Hamden v Commonwealth of Australia (Centrelink) [2010] FMCA 36 (28 January 2010)

Federal Magistrates Court of Australia

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Hamden v Commonwealth of Australia (Centrelink) [2010] FMCA 36 (28 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMDEN v COMMONWEALTH OF AUSTRALIA (CENTRELINK)

[2010] FMCA 36

HUMAN RIGHTS – Disability discrimination – unlawful discrimination not found.

Disability Discrimination Act 1992 (Cth), (as at 2006), ss.4, 5, 6 & 15 Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.49PO(1)

Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46 Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commonwealth v Humphries (1998) 86 FCR 324 Laycock v Commissioner of Police [2006] NSWADT 261 Laycock v Commissioner of Police [2007] NSWADTAP 34 Cosma v Qantas Airways Limited [2002] FCA 640 Cosma v Qantas Airways Limited [2002] FCAFC 425 X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177 Y v Australia Post (1996) HREOCA 21 Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited (1993) 46 FCR 301 Ware v OAMPS Insurance Brokers Limited [2005] FMCA 664

Applicant:

DAVID KEITH HAMDEN

Respondent:

COMMONWEALTH OF AUSTRALIA (CENTRELINK)

File Number:

ADG 136 of 2008

Judgment of:

Simpson FM

Hearing dates:

8 & 9 September 2008 and 13 May 2009

Date of Last Submission:

13 May 2009

Delivered at:

Adelaide

Delivered on:

28 January 2010

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Eastman

Solicitors for the Respondent:

Spark Helmore

ORDERS

(1) The Application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 136 of 2008

DAVID KEITH HAMDEN

Applicant

And

COMMONWEALTH OF AUSTRALIA (CENTRELINK)

Respondent

REASONS FOR JUDGMENT

OVERVIEW

1. In October 1996 the applicant, Mr David Kevin Hamden, was re-employed by Centrelink[1] on a temporary basis and in February 1997 had his employment made permanent. His employment was terminated on 26 June 2007.
2. At the time of his termination Mr Hamden was employed in the position of Customer Services Adviser (“CSA”) at Centrelink’s Call Centre in Adelaide. The Call Centre employs approximately 250 employees, the majority of whom are CSAs. The CSA’s role is to take calls from Centrelink customers about their entitlements.
3. Each CSA is assigned to work in a small group (or team) under the control of a team leader. Each team has responsibility to attend to customer enquiries in a particular area (or business line), such as Family Assistance, Employment Services or Youth and Students.
4. It is not disputed by the respondent that the applicant has for a long time suffered from an anxiety disorder and that this was a disability for the purpose of s.4 of the Disability Discrimination Act, 1992 (Cth) (“the DD Act”)[2]. The anxiety disorder can result in the applicant having panic attacks. As will be seen, the applicant has had a number of issues to deal with in the workplace that might be expected to raise his anxiety levels.
5. During the applicant’s employment with the respondent since 1997 there have been a number of occasions when female staff have made complaints (sometimes formal, sometimes informal) of the applicant’s sexual harassment of them. The allegations include inappropriate comments to female staff, lengthy staring at female staff and, on one occasion, sending what has been referred to as “an inappropriate email” to a female staff member. The applicant says that the allegations have aggravated his anxiety disorder.
6. The applicant has had further problems to deal with in the workplace, particularly in relation to his relationship with Team Leader Bronwyn Szabados. He has said that he despised her and wanted the respondent to take steps to give him a different team leader.
7. The applicant has had numerous absences from work that he attributes to aggravation of his anxiety disorder. This time off has also been a further source of conflict for the applicant. On 26 June 2007, the respondent terminated the applicant’s employment on the basis of him being absent, without good reason, from the workplace for fourteen consecutive days.
8. On 31 August 2007 the applicant lodged a complaint of unlawful discrimination under the DD Act and the Human Rights and Equal Opportunity Commission Act, 1986 (Cth) (“the HREOC Act”). On 27 March 2008 the President of the Human Rights and Equal Opportunity Commission (“HREOC”) terminated the complaint. On 16 April 2008 the applicant commenced proceedings in the Federal Court pursuant to s.49PO(1) of the HREOC Act. The proceedings were transferred to this Court on 30 May 2008.
9. The applicant has at all times been unrepresented.
10. The proceedings have proceeded on the basis of affidavits rather than pleadings. As will be seen, there have been numerous and extensive affidavits filed by both parties.

Evidence relied upon at the hearing

11. The applicant relied upon his Affidavits filed on:
    1. 28 April 2008 (Exhibit A1);
    2. 3 June 2008 (Exhibit A2);
    100. 21 July 2008 (Exhibit A3); and
    4. 18 August 2008 (Exhibit A4).
12. The applicant’s affidavits in the main annexed documents, including documents sent to or by the respondent, medical reports, medical certificates, extracts from legislation and the like. Regrettably, the applicant’s Application and affidavits do not clearly identify the acts or omissions by or on behalf of the respondent that the applicant says constitute the unlawful discrimination. The most helpful document to understand the circumstances of the applicant’s complaints is the document titled “Statements of Complaint”, being the statement that the applicant provided to HREOC on 31 August 2007 and which is annexed to his Affidavit of 18 August 2008.
13. The applicant gave oral evidence and was cross-examined. The applicant called two further witnesses: his general practitioner, Dr Wai Lee Ng, and a psychiatrist, Dr Inglis Synnott.
14. The respondent relied upon the following Affidavits:
    1. Affidavit of Bronwyn Szabados (Exhibit R1);
    2. Affidavit of Steven Marsh (Exhibit R2);
    100. Affidavit of Colleen Wright (Exhibit R3);
    4. Affidavit of Ross Fenby (Exhibit R4);
    5. Affidavit of Susan Martin (Exhibit R5);
    6. Affidavit of Kenneth Oates (Exhibit R6); and
    7. Affidavit of Dr Jules Begg (Exhibit R7).
15. The respondent also tendered photographs of a conference room and work station at Centrelink in Adelaide (Exhibits R8 and R9 respectively). At the applicant’s request, the respondent made certain of the deponents to affidavits available for cross-examination, namely the deponents Marsh, Martin, Oates, Szabados, Fenby and Begg. The applicant did not require deponent Wright to be made available for cross-examination.

The applicant’s complaints

16. I acknowledge that I have been assisted during addresses by the careful analysis of the material by Counsel for the respondent. Counsel identified from the material before the Court the following possible claims by the applicant for unlawful discrimination:
    1. An event in March 2007 when the applicant requested a call escalation to his Team Leader, Ms Szabados. The applicant says she was reluctant to allow this and said: “I know you have a mental illness but I will not treat you any differently from any other team members” (“the First Call Escalation Complaint”);
    2. An event on 3 May 2007 when the applicant requested a call escalation to this Team Leader, Ms Szabados. The Applicant says she asked him to transfer to another CSA rather than take herself and then called a meeting with him at which time she discriminated against him on the basis of his disability (“the Second Call Escalation Complaint”);
    100. The respondent’s failure in April and June 2007 to accede to the applicant’s requests that he have a Team Leader other than Ms Szabados (“the Change in Team Leader Complaint”);
    4. The respondent’s failure to accept Dr Ng’s medical certificates and to grant the applicant leave based on those certificates (“the Medical Certificates Complaint”); and
    5. The respondent’s termination of the applicant’s employment on 26 June 2007 (“the Termination Complaint”).
17. Before addressing each of these complaints I will identify the relevant legislation and the legal framework for claims such as these.

The legislative and legal framework

18. The DD Act makes it unlawful to discriminate against an employee on the ground of disability in employment. Section 15(2) of the DD Act provides:
    • It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
      • (a) in the terms or conditions of employment that the employer affords the employee; or
      • (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
      • (c) by dismissing the employee; or
      • (d) by subjecting the employee to any other detriment.
19. The applicant here must demonstrate that his complaint comes within one or more of the sub-sections of s.15(2).
20. A “disability” is defined in s.4 of the DD Act as follows:
    • disability, in relation to a person, means:
      • (a) total or partial loss of the person’s bodily or mental functions; or
      • (b) total or partial loss of a part of the body; or
      • (c) the presence in the body of organisms causing disease or illness; or
      • (d) the presence in the body of organisms capable of causing disease or illness; or
      • (e) the malfunction, malformation or disfigurement of a part of the person’s body; or
      • (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
      • (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
    • and includes a disability that:
      • (h) presently exists; or
      • (i) previously existed but no longer exists; or
      • (j) may exist in the future; or
      • (k) is imputed to a person.
21. The respondent accepts that the applicant had an anxiety disorder and that this is a disability for the purposes of the s.4 of the DD Act.
22. “Employment” is defined in s.4 of the DD Act to include “work as a Commonwealth employee”. There is no dispute between the parties that the applicant was a Commonwealth employee and that there was an employment relationship.
23. “Discriminate” is defined in s.4 of the DD Act as having “the meaning given by sections 5 to 9 (inclusive)”.
24. Sections 5 to 9 describe the way in which discrimination may be established under the DD Act. The expression “discrimination” generally refers to two types of discrimination: “direct” (dealt with in s.5); and “indirect” (dealt with in s.6).
25. Direct discrimination is concerned with less favourable treatment of a person because of a disability. Indirect discrimination is concerned with unfair or unequal outcomes. Indirect discrimination occurs where a person with a disability cannot comply with an unreasonable “condition” or “requirement” with which a substantially higher proportion of persons without the disability are able to comply with. Direct and indirect discrimination are mutually exclusive[3] but this does not prevent an applicant from arguing that the same set of facts constitutes either direct or indirect discrimination.
26. Direct discrimination is addressed by s.5 of the DD Act. That section provides as follows:
    • (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
    • (2) For the purposes of sub-section (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that that different accommodation or services may be required by the person with a disability.
27. To succeed in a claim for direct discrimination the application must establish that:
    1. the respondent treated the applicant less favourably than it treated a Centrelink employee without the anxiety disorder;
    2. the comparison to be made in (a) must be in circumstances that are the same or not materially different for the applicant on the one hand and the other Centrelink employee on the other; and
    100. a reason for the less favourable treatment was the applicant’s disability, namely the anxiety disorder.
28. The “less favourable” treatment referred in s.5 of the DD Act does not impose an obligation on the respondent to accommodate or to treat an employee with a disability more “favourably” than other employees.[4]
29. The DD Act does not require the respondent to modify or alter the duties of a position because the applicant has a disability.[5]
30. An employee must be able to perform the duties associated with the position. He or she must be able to perform the duties safely for himself and the co-workers.[6]
31. An essential element of direct discrimination is demonstrating less favourable treatment on a comparative basis. It is not enough to assert differential treatment. It must be proved by reference to a person without a disability. The applicant must also establish an appropriate comparator. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, Justices Gummow, Hayne and Haydon, who formed the majority, said:
    • 223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant’s argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
    • 224. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
32. The further essential element of direct discrimination is proving that the applicant’s disability is the reason for the adverse treatment. With respect to “causation”, s.5(1) of the DD Act will not be satisfied unless a causal relationship is established between the applicant’s disability and any “less favourable treatment”.[7]
33. In Purvis (supra) Gummow, Hayne and Haydon JJ at para.236 said:
    • ... the central question will always be - why was the aggrieved person treated as he or she was?

The applicant’s case

34. In the present case the applicant has not identified with any clarity whether he relies on both direct and indirect discrimination. The claim raised on the documents and the evidence adduced by the applicant suggests that his is a case of direct discrimination. The applicant has not provided any evidence of a “condition” or “requirement” as would be necessary if his claim was also for indirect discrimination. In addition, there is no evidence from the applicant addressing a base pool, the proportion of persons complying with the alleged condition or requirement or the issue of the reasonableness of any alleged condition or requirement. It was for these reasons that the respondent decided to limit its submissions to the question of direct discrimination.
35. The applicant bears the onus of proof. He must establish on the balance of probabilities that there has been unlawful discrimination.
36. During the applicant’s final submissions he did not suggest that the complaints identified by the Counsel for the respondent (and listed in paragraph 16 of these Reasons) did not include the totality of the matters that constituted his unlawful discrimination claims. I am satisfied that they do.

The First Call Escalation Complaint

37. The First Call Escalation Complaint is simply dealt with as during his final submissions the applicant indicated that he wished to abandon the First Call Escalation Complaint. It is necessary, however, to examine the circumstances of the First Call Escalation Complaint as it provides a context for the further facts that gave rise to the Second Call Escalation Complaint.
38. The applicant says that on a day in March 2007, whilst performing his usual duties receiving calls from customers, he had to deal with a difficult customer. He says that this increased his anxiety levels to such an extent that he asked his then Team Leader, Ms Szabados, to take over the call (a call escalation). He says that Ms Szabados was reluctant to do so and that this resulted in a “dispute” between him and Ms Szabados. He says that during his discussions with Ms Szabados she said “in a discriminating manner” she said words to the effect of “I know you have a mental illness but I will not treat you any differently from any other team members”. The applicant said that he was offended by the remark as Ms Szabados therefore knew that he had a disability and that if he ever needed support he would not get it from her.
39. The applicant says that in April 2007 he attended a meeting with Steven Marsh, a Manager, and Sally Curtis, a Union representative. The applicant says that he initiated the meeting to discuss the recommendations of Dr Begg, a psychiatrist, and to have agreement reached that the recommendations should be implemented. During that meeting the applicant requested that he be permitted to escalate a call to the Team Leader should he suffer a panic attack. He also requested that he have a new Team Leader in place of Ms Szabados as his disability might be aggravated if he continued working with her. The applicant says that agreement was reached that he be permitted to escalate a call to the Team Leader in the event that he suffered a panic attack but no agreement was reached that the applicant should have a different Team Leader.
40. The applicant says that during a coaching session with Ms Szabados in April 2007 he showed Ms Szabados a document recording the agreement that had been reached at the meeting in April 2007. He says that Ms Szabados acknowledged the agreement and noted the details in her coaching notes.

The Second Call Escalation Complaint

41. The applicant says that in May 2007 (which I assume to be 3 May 2007), while performing his duties he felt a panic attack coming on as a result of a customer complaint. He says that he asked Ms Szabados to take over the call but says that she was reluctant to do so, saying words to the effect of “I will only transfer the call to someone else”. He says that after providing Ms Szabados with further details of the customer’s complaint, Ms Szabados then said words to the effect of “Do you want to put the customer through to Senior Practitioner Lisa Baker?”. I interpret what Ms Szabados said as a request that he transfer the call to Ms Baker (another CSA) rather than a question. The applicant says that he said to Ms Szabados: “No, I prefer that you do it”. He says that Ms Szabados then transferred the call to Ms Baker, after which she summoned the applicant into a private room.
42. The applicant says that at the meeting in the private room he felt intimidated. He says that Ms Szabados sat closely next to him, thereby invading his personal space. He says that she then sarcastically said: “Now how do you think that I can help you?”. The applicant says that he felt insulted because Ms Szabados was criticising his disability and showing an unwillingness to accommodate it. The applicant says that he was bewildered. He says that he asked Ms Szabados why she was speaking to him in this manner and why they were having a meeting. He says that Ms Szabados said that the customer had made a complaint about him and had said that he was not being helpful. The applicant said that he told Ms Szabados that he did all that he could to help the customer. The applicant says that Ms Szabados then said words to the effect of: “What is the point of me taking the call if the customer will just get angrier?”. The applicant says that Ms Szabados then insisted that the applicant re-read the protocols relating to the escalating calls. The applicant says that Ms Szabados insisted that he read the protocols immediately, notwithstanding that he was showing visible signs of his disability being aggravated. He does not say what those visible signs were. He says that he said words to the effect: “I can’t think straight at the moment” and took a scheduled tea break. He says that he felt belittled, humiliated and bullied by Ms Szabados’ “tactless, insensitive and authoritarian manner”.
43. The applicant says that the next day he complained to Mr Marsh about Ms Szabados’ behaviour. He says that he told Mr Marsh that he could no longer tolerate her conduct towards him and that Ms Szabados was demonstrating an unwillingness to accommodate his disability. He says that Mr Marsh said words to the effect: “Don’t let it get to you David”. The applicant says he felt upset about Mr Marsh’s response because it should have been clear to him that his medical condition was being aggravated, yet he implied that he had no intention of investigating the applicant’s compliant, even though it was something that was of serious concern to him. The applicant does not say what the visible signs of this medical condition being aggravated were. The applicant says that as a result of Mr Marsh’s indifference to his concerns he lodged a formal complaint against Ms Szabados with Mr Marsh on 7 May 2007.
44. The respondent called Ms Szabados and Mr Marsh to give evidence. Both were cross-examined by the applicant.
45. Ms Szabados recalls that in March 2007 the applicant approached her to take over a call. She says that she does not recall the total content of the conversation but said that it was unusual for a CSA to approach her to take the call rather than just transfer the call. Notwithstanding that Ms Szabados does not recall the conversations she denies that she would have been reluctant to take over a call as there would be no reason for her to be reluctant to do so. The applicant did not cross-examine Ms Szabados about this evidence.
46. Ms Szabados gave evidence about a coaching meeting held with the applicant on 23 March 2007. Ms Szabados denies saying at this or any other meetings words to the effect of “I know you have a mental illness but I will not treat you any differently to any other team member”. The applicant did not cross-examine Ms Szabados about this aspect of her evidence or about the meeting generally. Ms Szabados says that she was not even aware at that time that the applicant had any mental illness or that there were any reasons why the applicant should be treated differently from other employees. This is confirmed by Mr Marsh’s evidence.
47. Mr Marsh said that he and the applicant had a meeting on 4 April 2007 to discuss Dr Begg’s advice and Mr Marsh said that during the meeting he advised the applicant that Ms Szabados was not aware of the report of Dr Begg and that he would discuss its contents with Ms Szabados. He agreed that he and the applicant agreed that if the applicant suffered a panic attack that he may escalate the current call that he was dealing with to the Team Leader.
48. Mr Marsh’s evidence was to the effect that later on 4 April 2007 he had a conversation with Mr Szabados in which he informed her of the advice of Dr Begg and that if the applicant suffered a panic attack he was permitted to escalate the call to her.
49. Ms Szabados says she held a coaching meeting with the applicant on 26 April 2007 to discuss the circumstances in which calls would be escalated.
50. Ms Szabados says that on 3 May 2007 at about 3pm she took a call from the applicant when he asked her to do so. After speaking to the caller Ms Szabados transferred the call to another operator, Ms Baker. Ms Szabados denies that she refused to respond to the applicant’s escalation to the call. Ms Szabados says that following their meeting on 26 April 2007 Ms Szabados understood that calls would be escalated when the applicant was suffering a panic attack.
51. Ms Szabados says that on 3 May 2007 she was concerned about the applicant having a panic attack and therefore asked to meet with him privately in the conference room. During this meeting the applicant denied he had suffered a panic attack prior to the call being escalated. Ms Szabados says that she then explained to the applicant that he should not have escalated the call because the agreement was that he was only permitted to escalate a call if he had a panic attack. She informed him that he had not complied with the agreed protocol.
52. Ms Szabados agrees with the applicant’s evidence that she sat next to him on the same side of the table. She says that this was her style and that she usually sat alongside an employee whilst coaching. She did not agree that she was “invading” the applicant’s space. Ms Szabados made a detailed note of the meeting and says that the note is an accurate summary of what took place. The note says in part:
    • As per his agreement with Steve, I understand that David will escalate calls to me if he feels a panic attack coming on. So he asked for me to take the call I assumed that, although he seemed calm, he had a panic attack coming on (this was the first escalated call since specific directions had been given to me by Steve). ... I spoke with the customer, my intent being to transfer the call. The customer then complained about David advising that he appeared not to able to deal with the call and sounded agitated. I advised, with David listening, that I appreciated the feedback and would address this. I then transferred the call to SB. After the call I met with David in Nullarbor [room]. He asked why we were meeting. I advised that we were meeting for two reasons:
    • 1. to review the new process of escalating calls ...and
    • 2. to advise him of a complaint made against him ...
    • After the call thinking that this was because David was having a panic attack, I in fact sought David’s opinion re. what he considered would be an appropriate response for the customer in future when this occurs to him and I have to take over the call. It was at this stage that David clarified that he was not experiencing the onset of an anxiety attack ... I spoke with David about the correct process re. escalating calls, unless he feels an anxiety attack coming on ... I suggested he review correct protocols on the system to check understanding as I may be wrong. He became agitated that I suggest he check protocols. He then asked me if others tell me I am overbearing, which I advised that they had not. He then informed me that I am overbearing. I advised David I was trying to be better prepared to avoid a call escalation. He then advised that his psychiatrist said that he sometimes thinks people are overbearing when they in fact are not. I advised David I will summarise my expectation of what happens when he gets an escalated call in an email to ensure a mutual understanding.
53. Mr Marsh recalls the applicant speaking to him on 4 May 2007. Mr Marsh denies saying words to the effect: “Don’t let it get to you”. Mr Marsh says that he spoke with Ms Szabados immediately and that Ms Szabados explained what had happened.
54. Ms Szabados says that she sent an email to the applicant on 7 May 2007 confirming the protocol for escalating calls. The email reminded the applicant that calls would be escalated by him only if he was suffering a panic attack.
55. I have had the benefit of seeing each of the applicant, Ms Szabados and Mr Marsh give evidence. I was impressed with Ms Szabados and Mr Marsh as reliable witnesses. They both seemed frank with their answers and were trying to assist the Court. They each gave a credible and coherent account of the events.
56. The applicant, on the other hand, was unimpressive as a witness. Whether by reason of his anxiety condition or his personality, I felt that he was not giving a credible version of events and would say whatever was needed to advance his case.
57. I accept the evidence of Ms Szabados and Mr Marsh and would only accept the evidence of the applicant where it does not conflict with the evidence of either Ms Szabados or Mr Marsh.
58. I find that:
    1. Ms Szabados did not speak to the applicant sarcastically at their meeting on 3 May 2007;
    2. Ms Szabados did not subject the applicant to a detriment during the meeting on 3 May 2007;
    100. Ms Szabados did not treat the applicant differently or adversely because of his anxiety disorder;
    4. Ms Szabados was concerned with the applicant’s welfare;
    5. as the applicant’s Team Leader it was appropriate for Ms Szabados to counsel the applicant and remind him about the protocols;
    6. there is no evidence that, had an employee without the applicant’s disability escalated the call, he or she would have been treated differently to the applicant; and
    7. the circumstances of the Second Call Escalation Complaint raise no conduct which attracts the operation of s.5(1) and s.15(2)(d) of the DD Act.

The Change in Team Leader Complaint

59. The applicant’s general practitioner, Dr Ng, provided the applicant with certificates of sickness for absences from work for the whole of the period 9 May to 12 June 2009. The certificates themselves make it clear that Dr Ng believed that the applicant was anxious as a result of having to work with Ms Szabados as his Team Leader and that his work environment should therefore be changed.
60. The respondent had received a medical report from consultant psychiatrist, Dr Begg, dated 13 March 2007, which provided a different perspective to the matter. Dr Begg said in part:
    • It is likely that when placed in a situation of conflict, Mr Hamden will become both obsessive and dramatic and this will exacerbate his experience of anxiety. His repetitive referral to himself as having an anxiety disorder disturbed or exacerbated by the workplace suggests to me that he uses his symptoms in a negative way to control other people. This is unlikely to be happening at a conscious level, the need to control others being a common feature found amongst anxiety disorder sufferers and also commonly found amongst obsessive personality disorder sufferers.
    • In the workplace personalities that are maladaptive are difficult to manage. They often are not responsive to normal social interactions. Mr Hamden will frequently misperceive the intentions of others, viewing things from his own perspective, he will anticipate that the actions of others will be directed against him. Positive actions of other people will tend to be discounted.
61. I prefer Dr Begg’s evidence to Dr Ng’s. As a psychiatrist Dr Begg is better qualified to give opinions on the applicant’s mental health, as Dr Ng readily acknowledged.
62. Dr Begg also provides a helpful analysis of the applicant’s behaviour. He draws a distinction between the applicant’s anxiety disorder and his obsessive and dramatic personality traits.
63. Dr Synnott, also a consulting psychiatrist, provided a report and gave evidence. Dr Begg considered all medical reports before the Court, including those of Dr Synnott, and provided his further opinion. He said (with my emphasis):
    • Thank you for the two volumes of reports. I believe there is general agreement between the reports that Mr David Hamden has an Anxiety Disorder that in the words of Dr Synnott “ebbs and flows”. It is customary in psychiatry to separate clinical disorders from personality disorders. Unfortunately such a separation is not always clear cut in the real world. In the case of Mr Hamden there is an overlap between his obsessional personality style, sensitivity to criticisms and difficulties with interpersonal interactions and the anxiety disorder.
    • In my opinion, as a result of his personality he develops conflict with people. He is ill-equipped to deal with the emotions (principally anxiety) that are associated with these interactions. This leads to the experience of the emotion of anxiety. This can then be diagnosed as either a separate anxiety disorder or a worsening of the personality.
    • Both anxiety and personality disorders tend to follow a similar course, ebbing and flowing, exacerbated by stressful life events.
    • In my clinical practice - where there is no specific trigger that is likely to give rise to anxiety yet the individual develops an anxiety with an innocuous trigger, eg. claustrophobia or panic attacks in shopping centres, then I am inclined to diagnose an Anxiety Disorder, whereas if the anxiety arises because of an interaction which is difficult, eg. a conflict in the workplace, then I am inclined to diagnose a Personality Disorder. Unfortunately personality disorders carry a significant stigma within the mental health system and I am reluctant to give this label to any individual unless there is a lifelong history of significant difficulties in multiple domains of life. The term “anxiety disorder” carries less stigma.
    • In this case, whilst I think there is a general consensus amongst the different reports that the emotion of anxiety is experienced by Mr Hamden and that this occurs in the context of interpersonal relationships in the workplace, I favour, perhaps in disagreement to some of the other reports, the hypothesis that his anxiety arises because of this personality.
64. I accept Dr Begg’s evidence that the applicant’s increased levels of anxiety in the workplace are caused by his personality, a personality that makes it difficult for him to deal with workplace interpersonal relationships. This being the case, taking steps to have the applicant supervised by a Team Leader other than Ms Szabados is unlikely to have lowered the number of occasions that he felt anxiety in the workplace. This is confirmed by the evidence of Mr Marsh during his cross-examination by the applicant:[8]
    • Question: ... under what circumstances would you have changed my team leader? That is, what had to happen ... did I actually have to create a real incident in the workplace whereby people got scared because I lost my temper or something like that? What had to happen before you considered it, to change my team leader?
    • Answer: I was aware that you have an anxiety issue. I was aware of some of the issues that had taken place in the workplace prior to that period. I was also comfortable that you were able to control your emotions and engage with people. Certainly, in terms of your relationship with Ms Szabados, I knew you had concerns working with her as the team leader, but I certainly did not believe that she had any concerns working with you. I don’t believe that changing the team leader would have changed the situation at all.
    • His Honour: Why not?
    • Answer: I think the fundamental issue was around the way Mr Hamden works with his peers and his team leaders, and I don’t believe that any other team leader would have negated those issues.
65. The applicant has not satisfied me that this is a complaint that comes within any of the sub-sections of s.15(2) of the DD Act referred to earlier in this Reasons.[9] The only possible sub-section would be (d), namely “subjecting the employee to any other detriment”. There is, however, no basis upon which the conduct complained of in relation to this complaint can amount to a detriment for the purpose of s.15(2)(d).
66. Even if I am wrong in this, there is no satisfactory evidence that Mr Marsh or anybody else on behalf of the respondent refused to make the change that the applicant requested because of the applicant’s disability. The evidence shows that in refusing to make the change the respondent was acting on the advice of Dr Begg.
67. Finally, in relation to this complaint, the applicant has failed to establish that if a CSA without an anxiety disorder requested a new team leader that the respondent would have acceded to that request. Mr Marsh’s evidence, which I accept, was that he would generally not accede to such demands.
68. The applicant’s Change in Team Leader Complaint should be dismissed.

The Medical Certificates Complaint

69. The applicant alleges that the respondent refused to accept medical certificates from his general practitioner, Dr Ng, as a proper basis for him to not attend work on normal work days. He alleges that as a result he was forced to attend work and that this amounted to unlawful disability discrimination.
70. Whilst the applicant had obtained a number of these medical certificates, the respondent obtained the opinion of Dr Begg, a psychiatrist experienced in anxiety complaints. Dr Begg’s evidence was that the applicant’s anxiety did not make him unfit for duty for long periods of time. As a result of Dr Begg’s opinion, on 31 May 2007, Mr Fenby prepared a letter for Mr Marsh to send to the applicant directing him to return to work.
71. On 1 June 2007 Mr Marsh wrote to the applicant referring to Dr Begg’s assessment of 7 March 2007 that the applicant was fit to perform all normal duties. Mr Marsh directed the applicant to return to work on 4 June 2007 and said that if he did not do so, his absence would be treated as an unauthorised absence. The applicant was further advised that if unauthorised absences exceeded five days his employment may be terminated.
72. The applicant responded by email of 5 June 2007. He disputed Mr Marsh’s direction to him.
73. On 2 June 2007 the applicant received legal advice from solicitors and from the CPSU, after which he sent an email to Mr Marsh stating that: “my current condition is due to management action ... that has caused an exacerbation of my condition”. In addition, the applicant suggested that Dr Begg should have been asked further questions by Centrelink, including: “should an exacerbation of his condition occur, what action should Mr Hamden and Centrelink take?”.
74. On 4 June 2007 Mr Totagiancaspro, a rehabilitation and case manager, directed the applicant to attend an appointment with Dr Begg for the purpose of determining fitness for duty. The next day the applicant sent an email to Mr Marsh stating that the direction was not lawful according to certain legal advice that he had obtained.
75. On 6 June 2007 at about 1pm the applicant attended the workplace. He claimed to be there under duress. Except for the brief attendance on 6 June 2007, the applicant was absent from work from 9 May 2007 until 21 June 2007.
76. On 12 June 2007 Mr Fenby for the respondent spoke with Dr Ng. During the conversation Dr Ng said that if the specialist (Dr Begg) stated that the applicant was fit to return to work then he was “all for it” and would support the recommendation.
77. On 13 June 2007 the applicant was assessed by Dr Begg. On 21 June 2007 Dr Begg provided his Third Report. Dr Begg stated that it would be reasonable for the applicant to have half a day’s sick leave if he experienced a panic attack but that there was no need to have a sick day the next day. Dr Begg also expressed the view that the applicant’s behaviour was “in his control” and that the applicant did not have a defect in his capacity “to comply with reasonable directions”. He was declared fit for normal duties.
78. On 26 June 2007 the applicant’s employment was terminated on the basis that he had been absent from the workplace for fourteen consecutive days.
79. There is no sufficient evidence before me to make a finding that the respondent’s refusal to grant leave and to require the applicant to attend work was because he had a disability, namely an anxiety disorder. I find that the respondent’s decision to prefer the opinion of Dr Begg to that of Dr Ng had nothing to do with whether or not the applicant had a disability.
80. Further, there was no evidence before me to suggest that if an employee without a disability made requests in the same circumstances as those that existed for the applicant here, that the other employee would have had leave approved. Mr Marsh specifically stated in his evidence that if any other employee had requested leave in the same circumstances that his decision would have been the same. I note also that on 12 June 2007 Mr Marsh advised the applicant that the respondent would prefer the opinion of a specialist over that of a general practitioner[10].
81. The respondent refused to accept Dr Ng’s medical certificates because the respondent believed, on the basis of Dr Begg’s advice, that the applicant did not have a disability that prevented him from working. This being the case there can be no unlawful discrimination.
82. The applicant’s Medical Certificates Complaint should be dismissed.

The Termination Complaint

83. It is clear from the foregoing that the termination of the applicant’s employment was not as a result of him having a disability, namely an anxiety disorder. I accept the evidence of Mr Marsh that the only reason that consideration was given to termination of the applicant’s employment was because of his continued unauthorised absences from the workplace.
84. I find that the applicant had no proper basis for refusing to attend work. Whilst I accept that the applicant had an anxiety disorder and therefore a disability, this disability did not generally prevent him from working. In my opinion the applicant was malingering. It was this malingering that resulted in the applicant not attending work for lengthy periods. He was dismissed for not attending work and not because of his disability. There was no unlawful discrimination.

Conclusion

85. For the above reasons the applicant’s case should be dismissed. I make the orders to be found at the beginning of these Reasons. I will hear the parties on the question of costs.

I certify that the preceding 85Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !eighty-fiveeighty-five (85) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Ms N. Julius

Date: 28 January 2010

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[1] At the time of the applicant’s first period of employment with the respondent between July 1993 and May 1996 the respondent was then known as the Department of Social Security.
[2] As in force during the period immediately before the termination of the applicant’s employment on 26 June 2007. It is to be noted that amendments were made to the DD Act, the principal parts of which had effect from 8 July 2009.
[3] Australian Medical Council v Human Rights and Equal Opportunity Commission (1995) 68 FCR 46 at 55 per Sackville J referring to the operation of sub-s.9(1) and 9(1A) of the Racial Discrimination Act and Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 at 393 per McHugh J.
[4] Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 159; Commonwealth v Humphries (1998) 86 FCR 324 at [335].
[5] Laycock v Commissioner of Police [2006] NSWADT 261 and confirmed on appeal [2007] NSWADTAP 34; Cosma v Qantas Airways Limited [2002] FCA 640 and in the Full Court decision [2002] FCAFC 425.
[6] X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177; Y v Australia Post (1996) HREOCA 21.
[7] Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited (1993) 46 FCR 301.
[8] Transcript at pg 113.
[9] See paragraph 18.
[10] See Exhibit R2 at pg 159.