones your temporary placement is in the EPOS Help Desk area and will be until the end of your shift on Friday 23 February 2001. During your time at State Head Office you should report to Jing Tanghok who will assist you where needed and provide you with details about your specific work tasks.
Whilst at State Head Office you will also be contacted by Cheryl Ferrington from the Medical Assist Unit who will arrange your Vocational Assessment. Ms Ferrington will provide you with details such as an appointment time and date and any other necessary information.
You should be aware that no long term employment options exist within the Retail Support group at this stage, however I can assure that attempts are being made to explore the possibility of further placement beyond 23 February 2001.
If you wish to discuss or clarify any issues associated with this temporary placement or possible redeployment options please contact me on 49743186.'
41 The applicant attended the Australia Post administrative centre at Strawberry Hills for the scheduled six days, one of which involved a vocational assessment, and the others of which were spent in the Call Centre located in those premises, where administrative duties were undertaken by her. After her tenure of nearly 12 years at Manly Post Office, which appears to have been mainly a happy one, the circumstances of the so-called `fair opportunity period', combined with the content of Mr Lowe's letters of 12 and 15 February 2001, appears to have been a somewhat traumatic experience for the applicant. The change of location of employment to Australia Post's Strawberry Hills Centre from the Manly Post Office involved not just significantly greater travelling distance and cost (ie an additional $75 per fortnight), but also travelling difficulties she had not previously experienced. The change also obviously involved cessation of the personal relationships which she had doubtless, I would further infer, from Mr Ressel's reference, previously enjoyed, both with fellow employees and customers of the Manly Post Office, and was not a readily comparable employment alternative. Indeed the change of employment for a woman, in her declining years, and in her physical condition, from that environment to a large head office administration (which was a significant distance from her home), was doubtless traumatic. Mr Lowe may have later implicitly recognised those circumstances, by reason of the improvements to Australia Post's terms of offer of employment at Strawberry Hills made about 6 months later, in the context of the litigation in the Australian Industrial Relations Commission commenced by the applicant against Australia Post on 9 August 2001 (post). The daily journey for the applicant, from Manly to Strawberry Hills and return, was said by the applicant to have involved up to 2½ hours, encompassing bus, ferry, and train travel. Particularly was that change of the applicant's location of employment a formidable one for a woman of her age and of her physical circumstances to encounter, involving the adverse implications to her of managing the stairways between Circular Quay wharf and Circular Quay Railway Station, together with the walking distance of about 10 minutes duration between Central Railway Station and Strawberry Hills, and her apprehension, whether entirely justified or otherwise, of physical assault and robbery in inner city localities unfamiliar to her. When confronted in cross-examination, Mr Lowe indicated that there was nothing contained in the medical reports as to any difficulty which the applicant experienced in walking, as distinct from standing, but I do not think that in the present context, it was realistic of Mr Lowe to postulate in effect that standing and walking were mutually exclusive concepts in any relevant sense. The applicant testified that the Strawberry Hills' employees of Australia Post did not leave the environs of the building during lunch time, `[b]ecause they told me that it was dangerous'. The applicant also said that when travelling by ferry, the seas were sometimes rough, and sometimes in the train, she was alone, and sometimes persons stared at her. Mr Lowe also sought to make the point, in his re-examination, that there was nothing in the medical reports which suggested that the applicant was incapable of managing the travel to and from Strawberry Hills, but of course none of the reports obtained for the purpose of the original Australia Post decision-making in February 2001 were directed to any such issue.
42 On 23 February 2001, pursuant to what he described as his formal decision, Mr Lowe wrote again to the applicant on behalf of Australia Post as follows:
`As discussed at our meeting on 25 January 2001, I confirm that you are directed on sick leave from commencement of shift on 27 February 2001. As from this date, you are eligible to avail of sick leave in accordance with your credits. You will not need to send any medical certificates to support your absence on sick leave.You are being directed on sick leave because:
* you have provided medical evidence dated 22.5.00 from Dr Artinian and medical evidence dated 20.6.00 from Dr Kandine that states the restrictions are required on a permanent basis.
You may remain on sick leave for a maximum period of 78 weeks but will only receive pay during that time in accordance with your sick leave credits. At the expiration of your sick leave credits, if you wish to use any other credits you may have, in lieu of sick leave without pay, you must submit a leave application form to the Human Resources section. The acknowledgement form and leave application form are enclosed for your completion and return to me. A copy of your leave balance report is also enclosed.
If at any time during the 78 weeks you provide, at your own expense, medical evidence that you can meet the inherent requirements of the actual position you currently occupy within three (3) months, your case will be reviewed.
However, Australia Post reserves the right of an AP nominated doctor to review and agree with any recommendations from your treating doctor before your direction on sick leave can be revoked.
...
Any return to work on modified duties is also dependent on your workplace being able to accommodate the medical restrictions.
If you wish, Shared Services will provide you with an estimate of the Australia Post monies and Superannuation benefit that would be paid to you should you elect to retire on medical grounds from the expiration of your paid sick leave and annual recreation leave credits. They will provide this information to you within 2 weeks. You will need to contact me to arrange this.
When you receive these estimates you may wish to seek independent financial advice from an accredited financial adviser. Australia Post will pay up to a maximum of $150 for financial advice. Simply send your receipt to me and I will arrange for a refund of the $150.
At the expiration of 78 weeks, you will be retired on medical grounds in accordance with Award conditions.
However, if you wish to retire at any time from 12 weeks after the direction on sick leave up to the expiration of the 78 weeks, or indeed if you have any inquiries at all in relation to your current situation, please do not hesitate to contact me on 02 4974 3186 or the Medical Assist Unit on Ph: (02) 9202 6109.'
Mr Skeen said that Mr Lowe had kept him informed of what was occurring in connection with the implementation of Australia Post's chair policy, as it impacted upon the applicant, and in particular the above direction of 23 February 2001, and claimed that he (Mr Skeen) `continued thereafter to try and find alternative duties for the applicant within her medical conditions'. Incidentally, Australia Post led evidence to the effect that according to the terms and conditions of the applicant's employment it was authorised, on receipt of a medical report, to direct an employee to take sick leave for a specified period, `[i]f it is believed that an employee is incapable of performing duty or constitutes a danger to other staff or the public due to the employee's state of health'. According to Mr Brotherson, an employed legal adviser to Australia Post, an employee of Australia Post is in principle no worse off financially if he or she is on sick leave than if he or she is working, and the maximum period of sick leave is 78 weeks, plus such additional sick leave as relates to the period of absence on sick leave within that maximum of 78 weeks.
43 On 26 February 2001, the Medical Director and principal of Northside Sports Medicine at Chatswood (Dr Steel), completed in handwriting an Australia Post `Fitness for Work Certificate', on the instructions of Mr Lowe of Australia Post, in which the following boxes were `ticked':
(i) `Fit for full hours, but restrict overtime'
(ii) `Lifting to a maximum of 5 kg repetitively'
(iii) `Lifting to a maximum of 7 kg for occasion (sic) lift'
(iv) `No repetitive bending/twisting ...'
(v) `No squatting, kneeling, crouching, climbing stairs'
(vi) `No forceful pushing or pulling'
(vii) `Standing tolerance 45 minutes to an hour maximum'.
It may be observed that her `standing tolerance' was certified to be `45 minutes to an (and not per) hour maximum', and her lifting maximum capacity of `5 kg repetitively' had not altered since Dr Coucher's report of 7 November 1991 (see [6] above), but was greater than Ms Beazley's finding of `average at approximately 3 kg' (see [27] above). Dr Steel subsequently provided for Australia Post an affidavit in the proceedings confirmatory of his findings, upon which he was not examined or cross-examined. The duration of Dr Steel's certificate was stated to be from 26 February 2001 to 26 March 2001. `Additional comments' were added as follows (so far as are legible to me):
`Marked obesity, physical deconditioning, poor ? stability ? feet ? her back-feet again.Above restrictions related to Mrs Daghlian's overall physical work capacity with back and feet pain.'
(The question marks are my interpolation.)
Mr Lowe said that he considered the applicant to have the so-called restrictions described in pars (ii), (iii), (v) and (vi) of Dr Steel's report extracted above, and added as another so-called restriction `[n]eeds at work to use a chair or stool to rest her back and lower limbs'. He did not say in his evidence in chief why he did not adopt pars (i), (iv) and (vii), particularly par (vii) of Dr Steel's report as well, though in cross-examination, Mr Lowe conceded that there was `[c]ertainly no issue with her fitness for full hours'.
44 Mr Lowe concluded in his affidavit evidence that `[h]aving regard to the said medical evidence (referring thereby to Dr Steel's above report alone) and my knowledge of the work... her restrictions prevented (and prevents) her from doing the following duties', which he listed as follows:
`(a) Lifting, carrying, tipping loads up to a weight of 16kg unaided.(b) Moving (pushing), pulling (wheeler bins and trolleys).
(c) Occasional delivery of mail and parcels up to 20kg with assistance.
(d) Occasional use of step ladder/step stool in the storeroom.
(e) Standing and walking for majority of shift (maximum 7 hours and 21 minutes a day/five days a week).
(f) Reaching, turning gripping requiring repetitive hand, arm and shoulder movements.
(g) Bending.'
A close comparison of Dr Steel's report to Mr Lowe's purported summary of the applicant's restrictions immediately above, discloses a number of significant variations. Moreover Dr Steel's report tended to infer that not much had changed in relation to the applicant's bodily restrictions since 1991.
45 Mr Lowe further said in his affidavit evidence that he was `aware' of the following further circumstances, and held the following views, in relation to the applicant at the time of Australia Post's decision-making:
`(a) that from at least on or about 21 March 1996 the applicant was using a stool behind the counter. Upon visits to Manly Post Office I saw the stool and regarded it as a trip hazard because of the way it protruded in areas where there was very little space and where other employees had to have access to. I therefore told the applicant to remove it.(b) based on the material referred to below and also upon my experience, I formed the view that reaching and serving customers while seated was not recommended because:-
(i) The concerns were that to reach across the counter from the seated position accentuates the reach issues already caused by the static seated position.
(ii) Employees of necessity had to adopt awkward neck/trunk and upper limb postures to service customers across the counter and utilise other equipment.
(iii) Awkward neck/trunk and upper limb postures identified as risk factors for manual handling injury.'
As to par (a) above, Mr Lowe's observation is at odds with the evidence of the applicant which I have recorded in [16] above concerning the absence of any need for other employees to walk behind the limited space of her workstation, and also with what was observed by Ms Beazley namely that `[t]he stool was positioned in the far end of one or two counter areas out of any thoroughfare'. As to par (b) above, the entire focus thereof is upon matters related only to the applicant's occupational health, and not the safety of any other employees, yet those matters could not be said to have derogated from the performance of her duties as an employee of many years standing. It is true that the matters in par (b) could conceivably lead to physical health functioning problems, and as a consequence to possible workers compensation and related claims, but there is no evidence of any such claims having been made by the applicant for those reasons, or at all.
46 Mr Lowe gave the following explanation, in the course of cross-examination, as to why he instructed Dr Steel to examine and report on the applicant:
`I was concerned at that particular point in time that we were in the process of directing her on to sick leave. We wanted to [be] clear whether or not there was any work-related incident. It would be unreasonable for us to direct her on to sick leave if there was a workers compensation matter and then subsequently expect our Corporation to pay a workers compensation incapacity payment... That medical certificate [of Dr Steel] supported the decision that we had essentially made on 23 February that Mrs Daghlian didn't meet the inherent requirements of her position as a postal service officer at Manly. It wasn't communicated in the decision, obviously, at that point in time. We'd based our decision around Dr Artinian and Dr [Kandine's] assessments. Certainly, in Dr Steel's case it certainly supported the decision that was made.'
In further purported explanation for the apparent delay in Australia Post acting upon the earlier reports of Doctors Artinian and Kandine (and presumably also the report of Ms Beazley), Mr Lowe also said, inter alia:
`... throughout that process it was re-established that all these particular processes that we were working with that ultimately resulted in the direction to take sick leave, were all something we could use; were all processes that should be applied and, in the meantime, some extensive work went into examining redeployment options for Mrs Daghlian and, essentially, the opportunity at Prince Alfred Park at Strawberry Hills arose, and then, essentially, when it evaporated the direction to take sick leave took place.'
47 Mr Skeen's viva voce testimony in chief was substantially more lengthy than his affidavit evidence, and involved very extensive answers, largely to my observation in the nature of advocacy in favour of the course taken by Australia Post under the supervision of himself and Mr Lowe. The following excerpts from that viva voce testimony in chief serve in my opinion to exemplify those observations:
(i) `Mrs Daglian was sitting on a stool. I fully understood that there are ergonomically designed chairs but this was completely inappropriate in terms that it was a very very old stool... so my particular concern with Mrs Daglian was that no matter what seat she was sitting on, whether it was an ergonomically designed seat or otherwise, having a straight counter... with Australia Post having this need to have three separate areas in which they operate their job would require her to move and change the position of her body. Given that she had... quite a significant degenerative back condition, that made me very concerned immediately... that the risk of aggravation of that condition was quite high and that that would place us in a breach of the Occupation Health and Safety Act and clearly I had obligations not to place her in an unsafe position. So my immediate reaction to that was, look, is there an alternative, a reasonable alternative to allow Mrs Daglian to continue to be seated despite the fact that our policy says that our staff wouldn't be...'(ii) `... we made exhaustive investigations between myself and Mr Lowe and other professionals from both Melbourne and Sydney about alternative options and there were no seated options available... in any post office environment including Manly, it was not possible to, for example, cut a hole in the counter so that she could be placed closer to the counter on a seat. That was still inappropriate from a safety perspective. There was no other... sit stand stool or any other particular type of seating arrangement available anywhere that we could research that would allow Mrs Daghlian to remain doing her postal services officer position at Manly or any other post office without continuing to have her placed at risk?'
(iii) `So on that basis, we certainly looked at other employment options in an administrative role, for example, in many other locations. Mrs Daghlian indicated to me she wasn't prepared to move outside the Manly area initially and certainly not beyond that northern beaches type of area. So I made exhaustive enquiries personally from everywhere, from the area manager's office in Hornsby down through all the postal centres in the north shore delivery centres and so forth and into our State head office at Strawberry Hills for opportunities to have an administrative or seated position. There were no opportunities...'
(iv) `Subsequently and... at the period of time when the negotiations in respect of Human Rights Commission matter was being progressed, our continued research in terms of new opportunities was going on and I was in consultation with the manager retail who was in fact my immediate manager at one stage and he informed me that they were restructuring the retail administrative positions down there at the time. By the way, that has happened every year for the last 5 years, so it wasn't unusual that this was continuing and he informed me that there was a possibility of a position at or slightly above Mrs Daghlian's substantive position that was likely to come up in the near future. That was one of the reasons why we organised a location assessment for Mrs Daghlian at that time to determine whether she would be capable of undertaking those administrative type roles and which turned out to be quite true. She was certainly deemed as to be capable and on that basis I then sought approval from the particular manager to automatically approve Mrs Daghlian's placement in that position if she was prepared to accept it as part of a reasonable alternative, redeployment option.'
(v) `The answer from every person that I inquired with, and the results of this research, were that... providing an ergonomically designed chair with a back on it but placing it at a counter and then operating from that chair in the type of work that Australia Post employees do, would be unsafe... Australia Post work is not the same as a bank for example because a bank does not do issues involving particulars and weighing articles on the scale for example and the computer... [i]t is a completely different environment, the volumes are different... clearly a different function is going on here and if you are involved in any work that creates a bending and stretching and reaching of the trunk, it creates a bending and reaching of the trunk... it creates a significant potential injury...'
(vi) `... there is a safety hazard with chairs behind counters, because I've been involved in 15 years when chairs were there, and they are definitely a hazard behind counters... I've seen many, many occasions where people have, in fact, tripped and/or had incidences where it has not involved the actual chair itself, but its because the chair has restricted the space between... the wall and/or any other issues behind the person and the chair but, in any case, look, there is a trip hazard with chair...'
(v) `... when Mr Lowe and myself commenced our statistical analysis... or counted the number of incidents, we started in our area about 5 or 6 years ago with 98 compensation claims per year in our area, and about 4-320 or so incidents per year. After we reduced - after we eliminated the chairs and implemented some more stringent safe working practices and processes, the number reduced from 98 to 3 compensation claims, and the incidences reduced from over 300 down to 90 per year. Now I'm not saying that's because we withdrew the chairs all up, but there is clearly a significant impact in terms of safety...'
(vi) `... the trip hazard is real... the Newcastle Post Office has just completed a trial for 3 weeks of a sit/stand stool... it is my understanding or I've had personal conversations with the staff there... as to what the result was, and they said... 50 incidences of trips, kickings and otherwise of the stand on the sit/stand stool, and their attitude was that they were quite negative towards the particular seating arrangement and recommended against it. So in that situation the trip issue is a real one from their perspective and that's not me, of course, that is individual staff.'
I would observe that no records or other documentary material were produced in support of the detail of what Mr Skeen stated in pars (vi) to (viii) above, and no hint of that evidence appeared in Mr Skeen's affidavit. When counsel for the applicant called upon Australia Post to produce the internal report the subject of [47(vi)] above, Mr Skeen merely said that he had not brought the same to Court. No attempt was made on behalf of Australia Post to tender that documentary material on the concluding day's hearing of evidence that followed or at all.
48 The following passages from Mr Skeen's cross-examination are reproduced below, also in sequences:
(i) `He denied saying to the applicant that she should retire because she was 56 years of age, or that she should retire if she could not work in a retail shop environment.'(ii) `... we were trying... to turn Australia Post away from a public service over the counter staid type of organisation into this more retail oriented organisation not unlike Coles Myer.'
(iii) `The trouble with Manly was that in the Manly area generally the only administrative work that is available would be at Hornsby in the Ara Office and there's only four people in that office anyway... [s]o in theory if you can't accommodate a person at the Manly post office you wouldn't be able to anywhere within a distance extending to the radius of Strawberry Hills and that was a predicament in which I was placed... If I allowed Mrs Daghlian to remain in that environment and she has an incident... then I'm in breach of the [Occupational Health and Safety Legislation]... I then looked at redeployment options... the only way I could accommodate Mrs Daghlian at Manly was to manufacture a brand new job for her... create an administrative job that didn't exist.'
(iv) `The closest place that was available was Strawberry Hills.'
(v) `Upon being referred to Australia Post's `Reasonable Adjustment Handbook' and in particular the reference therein to `[p]roviding a stand for a person of short stature to allow safe and easy access to a computer terminal on a Retail Post counter' (see [71] below), he said that he was `not personally aware of a person being given a stand to operate an EPOS terminal', and conceded that `to an extent, that stand would be a trip hazard.'
(vi) `He further conceded that the wheels on the trolley (appearing in Ex 2) constituted `... a potential to catch your foot', but that trolleys `provide an advantage...'; he agreed that trolleys constitute `a theoretical hazard in many circumstances', but `that particular trolley is... easily moved... and there are some inherent benefits to it'. He added `having Mrs Daghlian sit at a chair at a counter with a degenerative back problem, stretching and twisting her truck and so forth is to my mind a completely different situation...'
(vii) `I considered providing Mrs Daghlian with an ergonomically designed stool that had a back attached to it but that is not the problem... it is the mechanics involved in serving... the customer and stretching and moving and twisting that medically is a problem.'
(viii) `... the trip hazard is evidence because there's 50 people that tripped over in Newcastle in the last 3 weeks over a chair.'
49 Mr Skeen also testified that `... the position at Strawberry Hills that came up would have been made available to other people who were probably more appropriately qualified for the job, but the decision was made by me in consultation with the retail manager that we would allocate this position to Mrs Daghlian as a special arrangement to provide her with an ability to continue ongoing employment'. However the employment position the subject of that offer on Australia Post's part occurred in the context of discussion about 6 months after the termination of the applicant's employment by Australia Post, and in the context of the proceedings before the Industrial Relations Commission, when the existence of litigation between the parties was, I would imagine, a factor in that offer being made.
50 Mr Skeen's evidence in cross-examination also included the following surprising material:
`... I asked the specific question at least once and I think it was twice, of her as to whether she could potentially work on the counter in a standing position and then take intermittent rest and she said no... I went back to Mrs Daghlian for that clear indication because I mean at the end of the day if the doctor's report said that Mrs Daghlian couldn't use a sit-stand stool or a stool for intermittent rest over in the corner or whatever, that would have been a completely new set of circumstances that I would have considered on their merits. But the clear indication from Mrs Daghlian was `I need to sit at my chair primarily for the whole shift... that's what was said to me... [d]uring a conversation with Mrs Daghlian. The question was asked, and I think I recall Mr Lowe asking the question as well... put it this way, if Mrs Daghlian is prepared to work on the counter and stand - doing the job and taking intermittent rests well I'm quite prepared to look at it on the merits.'
Counsel for the applicant challenged the credibility of that testimony. In any event, no adjournment of the proceedings was sought by Australia Post to enable Mr Skeen `to look at it on the merits'. Similar discussion arose in the course of subsequent cross-examination of Mr Skeen on the second of Ms Beazley's recommendations set out in [27] above, in relation to which Mr Skeen said `If Ms Beazley had indicated to me that that was the case I would have been quite happy to consider that as an option. I would have organised for an assessment to be done because the requirement is if there is a meter space... around the stool and if that space was available we would have looked at it as an option and as a reasonable adjustment'. That was an unsatisfactory answer, since even if the applicant had been provided with a copy of Ms Beazley's report, whereof there is no evidence, it was plainly the responsibility of Australia Post, which commissioned the same, to respond thereto. Apparently however Australia Post did nothing about the report, and instead, about eight months later, initiated the events of [35-40] above. Counsel for Australia Post sought to rationalise its apparent omission to respond to Ms Beazley's report by reason of its subsequent receipt of Dr Kandine's report in the following month, which contained the word `permanently'. At least for the reason which I have indicated in [25] above, and the fact that there is no satisfactory evidence as to Australia Post's proper consideration of Ms Beazley's recommendations, I would reject that purported rationalisation.
51 In answer to a question of mine towards the conclusion of his evidence, Mr Skeen added the following:
`There's certainly been numerous occasions over the years where people of any age have had conditions and they in fact do have limited standing restrictions and we do in fact apply an appropriate modification of their duties for [periods of time]. Another example is... women who are pregnant that need rest towards the end of their term and we would provide them with that as an option... if it was necessary for 5 minutes every hour for Mrs Daghlian to... have a rest on the stool over in the corner... I'd look at that on the merits... But... we're talking about significant lengthy periods where Mrs Daghlian would be required to sit on a stool which would mean she was either not working at all, which is clearly unacceptable, or that she was working on a stool or a chair which reintroduces the medical issues that I discussed earlier.'
I am unable to distil from the evidence thus far reviewed, save possibly as to Ms Beazley's observations undertaken for about one hour, support for Mr Skeen's reference to `significant lengthy periods'. Even then, Ms Beazley's report tends to be equivocal, by reason of the expression twice used by her, namely `[w]hilst sitting on the stool' (see again [27] above), in that she did not record with precision, or at all, the length of time or times for which the applicant was seated in the course of her one hour observation.
52 Mr Skeen's indication that he would review the case for the applicant on the basis of a necessity for five minutes `rest on the stool over in the corner' every hour is somewhat at odds with the Australia Post policy against `an indefinite arrangement' (see the second criteria in [19] above), and further that post office staff as distinct from administrative staff were not to be seated (see [23] above), except for a `short-term... whilst recovering from occupational injury'. Moreover I do not understand the evidence otherwise adduced in the proceedings to have been to the effect that at times when she was sitting, she was `not working at all'. In all events, by the time Mr Skeen provided his concluding answer in the context of his cross-examination, I formed the view, adversely to Mr Skeen, that I could not accept his assertions in cross-examination that at least for his part, Australia Post gave reasonable and adequate consideration to the capacity of the applicant to undertake and perform her duties of employment, notwithstanding the extent of her physical disabilities. His following characteristically lengthy oral answer, shortly before the conclusion of his cross-examination, exemplifies the extent to which he advocated Australia Post's course in the proceedings:
`...The people in retail who are developing the strategy for the future that was there a consideration, but as the expertise of, and I suppose the expectation in respect to Occupational Health and Safety has developed over time, that the issue of having chairs under the old school system in post offices was clearly unacceptable from an occupational and ergonomic perspective and when retail introduced the new policy, extracting the chairs provided two opportunities: one is to create this business environment and a retailing merchandising style. It would also allow essentially, because we then started to use computers which used not to be on the counters so there's a space issue and we had scales in a much larger and sophisticated form, so the fit people in retail shopping centres you needed more space per customer, if you - you know what I mean, so having them stand made it easier for the company to fit into restricted buildings the maximum number of people with the maximum amount of customer service area and merchandising. So it was a combination of all these different issues that added up to, but one significant component of that was certainly the elimination of what was regarded by the experts as a safety hazard, and that was the perspective from which I am... managing these issues and it is the only implication, if make a decision to, you know, create a fairly significant counter module and whatever, to achieve an outcome for the benefit of the employee medically, clearly, that has significant implications on the running of the business from another perspective and they are taken into account by the executive who look at the implications from that perspective, so it is a combination in reality, but my major concern again is the safety issue medically for Mrs Daghlian.'
Events subsequent to the applicant being placed on sick leave
53 Since 27 February 2001, the applicant has utilised her sick leave, annual leave and long service leave credit entitlements from Australia Post up to February 2002, though I was informed by counsel for Australia Post that payment of sick leave had continued at least up to the first day of the hearing of the proceedings before me (22 October 2002), yet I am also informed by counsel for the applicant that Australia Post re-commenced payment of her salary as from 27 August 2002. Counsel for the applicant informed me that sick leave was paid at the same rate as ordinary salary. The applicant claims to have suffered stress, depression, anxiety and insomnia, all attributable to the conduct of Australia Post complained of, and for which she has needed medical treatment. It is my understanding that the parties have mutually agreed that the quantification of loss and damage sustained by the applicant, in the event that she succeeds on the issue of liability, should await a determination of that issue, although some at least preliminary submissions on compensation have been proffered.
54 The only form of employment in which the applicant has engaged since ceasing to be employed by Australia Post has been telemarketing on a casual basis, in relation to which her hours and days of work have substantially varied. That has been because of irregularity of offers to her of work of that nature, and also an alleged inability to concentrate because `... they took my job from me'. This form of employment was first undertaken by the applicant in November or December 2001, and is presently remunerated at the rate of `around $16 per hour'. The applicant's estimate of the number of days and hours (sometimes up to 22 hours per week) for which she has been engaged in this activity was vague and undocumented, and would require documentary verification, along with the gross and net sums of remuneration derived, for the purposes of any assessment of damages. No copies of income tax assessments have as yet been tendered in evidence. She has not apparently sought engagement in any other form of employment.
Complaint proceedings before Human Rights and Equal Opportunity Commission
55 The applicant lodged a complaint with the Human Rights and Equal Opportunity Commission on 23 April 2001, with the assistance of the Communications Electrical Plumbing Union (NSW). There was provided a great deal of information in support of her contention that she had been the subject of discrimination because of her disabilities. Under the heading `summary' contained in the Commission's printed `Complaint form', the following appeared:
`I have back and leg problems that require me to use a stool at work. I have done this for more than ten years with my employer's permission. Neither my medical condition nor the use of the stool have prevented me from carrying out any of my duties.My employer has changed their attitude towards stools at my workplace and has removed my stool and sent me home on forced sick leave. My employer intends to terminate my employment in August 2002 unless I can return to work without the use of a stool.'
56 Ultimately by letter dated 3 October 2001, a delegate of the President of the Commission informed the applicant that her complaint had been `terminated', pursuant to s 46PH(1)(i) of the HREOC Act, because the delegate was satisfied that there was no reasonable prospect of her complaint being settled by conciliation. A letter addressed by the Commission to the applicant dated 3 October 2001 set out the respective positions adopted by the applicant and Australia Post in relation to her complaints to the Commission as follows:
`Australia Post confirms that postal services officers are required to perform their duties standing up. This policy was introduced because Australia Post considers there are occupational health and safety risks associated with sitting at a counter while reaching and lifting to attend to the needs of customers. Australia Post states that postal services officers are required to lift weights of 16 kilograms unaided, and regularly lift parcels weighing up to 4.5 kilograms. Australia Post also claims that the presence of a stool is a tripping hazard for other staff. Furthermore, Australia Post states that the counter design does not permit use by officers in the sitting position as there are no knee wells, and knee wells could not be provided without the loss of essential storage space.
A conciliation conference was held on 9 August 2001, and various settlement options were discussed, but the complaint could not be resolved on terms acceptable to both parties. Accordingly, I have decided to terminate the complaint, pursuant to section 46PH(1)(i) of the Act, because I am satisfied that there is no reasonable prospect of the complaint being settled by conciliation.'
It may be recalled that in the context of formulation of Australia Post's policy on the provision of stools/chairs in retail outlets, its Corporate Ergonomist Mr Nelson concluded that `the cupboard design under the counter top, and the absence of a knee-well in the current design of the counter/workstation creates restrained working postures while sitting and working at the counter which can become further constrained by the limited working spaces'. (See [18] above). Evidence was not adduced by Australia Post from Mr Nelson in the proceedings.
Other subsequent events
57 Australia Post led evidence without objection that on 9 August 2001, in the context of her pending application to the Commission, Mr Skeen on behalf of Australia Post offered to the applicant a full time position as an administrative officer to be created within the retail administrative area at Australia Post's infrastructure at Strawberry Hills, upon the basis that she would be accorded the same, or a higher classification, as her then `substantive position', and upon the further basis that she would receive payment of excess fares and excess travel, and the full cost of taxi fares from Circular Quay to Strawberry Hills, for 3 months, and moreover that Australia Post would reinstate her sick, recreation and long service leave entitlements already used by her between 3 February 2001 and 9 August 2001. Mr Skeen said that he `hoped that those incentives for three months would remove the applicant's attitudinal barrier and that if she enjoyed the job she would continue later without those incentives', and further that he `did not see the position, including the travel, as being beyond her physical restrictions'. He further offered to the applicant, if she `did not wish to continue in the new position any time off up to a maximum of three months... access to a voluntary redundancy package in lieu of normal incapacity retirement and $5000 ex gratia payment', together with the `recredit' of long service leave taken during the period 23 February 2001 and 9 August 2001'. The applicant informed Dr Walden, who prepared a psychiatric report for the solicitors for Australia Post, that she declined that position because of the travel involved.
58 For completeness, I should record that Australia Post tendered into evidence the so-called Australia Post Principal Determination made pursuant to the Australian Postal Corporation Act 1989 (Cth), concerning the terms and conditions of employment of its employees. I was referred to the following segments of that Determination:
`CLAUSE 3 INEFFICIENT/INCOMPETENT EMPLOYEESWhere an employee is found to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties applicable to the employee's position, the employee may be:
(a) transferred to another position of the same classification (in the same locality or elsewhere);
(b) reduced to a lower position and salary; or
(c) retired from the Corporation.'
There was no evidence tendered to the Court that the applicant was inefficient or incompetent; indeed there was evidence to the contrary to which reference has earlier been made.
`CLAUSE 10 HEALTH OF EMPLOYEE DANGEROUS TO OTHERS(a) If it is believed that an employee is incapable of performing duty or constitutes a danger to other staff or the public due to the employee's state of health, the employee may be required to:
(i) obtain and furnish a report from a qualified medical practitioner; or
(ii) attend a medical examination conducted by the CMO or a medical practitioner named by Australia Post.
(b) On receipt of the medical report, the employee may be directed to take sick leave for a specified period, or, if already on sick leave, or other leave, the employee may be directed to continue on leave for a specified period, and the absence shall be regarded as sick leave.
...'
Again there was no evidence as to any ill-health of the applicant, certainly in the strict sense of that description, constituting a danger to other staff, much less to the public; the sole case of danger potentially (though never actually) caused by the applicant, according to Australia Post was to other employees at the post shop counter, by reason of the existence of the unsatisfactory seating accommodation originally provided for and since retained by the applicant in the form of an antiquated stool, which Australia Post alleged to constitute a tripping hazard.
59 I was referred by Australia Post to the Australia Post General Conditions of Employment (Interim) Award 1995, and in particular Clauses 6.2, 6.2.1 and 7 reading as follows:
`6.2 Inconsistency with DeterminationsThis award will be read in conjunction with determinations made from time to time under s 89 of the Australian Postal Corporation Act 1989.
6.2.1 Where a determination is inconsistent with the provisions of this award, the latter will prevail.
7 Anti-Discrimination
It is the intention of the respondents to this award to achieve the principal object in section 3(j) of the Workplace Relations Act 1996 through respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.'
I was further referred to Clause 26.5 relating to sick leave, and in particular Sub-Clauses 26.5.10(a) and (b) and 26.5.12 reading as follows:
`26.5.10 Employee to Provide Medical ReportAustralia Post may require an employee to furnish a medical report or undergo an examination by a medical practitioner nominated by Australia Post where the employee:
26.5.10(a) may be unfit or incapable of discharge duties;
26.5.10(b) may be a danger to other employees or members of the public due to state of health;
...
26.5.12 Maximum Period
The maximum period of absence which may be approved with pay in respect of a continuous absence through illness is 52 weeks.'
The relief claimed by the applicant
60 The applicant has claimed in her application to the Court that Australia Post discriminated against her, on the basis of her physical disability, by its following conduct:
(i) requiring her to stand for the full duration of her working hours;
(ii) unreasonably introducing a policy which prohibited the use of stools in its retail outlets and in particular at Manly;
(iii) removing the stool and requiring the applicant to stand for her full working hours, thereby imposing a condition with which she was not able to comply; and
(iv) failing to accommodate the applicant's disability.
Grounds (i) and (iii) have been in my opinion established on the evidence, subject of course to the same relating to the applicant's counter duties, as distinct from any desk duties. Grounds (ii) and (iv) are controversial, ground (ii) because of the component of `unreasonableness', and ground (iv) because of Australia Post's asserted attempts to place the applicant in an administrative position that might become available beyond the Manly district.
61 The applicant has further alleged that Australia Post has discriminated against her in the conditions of her employment which it created for and imposed on her, and has subjected her relevantly to detriment, and has constructively dismissed her. She asserts that there has been no suggestion ever made to her by Australia Post that she was unable to carry out what she described as `the inherent requirements' of her employment as a postal worker on the post shop counter in the Manly Post Office, so long as she was to be provided with a seating arrangement for use when not actually serving customers, and further, that the provision of a seating arrangement, being a facility not necessarily required by persons without her disability, would not impose any unjustifiable hardship on Australia Post. There was no criticism proffered by Australia Post as to her competence and integrity in the conduct of her duties of employment.
62 The applicant claims to have sustained the following inflictions, for which an apology and monetary compensation in the sum of $50,000.00 is sought, namely humiliation, chronic depressive illness, dysthymic disorder, anxiety, panic attacks, loss of interest in life, disturbed sleep patterns and impaired memory and concentration. The reports of specialised psychiatrists respectively obtained by the applicant and Australia Post have not yet been formally placed in evidence, and the issue as to quantifications of loss and damage is to be subsequently resolved depending on my resolution of the issue of liability.
63 The applicant further claims an amount of $195,530.00 for loss of earnings, as an employee of Australia Post, between 27 February 2001 and 24 December 2006 (the latter date being when she will attain the age of 63 years), plus interest thereon to the extent that lost income has already occurred, less an appropriate discount for acceleration of future income at the time of hypothetical receipt of that lump sum. Alternatively as to the extent that loss of future earnings are relevantly involved in the damages assessment, she claims reinstatement as a postal officer at the Manly Post Office at a normal annual salary with a suitable stool/chair provided, consistently with whatever may be the basis of any findings I might make in her favour. The applicant also claims reinstatement of the long service leave, sick leave and annual leave credits which would otherwise have accrued in her favour. I am informed by counsel for Australia Post that there is no `maximum' retiring age, `but 55 is the age from which people can retire and I'm instructed that most usually retire at about 60'.
The submissions of the applicant
64 The applicant commenced its submissions by reference to the material provisions of the DD Act. `Disability', in relation to a person, is defined by s 4 of the DD Act, so far as is here material, as follows:
`...(e) the malfunction, malformation or disfigurement of a part of a person's body;
...
and includes a disability that:
...
(h) presently exists;
...'
No issue is raised by Australia Post as to the starting point of the applicant's case that she suffers from malfunctions and possibly malformations of parts of her body, described variously as lower back and bilateral heel pain, bilateral varicose veins, spondylitis and osteoarthritis, the same being causative of back and leg pain generally (see [15(iv)] and [25] above). At least in the aggregate, the same constitutes a disability within s 4 of the DD Act. Whilst she is also significantly overweight, I do not understand the applicant to have contended that her overweight condition constitutes a disability with the s 4 definition, though any malfunction or malformation perhaps needs to be comprehended in the context of the physique generally of the applicant at all material times.
65 The applicant submitted that Australia Post's `blanket' enforcement of its `stool policy' indirectly discriminated against her on the ground of her disabilities, the notion of `discrimination' being described in s 6 of the DD Act as follows:
`For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.'
The requirement or condition within s 6, as postulated by the applicant, was to the effect that she was not permitted to sit on her stool located behind the post shop counter, in the course of her performance of the work at the counter for which she was employed, and seemingly otherwise, since her stool was required to be permanently removed from behind the counter generally, because it constituted, as in the case of any counter chair or stool, a hazard or danger to other members of the counter staff, and indeed also to herself. So stated, any such requirement or condition tends to present prima facie as reasonable, within par (b) of s 6, for an employer to impose, purportedly pursuant to an employment policy governing the performance of counter duties. The test of reasonableness under par (b) is of course to be governed by `the circumstances of the case'. Hence the large amount and complexity of the evidence tendered by both parties.
66 The objects of the DD Act, so far as are here material, are set out in s 3 thereof as follows:
`...(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.'
Those objects are of course framed in unexceptional terms.
67 Subsection 15(2) of the DD Act in relation to discrimination in employment, so far as is here material, provides as follows:
`It is unlawful for an employer... to discriminate against an employee on the ground of the employee's disability...(a) in the terms or conditions of employment that the employer affords the employee; or...
...
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.'
The discrimination alleged by the applicant is said to be a combination of pars (a), (c) and (d) above, taking the form cumulatively of denial of her further employment at the Manly Post Office as a postal officer on the post shop counter, her initial relegation to the Strawberry Hills Centre purportedly for assessment for employment in a seated clerical position there, or possibly elsewhere in the metropolitan area of Sydney, if such a position might become available, and otherwise or else subject thereto, her relegation thereafter to sick leave, and annual recreation leave credits, for the maximum term of her accrued entitlements thereto, given her rejection of any such clerical position, and subject to such relegation not occurring, then the ultimate detriment of retirement on medical grounds in accordance with award conditions (see again Australia Post's letter to the applicant of 23 February 2001 as extracted in [42] above).
68 Subsection 15(4) of the DD Act provides the following exceptions in relation to the notion of unlawful discrimination by an employer on the ground of disability:
`Neither paragraph 1(b) nor 2(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant facts that it is reasonable to take into account, the person because of his or her disability:(a) would be unable to carry out the inherent requirements of the particular employment; or
(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.'
Both exceptions from unlawful discrimination are invoked by Australia Post, particularly that relating to unjustifiable hardship. The inherent requirements of the applicant's employment were asserted by Australia Post to be for her to stand continuously at the post shop counter at the Manly Post Office when engaged in the provision of service to customers, and even when not so engaged or when otherwise engaged, because of the absence of room for any chair or stool in her workstation adjacent to the end of the counter where she undertook her employment duties. The basis of those inherent requirements was said by Australia Post to reside in the inherent danger of other employees, whether also stationed at the counter or otherwise, including the applicant, of tripping on the applicant's stool, or for that matter on any replacement stool or chair which might be used by the applicant. The unjustifiable hardship on Australia Post was said to be the substantial occupation of the space provided for the applicant's performance of at least her counter duties by her existing stool, or by any replacement of that stool, and Australia Post's exposure to the consequences of its employees sustaining workplace injuries caused by tripping on any seating arrangement of the applicant, and also to potential claims by the applicant herself for workplace injuries similarly arising. It was also contended by Australia Post that it would be exposed to the consequences of injury to the applicant in the circumstances and to the extent conveniently described in par (b) of the material extracted in [45] above.
69 Section 11 of the DD Act describes what needs to be taken into account, in determining what constitutes `unjustifiable hardship on the employer' within s 15(4)(b), including the following:
`For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(b) the effect of the disability of a person concerned; and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship;
...'
The unjustifiable hardship on Australia Post was postulated as the denial of its so-called chair policy, and therefore of the benefits flowing by way of reduction in the incidents of workplace tripping on chairs and stools standing at or adjacently to its post shop counters, and consequential employee injuries, and, as I think is also contended by Australia Post, the more efficient conduct of its employees of counter duties, for the public benefit, as an aspect of the image of efficient service sought to be created for its post shop operations introduced in the mid nineties.
70 In support of these contentions, counsel for the applicant relied upon the following matters in particular:
(i) the absence of any documentary record or other evidence of any Australia Post employee having tripped on the applicant's stool, throughout the entire length of her employment at Manly Post Office (ie from July 1989 to 27 February 2001); in that regard, the incidents of tripping experienced by Australia Post employees, though not in relation to the applicant's stool, was asserted only belatedly in the cross-examination of Mr Skeen, without any corroborative documentary records (see [48(iv)-(vi)] above), and was unspecific and not able to be satisfactorily tested or verified;
(ii) an absence of evidence to the effect that the applicant had not performed her employment duties and functions, other than efficiently and satisfactorily, despite her physical restrictions on lifting and bending etc, and the need for her to sit from time to time in the course of performance of her counter duties; in the case of weighty parcels above her lifting capacity falling from time to time within the scope of her counter duties, one or more of the other counter employees was always readily available to assist her, and did in fact assist her, moreover she was able in any event to wheel the counter trolley, and slide the heavier parcels onto and from that trolley, rather than carry the same to or from the counter to the mail room behind the counter; no evidence was tendered by Australia Post as to the approximate proportion of the more weighty parcels, comprising mainly books, received over the counters of its post office shops, which may I think be reasonably inferred to have been relatively few in proportion to the remainder; also there was always at least one fellow employee engaged on duty in the mail room to assist her in relation to such weighty parcels, and there was no evidence to suggest that such assistance was given other than willingly and spontaneously to a person who was, on the basis of the evidence placed before me, a well liked and respected member of the staff;
(iii) the applicant for her part enjoyed her work, which extended beyond primary occupation with counter duties to certain seated or desk duties of a clerical kind which I have earlier described, and the undisputed opinion of the postal manager at Manly Post Office was to the effect that she was an efficient and conscientious employee (that opinion is extracted at [38] above); moreover there was no suggestion that the applicant was otherwise than productive as an employee, and Mr Lowe for his part accepted that her productivity was not disputed by Australia Post;
(iv) the decision made by Australia Post adversely to the applicant the subject of the proceedings was implemented without the benefit of an adequate understanding of the working area in the vicinity of the applicant's stool, and was at least partly based on an inadequate observation by Ms Beazley, made somewhat from a distance and on an isolated occasion, of the applicant's engagement in her employment activities in that area; moreover Ms Beazley's report was undertaken, notwithstanding the wealth of other medical and ergonomic reports already obtained by Australia Post commencing from 1991, and without Ms Beazley even speaking to the applicant; there was never undertaken by Australia Post a truly comprehensive risk assessment, which would necessarily have needed to take into account the absence of any evidence of tripping on the applicant's stool over the whole period of the applicant's employment commencing in 1989;
(v) Australia Post formed an adverse view of the applicant's condition based on seemingly unproduced medical evidence, assuming any existed at all, being a view not supported by the wealth of medical evidence tendered in the proceedings; in particular, Mr Skeen described the applicant's physique as relevantly involving a `significant degenerative back condition', without any fair basis for that broad and imprecise description to be found in the medical reports (see part of that evidence of Mr Skeen extracted in [47(i)] above), thereby reflecting the allegedly dismissive way in which Australia Post assessed the extent of the applicant's true disabilities and her working capacity and efficiency notwithstanding;
(vi) there was no evidence that Australia Post interviewed other members of the staff at Manly Post Office in order to obtain their views on the reality and practicality of the allegedly potential hazard of the applicant's use of her stool, or otherwise as to the effectiveness of performance of her duties, or if it did, no evidence of that kind was tendered by Australia Post; no other employees had occasion to access the applicant's confined work area in the course of performing their counter duties, or any other duties for that matter, so that the existence of the stool, and of the applicant being seated thereon from time to time, did not present a realistic danger of tripping; I would interpolate in that context my observations earlier made to the effect that Australia Post never chose to replace the applicant's stool, described in the evidence as `antiquated', with an ergonomic chair suitable to accommodate her in the light of her physique, despite the recommendations made by expert opinions obtained by Australia Post as early as 1991, to which reference has of course already been extensively made, being a chair which would presumably have occupied more space, but in a more stable and visible way, than the applicant's relatively small as well as antiquated stool;
(viii) Australia Post did not obtain any expert medical assessment of the applicant's capacity to undergo the travelling involved in the journey by public transport from her home in Manly to Strawberry Hills, after her removal from employment at Manly Post Office, nor arranged for any person to travel with her to Strawberry Hills to observe how that travel affected her disabilities, safety and welfare; Australia Post would have had enough documentary material on file concerning the applicant, in particular medical and ergonomic reports, to have provided at least some indication of the potentially adverse implications to this lady, after her long and congenial association with Australia Post and its staff at Manly, and with her physical disabilities, of being uprooted from the security of that familiar working environment into comparably onerous circumstances in travelling to and from Australia Post's head office in Strawberry Hills by public transport, albeit principally for `assessment' for possible deployment there, or elsewhere at an unknown and therefore unspecified location (if any).
71 The applicant further submitted that there was no evidence of unjustifiable hardship actual or potential, imposed upon Australia Post within s 15(4)(b) of the DD Act, arising out of the applicant's circumstances of employment, `unjustifiable hardship' being defined, to the extent material, by s 11 of the DD Act already reproduced above. Much of the evidentiary material concerning the issues arising in the preceding subparagraphs bears upon the issue of unjustifiable hardship.
72 I was referred by counsel for the applicant to Australia Post's `Reasonable Adjustment Handbook' (Ex A5), which sets out relevant factors to be taken into account by Australia Post in determining what constitutes `unjustifiable hardship' for the purposes of s 11, in the following terms:
`In determining whether the relevant changes would amount to unjustifiable hardship an employer should:* consult relevant sources;
* discuss directly with the applicant the need for adjustment and the possibility that it might cause unjustifiable hardship;
* consider the hardship caused to the applicant if the application fails;
* thoroughly consider how the adjustment might be made.'
Of course, the contents of the Handbook have no statutory or other binding force, but the applicant submitted that Australia Post did not even follow those stipulations of its own handbook relating to the statutory issues of unjustifiable hardship concerning the applicant, and of `reasonable adjustment', the implications of the latter expression being described therein reads as follows (on page 13):
`Reasonable adjustment is simply changing the nature of jobs, in a responsible way, to accommodate people with disabilities.Reasonable adjustment is sometimes referred to as reasonable accommodation... in this program we are discussing adjustments which are permanent, for example:
* Providing a stand for a person of short stature to allow safe and easy access to a computer terminal on a Retail Post counter.
* Adapting mail delivery beats to incorporate a walk beat thus allowing continued employment to a person who can no longer ride a motor cycle.
In applying the principle of reasonable adjustment you should be facilitating safe performance of the essential activities (inherent requirements) of the job, without causing unjustifiable hardship.'
The applicant distilled moreover from the above an inconsistency in Australia Post's `reasonable adjustment' conduct, in relation to the use of chairs or stools, as indicated in the evidence in the present proceedings, by the above reference to the more potentially dangerous `tripping' vulnerability of its employees inherently involved in providing `... a stand for a person of short stature... on a Retail Post counter' than would tend to be the case of a counter stool or chair, the latter being more visible by reason of structure and height.
73 Counsel for the applicant cited Scott & Anor v Telstra Corporation Limited (1995) EOX 92-717, where Sir Ronald Wilson (Inquiry Commissioner) at 78,401, (in the process of consideration of similar terms to s 11 of the DD Act contained in s 11 of the Anti-Discrimination Act 1977 (NSW) relating also to the notion of `unjustifiable hardship') said as follows:
`Having concluded that the terms of s 24(1) of the DDA have been satisfied, ss 24(2) and 11 come into play. These sections in effect excuse liability under s 24(1) for discrimination on the ground of disability in the provision of services where a respondent who can show that to provide those services would impose unjustifiable hardship.It is for the respondent to persuade me that the provision of access, through a TTY, to persons with a profound hearing loss on the same basis as access is provided to persons who have no such disability would impose unjustifiable hardship on it.
The term `unjustifiable hardship' is not defined in the DDA. Section 11 provides a list of some of the factors that may be considered in determining unjustifiable hardship but the DDA does not specifically define the term itself.
...
In any event, I would have thought that the provisions of s 11 of the DDA placed beyond doubt the matters that were relevant to a consideration of the question of unjustifiable hardship...
In my opinion, the content of the term "unjustifiable hardship" will depend on the circumstances of each case.'
Counsel's emphasis was upon the observation made in the last sentence above extracted, which of course may work either way as far as the parties to these proceedings are concerned.
74 Counsel for the applicant also referred me to what was said by the Hearing Commissioner (Mr Innes) in Scott and Bernadette Finney v The Hills Grammar School [1999] HREOC 14 (unreported, 20 July 1999) at 7.6, by way of application of what Sir Ronald Wilson had observed in Telstra, in relation to an issue of `unjustifiable hardship' in the circumstances there arising:
`As set out in the decision of Scott v Telstra (supra) the concept of `unjustifiable hardship' connotes much more than just hardship of the respondent. The objects of the Act make it clear that elimination of discrimination as far as possible is the legislation's purpose. Considered in this context, it is reasonable to expect that the School should have to undergo some hardship in accepting Scarlett's enrolment.'
In dismissing the School's subsequent application for judicial review (The Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 658; (2000) 61 ALD 619), Tamberlin J of this Court applied the same approach. The proceedings in Finney related to the refusal of enrolment of a young girl with a spina bifida condition as a pupil at the school, which refusal was set aside, notwithstanding the extra cost as well as inconvenience which would have been occasioned to the school by its admission of the disabled young girl as a pupil.
75 In relation to the applicant's case for an absence of unjustifiable hardship on Australia Post to have provided, and to continue hereafter to provide for the applicant as an ongoing employee services or facilities, instead of adopting the course which it did in February 2001, being services or facilities not necessarily required by employees without the applicant's disabilities, pursuant to s 15(4) of the DD Act, counsel for the applicant pointed to the following circumstances:
(i) There could have been created for the applicant a knee-well in the retail counter at the Manly Post Office, so that the applicant would have been seated more comfortably (ie with more space and with consequential capacity to serve from time to time in a seated position - see in that regard Mr Nelson's apparent support for that proposition cited in Mr Parkes' letter of 4 June 1999 extracted in [18] above), were it not for Australia Post's view, as expressed by Mr Skeen, that all of its retail outlets should present with a uniform appearance in order to gain more custom; however to the shopping public, appearance and presentation would have essentially been the same; there would have been of course a cost factor to Australia Post, which was not however quantified by Australia Post after the issue was raised;
(ii) Mr Lowe did not know for his part of any quotations having been obtained for the re-design of the applicant's workstation, for instance, for the inclusion of a knee-well in the counter to which I have already referred, nor did he know of any other ergonomic or architectural or draftsperson's advice as to what counter design might have better accommodated the applicant's disabilities; instead it was implicitly accepted within Australia Post, so counsel for the applicant asserted to be the inference to be drawn, that it would cost too much to redesign, and cause too much inconvenience, to physically modify, the applicant's work area in order to accommodate her with the facility of periodic seating, without the need for any specific information to be obtained on the subject;
(iii) The use of a stool by postal employees at the retail counter was in any event no more, if not even less, potentially dangerous to other counter employees of Australia Post than the trolleys already used to transport parcels to and from the retail counters from and to the mail rooms, and which stand idle in post shop employee working space when not being so used, yet Australia Post considered that the benefits of retaining the trolley system outweighed the risks of staff tripping upon the same; to that submission may be added reference to the stand to be placed at the foot of the counter and recommended for persons of short stature in its `Reasonable Adjustment Handbook' (ante at [72]);
(iv) The applicant had worked safely with the use of the same stool at the Manly Post Office for about 12 years, neither she nor any of her co-workers had ever tripped on or against her stool over that entire period; counsel for Australia Post effectively conceded that there was no evidence to the contrary of that proposition (see also on the subject of tripping what is recorded in [24(iv)] above, my observation in [24] immediately following thereunder, and what was reported by Ms Beazley set out in [29(i)] above); and
(v) There was no indication that any other modifications to the applicant's work station, which may have been appropriate to accommodate the applicant with her disabilities until her retirement, were properly considered and evaluated by Australia Post, or would create `unjustifiable hardship' on Australia Post within s 11 of the DD Act; as is apparent from the medical reports in the evidence, the applicant's physical condition in 1991 does not appear to have deteriorated further, at any rate to any significant extent, up to the time of her purported deployment in February 2001.
76 In further support of the applicant's case for failure to investigate properly or sufficiently the particular circumstances of the applicant in her workplace, and to accommodate here disabilities, the presentation of her case further relied upon the following matters:
(i) Mr Skeen testified towards the end of his cross-examination that if the applicant had actually told him that she only wished to sit, and did only sit, from time to time, he would have considered that proposal as an option, and would have organised for a workplace assessment to be made, `...because the requirement is if there is a [square] metre space around the stool, and if that space was available we would have looked at it as an option and as a reasonable adjustment...'; yet conversely, Mr Skeen maintained also that `...the provision of a stool for intermittent purposes is meant to be for a temporary period, not specified, and not as a permanent arrangement...'; moreover Ms Beazley's report had already indicated, under the heading `Work Restrictions', that the applicant `[n]eeds a chair to rest her back and feet from time to time' (my emphasis);
(ii) Australia Post had failed properly to investigate or give real consideration to properly accommodate the applicant's disabilities until her retirement, even though it had been provided with medical assessments concerning her physical condition and working capacity over about ten years, including assessments by specialists of its choice (all of which I have cited); moreover Australia Post had never offered the applicant the opportunity of using a stool `away from the counter', even as a trial, for instance before completing the structural alterations initially undertaken in 1996 to the Manly Post Office (see generally [9-15] above); the submission was repeated in relation to the further alterations made two or three years later (see [16] above); the difficulty with that submission, was the undefined or unspecific description `away from the counter';
(iii) Australia Post was said to have conceded, I think rightly, that it treated employees having work related injuries differently to those who had non-work related disabilities; Mr Skeen said at length under cross-examination as follows `... there's certainly been numerous occasions over the years where people of any age have had conditions and they in fact do have limited standing restrictions and we do in fact apply an appropriate modification of their duties for periods of time... [t]he actual retail post chair policy provides for that process and certainly under the compensation and rehabilitation process we would provide that option and it applies to Mrs Daglian, (sic) if that was going to provide some sort of help in terms of her improving her condition, but once again whether its serious or not it was a permanent long term and ongoing condition and... the question was asked - can you do the predominate duties standing?... if it was necessary for 5 minutes every hour for Mrs Daglian (sic) to... have a rest on the stool over in the corner... I'd look at that on the merits and consider it accordingly. But... we're talking about significant lengthy periods where Mrs Daglian (sic) would be required to sit on a stool which would mean she was either not working at all, which is clearly unacceptable, or that she was working on a stool or a chair which reintroduces the medical issues...'; Mr Skeen did not however particularise what he meant by `significant lengthy periods', an expression which I think is at odds with the findings contained, for instance in the most recent specialist medical report in evidence, namely that of Dr Steel extracted at [43] above, where he described the applicant's standing tolerance to be `45 minutes to an hour maximum', and her fitness to be for `full hours';
(iv) Mr Lowe acknowledged that he did not purport to act on Ms Beazley's comprehensive workplace assessment of 29 May 2000 (extracted in [26-27] above) until about eight or nine months later on 12 February 2001, when he formally directed the applicant to be `on sick leave' as from 27 February 2001, yet the medical reports he purportedly relied upon in conjunction with Ms Beazley's report were those of Dr Artinian of 24 May 2000, and of Dr Kandine of 20 June 2000 (both extracted in [25] above). Moreover it is apparent that no action was ever taken in any event in pursuance of Ms Beazley's second recommendation appearing in [27] above. Although Dr Steel's report was issued on 26 February 2001, being substantially later than those of Doctors Artinian and Kandine, Mr Lowe did not modify or recall his preceding controversial notification to the applicant of 23 February 2001, despite what Dr Steel reported therein in relation to the applicant's physical condition and capacity;
(v) Ms Beazley's observations of the applicant made on 29 May 2000, based on her understanding of her instructions from Australia Post, were undertaken in order to assess the applicant in the workplace, with the counter as it was and the stool as it was. Ms Beazley was not instructed to use her training in ergonomics in order to express an opinion as to how the applicant's workstation, including the existing seating facility, such as it was, might have been modified, whether by alteration to the counter, or doubtless more economically, by the provision of an appropriate ergonomic chair for the applicant designed to accommodate her disabilities; implicitly, so I understood the submission therefore to demonstrate, particularly having regard to its timing and context, Ms Beazley's report was belatedly commissioned by Australia Post with a view to justifying the deployment of the applicant which was ultimately implemented about nine months later; moreover the further medical assessment she recommended at the conclusion of her report was never obtained, except from Dr Steel, and then only after the issue of the Australia Post February 2001 notices and directions to the applicant; moreover her second recommendation, namely that a further workplace assessment be obtained, was never implemented at all; and
(vi) Australia Post adopted the view that the applicant was too advanced in age for its newly adopted retail image of multi-product counter service to the public, and that she should be retired. In that regard, the applicant claimed that Mr Skeen said to her in May 2000 `when are you thinking of retiring. How long are you going to continue working for Australia Post'. I have no good reason to reject the substance of that conversation given by the applicant to the effect that she should by then have been considering retirement from Australia Post, due to her age and physical disabilities; it may well have been the case that such conversation between Mr Skeen and the applicant occurred prior to Australia Post's receipt of Ms Beazley's report of 29 May 2000.
77 The foregoing are not exhaustive of the submissions of counsel for the applicant but I have provided what I think to be the essential thrust thereof. In conclusion, the applicant submitted that she had demonstrated that Australia Post had effectively discriminated against the applicant on the basis of her disabilities, by its conduct crystallising in particular in its three letters of February 2001, and thus effecting the applicant's deployment from Manly Post Office.
The submissions of Australia Post in response and my observations thereon
78 The opening submission of Australia Post was to the effect that the applicant's submissions disclosed a change in its case from one of discrimination pursuant to s 5 of the DD Act to one of indirect discrimination pursuant to s 6 of the Act, reference being made to the opening paragraph of the applicant's submission, purportedly in the nature of a brief summary of her case, to the effect that the indirect discrimination arose from the introduction of a policy which banned the use of stools at retail counters and the failure of Australia Post `to otherwise reasonably accommodate the applicant's disabilities'. It may be true that the summary of its case at the commencement of its submissions in chief was somewhat elliptical, but the presentation of the applicant's case has been essentially in line with the content of the complaint form originally lodged with the Commissioner. Section 6 of the DD Act does not purport to formulate a cause of action having a mutually exclusive application or operation to that the subject of section 5, but merely proscribes particular circumstances of discriminatory treatment of a disabled person. I do not think that Australia Post has been in reality at any time under any misapprehension of the nature and extent of the case it has been required to meet. I should add that though Australia Post has stated, in the context of the present discussion, that its submissions would proceed upon the basis that it was `... the imposition by letter dated 12 February 2001 of the requirement that a chair or stool not be used at the counter that is relied upon by the applicant', the fact was that such requirement was preceded by a verbal requirement made by Mr Lowe, as described in [35] above, to not dissimilar effect as contained in the letter, and I am able to bear that in mind when attributing appropriate significance to Australia Post's critical letter of the applicant of 12 February 2001.
79 I should add that Australia Post did not identify any matter of prejudice, nor of course make any application to re-open its case in order to adduce any fresh evidence, following receipt of the applicant's written submissions in chief in support of its case based on s 6 of the DD Act. Counsel for the applicant referred me in any event to par 13 of the applicant's `Outline of Case and Points of Claim' filed on 16 October 2002, which was said by him to plead the essence of her case, and which reads as follows:
`[Australia Post] had discriminated against Mrs Daglian (sic) on the grounds of her disability by:(a) requiring her to stand for the full duration of her working hours;
(b) having unreasonably introduced a policy which prohibits the use of stools in its retail outlets;
(c) by removing the stool and requiring Mrs Daglian (sic) to stand for her full hours of work, thereby imposed a condition with which she is not able to comply;
(d) failing to accommodate Mrs Daglian's (sic) disability.'
Counsel for the applicant thus contended that the applicant's case has been at all material times to the effect that it was the implementation of Australia Post's policy of banning the use of chairs and stools at retail counters, and the enforcement thereof notwithstanding the physical characteristics of the applicant, that constituted the substance of the (indirect) discrimination. I was also specifically referred to page 4 of the applicant's `Complaint form' dated 23 April 2001 lodged with HREOC, which forms part of the application filed in the proceedings in this Court on 31 October 2001, where the following appears:
`On 29 May 2000 a workplace assessment was carried out on me by Ms Helen Beazley, an Australia Post Occupational Health and Safety advisor. Mrs Beazley recommends that my stool be removed. The main reason offered is that "the Australia Post Policy on the provisions of stools/chairs in retail outlets states that the use of stools/chairs in retail outlets is not permitted whilst performing counter duties".'
Reference was made in that `Complaint form' to the issue by Australia Post of its stools/chairs in Retail Outlets policy, contained in the Australia Post internal communication of 4 June 1999 extracted in [18] above.
80 I do not understand the presentation of the applicant's case to have diverged in substance from what was propounded in the application, as implied by Australia Post. The fact that the heading to the application, and the first sub-heading `Application alleging unlawful discrimination', did not use the prefix `indirect', could not reasonably have misled Australia Post as to the nature and essence of the complaint made, particularly in the light of the affidavit evidence adduced on behalf of not only the applicant but also Australia Post. Moreover by virtue of s 46PR of the HREOC Act, the Court is not bound by technicalities or legal forms. For its part, Australia Post adduced a wealth of evidence in the proceedings, in purported explanation for and justification of its chair/stool policy, and concerning the prohibition or restriction upon the use by employees of stools or chairs at its retail counters (see [17-34] above, and in particular [17-19]; see also [27] in so far as Ms Beazley refers to `Australian Post Policy on the Provision of Stools/Chairs in Retail Outlets'), and the purported application of the policy adversely to the applicant. Indeed it can be reasonably postulated that Australia Post sought to confess and avoid the implications of its conduct, complained of as constituting discrimination against an employee on the ground of disability, by purported reliance upon the objective of the policy and its benefits to its other employees as well as to itself. I would refer for instance to Mr Skeen's comprehensive evidence in chief to the extent extracted in [47] above, and to his evidence in cross-examination to the extent extracted in [48-52] above. Whatever `quite different' case Australia Post asserts it would have adduced in answer to the applicant's supposedly `changed case', as advanced in final written submissions, is unclear. I would reject in any event Australia Post's initial proposition in address which I have sought to outline above, and make the observation that the large amount of documentary, as well as viva voce, evidence which Australia Post has adduced, by way of purported justification of its chair/stool policy, and by way of the course it took in relation to the applicant purportedly pursuant to that policy, has been substantial and comprehensive. I have no doubt, having regard to the cross-examination and submissions undertaken by its counsel, that Australia Post has always comprehended the substance and reality of the applicant's case which it has been required to meet, and which indeed it has purported to meet with considerable detail and vigour. To the extent that there has been any ambiguity or uncertainty in the evidence which has been adduced in the proceedings, the same has tended to reside in the oral expressions of the ambit and purpose of the policy proffered by Australia Post in writing, and by Messrs Skeen and Lowe verbally on its behalf.
81 Counsel for Australia Post further asserted at the outset of his written submissions that `[n]o attempt is now made by the applicant in closing submissions to rely upon the direction dated 23 February 2001 as the requirement or condition' of section 6 of the DD Act, and `[n]or could there be, because that step could not be contended to meet either paragraph (a) or (c) of section 6' (of the DD Act). According to Australia Post, those statutory provisions respectively demand that the requirement or condition is one `which a substantially higher proportion of persons without the disability comply or are able to comply', and `with which the aggrieved person... is not able to comply'. Therefore, so this submission of Australia Post continued, the question whether the direction of 23 February 2001 onto sick leave was `not reasonable, having regard to the circumstances of the case', does not arise. But of course the obstacle which Australia Post must address is the implications of par (b) of s 6, namely `which is not reasonable having regard to the circumstances of the case', referring thereby to the circumstances of the disability of the `aggrieved person'. The response of the applicant was that Australia Post's direction onto sick leave of 23 February 2001 was clearly founded upon the removal of the applicant from the prior location and duties of her employment which had prevailed over the preceding eleven years or thereabouts, being a direction made pursuant to and in the context of the act of discrimination constituted in particular by Australia Post's letter to her, as a relevantly disabled person, of 12 February 2001 (see again [37] above), in the course of which Australia Post stated that `... as from the close of business today you will no longer be permitted to use a chair or stool at the counter. You should be aware that if you fail to adhere to this instruction disciplinary action may be taken against you'. Moreover that letter was written against the important contextual background of Mr Skeen's confrontation of the applicant in May 2000, whereof the applicant's version at [21-22] above essentially is the more likely, in my judgment, than that of Mr Skeen, to the extent of any conflicts, and Mr Lowe's subsequent confrontation of the applicant in [35] above whereof again I would prefer the applicant's version to the extent of inconsistency. Thus the applicant's case related to Australia Post's requirement of the applicant that she comply with its chair policy, at least according to the understanding thereof variously professed by Messrs Skeen and Lowe in their evidence which I have cited, and that she do so despite her patent disability, being the requirement contained formally in Australia Post's letter of 12 February 2001 to the applicant. It was only in the context of that requirement that Australia Post requested the applicant, by its following letter dated 15 February 2000, to submit to a so-called `Vocational Assessment' at Strawberry Hills, with a view to the applicant's temporary relocation there of her employment, or perhaps elsewhere in the metropolitan area of Sydney. And it was only in the same context that thereafter the applicant was directed onto sick leave by letter dated 23 February 2001.
82 Counsel for Australia Post next indicated that his submissions would proceed upon the basis that what the applicant relied upon to sustain its claim was the imposition, by the Australia Post letter dated 12 February 2001, when read with the `chair policy' bearing date 4 June 1999 (see [18-19] above), of a prohibition of the use of any chair or stool adjacent to retail post shop counters except in the limited circumstance of an employee recovering from injury etc (in that latter regard see also Mr Nelson's statement of the policy at [32] above). Yet Australia Post submitted that although the policy document, extracted at [19] above, commenced `Australia Post's position regarding the provision of stools/chairs in retail outlets is that the use of chair stools is not permitted whilst performing any counter duties', it was nevertheless clear from the evidence that `cases' were considered on their individual merits, and so much was what occurred at the instance of Australia Post in relation to the applicant. Precisely what `individual merits' appertaining to the applicant were considered by Australia Post, for instance, prior to Mr Lowe's letter to the applicant on 12 February 2001, or prior to his earlier visit to Manly Post Office on 25 January 2001, is not readily evident. The following passages appearing in Mr Skeen's cross-examination, with their purported emphasis on `each case on its merits', constituted in my opinion attempted redactions on Mr Skeen's part to the text of the Australia Post policy reproduced in [19] above, particular given the expressions `under normal circumstances' and `each case on its merits'.
"... the stool would, or chair would be provided away from the counter for intermittent use, in other words, short rest breaks... away from the counter and that under normal circumstances that would expect to be for a temporary period, in other words, not a permanent arrangement. The policy, for all intents and purposes, doesn't specify an extra time depending on the requirements of the individual, so each case on its merits.`Each case on its merits again... that's what the policy says. It gives guidance to those people who are applying the policy essentially.'
The circumstances I have recounted demonstrate in my opinion that no real or genuine consideration was given in January and February 2001, by or on behalf of Australia Post, to the issue as to whether on the merits of her particular circumstances, the chair policy should not be applied adversely to the applicant.
83 Given my acceptance of the applicant's testimony as to the conversation between her and Mr Skeen in or about May 2000, as recorded in [21] above, which I consider to be likely to have occurred, and similarly my acceptance of her testimony as to the conversation between her and Mr Lowe, as recorded in [35] above, it follows that Australia Post did not make and implement the decision in relation to the applicant by way of any genuine weighing of the merits of her circumstances, including for instance the ten or so preceding years of her evidently meritorious employment history with Australia Post. Nor I should add, notwithstanding Mr Skeen's evidence testimony in Court which I have cited in the preceding paragraph, did the Australia Post policy, as reduced to writing (see [19] above), speak of any operation `under normal circumstances... for a temporary period... [and] not a permanent arrangement', or of `each case on its merits'. The interpolation by Mr Skeen of further conditions or exceptions into the text of the policy, as described in his testimony reproduced in [82] above, was designed in my opinion to endeavour to present a reasonable face to the operation of Australia Post's policy in the context of the present litigation.
84 Specifically in relation to the applicant and her treatment by Australia Post, it was further submitted on behalf of Australia Post that Mr Lowe and Mr Skeen evinced at length in their evidence the concern held by Australia Post for the applicant's physical safety. I have extracted some expressions of those purported concerns in Mr Skeen's affidavit evidence at [47-48] above. The genuineness of those expressions of concern however, given in the context of purported justification of Australia Post's conduct complained of by the applicant, and thus of his own conduct and that of Mr Lowe as his subordinate officer, falls for assessment in the light of what had taken place in relation to the applicant, at the instance of Australia Post, from about May 2000, under the supervision and direction of Mr Skeen and Mr Lowe. I have endeavoured to incorporate that material in my historical analysis of events commencing from [21] above.
85 In my opinion, there is not readily to be distilled, from the contemporaneously documented conduct of Australia Post, any realistic concern for the applicant's physical safety in the working place. The reality of their focus, I would infer from the evidence which I have identified or cited in these reasons, albeit ostensibly or purportedly policy driven, was that of emphatic denial of entitlement of or permission for the applicant to have any seating arrangement in her workstation at the Manly Post Office, whether intermittent (to adopt Ms Beazley's expression), or otherwise. That denial was undertaken, notwithstanding the history and record of the applicant's employment by Australia Post at Manly Post Office, including the repeated references to medical and ergonomic reports of the need for the applicant to be provided for with an ergonomically designed chair in lieu of her antiquated stool, which lacked at least some form of lumber support.
86 Australia Post next contended that the applicant made no attempt, in closing submissions, to rely upon the direction of the applicant onto sick leave, given on 23 February 2001 (extracted at [42] above), as constituting a `requirement or condition' within s 6 of the DD Act, and nor could it have done so, because that step, so the contention continued, met neither pars (a) or (c) of s 6, and therefore any issue as to whether it was `not reasonable having regard to the circumstances of the case' pursuant to par (b) of s 6, has never arisen. It therefore follows, so the contention continued, that the occasion to consider the non-statutory policy of Australia Post, or any relevant provisions of the award, had also not arisen. The response of the applicant was to the effect that the direction onto sick leave of 23 February 2001 had its origins in, and cannot be sensibly divorced from, Mr Lowe's verbal direction to the applicant of 25 January 2001 to stop using her stool (see [35] above), followed by Mr Lowe's confirmation to the applicant on 12 February 2001 to similar effect, and that the direction onto sick leave of 23 February 2001 occurred pursuant to and as part of the process of the unreasonable removal of the applicant from her place of employment at Manly Post Office, and thus within the parameters of Australia Post's conduct of discrimination complained of. Put another way, the conduct of discrimination on the part of Australia Post crystallised on 12 February 2001, when the Australia Post's critical direction to the applicant was given, and was thereafter implemented in the events which followed, including in particular the sending of the subsequent Australia Post letters to the applicant of 15 and 23 February 2001. The applicant's submission is correct, and the endeavour of Australia Post to submit otherwise misconceives the reality of the sequence of the events which occurred; moreover as I have earlier mentioned, I do not think that there can be divorced from the conduct relied upon by the applicant the events involving Mr Skeen described by the applicant in [22] above.
87 Australia Post then submitted that irrespective of the terms of its letter to the applicant of 12 February 2001, and of the policy document extracted in [19] above, individual employee cases of deployment were considered by Australia Post on their merits, which duly occurred in relation to the applicant, reliance being placed by Australia Post upon the lengthy testimony of Mr Skeen. Upon that footing, Australia Post submitted that its `chair policy' was not `a requirement or condition' within s 6 of the DD Act, but something peripheral thereto, notwithstanding the wide interpretation of that statutory expression given in Commonwealth of Australia v Human Rights & Equal Opportunity Commission & Anor [2000] FCA 1854; (2000) 180 ALR 635 at 654 (Katz J). I think I have already said enough in relation to the evidence before me concerning Australia Post's conduct referrable to the chair policy, in relation in particular to the applicant, to demonstrate that the submission is artificial and should not be accepted. Plainly the chair policy formed the substratum upon which Australia Post's conduct in relation to the applicant was purportedly founded and justified.
88 It is convenient to mention at this point of my account of the submissions of Australia Post that there is an apparent shortcoming in the purport of Ms Beazley's report, perhaps referrable to a limit in the scope of her instructions (see again the text thereof at [27] above). The author cited part of `The Australia Post Policy on the Provision of Stools/Chairs in Retail Outlets', purportedly upon the basis that her assignment required her to make recommendations in the light of that policy. In so far as the policy was sought by Australia Post to be applied to the circumstances of the applicant, Ms Beazley's evidence under cross-examination seemingly left that aspect of her assignment incomplete, from the perspective of her discipline as a qualified ergonomist, as appears from the following passages thereof:
`But you would agree from your training in ergonomics that there were open to Australia Post potential redesigns of the work station that might have assisted Mrs Daghlian's limitations? I don't know how appropriate it is for me to comment in that regard because that's not the purpose of the report that I completed ......
Yes, and that if Australia Post had not had the stool policy that you refer to in your report and if the stool hadn't been in such a[n], I might say, antiquated piece of furniture you might have come to a different conclusion mightn't you? That's pretty hypothetical.
Yes? I may have.'
Particularly having regard to recommendation numbered 2 contained in Ms Beazley's report (see again [26] above), those answers of Ms Beazley are not without significance. The inference is conceivably open to be drawn therefrom that Australia Post sought, by way of its instructions to Ms Beazley, to limit the scope of her report to areas of consideration unlikely to handicap its intended plans and purposes in relation to the applicant. I observe in that regard that Ms Beazley compiled her report from her observations of the applicant made at a distance from the applicant, and without any dialogue with the applicant.
89 Alternatively, Australia Post submitted that `... it is plain that the imposition could not amount to indirect discrimination if it was within the realm of what is "reasonable having regard to the circumstances of the case' (s 6(b) of the DD Act), and that the so-called imposition on the part of Australia Post was reasonable in the employment circumstances of the applicant, because of safety considerations and the obligation of Australia Post to maintain a safe system of work, not only for the benefit of the applicant but also for its other employees at the Manly Post Office. Australia Post also invoked in the same context the `inherent requirements of the particular employment' provisions of s 15(4) of the DD Act. I was referred to the evidence as to the perceived danger of employees tripping on the applicant's stool, notwithstanding the further unchallenged evidence to the effect that no incident of tripping had ever in fact occurred. I bear in mind that issues arising under both s 6(b) and 15(4) must be assessed practically (X v The Commonwealth [1999] HCA 63; (1999) 200 CLR 177 at [109] per Gummow and Hayne JJ), and that an employer must be able to provide assistance to enable an employee to carry out the inherent requirements of a particular employment, in circumstances where it is not unjustifiably harsh to expect the employer so to do (X at [39] per McHugh J). It was surely not unjustifiably harsh for Australia Post to have provided the applicant with an ergonomically suitable chair, despite the limited area of space to accommodate the same in her workstation behind the counter.
90 If, contrary to Australia Post's foregoing submissions, the Court was to find that there had been indirect discrimination within s 6 of the DD Act, Australia Post argued that its dismissal of the applicant, thus falling within the scope of s 15(2)(c) of the DD Act, did not take effect until the effluxion of the sick leave period of 78 weeks specified in its letter of 23 February 2001 to the applicant, which would be about mid August 2002. The applicant did not seemingly reject that proposition, given of course that it was to otherwise succeed in the proceedings. It is convenient here to repeat the observation earlier made that the sick leave payments furnished to the applicant equalled her rate of salary.
91 Australia Post thereafter contended that the courses of action which it adopted in relation to the applicant were undertaken on account of safe system of work considerations, being referrable to ergonomic or postural dangers inherent in the applicant using a stool constituting a trip hazard to her fellow employees, and that those considerations were sufficient per se to show that the application of Australia Post's chair policy to her employment situation at the Manly Post Office was not unreasonable, `having regard to the circumstances of the case', to cite again the provisions of s 6(b) of the DD Act. Australia Post referred to what was described as its extensive efforts to accommodate the applicant and her disabilities, its need to fulfil customer service obligations, and the `inherent requirements' of the particular employment position occupied by the applicant (s 15(4)). Australia Post submitted that the circumstances that the applicant's use of the stool behind the counter could not meet the inherent requirements of the applicant's job, and that she could not reasonably be accommodated `in that activity', and in addition the `unjustifiable hardship' on Australia Post as employer of not removing the risk involved in allowing the applicant to continue to use her stool behind the counter, all supported the reasonableness of Australia Post in ultimately deciding to disallow the applicant the further use of her stool behind the counter.
92 Australia Post emphasised that it was the use by its employees of chairs or stools behind the counter that the policy does not permit, the policy being said by Australia Post to be based on ergonomic advice furnished to the effect that the use of stools and chairs behind the post shop counters was an unsafe practice. Reliance was purportedly placed on Ms Beazley's assessment extracted at [27] above, and also the respective testimonies of Messrs Lowe and Skeen on its behalf. Australia Post submitted that the applicant suffered from a degenerative back condition in the light of the medical evidence, and that it was more than a standing restriction that had left her unable to meet what it described as the inherent requirements of her position. Reliance was placed by Australia Post upon Dr Artinian's description of the applicant's degenerative back problems (see [20] and [25] above, where he did not however, at least explicitly, use the description `degenerative') and the applicant's acknowledgment of restrictions, as a result of the condition of her back and feet, in the lifting (or more accurately, limited extent of the lifting) required of the full range of certain of her employment activities. Australia Post claimed that the applicant relied on its customers, or her fellow workers, in order to engage in her employment duties (something of at least an overstatement in the light of the evidence I have reviewed), which nevertheless left her with the risk of injury, `not least because it is foreseeable that the assistance that she expects will not always be given and there are risks associated with twisting and reaching'. In that former regard, my understanding of the evidence was however that the applicant was always accompanied by not less than two other employees at the post shop counter; in that latter regard, it will be recalled that Ms Beazley referred to `[r]epetitive twisting and bending of the trunk when accessing the keyboard, money drawer, receipt printer and customers'. Australia Post also maintained that the applicant was restricted by her symptoms in relation to bending, twisting, squatting, kneeling and climbing stairs, and further that she did not deny her physical restrictions in pushing and pulling, though she claimed that this was not a problem in the workplace `because someone else did it'. Australia Post did not, however, tender any statistical evidence of the frequency of its counter staff handling of parcels above approximately 5 kilograms in weight, or 7 kilograms in the case of `occasional lifting' (see again Dr Steel's evidence at [43] above), and the inference I would draw is that those circumstances could be conservatively described as infrequent.
93 Australia Post referred to Mr Lowe's interpretative catalogue of seven restrictions described in [44] above, `interpretative' in the sense of his purported `translation' of Dr Steel's findings into the various facets of the applicant's duties and experiences. On that basis he concluded that the applicant was thereby prevented from undertaking the duties described also by Mr Lowe in [44] above. Australia Post concluded that `[h]er permanent lifting restriction is important, as the inherent requirements envisage an ability to lift up to 16 kg'. How frequently in reality the applicant was required to lift up to 16 kg, much up to 20 kg, was not stated by Australia Post, but as already indicated, I would infer that the majority of parcels weighed well within her carrying capacity of 5 kg established by the medical reports. Mr Lowe's catalogue of seven restrictions must always be tempered by the implications of the employment reference furnished by the Postal Manager at Manly Post Office (see again [38] above), and the precise content of Dr Steel's report.
94 Further as to the extent of reliance by the applicant upon fellow employees for physical assistance because of her disabilities, the same needs to be put into a realistic and practical perspective, which tended to be lacking to a significant extent in many aspects of Australia Post's submissions, as well as in the evidence of Messrs Skeen and Lowe. For one matter, there was available to post office staff the facility of a trolley for the conveyance of parcels to and from the counter, being a facility which Australia Post has apparently retained in its post shops, despite the acknowledged danger of thereby causing the tripping thereon of employees engaged behind the counter. Secondly, given the absence of evidence from Australia Post to the contrary, which I would otherwise have expected if the contrary was the case, I am unable to draw the conclusion that any significant proportion of her counter duties involved the carrying of parcels weighing more than five kilograms or thereabouts, being of course the limit of her capacity indicated in the medical evidence. Moreover her duties included the selling of postage stamps and the cashing of bills of exchange over the counter, doubtless very frequent occurrences. Thirdly her duties extended to a lesser, though not insignificant, degree to what may be described as desk or clerical in character. The Australia Post submission that `[h]er permanent lifting restriction is important, as the inherent requirements envisage an ability to lift up to 16 kg', tends to constitute, when not very substantially qualified, an unfortunate contextual overstatement. Moreover I would take leave to doubt whether the applicant was the only Australia Post female employee who has required assistance in lifting 16 kg parcels.
95 Australia Post next relied on the absence of dispute on the part of the applicant of the fact that she kept her stool at all times behind the counter whilst she was working, notwithstanding that the stool's presence behind the counter involved a reasonably foreseeable risk of injury, both to her and to other employees. But of course there was insufficient room to accommodate the stool in the applicant's working space or station behind the counter at the Manly Post Office, yet also to afford what might be envisaged to be adequate standing room for the applicant (see that part of Ms Beazley's report discussed in [28(iii)] above). Moreover it merits repetition, in the present context, to the effect that the replacement of the stool by an ergonomic chair had been recommended in medical and ergonomic reports as early as 1991 by both Dr Coucher and Ms Smith, yet for some reason never explained in the otherwise large amount of evidence tendered by Australia Post, those recommendations were never implemented by Australia Post.
96 Australia Post's Injury Prevention and Management Unit (Mr Nelson) acknowledged in September 2000 the stance adopted by the applicant's trade union (see [31] above), but found himself confined by Australia Post policy to provide a so-called `sit-stand form of seat' for the circumstances only of `short-term sitting whilst recovering from occupational injury'. Even given the justification for that policy, I have not encountered any good reason why a similar gesture could not have been extended to the applicant, bearing in mind the relatively long history of her obviously satisfactory employment conduct generally. As Ms Smith pointed out to Australia Post in her 1991 report (see again [7] above), `[t]he stools currently on the counter do not provide any lumbar support', being a circumstance also distilled by the then Manly Post Office Manager Mr McNamara to his regional supervisor in May 1997 (see [15(iii)] above). I acknowledge the force of the implications of the submission of Australia Post that the applicant's `... need for a chair to rest her back and feet from time to time is permanent', but any such permanent need has not carried the consequence that the applicant has not otherwise been able to carry out properly and competently the `inherent requirements' (to adopt the s 15(4)(a) description) of her particular employment (on the contrary, see again [12]) above). What the applicant required was simply the ability and opportunity to sit `... for short periods in between serving customers', as Ms Brackenrig observed at [15(iv)] above.
97 As to the aggravation of the applicant's back condition which occurred in 1991, apparently sustained in the course of her employment (see [6] above), Australia Post contended that if the incident gave rise to her present disability, the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Compensation Act) would operate to exclude any action for damages, in the circumstances described in s 44(1) thereof reading as follows:
`(1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of:(a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or
(b) the loss of, or damage to, property used by an employee resulting from such an injury;
whether that injury, loss or damage occurred before or after the commencement of this section.'
The defence of Australia Post did not raise any plea based upon s 44 of the Compensation Act, nor adduced any evidence in relation thereto.
98 I would not characterise the present proceedings brought by the applicant as `an action or other proceeding for damages... against... a Commonwealth authority... in respect of an injury... in the course of... her employment...', but as proceedings for unlawful conduct by reason of the operation of the DD Act. No determination has been made, nor has ever been sought, in relation to the applicant's injury, pursuant to ss 24, 25 or 27 of the Compensation Act (Telstra Corporation Ltd v Flynn [2002] NSWCA 315; (2002) 55 NSWLR 303).
99 Australia Post then addressed the issue as to whether the use of the applicant's stool behind the counter was in fact unsafe, and the further issue to the effect that although the applicant was positioned by her employer at one end of the counter, and thereby worked adjacently to a side wall in the retail area of the Manly Post Office as well as to a rear wall, that seemingly isolated working location did not eliminate the reasonably foreseeable risk of a tripping hazard to other members of the staff, or at least the counter staff, at the Manly Post Office. Australia Post claimed that the fact that the applicant's stool constituted a trip hazard was `a matter with respect to which the expert opinion is all in the same direction, supportive of the respondent's case'. Yet as has been already restated, the evidence presently before me is to the effect of an absence of tripping by any person on the applicant's stool during the relatively lengthy period of her employment, thereby inviting the inference to be drawn that the danger of tripping on the applicant's stool was more hypothetical than real. Moreover even during the earlier years of the applicant's employment when her work area was a `thoroughfare', to use Ms Newton's description made in 1996, being inferentially prior to the first renovations to Manly Post Office, the uncontradicted testimony of the applicant was to the effect that no one ever tripped on or over her stool. As to Mr Skeen's `broad brush' testimony on the subject of supposedly widespread tripping, the same was unsatisfactory as material to which weight should be given, for the reasons I have earlier indicated.
100 Mr Skeen's affidavit testimony cited by Australia Post in this context related to what he saw when he visited Manly Post Office in May 2000, in addition to what I have already reproduced in [21] above, namely that `... I... noticed the applicant was sitting on a stool at the end of the counter serving customers. I noted that she was located in such a way that no other staff could access the area without the risk of tripping on the stool'. His viva voce testimony in chief in relation to this occasion appears at [47(i)] above, where he was rightly critical of what he described as the applicant's `very very old stool' which was `completely inappropriate' and referred to his understanding that `there are ergonomically designed chairs'. The focus of his testimony at that point was solely upon his alleged concern that the applicant was exposed to aggravation of her `significant degenerative back condition'. The rather obvious observation to be made at this point was the apparent neglect of Australia Post to provide the applicant with an ergonomically appropriate chair which had been brought to its attention in medical reports since 1991 (see again [6-7] above), and most recently in Ms Beazley's report.
101 To that testimony may be conveniently added certain lengthy answers given by Mr Skeen, at the conclusion of his viva voce evidence in chief, concerning his extensive experience over 15 years to the effect that `... when chairs were there... they are definitely a hazard behind counters... I've seen many, many occasions when people have, in fact, tripped and/or had incidents where it has not involved the actual chair itself, but it's because the chair has restricted the space between... the wall and/or any other issue behind the person and the chair...'. Why then, it may be legitimately asked, had no employee ever tripped on Ms Daghlian's stool during her many years of employment? As already indicated, one answer is that no employee had occasion to do so, particularly after the applicant's workstation became located at the end of the counter and her workstation became confined to the area of 1190mm described in Ms Beazley's report (see [28(iii)] above). Moreover if Australia Post had accepted the expert advice given years earlier to provide the applicant with an ergonomically suitable chair in lieu of her aged stool, the absence of sufficient room for the other counter staff to enter the applicant's workstation would appear to have been even more compelling, because of the additional space presumably required by a chair in comparison with the stool.
102 Reliance was placed by Australia Post upon Mr Skeen's experience with stool incidents in Australia Post premises (see in particular [47(iv-vi)] above, and his references therein for instance to `98 compensation claims', and to `50 incidences of trips, kickings and otherwise of the stand on the sit/stand stool' in the Australia Post's Newcastle Post Office). I do not think that I should accord any significant weight to that evidence. It is of concern that this evidence was not included by either Mr Skeen, or of Mr Lowe in their respective affidavits, so that it could have been tested by discovery or documents produced on subpoena, and by cross-examination. If the incidents of trippings were as authentically relevant and serious as Mr Skeen postulated, I would have expected that a tender of supporting documents recording or evidencing the same would have been put into evidence. Other matters of concern in relation to Australia Post's case were first, the apparent neglect of Australia Post to implement Ms Beazley's recommendations (see [27] above), particularly the second recommendation concerning the need for the applicant to have `intermittent rests', the fact that Messrs Skeen and Lowe did not delay the Australia Post direction of the applicant onto sick leave, pending the outcome of Dr Steel's critically important report requested by Mr Lowe (see [43] above), and instead purportedly relied on the medical certificates of Doctors Artinian and Kandine made 7/8 months earlier (see [25] above), and the observations made in the course of the unforeshadowed confrontations of the applicant by Mr Skeen in May 2000 (see [21] above) and by Mr Lowe in late January 2001 (see [35] above).
103 I should add for completeness that after the conclusion of the evidence, and in the context of its written submissions, Australia Post sought to tender `MFI 3', being an Australia Post internal document dated 9 November 1998 and headed `Procedures for Line Managers on the Management of Employees with Non-Work Related Medical Restrictions'. The applicant opposed that course, notwithstanding having referred to the document in the course of cross-examination of Mr Lowe. I agree with counsel for Australia Post that the document should be admitted into evidence as an exhibit. The same sets out Australia Post's policy in relation to decisions upon current medical evidence, the procedures applicable to cases of non-work related injuries, the ability of persons to perform the inherent requirements of the job after having been given a reasonable time to do so, consideration to be given on a case by case basis having regard to restrictions, disabilities and the inherent requirements of particular positions, if necessary with reasonable adjustment, consideration to be given to deployment, and retirement action. I have formally admitted the document into evidence, but have found it unnecessary to otherwise refer to the same in these reasons. It is of course entirely proper, and a matter for commendation, for Australia Post to compile and circulate that kind of comprehensive material for the guidance of its management, but of course my task is to resolve the issues arising in the particular circumstances of the case according to law.
Findings and Conclusions
104 There is no dispute that the applicant suffers from disabilities having the statutory description of malfunction or malformation of parts of her body, variously described in the medical evidence as osteoarthritis of the lower back, spondylitis, bilateral varicose veins and bilateral spurs of heels. Those malfunctions and malformations have disabled her in terms of her lifting capacity and standing tolerance, such that the applicant found it necessary to sit periodically at the counter of the customer service area of the Manly Post Office to which she was employed to attend. It will be recalled that Ms Beazley used the description `intermittent rest purposes' in the second of her two recommendations the subject of her report, an expression which she would doubtless have coined from the `Australia Post Policy on the Provision of Stools/Chairs in Retail Outlets' which I have earlier extracted.
105 From the time in 1996 of the introduction of its marketing concept of post shops, and the remodelling of its premises, Australia Post set about the formulation of its policy relating to the utilisation of chairs and stools at its retail counters. The framework of that policy appears to have been settled in about mid 1999. From about May 2000, workplace assessments were undertaken by Australia Post's Human Resources Department in relation to its counter serving employees, thereby including of course the applicant. An inference readily open to be drawn is that at least one purpose of the policy was to achieve increased efficiency in Australia Post's merchandising services available to the public, in the context of the modernisation of what was previously a public service institution. The change in the presentation and range of available merchandise and services in these new so-called post shops has been undoubtedly impressive, and Australia Post is rightly entitled to credit for what it has achieved in a relatively short period of time.
106 The framing of the policy was one consideration. The implementation thereof in relation to the circumstances of employees in its numerous post offices throughout Australia was another. As was to be expected in the case of most undertakings involving the application of policies to differing situations and circumstances, issues arose for evaluation and judgment, as I would infer from the large amount of documentary evidence. Intruding upon the exercise of evaluation and judgment is however the operation of the DD Act, which focuses attention upon individual circumstances of disabled employees.
107 In circumstances such as the present, where the relationship of employer and employee is involved, there concurrently operates other forms of regulation designed to protect and enhance the interests of employees. They are to be found of course in the fields of operation of industrial law and workers compensation law. In those areas of statutory regulation, finding the correct balance between potentially competing interests would not have been an easy or uncontroversial legislative and regulatory task. The dispute between the applicant and Australia Post has thus far crystallised in proceedings, not only in the Human Rights And Equal Opportunity Commission, but also in the Industrial Relations Commission, though the issues arising in the latter forum are not, at least for the most part, identifiable from the evidence placed before me.
108 The facts and circumstances involved in the present proceedings are complex and varied, and sometimes unclear. For those reasons, I have set out the evidence, in many instances, in considerable detail, so that variations and inconsistencies can be identified and understood. The physical disabilities which have inflicted the applicant, almost from the outset of her employment by Australia Post commencing in 1989, have been complicated by her need for weight loss, distilled in the earliest of the medical reports, and by her need for physical exercise, distilled in the earliest of the occupational and health assessments in evidence each made in 1991. It is readily apparent however that the nature of her physical disabilities has not to be susceptible to reverse, whether by weight loss or by physical exercise.
109 The complexity of the applicant's employment history may be imperfectly deduced from the evidence in summary as follows. As has been earlier recounted, the applicant was directed on 25 January 2001 that she would no longer be permitted to use what had become her personal stool, that seemingly being the only form of seating with which she had ever apparently been provided by Australia Post over the preceding eleven or so years. That direction was made, despite the recommendations of professional practitioners made to Australia Post, over the preceding eight or nine years, that she be provided with an ergonomically designed chair for her use whilst engaged in counter duties. Shortly afterwards, that stool was forthwith removed from the place of performance of her duties behind the counter, at the direction of Mr Lowe, and not replaced. For the ensuing period of time before her deployment in the following month of February 2001 from the Manly Post Office to the Strawberry Hills Head Office of Australia Post, the applicant was effectively prohibited from sitting down during her working hours at the counter. After the applicant's brief period of six days engaged in administrative work at the Head Office, she was relegated to maximum sick leave, the period of which expired after 78 weeks or so. There was no replacement position of employment which became available for her, whether at the Manly Post Office or elsewhere within a reasonable distance, or otherwise, apart from her brief period of six days attendance at Strawberry Hills purportedly to become acquainted with administrative duties. By reason of the application of the `no-seating policy' to the applicant, any post office counter position, whether at Manly or elsewhere, was thenceforth out of the question for the applicant, as far as Australia Post was concerned. The applicant had stated to Australia Post that any position of deployment on administrative duties should accommodate her wish for reasonable proximity of travelling distance from her home in Manly, as of course had been the case with Manly Post Office, where she had previously worked for the entirety of her employment by Australia Post. No further administrative position at any Australia Post location was in fact provided for the applicant, prior to her relegation on sick leave. Her principal complaint remained that of having been uprooted against her wishes, from her long held counter position at the Manly Post Office, where inferentially, her circumstances of employment there had been happy and congenial (see again [38] above), and thereafter finding herself on sick leave, with an unlikelihood of an offer of suitable employment by Australia Post after the expiration of her sick leave period.
110 The first issue arising for resolution is whether the demand made by Mr Lowe of Australia Post, that the applicant comply with its `requirement or condition' that she not be seated at the retail counter at the Manly Post Office during her working hours, was `not reasonable having regard to the circumstances of the case', for the purpose of operation of s 6(b) of the DD Act. No issue arises in relation to ss 6(a) or 6(c) of the DD Act, since there is no evidence that for instance any Manly Post Office employee, other than the applicant, was not able to comply with Australia Post's so-called chair policy. Nor is there any issue that, by reason of her physical disabilities, the applicant was not able to comply with the chair policy, at any rate to the extent to which Australia Post, through Mr Skeen, and subsequently Mr Lowe, purported to enforce, in the circumstances which I have earlier recounted. In Waters & Anor v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Dawson and Toohey JJ (at 393) and McHugh J (at 406-407) embraced an earlier judicial description of the statutory expression `requirement or condition', as it appeared in a similar context in certain State legislation, as one attracting a broad interpretation, such as to `cover any form of qualification or prerequisite'. That requirement or condition, and the consequences of non-fulfilment thereof inherently likely having regard to the applicant's disabilities, were imposed by Mr Lowe upon the applicant in the circumstances described in [35-36] above, and subsequently in any event by the Australia Post letter of 12 February 2001 to the applicant (see [37] above). The kind of requirement or condition had been foreshadowed in the confrontational circumstances initiated by Mr Skeen in May 2000 and described in [21-23] above, in the context of Dr Artinian's two early medical reports described in [20] above. In the intervening period of time Australia Post was furnished with a further medical report from Dr Artinian, and a medical report from Dr Kandine (see [25] above), apparently obtained by the applicant, and the ergonomic report from Ms Beazley (see [26-29] above) commissioned by Australia Post, and also with the information from Australia Post's Human Resources Department and Australia Post's Corporate Ergonomist (see [18-19] and [32] above).
111 I would resolve in favour of the applicant the issue arising under s 6(b) of the DD Act, that is to say, whether the Australia Post requirement or condition imposed on the applicant to perform her counter duties whilst standing, and without intermittent resting, was not reasonable, having regard to the circumstances of the case, primarily or mainly for the following reasons based on the historical evidence which I have already reviewed in detail:
(i) in the course of performing her counter duties at Manly Post Office, being duties undertaken from apparently the outset of her employment in 1989, the applicant had sat on a stool from time to time without restrictions imposed by Australia Post, in the circumstances described and for the reasons appearing in [4-16] above; that situation continued until the occasion of Mr Lowe's controversial visit to Manly Post Office on 25 January 2001 described in [35] above; its somewhat uncertain reasons for so doing, explained at length, as reproduced at [45-52], have not satisfied me why it was for an employee, whose ability to carry out the requirements of her relatively longstanding employment, without any suggestion of danger to other employees, had never been questioned, should have been classified, in effect, as a potential physical danger to her co-employees by way of causing them to trip, to the extent that she should no longer be entitled to `intermittent rest' (to adopt the language of the chair policy which Ms Beazley adopted) whilst on counter duty;
(ii) despite recommendations made in medical and ergonomic reports from 1991 to May 2000 provided to Australia Post by its own nominees, as well as medical reports of a more brief nature obtained by the applicant for Australia Post from Dr Artinian, and also from Dr Kandine, the applicant was not provided, nor informed that she would be provided, with a stool or a chair of appropriate ergonomic design containing lumbar support in particular, being recommendations which were designed to assist her to work satisfactorily and efficiently in the performance of her counter duties, notwithstanding her physical disabilities;
(iii) there was no evidence that the applicant was otherwise than a competent and conscientious employee of Australia Post, and a dutiful team member of the counter staff in every fair sense of that description (see again in that regard [38] above);
(iv) there was no indication in the evidence otherwise than that her use of the stool in her workstation had not been the cause of any other employee, or herself for that matter, to trip in the workplace (see [75(iv)] above); conversely the ongoing provision and use of trolleys behind counters at all post offices had been an acknowledged cause of tripping of employees, yet that facility had remained in use after the conversion of post offices to post shops, because of their utility to the movement of parcels from the counter to the mailroom (see [75(iii)] above); that is not to suggest that the `no stool/chair' policy was inherently inconsistent or flawed on that account, but only that the trolley factor tends to demonstrate that the no chair/stool policy had been accorded undue emphasis by Australia Post in the context at least of its enforcement, if not also in the text of its formulation; moreover there was also a measure of inconsistency involved in Australia Post's emphatic enforcement of the policy, at least in relation to the applicant, in the light of its affirmative policy on the provision of counter stands for persons `of short stature' (see [72] above);
(v) there was no evidence, or at least persuasive evidence, to the effect that the inability of the applicant to lift or carry parcels above 5 kg in weight, to and from the mailroom, with or without the assistance of a trolley, occasioned operational inefficiency, or generated any staffing complaints, resentments or disruptions; nor was there any evidence to the effect that all or perhaps even the majority of Australia Post employees, apart from the applicant, met Mr Lowe's purported criteria of lifting etc loads of 16 kg unaided, and of 20 kg with assistance; there was no suggestion in any event that the applicant shirked her duties of lifting within her capacity by remaining seated when that kind of task was on hand for her to perform as a counter employee;
(vi) there was no evidence to the effect that the maintenance of some form of seating accommodation behind the counter for `intermittent rest' purposes, to adopt the description used in the Australian Post policy at [19] and Ms Beazley's report at [27], was destructive of or prejudicial to the new post shop image sought to be created after conversion of post offices (such as Manly) from their traditional format to the new post shop format, nor that it diminished, at least to any material extent, the efficiency of the post office counter operations of the applicant and her accompanying counter employees;
(vii) the circumstance that the applicant's workstation behind the counter was too small in dimension to allow for her stool (or an ergonomically designed chair which, on the evidence, should have been provided by Australia Post for her many years earlier) to be positioned away from the counter, so as to occasion less potential obstruction to other counter employees who might conceivably enter the same, was not a sufficient reason for Australia Post to emphatically deny to the applicant any opportunity at all of being seated for intermittent rest purposes in the course of carrying out her counter duties; that insufficiency of space presented a problem for Australia Post, and not the applicant, to resolve, if Australia Post was to pursue its emphasis upon observance of its `Policy on the Provision of Stools/Chairs in Retail Outlets' (see [19] above) without exception, and in all circumstances; I would add that there was evidence of the desirability of constructing knee-wells in the counters, which would have increased the available working space for post shop employees behind the counters, particularly where needed, such as at the Manly Post Office (see [75(i) and (ii)] above); and
(viii) the evidence of Mr Skeen under cross-examination was at least partly diminished in force and effect, by his making of the concessions, and by at least hypothesising the possibility of his reconsideration of the applicant's case.
112 I have also been troubled about the ultimate implications of the applicant's evidence to which I have referred in [76 (vi)] above, being implications suggestive of Australia Post's desire to bring to an end her many years of employment. I have reached the conclusion that the applicant's account of what was said to her by Mr Skeen on the occasion of that unforeshadowed visit demonstrates a view (by then held by Mr Skeen) that the applicant was not the kind of person appropriate to be any longer serving on a post shop counter of Australia Post.
113 It follows from my summary of findings of the circumstances that befell the applicant in January and February 2001, and the consequences flowing therefrom, that is to say, her effective removal from Manly Post Office, and placement on long service leave in circumstances indicative of unlikelihood of re-employment, that the applicant has made out a prima facie case for relief against Australia Post by reason of the denial of her use of seating accommodation at the Manly Post Office, and her subsequent removal from Manly Post Office and her employment there on counter duties, and her subjection `to any other detriment' incidental to that removal falling within the scope of pars (a), (c) and (d) of s 15(2) of the DD Act. Australia Post discriminated against the applicant as its employee, on the ground of her physical disabilities, in the following respects stipulated by par (a) and/or par (d) of s 15(2) of the DD Act:
(i) by the imposition of a term or condition of her employment that she not be seated at the retail counter at the Manly Post Office for intermittent rest;
(ii) by the subsequent discontinuance of her location of employment at the Manly Post Office, which she had enjoyed for about eleven years, and deployment to Australia Post's head office at Strawberry Hills for the period of six days, with a view to her possible further deployment to another post shop in the Sydney metropolitan area if an administrative position might become available for her;
(iii) by the subsequent direction of the applicant onto sick leave classification from 27 February 2001 upon the terms and conditions of Australia Post's letter of 23 February 2001; and
(iv) by the subsequent absence of availability of any such position of employment, whether proximate to her home in Manly, or otherwise.
114 The issue next arising for determination is whether, because of her disability, the applicant was unable to carry out the inherent requirements of the particular employment, or in order to carry out those requirements, would have required services or facilities that would not have been required by persons without her disability, and the provision of which has or would have imposed an unjustifiable hardship on Australia Post, in accordance with pars (a) and (b) of s 15(4) of the DD Act. Australia Post sought to raise issues pursuant to s 15(4) of the DD Act, upon the basis that `... the respondent agrees that the applicant should now be treated as dismissed for the purposes of section 15(2)(c) and (4) of the Act upon the effluxion of the period of 78 weeks referred to at the foot of [the Australia Post letter of 23 February 2001]'. I will address those submissions upon the assumption that the `inherent requirements' of the applicant's `particular employment' had not in fact changed at any material time up to the expiration of that period of time, and putting aside the further complication raised by Australia Post's re-commencement of payment of salary to the applicant as from 27 August 2002 (see [53] above) for reasons unexplained.
115 In X v The Commonwealth (at 187-188), McHugh J paraphrased the `inherent requirements' of a particular employment, for the purposes of s 15(4) of the DD Act, as the `essential element' thereof, and as relating to `much more than the physical ability to carry out the physical tasks encompassed by the particular employment', and also to obligations of fidelity and good faith on the part of the employee, and to an implied warranty of an employee to exercise reasonable care and skill in carrying out the employment. I do not understand Australia Post to have alleged non-fulfilment on the applicant's part of any of those employee obligations, nor in the light of the evidence could that have been so; however his Honour proceeded to exemplify (at 188) an `inherent requirement' as constituted, in particular, by `carrying out the employment without endangering the safety of other employees', which relates to the purported basis, or at least an important aspect, of Australia Post's case in relation to the applicant.
116 At 190-191, McHugh J explained and exemplified the inherent requirement of an employee to carry out his or her employment without endangering the safety of other employees (the following further statements of principle appearing in his Honour's reasons have relevance to the circumstances of this case):
(i) `[i]n determining whether the employee poses a risk to the health or safety of other employees (or other persons or property), ordinarily it will be relevant to have regard both to the degree of the risk (in the sense of it being realised) and the consequences of it being realised (in the sense of the seriousness of the harm that will ensue if it is realised);'(ii) `[i]n determining whether the employee poses a risk to the health or safety of others because of his or her disability, the risk must be specifically referrable to those persons or things affected by the particular employment... If the particular employment requires the employee to work in close contact with others, for example, a disability of the employee may pose a real and constant risk to those other persons;'
(iii) `[b]y reason of some essential feature or defining characteristic of the particular employment, does the disability pose a real risk to the safety or health of other persons or the preservation of the property of the employer?'
117 In the joint reasons for judgment of Gummow and Hayne JJ, with which Gleeson CJ and Callinan J agreed, the following appears at 208:
`The reference to "inherent" requirements invites attention to what are the characteristics or essential requirements of the employment as opposed to those requirements that might be described as peripheral. Further, the reference to "inherent" requirements would deal with at least some, and probably all, cases in which a discriminatory employer seeks to contrive the result that the disabled are excluded from a job. But the requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment to meet the needs of a disabled employee or applicant for work.'
118 In the present case, the evidence has established in my opinion that the applicant was at all material times able to carry out the inherent requirements of her particular employment, which for the majority of the time involved her in serving customers at the shop counter (it will be recalled that in addition, the applicant undertook certain clerical duties). No issue was raised by Australia Post as to her competence and fidelity as an employee, and as an effective `team member' at the Manly Post Office. Her physical restrictions in carrying the apparently occasional heavy parcels to and from the counter was not an issue referrable to an inability on her part to carry out any inherent requirements of her employment, nor on any fair and reasonable weighing of the material in evidence, could any such issue have sensibly and realistically been pursued. The issue raised by Australia Post under par (a) of s 15(4) appears to have been confined to one of safety of the applicant's execution of employment duties in relation to her co-employees.
119 I have of course already made findings on the safety controversies arising in the context of s 6(b) of the DD Act, in the course of my reasons appearing in [111] above. Those findings effectively resolve in my opinion what may be described as the safety issue in favour of the applicant, to the extent that the same arises in the context of par (a) of s 15(4) of the DD Act. Moreover the fact merely that in about the tenth year of the applicant's employment, Australia Post introduced its `no chair' policy, without more, was not enough, in relation to physical circumstances of the applicant, and in the context of her workstation at the end of the counter, to establish an inability on her part to carry out the inherent requirements of her position. In making that finding, I put aside whatever significance may be attributed to the somewhat uncertain expression `for intermittent rest purposes' contained in the text of the Australia Post chair policy, being an expression tending to favour the applicant's case.
120 If my finding in favour of the applicant as to `inherent requirements of the particular employment' stipulated by par (a) of s 15(4) be incorrect, I would nevertheless have found that it would not have imposed an unjustifiable hardship upon Australia Post, within par (b) of s 15(4) of the DD Act, when read in the light of the provisions of s 11 of the DD Act, to have provided a stool or chair, equipped with adequate lumbar support (ie an ergonomic seating arrangement) for periodic use by the applicant in her workstation, in order to accommodate the findings of Dr Steel (made on the instructions of Australia Post). Given in particular my findings in favour of the applicant, for instance, in relation to the absence of any tripping on her stool, the positioning of her workstation at the end of the counter, and given also the apparent willingness of the other members of the Australia Post counter staff for the time being, so I would infer, to assist the applicant with the handling of parcels beyond her carrying capacity, I am unable to perceive room for any circumstances conceivably within pars (a) and (b) of s 11 of the DD Act to bear upon the statutory notion of `unjustifiable hardship'. Moreover Australia Post's omission to call evidence as to the cost and logistics of enlarging the applicant's workstation, upon what I would regard as the unlikely basis that any such seating arrangement at the far end of the counter would have constituted a realistic danger of tripping to other staff, constitutes a further factor in derogation of the demonstration of the `unjustifiable hardship' factor raised by Australia Post.
121 The conclusion which I have therefore reached, namely that in the circumstances which happened, Australia Post indirectly discriminated against the applicant within the scope of s 6 of the DD Act, will require an assessment of the relief sought, as foreshadowed in [62-63] above. That assessment will require a further hearing, as the parties have mutually agreed in principle, partly to update what has since occurred in relation to the quantification of sick leave, and Australia Post's unexplained resumption of wage payments subsequently to the expiration of the maximum period of sick leave, and partly to receive evidence by way of cross-examination of the psychiatrists respectively retained by the parties. It may be of some assistance, if the parties are minded to endeavour to resolve the issues as to the nature and qualification of the remedies sought, for me to express certain tentative views on the subject:
(i) the quantification of wage loss to date would need to take into account the generous sick leave payments which the applicant has received in accordance with Australia Post regulations or policy; the reinstatement of sick leave benefits sought by the applicant may conceivably have minimal value, since the benefits paid to date would of course need to be credited in the quantification of wage loss, and there will doubtless be contested issues as to whether the applicants' retirement age would be 60 or 65 years of age, or 63 years as has since been claimed by the applicant;
(ii) the applicant will need to give credit in respect of her past (and if applicable future) earnings from telemarketing, by production of appropriate records; and
(iii) whether an apology would also be appropriate in the circumstances is unclear, given that the course adopted by Australia Post has been purportedly based on policy grounds and accompanied by generous sick leave provisions and an apparent resumption of salary payments.
122 By reason of the matters yet to be resolved, the appropriate course is for me to presently grant declaratory relief in favour of the applicant on her cause of action for discrimination, and to make an order that the respondent pay the applicant's costs of the proceedings. I observe that I am empowered to make an order declaring that the respondent has committed unlawful discrimination, upon the footing of s 46PO(4)(a) of the HREOC Act, but my preferable course at the present is to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), and stand over the grant of consequential relief pending the resolution of the remaining issues involved in relation to relief.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. |
Associate:
Dated: 23 July 2003
Counsel for the Applicant: |
D Dawson |
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Solicitor for the Applicant: |
Slater & Gordon |
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Counsel for the Respondent: |
G Johnson |
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Solicitor for the Respondent: |
Brian Muir & Co |
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Dates of Hearing: |
22, 23 & 24 October 2002 |
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Date of Judgment: |
23 July 2003 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2003/759.html