Sluggett v Commonwealth of Australia [2011] FMCA 609 (30 August 2011)

Last Updated: 1 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SLUGGETT v COMMONWEALTH OF AUSTRALIA

[2011] FMCA 609

HUMAN RIGHTS – Discrimination law – disability discrimination – discrimination in employment – direct discrimination – indirect discrimination – harassment – applicant suffers from post polio syndrome – applicant employed as a permanent Commonwealth public servant – was applicant treated less favourably because of her disability – analysis of complainant’s behaviour in the workplace – comparison between disabled complainant and person without such disability but who displays same behavioural characteristics – requirement to comply with a condition – reasonableness – costs.

Disability Discrimination Act 1992 (Cth), ss.3, 4, 5, 6, 15, 35, 42 and 123 Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PP, 46PO, 47PH Federal Magistrates Act 1999 (Cth), ss.3, 79 Australian Public Service Act 1999 (Cth), ss.10, 13 Acts Interpretation Act 1901 (Cth), s.8 Evidence Act 1995 (Cth), s.140

Purvis v New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92 Maxworthy v Shaw (2010) FMCA 1014 Fetherston v Peninsula Health [2004] FCA 485 Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 Forest v Queensland Health [2007] FCA 936; (2007) 161 FCR 152 Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561 Briginshaw & Briginshaw (1938) 60 CLR 366 Qantas Airways Limited v Gama [2008] FCA FC69 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Catholic Education Office & Anor v Clarke (2004) FCR 121 Daghlian v Australian Postal Corporation [2003] FCA 759 McCormack v Commonwealth of Australia [2007] FMCA 1245 Penhall-Jones v State of New South Wales (No2) [2008] FMCA 832 O’Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 McDonald v Hospital Superannuation Board (1999) EOC 93-025 Vance v State Rail Authority [2004] FMCA 240

Applicant:

CHANDRAKANTHI SLUGGETT

Respondent:

COMMONWEALTH OF AUSTRALIA

File Number:

ADG 129 of 2008

Judgment of:

Brown FM

Hearing dates:

16, 17, 18, 19, 20 & 26 November 2009; 15, 16, 18, 19, 22, 23, 24 & 26 February 2010; 27 July 2010; 27 October 2010; 24, 25, 27 & 28 January 2011; 28 February 2011; 1, 2, 3, 7, 8, 9, 10, 11, 28 & 29 March 2011

Date of Last Submission:

29 March 2011

Delivered at:

Adelaide

Delivered on:

30 August 2011

REPRESENTATION

Counsel for the Applicant:

Ms O’Connor SC (until 28 January 2011) ; then Ms Sluggett – in person

Solicitors for the Applicant:

Johnston Withers (until 28 January 2011)

Counsel for the Respondent:

Ms Bean (until 26 November 2009); then Dr Bleby

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) In the event the respondent wishes to apply for costs it is directed to make such application within 28 days of the date of these orders and serve same on the applicant.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 129 of 2008

CHANDRAKANTHI SLUGGETT

Applicant

And

COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

Introduction

1. Chandra Sluggett “the applicant” suffers from a disability. When she was an infant, growing up in Sri Lanka, she contracted poliomyelitis or infantile paralysis. This viral illness left her with a weakness and shortening in her left leg and foot.
2. In 1993, when she was aged around twenty-six years, Ms Sluggett was diagnosed with post-polio syndrome, a condition that can affect the survivors of polio many years after they have recovered from the initial acute viral attack of the disease.
3. The most common symptoms of post-polio syndrome are fatigue; pain in muscles and joints; lack of strength and endurance; and respiratory, speech and swallowing problems. In most cases of the syndrome, there is a steady deterioration in the neuro-muscular ability of the person affected but the condition can also be marked by a pattern of rapid decline and remission.[1]
4. Ms Sluggett was employed by the Commonwealth Public Service, in a variety of roles, between 1996 and May of 2008. On 28 May 2008, after she could not be redeployed within the Australian Public Service, her employment as a public servant was terminated.
5. It is Ms Sluggett’s position that, between July of 2004 and May of 2008, she was the subject of systematic discrimination, because of her disability, whilst she was employed as a public servant.
   This discrimination took the form of direct and indirect discrimination and harassment within the terms of the Disability Discrimination Act 1992 (“the DDA”) and as such was illegal conduct on the part of the Commonwealth and its employees and agents.
6. Ms Sluggett complained of this conduct to the Human Rights and Equal Opportunities Commission (“HREOC”) in October of 2007.
   On 22 May 2008, a delegate of the President of HREOC terminated the applicant’s complaint on the basis that it lacked substance pursuant to section 46PH of the Human Rights and Equal Opportunity Commission Act 1986 ( “the HREOC Act”).
7. As a consequence of this decision, the applicant has commenced proceedings in this court pursuant to section 46P0 of the HREOC Act against the various Commonwealth Government Departments which have employed her in the past. It has been agreed between all concerned that the appropriate respondent to these proceedings is the Commonwealth of Australia (“the Commonwealth”)
8. Ms Sluggett filed her application on 29 May 2008. In this application she seeks a finding that the Commonwealth has discriminated against her because of her disability in contravention of the provisions of the DDA. As a consequence of this conduct, she seeks an apology, reinstatement of her employment and payment of a sum of compensation.
9. The Commonwealth’s position is that the applicant’s application lacks both merit and substance and, as such, is wholly misconceived. It denies that it has illegally discriminated against Ms Sluggett in any way whatsoever, including pursuant to the relevant provisions of the DDA. As such the Commonwealth seeks the dismissal of Ms Sluggett’s application. These reasons for judgment are directed towards determining this issue between the parties.

Background

10. Ms Sluggett has tertiary qualifications in social work and a Bachelor of Arts degree, both conferred by Flinders University. In 1995 she commenced employment with the Aboriginal and Torres Strait Islander Commission (“ATSIC”) at its Grenfell Street, Adelaide offices.
11. In April or May of 1996, the applicant successfully applied for and won an APS2 position with ATSIC and became a permanent employee of the Australian Public Service. She retained this position until her employment was terminated with the Australian Public Service on 28 May 2008.[2]
12. On 15 April 2004, the Australian Government announced its intention to abolish ATSIC. As a result of this decision, ATSIC ceased to exist on 1 July 2005. Between these two dates, the functions and staff of ATSIC were absorbed into other Commonwealth Government departments. The public service arm of ATSIC was known as Aboriginal and Torres Strait Islander Services (“ATSIS”). It also was abolished.
13. Due to a series of machinery government changes, these departments have been variously the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”), which became the Department of Immigration & Citizenship (“DIAC”), and the Department of Families, Communities Services & Indigenous Affairs (“FaCSIA”), which became the Department of Families, Housing, Community Services & Indigenous Affairs (“FaHCSIA”).
14. The applicant was transferred to DIMIA and allocated to a unit called the Indigenous Coordination Centre (“the ICC”) as an APS2 registry officer. Prior to this placement, Ms Sluggett had been working with the Regional Council of ATSIC, assisting its counsellors with research and the implementation of ATSIC’s family violence policy. She had been formally employed by ATSIS.
15. Although she nominally remained at the APS2 level, until the Regional Council ceased to exist, which occurred at the end of June 2005, Ms Sluggett continued her research role, with the Regional Council, in respect of the implementation of ATSIC’s family violence policy until this date. These functions were designated at a higher public service level of APS4 – APS6.
16. On 1 July 2005, the applicant formally took up the position, to which she had been allocated, as an APS2 registry officer in the Adelaide branch of the ICC within DIMIA. Ms Sluggett asserts that this position was not commensurate with her skills, training and abilities.[3]
17. The duties of an APS2 registry officer comprise the provision of a range of corporate services which include mail, reception, switchboard and other clerical duties. From 1 July 2005 until November 2005, the ICC was located at level 12, 33 Waymouth Street, Adelaide. It was collocated with the Office of Indigenous Policy Co-ordination (“the OIPC”).
18. Ms Sluggett raised issues about her physical capacity, due to her disability, to discharge the responsibilities of an APS2 registry officer with the then managers of the ICC, Fevronia Plomaritis and Lorraine Merrick in August of 2005.[4]
19. Because of her level of disability, which was well known to management with ATSIC, the applicant had been allocated an injury management advisor also known as a rehabilitation case manager. In August of 2005, this was Eric McMillan, who was based in DIMIA’s office in Belconnen in the Australian Capital Territory.
20. As a result of the issues raised, Mr McMillan arranged for two independent expert assessments to be made of the applicant and her workplace. These assessments were undertaken by Paul Dewing, an occupational therapist ergonomist and occupational health & safety consultant on 7 September 2005[5] and Milton Lewis, a consultant occupational physician on 22 September 2005.[6]
21. In November of 2005, OIPC and ICC staff, including the applicant, were relocated to the fifth floor of 33 Waymouth Street, Adelaide. As a result, the applicant was allocated a new workstation. The applicant complains that her new desk, being curved and wider than she was used to caused her “considerable difficulty”.[7] Ms Sluggett asked Mr McMillan, via email, to arrange a fresh assessment of this new workstation.[8]
22. In early 2006, tensions arose in the ICC, particularly in regards to the issue of answering telephones, which fell within the purview of an APS2 registry officer. A meeting of staff, including the applicant, was convened on 6 February 2006 by Mr Tristan Cox, a manager from OPIC. Ms Sluggett alleges that she was harassed, both at this meeting and afterwards, by Mr Cox.
23. On 13 February 2006, Ms Susan Corbisiero commenced duties as the manager of the ICC. By this time, governmental responsibility for indigenous affairs had moved to FaCSIA and, in May of 2006, Ms Sluggett was allocated a new rehabilitation case manager, Paul Cohen, within FaCSIA.
24. On 22 February 2006, Ms Sluggett provided Ms Corbisiero with a medical certificate which indicated that she, (Ms Sluggett) was suffering from “left shoulder blade pain” and was fit to return to “modified” duties provided she did not use her “left arm as far as possible”.[9]
25. On receipt of this certificate, Ms Corbisiero directed that the applicant leave the workplace, on sick leave, until she had provided “a medical certificate outlining [her] specific capabilities in the workplace and that [she was] fit to return to the workplace.[10]
26. On 31 May 2006, the applicant returned to work. On the day prior, at the instigation of Mr Cohen, an assessment had been made of Ms Sluggett’s workstation and workplace in order to facilitate Ms Sluggett’s return to work. This assessment was categorised as an “ergonomic assessment report (comprehensive)” and was compiled by a physiotherapist Kate Agus.[11]
27. Ms Agus made some recommendations regarding aspects of Ms Sluggett’s workstation. These recommendations pertained to the provision of a chair mat; repairing the arms on her chair; providing her with a headset and handset lifter, in order to answer the telephone; and the possible relocation of her workstation cubicle, so that she could enter from the right rather than the left.
28. These recommendations came about because of reports Ms Sluggett had made of pain in her left scapula and left upper arm, which she attributed to difficulties arising from operating the switchboard. Her treating specialist, Dr Ravindran had attributed these complaints to her “pre-existing underlying condition, acute anterior poliomyelitis, which had resulted in post poliomyelitis syndrome.”[12]
29. The applicant asserts that these recommendations were not properly implemented by the immediate management of the ICC. Rather, Ms Sluggett says her requests for assistance and modification of her duties and work environment met with growing hostility in her workplace, particularly from Ms Corbisiero. Both Ms Sluggett and Ms Corbisiero acknowledge that their working relationship became increasingly fractious.
30. In June of 2006, Ms Sluggett was examined by an independent occupational physician, Grantley Tschirn, in order to ascertain whether she was eligible for a partial invalidity retirement, as a result of her level of disability.
31. Dr Tschirn was of the view that Ms Sluggett had reached her long term sustainable work level of thirty hours per week, in a sedentary based job. However, he was of the view that if she remained in her current position in the ICC registry, there was a “possibility” she may have to reduce her weekly hours further, in the “medium term” down to twenty-eight or possibly twenty-six hours per week to accommodate her “chronic medical condition”.[13]
32. Ms Sluggett was critical that management in the ICC, particularly Ms Merrick did not properly respond to her application to reduce her working hours, in the light of Dr Tschirn’s report, which had been supported by a further report from her own treating rehabilitation specialist, Dr Nigel Quadros.
33. On 22 June 2006, a meeting was held at the ICC which was attended by the applicant, Ms Corbisiero, Ms Merrick and Mr Cohen. Following this meeting, Ms Sluggett was placed on miscellaneous leave, with pay, and was absent from work until 31 July 2006.
34. Whilst Ms Sluggett was absent from work, she was examined by Peter Jezukaitis, an occupational physician and Ann Buchan, a neurological physiotherapist, at the instigation of Mr Cohen. Both experts provided reports to Mr Cohen, prior to the date scheduled for Ms Sluggett’s return to work.
35. Dr Jezukaitis was of the opinion that, if Ms Sluggett’s workstation had been set up in line with recommendations made by Mr Dewing, it would not be unsafe for Ms Sluggett to perform her work activities from it. However he noted that her underyling condition was likely to impact upon her work performance and there were likely to be tasks which fell outside of her physical capabilities. These included duties requiring handling archive boxes; manually scanning documents; and duties requiring frequent walking or a rapid response.[14]
36. Ms Buchan noted that post polio syndrome could be managed, within reason, by careful handling, pacing, planning and calling a halt to activities before fatigue effects became extreme. She also noted that there were “complex issues” to do with Ms Sluggett’s employment history, relating to the need for her work tasks to be modified and the nature of her work changed, particularly given Ms Sluggett’s sense that she was not able to do “the type of work she feels able to do – eg research work”.
37. In this context, Ms Buchan opined as follows:
    • “A complete change of department would perhaps be the better way to solve a continuing fraught environment. ... the prolonged history of work relationships, fatigue, ergonomic misfit and declining strength, will really need to be confronted by a trial in another office and another child with good ergonomics after careful career/lifestyle counselling. Some people with polio eventually have to leave work.”[15]
38. Ms Sluggett asserts that the management of the ICC failed to implement any of the recommendations made by either Dr Jezukaitis or Ms Buchan. Rather she asserts that management increased her duties and reduced the effectiveness of any modifications, which had earlier been made to her workstation and conditions of work.
39. On 28 July 2006, a further meeting was convened at the ICC, which was again attended by Ms Corbisiero, Ms Merrick and Mr Cohen. Ms Sluggett attended with a friend and support person, Ms Merelyn Cowell. The purpose of the meeting was to discuss Ms Sluggett’s return to work the following week, in the light of the medical and ergonomical material, which had been compiled up to that stage.
40. Ms Sluggett’s evidence is that she was distressed at the manner in which this meeting was conducted, particularly because Mr Cohen raised the provisions of the Australian Public Service Act with her and the possibility that she might be the subject of a possible investigation of a breach of its code of conduct.
41. In addition, Ms Sluggett complains that her immediate managers refused to comply with her requests to modify her duties and workstation, so that she could safely undertake her employment responsibilities. In particular, she asked for a stool or chair to use whilst she sorted the mail and for the door of the ICC to be assessed because she found it difficult to open because of its weight.
42. Between 31 July 2006 and 10 May 2007, relations between Ms Sluggett and the management of the ICC deteriorated further. There was ongoing controversy as to how Ms Sluggett was to complete the ingoing and outgoing mail at the ICC; answer phone calls to the ICC; and deal with visitor and other reception duties. All these functions falling within the parameters of duties allocated to an APS2 registry officer.
43. Ms Sluggett asserts that she did the best she could, but her disability and the unfavourable circumstances of her work environment prevented her from accomplishing her tasks without suffering extreme fatigue and pain. Ms Sluggett paints a picture of a work environment, which was unsympathetic to her needs and hostile to her personally. On the other hand Ms Corbisiero asserts that Ms Sluggett rarely, if ever, did the mail and other tasks allocated to her. The picture she paints is of a person who was unwilling to perform her employment duties.
44. It is a provision of the Australian Public Service Code of Conduct that an APS employee must comply with any lawful and reasonable direction given to him or her by a person within the Public Service, who has the authority to give such a direction. In a minute to Ms Sluggett, dated 29 November 2006, Ms Corbisiero indicated that she was considering investigating a potential breach of this aspect of the code of conduct, by Ms Sluggett, as a consequence of her alleged refusal to comply with directions regarding sorting incoming mail and dispatching outgoing mail.[16]
45. As a result of this situation, Ms Sluggett herself contacted the respective departmental heads of FaCSIA and the OIPC complaining that she had, in effect, been threatened with a “code of conduct” process by Ms Corbisiero because she was not performing the duties required of her in respect of registry mail in the manner directed to her – “standing up”.
46. As a result of this initiative on Ms Sluggett’s part, she was contacted by Wes Slater, then a senior public servant in the “People Branch” of FaCSIA, located in Tuggeranong, in the Australian Capital Territory. In an email to Ms Sluggett dated 4.03pm on 3 August 2006, Mr Slater indicated his view that Ms Sluggett’s correspondence with the heads of FaCSIA and OIPC constituted a request, on her part, to review the decision of Ms Corbisiero regarding her (Ms Sluggett’s) possible citing in respect of a possible breach of the APS Code of Conduct.[17]
47. The person nominated to conduct the review was Julie Baker-Smith. Ms Baker-Smith is a consultant, who works independently of FaCSIA. She was instructed to undertake the review by the Acting Branch Manager of FaCSIA. She commenced her investigations on 14 August 2006 and completed her review on 9 October 2006.
48. Her task was to consider the following:
    • whether the duties assigned to Ms Sluggett on her return to duty (on 31 July) could be considered appropriate given her medical condition and in accordance with the medical advice obtained prior to her recommencing duties;
    • if the workplace modifications made to accommodate Ms Sluggett complied with the workplace assessment and whether it was appropriate for her to carry out the duties she has been allocated;
    • were there identifiable alternatives to the workplace arrangements and return to work plan which would conform with the medical advice provided and the workplace assessment which would be acceptable both to Ms Sluggett and the OIPC.[18]
49. In the course of her inquiry, Ms Baker-Smith interviewed Ms Sluggett; Ms Corbisiero; Ms Merrick; and Mr Cohen. Ms Baker-Smith also inspected Ms Sluggett’s workplace. She invited Ms Sluggett to respond formally to the issues raised by the inquiry process.
50. Ms Baker-Smith did not form a favourable impression of Ms Sluggett’s behaviour in the workplace, since her (Ms Sluggett’s) arrival in the ICC. She characterised Ms Sluggett’s conduct as being oppositional and resistant to management. It was Ms Baker-Smith’s observation that Ms Sluggett had no intention of ever performing the duties, as had been modified, as a registry officer at the APS2 level at the ICC. Accordingly, she was of the view that Ms Sluggett had breached the APS Code of Conduct[19] and the values of the Australian Public Service.[20]
51. Ms Sluggett is critical of the way the review of action was undertaken by Ms Baker-Smith, particularly in terms of her capacity to make submissions to Ms Baker-Smith and respond to criticisms made of her. Ms Sluggett is also critical that one of Ms Baker-Smith’s recommendations, regarding the relocation of her workstation, across the aisle from where she was then located, was not implemented.
52. The applicant further complains that, in February 2007, Ms Corbisiero allocated the workstation across the aisle from her to another member of the ICC staff. This workstation had been previously vacant. Ms Sluggett characterises this action as being contrary to the spirit of the Baker-Smith report and the earlier recommendations of Ms Agus.
53. In early August of 2006, as part of her duties, as the APS2 registry officer, at the ICC, the applicant was directed to “meet and greet” a number of graduate applicants for positions with the Department of Communications Information Technology and the Arts. The necessary job interviews were scheduled to take place at the ICC in the afternoon and morning of the 8th and 9th August respectively. Ms Sluggett had to open the door for some of these interviewees.
54. Ms Sluggett has complained that the door of the ICC office was too heavy for her to manage, due to her disability and so aggravated her condition. Ms Sluggett has deposed that Ms Merrick demonstrated no empathy towards her in respect of these difficulties and offered no alternative means of the “meet and greet” function being completed.
55. During the review of action procedure, Ms Sluggett asked to examine her rehabilitation file, which was held in FaCSIA’s ACT office. She made her request to Mr Cohen, who forwarded the files, including Ms Sluggett’s personal file, to the ICC office in Adelaide, in a carton addressed to Ms Corbisiero. Ms Sluggett discovered that Ms Corbisiero was in fact the addressee of her various files because she received the delivery of the carton from Mr Cohen as part of her duties as the ICC registry officer.
56. Ms Sluggett expresses herself as being “shattered” that her records had been apparently forwarded to Ms Corbisiero.[21] She regards this action as a breach of both her trust and privacy. As such, she felt undermined.
57. Ms Sluggett was provided with a copy of the Baker-Smith Report on or around 23 October 2006, under cover of a letter from Jan Lawless, who then held the position of branch manager – flexible programs and agreements, within FaCSIA. Ms Lawless had been delegated to determine the outcome of the Baker-Smith Report.
58. Ms Lawless indicated to Ms Sluggett that she accepted the findings of the Baker-Smith report, particularly that the directions which had been provided to Ms Sluggett by Ms Corbisiero were “lawful, reasonable and fully compliant with the medical evidence and workplace assessments [applicable].”[22] As such, Ms Lawless indicated that Ms Sluggett should continue to work in accordance with directions provided to her.
59. Following this finding, in early May of 2007, senior management within FaCSIA delegated Allison Denny-Collins to determine whether Ms Sluggett’s actions, up to that stage, constituted a breach of the Australian Public Service Code of Conduct, as set out in section 13 of the Australian Public Service Act 1999.[23] At the time, Ms Denny-Collins held the position of HR Advisor Management Support and Advisory Section with FaCSIA People Branch.
60. On 16 May 2007, there was a further incident between Ms Corbisiero and Ms Sluggett, at the office of the ICC, regarding the latter’s failure to answer a ringing telephone. Ms Sluggett alleges she was inappropriately and violently verbally rebuked in respect of this omission attributed to her. Ms Sluggett asserts that she was left distraught, shaking and shocked by Ms Corbisiero’s actions.
61. Ms Sluggett was absent from work until 28 May 2007. She was found by her treating psychiatrist, Richard Thompkins to be suffering from “dis-associative episode/conversion disorder/panic disorder”. Dr Thompkins certified Ms Sluggett as being unfit to work from 16 May until 27 May 2007.[24]
62. On her return to work on 28 May 2007, Ms Sluggett completed a form entitled Workplace Hazard & Injury Report Form, in which she detailed her account of what had happened between her and Ms Corbisiero on 16 May 2007 under the heading “Harassment & bullying incident”.[25] This form was provided to Lucy Simic, who at the time was the disability coordinator and harassment contact officer within FaCSIA. It is referred to as an Occupation Health and Safety Incident Report (“OHS Report”).
63. In June and July of 2007, Ms Sluggett asserts that she was harassed, particularly by Ms Corbisiero, about answering incoming telephone calls to the ICC, but was too frightened to protest because of fears that it might result in further disciplinary action being taken against her.
64. Ms Sluggett responded to the Breach of Code Inquiry, being conducted by Ms Deny-Collins, in September of 2007. She complains that she has never received any indication regarding the outcome of this inquiry. For her part, Ms Denny-Collins has deposed that she suspended her investigations upon hearing from Ms Simic that Ms Sluggett had submitted a harassment case against Ms Corbisiero.
65. On 24 September 2007, the ICC office was relocated to the main state office of FaCSIA, located at level 18, 11 Waymouth Street, in Adelaide. This co-location of the two departments resulted in the potential duplication of some corporate services required for both the ICC and FaCSIA.
66. At the level 18 offices, Ms Sluggett complains that the telephone system she was required to operate was not adapted sufficiently to cater for her level of disability. In addition, she asserts that it was problematic for her to attend to many of the requirements of reception at the new offices, particularly opening the door and accepting delivery of parcels and documents. Ms Sluggett asserts that these various duties required her to walk and aggravated pain in her pelvis and legs.
67. Ms Sluggett complains that no effective action was taken in regards to her OHS report of 28 May 2007. Accordingly, she made an appointment to discuss the matter with Heather Coleman, who at the time was the Deputy State Manager of FaCSIA. This meeting took place on 3 July 2007.
68. Ms Sluggett is critical of Ms Coleman because she failed to deal with or respond at all to her (Ms Sluggett’s) complaints that she felt unsafe in her workplace because of the behaviour of Ms Corbisiero, particularly Ms Corbisiero’s harassment and intimidation directed towards her.
69. As a result of the decision to re-locate the ICC to the South Australian State Office of FaCSIA, a firm of consultants, Yellow Edge, based in Victoria, were asked to review the provision of business support for both the State Office and the Adelaide ICC, given what was seen as the overlap of services required for the two departments.
70. On 28 July 2007, John Robinson, the Victorian State Manager of Yellow Edge completed a Review of Business Support/Corporate Services in anticipation of the co-location of the ICC with the FaCSIA state office. [26] He recommended that a steering committee be set up to identify what were the optimal staffing levels for the two departments concerned, with the aim of integrating business support functions across FaCSIA.
71. On 28 August 2007, following the staffing review, Vicki Toovey, who was then the State Manager for FaCSIA, wrote to Ms Sluggett informing her that the review had found that her position was potentially excess to the staffing requirements for FaCSIA’s Adelaide Office. Accordingly it was proposed that Ms Sluggett be offered a voluntary retrenchment, if an alternative position could not be allocated to her within the Commonwealth Public Service.
72. Concurrently with the letter from Ms Toovey, Ms Sluggett was provided with the provisions of the FaCSIA Certified Agreement, which set out the provisions relating to the redeployment and retrenchment of what were termed “excess employees”. If such an employee rejected an offer of voluntary retrenchment and was unable to be redeployed, he or she would be subject to a “retention period” of seven months, after the expiration of which the employee in question would be involuntarily retrenched.
73. Ms Sluggett deposes that she found the circumstances surrounding this offer of voluntary retrenchment to be a complete shock to her. She complains that she was singled out to be retrenched (either voluntarily or otherwise) because of the various complaints she had made to management regarding how her disabilities had been treated at the ICC. It is her evidence that she was the only staff member who was found to be excess to requirements within the ICC. By necessary implication, she is of the view that the management of FaCSIA were intent on removing her from the ICC come what may.
74. Ms Sluggett was not successful in any application for redeployment. She chose not to accept a voluntary redundancy. Her retention period expired on 28 May 2008. On this date she was made redundant from the Commonwealth Public Service. She has not been in the paid workforce in the period since.
75. Ms Sluggett’s position is that her retrenchment did not comply with FaCSIA’s policy in regards to the recruitment and retention of people with disability. As such, it is her case that her retrenchment and the conduct of the FaCSIA management, which preceded it, were discriminatory.
76. Ms Sluggett has raised issues regarding how she was treated in her workplace, between August of 2007 and May of 2008, when she was retrenched. Firstly she complains that she was not allocated proper duties to perform and was excluded from the Corporate Services Team. Secondly, it is her position that suitable modifications were finally made to her desk and workstation, which enabled her to perform the duties required of her.
77. Given these modifications, which Ms Sluggett categories as simple ones, but ones which nonetheless had remarkable implications for her ability to function to her full capacity in the workplace, Ms Sluggett would characterise the decision of her employers to proceed with her retrenchment as all the more cynical and discriminatory.
78. The Commonwealth’s position is that, whilst Ms Sluggett was employed at the ICC, she was properly directed to perform the tasks appropriately allocated to her as an APS 2 registry officer. These tasks had been modified according to the recommendations of experts retained by the Department to assess Ms Sluggett’s capabilities. As Ms Sluggett refused, of her own volition, to comply with directions given to her, it is the Commonwealth’s position that she has been treated no less favourably than any other Commonwealth public servant without a disability but who otherwise elected to disregard conditions relation to his/her employment.
79. In addition, the Commonwealth denies that it has subjected Ms Sluggett to any indirect form of discrimination. It asserts that it was a condition of her employment that she did the tasks which were allotted to her. Given the circumstances surrounding her employment, particularly the various modifications which were made to her duties, there is nothing unreasonable in such a condition or requirement being associated with that employment.
80. The Commonwealth denies that it has denied Ms Sluggett any form of promotion, training or advancement, which would have been available to an abled-bodied person, in the same position as Ms Sluggett, as a result of her disabilities.
81. The Commonwealth also denies that it has subjected Ms Sluggett to any form of harassment. Finally, the Commonwealth points to the fact that Ms Sluggett’s employment, as a public servant, was terminated as a result of an arm’s length inquiry, which found she was excess to FaCSIA’s required staffing levels. As such, this cannot be categorised as a discriminatory decision on its part.

The Legal Principles Applicable

a) Introduction

82. The last incident of illegal conduct, alleged by Ms Sluggett to be in contravention of the provisions of the DDA, occurred on the termination of her employment by the Commonwealth on 28 May 2008. Since that date, the DDA has been significantly amended in areas specifically relevant to Ms Sluggett’s application. In addition, the HREOC Act has been repealed and replaced by the Australian Human Rights Commission Act 1986.[27]
83. Section 8 of the Acts Interpretation Act 1901 deals with the consequences of a repeal of an act of the Commonwealth Parliament. Unless the contrary intention appears in the repealing legislation, the repeal will not affect the previous operation of any act repealed by it or affect any right, privilege, obligation or liability acquired or accrued pursuant to the repealed legislation.
84. The relevant commencement date for the amendments to the DDA was 5 August 2009. Accordingly these amendments do not apply in the present case, given the date of the last allegation of unlawful, discriminatinatory conduct alleged by Ms Sluggett.
85. In addition, Ms Sluggett commenced these proceedings on 29 May 2008. Earlier on 4 April 2007, Ms Sluggett had made a complaint to the Human Rights & Equal Opportunity Commission alleging disability discrimination against her by various employees of FaCSIA. She amended this complaint on 14 October 2007.
86. On 22 May 2008, a delegate of the President of the Human Rights & Equal Opportunity Commission terminated its investigation into Ms Sluggett’s complaint on the basis that it was considered that the complaint was lacking in substance. This decision was made pursuant to section 46PH of the HREOC Act.
87. Pursuant to section 46PO of the HREOC Act, as it then stood, in these circumstances, Ms Sluggett was entitled to make application to this court, alleging unlawful discrimination on the part of FaCSIA. It was pursuant to this section that Ms Sluggett commenced proceedings in this court.
88. Notwithstanding the repeal of the HREOC Act, her application is to be determined pursuant to the powers conferred on the court by virtue of section 46PO(4). These are as follows:
    • “If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
    • (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
    • (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
    • (c) an order requiring a respondent to employ or re-employ an applicant;
    • (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
    • (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
    • (f) an order declaring that it would be inappropriate for any further action to be taken in the matter.”
89. The DDA makes it unlawful to discriminate, on the grounds of disability, in many areas of public life. These areas include employment [DDA section 15]. It is also unlawful to harass a person, in employment, in relation to their disability [DDA section 35].
90. The concept of disability is defined in section 4 of the DDA. It includes the following:
    • “(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
    • ...
    • (e) the malfunction, malformation or disfigurement of a part of the person’s body; or
    • ...
    • (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgements 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... ”
91. The respondent accepts that the applicant suffers from post-polio syndrome and that this is disability for the purposes of the DDA. There is controversy between the parties regarding an allegation made by Ms Sluggett that the actions of the Commonwealth have in some way exacerbated a psychiatric disorder suffered by her. However, I do not understand her case to be that she suffered unlawful discrimination because of the disability represented by this mental illness.
92. Employment is defined in section 4 of the DDA. It includes “work as a Commonwealth employee”. Ms Sluggett was a Commonwealth public servant. There is no dispute that she was employed by the respondent, at the relevant times.
93. Section 15(2) of the DDA renders it unlawful for an employer or a person acting on behalf of an employer to discriminate against an employee on the grounds of the employee’s disability in respect of the following areas of employment:
    • “(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.”

94. “Discriminate” is also defined in section 4 of the DDA. It has the meaning given by sections 5 and 6 which deal with the concepts of direct discrimination and indirect discrimination respectively.
95. It is Ms Sluggett’s case that the Commonwealth, through the actions of various of its employees, has discriminated against her in her employment by it, both directly and indirectly. In particular, she alleges that she was denied opportunities; was detrimentally treated; and ultimately dismissed because of her disability.

b) Direct discrimination

96. The objects of the DDA include the elimination of discrimination, as far as possible, against persons on the grounds of disability in the area of work (inter alia) and to ensure, as far as is practicable, that persons with disabilities have the same rights to equality before the law, as do other members of the community [DDA section 3].
97. Accordingly, the basis of the definition of direct discrimination rests on a notional comparison between the way in which a person with a disability has been treated (the “aggrieved person”) and the way in which a person “without the disability” would have been treated in “in circumstances that are the same or not materially different.” Specifically, section 5 of the DDA provides as follows:
    • 1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, 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 subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.”
98. The leading authority, in respect of how a court such as this one, is to formulate a comparator, “without the disability” to weigh against the treatment accorded to the person bringing a complaint of direct discrimination, in the same circumstances, pursuant to the provisions of section 5 of the DDA is Purvis v New South Wales (Department of Education & Training).[28]
99. The aggrieved person in Purvis was a secondary school student with brain damage. His disability manifested itself in violent and disruptive behaviour towards teachers and other students at the school which he attended. Ultimately his behaviour, stemming from his disability, resulted in him being excluded from the high school, operated by the New South Wales Department of Education, which he attended.
100. The question for the High Court in Purvis was what attributes should be ascribed to the required comparator for the purposes of determining whether direct discrimination had occurred. Was the comparator a person without the disability simpliciter or a person without the disability but who nonetheless was deemed to have behaved in a similar violent and disruptive fashion to the complainant?
101. The majority of the High Court held that it was necessary to compare the treatment of the student with the disability with a student who exhibited violent behaviour but did not have the disability. Gleeson CJ stated as follows:
     • “The circumstance that gave rise to the first respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.”[29]
102. The comparison required by section 5 of the DDA is not a purely formal one between a person with the disability and one without it. Section 5 requires a comparison between a person with the disability and one without it but the comparator must be taken to display the same behaviour and conduct as that exhibited by the disabled person.
103. Accordingly, how the comparator required for any given case is to be constructed must depend on the particular facts and circumstances of the case concerned. In Purvis, the comparison required by section 5(1) of the DAA was with a non-disabled student, who exhibited violent behaviour. The statute required a comparison with a student without the disability, but not a student without the disruptive behaviour, which had been part of the circumstances leading to the expulsion of the student in question.
104. In Maxworthy v Shaw[30] Nicholls FM was dealing with a complainant under the DDA, who suffered from Crohn’s Disease, the symptoms of which required her to wear a colostomy bag. She worked in a sandwich business called “The Lunch Spot”. Nicholls FM found that the exercise delineated in section 5 of the Act required “a comparison with another person displaying the same behaviour and conduct of Ms Maxworthy. That is someone in her position, but who does not have the disability, and who would not have been treated less favourably.”[31]
105. Accordingly, in the case, Nicholls FM found that the appropriate comparator to the complainant was as follows:
     • “a. An employee of “The Lunch Spot” having the same position and responsibilities of the Applicant;
     • b. Who did not have Crohn’s disease;
     • c. Who was a well regarded employee;
     • d. Who carried a colostomy bag;
     • e. Who was unable to work in the mobile van on a full-time basis;
     • f. Who was absent from work for a short period of time.”[32]
106. Fetherston v Peninsula Health[33] dealt with a complainant, who was a medical practitioner, whose employment had been terminated following the deterioration of his eyesight as a consequence of diabetes and other circumstances relating to the performance of his medical duties. Dr Fetherstone had been required to attend a medical examination to ascertain what the level of his optical disability was. He declined to provide the resulting report to his employer, who terminated his employment.
107. Heerey J, in applying the majority decision in Purvis (Gummow, Hayne & Heydon JJ), determined that the comparison required by section 5(1) required him
     • “... to identify the circumstances attending the treatment given to the disabled person and then examine what would have been done in those circumstances if the person concerned was not disabled. The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the discriminator. There is no basis for excluding from consideration some of the circumstances because they are identified as being connected with the disabled person’s disability.”[34]
108. Accordingly, Heerey J identified a number of features, relevant to Dr Fetherstone required for the comparison arising under section 5. He noted that “one should not strip out the circumstances, which are connected with the applicant’s disability.” In the particular case, Heerey J found the circumstances were as follows:
     • “(a) Dr Fetherston was a senior practitioner in the ICU, a department where urgent medical and surgical skills in life-threatening circumstances are often required;
     • (b) Dr Fetherston had difficulty in reading unaided charts, x-rays and handwritten materials;
     • (c) There were reports of Dr Fetherston performing tracheostomies in an unorthodox manner, apparently because of his visual disability;
     • (d) Medical and nursing staff expressed concern about Dr Fetherston’s performance of his duties in ways apparently related to his visual problems;
     • (e) In the light of all the foregoing Dr Fetherston attended an independent eye specialist at the request of his employer Peninsula Health but refused to allow the specialist to report to it.”[35]
109. Within the matrix provided by section 5 of the DDA, Heerey J went onto consider how the respondent would have treated a person, without the applicant’s disability, in the circumstances delineated above. He held as follows:
     • “The answer in my opinion is clear. Peninsula Health and any responsible health authority would have in these circumstances treated a hypothetical person without Dr Fetherston’s disability in the same way. An independent expert assessment would have been sought. A refusal to allow that expert to report must have resulted in termination of employment.”[36]
110. In Ware v OAMPS Insurance Brokers Ltd[37] Driver FM was dealing with an applicant who suffered from attention deficit disorder and depression who had been terminated from his employment. The respondent’s position was that Mr Ware had been dismissed because of his poor work performance, not his disability.
111. Applying the reasoning in Purvis, Driver FM held that the proper comparator in the case was:
     • “a) an employee of OAMPS having a position and responsibilities equivalent of those of Mr Ware;
     • b) who did not have Attention Deficit Disorder or depression; and
     • c) who exhibited the same behaviours as Mr Ware, namely poor interpersonal relations, periodic alcohol abuse and periodic absences from the workplace, some serious neglect of duties and declining work performance, but with a formerly high work ethic and a formerly good work history.”[38]
112. In summary, direct discrimination occurs where, because of a person’s disability, the discriminator treats that person less favourably than the discriminator would have treated a person without the disability, in circumstances that are the same or are not materially different. The comparison arising is not simply between the complainant and someone who does not have the disability concerned. Rather, this comparison must be drawn between what the discriminator would have done in the same circumstances to a person without the disability, but whose circumstances are taken to include salient aspects of the aggrieved person’s conduct.

c) Indirect discrimination

113. Indirect discrimination is concerned with unfair or equal outcomes, which disadvantage a disabled person in comparison to the more significant numbers of abled-bodied persons within the community. Specifically, the provisions of section 6 of the DDA, which are operative in the circumstances of the present case, provide as follows:
     • “For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the grounds of a 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.”
114. Indirect discrimination occurs when the discriminator in question requires an aggrieved person to comply with a requirement or condition with which that person cannot comply because of their level of disability. Collier J summarised the case law as to what constitutes a “requirement or condition” for the purposes of section 6 of the DDA, in Forest v Queensland Health.[39]
115. Firstly it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled", the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance.
116. This followed from what Drummond J held in Sluggett v Human Rights and Equal Opportunity Commission. [40] This case related to an earlier complaint of disability discrimination which Ms Sluggett had brought against Flinders University, as a result of the circumstances surrounding her completion of a post-graduate diploma in social administration at the University in 1992 -1993.
117. As part of this course, Ms Sluggett was required to complete a field placement. She chose to research a topic relating to AIDS/migrant welfare at the Migrant Health Service. Ms Sluggett complained that her disability, arising from her post-polio syndrome, prevented her from accessing the premises of the health service chosen by her and so being able to complete her field placement.
118. It was found that Ms Sluggett had not raised any issues about her difficulties in accessing the health service’s premises with the University. If she had done so, the University would have made alternative arrangements to enable Ms Sluggett to complete her placement at another agency.
119. In this sense, Drummond J found that the concept of a “requirement or condition”, with which the aggrieved person is required to comply, involves the notion of compulsion or obligation, which was absent from Ms Sluggett’s case. She was not obliged to attend at the health service in question to complete her qualification in question. Another placement could have been found for her.
120. This theme of compulsion was taken up in Fetherstone v Peninsula Health. Dr Fetherston had made a request to his employers for computer software that would enlarge printed material on a computer screen. He never received a definitive response to this request. Heerey J found that:
     • “The mere non-response to Dr Fetherston’s requests cannot, in my opinion, be characterised as a "requirement or condition" within the meaning of s 6. That provision is concerned with some positive criterion or test or qualification or activity with which the disabled person is called on to comply.”[41]
121. Secondly, whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia, use services of access premises, is a question of fact and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DDA has been infringed by indirect discrimination.
122. Thirdly, a requirement or condition may be implicit in the conduct, which is said to constitute discrimination. Fourthly, the requirement or condition in each case will depend on the facts of that particular case.
123. Fifthly, the notion of “requirement or condition” would seem to involve something over and above that which is necessarily inherent in the goods or services provided. The example being given that it would be nonsensical to assert that a manicure involves a requirement or condition that those availing themselves of such a service have one or both of their hands.[42]
124. Finally, the expression “requirement or condition,” should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition.
125. Section 6(b) of the DDA requires that the relevant condition be “not reasonable having regard to all the circumstances of the case.” The onus on establishing the unreasonableness of the condition in question rests with the aggrieved person. The test is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other.[43]
126. In Clarke, the applicant submitted that his child, who was deaf and a student at a school operated by the respondent, had been subject to indirect discrimination by virtue of the failure to provide Australian sign language interpreting assistance in the classroom. Instead, the school had relied upon the use of note taking as the principal means to allow the student to communicate in the classroom. It was alleged that this did not allow the student to adequately participate in classroom activities.
127. At first instance, Madgwick J found that the requiremental condition applicable to the student in the case was “to participate in and receive classroom instruction without the assistance of an interpreter.” It was also found that the criterion provided by section 6(a) was satisfied by a comparison being made between the student in question and a “base group” comprised of the other year 7 students at the school in question.
128. In determining whether the condition or requirement in the case was a reasonable one, the Full Court indicated as follows:
     • “The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition... However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable (citations removed)”[44]
129. Ultimately, after having considered the situation of the student in question, including financial considerations pertaining to the provision of the interpreter by the education authority, the Full Court confirmed the decision of the trial judge that the requirement that the student attend classes without the interpreter in Australian sign language was an unreasonable one.
130. In Daghlian v Australian Postal Corporation,[45] the relevant condition, applicable to the complainant’s employment situation as a postal services officer and which was said to constitute indirect discrimination contrary to the provisions of section 6 of the DDA, was that she not be seated at the retail counter of the post office where she worked, during business hours. Ms Daghlian suffered from a back and heel disability.
131. Conti J found that this condition or requirement was not reasonable. In so doing, he considered the following circumstances:
     • From 1989 until 2001, Ms Daghlian had sat on a stool at her workplace counter, from time to time, without restrictions being imposed on her;
     • In spite of recommendations made in medical and ergonomic reports obtained both by the respondent and applicant, Ms Daghlian had not been provided with an appropriately designed ergonomic chair or stool;
     • Ms Daghlian was a competent and conscientious and a dutiful team member of the counter staff;
     • Ms Daghlian’s past use of a stool, in her work station, had not caused other employees to trip;
     • The use of a stool was not likely to be prejudicial to the new post shop image, which the respondent desired following the conversion of the traditional post office where Ms Daghlian worked;
     • The assertion that the space behind the counter at Ms Daghlian’s workstation was too small to accommodate the stool or chair in question.[46]
132. The final limb provided by section 6(c) requires that the applicant concerned “does not or is not able to comply” with the requirement or condition asserted to be indirectly discriminatory. The criterion is to be applied broadly and liberally rather than through a technical appraisal as to whether the aggrieved person can physically comply with the condition.
133. Rather, the test of compliance with the condition must not be at the cost of the aggrieved person being put to “any substantial disadvantage in relation to the comparable base group.” In Clarke, at first instance, Madgwick J found that it was not realistic to say that the student in question could have complied with the model of tuition offered at the school, without facing serious disadvantage when compared to his hearing classmates.

d) Harassment

134. Pursuant to section 35 of the DDA, it is unlawful for a fellow employee of a disabled person to harass that person in relation to their disability. It is Ms Sluggett’s assertion that the actions of Mr Cox and Ms Corbisiero constitute harassment for the purposes of section 35.
135. In McCormack v Commonwealth of Australia[47] Mowbray FM adopted the ordinary dictionary definition of “harass” to define the term. As such, it was defined as “to trouble by repeated attacks; to harry, raid and disturb persistently, torment ...”.
136. In Penhall-Jones v State of New South Wales (No2)[48], Raphael FM, after noting there was little authority on what constituted “harassment” for the purposes of section 35 of the DDA, adopted the approach taken by Mowbray FM and observed that harassment is “something which is repetitious or occurs on more than one occasion ...”.
137. In relation to the meaning of the phrase “in relation to the disability”, both Mowbray FM and Raphael FM adopted the following statement from McHugh J:
     • “The prepositional phrase ‘in relation to’ is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.”[49]
138. McDonald v Hospital Superannuation Board[50] concerned a complainant who suffered from multiple sclerosis. It was found that the comments of a fellow employee, which were impliedly or expressly framed to cause discomfort and humiliation to the complainant, concerning his condition of multiple sclerosis, amounted to harassment. The Commission found that even if there were multiple motivations on the part of the employee concerned for making the comments concerned:
     • “... ranging from personal animosity through to a threat to her management practices, and even if there were no or only one or two singular references to MS, it was open to me to find that in fact on a number of occasions Ms Masson was using MS as part of her campaign to affect a certain end, that of causing the complainant to cease employment in her section.”

e) Vicarious liability

139. Section 123(2) of the DDA provides that a body corporate is liable for the discriminatory conduct of its servants or agents, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid such conduct.
140. In Vance v State Rail Authority[51] Raphael FM indicated the importance of statutory authorities implementing effective education programs to limit discriminatory conduct by their employees in the workplace, in order to avoid being held vicariously liable for the acts of their employees, as a consequence of the provisions of section 123.
141. But he considered it would be unreasonable to expect such programs to achieve perfection in this regard, rather the aim of such programs was to do what was reasonable in regards to the education of staff members in respect of disability and discrimination issues.
142. In this particular case, there is no argument that if I find that any of the various employees of the Commonwealth departments in question has acted in a discriminatory way towards Ms Sluggett, which behaviour is rendered unlawful by virtue of the DDA, the Commonwealth is vicariously liable for those actions. No submissions were made in respect of any particular precautions, taken by the Commonwealth, to avoid discriminatory conduct by its employees.

Ms Sluggett’s origins and early years of employment

143. Ms Sluggett was born in Sri Lanka, on 15 November 1967. She contracted poliomyelitis at the age of eighteen months. Her early years were spent in a Buddhist orphanage in Sri Lanka.
144. At the age of ten, Ms Sluggett was adopted by her Australian parents and came to this country. She attended school in Berri, Port Augusta and Leigh Creek. She completed Year 12 at Glenunga High School, in Adelaide, in 1985.
145. One of her older sisters is a teacher, who has worked at schools in Aboriginal communities in South Australia. As a result, Ms Sluggett, whilst a teenager, lived at the Nepabunna Aboriginal community. This seems to have been the beginning of an interest Ms Sluggett has long held in indigenous affairs.
146. In 1982, Ms Sluggett had an operation on her left leg and foot to correct a physical deformity as a consequence of her polio. Her foot was reconstructed and she received a tendon transplant so that she could move her foot and toes to enable her to walk.
147. After completing Year 12, Ms Sluggett had a variety of jobs, including as a kitchen hand, cook and waitress; managing a jewellery shop; and child minding. She experienced some limitations in these various roles but, at the time, did not think those limitations were significant.
148. In 1987, Ms Sluggett began studies to complete a certificate in Aboriginal Community Development, at the University of South Australia. Following her successful completion of this certificate, she applied to the Flinders University to undertake a Bachelor of Arts degree. Ms Sluggett completed her degree in 1990.
149. In 1991, Ms Sluggett was a volunteer at the Clarence Park Community Centre. She assisted in taking multi-cultural and English classes at the centre and became a member of its board. Around this time, due to her level of disability, she began to seek assistance from the Commonwealth Rehabilitation Service (CRS).
150. In 1992, Ms Sluggett commenced a post-graduate Bachelor of Social Administration (Social Work) degree, also at Flinders University. She did not complete this degree, in circumstances which remain controversial. As previously indicated, as part of her course, Ms Sluggett was required to complete a field placement.
151. In her affidavit of evidence, prepared for this hearing, Ms Sluggett deposes that during 1993, due to her disabilities, she was unable to access lecture halls, tutorial rooms and other facilities at Flinders University, as well as being unable to attend at the Migrant Health Service to complete her field placement. At the end of 1993, she failed a number of her academic subjects. Ms Sluggett asserts that it was because she “did not receive the help [which she] needed” from the University that she failed her second semester of studies.[52]
152. As a consequence of the University failing to accord her a reconsideration of her academic result, on the basis that account had not been accorded in respect of her mobility difficulties, Ms Sluggett made a complaint of discrimination to the Human Rights & Equal Opportunities Commission. This led to protracted legal proceedings, which were ultimately concluded by Drummond J in 2002. Ms Sluggett’s complaint was unsuccessful, both before HREOC and on appeal.
153. In his judgment, Drummond J set out the circumstances of Ms Sluggett’s complaint and disability, in his reasons for judgment, as follows:
     • “The medical evidence about the applicant's disabilities is not in dispute. I have referred to her permanent disability that impaired her mobility. From 1992 her health worsened and in December 1993 she was diagnosed as having developed post polio syndrome. Its onset may have begun as early as 1991. It became increasingly debilitating though Ms Sluggett did not realise that she had developed this condition. Symptoms included increased weakness and instability in her lower limbs, particularly in her left leg, pain and fatigue. It affected her academic performance. Her performance in 1992 was satisfactory. But in December 1993 she failed a number of subjects. Ms Sluggett applied to the University Appeal Committee for a re-grading of these subjects on the ground that her problems with mobility had detrimentally affected her performance and that, in failing to make allowances for her disability, the University had discriminated against her. Her appeal was unsuccessful. She then made her complaint to the Commission.”[53]
154. It is the submission of Dr Bleby, counsel for the Commonwealth, that Ms Sluggett has been somewhat disingenuous, in her affidavit account, regarding the reasons for her academic failure in 1993, which were not borne out by the findings of the HREOC Commissioner and which were not reversed on appeal.
155. The basis of Dr Bleby’s criticism being that, after previous academic success at the University, which had necessitated her attendance at its facilities, it was only when she had begun to fail her course, Ms Sluggett had raised complaints pertaining to her ability to access the University campus, as a consequence of her disability. The implicit criticism being that Ms Sluggett’s complaint was opportunistic and self-serving.
156. Drummond J summarised the Commissioner’s findings in the passage below. He did not find any fault in those findings:
     • “It was only as her disability increased as her post polio syndrome gradually worsened during 1993 that the University is said to have discriminated against her with respect to access. This is said to be so though Ms Sluggett did not herself draw to the attention of the University her growing problems with mobility. She did mention something of her problems to some of her lecturers. But the Commissioner found that what Ms Sluggett did was this. She: "did not refer to difficulties of access within the University as the cause of her academic problems: rather, she complained about difficulties in getting into the University from her home, and about her personal problems and relationships". It is difficult to see how means of access about which there is no complaint in 1992 can become the subject of discriminatory conduct by the University in 1993 solely because of a deterioration in Ms Sluggett's physical capacity which she did not draw to the attention of her lecturers, the unit within the University specifically set up to provide advice and assistance to disabled students or anyone else in the University. It was only her examination failures, at the end of the 1993 academic year that caused her, early in 1994, to make complaint to the Academic Registrar in the course of appealing against the failed grades she had received. If it were the case that the University did, in 1993, require Ms Sluggett to comply with a requirement or condition that she attend classes at the University or field work at the Health Service centre with which requirements she became increasingly unable to comply, it is difficult to see how it could be said that such a requirement or condition was in terms of s 6(b) ...”[54]
157. In his written submission to the court[55] Dr Bleby asserts that Ms Sluggett’s conduct during the first set of protracted discrimination proceedings and how she has characterised them in the current proceedings are relevant issues for the court to have regard in its overall assessment of her credit.
158. Dr Bleby asserts that, firstly Ms Sluggett has not been frank about the earlier proceedings. Secondly, she has “a long history of unmeritorious complaints”. Thirdly, in Dr Bleby’s submission:
     • “This evidence also puts the court on notice that the applicant has a history of making complaints about discrimination well after the event complained of, and in circumstances where she did not provide the pertinent information to the relevant body at the time. This is a matter that features heavily in the applicant’s conduct relevant to the present case.”
159. As Drummond J indicated, it was in late 1993 that Ms Sluggett was formally diagnosed with the condition of post-polio syndrome. She was found, around this time, to have a weakness in her left leg, which caused it to fatigue quickly, giving way at the knee and ankle, often causing her to fall.[56]
160. There is no dispute between the parties that Ms Sluggett continues to suffer post-polio syndrome and that this is a disability within the meaning of section 4 of the DDA. Post-polio syndrome is a second phase of poliomyelitis, contracted many years after the individual concerned has been initially affected by the disease. The syndrome is a slowly progressive and degenerative phase of the disease. Its estimated prevalence is between 4,000 and 26,000 people in Australia.
161. The main features of post-polio syndrome include:
     • Fatigue;
     • Pain in muscles and joints;
     • Lack of strength and endurance;
     • Respiratory, speech and swallowing problems.
162. Just as there is no cure for poliomyelitis, so there is no cure for post-polio syndrome. Medical treatment is available only for the treatment of its symptoms. In most cases of the disease there is a steady deterioration in the neuromuscular ability of the person affected.[57]
163. As a result of her diagnosis, Ms Sluggett began to receive treatment at the Queen Elizabeth Hospital department rehabilitation medicine. She began to see her current specialist, Dr Nigel Quadros in 1994. She also qualified for a disability support pension.
164. At the end of 1994, as part of a CRS work rehabilitation program, she commenced a three month unpaid and part-time trainee placement at ATSIC. This led to her obtaining a temporary part-time position at ATSIC. In mid-1996, Ms Sluggett successfully applied for a permanent APS2 position with ATSIC and became a permanent employee of the Australian Public Service. She retained this “substantive APS2 position” until the termination of her employment on 28 May 2008.
165. From 1996 until 2001, Ms Sluggett held a number of positions at ATSIC including as a project officer and staff training and development officer. Although she remained substantively at the APS2 level, some of these roles were designated at a higher level up to APS4. Ms Sluggett’s evidence is that she was happy in her employment at this time.
166. In 1998, Ms Sluggett undertook part-time studies at the University of South Australia to obtain a graduate diploma of social science in rehabilitation. She reduced her hours of work at ATSIC to twenty-four hours per week. She was interested in this area of study because of her own experiences as a person with a disability.
167. Ms Sluggett successfully obtained her graduate diploma. She took leave from ATSIC in 1999 to work on a part-time basis with a private sector organisation, which assisted disabled people obtaining employment. One of her responsibilities was to advocate on behalf of her disabled clients.
168. Ms Sluggett returned to ATSIC in early 2000. She was placed in the human resources section, which was involved with providing staff training. This was not a happy period for Ms Sluggett, who claims that she was discriminated against by her then manager, Jenny Woods, because of her disability, resulting in being humiliated and a burden on her fellow staff members. In addition, Ms Sluggett complains about the size and configuration of her workstation at the time and the requirements that she stand for long periods of time photocopying and deliver files and other materials throughout the office.
169. Ms Sluggett asserts that, due to these difficulties in her workplace, she became distressed, particularly at what she perceived to be Ms Woods constant negative criticisms of her. As a result, she took extended leave from November 2000 to February 2001. The clear import of her evidence is that her disability needs were not being met in her workplace and she was being harassed because of her disability.
170. This period is not the subject of any specific complaint of discrimination made by Ms Sluggett. She has however alluded to it, at some length, in her affidavit material. In particular, she claims that Ms Woods threatened her with “disciplinary action” unfairly and as a means to intimidate her. The implication of Ms Sluggett’s evidence being that such a threat was unwarranted and unrelated to any issues to do with her work performance.
171. Ms Woods is not a witness in these proceedings. However, a lengthy email chain of emails passing between Ms Woods and Ms Sluggett in the period from September 2000 to October 2000 was put to Ms Sluggett in cross examination.[58] The final email of the chain indicates that, ostensibly at least, Ms Woods had significant concerns about Ms Sluggett’s performance at work in the following areas:
     • incorrect completion of flex sheets;
     • taking flex leave without prior approval;
     • blurring between the performance of ATSIC duties and other private interests;
     • lack of courtesy to supervisors;
     • the incompletion of tasks given to her and her general attitude to work;
     • refusal to answer the phone;
     • her assertion that her personal development needs were not being met, which was characterised as mischievous and misleading.
172. On 17 July 2001, Ms Sluggett wrote a lengthy letter to the personal manager of ATSIC, setting out her various grievances arising from her employment at ATSIC from 1997 onwards.[59] She made specific complaints about Ms Woods’ conduct towards her. She also complained as follows:
     • “I am a university graduate yet I watched other people including temporary staff brought in for specific positions rather than advertising for internal staff or giving internal staff who have applied for positions a chance. ...”
173. Ms Sluggett’s evidence is that she was advised to lodge her grievance, as it was the only mechanism available to her for her “disability needs” in her workplace to be met. In cross examination, she maintained that she did not personally want to put the grievance letter in but was asked to do so. She asserted that she wished to avoid conflict in her workplace.[60] I consider that both these assertions are against the weight of the evidence, particularly in the light of Ms Sluggett’s subsequent actions.
174. Whilst her grievance was being investigated, Ms Sluggett was put up for redeployment outside of ATSIC. In addition, she received counselling and psychological support from Jane Kemp. My understanding is that she did not return to her workplace during this period.
175. Ms Sluggett was advised of the outcome of her grievance proceeding in October of 2001. The advice was that her various grievances had been found to be unsubstantiated and she should return to her position in the Adelaide ATSIC office. Ms Sluggett’s evidence is that she was emotionally unable to return and went on immediate sick leave.
176. Following the receipt of Ms Sluggett’s letter of 17 July 2001, the relevant managers within ATSIC determined to treat it as a complaint that Ms Woods and four other ATSIC employees, within the Adelaide office, had breached the Australian Public Service Code of Conduct as a result of their behaviour towards Ms Sluggett.
177. Bill Marshall was nominated to report into the matter and determine whether there had been a possible breach of the code of conduct. Mr Marshall was independent of ATSIC management. His report was released to Ms Sluggett on 13 November 2001.[61]
178. In his report Mr Marshall concluded that none of the employees in question had breached the Australian Public Service Code of Conduct. He found all of Ms Sluggett’s complaints to be unfounded. In particular he found that there was a “major dissonance between the reality of how Ms Sluggett has been treated by all the employees subject to this investigation, indeed by the Adelaide ATSIC office generally, and her chronic and entrenched perception that she is being subject to widespread and continuing discrimination.”
179. He wrote as follows in his report:
     • “After careful review of the body of material I conclude that all aspects raised by Ms Sluggett have been dealt with in statement and documentary evidence and none has been found to have substance. Moreover, in finding that there has been no indiscipline I also do not conclude that there has been failure of a lower order e.g. carelessness, maladministration, poor communication or ineptness by the employees in question. I arrive at this conclusion particularly carefully since it is quite unusual in Code of Conduct investigations for an investigator to reach such an across-the-board exculpation.
     • What emerges from the material is a matter of considerable accommodation and concern by all three employees towards Ms Sluggett, and by the organisation as whole to her. Ms Sluggett, on the other hand, appears as an employee willing to complain of harassment very frequently without any real reasons for doing so.”[62]
180. I am not determining any specific matter pertaining to the issues raised in Mr Marshall’s report. However, Ms Sluggett chose to recount what is her view of the Adelaide ATSIC office in the period in question. Her view is that it was a workplace subject to systemic failings in regards to its attitude towards her and her level of disability, which drove her to a state of mental collapse.
181. It would seem to be her position that these systemic failings continued within the ICC office, after ATSIC was abolished and that is the rationale behind why she has outlined these various matters as part of the background to her current suite of complaints, although she does not seek formal redress for them.
182. On the other hand, Dr Bleby submits that the series of complaints, reported on by Mr Marshall, is indicative of the fact that Ms Sluggett has a querulous and difficult personality and is highly selective in the evidence, which she has provided to the court in the present case. Accordingly, it can be no surprise that Ms Sluggett has revisited them in the hope that some mud will stick to his client. All issues which he argues are relevant to the court’s assessment of Ms Sluggett’s overall credibility in the present proceedings.
183. Essentially, it is Dr Bleby’s submission that Ms Sluggett is either unwilling or incapable of being frank about the nature and causes of the many disputes in the workplace, in which she has been involved in the course of her career as a public servant. In addition, Dr Bleby submits that Ms Sluggett’s history, prior to the incidents which are the subject of the current proceedings, is marked by a propensity to treat any perceived set back as “an experience for which blame can be attributed to others by reference to her disability.”[63]
184. In early 2001, following the release of Mr Marshall’s report and the commencement of her sick leave, Ms Sluggett submitted a Comcare claim and made a complaint to HREOC. She began to see a psychiatrist, Dr Thompkins, who diagnosed her with depression. Ms Sluggett’s Comcare claim was disallowed. She did not proceed with her HREOC complaint. After exhausting her recreational and sick leave entitlements, Ms Sluggett supported herself on Centrelink benefits. She re-enrolled at Flinders University to complete her Bachelor of Social Work degree, which she did at the end of 2003.
185. In mid-2003, Ms Sluggett contacted ATSIC and advised that she wished to return to work. Accordingly, her rehabilitation case manager at the time, Dave Cook arranged two medical assessments to ascertain whether Ms Sluggett was medically fit to return to her nominal position at what was now known as ATSIS. By this stage, Ms Sluggett had been absent from work from approximately 22 months.
186. Dr Sathananthan, who conducted the first medical assessment, on 20 August 2003, described Ms Sluggett as follows:
     • “Her gait was abnormal. She moved with a limp and an obvious pelvic tilt secondary to weakness of certain groups of her left leg muscles, foot drop and shortening of her left leg. There was compensatory scoliosis of her thoraco-lumbar spine. She also described of exertional fatigue and pain in the neck, shoulder and lower back considered to be secondary to post-polio syndrome.”
187. Dr Sathananthan was of the view that Ms Sluggett could return to her nominal position from 1 September 2003 onward, provided she was not required to engage in prolonged weight bearing, climbing, negotiating stairs and lifting or carrying moderately heavy objects.[64]
188. Following this report, Ms Sluggett returned to employment at ATSIS on 1 September 2003. The other medical assessment obtained in respect of Ms Sluggett was from a psychiatrist, Dr Cossof, who examined her in October of 2003. Dr Cossof was of the opinion that Ms Sluggett was not suffering from any form of psychiatric illness and was fit to remain at work.
189. From 2 September 2003 onwards, Ms Sluggett was attached to a branch of ATSIS called the Regional Council Support Unit. Her duties were mainly of a research nature, researching topics as allocated to her by the Regional Council of ATSIS. ATSIS was the administrative arm of ATSIC. Its staff were Commonwealth public servants. On the other hand, the members of ATSIC consisted of the elected members of the Commission itself, both at the regional and national level. These members were not public servants.
190. Ms Sluggett remained with the Regional Council Support Unit, until the formal abolition of ATSIC in June of 2005. From February 2004 onward, Ms Sluggett was requested to assist ATSIC in the implementation of its family violence policy. Her social work qualifications were relevant to such a position. It was offered at the APS4 level and Ms Sluggett was placed on higher duties.
191. In July of 2004, ATSIS was abolished by the Commonwealth Government and its staff was deployed to other departments. ATSIC itself remained in existence until 30 June 2005. Ms Sluggett continued her duties, in support of the ATSIC Regional Council, until ATSIC was formally abolished. During this period, from time to time, she was seconded to higher duties up to an APS6 level.
192. With the abolition first of ATSIS and then ATSIC, Ms Sluggett was deployed to the ICC, then a part of DIMIA. The ICC was concerned with governmental responses to regionally based indigenous issues. As previously indicated, one of Ms Sluggett’s concerns is the failure of the DIMIA to “map her out” to another department. By which I take it she means that no steps were taken to place her in a position within the Public Service, which was commensurate with her skills and abilities.
193. These proceedings are concerned with Ms Sluggett’s complaints of discriminatory conduct against her, as a consequence of her disability, from the commencement of her employment with the ICC until she was terminated from the Commonwealth Public Service in May of 2008.

Ms Sluggett’s claim

194. The applicant’s claim of discrimination was not particularised in her initiating application by any reference to any specific incidents or dates. Her grounds of application were expressed as follows:
     • “The Respondents treated the Applicant less favourably, because of the Applicant’s disability, than other employees employed by the Respondents without a disability.
     • The applicant has required to comply with the requirement or condition as provided for pursuant to Section 6, (a) to (c), of the Disability Discrimination Act, 1992.
     • The reasonable adjustments sought by the Applicant to perform her employment duties would not result in unjustifiable hardship to the Respondents.
     • The applicant was unlawfully discriminated against by the Respondents in her employment as provided for pursuant to Section 15 of the Disability Discrimination Act, 1992.
     • The Applicant was harassed by the Respondents in relation to her disability.
     • The conduct of the Respondents in response to the Applicant’s disability amounted to bullying and harassment, which is rendered conduct unlawful pursuant to Section 35 of the Disability Discrimination Act, 1992.
     • The Respondents victimised the Applicant as a result of the claim and the proceedings brought by the applicant for unlawful discrimination pursuant to the Disability Discrimination Act, 1992.”
195. No evidence has been led regarding the claim of victimisation [DDA section 42]. Victimisation occurs when a person is threatened with some detrimental consequence, if a complaint is made under any applicable piece of anti-discrimination legislation. This aspect of Ms Sluggett’s claim is dismissed.
196. Dr Bleby characterised the applicant’s case as a “long and wide-ranging suite of complaints” which was diffuse and inchoate. He is critical that no great effort has been made to particularise which episodes in Ms Sluggett’s career at the ICC and FaCSIA amount to discriminatory conduct and more specifically what is the form of that discrimination, either direct or indirect.
197. Ms Sluggett’s complaint involves a period in excess of three years. She has criticisms of many individuals, who were involved with her during this period. In addition, she has raised historical incidents, where she asserts that she was less favourably treated, within the Commonwealth Public Service, because of her disability. These matters have been raised as background.[65]
198. Ms O’Connor, in opening, confirmed that the applicant’s involvement with ATSIC in the period 2000/2001 leading up to her extended unpaid sick leave were not subject to complaint but were relied upon to “inform the court in relation to an attitude that we say was taken about the applicant ... from that point on, in relation to her complaints, that [led her to being] targeted and singled out for unfair treatment as a result of her disability.”
199. Dr Bleby expresses his concerns about the lack of particularisation of the applicant’s case and its implicit reliance on complaining about issues, which are not subject to the application as follows:
     • “There are many aspects to the complaint by the applicant. They are not well distinguished as to which allegations constitute allegations of discrimination, which allegations are intended as evidence of a general nature to support the allegations and of what those that are alleged or might be alleged to constitute discrimination, what type of discrimination is alleged.”[66]
200. I agree with this characterisation of the applicant’s case. Her position is that throughout the entirety of her career in the Australian Public Service and more so in its latter period, when she was attached to the ICC, she has been systematically discriminated against because of her disability.
201. A particular emphasis in the applicant’s case is that her disability needs have not been properly “accommodated” by the Commonwealth, during her period of employment with the Australian Public Service. In her self prepared final submission, Ms Sluggett summarises her case as follows:
     • “Commonwealth engaged in discriminatory practices when it failed to accommodate my disability needs with respect to my employment.
     • The Commonwealth re-assigned me to the APS 2 Registry Officer position and failed to provide reasonable adjustment needs to enable me to perform duties of the position safely and effectively. This decision denied me the opportunity to enjoy work and be engaged in meaningful work. This decision also had detrimental impact on my physical & psychological health, lead to loss of skill, career potential and termination of my employment from the Australian Public Service.”[67]
202. The reference to a failure to provide “reasonable adjustment” picks up the current provisions of section 5(2)(b) of the DDA. This section was inserted into the DDA by reason of the Disability & Discrimination & Other Human Rights Legislation Amendment Act 2009, which came into force on 5 August 2009. It is not relevant to these proceedings.
203. My impression of Ms Sluggett’s case, as exemplified by the use of the word “accommodation”, is that she is of the view that the Commonwealth was under a duty to discriminate, in a positive way, in her favour, in the workplace. As such, if it is found by the court that the Commonwealth has failed to so positively or favourably discriminate, in the sense of favourably differentiating her situation, her case of discrimination under the DDA is made out. In my view, this is a misconception.
204. However, neither prior to the commencement of the hearing, nor during it, has the Commonwealth specifically objected to the way in which Ms Sluggett has presented her case. In my view, the Commonwealth has accorded her a wide degree of latitude. In so doing, the Commonwealth has recognised that the DDA is remedial legislation, designed to ensure equal opportunities in employment for those with disabilities. Accordingly it is recognised that those seeking access to its remedies should not be subject to excessive degrees of legalism.
205. In addition, section 3 of the Federal Magistrates Act 1999 provides, as one of the objects of the Federal Magistrates Court, that it is to operate informally as possible in the exercise of its judicial power. Finally, as a matter of principle, remedial legislation, such as the DDA, is to be construed beneficially and not narrowly.[68] For these reasons, Ms Sluggett should not be criticised for how she has presented her case.
206. However, the manner in which Ms Sluggett has presented her case has posed significant difficulties, both for the Commonwealth and the court. It has been difficult to make out a difference between “the wood and the trees”, in the sense of distinguishing between the actual acts of discriminatory and so illegal conduct on which Ms Sluggett relies and the day to day detail of what was undoubtedly an unhappy situation in the ICC office, both from the perspective of Ms Sluggett and the Centre’s management.
207. In these circumstances, the court must attempt to classify Ms Sluggett’s wide ranging complaint into categories, so that it can determine what, if any, provisions of the DDA have been transgressed. The case cannot be determined holistically. It must be divided into components.
208. In opening, Ms O’Connor, then counsel for Ms Sluggett, provided the following overview of her client’s complaint.
     • “She comes back on 22 September 2003 and she’s at level 2. She’s then working 30 hours per week. There is then an assessment done by a physiotherapist of her worksite, Kate Agus, A-g-u-s, makes particular recommendations and it’s from then on that, really, the beginnings of what we say was a snowballing effect of complaints by her, what she saw as a failure to act on those complaints, complaints by the applicant, failure to act on the complains, inadequacy in relation to the responsibility of the employer to ensure that the worksite was safe for her and the work that they were asking her to do was appropriate for her disability and to provide her with the sort of employment that was appropriate for her disability coupled with what we say was unfair and harassing treatment of her as a result of her insisting from time to time that she was unable to do work.”[69]
209. Ms O’Connor also raised issues, in opening, relating to Ms Sluggett’s complaint that she had not been “mapped out” in the period after ATSIC’s abolition. Ms O’Connor said as follows:
     • “... the request was ignored, she was told separately in general email that in fact she wouldn’t be mapped out, and on 29 June that year, 2005, it was confirmed by both her managers that she would not be mapped and by July 2005, the abolition of ATSIC was then complete. She had been in an acting 6 role at this stage, so she had been floating between two, four and six, but from 1 July, she was moved back down to her two role which was her substantive position in any event.”[70]
210. Thereafter Ms O’Connor focussed on Ms Sluggett’s complaints regarding her treatment in her substantive APS2 position, as a receptionist and administrative assistant. In particular, the alleged failure of the ICC to implement properly the terms of the various experts, who examined Ms Sluggett and her workplace. It is Ms Sluggett’s case that the various recommendations made by these experts have either been ignored; or either ineffectively of cynically put into effect. This seems to be the “snow balling” to which Ms O’Connor alluded.
211. In failing to implement properly these various recommendations, in her case, Ms Sluggett has focussed on the following issues as being of primary importance. How she was expected to deal with the post; the telephone system she was required to operate; her workstation, particularly the chair mat and wheeled chair provided to her; the requirement she move within the office; and how she was to answer reception and deal with deliveries, particularly of parcels.[71]
212. Finally, in the opening, Ms O’Connor detailed what appeared to be allegations of systematic harassment of Ms Sluggett in the workplace. In Ms O’Connor’s phrase “The Commonwealth managers [decided to] take [Ms Sluggett] on and she is treated appallingly.” This culminated in Ms Sluggett being placed on a re-deployment list.
213. Ms O’Connor formulated Ms Sluggett’s claim for damages, in the event unlawful discriminatory conduct was established, as follows:
     • Distress and humiliation;
     • An aggravation of her permanent disability;
     • Compensation for loss of wages from May 2008 onwards;
     • Compensation for a psychiatric injury;
     • Ongoing payment for physical and psychiatric treatment.
214. These latter heads of damage appear to flow from the following passage of Ms O’Connor’s opening:
     • “So it was no accident, although ATSIC was disbanded, she wanted to stay in an area where she was most effective and she felt that she could make difference and make a change. Not only has she been set up to fail, not only are her needs being ignored, not only has she been spoken to in an appalling way in the worksite, both on a day to day basis and then in what she thought were meetings where she could actually get her point put across. Not only that, she is then put on a redeployment list and then not only that, she now has no employment and a physical and a mental disability that has been impacted upon by the Commonwealth treatment of her.”
215. Dr Bleby is extremely critical of the lack of precision in how the evidence relating to Ms Sluggett’s claim for an aggravation of a permanent physical disability and infliction of a psychiatric injury has been led. In any event, it is his position that the court should only consider these issues, if and when, any specific incidents of unlawful discriminatory conduct against Ms Sluggett have been established.
216. In addition, it appears to be common ground between the parties that the specific form of disability, which Ms Sluggett suffers is post-polio syndrome. Accordingly, she must establish that she was unlawfully discriminated against, in contravention of the provisions of the DDA, on the grounds of this disability. Any issues arising in respect of the aggravation or even the creation of a psychiatric injury are matters to be considered pursuant to section 46PO(4) of the HREOC Act, if the court is satisfied that such unlawful discrimination has occurred.
217. In order to give some structure to the applicant’s somewhat diffuse claim, it seems both logical and fair to follow the categorisation of complaints and the dates pertaining to each which have been formulated by Dr Bleby. There are eleven such complaints, which require investigation by the court and the making of findings. They are as follows:

No	Date	Details	Applicable provision of DDA
1	July 2004 – 31 May 2005	Following abolition of ATSIC failure to map out Ms Sluggett	Section 5 – direct
2	1 July 2005 – November 2005	APS2 officer level 12, 33 Waymouth Street, Adelaide – failure to implement recommendations of Dewing & Lewis.	Section 6 – indirect
3	28 November 2005 – February 2006	Move to level 5, 33 Waymouth Street, Adelaide – inadequate work station	Section 6 – indirect
4	6 February 2005 – 13 February 2006	Interaction between Ms Sluggett and Mr Cox	Section 35 – harassment
5	22 February 2006 – 31 May 2006	Being sent on paid sick leave by Ms Corbisiero.	Section 5 – direct
6	31 May 2006 – 22 June 2006	Failure to implement Agus recommendations; failure to provide proper chair mat and headset and to repair the applicant’s chair. Hostile treatment from Ms Corbisiero. Response to applicant’s partial invalidity application.	Section 5 – direct. Section 35 – harassment.
7	26 July 2006 – 28 July 2006	Meeting involving Ms Sluggett, Ms Corbisiero, Ms Merrick, Mr Cohen and Ms Cowell. Threat of code of conduct proceedings. Refusal of chair for mail sorting purposes.	Section 5 – direct. Section 6 – indirect.
8	28 July 2006 – 10 May 2007	Failure to provide proper arrangements for the applicant to deal with mail. The direction that Ms Sluggett “meet and greet” job interviewees, given the weight and configuration of the ICC door. Provision of the applicant’s file to Ms Corbisiero. The review of action procedure.	Section 5 – direct. Section 6 – indirect.
9	16 May 2007 – 3 July 2007	Harassment by Ms Corbisiero.	Section 35 – harassment.
10	September 2007	Move to level 18, 11 Waymouth Street, Adelaide. Inappropriate duties. Failure to deal with OHS complaint.	Section 5 – direct.
11	28 August 2007 – 28 May 2008	Notification to applicant she was potentially excess to requirements leading to her retrenchment from public service.	Section 5 – direct.

Why the case has taken so long to be completed

218. Ms Sluggett’s application was initially allocated five days for final hearing, commencing on 16 November 2009. This was after two earlier five day trial listings, in 2009, had been vacated because the matter was not ready to proceed and further attempts at alternative dispute resolution were being attempted.
219. In the light of subsequent events, the estimate of five days proved to be woefully inadequate. One of the difficulties, which presented itself during the hearing, was that, due to her post-polio condition, Ms Sluggett tires quickly. Accordingly, she was accorded regular rest breaks during the proceedings and the hearing days often ended early, particularly in hot weather. From time to time, if she was feeling unwell, the hearing was deferred for a day to enable Ms Sluggett to recuperate.
220. The events in respect of which Ms Sluggett makes complaint took place over the course of several years. As has previously been indicated, it was her position that she was subjected to systematic discrimination on an almost daily level. This of itself led to the prolongation of the proceedings.
221. Ms Sluggett herself is an inveterate note taker. In addition, as is common in all bureaucracy now days, the various actors in the case exchanged frequent emails with one another. The ease and speed of modern electronic communication encourage the creation of lengthy “email chains”.
222. Accordingly, the issues in dispute in this case created a plethora of documents – personal notes of Ms Sluggett; print outs of emails; and the documentary responses of various levels of the administration to matters raised by Ms Sluggett.
223. However, the major factor contributing to the length of the proceedings was the inchoate nature of Ms Sluggett’s complaint against the Commonwealth. This led the Commonwealth to examine every aspect of Ms Sluggett’s case to determine where her complaints of discrimination under the DDA precisely lay. Cross-examination of Ms Sluggett alone occupied eight days, after her evidence in chief took around four.
224. The matter was due to be finalised in mid-2010, when a fortnight had been allocated for the trial. Unfortunately, Ms Sluggett suffered a pedestrian accident and was not fit enough to resume the matter as scheduled. This meant that the hearing had to be postponed until early 2011.
225. Other difficulties arose involving counsel. The Commonwealth’s initial counsel, Ms Bean retired from the proceedings after November 2009, due to her appointment to the Administrative Appeals Tribunal. Senior counsel for the applicant, Ms O’Connor withdrew from the proceedings on 28 January 2011, when her instructions and those of solicitor retained by Ms Sluggett were withdrawn. This meant that Ms Sluggett herself had to cross examine the majority of the Commonwealth’s witnesses and prepare her own final submissions.

The witnesses

226. The standard of proof required to be applied in this case is governed by the provision of section 140 of the Evidence Act 1995, namely proof on the balance of probabilities. The section reads as follows:
     • “140 Civil proceedings: standard of proof
     • (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
     • (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
     • (a) the nature of the cause of action or defence; and
     • (b) the nature of the subject-matter of the proceeding; and
     • (c) the gravity of the matters alleged.”
227. Subsection 2 reflects what was said by Dixon J in Briginshaw & Briginshaw:[72]
     • “...reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
228. Neither the decision in Briginshaw nor section 140 of the Evidence Act have created a third standard of proof in Australian legal proceedings. Rather, what section 140 recognises is that the evidence necessary to establish a fact, on the balance of probabilities, will vary according to the nature of what is sought to be proved.
229. In Qantas Airways Limited v Gama[73] Branson J said as follows:
     • “The correct approach to the standard of proof in a civil proceeding in a Federal Court is that for which section 140 of the Evidence Act provides. It is approach which recognises ... that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.”

Branson J indicated that these circumstances could include the inherent gravity and unlikelihood of the particular fact in issue, of which proof was required.

230. In this case, I have had the opportunity to assess Ms Sluggett’s credibility at close quarter over very many days. Apart from Ms Cowell, she is the only person, who has been called to support her version of what was the nature of the work environment within the ICC at the time in question. In particular what were the factors at play which caused it to become so problematic from her perspective.
231. Ms Sluggett’s case is that she was the victim of a heartless and insensitive bureaucracy, which was deaf and blind to her obvious difficulties in the workplace. She paints a picture of a department plagued by systemic failings in respect of its inability to accommodate a person with her level of disabilities. Her complaints are detailed and encompass almost all aspects of her employment within the ICC from the date she arrived there.
232. On the other hand, the Commonwealth has called very many members of the managerial chain of command associated with the ICC, all of whom refute Ms Sluggett’s account of how she was treated within her workplace. In particular, those individuals, who have been alleged to have acted in a harassing and unprofessional manner toward Ms Sluggett vehemently refute the truth of those assertions.
233. I appreciate that it is Ms Sluggett’s case that there was and is a gross imbalance of power between her, as an individual, and the collective weight of the FaCSIA management. However the fact remains that she is unable to muster any person, from within her workplace, who supports her version of events. No explanation has been proffered as to why no-one from within the rank and file is willing to speak up on behalf of Ms Sluggett, given her claims of such egregious conduct against her, on a protracted basis, within the ICC.
234. In addition, Ms Sluggett’s history is one of a person, who is not reticent to bring complaints of discriminatory conduct concerning how she has been treated. Prior to the current proceedings, the most significant of these have been her complaints about her treatment at Flinders University and at ATSIC in the late 1990’s. Neither of these complaints were found to have any substance after each had been subject to detailed examination by an independent authority.
235. It is the submission of Dr Bleby that the court is entitled to have regard to these matters in assessing Ms Sluggett’s overall credibility in the current proceedings, particularly her propensity to make complaints of discriminatory conduct towards her. Certainly the evidence does indicate that Ms Sluggett has made very many complaints of discriminatory conduct and on several occasions the investigators of these matters have been critical of her behaviour in respect of these complaints, which have found to have been without substance.
236. Dr Bleby submits that this behaviour is indicative of the fact that Ms Sluggett has a querulous personality and a propensity to attribute setbacks in her life to the malign influence of others rather than circumstance. In addition, he would categorise her as a person who is prone to utilise otherwise legitimate mechanisms for complaint to secure her own ends, which include the intimidation of others. Essentially, he asserts she is a past master of using the bureaucracy to her advantage.
237. Before turning to a comprehensive analysis of each of Ms Sluggett’s grounds of complaint, I will detail the various witnesses involved in the proceedings and make general observations regarding my findings as to their overall credibility.
238. Lorraine Merrick was the deputy manager of the ICC from 2004 until Ms Sluggett left FaCSIA in April of 2008. Accordingly, her involvement with Ms Sluggett was long term. She denies the truth of many assertions involving her (Ms Merrick’s) actions, which have been made by Ms Sluggett.
239. The impression I derive from Ms Merrick’s evidence is that she was initially friendly towards and supportive of Ms Sluggett. She arranged training for Ms Sluggett, in Canberra, in mid-2005. However, as time progressed, she became frustrated at what she perceived to be Ms Sluggett’s unreasonable and intransigent attitude towards performing the duties which had been allocated to her. I assess Ms Merrick to be a truthful witness. Where there is a divergence between her evidence and Ms Sluggett’s, I prefer Ms Merrick’s evidence.
240. Fevronia Plomaritis was the manager of the ICC from 21 March 2005. She ceased this role in January 2006 and after this time ceased to have any professional involvement with Ms Sluggett. She was Ms Sluggett’s principal manager for this period.
241. Ms Plomaritis and Ms Merrick were involved with Ms Sluggett when she moved from her role as a researcher at the ATSIC Regional Council to the APS registry officer position at the ICC following the abolition of ATSIC. Ms Plomaritis does not dispute that, whilst at the Regional Council Support Unit, Ms Sluggett had been undertaking higher duties at the APS6 level.
242. In contrast to Ms Sluggett, Ms Plomaritis asserts that Ms Sluggett exhibited hostility towards her and Ms Merrick during meetings scheduled to discuss arrangements for Ms Sluggett to transition into the APS2 position. Ms Plomaritis has deposed that Ms Sluggett made it clear to her that she (Ms Sluggett) considered that she was better suited to work at a higher level than APS2. Against this background, Ms Plomaritis asserts that she perceived Ms Sluggett to challenge and question the motivation for any direction which was given to her.
243. I found Ms Plomaritis to be an efficient and professional public servant. I found her to be frank in her evidence. She has been a member of the Commonwealth Public Service for twenty-one years and has held managerial positions since 1999. I do not disbelieve her evidence in respect of the difficulties, which she says she encountered with Ms Sluggett in the workplace at the ICC.
244. In particular, Ms Plomaritis deposes that she and Ms Merrick made every effort to accommodate Ms Sluggett’s needs, however Ms Sluggett herself “found fault with almost every effort or change made and for the most part the applicant was extremely uncooperative with managers during this process.”[74] The evidence of Ms Plomaritis is that she found Ms Sluggett to be difficult and manipulative.
245. In terms of her general experience of Ms Sluggett, whilst she was her direct manager, Ms Plomaritis deposed as follows:
     • “I personally observed that from the time the applicant was advised that she would be returning to her nominal APS 2 level, her attitude and behaviour in the workplace changed markedly and became of increasing concern to me. I found it very difficult to engage with the applicant in any discussion around this issue, particularly with respect to the duties she was to perform. During those conversations I was able to have with the applicant, I found her to be uncooperative and negative, and she consistently questioned and challenged the motives and agenda of management.
     • I can also recall that I found it very difficult to progress with any consistency issues regarding the applicant’s workplace concerns because the applicant was absent from the workplace for very long periods of time.”[75]
246. Having considered the evidence of Ms Sluggett, particularly during her extensive cross examination, I accept Ms Plomaritis’ account of her involvement with Ms Sluggett at the ICC. I consider Ms Plomaritis to be a more reliable witness than Ms Sluggett.
247. Tristan Cox, in conjunction with Ms Merrick, was appointed to manage the ICC after the departure of Ms Plomaritis (January 2006), until the new manager Susan Corbisiero commenced her duties on 13 February 2006. Accordingly, his professional role with Ms Sluggett was limited to a period of a few weeks.
248. Mr Cox joined the Australian Public Service in 2002. My impression of him was that he was enthusiastic about his career. As such, he is the type of manager who would want to sort things out and get to grips with any potential problems. In managerial jargon, he is a pro-active manager.
249. Ms Sluggett has alleged that Mr Cox subjected her to harassment at various meetings held between 6 February and 8 February 2006. It is a serious allegation to make against a professional public servant. On balance, I consider that Mr Cox’s evidence in respect of the matters is likely to be more reliable than Ms Sluggett’s. This is particularly so given that her own contemporaneous and written notes do not accord with her more recent evidence provided for these proceedings.
250. Ms Corbisiero became the manager of the ICC on 13 February 2006. As such, she had principal managerial responsibility for Ms Sluggett until 9 July 2007. Again, to utilise managerial jargon, she was Ms Sluggett’s line manager.
251. On this latter date, a decision was made by Heather Coleman, who was then the Deputy State Manager of the Adelaide office of FACSIA, that due to the conflictual nature of the ICC office, henceforth Ms Sluggett would report to Ms Merrick or, in her absence, to Kira Kudinoff rather than to Ms Corbisiero.
252. Ms Corbisiero does not have a long history of working for the Commonwealth. In fact, the ICC managerial role was her first experience of the public service. At the present time, she is employed in a managerial role at a research institute associated with the University of South Australia.
253. Ms Corbisiero was a tense witness. During her cross examination by Ms Sluggett, she broke down into tears and the proceedings had to be adjourned for half an hour so that she could regain her composure. It is interesting to note that Ms Sluggett was also upset at this time. Ms Corbisiero apologised for what she regarded as lapse of professionalism and said words to the effect that she had promised herself she “was not going to let Chandra upset” her again.
254. This incident did not cause me to have any view other than that Ms Corbisiero was a reliable witness. It did however indicate to me how difficult it was for the managerial team of the ICC to deal with the issues raised by Ms Sluggett’s behaviour in the work environment. I do not consider it to be a hyperbole to describe Ms Sluggett’s behaviour as being passive-aggressive.
255. Ms Corbisiero deposed as follows in her affidavit material:
     • “The reality is that during my tenure as ICC Manager, most of the applicant’s time in the office was spent typing long personal emails and complaints, photocopying personal documents, researching her claims on the internet and talking on the telephone to HR in Canberra or others about her issues. The applicant appeared quite capable of carrying out these administrative tasks when it came to her own personal matters, however she consistently resisted any attempt to get her to perform the duties of her Registry Officer position.”[76]

I accept this evidence.

256. The effect of Ms Corbisiero’s evidence is that she perceived herself to be the victim of Ms Sluggett’s intimidatory behaviour, in the workplace, rather than vice versa. Her evidence is that Ms Sluggett would show her displeasure at how she perceived herself to have been treated by actively ignoring the tasks which had been allocated to her.
257. Rather Ms Sluggett preferred to pursue activities which were of personal interest to her, not the least of which was frequent note taking. Ms Corbisiero’s perception was that her every action and statement was subject to scrutiny by Ms Sluggett. Ms Corbisiero deposes that she found this very difficult to deal with and extremely frustrating. She acknowledges that, on at least one occasion, she did not respond appropriately to the frustration she felt.
258. During the course of proceedings, some of Ms Sluggett’s contemporaneous notes have come to hand. Their existence and content support Ms Corbisiero’s assertion that Ms Sluggett went to some length to memorialise what she perceived to be the shortcomings of the management of the ICC. It seems to be the case that everyone in the ICC perceived that they had to walk on egg shells, so far as Ms Sluggett was concerned.
259. I do not disbelieve Ms Corbisiero’s account of the atmosphere in the ICC, which can properly be described as being toxic. On balance, it seems to me to be more likely than not that it was Ms Sluggett’s behaviour and attitude, which substantially created this difficult workplace situation, to which Ms Corbisiero and others on the ICC management team responded.
260. This is an important finding in the context of Ms Sluggett’s complaint that it was she who was the subject of harassment from Ms Corbisiero. To the contrary, I am of the view that, from time to time, it was Ms Sluggett who was intent on undermining Ms Corbisiero through her behaviour in the ICC office, rather than vice versa.
261. Paul Cohen was Ms Sluggett’s rehabilitation case manager from May 2006, when she returned to work. As such, he was the instigator of the ergonomic assessment of Ms Sluggett’s workplace by Ms Agus and was involved with the implementations of Ms Agus’ recommendations in regards to it. He was subsequently involved with the obtaining of other expert reports in regards to the suitability of Ms Sluggett’s working conditions.
262. I found Mr Cohen to be an honest and conscientious public servant. I reject the notion that he was callous or disinterested in Ms Sluggett’s difficulties in the workplace stemming from her disability. In my view, he did his best to ensure that her disabilities were accommodated and to ensure that the relevant managers within FaCSIA had a proper level of professional advice in respect of them.
263. Mr Cohen himself characterises Ms Sluggett as being unwilling to engage constructively with him in any discussions between the two regarding Ms Sluggett’s duties at the ICC.[77] The effect of his evidence is that from the stage of his first meeting with her, Ms Sluggett was oppositional and difficult to deal with. I accept this evidence. This constitutes a significant finding. These behavioural characteristics of Ms Sluggett must form part of any required comparison between the treatment accorded to Ms Sluggett and that which would have been accorded hypothetically to a person without disabilities in the same circumstances as Ms Sluggett.
264. Wesley Slater is deceased. He was not cross examined in these proceedings but his affidavit was tendered into evidence without objection by Ms Sluggett. In 2006, Mr Slater was a senior personnel manager at FaCSIA’s Tuggeranong Office. He was tasked to deal with Ms Sluggett’s email of 3 August 2006 directed to the permanent heads of both FaCSIA and the OIPC, in which she complained of Ms Corbisiero’s conduct towards her.
265. Mr Slater refutes the suggestion, made by Ms Sluggett that FaCSIA had formally determined to review her conduct. Rather it was his position that, after consultation with all concerned, it had been decided to hold a Review of Action Inquiry, as an alternative to a formal Code of Conduct Investigation under the provisions of the Public Service Act.
266. The persons who may seek such a Review of Action are non senior executive service public servants. They are entitled to seek a review of actions or decisions which have implications for their employment within the Public Service. Given this state of affairs, Ms Sluggett was considered to be the instigator of the Review of Action, although it is clear that Mr Slater suggested it first. It is also axiomatic, from the contents of Ms Sluggett’s email to the Heads of FaCSIA and the OIPC, that she was dissatisfied with decisions made by Ms Corbisiero and Mr Cohen concerning her.
267. Accordingly I do not think that Mr Slater can be said to have done anything improper in his facilitation of the Review of Action. Certainly it would be incorrect to characterise the action as an attempt to intimidate Ms Sluggett in any way. The normal protocol for such review procedures is that an independent person is appointed to conduct the review and make recommendations.
268. The person nominated to conduct the Review of Action was Julie Baker-Smith. She was directed to report to Janet Lawless. Ms Lawless has been a Commonwealth Public Servant since 1986. In 2006 she held a position in FaCSIA national office in Canberra. As such her relationship with the Adelaide ICC office was described by her as being a “most tangential” one. For this reason she was charged with responsibility for overseeing the Review of Action.
269. Ms Baker-Smith’s report was critical of Ms Sluggett’s “workplace behaviour” in the period since August of 2005. Ms Sluggett in turn is critical of the methodology of the report writer as endorsed by Ms Lawless, particularly that Ms Baker-Smith was provided with an incorrect duty statement pertaining to Ms Sluggett and she (Ms Sluggett) was given insufficient time to respond to Ms Baker-Smith.
270. I do not accept these criticisms. Much time was spent during the case on several duty statements which related to the activities of an APS2 registry officer in both the ICC and FaCSIA. From time to time these duty statements were modified to take into account changes in procedures within these offices and also because of changes to the functions and responsibilities which were allocated to Ms Sluggett. However, to my mind, none of these changes was dramatic.
271. Ms Sluggett, throughout her evidence, seems to have regarded a duty statement as being a prescriptive document, which set out exhaustively the responsibilities allocated to the employee nominated by it. Accordingly, it seemed to be her position that if reference was made to any duty statement, which was not directly referable to her, it was in some way unfair. The impression which she wished to convey being that she was subject in some way to a moveable feast of ever changing duties arising from arbitrary changes to her duty statement.
272. Regrettably I regard Ms Sluggett’s fixation with duty statements as being indicative of a propensity towards obfuscation on her part. A significant aspect of her case involved her identifying differences of a trivial nature between duty statements, which were essentially the same and which were in any event generic in nature.
273. Ms Lawless said as follows in respect of the duty statements she examined and as to what was actually forwarded to Ms Baker-Smith:
     • “...because in my mind, a duty statement is an indicative list of the kinds of duties to be followed as a guide only for staff as to what’s being asked of them to do. So when I looked at the various bits of duty statements that were around, there were so many commonalities that in the event, I don’t think it made that much difference, because no duty statement sets out absolutely everything anybody does.”[78]

I accept this evidence as to how the vast majority of members of the Commonwealth Public Service regard duty statements, namely that they are intended to be generic or indicative documents of the work activities allocated to the person applicable.

274. I do not think the evidence supports Ms Sluggett’s criticism that the Review of Action procedure was in some way flawed because she was not provided with sufficient time to respond to it. It does not seem to me to be unreasonable that Ms Lawless should put a timeframe on when Ms Baker-Smith should report to her.
275. This deadline was 9 October 2006, two months after Ms Baker-Smith was directed to begin her investigations. Ms Sluggett was interviewed by Ms Baker-Smith on 31 August 2006. Thereafter Ms Sluggett failed to comply with four subsequent dates by which she was requested to provide further written submissions to Ms Baker-Smith.
276. Allison Denny-Collins is a senior Commonwealth Public Servant. In 2007 she held the position of HR Advisor Management Support and Advisory Section with the FaCSIA People Branch based in Canberra. In May of 2007, she was delegated by Mr Andrew Wood, the Group Manager of FaCSIA’s Corporate Support Group, to investigate whether Ms Sluggett had breached the APS Code of Conduct, as a result of matters raised by Ms Corbisiero, following the completion of Ms Baker-Smith’s report.
277. Ms Denny-Collins did not complete these investigations. She suspended her inquiry, when she learnt that Ms Sluggett had made a complaint of harassment against Ms Corbisiero. She left FaCSIA prior to the conclusion of this harassment complaint. Accordingly her role in these proceedings was a peripheral one.
278. Julia Gregory was employed in the ICC office during 2007 and was present on 16 May 2007, the occasion on which Ms Sluggett alleges Ms Corbisiero harassed her in respect of an unanswered telephone. Ms Gregory was not required to attend court for cross examination by Ms Sluggett. Ms Gregory’s affidavit describes the incident as being a “heightened one” but she does not corroborate Ms Sluggett’s version of it.
279. Following claims of harassment of her, by Ms Corbisiero, Ms Sluggett arranged an appointment for herself with Heather Coleman in mid 2007. At the time, Ms Coleman was the Deputy State Manager of FaCSIA. Ms Sluggett implies that Ms Coleman was dismissive of the issues she (Ms Sluggett) raised with her and failed to take any active steps in regards to them.
280. I reject this contention. The email record preserved by Ms Coleman indicates that Ms Sluggett advised her that she was not making a formal complaint of harassment within the Department itself but rather she preferred to pursue avenues of complaint available to her through HREOC. Notwithstanding this decision on Ms Sluggett’s part, Ms Coleman arranged for alternative reporting arrangements to occur within the ICC. It was arranged that Ms Sluggett would report to Kira Kudinoff, a FaCSIA staff member, in lieu of Ms Corbisiero.
281. In late 2007, Jan Shaw was a public servant employed by FaCSIA, within its human resources area in Adelaide. At this time she oversaw a business support review of FaCSIA, which included the ICC. The purpose of this review was to determine appropriate staff levels given the recent co-location of the ICC within FaCSIA’s main Adelaide Office. The review was conducted by an independent firm of consultants, Yellow Edge. Ms Shaw also had a role in managing Ms Sluggett, given the poor relationship between her and Ms Corbisiero.
282. Ms Shaw presented as a responsible and professional public servant. Her evidence, which I accept, is that by the time the ICC moved in September of 2007, Ms Sluggett’s duties within the ICC were “minimal” as her tasks had been absorbed into the business support area of FaCSIA and so were performed by other staff members.
283. Ultimately, one of the results of the review was that it was found that Ms Sluggett’s position was otiose. Ms Shaw and Ms Kudinoff advised Ms Sluggett that she was excess to the Department’s requirements. The two engaged an independent career consultant to assist Ms Sluggett to find alternative employment options for herself.
284. One of the strands of Ms Sluggett’s case is that, after she had been found excess to staffing requirement and the redundancy process had been put in train, there was a brief rapprochement in how she was treated by FaCSIA, in that she was finally provided with proper working conditions. The implication being that she is not a person who is inherently difficult to deal with but is one who can be reasonably accommodated.
285. The Commonwealth’s position is that this assertion by Ms Sluggett that she was finally happy and satisfied in her working conditions if further evidence of her propensity to be manipulative, disingenuous and contrary. Essentially it is said that this assertion is made only to advance Ms Sluggett’s case against the Commonwealth. This issue, to a large extent, turns on my assessment of the credit of Ms Sluggett.
286. Regrettably, it is necessary for me to make a number of harsh findings regarding Ms Sluggett’s credibility and behaviour during the period she was employed in the ICC. I express this regret because in many ways Ms Sluggett is an admirable person. There can be no doubt that she suffers from a significant level of disability. In those circumstances, it is greatly to her credit that she has been able to obtain tertiary qualifications. She is both an intelligent and determined person.
287. I can therefore appreciate why it was a blow to both her morale and aspirations that, with the abolition of ATSIC and its absorption by mainstream government departments, she was not able to pursue her occupational interests in research, particularly in the field of family violence in the indigenous community.
288. Ms Sluggett views herself as an advocate for those with disabilities, herself included. She is entitled to be such an advocate. The world is a better place for the efforts of agitators and advocates in the past. However, in my opinion, Ms Sluggett’s view of herself as an advocate for the disabled has had consequences for her objectivity as a witness in her own cause. It is a misconception for her to believe that the Commonwealth was under an obligation to discriminate positively in her favour because of her disability.
289. This misconception has led Ms Sluggett to feel hard done by in her dealings with the various Commonwealth Departments, which became her employers, following the demise of ATSIC. In turn, it has caused her to exercise questionable judgment in the manner in which she chose to interact with the managerial representatives of these departments.
290. I can understand why Ms Sluggett would feel that an administrative position was not suited to either her skills or qualifications. However the fact remains that her substantive position, within the Public Service, at the time she was transferred, on the demise at ATSIC, was as an APS2. The Commonwealth was under no duty to discriminate positively in her favour to find a position to which she aspired or which she regarded as a perfect fit for her.
291. Ms Sluggett was dissatisfied that the Commonwealth, through its various servants, did not act more proactively to find her the research position within the Public Service which was her preference. Against this background, I find that Ms Sluggett behaved in the workplace in a manner that was a mixture of caprice and passive intimidation of others and which was intended by her to compel the Commonwealth to transfer her to a position, which she believed would be more commodious to her.
292. One of the significant problems arising from the manner in which Ms Sluggett has presented her case is that she has complained about a multiplicity of matters involving alleged unfair or improper conduct against her. These have ranged from the apparently trivial to the potentially serious. The respondent has been compelled to troll through all of these complaints at length in its cross examination of Ms Sluggett.
293. As such I had the opportunity to observe Ms Sluggett at close quarters over many days as she answered questions put to her. I found her to be argumentative at times, evasive at others. I do not regard her as a candid witness.
294. In these circumstances, I have grave concerns about the reliability of much of Ms Sluggett’s evidence in the proceedings, which was extensive, involving very many days of crossexamination about incidents spread over several years. As such, I found the evidence of the various other public servants, who gave evidence in respect of what occurred at the ICC in the period in question, to be more reliable than Ms Sluggett.
295. Apart from her medical witnesses and herself, the only other witness whom Ms Sluggett called to give evidence was her friend, Merelyn Cowell, who attended a meeting with Ms Sluggett, Mr Cohen, Ms Corbisiero and Ms Merrick at the ICC on 28 July 2006. Ms Cowell was an honest witness but I do not consider her to be an impartial one. She is closely aligned with Ms Sluggett, whom she has known for many years.
296. In addition, when she attended the meeting in question, Ms Cowell was unaware of the difficult and tense history, which the ICC management perceived it had in dealing with Ms Sluggett up to that stage. She had only received information from Ms Sluggett, who is not likely to have provided her with an accurate history of what had preceded the meeting.
297. One example of this is that Ms Cowell deposes that Ms Sluggett had informed her that she had been “demoted” when ATSIC had been disbanded. Another is that she had been told by Ms Sluggett that she (Ms Sluggett) had been the subject of “harassment” at the ICC. Such comments are not likely to assist Ms Cowell to be a dispassionate or objective observer of what happened at the meeting.
298. I accept the meeting of 28 July was difficult and was, to a certain extent, confrontational. This was because Ms Corbisiero, Mr Cohen and Ms Merrick felt that they had no other alternative but to speak strongly to Ms Sluggett about what they perceived to be her unacceptable behaviour in the workplace. Ms Cowell was unaware of this history, other than from what Ms Sluggett had told her and, in my assessment, Ms Sluggett’s account is likely to have been a highly selective one.
299. In my view, Ms Cowell’s evidence is of marginal utility. She attended but one of many meetings which occurred between Ms Sluggett and management, albeit a significant one. Ms Cowell was unaware, in an objective sense, of what was the overall context of the meeting. It was a difficult and heated meeting.
300. This was because the topics for discussion were difficult and heated from both the perspective of management and Ms Sluggett and came after a considerable history between the two, of which Ms Cowell could not have been fully aware. As such, I am unable to extrapolate from Ms Cowell’s impressions of the meeting that Ms Sluggett was subject to endemic harassment and unfavourable treatment, at the ICC, as Ms Sluggett contends.
301. Apart from Ms Sluggett, Ms Cowell and the various Commonwealth public servants outlined above, the only other witnesses who gave evidence in the proceedings before me were medical ones. In particular Ms Sluggett called evidence from her treating rehabilitative physician, Dr Nigel Quadros and from her treating psychiatrist, Dr Richard Thompkins.
302. The Commonwealth called its own expert psychiatrist, Professor Robert Goldney, who examined Ms Sluggett in mid December of 2008. The evidence of these three expert witnesses becomes relevant if the court finds that the Commonwealth, through its various agents, has unlawfully discriminated against Ms Sluggett and accordingly it becomes necessary to calculate any damages to which she is entitled.
303. Dr Quadros is relevant to the issue of whether the circumstances of Ms Sluggett’s employment at the ICC have in some way aggravated her level of disability. Dr Thompkins and Professor Goldney are relevant in assessing whether any unlawful discriminatory conduct on the Commonwealth’s part have resulted in Ms Sluggett sustaining some form of psychiatric injury or has otherwise exacerbated any pre-existing mental disability from which she suffered during her employment at the ICC.
304. Accordingly, the expert medical evidence remains peripheral to the Court’s deliberations until such time as it has been established that the Commonwealth has acted unlawfully towards Ms Sluggett. Notwithstanding this state of affairs, it is appropriate to make some briefs comments about the medical evidence.
305. Both Dr Quadros and Dr Thompkins, in making their respective assessments of Ms Sluggett’s medical condition and the factors which have impacted upon it, must rely significantly on the history given to each of them by Ms Sluggett, particularly in terms of what happened to her in her workplace and how she was treated there. I am concerned that Ms Sluggett is not a completely reliable historian in respect of these matters. Accordingly, it is my view that the applicant’s expert medical evidence must be treated cautiously.

Ms Sluggett’s specific complaints

a) July 2004 – Ms Sluggett’s transfer to the ICC – failure to be mapped out

306. In April 2004, the Commonwealth government announced its intention to abolish ATSIC and ATSIS. As a corollary of this decision, other Commonwealth departments were required to provide services to indigenous citizens, which had been previously been provided by ATSIC and ATSIS. Necessarily this change also necessitated a significant reorganisation of the bureaucracy relating to indigenous affairs.[79]
307. Concurrently with its decision to abolish ATSIC, the Commonwealth Government announced that it would inaugurate a new Office of Indigenous Policy Coordination to provide it with policy advice in respect of the “mainstreaming” of services to indigenous Australians. The regional council arrangements of ATSIC were to continue to 30 June 2005. The ICC was a unit within OIPC.
308. The applicant was personally affected by these changes to the “machinery of government”, as she was transferred from ATSIC to what was then DIMIA and placed in the ICC. She reported to Ms Merrick, who in turn reported to Ms Plomaritis.
309. Prior to this change, Ms Sluggett had been employed as a member of the Regional Council support team within ATSIS. She was involved in providing assistance to the Regional Council of ATSIC, in South Australia, particularly in respect of its family violence strategy. She continued with these duties until the Regional Council was formally disbanded on 30 June 2005. Up until this date, the Regional Councils were continued to provide advice to government about indigenous matters within their regions.
310. From 1 July 2005 onwards, the Commonwealth Government inaugurated a network of twenty-two ICC’s, to be coordinated by the OIPC and staffed by mainstream government agencies. Ms Plomaritis became the manager of the Adelaide ICC on 21 March 2005. Part of her role was to implement national decisions regarding the staffing and functions of the ICC, from 1 July 2005 onwards, after the formal abolition of ATSIC.
311. In the light of the government’s decision, Mr Gibbons, then CEO of ATSIC wrote to all ASIS staff on 15 April 2004. Under the heading “Staff Movements” he wrote as follows:
     • “The Prime Minister is responsible for settling the new administrative arrangements concerning which agencies will become responsible for specific ATSIS/ATSIC programmes and functions. Until he determines this, we are unable to give details to staff about which agency they will be transferred to. Staff should not assume where functions will go, or provide information to other agencies until we have confirmation of the Government’s decisions in this regard.
     • There are some important principles which apply to staff in situations such as this.
     • ➢ The first principle is that “staff follow function”. Under this principle, staff move with their function and their employment status remains the same (ie ongoing or non-ongoing; trainees and graduates; etc).
       • - This means that, as it is decided which agency is to be responsible for a particular programme/function, we will identify those staff who work on that programme/function in ATSIS at each of the National/State/Regional offices and transfer those staff to the receiving agency.
       • - Staff will be transferred under Section 72(1)(a) of the Public Service Act.
       • - Staff who work in Corporate areas will also be transferred to other agencies (on a proportional basis).
     • ➢ Some situations may not be clear cut, in terms of the identification of staff – in particular where staff currently manage, or are involved in the administration of, a number of programmes/functions. However, every effort will be made to arrange a transfer based on the highest proportion of workload associated with a particular function.”[80]
312. It is common ground between all concerned that at the time of these administrative changes in respect of the provision of services to Indigenous Australians, Ms Sluggett’s substantive position within the Commonwealth public service was at the APS2 level. However, during the latter phase of the Regional Council, Ms Merrick concedes that Ms Sluggett was undertaking shared higher duties at the APS6 level, with another officer, who was engaged substantively at the APS5 level. This arrangement had been put in place by the previous ICC manager.
313. A significant element of Ms Sluggett’s case is that she was unlawfully discriminated against during the transitional phase when administrative functions were transferred from ASIS to the ICC. In particular, her request to be “mapped out” to another Commonwealth department, in line with her needs and abilities, was refused. In order to succeed with this aspect of her case, it will be necessary for Ms Sluggett to demonstrate that she was treated less favourably, in this situation, than a person without her disabilities.
314. The evidentiary basis for Ms Sluggett’s claim of discrimination rests on an email she wrote to Ms Plomaritis on 14 April 2005. It reads as follows:
     • “I would like to be mapped out to another agency as I am currently part of RSU and because RSU cease to exist beyond 30th June 2005. I have qualifications in Bachelor of Social Work/Social Administration (post graduate), undergraduate major in Sociology & Asian studies, and studied in Aboriginal Community Development. I have over 20 years of working, living and studying in Indigenous field. I am currently trying to finish my last subject in Graduate Diploma of Rehabilitation with speciality in Social research – have a minor thesis to complete, one that is very overdue.
     • My interest in Research, policy work, social work & rehab – in preferential order.
     • I am also going to discuss this matter with my Rehabilitation case manager in OIPC Canberra as accommodating my disability related needs is highly relevant. My disability includes – mobility impairment, pain management and muscle fatigue.”[81]
315. There were a number of discussions between Ms Sluggett on the one hand and Ms Plomaritis and Ms Merrick on the other, prior to and after this email, as to what would be Ms Sluggett’s role in the ICC. One of the implications of the government’s decision to mainstream indigenous programs was that the ICCs nationally would require fewer staff members. It was recognised by the relevant union, the CPSU, that the role of staff members transferred to the ICCs was in the developmental stage and would “depend largely on the particular local circumstances and needs.”[82]
316. Ms Sluggett was assigned higher duties, as an APS6, from 14 January 2005, until the Regional Council ceased to exist on 30 June 2005. Ms Merrick describes Ms Sluggett’s role at this time as working on the Regional Council’s family violence plan, which involved preparing poster packs and arranging DVDs, which she would mail out to various organisations. In addition, she carried out other administrative functions in regards to the policy, including telephoning the recipients of the domestic violence information. It is Ms Merrick’s evidence, which I accept, that Ms Sluggett never complained to her about any difficulties she had in performing these duties.
317. Neither the letter from Mr Gibbons nor the information provided by Ms Sluggett, which she received from the CPSU, alludes specifically to the situation pertaining to a person who was “acting up” in higher duties, at the time of the transition, as was Ms Sluggett. Rather, Mr Gibbons indicated that the employment status of transitioning staff would remain the same. During the period of the transition, Ms Sluggett remained substantively an APS2 employee. She was found employment, at this level, in the ICC.
318. I do not consider it an overstatement to say that Ms Sluggett was aggrieved that she was placed in the position of an APS2 registry officer at the Adelaide ICC. She deposed that this position was “not commensurate with [her] skill, training and abilities.[83]
319. This is also the tone of her email to Ms Plomaritis requesting to be “mapped out”. In my view, this sense of personal dissatisfaction, stemming from the demise of the Regional Council and the loss of her higher duties position, is a significant factor in explaining Ms Sluggett’s subsequent behaviour in the workplace and attitude towards management.
320. Certainly this is Ms Merrick’s view. She deposes that it was only when her return to an APS2 level was imminent that Ms Sluggett raised issues relating to the impact of her disability on her capacity to perform the duties required. It is also Ms Merrick’s evidence that Ms Sluggett had not previously complained about having to use the telephone or carry out basic administrative tasks, whilst she had been in her acting up position. I do not disbelieve Ms Merrick’s evidence in this regard.
321. Ms Sluggett asserts that she was the only staff member, who was not given alternate duties in line with her prior experience.[84] I do not accept that there is any factual basis to this assertion. I can find no evidence to indicate that Ms Sluggett was treated in any way differently to any other person who was transferred into the ICC from ATSIS. She was found a position commensurate with her substantive classification. As such, this cannot amount to discriminatory conduct on the part of the respondent.
322. Ms Sluggett’s evidence is that she was gravely concerned that she would not be able to manage the duties implicit in the APS2 registry officer role due to her disabilities. Ms Sluggett’s evidence is that she commenced doing APS2 duties around April of 2005. Ms Merrick’s evidence is that Ms Sluggett completed a paper on family violence issues, which she had commenced, whilst attached to the Regional Council, otherwise she answered telephones and performed basic administrative duties.
323. Leading up to August of 2005, there were discussions between Ms Sluggett and Ms Plomaritis and Ms Merrick as to what the features of the APS2 role were to be for Ms Sluggett in the ICC. Ms Sluggett was provided with a duty statement.[85] Ms Plomaritis characterises this duty statement as being generic in nature, relating to staff at the APS2 level across the whole of DIMIA. As such, it was open to revision in the light of circumstances pertaining at the time. Some of the duties in the statement, such as providing personal assistant services to the ICC manager; maintaining an office library; and managing office motor vehicles; were redundant at the Adelaide ICC.
324. I reject any suggestion that this duty statement was inflexibly or insensitively applied to Ms Sluggett, without any discussions with her. I also reject any suggestion that she was expected to undertake the duties of two people. To the contrary, it is the evidence of both Ms Plomaritis and Ms Merrick that Ms Sluggett was disinclined to perform any tasks assigned to her, within the ambit of the APS2 role, because it was not commensurate with her previous higher duties role and became difficult and obstructive as a result.
325. I accept this evidence, which is supported by contemporary written records maintained by Ms Plomaritis. In an email dated 5 July 2005, Ms Merrick wrote to Mr McMillan that Ms Sluggett had been advised on numerous occasions, both by herself and Ms Merrick that she would be expected to engage in duties consistent with an APS2 work level standard, which by example might include but be not limited to answering the switchboard, processing invoices and taking meeting minutes.
326. In this email, Ms Plomaritis also alluded to Ms Sluggett’s request to be mapped out. She indicated that this had been forwarded to the DIMIA national office for consideration but she had been advised by national office that “mapping out was not an option”. It was in these circumstances Ms Plomaritis raised with Ms Sluggett the possibility of her taking a voluntary retrenchment.[86]
327. This is one of the central evidentiary issues in the case. It is the position of Ms Plomaritis, supported by Ms Merrick, that Ms Sluggett was obstructive in regards to her transition to the APS2 role. On the other hand, it is Ms Sluggett’s position that neither Ms Plomaritis nor Ms Merrick were sensitive to her disability needs, which she constantly raised with them, to no avail.
328. Ms Sluggett’s position is at odds with an email from Ms Plomaritis sent to her on 22 August 2005, which reads as follows:
     • “I am somewhat perplexed about the purpose of your email with respect to the duties you will be undertaking henceforth. The majority of the duties associated with the Corporate Services APS2 position are of a general administrative nature and can, in the main, be performed from your workstation. Attendance to visitors at Reception is the exception and consideration is presently being given to this matter. As such, and with regard to your disability, I cannot see any further impact as there is no deviation in terms of desk work previously undertaken by you.
     • As Lorraine and I advised you during our last meeting, we have taken your disability into account in performing the mail functions associated with this role and have made alternative arrangements for mail delivery and collection. Therefore, none of the duties required of this position should have a further or negative impact upon your disability.
     • Lorraine will arrange an appointment with you during the course of the day to discuss on site mail handling training with Marg Carney.
     • Finally, I will again stress that the position you now occupy is consistent with the work level standards associated with an APS2 level.”[87]
329. Accordingly, I accept that the work environment of the ICC, so far as management and Ms Sluggett was concerned, was a difficult one from its inception. Ms Sluggett was perhaps understandably upset at her change of status but this was not attributable to the immediate management of the ICC. I also accept that the difficulties arising in the relationship between Ms Plomaritis, Ms Merrick and Ms Sluggett arose as a result of the hostility and dissatisfaction emanating from Ms Sluggett.
330. This placed Ms Plomaritis in a difficult position. Policy relating to the restructure resulting from the inauguration of the ICCs was the domain of the national office of DIMIA. The process required the rationalisation of staff. It seems to me that she did her best to accommodate the needs of all concerned within the parameters of her position.
331. Ms Sluggett is critical of the fact that she was personally offered a voluntary redundancy package in June of 2005, around about the time of her transition from the Regional Council Support Unit to the ICC.[88] The insinuation being that the offer was made as a cynical exercise to get rid of her, after she had raised issues to do with her disability and the problems she would encounter in fulfilling the APS2 Registry Officer position.
332. The offer was made after the national office of DIMIA had initially indicated that no voluntary redundancies were to be offered to ATSIC/ASIS staff members. In her affidavit material, Ms Sluggett puts her concerns as follows:
     • “... this offer [of a voluntary redundancy package] led me to question why I was the only person being offered a package at this time. Shortly after raising my concerns, other staff members were also offered packages.”[89]
333. Ms Plomaritis has a different view of the matter. She confirms that initially no voluntary redundancy packages were to be offered to former ATSIC/ATSIS staff because it was anticipated that all such staff would be able to be accommodated within the OPIC. However, the national office of DIMIA revisited this policy and voluntary redundancies were offered to former ATSIC staff who were of the view that they could not work within the new structure.
334. In these circumstances, it was Ms Plomaritis’ evidence, which I accept, that Ms Sluggett was not the only person who was offered a voluntary redundancy package around this time. It is also Ms Plomaritis’ evidence that it was Ms Sluggett who approached her about the possibility of such a package, which in any event Ms Sluggett elected to decline. Ms Plomaritis’ evidence is that she did not feel it was appropriate to discuss the circumstances pertaining to the offer of voluntary redundancy packages to other staff members subject to her direction with Ms Sluggett. Clearly this was an appropriate position for Ms Plomaritis to adopt.
335. The issue of the offer of the voluntary redundancy package is a small one in the overall scheme of Ms Sluggett’s complaints against the Commonwealth. However, in my view, it is instructive of her overall attitude towards the Commonwealth and her conduct in these proceedings generally. Ms Sluggett feels hard done by in terms of her employment relationship with the Commonwealth. As such, she has an inchoate sense of grievance against the Commonwealth and with its various employees and managers with whom she has had to deal.
336. This has led her to assign malign ulterior motives, wherever possible, to various Commonwealth officers – one of whom is Ms Plomaritis and the offer of the redundancy package – when the objective evidence indicates otherwise. Ms Sluggett infers that she was singled out to receive such a package. She was not. The next step Ms Sluggett takes is for her to insinuate that the offer of redundancy is attributable to her disability and the discriminatory attitude of the Commonwealth towards it.
337. However, the evidence indicates that Ms Sluggett’s was not the only offer of a voluntary redundancy package. Rather Ms Sluggett’s package was part of an unexceptional process, which she was under no compulsion to accept. Yet the incident is offered up as part of Ms Sluggett’s inchoate complaint of unlawful behaviour on the part of the Commonwealth. The implication being that the Commonwealth was in some way intent on conspiring against her in this period and afterwards.
338. Ms Sluggett’s complaint is that she was directly discriminated against the process of the transfer of staff from the abolished ATSIC/ATSIS to the newly inaugurated ICC operated under the auspices of DIMIA. The complaint rests on three separate but inter-related grounds – she was not mapped out to another Commonwealth department; she was placed in the APS2 registry officer role; and she was offered a voluntary redundancy package. This discriminatory behaviour is sheeted home to the actions of Ms Plomaritis and Ms Merrick.
339. In order to establish any unlawful discriminatory behaviour, Ms Sluggett must establish that the treatment she was accorded was different to the treatment which would have been received by a non-disabled person, in the same circumstances. Clearly, Ms Sluggett was not the only person whose employment circumstances were affected by the government’s decision to abolish ATSIC. Many Commonwealth public servants had to be reallocated roles within other government departments.
340. This was a difficult process because one of the government’s intents was to rationalise its resources allocated to indigenous affairs. The decision as to whether staff members from ATSIC/ASIS were to be mapped out was one which was within the domain of the DIMIA National Office. The evidence indicates that national office had a policy of not pursuing mapping during the process of transferring staff into the OPIC.[90]
341. The applicant was placed in a position, at the ICC, that was commensurate with her pre-existing substantive level within the Public Service. At the time she had been performing higher duties, however there is no evidence that she was singled out, in any way, in respect of the position which was allocated to her.
342. It seems likely that the applicant was upset that she was unable to continue her role with the Regional Council Support Unit, particularly in terms of facilitating its family violence policy. She was able to continue with this work in the transitionary period. However, it was also anticipated that it would come to an end. This was unrelated to the applicant’s disability.
343. The applicant was not the only person offered a voluntary redundancy package. These packages came about because the ICCs nationwide had potentially more employees than positions to fill. In any event, Ms Sluggett elected not to accept the package and was not placed under any compulsion to do so. As such, her employment circumstances, as a public servant, required her to transfer from ATSIC to the ICC and the treatment received by her from DIMIA appear no different to any other transferring employee of ATSIC.
344. I accept that the issue of what role Ms Sluggett would have in the ICC was the subject of extensive discussion between Ms Plomaritis, Ms Merrick and Ms Sluggett. However, I also accept that Ms Plomaritis had limited options to present to Ms Sluggett. Clearly, Ms Sluggett would have preferred to have remained in a research role and made it plain that this was her preference.
345. However, Ms Plomaritis was under no obligation to find such a role for Ms Sluggett, who had previously performed functions at the APS2 level, which included administrative ones. In these circumstances, it is not the case that Ms Sluggett was allocated the APS2 position because of her disability or was treated differently to other employees in the same circumstances. Her transfer was a routine piece of administration.
346. I accept Ms Plomaritis’ evidence that the duty statement that was proffered to Ms Sluggett was a generic one, which specified the types of duties Ms Sluggett was expected to fulfil. Ensuing discussions about the duty statement made it clear that its contents were not intended to be prescriptive, so far as Ms Sluggett was concerned. As Ms Plomaritis’ email of 22 August 2005 indicates, she was aware of Ms Sluggett’s disability and was willing to take it into account in how Ms Sluggett performed the duties allocated to her, particularly in regards to mail functions.
347. I am satisfied that Ms Plomaritis did her best to accommodate the applicant’s disabilities, on the basis of the evidence, which was then available to her. This evidence was that the majority of tasks allocated to Ms Sluggett would be of a general administrative nature, which could be performed from her work station, as had occurred previously during Ms Sluggett’s working career. Ms Plomaritis anticipated that other arrangements would have to be made in respect of reception and mail duties.
348. Accordingly, I do not believe that the evidence indicates a person, who was not disabled, but who was otherwise in the same circumstances of Ms Sluggett, namely being at a substantive APS2 level coming into the ICC would have been treated in any other way than Ms Sluggett.
349. In particular, just because that employee had previously worked at a higher level, particularly in discharging a research/policy role and had tertiary qualifications, it does not necessarily follow that a higher ranked or different position would have been found for him or her. DIMIA was engaged in a wholesale transfer of departments, not individuals. The rationale of this transfer was the substantive levels of the employees concerned. Ms Sluggett had not been formally categorised at a higher level than APS2.
350. No doubt it was upsetting to Ms Sluggett personally that the role to which she was assigned was different to the one which she had occupied whilst at the Regional Council Support Unit. However, I am satisfied that the decision to place her as the APS2 registry officer at the ICC was unrelated to her considerations relating to her disability. However, I am also satisfied that Ms Sluggett’s dissatisfaction with this decision set the tone for her subsequent dealings with the management of the ICC.

b) The period from July to November 2005 – complaint that the respondent failed to modify the applicant’s workstation to accommodate her disability

351. Ms Sluggett took leave for the month of July 2005. Her position is that she took this leave to recuperate physically before she started her new position. It is also her evidence that she did not know what the position encompassed. I think this unlikely, given Ms Sluggett’s concession that she had been performing some administrative duties since April of that year and it is clear that there had been exhaustive discussions about the issue with the management of the ICC.
352. Given her level of disability, Ms Sluggett had been assigned a rehabilitation case manager by DIMIA. This was Eric McMillan. Through August of 2005, and earlier, Ms Sluggett, Ms Plomaritis and Mr McMillan had exchanged emails regarding Ms Sluggett’s ongoing role at the ICC. Ms Plomaritis did not always feel that she was being fully appraised of what Ms Sluggett was telling Mr McMillan. This led to some degree of miscommunication, particularly between Ms Plomaritis and Mr McMillan.
353. As the email headed “confused and concerned – need to talk please” of 5 July 2006 indicates,[91] it was Ms Plomaritis’ apprehension that Ms Sluggett was not being completely frank in the information, which she was providing Mr McMillan. In this email Ms Plomaritis made plain her view that the concerns Ms Sluggett was expressing to Mr McMillan stemmed from her dissatisfaction from being removed from her higher duties role. Ms Plomaritis also categorised Ms Sluggett’s behaviour towards her and other staff as being badgering, questioning and unaccepting of managerial decisions. Certainly, it is Ms Plomaritis’ evidence that there was a lack of transparency in how Ms Sluggett was engaging with Mr McMillan.
354. The import of Ms Plomaritis’ evidence is that she was at a loss to know how to deal with Ms Sluggett’s behaviour in the workplace, particularly her apparent obstructive attitude. In these circumstances, she contacted the personnel section in the DIMIA National Office to seek advice as to what she should do. It was then she learnt that, independently of her, Mr McMillan had arranged for an outside expert to conduct an assessment of Ms Sluggett’s workplace and situation to assess whether she was fit for duties allocated to her and her workplace suitable to perform them.
355. What was described as a “job analysis report” was completed by Paul Dewing, an occupational therapist ergonomist and OH&S consultant on 7 September 2005.[92] This report was delivered to Mr McMillan. On Ms Sluggett’s instructions, Mr McMillan did not release the report to Ms Plomaritis or other managerial members of the ICC.
356. Ms Sluggett is critical of Mr Dewing’s report. She asserts that he did not undertake a thorough evaluation of her workstation and her access routes throughout the office. One specific criticism Ms Sluggett had of Mr Dewing’s report was that it did not include a visit to the eleventh floor of the FACSIA building, where the file compactus was maintained.
357. In cross examination, Ms Sluggett conceded that, at the time of the assessment, she was not required to go to the eleventh floor and so any assessment of it from her perspective was otiose. Dr Bleby characterises this complaint as “mischievous” and illustrative of the “gratuitous nature of the applicant’s complaint against the Commonwealth”. Certainly, in my view, the complaint is emblematic of Ms Sluggett’s propensity to find fault at a micro level, which is not always borne out.
358. Mr Dewing assessed Ms Sluggett’s workstation to be suitable for her. However, it was noted that the rubber on the armrest of her chair was broken and needed replacing. Mr Dewing reported that Ms Sluggett had a wide range of issues as a result of her post polio syndrome. As such, it was recommended that the following guidelines should be observed in respect of her, whilst she was at work:
     • A minimisation of static postures;
     • Her walking distances should be controlled;
     • A lifting restriction in respect of items above five kilograms should be imposed;
     • Standing tasks should be performed between waist and shoulder level, as much as possible;
     • Sedentary tasks should be performed at elbow height, as much as possible;
     • Tasks should allow her to have “flexibility to be able to pace her day”;
     • Her workstation should be located close to the reception area, between five and ten metres, if feasible;
     • She not get up and down to advise employees of incoming calls.
359. Mr Dewing made additional recommendations in respect of Ms Sluggett’s involvement with the registration, recording and distribution of mail at the ICC. Essentially, he recommended that Ms Sluggett’s handling of mail be minimised by Australia Post employees being arranged to deliver and collect the flutes of mail from the office. In respect of Ms Sluggett’s personal involvement with the mail, he recommended as follows:
     • A tray be provided to receive outgoing mail, which would facilitate the placement of mail in the outgoing flute;
     • The flute of incoming mail be placed for Ms Sluggett in the reception area, so she would not have to lift it;
     • Pigeon holes be placed under the work surface for incoming mail distribution.
360. Mr Dewing considered that it “may be” appropriate to provide Ms Sluggett with a height adjustable stool, to assist her with gaining access to low storage areas. In conclusion, Mr Dewing opined as follows:
     • “Auditing office supply requirements should be suitable. It may be appropriate to obtain a height adjustable stool so that Ms Sluggett can be seated when reaching to low down areas in the storage. The particular stool would be a round top stool (with low gas strut) available through the Back Centre and Specialty Seating and this could also be trialled.”[93]
361. Essentially, Mr Dewing did not consider that any of the tasks allocated to Ms Sluggett were intrinsically incapable of being performed by her. He did however recognise that because of her post polio syndrome, Ms Sluggett tired more quickly than other individuals. Accordingly, it was important that Ms Sluggett be able to pace herself as she attended to her duties.
362. The Dewing report was completed after Ms Sluggett had been interviewed alone by Mr Dewing, as she had requested. After this interview, Ms Sluggett and Mr Dewing walked through the office area with Ms Plomaritis and Ms Merrick. Comments were made by Mr Dewing during this process.
363. Ms Plomaritis’ evidence is that arrangements were made to have Australia Post deliver and collect the mail on a daily basis. Ms Sluggett accepts that this was so. In addition, Ms Plomaritis deposes and I accept that stores and stationery items were moved to a larger storage unit, so that Ms Sluggett would not have to bend or extend herself.
364. Finally, Ms Plomaritis asserts that a row of pigeon holes was located under the reception counter for receipt of incoming mail addressed to other agencies co-located within the ICC, so that Ms Sluggett would not be required to walk to distribute the mail.
365. Accordingly, I reject Ms Sluggett’s assertion that Ms Plomaritis and Ms Merrick did not respond effectively to Mr Dewing’s recommendations. In any event, as a result of strictures placed by Ms Sluggett on its dissemination, neither Ms Plomaritis nor Ms Merrick received an actual copy of the report and had to rely on what they had gleaned from Mr Dewing, during the walk through process.
366. As a result of Ms Sluggett’s dissatisfaction with Mr Dewing’s report, Mr McMillan arranged for an occupational physician, Dr Milton Lewis to conduct a further assessment of Ms Sluggett and her workplace. This was done on 19 September 2005 and again involved a walk through with Ms Plomaritis, Ms Merrick and Ms Sluggett.
367. Dr Lewis noted that Ms Sluggett had ceased her substantial research role at ATSIC and had been absorbed into the ICC, where her duties were basically clerical in nature. He also noted that the duties of a registry officer had been significantly modified in respect of Ms Sluggett. He identified these duties as follows:
     • Registry functions, using a computer-based filing system;
     • Reception and switchboard services;
     • Registration, recording and distribution of incoming and outgoing mail;
     • General assistance and clerical support.
368. In respect of the reception duties, Dr Lewis noted that these had been modified because of the distance between Ms Sluggett’s workstation and the reception area. Switchboard services were noted to consist of receiving between five and thirty calls per day. Ms Sluggett disputes this number, asserting that it was around five calls per hour. To answer these calls, Ms Sluggett had been provided with a standard telephone, the switchboard telephone being in an adjoining office. However, Dr Lewis observed that the ICC was planning to move to a new office within ten weeks.
369. In terms of the incoming mail, Dr Lewis made some observations in terms of the height of the temporary pigeon holes being a problem for Ms Sluggett. He suggested an appropriate stool might assist Ms Sluggett to place mail items in the lower pigeon holes placed beneath the desk. Dr Lewis also noted that another person was attending to the registration and dispatch of the outgoing mail.
370. Overall, Dr Lewis noted that Ms Sluggett’s specific workstation had been set up with the assistance of an appropriately skilled professional person to meet the needs of her disability. He was however concerned that some of Ms Sluggett’s responsibilities required her to walk distances, which would be easy for an able bodied person, but would be a substantial problem for Ms Sluggett because of her tendency to develop fatigue rapidly.
371. Accordingly, it was found that Ms Sluggett had a limited ability to move around her workplace. This was a point which Dr Lewis emphasised. He wrote as follows:
     • “... this tendency to rapid fatigue, is very debilitating and necessitates recognition that if she has a task which requires her to step more than a pace or two, then this contributes to her overall exercise load for the day. Tasks which are allocated to Ms Sluggett in connection with the APS 2 position that she occupies, are either redundant or can be done provided there is adequate recognition of her capabilities in relation to those tasks. In the body of the report above, suggestions are made about modifications that would be helpful to reduce unnecessary “waste” of energy.”[94]
372. Accordingly, like Mr Dewing, Dr Lewis emphasised the need for Ms Sluggett to pace her activities throughout the day. This self pacing required Ms Sluggett to “monitor her activity and ration it in order to basically survive throughout the day.”
373. Again, like Mr Dewing, Dr Lewis noted the state of Ms Sluggett’s chair, which he described as “beginning to show signs of wear and tear”. As such, from his perspective, the chair required either replacement or repair, particularly in respect of one of its arms.
374. Dr Lewis concluded his report dated 22 September 2005 by indicating that he would provide a further report, when he had received a report from Ms Sluggett’s treating rehabilitation physician, Dr Quadros. Dr Lewis provided his second report on 15 February 2006. Both the first and second reports are addressed to Mr McMillan at DIMIA’s Belconnen address.
375. Neither Ms Plomaritis nor Ms Merrick saw either of the Lewis reports. Why this was so is controversial. It is also Ms Sluggett’s position that she was not provided with the reports either by Mr McMillan or his successor as Ms Sluggett’s rehabilitation manager, Suzette Nemes.
376. It seems highly likely that Ms Sluggett herself embargoed the release of Mr Lewis’ first report to anyone within the managerial team at the Adelaide ICC, repeating the attitude which she had demonstrated in respect of the Dewing report. In an email to Ms Nemes, dated 5 January 2006, Ms Sluggett wrote as follows:
     • “I state again – that I do not give the department permission to disclose my personal information or provide any part of my report to anyone, including any staff in the Adelaide office without my prior written consent.”[95]
377. In addition, it seems that the release of the second report, the intent of which was to complete the overall assessment process, was delayed by Ms Sluggett’s apparent unwillingness to authorise Dr Quadros to provide information to Dr Lewis. She finally authorised Dr Quadros to provide a report to Dr Lewis on 7 February 2006. What is clear however is that no member of the ICC managerial team was provided with Dr Lewis’ first and more lengthy report dated 22 September 2005.
378. In addition, Dr Lewis’ report became largely irrelevant after the ICC had relocated from the twelfth floor to the fifth floor of 44 Waymouth Street. In his second report, Dr Lewis indicated that the delay substantially reduced the usefulness of any advice he could give to DIMIA about Ms Sluggett. In any event, Dr Lewis’ second report seems to be directed towards the issue of whether Ms Sluggett’s hours of employment should be reduced from a full-time basis to thirty hours per week. In this, he concurred with Dr Quadros’ view that this was appropriate given the progressive nature of Ms Sluggett post-polio condition.
379. Ms Sluggett is critical as to how Ms Plomaritis and Ms Merrick responded to what first Mr Dewing and then Dr Lewis recommended. It appears to be her case that the actions of the Commonwealth, through Ms Plomaritis and Ms Merrick, constituted indirect discrimination according to the provisions of section 6 of the DDA.
380. By necessary implication, it is Ms Sluggett’s position that Ms Plomaritis and Ms Merrick required her to comply with a requirement in the workplace, which was beyond her capacity and which was unreasonable in all the circumstances of the case. These conditions relate to the tasks ostensibly allocated to Ms Sluggett, within the ICC, particularly in regards to the mail and telephone.
381. In this context, it is appropriate to examine exactly what Ms Sluggett was doing in the ICC at this time. It is clear that, in the light of both Ms Sluggett’s condition and the then circumstances of the ICC, many duties nominally assigned to Ms Sluggett had been discarded from the generic DIMIA APS2 registry officer position.
382. In particular, there was no requirement that she provide PA services to the ICC management. As the ICC had no library, she did not have to maintain it. There was only one pool motor vehicle, in respect of which Ms Sluggett was expected to arrange the servicing, otherwise the designated drivers of the other vehicles assigned to the ICC arranged servicing for those vehicles.
383. At the time of his first report, Dr Lewis noted that word processing was minimal and there were no spreadsheets. He also noted that another person was attending to the outgoing mail. At this stage, given the location of Ms Sluggett’s desk, she was not required to do reception duties. In respect of the organisation of office supplies, as previously indicated, Ms Plomaritis and Ms Merrick had arranged for these to be stored in a cupboard, which could be accessed without squatting or bending.
384. Accordingly, it seems that Ms Sluggett’s duties were curtailed. In respect of what duties remained, both Mr Dewing and Dr Lewis were of the view that they were within the capabilities of Ms Sluggett to perform, provided she was able to pace herself. The evidence clearly indicates that Ms Sluggett did indeed pace her activities in the workplace, which does not appear to have been a particularly busy one.
385. Ms Sluggett herself deposes that she was “not sorting or delivering mail”[96] and of the duties in the DIMIA registry officer duty statement she “just simply did what [she] could do.”[97] This element of self-selection is important. It indicates that Ms Sluggett was not specifically directed by management to perform a particular duty, which was beyond her capacities.
386. Ms Sluggett does not specifically state that there were any ramifications, for her, stemming from this behaviour or depose that she was directed to comply with any implicit direction to do some task or other. Rather, she did what she elected to do. In terms of her telephone, she used the same telephone, which she had used whilst attached to the Regional Council Support Unit and about which she had no previous complaint and which she had earlier used without demur. I can find no evidence that Ms Sluggett was directed to do anything.
387. That is not to say the situation was not unsatisfactory from both the perspective of the management of the ICC and for Ms Sluggett. A frosty standoff had developed. I accept Ms Plomaritis’ evidence that Ms Sluggett would not willingly engage in any discussion about the issue or engage in any process to broker a solution. She categorises Ms Sluggett as being negative and uncooperative. Others in the office had to step in to do the tasks nominally assigned to Ms Sluggett. Although I cannot be certain, I would anticipate that this would have had a deleterious consequence for morale within the office.
388. Ms Sluggett is critical that neither Ms Plomaritis nor Ms Merrick implemented the recommendations of the Dewing & Lewis reports. However, in my view, the evidence indicates that Ms Sluggett rejected the Dewing report and impeded its release to management. She took the same attitude towards the Lewis report, delaying its release until its utility became questionable.
389. In these circumstances, it seems to me that the ICC management did their best to implement what they knew of the recommendations proffered by the appropriately qualified experts, who had been enlisted to advise in respect of what needed to be done to ensure the workplace was modified to accommodate Ms Sluggett’s needs. I hasten to reiterate however that both experts considered that Ms Sluggett could attend to the duties assigned to her, if she took steps to manage her fatigue levels and ration her duties.
390. The evidence indicates that Ms Sluggett, at this stage, wished to have the ultimate oversight over what expert evidence got to the management of the ICC. I would categorise this need for control of information as being somewhat manipulative. In this context, her criticisms of Ms Plomaritis and Ms Merrick, for failing to implement reports, in respect of which she went to some lengths to withhold from them, seems somewhat disingenuous.
391. As such, it seems probable to me that some of the motivation for Ms Sluggett’s conduct, at this stage, was that it was part of a strategy to obtain her removal from the APS2 position, which she considered unsuitable for her qualifications and secure her placement into a more research orientated role. It also seems to me likely that part of this strategy involved Ms Sluggett adopting a passively difficult attitude. As such, the stage was set for the poisonous environment which the ICC was to become.
392. Two issues remain. The recommendation regarding the repair of Ms Sluggett’s chair and the provision to her of an adjustable stool. The chair in question was repaired in mid-2006. I will return to the circumstances of its repair in my consideration of the next aspect of Ms Sluggett’s complaint, but note again that the ICC management did not receive Mr Dewing’s report at all and the Lewis reports were delayed until early 2006. It is also the case that Ms Sluggett was on leave for two weeks in December 2006 and then from February to 31 May 2006.
393. In terms of the stool, the ICC management elected not to provide it because they believed that it would constitute an occupational health and safety hazard to other employees of the ICC. I accept that this decision, by the ICC management, not to provide the stool was unrelated to Ms Sluggett’s disability per se. It was motivated by safety concerns. As such the non provision of the stool does not appear to me to be objectively unreasonable in all the circumstances of the case.
394. Accordingly the provision of the stool to Ms Sluggett was not central to the recommendations of either Mr Dewing or Dr Lewis, which were directed to accommodating Ms Sluggett’s disability within the workplace. In these circumstances, the implicit direction that Ms Sluggett not have a stool because it was considered to constitute a safety hazard, both for herself and others, is not unreasonable.
395. In this regard it is important to note that Mr Dewing considered that it might be appropriate for Ms Sluggett to have such a stool to help her reach down into low storage areas. Dr Lewis was in favour of a stool to assist Ms Sluggett in utilising the pigeon holes placed beneath the desk. In her evidence, Ms Sluggett deposed that she did not use the pigeon holes and no stipulation was applied to her that she had to.

c) The period November 2005 to February 2006 – the move to the fifth floor

396. On 28 November 2005, the ICC moved from the twelfth floor to the fifth floor of the Waymouth Street building. Ms Sluggett complains that her new desk was wider than her previous one. It is also her position she was expected to sit in a curved section of the desk, between two straight returns, which she found difficult to stretch over. In addition, she has complaints about the size of the switchboard unit, which was allocated to her.
397. On the day of the move, Ms Sluggett emailed Mr McMillan and asked that another occupational therapist reassess her workstation. At this stage, the report of Dr Lewis remained outstanding, whilst he awaited information from Dr Quadros. Ms Sluggett complains that this workplace assessment request was not attended to appropriately.
398. The Commonwealth interprets this to be a complaint of indirect discrimination, in that Ms Sluggett was required to comply with a condition, which she could not reasonably discharge because of her disability. It is common ground between the parties that an occupational therapist, Ms Stavropoulos was engaged to conduct a workstation assessment of each member of the ICC on 15 February 2006. Ms Sluggett was scheduled to have a forty-five assessment, with Ms Stavropoulos, in contrast to each other employee who was allocated fifteen minutes.[98]
399. For reasons which will be detailed in due course, when the next aspect of Ms Sluggett’s case is examined, she was not available to take part in this workstation assessment, which was delayed until 30 May 2006. It is the Commonwealth’s position that what occurred and what it arranged at the ICC, between late November 2005 and mid February 2006, in respect of this issue of a work placement assessment for Ms Sluggett, was objectively reasonable in all the circumstances and accordingly cannot be categorised as unlawful discriminatory conduct on its part.
400. Firstly, it seems to be the position that Mr McMillan had ceased his role as Ms Sluggett’s rehabilitation case manager in December of 2005. He had been replaced by Ms Neames. In addition, Ms Sluggett also elected to take a fortnight’s leave in December of that year.
401. In mid-January of 2006, Ms Sluggett contacted Ms Neames, who advised that she would organise the requested workplace assessment, as soon as Dr Lewis’ report was received. As previously indicated, the reason for the delay in this report was Ms Sluggett’s reservations about authorising Dr Quadros to release information to Dr Lewis.
402. Ms Merrick’s evidence, which I accept, is that following the information gleaned from the workplace walk throughs with Mr Dewing and Dr Lewis, some adjustments were made to Ms Sluggett’s new workstation on the fifth floor. In particular, her workstation was placed closer to the reception door, so her walking distances were reduced.
403. In addition, a list of contact extension numbers was placed on the foyer wall of the fifth floor, next to a telephone, so that visitors to the ICC could announce their arrival to the person with whom they were meeting, in order to relieve Ms Sluggett the responsibility of having to open the door and greet such visitors.
404. It is Ms Sluggett’s evidence that she continued to elect not to do the mail, after the ICC had moved to the fifth floor. There is no evidence to indicate that Ms Sluggett was explicitly directed to use the desk in question, in the face of any specific objection, which she raised. Rather, she made a request for a further workplace assessment. Accordingly, it is my finding that the awkward stand off, which had commenced on the twelfth floor continued on the fifth floor and little, if any, discussions occurred between Ms Sluggett and the ICC management.
405. This is implicit by the fact that Ms Sluggett’s request for a further workplace assessment was made to the personnel section in Canberra. Independently of this process, Ms Merrick had arranged for each member of the ICC, including Ms Sluggett, to have their own individual ergonomic assessments undertaken. These were arranged within about two and a half months of the move. This does not seem to me to be an unreasonable timeframe in all the circumstances of the matter. In addition, it does not seem unreasonable that the personnel section would want to await receipt of the outstanding workplace assessment, before commencing on another one.
406. Ms Sluggett’s request to Mr McMillan for the further workplace assessment does not specifically state why such an assessment was required, other than the ICC had moved. In addition, in her evidence, Ms Sluggett does not depose that she alerted Ms Neames to any reason why a further workplace assessment should be commissioned prior to the receipt of Dr Lewis’ report.
407. It is clear from Dr Lewis’ second report that his outstanding assessment had been delayed as a result of Ms Sluggett’s own intervention. In his report, Dr Lewis indicates that Dr Quadros forwarded his report to him shortly prior to Christmas in 2005. However, Ms Sluggett had withheld her consent to the report being released to DIMIA. She reinstated her consent on 7 February 2006 and Dr Lewis accordingly released his report on 15 February 2006 with the following observation:
     • “This delay has effectively substantially reduced the usefulness of any advice that I could give to the department. In particular, I refer to the change in the location, physical environment and set up of the office concerned.”
408. In all these circumstances, I do not find that Ms Sluggett’s criticism of the ICC’s management for not more promptly actioning a further workplace assessment for her to have any substance, in my view, nothing which occurred at the ICC between late November 2005 and early February 2006 involving Ms Sluggett and the centre’s management constitutes unlawful discriminatory conduct, for the purposes of the applicable provisions of the DDA.

d) The period from 6 February to 13 February 2006 – the allegation of harassment

409. In early 2006, there was a change in management and structure at the ICC. Ms Plomaritis moved on and the centre became part of FaCSIA. On a temporary basis, the management of the ICC passed on to Ms Merrick and Mr Cox, who at the time was an executive officer at the OIPC.
410. I have earlier described Mr Cox as an enthusiastic and pro-active manager. He came into a difficult situation at the ICC, which had been brewing over the previous year. One of the matters in contention concerned the answering of incoming calls to the ICC. Mr Cox deposes that he had received complaints from “stakeholders that they were unable to get through the ICC by telephone.”[99]
411. This was the background to Mr Cox, in conjunction with Ms Merrick, convening a staff meeting at the ICC to discuss, inter alia, the “identification of strategies to improve the existing switchboard/telephone services ...,”[100] including who would cover the switchboard at lunchtimes and on Fridays. The implication of Ms Sluggett’s evidence is that she was not ordinarily invited to staff meetings and the purpose of the meeting was to single her out as a scapegoat for deficiencies within the ICC.
412. Ms Merrick refutes any suggestion that Ms Sluggett was systematically excluded from ICC staff meetings. I find it unnecessary to resolve this factual dispute. Clearly, Ms Sluggett was invited to the staff meeting in question and also equally clearly Ms Sluggett’s role in answering telephones was to be a major topic for discussion.
413. Ms Sluggett interprets the meeting as a personal attack on herself. Given what had occurred in the workplace earlier, it does not seem unlikely that she would be sensitive about the issue but notwithstanding this sensitivity, it does not seem unreasonable, on the part of management, to want to broach the issue with Ms Sluggett in a group staff meeting setting.
414. Mr Cox describes his strategy for the meeting as follows:
     • “... a deliberate management strategy to make the issues at the meeting generic and to focus on a team-driven solution rather than to direct them at an individual.”[101]

I do not reject this evidence. At the time, Mr Cox had been the manager of the ICC for a very brief period. He had no history of animus with Ms Sluggett. I accept his evidence that, as the temporary manager of the ICC, he wished to find a solution to the problem of answering incoming calls to the ICC. As such, I reject the suggestion that there were any mala fides attributable to the management of the ICC in contravening the staff meeting in question.

415. Mr Cox chaired the meeting. He used a whiteboard. A roster of staff was organised to answer telephones. This roster included Ms Sluggett. Mr Cox stressed the necessity for all calls into the ICC to be answered promptly and that “best practice policy” was that for phones to be answered within three rings. This latter aspect of the conversation is controversial between Ms Sluggett and Mr Cox.
416. Mr Cox’s position is that when he raised the desirability of phones being answered within three rings, Ms Sluggett indicated that she would not be able to achieve this standard. Ms Sluggett deposes that Mr Cox responded to her comment with words to the effect “Chandra, I have worked with people with disabilities, and trained people with disabilities on how to operate a complex switchboard where there have been more than four lines.”[102]
417. Ms Sluggett says she found this comment to be hurtful and humiliating as it implied she was intellectually unable to manage the switchboard, whereas the true situation was that her difficulties arose from her level of disability. Mr Cox’s position is that he had misinterpreted Ms Sluggett’s statement. He deposes as follows:
     • “... I had interpreted the applicant’s statement that she could not answer the switchboard telephone within three rings as her expressing a problem with the complexity of switchboard operation, i.e. that it was simply too complex for her to do the outlined procedure. In response to this, I mentioned that for several years I worked in a position where I was trained to evaluate complex tasks and break them down into simple easy-to follow operations. Because I told this as a story, I would have said something along the lines of: ‘I have a lot of experienced in breaking complex tasks into standard operating procedures during my time when I worked training people with intellectual disabilities. In fact, I had one client I trained specifically in switchboard operations, so I am quite familiar with the process.”[103]
418. In my view, Mr Cox’s statement can be regarded as tactless or insensitive. I am however satisfied that he had no intent to upset or humiliate Ms Sluggett. Ms Sluggett’s evidence is that she got up and excused herself from the meeting. She did not take the opportunity to immediately correct or alert Mr Cox about her upset.
419. Rather, later that day she sent an email to Ms Merrick as follows:
     • “I am upset and insulted by the comments made by Tristan this morning in relation to the operation of the switchboard. He made reference to his experience teaching/training a person with intellectual disability to operate complex switchboard which require to put on hold more than one phone line, implying if a person with intellectual disability, so could all of us, particularly me, the person who is primarily responsible for looking after the switchboard.”[104]
420. Ms Merrick responded to this email promptly. She indicated that the comment had not been directed personally either at Ms Sluggett or any other staff member. Ms Merrick indicated that she regarded the statement made by Mr Cox as being related to his work experience with switchboard operations, which was the topic for discussion at the meeting. Ms Sluggett forwarded this reply onto her union representatives.
421. Following the meeting of 7 February 2006, Ms Sluggett indicates that she went home because she was upset. As a consequence, the staff meeting was halted. The next day, Ms Merrick sent an email to all ICC staff indicating that the staff meeting would be convened that day to continue discussions on the switchboard/telephone arrangements.
422. Ms Sluggett responded to this email with an email of her own which read as follows:
     • “I am not coming to the staff meeting because I don’t want to be subject to further harassment. I gather we will be provided with minutes of the meeting.”[105]

As a consequence of Ms Sluggett’s email, Ms Merrick physically approached Ms Sluggett and asked her to attend the meeting, but Ms Sluggett declined. As a consequence, the staff meeting was cancelled.

423. Mr Cox agrees that he also approached Ms Sluggett and asked her to attend the meeting. It is his position that this was a reasonable thing for him, as Ms Sluggett’s manager, to do and he performed the task in an appropriate and conciliatory manner. Ms Sluggett does not agree. It is her position that she was harassed by Mr Cox. She deposes that the following occurred:
     • “To my recollection, on this same day, I was at my desk, attending to my emails, when I felt my chair being pushed towards the desk, on my right side. My chair has a straight back with two arms, and so I was then locked up against my desk. I tried to look around to see what was going on, but I could not move to see who it was behind me. Tristan then spoke into my right ear and stated words to the effect that he wanted me to attend a further staff meeting, and wanted to discuss my concerns regarding my email to Lorraine. At this time, he was still leaning on my chair, and I was still unable to move from the desk. I could not move at all and felt trapped. I told him that I felt that the discussion the previous day was very insulting to me, and to people with disabilities generally. He kept insisting repeatedly that I go to a meeting to discuss my concerns regarding his behaviour from the previous day, and that it would be a staff meeting, and all staff from the previous day would be attending. He constantly repeated this request, to my recollection it was about 6 to 8 times, with the pressure remaining on my chair. Initially, I did not take this as a threat but, as he persisted, and as I realised I was trapped in the chair and could not turn around even to look at him, I grew increasingly upset by his behaviour. I then said to him words to the effect, “Leave me alone”. He then responded again, two or three times, asking the same question regarding the staff meeting. At this time, I was looking for the telephone to ring the police because his behaviour was scaring me. I felt threatened, but I could not reach the telephone, as he had me trapped against the desk. I then said words quite loudly, to the effect, “Leave me alone. Stop harassing me”. At that point, he released me and walked off. No one in the vicinity came to find out what was going on, or what he was doing, although they must have heard parts of the conversation as it was occurring, and would have seen him trap me against the desk. The discussions went on for a good 5 to 7 minutes.”[106]
424. The import of Ms Sluggett’s affidavit is that she was physically and forcibly detained by Mr Cox in her chair, whilst he harangued her for five to seven minutes, knowing full well that she was frightened and intimidated by his behaviour. It is a significant complaint. Mr Cox’s evidence, in respect of the incident, is markedly different. He deposes as follows:
     • “I approached the applicant to ask her to attend the meeting. As I recall, I knelt down to speak to the applicant so that I would not loom over her (this is a body-language management technique I use whenever I want to have a conversation with someone who is already sitting at their workstation. Sometimes I sit on a nearby desk. I believe that this creates a relaxed atmosphere free from unhelpful connotations of authority). I also spoke quietly to the applicant so that no nearby staff member would be able to overhear what I believed should be a private conversation whose purpose was for me to ascertain why the applicant had deliberately failed to carry out a reasonable request, namely to attend a staff meeting to discuss a work-related issue. The applicant refused to engage in this conversation. Neither I or the applicant mentioned disability during this conversation. I recall that the applicant just told me in an aggressive tone: “I’m not going, leave me alone” and “I am not going to talk about it with you.”
     • I strongly deny the allegation in paragraph 145 of the applicant’s affidavit that I in any way exerted force, either physical, verbal, or otherwise, in restraining either the applicant’s chair or her actions. The allegation by the applicant that she felt threatened and wanted to call the police is, I believe, inconsistent with her behaviour at the time as she gave no indication whatsoever of suffering any fear or alarm. In relation to the applicant’s allegation that she “was looking for the telephone to ring the police”, the main switchboard telephone was right in front of the applicant on her desk. Also, there were plenty of other staff members nearby if the applicant truly wanted to call for assistance.
     • I asked the applicant what the alleged harassment was to which she had referred in her email to Lorraine Merrick. The applicant refused to speak to me and told me in an aggressive tone to: “go away.” I do not recall the applicant saying the words: “stop harassing me”. I believe that, had the applicant said to me that I was harassing her, I would certainly remember this because such an allegation would have been very hurtful to me. At the point when the applicant said that she wanted me to go away, I recognised that the conversation was achieving a satisfactory outcome. Consequently, I left the vicinity of the applicant’s desk. As I recall the entire conversation only took two or three minutes. Following this incident, Lorraine Merrick and I determined that we should cancel the staff meeting and further look into the matters raised by the applicant in her email to Lorraine Merrick.”[107]
425. Apart from Ms Sluggett and Mr Cox, there were no other witnesses to this incident. Accordingly, I must resolve the allegation of harassment on the basis of my assessment of the respective credibility of Ms Sluggett and Mr Cox. I find Mr Cox to be the more credible witness. As previously indicated, Ms Sluggett on occasions made contemporaneous notes regarding her activities and other occurrences at the ICC. She kept such a record in respect of what occurred on 7 February 2006. Her notes are on two pieces of scrap paper and a number of yellow post-it notes.[108]
426. The notes indicate such things as the time Ms Sluggett started and left work on that day; when she went to lunch; made a cup of tea; and the details of visitors to the ICC and telephone calls made to it. Importantly, in reference to the cancelled staff meeting and her interactions with Ms Merrick and Mr Cox, Ms Sluggett wrote as follows:
     • “LM came and reminded me of the staff meeting – I said that I have emailed her back – she looked surprised, wondering what is going on. I repeated again two-three times and checked my sent box to make sure that I did. She left.
     • TC came and asked if I was alright and came and crouched next to my chair behind me – wanted to know what is going on. I referred to the two emails yesterday and today. TC acknowledged seeing the two emails and said LM’s reply to first was appropriate.
     • He wanted to discuss the matter but I didn’t want to unless with another person present. He persisted with wanting to discuss and seemed sincere about it – I repeated that particular method was not appropriate – now is not the time and asked me to leave me alone. He wouldn’t. I said either he leaves me alone or I leave the office/my work. He left. I overheard him cancelling staff meeting.”
427. In my view, this account is at odds with Ms Sluggett’s subsequent reframing of it for the purposes of these proceedings and is more in accordance with the recollection of Mr Cox. As such, I am satisfied that Ms Sluggett has grossly exaggerated the incident in order to advance her claims of inappropriate conduct against the Commonwealth.
428. The unfinished meeting of 6 February and Ms Sluggett’s declining to attend its resumption created an unsatisfactory situation within the ICC, which its management, for understandable reasons, wished to resolve. In addition, from its perspective, Ms Sluggett had made an inchoate complaint of harassment, a serious allegation, against Mr Cox. In these circumstances, Ms Sluggett was instructed by Ms Merrick to attend a meeting with her later in the day, at the ICC conference room.
429. Ms Sluggett’s evidence is that she was not expecting Mr Cox to be present at the meeting. She asserts that he, in some way, actively concealed himself in the conference room, from her view, by “hunching over”. This led to Ms Sluggett leaving the conference room. Mr Cox denies that he attempted to trick Ms Sluggett in any way to attend a further meeting with him. If it is Ms Sluggett’s case that this is a further episode of harassment of her emanating from Mr Cox I reject the claim.
430. Ms Sluggett deposes that she made it clear that she would not participate in a meeting whilst Mr Cox was present. Ms Sluggett further asserts that Ms Merrick pleaded with her to attend the meeting. On this basis, it seems that Ms Sluggett enlisted the assistance of the staff representative, Mr McKitrick to attend the meeting with her. Mr McKitrick was not allocated to the ICC but was the union representative for the fifth floor of the Waymouth Street building.
431. As the meeting was a formal one, minutes were prepared. These minutes were subsequently signed by Ms Merrick and Mr Cox on 10 February 2006 but not by Ms Sluggett and Mr McKitrick.[109] It is the evidence of Mr Cox and Ms Merrick that the minutes concerned accurately record what took place at the meeting.
432. These minutes indicate that Mr Cox apologised to Ms Sluggett for “any unintentional insult” which had arisen as a result of his comments at the meeting on the previous day. Ms Sluggett confirms that the apology was proffered.
433. However, she otherwise disputes the accuracy of the minutes of the meeting prepared by Ms Merrick and Mr Cox. However, Ms Sluggett has not called Mr McKitrick to give evidence as to what he recalls of the meeting and to ascertain his view as to whether the minutes in question are an accurate representation of what happened at it. No explanation has been provided as to why Mr McKitrick has not been called to give evidence, on Ms Sluggett’s behalf. I infer that his evidence would not have been helpful to Ms Sluggett.[110]
434. I accept that the minutes of the meeting, which have been tendered before me are accurate. Accordingly, I accept that this meeting resolved the issues arising between Ms Sluggett and Mr Cox regarding the latter’s comments about switchboard operation satisfactorily to both. If it had been otherwise, I doubt that Ms Sluggett would have been willing to restrain herself from pursuing her claim for harassment further.
435. This reinforces my view that there is no substance to her claim of harassment in respect of either the staff meeting of 6 February or the subsequent meeting between Ms Merrick, Mr Cox and Ms Sluggett of 7 February. I find that Ms Sluggett accepted Mr Cox’s apology, perhaps begrudgingly, but the apology itself was genuinely offered by Mr Cox, on the basis that he had intended no offence to Ms Sluggett.
436. It is Mr Cox’s evidence that, following his apology, the discussion between management and Ms Sluggett became “more constructive”, particularly in the sense that Ms Sluggett began to enumerate the difficulties which she was having at work and Mr Cox asked what could be done to help. This aspect of the meeting was recorded in the minutes as follows:
     • “Tristan asked Chandra if there was anything management could do to assist her with her pain management, to modify the workstation or procedures in any way. Chandra refused to discuss this topic. Tristan persisted several more times with this offer, informing Chandra that for OHSW reasons he could not accept any staff member being in pain and wished to assist to remove or alleviate this pain. Chandra again refused, and further she stated that a medical assessment has been made and her case officer is awaiting that report. Tristan asked if he could speak to her case officer to see if there was anything they could do in the interim. Chandra stated that she has instructed her Case Officer not to discuss any aspect of her case with ANY Adelaide ICC/OIPC staff without her written permission. No permission has been granted at this point.
     • Tristan asked Chandra if there were any duties or tasks she would feel comfortable performing for an interim period while the Medical Assessment is finalised, Chandra refused to answer. Tristan stated that he was attempting to assist Chandra, to work with her in getting some meaningful work activity without causing her pain, for an interim period pending the results of her medical assessment. Again, Chandra refused to list any duty or task that she is, at the point in time, able to perform, and stated that the type of work she could do was the type of work she had done in the past.”[111]
437. Ms Sluggett now calls into question the sincerity of Mr Cox’s apology and disputes the accuracy of this aspect of the minutes. It is her position, at trial, that Mr Cox bullied and harassed her in respect of the production of the Lewis report and her disabilities generally. I accept Mr Cox’s evidence that, as Ms Sluggett’s manager, albeit on a temporary basis, he genuinely wanted to help Ms Sluggett.
438. In such circumstances, it does not seem unreasonable to ask to have access to Dr Lewis’ report, germane as it was to Ms Sluggett’s capacity to work as a registry officer at the ICC. On balance, it seems unlikely to me that he would harangue Ms Sluggett about the issue. Rather, it seems more likely that Ms Sluggett would have wanted to control, as much as possible, the dissemination of any information about herself.
439. In addition, I accept that it is more probable than not that Ms Sluggett did not answer specific questions about what particular duties or tasks she could perform in the role then assigned to her. It seems highly probable that she would deal with such questions in the manner attributed to her in the minutes, namely that the only duties, which she could perform, were those which she had discharged in her research role at the Regional Council Support Unit.
440. The next interaction with Mr Cox, in respect of which Ms Sluggett complains, occurred on 8 February 2006, in the kitchen at the ICC. It is Ms Sluggett’s position that Mr Cox harassed her in his questioning of her regarding her absence from the ICC the previous day. For his part, Mr Cox has deposed that he has “a vague recollection” of the event about which Ms Sluggett now complains – the incident itself not having been the subject of any previous departmental complaint or inquiry.
441. The effect of Ms Sluggett’s evidence is that Mr Cox accosted her in the kitchen and questioned her aggressively about where she had been. It being her position that she had earlier advised Ms Merrick, by email, that she would be attending a physiotherapy appointment. Ms Sluggett asserts that Mr Cox lectured her that she should have informed Ms Merrick of the appointment in person.
442. The implication of Ms Sluggett’s evidence is that this line of questioning was inappropriate and singled her out for unwarranted criticism, when other members of the ICC informed management of appointments by email and were not required to report directly. Ms Sluggett deposes that this particular interaction between her and Mr Cox concluded as follows:
     • “Tristan then proceeded to lecture me about how I should be performing my duties. I said to him, ‘stop harassing me’. To my recollection, I screamed these words and walked out of the kitchen to my desk.”[112]
443. Mr Cox’s position is that it would not have been unreasonable for him to have indicated to Ms Sluggett that it was expected of all staff that they should personally advise the appropriate line manager of an absence from the workplace because otherwise it could not be guaranteed that an email communication alone would be accessed immediately by the appropriate manager.
444. This issue of the appropriateness or otherwise of a method of reporting of an absence from the workplace cannot be the subject of a claim of disability discrimination in itself. It is not my role to comment upon the issue and what is or is not appropriate in terms of a staff member reporting an absence from the workplace to a line manager. Rather, my responsibility is to determine whether the incident of which Ms Sluggett complains can amount to harassment, either individually or in conjunction with the other incidents of which Ms Sluggett complains, pursuant to the provisions of the DDA.
445. Mr Cox himself is not in a position to specifically refute Ms Sluggett’s allegations against him, concerning what happened in the kitchen and afterwards. This tends to suggest that the incident was not memorable, so far as he was concerned. As with the earlier complaint of harassment, Ms Sluggett made a contemporaneous note about it.[113]
446. Once again, this contemporaneous note under cuts the thrust of Ms Sluggett’s more recent criticism, made in the context of the current proceedings. In my view, the note is likely to be a more accurate account of what occurred, although I also consider it highly probable that, due to her antipathy for all those involved in the management of the ICC, however transitory, it is likely to be lacking in objectivity.
447. In her note, Ms Sluggett wrote as follows:
     • “12 – from kitchen, making cup of tea. (approx 5 minutes). Standing half bent – leaning on chair. Tristan came in. Said hi – return greeting. He said as he was washing his cup (with back to me) Tash said you went to physio. I replied – I do – every fortnight. He asked to let them know before I leave. I said I did to LM via email, two days again and again before leaving today via email cc AG. He said “I want you to let us know verbally before you go”. I said “no – I am not going to walk around looking for people to let them know”. I said I did inform I’d rather do via email because it is proof. He said Chandra it is a requirement of staff movement. I got upset and asked him to leave me alone – his approach is becoming harassing. He asked if he wants me to organise a meeting. I said this is not an appropriate way to discus this matter – in the kitchen whilst I am making a cup of tea – leave me alone. I saw Wallace standing near the P/C. I went back to my desk (12:10am).”[114]
448. According to Ms Sluggett’s note, the exchange took about five minutes. Ms Sluggett apparently objected to Mr Cox raising a work matter in the kitchen. This of itself cannot amount to harassment. The controversy arising from the exchange between the two seems to originate in Mr Cox’s direction that Ms Sluggett make a verbal report of her absence from the office in future rather than via email. The import of Ms Sluggett’s note is that she perceived such a direction to be unreasonable, so far as she was concerned.
449. There is no reference, in the note, to the tone of voice of either Mr Cox or Ms Sluggett. In her trial affidavit, Ms Sluggett deposes that the exchange with Mr Cox ended with her probably screaming “stop harassing me” at Mr Cox. This is not consistent with her contemporaneous record.
450. On balance, it seems to me more probable than not that the conversation in the kitchen was an unexceptional one, which if it does raise any criticisms of Mr Cox, are only minor in the sense that it was inappropriate to raise the issue of office absences with Ms Sluggett, whilst she was making a hot drink for herself. In my view, this criticism is minor and cannot be regarded as related to any issue pertaining to Ms Sluggett’s disability.
451. Following the exchange in the kitchen, Ms Merrick sent an email to Ms Sluggett at 12.43 on 8 February 2006 as follows:
     • “Tristan and I require you to meet with us at 1:45pm to discuss protocol arrangements when leaving the office for appointments and lunch breaks please.”[115]

Ms Sluggett declined to attend the meeting at the time scheduled, as she wished to have a disability advocate present. The earliest such an advocate could be arranged was on 13 February 2006. She asked to be “left alone” by Mr Cox.

452. The disability advocate was Mr Stephen Pengley. Neither party to the proceedings has called him to give evidence. No minutes were taken in respect of the meeting. Besides Ms Sluggett and Mr Pengley, Mr Cox, Ms Merrick and Ms Corbisiero were present at the meeting. It was Ms Corbisiero’s first day as the manager of the ICC. Mr Cox deposes that he cannot recall a great deal of the meeting. Following the meeting, his managerial role in respect of Ms Sluggett ceased.
453. In all these circumstances, it is difficult to glean precisely what transpired at the meeting, if anything of moment. Ms Sluggett alleges that Ms Corbisiero publically rebuked Mr Cox and Ms Merrick for how they had handled the situation up to that stage. Ms Merrick refutes this assertion and Ms Corbisiero’s recollection is that, as a newcomer, she indicated that she hoped all concerned could move on and work through any issues arising.
454. The meeting seems to have centred on the use of a whiteboard to record staff whereabouts and where it should be placed. The implication of Ms Sluggett’s evidence was that such a whiteboard would assist her locating staff members and reduce her walking time when she received a telephone call for such a staff member. In her affidavit material, Ms Sluggett deposes as follows:
     • “I became absolutely stunned and upset when Tristan said that they already had a whiteboard, and that I did not need to know staff whereabouts. The whiteboard was a considerable distance from the switchboard area, and I was required to walk, view that whiteboard, and then return back to the switchboard. The meeting did not, in my view, progress to any great degree. However, we all agreed that we would await the workplace assessment.”
455. The import of Ms Sluggett’s evidence that the purpose of the meeting had gone beyond the question of office absences and had returned to topics raised in the aborted staff member of 6 February 2006, namely reception duties and the answering of the telephone and what utility a whiteboard might have in this process. However, Ms Sluggett’s position is that nothing specific was resolved, other than all concerned would await the outcome of the workplace assessments, at the ICC, which had been scheduled for 15 February.
456. Mr Cox denies the suggestion that he would have, in a fit of pique, refused Ms Sluggett access to a whiteboard. It is his recollection that the meeting was useful and did identify some solutions to the problems identified by both management and Ms Sluggett.
457. I am unable to resolve definitively the issue of what the meeting did or did not resolve. On balance, it seems more likely than not that the meeting was somewhat inconclusive. Ms Corbisiero was not likely to be across all the issues concerned and the results of a further workplace assessment were imminent, which were likely to be germane to the issue. However, in my view, I am able to resolve the issue as to whether or not the meeting of 13 February represented the culmination of a process of harassment of Ms Sluggett by Mr Cox, which had commenced on 6 February. I do not find that it did.
458. Mr Cox came into the ICC, for a brief period of around about a week, at a time when there were issues about the performance of reception duties at the centre. These issues centred upon Ms Sluggett because part of her duties involved answering telephone calls. It was within Mr Cox’s managerial remit to try and resolve these issues. Mr Cox convened a staff meeting about the issue, which Ms Sluggett attended, as was appropriate. There is no evidence to support the suggestion that the meeting was in some way a “show trial” designed to personally humiliate Ms Sluggett. It was an initiative of the management to try and make the ICC function more efficiently.
459. Ms Sluggett complains about comments Mr Cox made at the meeting. I have found these remarks might be construed as being tactless or lacking in sensitivity. However, whether they amount to harassment, necessarily a protracted process, must turn on what occurred later. When Ms Sluggett advised Mr Cox of her offence, he apologised to her. An apology which Ms Sluggett ostensibly accepted. She did not choose to return to the matter until she raised it in these proceedings, in conjunction with a raft of other complaints.
460. After his apology to her, Mr Cox had a number of other managerial dealings with Ms Sluggett, which she now construes as harassment. In my view, the evidence indicates Mr Cox’s desire was to clear the air with Ms Sluggett, in a constructive way. It was reasonable for him to wish to do in order to facilitate the harmonious and efficient operation of the ICC.
461. In order to constitute harassment, Ms Sluggett must establish that Mr Cox’s cause of conduct between 6 and 13 February 2006 was repeatedly harrying of her and arose because of her disability. I do not find that Mr Cox’s comments, at the meeting of 6 February, were directed singularly at Ms Sluggett. On her own contemporaneous account, Mr Cox withdrew from the vicinity of Ms Sluggett’s desk, when she asked him to leave. I reject her suggestion that Mr Cox trapped her whilst seated at her workstation.
462. It was not unreasonable that the ICC managers would want to discuss reception issues with Ms Sluggett, given that she had withdrawn from the meeting of 6 February convened to ventilate them. In my view, the various interchanges between Mr Cox and Ms Sluggett are of a type routine within contemporary workplace settings in Australia. It was not unreasonable for management to be concerned about the manner in respect of which it was informed about the absence of an employee from the workplace. In a formal sense, this was done by Ms Merrick’s email.
463. I do not find that Ms Sluggett was subject to a series of individualised attacks or harries. Rather Mr Cox, perhaps naively, thought he could solve a problem within the ICC with Ms Sluggett’s cooperation. As such, he and Ms Merrick were attempting to engage with Ms Sluggett constructively.
464. With the benefit of hindsight, it would have been preferable if Mr Cox had not raised managerial issues with Ms Sluggett, in the kitchen, during one of her breaks. However, in my view, the requests made of Ms Sluggett by Mr Cox, both at her workstation and in the kitchen, can only be construed as being anodyne. In any event, I am satisfied that there is no causal connection between the comments and actions construed by Ms Sluggett as being harassment and her disability. Mr Cox’s actions arose because he was trying to sort out problems relating to the performance of reception responsibilities at the ICC.
465. Ms Sluggett was absent from work from 14 February until 22 February 2006. It is her case that she was suffering pain in her left shoulder, arm and hand, as a result of a work related injury. It is also her case that she was frightened of any further involvement with Mr Cox. I reject this latter assertion given that Mr Cox’s managerial role at the ICC had ceased. Due to her absence, Ms Sluggett was unable to take part in the workplace assessment, which had been arranged for her.

e) The period from 22 February to 31 May 2006 – Ms Sluggett’s absence from work as a result of the direction of Ms Corbisiero

466. Like Mr Cox before her, Ms Corbisiero came into a challenging managerial environment, when she assumed the role of manager of the ICC. One of her first responsibilities was to attend the meting with Ms Sluggett, Ms Merrick, Mr Cox and Mr Pengley, the disability advocate convened to discuss Ms Sluggett’s activities in the workplace. From the outset, Ms Corbisiero must have been aware that issues pertaining to Ms Sluggett had to be approached with some care because of the level of her disability.
467. Ms Sluggett has provided no contemporaneous medical evidence to support her assertion that pain in her left shoulder, arm and hand precluded her from working from 14 February 2006 onwards. I have however no reason to disbelieve her in this regard, but find that Ms Sluggett’s absence from work from this date onwards is likely to have been due to more reasons than her health alone.
468. In part, at least, she chose to withdraw from a situation which she felt to be uncommodious to her personally. The previous week had been difficult for her, as indeed it had been for Mr Cox and Ms Merrick. But in reaching this conclusion, I emphatically reject Ms Sluggett’s evidence that she was suffering “harassment and intimidation ... every day in the workplace”, as being another factor leading to her incapacity for work.
469. Ms Sluggett returned to work on 22 February 2006 with a medical certificate from her GP, Dr Solomon, who had examined Ms Sluggett on 21 February 2006. The certificate indicates that Ms Sluggett was suffering from “left shoulder blade pain and [was] fit to return to modified/other duties from 21 February 2006 to 2 March 2006 with the following restrictions: NOT USING LEFT ARM AS FAR AS POSSIBLE.” The medical certificate that Ms Sluggett had been referred to an orthopaedic surgeon, Dr Ravindran.[116]
470. Ms Sluggett presented this medical certificate to Ms Corbisiero and Ms Merrick. Ms Corbisiero was not sure what she should do about it. Following Ms Sluggett’s absence from work on 14 February, she had been in contact with the human resources department in Canberra seeking advice. Ms Corbisiero elected to seek further advice in respect of the medical certificate.
471. In my view, the medical certificate concerned is sphinx-like. It created a quandary for Ms Corbisiero in the sense that it did not indicate what Ms Sluggett was medically able to do at work. I also accept Ms Corbisiero’s evidence that Ms Sluggett was not willing to discuss constructively with her what she (Ms Sluggett) felt she personally was able to accomplish. I can well appreciate Ms Corbisiero’s concerns about there being a danger of Ms Sluggett’s injuries being aggravated and the employer itself breaching its duty of care towards her.
472. Ms Corbisiero herself was a neophyte manager, within the public service. She was dealing with an employee with challenging issues, who was not inclined to be helpful to her. In such circumstances, Ms Corbisiero again appropriately sought advice from the personnel department at head office. The advice was to send Ms Sluggett home, pending further medical information.
473. Ms Sluggett is now critical of the Commonwealth for taking a heartless and inflexible approach to the medical certificate. However, the experience of the ICC, with Ms Sluggett, up to that point is that they were ‘damned if they do, damned if they don’t” so far as she was concerned in respect of what modifications were made to the workplace. Ms Sluggett’s attitude did not invite a flexible ad hoc approach. In such circumstances, it is only to be anticipated that Ms Corbisiero, in her new managerial position, would take a cautious and technical approach to the medical certificate.
474. In terms of what discussion occurred between Ms Sluggett and Ms Corbisiero regarding the medical certificate, I prefer Ms Corbisiero’s evidence. She says that when she asked Ms Sluggett what tasks she was able to perform, Ms Sluggett did not want to tell her.[117] This seems to me to be far more plausible than Ms Sluggett’s assertion that Ms Corbisiero was unwilling to discuss with her “safe work practices”. To the contrary, I find that Ms Sluggett was unwilling to provide any concession or make any suggestion as to how the strictures of the medical certificate could be met. As a result, Ms Corbisiero had no option other than to send Ms Sluggett home.
475. As a result of this decision, Ms Corbisiero sent an email to Ms Sluggett advising her to take six sick leave days. The email read as follows:
     • “Further to our discussion this morning regarding your left should blade pain and as detailed in the medical certificate you provided, we have identified an ongoing risk of aggravation and therefore advise that you take sick leave until you provide us with a medical certificate outlining your specific capabilities in the workplace and that you are fit to return to the workplace.”[118]
476. Ultimately, following his examination of her on 2 March 2006, Dr Ravindran found Ms Sluggett to be unfit to return to work until such time as there had been an ergonomic assessment of her workplace and tasks and any resulting recommendations had been implemented.
477. Accordingly, in my view, Ms Corbisiero’s decision to send Ms Sluggett home on sick pay cannot be regarded as being unreasonable. The decision was vindicated, albeit retrospectively by the independent medical assessment of Dr Ravindran. In all these circumstances, I do not consider it to have been a decision rendered unlawful by virtue of the provisions of the DDA. It cannot be said to amount to direct discrimination.
478. In particular, I do not think an abled bodied person, who presented a medical certificate couched in the same terms as the one proffered by Ms Sluggett would have been treated any differently to Ms Sluggett in the circumstances of the case. Ms Sluggett was not sent home because of her disability. She was placed on sick leave because of the medical certificate.

f) The period from 31 May to 22 June 2006 – Events following Ms Agus’ report

479. Ms Sluggett was absent from work from 22 February until 31 May 2006. She provided medical certificates for this period and was placed on extended paid leave. Around this time, Paul Cohen was appointed as her rehabilitation case manager. He was based in FaCSIA in Canberra.
480. Mr Cohen was tasked with oversighting Ms Sluggett’s return to work. A meeting was scheduled for 23 May 2006, at the ICC, to discuss this topic. The meeting was attended by Ms Sluggett, Mr Cohen, Ms Merrick and Ms Corbisiero. Dr Ravindran, besides recommending a further ergonomic assessment, had written as follows to Comcare, Ms Sluggett’s worker’s compensation authority:
     • “Ms Sluggett’s main complaint is that of constant pain over the medial border of the left scapular and that use of the left upper limb increased the severity of pain. At work she had been performing reception and switchboard services. She stated that she had been required to hold the receiver of the telephone while taking down messages. She was also required to register and distribute mail, both incoming and outgoing. She had difficulty with reaching up to pigeon holes where mail was distributed and emptying the bin in which the mail was delivered by Australia Post.”[119]
481. At the meeting of 23 May, it was agreed that Mr Cohen would arrange a work station assessment for Ms Sluggett as soon as possible. He arranged for Kate Agus, a manipulative physiotherapist, to carry out the assessment on 30 May 2006. Also discussed at the meeting were the specifics of the duties, which Ms Sluggett would perform and how these would be incorporated into a return to work plan for Ms Sluggett.
482. Mr Cohen’s evidence that he found it difficult to compile such a return to work plan for Ms Sluggett because she “was not prepared to agree on what duties she could or would do.”[120] For her part, Ms Sluggett’s position is that she wanted to be told specifically by management what tasks she was “supposed to be performing.”[121]
483. This was a difficult and basically untenable situation, which set the tone for the ensuing conflict between Mr Cohen and Ms Corbisiero on the one hand and Ms Sluggett on the other. I find that Ms Sluggett was unwilling to provide any assistance to management in respect of how her return to work, at the APS2 level would be managed.
484. She was, in fact, both passively and actively resistant to returning to that role, which was her substantive position. Mr Cohen expresses his interaction with Ms Sluggett, at the meeting, as follows:
     • “From the commencement of the meeting the applicant said that she was not interested in her current APS2 position and that she wanted to perform duties at a higher level, being the APS4 or even APS6 levels. I told the applicant that there were no positions at these higher levels and that her substantive position was that of an APS2 level. I gave the applicant a copy of the duties that had been proposed for her to undertake, but she only glanced at these and pushed them to one side.”[122]
485. Mr Cohen’s evidence is that the meeting did not produce any constructive outcome. He did however prepare a return to work plan for Ms Sluggett, which was circulated to Ms Corbisiero and Ms Merrick on 30 May 2006.[123] It envisaged a four day thirty hour week, with Friday off. Mr Cohen also envisaged that Ms Sluggett would need regular breaks of “ten minutes per hour or five minutes every hour depending on the need to get up and stretch.”
486. The return to work plan specified that it was to be reviewed after one week to either modify, alter or increase duties. The duties which were specified were switchboard services, answering between five and thirty calls per day; answering incoming emails; information gathering of relevant FaCSIA corporate information; and duties as directed that do not impact on current health issues. It was noted that a phone headset was to be installed for Ms Sluggett,
487. Ms Agus characterised her task as to make recommendations on “any further modifications to the workplace or work practices that may benefit Ms Sluggett in her return to work.” She noted that Ms Sluggett had difficulties resulting from her post-polio syndrome relating to fatigue and left sided weakness. The main difficulties were associated with the use of her left arm and stretching or grabbing to the left.
488. With these difficulties in mind, Ms Agus made seven recommendations, which can be summarised as follows:
     • Although Ms Sluggett’s current desk and cubicle were assessed as being suitable for her needs, given her left sided weakness, it was thought it would be useful for Ms Sluggett to move to a cubicle, which she could enter from the right rather than the left. Accordingly, if it was possible it was recommended that Ms Sluggett have a workstation cubicle on the other side of the corridor.
     • The “T” arm on Ms Sluggett’s chair be repaired by replacement of the rubber covering. Otherwise, her chair was deemed to be suitable for her needs.
     • Due to difficulties Ms Sluggett had in sliding her chair in and out, due to her general weakness, she be provided with a plastic chair mat to reduce resistance between the chair and the carpet.
     • The height of her monitor be adjusted upwards.
     • Her document holder be moved to the left of the monitor.
     • Ms Sluggett be provided with a wireless headset and handset lifter. The purpose of these devices was to obviate the need for her to stretch to the left to answer the telephone where the switchboard was then located and to avoid creating difficulties on her right side by moving the switchboard to this side.
     • The rationale behind the provision of this equipment was that it would limit Ms Sluggett having to lift the handset and would allow her to answer the phone from anywhere in the office, avoiding her having to “rush” to lift the phone.
     • Ms Sluggett’s general information folders be placed at the back of her desk to allow easy reference.
489. Ms Sluggett complains that these recommendations were either not implemented or were implemented incompetently or cynically. It is the Commonwealth’s position that the majority of the recommendations were actioned appropriately and many of them were of a simple nature, such as the repositioning of the monitor, document holder and general information holders, and so were readily achievable by Ms Sluggett herself.
490. It is common ground that Ms Sluggett was not allocated a new work cubicle. Ms Agus’ recommendation was posited on the basis that a change of cubicle be made ‘if possible”. Mr Cohen’s evidence was that the move was not implemented because it was thought to be inappropriate when the costs of moving the switchboard were balanced against what was thought to be a minor advantage. I do not think that this decision can be categorised as being an unreasonable one.
491. The thrust of Ms Agus’ recommendation was that, if possible, it was preferable that Ms Sluggett enter her cubicle from the right rather than the left side. The recommendation was unrelated to any objective designed to reduce the distance Ms Sluggett had to walk to either the photocopier or the kitchen, as Ms Sluggett now contends.
492. Ms Merrick’s evidence is that the distance between the two cubicles was negligible, being less than two metres. In these circumstances, I accept the submission of the Commonwealth that this particular recommendation cannot be regarded as cardinal to the successful implementation of Ms Sluggett’s return to work plan. It is in my view a peripheral issue.
493. The arm of Ms Sluggett’s chair was ultimately repaired. Her complaint is in respect of the timeliness of the repair and the discomfort which she suffered in the meantime. It is the case that the issue of the repair of the chair arm was raised by both Mr Dewing and Dr Lewis in their respective reports.
494. However, it seems somewhat disingenuous of Ms Sluggett to complain of any delay arising from the implementation of the recommendations of either report, given the strictures she had placed on the release of them to management and her own extended absences from the workplace, during the first half of 2006.
495. Ms Sluggett asserts that she wrapped duct tape around the arm of the chair because she was getting scratches on her wrists and arm from pushing on the damaged chair arm. Ms Corbisiero deposes that she was unaware of this state of affairs, which was not the subject of any occupational health and safety report. I consider it unlikely that Ms Sluggett would not have made a specific complaint, if she had received such injuries.
496. In any event, I accept that arrangements were made for the chair to be repaired after Ms Agus’ report brought it to the notice of management. It was taken away on 22 June 2006 and returned, with new arms, on 31 July 2006. In a note made on this date, Ms Sluggett noted that the replaced chair arms had a “better feel and look stronger”.[124]
497. Perhaps the replacement of the chair arms could have been done more speedily and been prioritised sooner. However, the arms were replaced following the issue having been raised through the agency of Ms Agus. It seems against the bounds of probability that Ms Sluggett agitated the issue earlier in 2005, given the absence of any specific reference to the issue in her affidavit material or her contemporaneous notes. Ms Merrick has no recollection of the matter being raised prior to the Agus report.
498. In any event, the issue, as it pertains to these proceedings, does not turn on the timeliness or competence of the management’s response. Rather, what the court must determine is whether Ms Corbisiero, Ms Merrick and Mr Cohen would have treated an able-bodied person’s damaged chair more expeditiously and ignored Ms Sluggett’s chair, for a period of time, because of her disability. I do not believe that the evidence can sustain such a finding.
499. Ms Agus’ report was provided to Mr Cohen and Ms Merrick on 14 June 2006. Accordingly, steps were taken to repair Ms Sluggett’s chair within a week of Ms Agus’ recommendation coming to hand. Similarly, Ms Sluggett was provided with a chair mat on 20 June 2006. Ms Sluggett asserts that the chair mat provided to her was not the one which had been specifically recommended by Ms Agus.
500. Mr Cohen’s recollection is that, although the mat had not been obtained from the supplier recommended by Ms Agus, it had the same specifications. It is his evidence that he specifically checked with Ms Agus as to the type of mat available to him and that she confirmed that this would be suitable.
501. Ms Sluggett herself made a contemporaneous note of the dimensions and specifications of the chair mat, which was delivered to her. It is described as being 114 x 134 centimetres with studs suitable for carpet thicknesses less than 12mm. I am satisfied that the chair mat provided to Ms Sluggett was as recommended by Ms Agus.
502. In her evidence, Ms Sluggett complains that the mat did nothing to help her and caused her more harm than good. This may be so. However, in good faith, Mr Cohen took the required steps to obtain the chair mat recommended by Ms Agus as quickly as he possibly could. In so doing, I am satisfied that he was endeavouring to help Ms Sluggett.
503. The floor mat has assumed unwarranted significance in this case. The intent of its provision to Ms Sluggett was to reduce the friction between the wheels of her chair and the carpet. Whether it achieved this objective is immaterial. It was provided in good faith and according to the directions and specifications of the expert, who recommended it.
504. Ms Sluggett determined to discard the mat a couple of days after it had been provided to her. Whether this was a reasonable or a provocative decision on her part, I am unable to determine. Ms Sluggett contends that Ms Corbisiero actively forbade her contacting Mr Cohen, by email, to discuss the difficulties she was alleging having with the mat. I think this assertion is against the weight of the evidence.
505. Ms Corbisiero denies that she acted in this way and I accept her evidence in this regard. Ms Sluggett is fixated on the chair mat and the injustice accorded to her, which it seems to symbolise for her. In another context, the controversy regarding the chair mat could be regarded as being Gilbertian or Swiftian. Sadly, in the context of this case, it demonstrates how poisonous and difficult the work environment of the ICC had become.
506. Ms Sluggett’s behaviour and attitude in the workplace, including her removal of the chair mat, rapidly became a bone of contention between her and Ms Corbisiero. The impression I have is that the two embarked on a battle of wills over how Ms Sluggett would discharge her duties at the ICC, particularly whether Ms Sluggett could be prevailed upon to do anything, which she was not inclined to do. In my view, the most applicable descriptor of Ms Sluggett’s attitude at this stage and afterwards is a colloquial one. Ms Sluggett determined to be “bolshie”.
507. Ms Merrick deposes that, following her return to work, Ms Sluggett refused to do even the most basic of tasks. Ms Corbisiero provides the following description, which I accept, of what the atmosphere was like at the ICC at the time:
     • “I do not recall the date when the applicant removed the chair mat, but I believe that she did use it for about two days. I can recall that she only stopped using it a short time after I asked her to sort some invoices into manila folders. At this stage the headset had not arrived and the applicant spent most of her time attending to personal matters. I asked her if she could sort some invoices. She did not even raise the issue of the mat with me during that discussion. But shortly afterwards she was on the telephone calling people and making inquiries about the mat.”[125]
508. I accept that, from the perspective of Ms Corbisiero and Ms Merrick, it was extremely frustrating that Ms Sluggett seemed able to compile emails and make telephone calls relating to her own personal circumstances, particularly her sense that she was hard done by at the ICC, but was unable to do many of the tasks allocated to her. This is an important aspect of the case.
509. I am required to determine whether I prefer the evidence of Ms Sluggett to that of Ms Corbisiero and Ms Merrick in respect of what was happening at the ICC around this time. Ms Sluggett’s case is that she was valiantly trying to do what she could, in spite of her manifest physical disabilities.
510. The position of Ms Corbisiero and Ms Merrick is that nothing that was done by them would satisfy Ms Sluggett’s demands, as she was determinedly set on being as difficult and obstructionist as possible. An attitude she made manifest by declining to do any productive tasks in the office. On balance, I prefer the evidence of the management involved to that of Ms Sluggett.
511. Ms Sluggett asserts that she was not provided with the recommended telephone headset and handset lifter until 22 June 2006. This is true but Ms Sluggett refrains from giving other salient details about the provision of the equipment to her. Mr Cohen had begun the process of obtaining it at the time he prepared Ms Sluggett’s return to work plan on 30 May. A headset actually arrived on the ICC on 31 May. Regrettably it was faulty and had to be replaced.
512. Accordingly, the delay in provision of the equipment was not due to the callous disregard of the management, who actioned the issue promptly. In any event, I accept Ms Corbisiero’s evidence that Ms Sluggett, in the absence of the necessary equipment, declined to answer the telephone anyway.
513. The atmosphere at the ICC was difficult. I accept that Ms Sluggett’s attitude contributed to this difficult atmosphere and she did nothing to dispel it. It is Ms Sluggett’s case that she was the subject of unwarranted hostility from Ms Corbisiero, which began shortly after she had returned to work. This hostility was manifest by Ms Corbisiero excluding her from staff meetings and culminated in Ms Corbisiero swearing at her when a telephone went unanswered.
514. Ms Sluggett alleges that Ms Corbisiero used profanities, in her presence, during the period of May and June 2006. On the first occasion, it is alleged that Ms Corbisiero yelled from her office “answer that fucking phone”. On the second occasion, Ms Corbisiero is alleged to have said words to the effect “can’t these fucking ICCs answer telephones?” Ms Sluggett asserts that this latter comment was directed towards her because she was the only ICC staff member, who heard it.
515. Ms Corbisiero herself specifically denies ever having sworn at Ms Sluggett. Ms Merrick cannot recall Ms Corbisiero using the expressions attributed to her and believes if she (Ms Corbisiero) had done so, she (Ms Merrick) would remember because such behaviour coming from a senior public servant would have shocked her.
516. It is not beyond the bounds of possibility, that Ms Corbisiero would have been frustrated by the failure in respect of the phone being answered. In addition, although it may be regarded as impolite and unprofessional of Ms Corbisiero (or a similarly placed manager) to have sworn in the workplace, such behaviour cannot be regarded as extraordinary in the contemporary Australian setting. However, more importantly, in my view, the use of such profanities does not, of itself, constitute harassment within the meaning provided by section 35 of the DDA.
517. I do not specifically disbelieve Ms Corbisiero in respect of this incident. In addition, I do not think that Ms Sluggett has necessarily entirely fabricated the matter. However, in my view, she has given the incident undue emphasis.
518. As with other matters, about which she has subsequently complained, Ms Sluggett made a contemporaneous note dated 15 June 2006. The note reads as follows:
     • “2.40 – Tash asked to answer phone by Susan – come out of meeting/office swearing about needing someone to answer phone.”

What is revealing about this comment is that Ms Corbisiero’s “swearing” was not clearly directed at Ms Sluggett in her contemporaneous account of the incident.[126]

519. In cross examination, Ms Sluggett indicated that she had not specified everything of concern to her in the note. This seems unlikely, given her sensitivity about how she was treated in the workplace and her proclivity to make notes. Once again, it seems to be indicative of her propensity to distort, to her own advantage, historical behaviour in the workplace, in these subsequent proceedings.
520. A similar tendency is demonstrated when Ms Sluggett’s assertion that she was pettily excluded from meetings convened by Ms Corbisiero is subjected to scrutiny. Both Ms Merrick and Ms Corbisiero confirm that a meeting was convened, in mid-June for project-program staff at the ICC. Ms Corbisiero also deposes that Ms Napier, who was acting as her executive assistant, attended the meeting to take notes.[127]
521. Once again, this account of the meeting is also corroborated by Ms Sluggett’s own contemporaneous note, which reads as follows:
     • “4.30ish asked Tina N why I wasn’t included in the email re strategic planning meeting? She supposedly was just being a note taker – and it was only for seniors. It was OIPC strategic planning not FACSIA ...”[128]
522. As part of her return to work plan, Mr Cohen arranged for Ms Sluggett to be examined by another occupational physician, Dr Grantley Tschirn to ascertain her eligibility to receive a partial invalidity pension. Mr Cohen advised Ms Sluggett of the appointment on 30 May 2006, shortly prior to Ms Sluggett’s return to work. The appointment itself was scheduled for Friday, 16 June 2006.
523. Ms Sluggett requested that the day of the appointment be changed to a day other than Friday, which was normally her day off. From Mr Cohen’s perspective, this was not possible as he was dealing with an external agency and had to take the appointments which were allocated to him. In addition, it was his experience that he found it difficult to arrange appointments which were acceptable to Ms Sluggett other than those which occurred during working hours.
524. Dr Tschirn completed his report on 23 June 2006. He noted that the significant factor, for the sufferers of post-polio syndrome was the cumulative effects of fatigue during the working day. As a result of his assessment of Ms Sluggett and his understanding of the fatigue, weakness and muscle pain, which are the recognised clinical features of post-polio syndrome, Dr Tschirn made the following recommendations:
     • “Taking this into account I would recommend Ms Sluggett has reached her long term sustainable working level of 30 hours per work in a sedentary based job. Thus from my understanding she would meet the criteria for partial invalidity in any position. If she is to remain in her current position in the ICC registry there is a possibility she may have to reduce her weekly hours further in the medium term (down to 28 or even 26 hours per week) despite the adjustments to her workplace to accommodate her chronic medical condition. You may wish to consider this further, particularly if it is intended Ms Sluggett remain in her current job role. I am happy to complete a partial invalidity application ...”[129]
525. Ms Sluggett complains that Dr Tschirn was provided with an incorrect duty statement. I fail to see how this could affect the validity of the process undertaken by Dr Tschirn, which Ms Sluggett does not criticise. In any event, the duty statement in question was a generic document and it was open to Ms Sluggett to describe to Dr Tschirn what was the nature of the activities which she was expected to undertake. From the perspective of Mr Cohen and Ms Corbisiero, Ms Sluggett did few of the duties listed on the document in question, at the time of Dr Tschirn’s assessment, in any event.
526. Ms Sluggett is critical of Mr Cohen that he did not advise her promptly of the contents of Dr Tschirn’s report particularly that she was “entitled to a partial invalidity pension and [had] recommended that [her] hours be reduced.”[130] This is a misstatement on Ms Sluggett’s part, as Dr Tschirn had alluded to the possibility that Ms Sluggett would need to reduce her hours of work.
527. I am unaware of the mechanics of how Ms Sluggett became apprised of Dr Tschirn’s report but she must have become aware of the report at some stage because, in November of 2006, she formally applied to reduce her hours to 26 hours per week. Her application was supported by a report dated 31 October 2006, from Dr Quadros, her treating rehabilitation physician. The application was forwarded to Ms Merrick, as Ms Sluggett’s immediate supervisor and then on to Ms Corbisiero, to determine whether management supported or did not support the application.[131]
528. Ms Merrick indicated that Ms Sluggett’s application would be supported on the basis that she worked on Fridays each week, as another existing staff member, at the APS4 level, already had Fridays off and Ms Sluggett’s absence on this day would impact upon the office operations of the ICC. Ms Sluggett was aggrieved at this decision, which by implication she asserts was influenced by extraneous considerations relating to her disability and was therefore unlawfully discriminatory against her.
529. Ms Corbisiero agreed with Ms Merrick’s recommendation. As a consequence of this, Ms Merrick drew up a work schedule for Ms Sluggett based on a 26 hour week, which included Fridays from 9:00am to 3:15pm. Ms Merrick forwarded an email, with this schedule, which read as follows:
     • “As discussed, I support your application for part-time work on the basis that you work on Fridays each week. The reason being is that the APS 4 is currently on approved variable working hours and does not work on Fridays. This impacts on our office operations and in particular switch and reception functions.
     • I am quite happy to work with you and spread the working hours out over the week. However, because you have insisted on being provided with some specific details I have prepared a timetable below. Please note that I am quite willing to come to some flexible arrangements, so long as you work on the Friday. For example, you may choose to have another day off, alternatively spread the hours evenly over the four days to the total of 26 hours.”[132]

Under the work schedule proposed by Ms Merrick, Ms Sluggett had each Wednesday off.

530. Ms Sluggett sought an urgent review of this decision. The review was conducted by Vicki Toovey, the State Manager of FaCSIA at the time. Ms Sluggett submitted to Ms Toovey that it defeated the purpose of her taking part-time employment, which was based on considerations related to her health, if she was not able to take Fridays off. It being her position that such an arrangement would enable her to have a long weekend to recuperate after the exertions of the working week. It was also her position that Friday was the most suitable day on which to schedule any necessary medical appointments, which she required.
531. Ms Sluggett is critical of how her application for reduced hours was handled, particularly in respect of the allocation of a day to her free from employment commitments. She also suggests she was discriminated in respect of a flex debt arising from her reduced hours.
532. An examination of Ms Toovey’s written decision reveals otherwise. It indicates that Ms Sluggett assumed that her application for reduced hours had been successful, before its actual formal approval and had reduced her work hours unilaterally beforehand, creating a nominal flex debt, which was in any event forgiven by management.
533. Ms Toovey was critical of Ms Sluggett’s behaviour between 6 November and 24 November 2006, particularly that she had announced that she was reducing her hours, whilst the issue and how it would be implemented in practice, was still being considered by the ICC management. On Thursday, 9 November Ms Sluggett had taken sick leave and then been absent on medical leave until 23 November 2006. She had advised the management of this leave by email, without prior notification. Ms Toovey wrote as follows:
     • “... Management at the ICC, have the right to discuss such matters with the employee making the request and to review the operational impacts before a request comes into affect. The fact that you did not discuss the matter with either manager prior to going on leave and sought advice from the people branch, does not excuse your responsibility to advise your manager of your movements, especially as your request was clearly not approved before you took leave.
     • Even though this situation is the direct result of your assumptions that your actions and recommendations are accepted by management without communication or question, the rationale of medical reasons for your request has not been contested, and subsequently the ICC manager has advised that she will approve a request from you to have the flex debt accrued between 6 to 24 November removed.”[133]
534. In the period following her return to work, in late May of 2006, Ms Sluggett complains that she was subject to direct discrimination. To sustain this complaint it is incumbent on Ms Sluggett to establish that she has been treated less favourably than those in authority in the ICC would have treated a person without her disabilities, in the same circumstances.
535. In respect of Ms Sluggett’s application for part-time employment, I cannot see that she has been treated unfavourably in any way at all. Her application was granted, on the terms sought by her, including having Fridays off. She suffered no actual detriment in respect of her own unilateral decision to assume part-time hours, before those hours had been formally approved. In my assessment, Ms Sluggett’s needs in respect of her application to assume part-time employment were reasonably accommodated by the Commonwealth.
536. In addition, I am satisfied that Ms Corbisiero, Ms Merrick and Mr Cohen paid proper regard to the recommendations contained in Ms Agus’ report and acted on it promptly. The success of their efforts must be measured by regard having been had to the overall circumstances pertaining at the time. These circumstances include Ms Sluggett’s own obstructive behaviour in the workplace, which led to relations between her and the management of the ICC becoming more and more strained.
537. In my view, if a person without a disability had acted in the same way as Ms Sluggett in the discharge of her APS2 duties at the ICC, such a person would also have been the recipient of a hardening attitude from the management concerned. Ms Sluggett’s behaviour ensured that there would have to be some form of confrontation between her and management. This occurred on 22 June 2006.
538. At this stage, it is the evidence of Ms Merrick and Ms Corbisiero that they were at their wits end in dealing with Ms Sluggett, who declined to perform even the most basic of tasks at the ICC. This was notwithstanding the fact that the majority of Ms Agus’ recommendations had been implemented and it had not been suggested that Ms Sluggett was unable to perform any of the tasks related to the position assigned to her.
539. I also accept that Ms Corbisiero, Ms Merrick and Mr Cohen had indicated a willingness to discuss with Ms Sluggett modification of the duties set out in the generic duty statement attached to her position and had exhibited an openness to her being able to pace her work to cope with issues relating to her propensity to fatigue. Ms Sluggett responded to this by demonstrating what she was not prepared to do, rather than actively engaging in showing what she could do. From management’s point of view, it was imperative that a process be engaged to break this impasse, given Ms Sluggett’s unwillingness to engage with them.
540. All of the expert reports commissioned up to this staged indicated that Ms Sluggett was capable of performing a significant component of the duties allocated to her, provided some modifications were made. I accept that these modifications had been implemented genuinely by the management of the ICC, with a view to assisting Ms Sluggett. However, the modifications had not achieved the desired effect, namely that Ms Sluggett performed a reasonable number of the duties assigned to her within the scope of her responsibilities.
541. This placed the management of the ICC in an invidious position. From their perspective, Ms Sluggett refused to do even the most basic of tasks, whilst apparently being able to attend to her own interests during working hours. On the other hand, Ms Sluggett seemed unwilling to suggest what she could actually do, other than insinuating that she was able to return to her previously held research role at a higher APS designation. An option which was not open to management.
542. This impasse was heightened by the fact that Ms Sluggett found fault with the ergonomic modifications made for her and asserted that she was unable to perform her duties for medical reasons. In such circumstances and in the absence of any assurance from Ms Sluggett as to what she was able to do, Mr Cohen had no viable alternative other than to embark on another medical assessment of Ms Sluggett’s capacity to work and place her on leave whilst this occurred.
543. A meeting was convened on the afternoon of 22 June 2006 to discuss these issues. The meeting was attended by Ms Corbisiero, Ms Merrick and Ms Sluggett, with Mr Cohen being by telephone. Mr Cohen deposes that he had authority to place Ms Sluggett on miscellaneous leave, with pay, for a period of up to thirty days.
544. After consultation with Ms Corbisiero and Ms Merrick, he elected to exercise this power, whilst he obtained further professional advice about Ms Sluggett’s capacity to work. Underpinning this decision was his concern that Ms Sluggett not be placed in a situation of being allocated tasks, which she was not medically capable of doing.
545. Ms Sluggett categorises Mr Cohen as delivering her with an ultimatum. This may be her perception of the meeting, but I accept that from Mr Cohen’s perspective he had no viable alternative, given that it was unclear to him what Ms Sluggett was willing to do at work and given his impression that the workplace at the ICC had become toxic and the atmosphere needed to be cleared in some way.
546. Mr Cohen deposes that the reasons Ms Sluggett was placed on leave with pay included the following:
     • No suitable duties could be identified which Ms Sluggett was prepared to do;
     • Ms Sluggett continued to claim that she had problems with the ergonomics of her workstation; and
     • He believed that it was in the best interests of Ms Sluggett and the other staff at the ICC, in terms of maintaining a harmonious and healthy workplace.[134]
547. Ms Sluggett was absent from work, whilst on pay, between 22 June and 31 July 2006. During this period, Mr Cohen arranged for her to be assessed as to her fitness for duty by Anne Buchanan, a neuro physiotherapist and Peter Jezukaitis an occupational physician. In conjunction with his request that each of these specialists provide an assessment of Ms Sluggett’s fitness for duty, Mr Cohen provided them with a detailed letter setting out the perspective of the ICC’s management on her performance in the workplace.
548. In this letter, Mr Cohen summarised the difficulty which arose from the previous assessments obtained – they did not delineate with precision the tasks Ms Sluggett could or could not perform, whilst confirming that her post-polio syndrome led her to readily fatigue and suffer generalised pain.
549. Mr Cohen provided the specialists with a duty statement and summarised Ms Sluggett’s duties in his letter as being “mainly clerical and involved answering between 5 and 35 phone calls per day, taking messages and other clerical duties which are associated with her position.”
550. In addition, Mr Cohen wrote as follows:
     • “In our opinion this department has exceeded its ‘duty of care’ over the years when dealing with Ms Sluggett. We have ensured that assessments have been undertaken and consulted with qualified specialists to give Ms Sluggett every opportunity to be able to perform even the simplest of duties. Ms Sluggett consistently finds fault or minor problems in conditions or equipment provided which she says precludes her from working. For example she is currently claiming that the headset for her phone is incorrect and a plastic floor mat that has been provided as per a recent ergonomic assessment is also incorrect. She maintains this has prevented her from performing any duties as required.
     • Since returning from a period of leave on 3 June 2006, Ms Sluggett has made it very clear to both her manager and myself that she can not and will not do any of the duties as per her duty statement due to her Post Polio Syndrome.
     • On 22 June 2006, Ms Sluggett was placed on 3 weeks miscellaneous leave with pay pending assessment. This decision was made because:
     • ➢ She consistently failed to perform her duties despite every effort being made to accommodate her condition;
     • ➢ The frustration of her manager had escalated and they no longer felt they could manage (I have included an email from Ms Sluggett’s manager that shows some of the tension that has developed since Ms Sluggett’s return to work on the 3 June 2006);
     • ➢ The effect of the morale of other officers in the office.
     • It is our opinion and that of her managers that Ms Sluggett is not interested in her current position and considers that she should be placed in a position that is much higher than she is currently employed to do.”[135]
551. Ms Sluggett complains that each specialist was mislead because an incorrect duty statement was forwarded to them by Mr Cohen. I reject this submission. Clearly Ms Sluggett was able to tell Ms Buchanan and Dr Jezukaitis what she was required to do at the ICC, as indeed each of their reports indicates she did. In addition, I accept that over the preceding months, the duty statement, which was descriptive in nature, had been significantly modified by the deletion of duties.
552. Dr Jezukaitis assessed Ms Sluggett to be suitable for “seated only work” with limited walking, standing and squatting. He also found that pain and fatigue were likely to result in performance deficits but these were difficult to quantify.
553. Dr Jezukaitis noted that modifications had been made to Ms Sluggett’s workplace, which had created an environment in which she could be predominantly seated. As such, he recommended as follows:
     • “Providing that the work station has been set up appropriately along the lines of the detailed recommendations of Paul Dewing, I would not see it unsafe for the worker to attend work activities. Her underlying condition, however, may impact on work performance as may other medical factors. Paul Dewing, in his report, makes a number of comments with regards to job adjustment and modifications, that would appear to be reasonable and plausible.
     • In relation to the position description of Registry Officer, there are a number of activities that may be outside of the worker’s physical capabilities. This includes the handling of archive and record boxes. The manual scanning of documents may also be unsuitable; however this would depend upon the volume, nature and arrangement as well as the IT systems to support the process. The attendance to deliveries at reception and attendant security arrangements may be beyond the worker’s capacity, particularly if frequent walking or rapid response is required. I note Paul Dewing’s comment with regards to the mail and modifications and these would appear to be reasonable, noting that there is a modification to the delivery and collection of mail by Australia Post. In relation to managing and monitoring the use of office supplies, Paul Dewing indicates that this is an infrequent task but does indicate some occasional elevated arm or low-level work.”[136]
554. Ms Buchanan reported that Ms Sluggett’s case involved “complex issues”, which related not only to her disability but also her job satisfaction and aspirations. Ms Buchanan recommended counselling to deal with these issues, as well as to help her with dealing with her continuing pain. In this context, Ms Buchanan wrote as follows:
     • “There are complex issues obviously in her employment history, related to the need for modifying her tasks, change of work and her sense of not being able to do the type of work she feels able to do – eg research work. A complete change of department would perhaps be the better way to solve a continuing fraught environment.”[137]
555. Ms Buchanan considered that post-polio fatigue could be managed “within reason”. She reiterated the need for Ms Sluggett to pace and plan her activities. Ms Buchanan considered that Ms Sluggett would only be able to manage the collection of archive boxes up to 5kg in weight and no more than ten per day. She considered that she could answer telephone calls with a suitable headphone and desk base for note taking. She recommended light sorting of correspondence, with this activity to be paced. She considered it problematic for Ms Sluggett to walk around a large office department regularly.
556. The concluding tone of Ms Buchanan’s report is guarded. She wrote as follows:
     • “The prolonged history of work relationships, fatigue, ergonomic misfit and declining strength will really need to be confronted by a trial in another office and another job with good ergonomics after careful career/lifestyle counselling. Some people with polio eventually have to leave work.”[138]
557. Dr Jezukaitis’ report was received by Mr Cohen on 12 July 2006 and Ms Buchanan’s report on 18 July 2006. These reports form the background as to what happened next, when Ms Sluggett returned to work following a meeting with the ICC management, which was attended by her friend Ms Cowell.

g) The period from 26 July – 28 July 2006 – the meeting with Ms Cowell

558. Clearly, Ms Sluggett could not remain indefinitely on miscellaneous leave with pay. This had been a short term solution designed to diffuse the situation in the ICC, whilst management considered its position. Accordingly it was necessary to convene a meeting to discuss what would happen next, in the light of the new material which was to hand.
559. The meeting was scheduled for Friday, 28 July 2006. Ms Sluggett complains that a Friday was utilised, which was ordinarily her day off. Given the operational pressures on Mr Cohen, who had to come from interstate for the meeting and given that Ms Sluggett had in any event been on leave for over a month, this seems to me to be a somewhat querulous complaint. It has no relevance in the context of her DDA application.
560. I accept that the meeting was difficult and confrontational. Mr Cohen, Ms Corbisiero and Ms Merrick wished to make it clear to Ms Sluggett that her refusal to undertake the basic duties of the APS2 registry officer position was unacceptable to them. As such, their tone with her was firm rather than conciliatory. However, I also accept that it would have been their preference that there be some form of collaboration with Ms Sluggett as to how the reception/administrative duties at the ICC could be best performed. I find that Ms Sluggett was not prepared to be collaborative.
561. The ICC management prepared minutes of the meeting. Ms Sluggett was not invited to verify these minutes.[139] I accept that the minutes are generally accurate but do not record everything which was said and done at the meeting. In their respective evidence, Mr Cohen, Ms Corbiesero and Ms Merrick generally corroborate one another.
562. Ms Cowell supports Ms Sluggett’s contention that she was the subject of unwarranted hostility at the meeting, which distressed her. In my view the tone of the meeting set by management was directional of Ms Sluggett rather than hostile. All agree that Ms Sluggett left the meeting upset, angry and emotional.
563. The meeting centred on Ms Sluggett’s ongoing duties at the ICC. This had been the rationale of her being placed on leave with pay, whilst the further assessments of Dr Jezukaitis and Ms Buchanan had been obtained. The purpose attributed to the meeting in the minutes being “to meet and clarify with Chandra her duties following her medical assessment.”
564. The meeting began with Ms Corbisiero presenting Ms Sluggett with a duty statement.[140] Ms Sluggett asserts that the proposed application of this modified duty statement to her circumstances was, of itself, discriminatory towards her, because it added to her duties and allowed less modification of them than had been previously provided to her. The implication being that the duties concerned were set in stone.
565. I do not accept that this is the case or accurately reflects the intent of management at the meeting. I accept that the reality of the situation, between Ms Sluggett and the management, was that the various duty statements in question, largely similar to one another, had always been the starting point for a discussion as to what it was hoped by management Ms Sluggett would do and what she herself was prepared to do at the ICC.
566. In addition, some of the duties on the statement were otiose, given the circumstances then prevailing. For example it had never been expected that Ms Sluggett would provide personal assistant services to either Ms Corbiesero or Ms Merrick. The minutes record that the purpose of the meeting was to provide feedback about Ms Sluggett’s duties.
567. The duty statement tabled at the meeting had been modified. It provided that Ms Sluggett would not have to lift files and those which she was required to process would be placed on her desk by someone else. Other modifications were listed in respect of the mail. I do not think that the duties specified in this duty statement can be said to be markedly different to those specified in her earlier DIMIA duty statement.[141]
568. Certainly, I do not accept that the latter duty statement added to Ms Sluggett’s duties, particularly when regard is had to other extraneous circumstances and the directions which were provided to her at a later stage by Ms Corbisiero. It does not seem to be the case that Ms Sluggett raised the issue of the earlier duty statement at the meeting in question.
569. In any event, from management’s point of view, which I accept, at the time Ms Sluggett was performing little, if any, of the duties set out in either of the duty statements. Certainly she had not performed mail duties for some time and had only recently begun to use the switchboard.
570. This was the impasse which the meeting was intended to break. The management being concerned that Ms Sluggett was not apparently willing to say what was within her capabilities, whilst the expert reports indicated that she had some capacity to do the work required of her as specified in the duty statements, if some modifications were made. It being the management’s perspective that these modifications had been made.
571. Ms Corbisiero describes Ms Sluggett as being “hostile” at the meeting. This hostility being manifested by Ms Sluggett demanding that the management demonstrate explicitly to her how she was physically to perform each task on the duty statement. From Ms Corbisiero’s perspective, this was unreasonable and oppositional. The problem being that, in effect, Ms Sluggett was demanding to be directed exactly as to what she was to do, whilst not being willing to indicate what she was actually able to do or not to do.
572. Ms Corbisiero’s response to Ms Sluggett being that the management accepted that she (Ms Sluggett) could self manage her tasks and spread them, including responsibilities for the mail, throughout the day. This being the import of the various professional recommendations obtained by Mr Cohen and his predecessors. There being nothing inherently complex in any of the tasks allocated to Ms Sluggett and it not having been said that the preponderance of them was beyond her physical capacities.
573. The duties contained in the statement comprised the following:
     • Perform registry functions relevant to the creation of files and the maintenance of existing ones;
     • Perform reception and switchboard services;
     • Record and distribute incoming and outgoing correspondence;
     • Provide general administrative and clerical support;
     • Provide assistance to corporate services officer (APS4) as required;
     • Provide personal assistance to the ICC Manager and Deputy ICC Manager.
574. Ms Sluggett complains that this is a lengthy list of duties. I accept that it was regarded as a generic list by Ms Corbisiero and Mr Cohen. From their point of view, the important duties for Ms Sluggett were ensuring the phone was answered; visitors and reception were attended to; and the incoming and outcoming mail was completed.[142]
575. Regrettably, Ms Sluggett’s stance at the meeting deepened the impasse at the ICC and hardened the attitude of its management. Ms Sluggett now complains about the competence of the reports of Dr Jezukaitis and Ms Buchanan, in respect of the fact that neither of them actually visited her workstation at the ICC. However, at the time, the reports had served their function, so as the management was concerned. What they wanted to know was, from a medical perspective, what tasks could Ms Sluggett do or not do. They wanted Ms Sluggett’s feedback about these issues.
576. In response Ms Sluggett raised other issues which were extraneous to those raised in the expert reports. She queried the chair mat which had been provided to her; she asked to be provided with a stool to use whilst sorting the mail; she asked for a further assessment to be made of the foyer door, leading to its possible replacement. I can appreciate why, from the standpoint of the management, it was their perception that Ms Sluggett was only willing to provide an ever changing list of requirements and demands, which could never be satisfied but rather would only ever be added to.
577. The minutes record that Mr Cohen advised that the workstation modifications arising from the Agus Report had been undertaken and the chair mat provided met those recommendations. He also declined the request for a stool on the basis of his view that it represented a potential occupational health and safety threat because it might topple over, whilst Ms Sluggett used it.
578. Mr Cohen has deposed that he was unwilling to consider an assessment of the foyer door of the ICC because, as the department was to move again in a few months time, he did not think the expense could be justified. This specific issue is not minuted in the records of the meeting.
579. Given Ms Sluggett’s attitude displayed in the meeting, in my view, Ms Corbisiero and Mr Cohen had no realistic alternative other than to indicate to Ms Sluggett that she was required to perform the duties allocated to her. The only other course was to do as Ms Sluggett impliedly preferred, which was to enter on a possibly unending process of further negotiations and investigations about the workplace.
580. I can understand why, from management’s perspective, this was untenable. On the basis of the evidence available to me, it does not seem to be unreasonable for Ms Corbisiero, Mr Cohen and Ms Merrick to have reached the conclusion that nothing which they did for Ms Sluggett would satisfy her demands. Accordingly, they had no reasonable alternative but to be directorial towards Ms Sluggett in respect of what was required of her whilst at work.
581. In my view, an abled bodied person, who was similarly querulous and oppositional to management, in such a context, would have been treated in the same way as Ms Sluggett was. Given Ms Sluggett’s reaction at the meeting, it was, in my view, appropriate for Mr Cohen to raise with Ms Sluggett issues related to possible censure of her conduct pursuant to the provision of the Australian Public Service Act and its associated Code of Conduct and Values. I reject any suggestion that this was done in an attempt to intimidate or harass Ms Sluggett.
582. Ms Sluggett asserts that it was Ms Corbisiero who became angry and hostile during the meeting, rather than her. Ms Corbisiero concedes that she may have become agitated but denies becoming angry. The minutes record that Mr Cohen indicated to Ms Sluggett that he “was not going to argue.” These matters confirm my finding that the meeting was a difficult one for all concerned.
583. As indicated earlier, Ms Cowell had only received Ms Sluggett’s account of what had been happening at the ICC, prior to the meeting. As such, Ms Cowell had a limited and one sided understanding of management’s relations with Ms Sluggett. Given these circumstances, her evidence does not cause me to change my findings about the conduct of the meeting.
584. On 3 August 2006, Ms Corbisiero provided Ms Sluggett with clarification about what she and Mr Cohen had intended to convey when the issue of the Code of Conduct had been raised at the meeting. It was a formal warning of the managements attitude. Ms Corbisiero indicated in an email to Ms Sluggett that unless she had:
     • “any medical evidence or valid reasons why you cannot perform your duties and follow lawful and reasonable directions, then based on the workplace modifications made and the medical assessments undertaken, you are expected to follow lawful and reasonable direction and perform the tasks per your duty statement.”
585. In this email Ms Corbisiero confirmed that Ms Sluggett’s priorities included but were not limited to switchboard, reception and mail. This puts to rest any suggestion that the effect of the meeting was to extend Ms Sluggett’s duties unreasonably. Rather she was put on notice that she was expected to attend to these clerical duties, unless she had a valid reason not to but otherwise a code of conduct process would be considered against her.

h) Events between 28 July 2006 – 10 May 2007 Ms Sluggett’s return to work

586. The meeting of 26 July 2006 intensified rather than dissipated the toxic atmosphere within the ICC. It set the scene for further confrontation. The first flashpoint was the mail. I am satisfied that Ms Sluggett was intent on engineering further sources of friction with the management rather than the reverse. On the other hand, Ms Corbisiero was determined to win any battle of wills with Ms Sluggett and ensure that she began to perform the modified mail duties, which none of the expert reports had indicated were inherently beyond Ms Sluggett’s capabilities.
587. Ms Sluggett returned to work on 31 July 2006. She decided to modify her workplace by moving the mail containers to the desk next to her. She asserts that she did this because otherwise she could not perform her duties without hurting herself. I reject this assertion, which is not supported by any of the expert material.
588. It seems more likely than not to me that she moved the mail containers as a provocative gesture, as a consequence of the meeting which had preceded her return to work. This is demonstrated by the tone of her email to Mr Cohen about the topic.[143] The movement of the mail containers meant she could not attend to the switchboard, whilst she sorted the mail.
589. The unilateral movement of the mail containers, to another desk, was unacceptable to Ms Corbisiero, who had them moved back. It is her evidence that the desk which Ms Sluggett had wanted to use had been allocated to visiting staff members. Viewed in isolation, Ms Corbisiero’s action may appear petty. However, given the outcome of the 26 July meeting, I can understand why she would not be willing to overlook unilateral actions taken by Ms Sluggett.
590. The issue of the mail became the leitmotif of the battle of wills between Ms Sluggett and Ms Corbisiero. Ms Corbisiero’s evidence is that she cannot remember Ms Sluggett ever having done the mail, as other staff members usually attended to it because Ms Sluggett would not. Ms Sluggett’s position is that she was frustrated in this task by the unreasonable refusal of management to provide her with a stool to enable her to sit down.
591. There is some controversy between Ms Sluggett and Ms Corbisiero as to how demanding the mail duties were. Ms Sluggett’s suggested that there could be as many as two hundred mail items. In her affidavit, she deposed as to having to deal with between four and eighty-five items. It is interesting to note that her own handwritten account for 8 and 9 August 2006 suggests eight and nine items of mail respectively. [144] I find that Ms Sluggett has exaggerated how onerous the mail duties were for her.
592. In any event, I am satisfied that, in keeping with the expert opinions available to her, which had raised issues to do with Ms Sluggett’s propensity to fatigue, Ms Corbisiero was sympathetic and responsive to Ms Sluggett’s needs in respect of the mail. On 3 August 2006, Ms Corbisiero sent an email to Ms Sluggett as follows:

“I understand you have already sorted today’s incoming mail. Yesterday’s and today outgoing mail need to be done. You can manage this as you determine best, such as break the tasks down over the day or wheel a chair over to the workstation and sit down. If there is an alternative method you would like to use, then please advise. However we will not provide a stool as previously requested as there are no ergonomics attached to a stool and it represents an OH&S risk. As a duty of care we as an employee cannot introduce such an item of furniture. A stool is not a common piece of ergonomic furniture and offers no support to any part your body except the buttocks. It would be safe to presume that once you are sitting on a stool and you have no other way of supporting yourself and you may run a high risk of falling from the stool. FaCSIA has gone to great length and cost to provide you with a safe and ergonomic work environment and is committed to do so in all cases.”[145]

593. I appreciate that the tone of this email is somewhat self serving and perhaps condescending. However, it occurred in the context of Ms Corbisiero’s perception that Ms Sluggett was looking for any pre-text to avoid doing the mail. In my view, that perception was not unreasonable given that it is my finding that Ms Sluggett was disinclined to attend to the mail, come what may.
594. For obvious reasons, Ms Corbisiero felt that Ms Sluggett’s actions were a challenge to her authority. As such, it is to be expected that she would want to document her dealings with Ms Sluggett to protect herself. The email quoted above was one of several which passed between her and Ms Sluggett.
595. Ms Corbisiero deposes that she felt “powerless” when dealing with Ms Sluggett. She categorises the mood in the ICC as “terrible” because of Ms Sluggett’s negative attitude and her continual refusal to carry out her duties. As noted earlier, the effect of Ms Sluggett’s behaviour on the morale of other staff members had been one of the motivations for placing her on leave with pay during much of July.
596. Ms Corbisiero describes the situation in the ICC, at the time, as follows:
     • “Many staff members were too frightened to talk to the applicant, in case their conversation was noted down by the applicant in the exercise book she was constantly writing in and subsequently used against them. During the whole of my time as ICC manager the applicant never demonstrated a genuine willingness to try to perform the duties of her role as registry officer.”[146]

I do not regard this evidence as an overstatement of the situation in the ICC.

597. The various emails passing between Ms Corbisiero and Ms Sluggett, regarding the mail in this period, must be viewed in the context of the intensifying confrontation between the two. On 2 August, Ms Ansell, the APS4 officer was absent from work. This state of affairs led to Ms Corbisiero sending an email reminding Ms Sluggett that she was expected to complete the mail and ensure the phones were covered, notwithstanding Ms Ansell’s absence.
598. Later that day at 4.06pm Ms Corbisiero sent a further email reminding Ms Sluggett that the mail had not yet been completed. Later again, after Ms Sluggett had apparently declined to do the mail, Ms Corbisiero emailed once more indicating that she was formally advising Ms Sluggett that she regarded her as having refused to do her duties and that this had become a “performance and code of conduct issue.”
599. The following day, in the early morning, Ms Sluggett sent emails to the departmental heads of both FaCSIA and the OIPC, in which she complained that she had been threatened with code of conduct proceedings because of her refusal to perform the registry mail duties standing up.
600. She complained that she had been refused equipment (eg a chair) to assist her. Following Ms Sluggett’s email to the senior department heads, it was determined by a senior manager within FaCSIA’s Peoples Branch that her communication would be regarded as a request by her for a review of employment action. The manager concerned, Mr Wesley Slater, wrote to Ms Sluggett that day outlining what was his understanding of the situation. Prior to writing to Ms Sluggett, he had spoken to Ms Sluggett, Mr Cohen and Ms Corbisiero and was anxious to find some way of resolving the matter.
601. It was Mr Slater’s understanding that Ms Sluggett had been found fit to return to duty and had been directed to perform duties relevant to her position. However, it was her contention that, because of her medical condition, she was unable to perform some of the duties in the manner directed. It was on this basis that Mr Slater recommended that there be a review of actions procedure adopted.
602. It was following Ms Sluggett’s invocation of senior management that Ms Corbisiero forwarded the email, which I have detailed above. In the email, Ms Corbisiero confirmed that she had spoken to FaCSIA’s people branch and a had been advised that Ms Sluggett was expected to follow lawful and reasonable directions provided to her unless there was medical evidence or some other valid reason as to why she could not comply with these directions.
603. In my view, it is disingenuous of Ms Sluggett to suggest that she was given no option other than to do the mail standing up. The objection of management was to a stool, which both Mr Cohen and Ms Corbisiero had vetoed on occupational health and safety grounds, not in order to spite or frustrate Ms Sluggett. As previously indicated, in my view, the other proposals made in Ms Corbisiero’s email of 3 August 2007 were conciliatory.
604. Following the events of 3 August, Ms Sluggett complains that Ms Corbisiero and Ms Merrick subjected her to micro-management. This is unfair. In my view, Ms Sluggett’s behaviour in the office demanded a significant degree of oversight by management. I also appreciate that this was difficult and demanding to provide. I accept that Ms Sluggett continued to be both actively and passively resistant to the efforts of management. Ms Corbisiero describes the situation as follows:
     • “Ms Merrick endeavoured to manage the applicant, as well as managing the other staff in the office, but it was very difficult, especially as other staff were picking up the slack from the applicant’s continuing refusal to carry out her duties. Managing the applicant was very difficult and personally I reached a stage where on many occasions I found it easier for me to do nothing about the applicant’s continuing refusal to do her job, rather than ask the applicant to do anything.”[147]

I accept this evidence.

605. Notwithstanding these difficulties, Ms Corbisiero continued to provide conciliatory suggestions as to how Ms Sluggett could approach the mail. It also seems to be the position that on at least a few occasions, Ms Sluggett did complete the duties applicable to the mail. On 7 August 2009, Ms Corbisiero sent an email to Ms Sluggett thanking her for completing the mail the previous Thursday. In addition, she wrote as follows:
     • “If you feel it necessary to sit down to perform the task, then I believe doing the mail at your desk is the bettor [sic] method than your proposal below as the height of the desk is already specially adjusted for you and it means using you [sic] current chair. This also leaves the other desk free for visitors. The items needed for completing the mail – the small scales, the red box with the mail and the booklet for recording mail can be placed on your desk and the AustPost mail contained on your desk or floor whichever you prefer.
     • Thursday myself and Tina Napier brought the items to you desk. I did this in order to help you complete tasks. We also had more mail than usual given that you did not complete the mail on Wednesday.
     • In the future if you prefer to sit to perform the mail, I would expect you to bring the items to your desk yourself as they are well under 5 kg and only a few feet away. The scale is small and just over 1kg in weight – it is only used for the mail so if you prefer to move its storage space from above the pigeon holes then you can do so provide [sic] it is kept in the mail area. The mailbox with the mail is the only item that will vary in weight and given the small quantity of outgoing mail generated by this office, this would typically be manageable, however if you feel you need assistance eg. There is a lot of mail, parcels, etc please do not hesitate to contact another staff member for assistance. I recommend asking Tina Napier as she is the closet [sic] to you. Even though it is not heavy (unless there is a lot of mail) the AusPost mail container is a little bulky, thus again if you feel you need assistance, as was the case the other day, another staff member can take the mail box to reception for collection when you have completed the mail. Again I recommend you ask / make arrangements with Tina to take the mail to reception.
     • As too I have said many times, we do not want you to exacerbate your existing conditions and expect you to manage the way and pace of performing duties. As I previously mentioned for the mail or any other task, you can choose to break up the task. We do also expect you to use the ergonomic equipment provide and adjustment made in the office.”[148]
606. Again, I appreciate that this email could be regarded as self serving and protective of Ms Corbisiero in respect of her dealings with Ms Sluggett. I do not interpret it as such. To my mind it is a constructive email. It reinforces my impression that Ms Corbisiero would have preferred to have a productive relationship with Ms Sluggett rather than one marked by difficulty and confrontation. However, it is my finding that Ms Sluggett was intent on finding reasons to escalate the conflict in the workplace.
607. There was no formal requirement, imposed by Ms Corbisiero on Ms Sluggett, that she perform the mail “standing up”. Ms Corbisiero had a valid reason, relating to the potential for it to overturn, for not wanting Ms Sluggett to utilise a stool to do the mail. Importantly, given the content of the various expert reports, which had been prepared, Ms Corbisiero offered assistance to Ms Sluggett for items of heavy mail and was open to her pacing her activities throughout the day. In any event, Ms Sluggett ceased performing mail duties from mid August onwards.
608. On 8 & 9 August 2006, another Commonwealth department made arrangements to conduct eleven graduate job interviews at the ICC. As a result, Ms Sluggett was requested to meet and greet each of the applicants at approximately forty-five minute intervals, show them the interview room and provide them with copies of interview material. This process involved Ms Sluggett opening the door of the ICC. Ms Sluggett complains that she was directed to perform this task “against medical recommendations”.[149]
609. The impression given by Ms Sluggett’s affidavit is that she was obliged to get up and answer the door on each of the eleven occasions required. This was not the case. Ms Sluggett’s own contemporaneous notes, made on her copy of the timetable for the interviews, is that the interviewees had received an email requesting them to contact Tina Napier, from the phone downstairs. In these circumstances, Ms Sluggett answered the door to six of the interviewees concerned.[150]
610. Accordingly, it is not the case that no assistance was offered to Ms Sluggett in respect of this particular task. In addition and more tellingly, Ms Sluggett does not specify what were the medical recommendations, which precluded her from answering the door. Ms Merrick’s evidence was that Ms Sluggett used the door, for her own purposes, on four to six occasions each day and had never raised any complaint about its operation with her.
611. Following the interviews, on 10 August 2006, Ms Sluggett emailed Ms Merrick and Ms Corbisiero informing them that she was suffering considerable pain in her hips and right foot as a result of answering the foyer door. As such, Ms Sluggett informed them that she would no longer answer the door until such time as it had been replaced by an automatic front door, which could be operated by a button from her desk.[151]
612. Management did not challenge this decision made by Ms Sluggett, which passed without demur from either Ms Corbisiero or Ms Merrick. Ms Sluggett had requested the modification of the front door at the meeting, which Ms Cowell had attended on 28 July. Mr Cohen has provided evidence that the cost of fitting such an electronic door was in excess of $10,000.00. As the ICC was being relocated at the end of the year and received few visitors per day, he did not believe that such a cost should be justified.
613. The uneasy atmosphere continued at the ICC throughout August and afterwards. The issues remained the same – the chair mat; the appropriateness of the workplace assessments; and the relations between Ms Sluggett and Ms Corbisiero, in respect of Ms Sluggett’s performance of the duties allocated to her. Lengthy emails about these topics were exchanged between the various actors concerned.
614. Ms Sluggett deposes that she was fobbed off by Mr Cohen, when she told him the chair mat was unsuitable for her needs. The email correspondence reveals otherwise.[152] Mr Cohen consulted with Ms Agus about the mat. She advised him that the upward facing surfaces of the floor mats were identical. Where the mats differed was in their anchor points, which were adapted to different floor types.
615. Essentially, the friction arising between the wheels of a chair and any such floor mat remained identical. The differences in prices of chair mats depended on the quality of plastic used. Mr Cohen emailed Ms Sluggett on 1 and 2 August 2006. He advised her that the chair mat supplied to her was suitable for a low pile carpet, which was the type of carpet within the ICC.
616. In addition to speaking with Mr Agus, Mr Cohen also contacted a supplier of ergonomic office furniture and was advised that there was no difference in the top surfaces of floor mats and the differences in the amount of force (newtons) required to move a chair over different floor mats was “almost immeasurable.” These inquiries caused Mr Cohen to write to Ms Sluggett as follows:
     • “I believe that FaCSIA has fulfilled its “duty of care” and complied with the requirements as per CRS and Kate Agus’ report. It has been noted that you have declined the use of the mat and you are not fully complying with the recommendations of the CRS report.
     • No further action will be taken by me in regard to this matter. If you would like to take this matter further please contact John Law, alternatively I suggest you seek a review of actions as per the FaCSIA CA ...”
617. Ms Sluggett also complains that she was declined a further workplace assessment in contravention of FaCSIA’s reasonable adjustment policy. This request was made to Lucy Simic, FaCSIA’s disability coordinator in November of 2006. Ms Simic declined the request.
618. On 9 November 2006, Ms Simic advised Ms Sluggett that she had a limited amount of funds available for the “assistive technology needs” of FaCSIA employees. In order to access those funds for another workplace assessment Ms Simic advised Ms Sluggett that she would need to receive some medical evidence, from Ms Sluggett, that her condition had changed significantly, given that Ms Agus had prepared a workplace assessment as recently as June 2006.
619. In actuality, Ms Sluggett had not applied for an adjustment to her workplace. What she asked for was another workplace assessment, which was not supported by any formal medical evidence. In those circumstances, I do not believe that Ms Sluggett was subject to any illegal discriminatory conduct. I find that any other employee, in such circumstances, would have been treated in the same way.

i) The review of action report

620. As previously indicated, FaCSIA management, in the form of Mr Slater, regarded Ms Sluggett’s email to senior management of 3 August 2006, as a request, on her part, to review the handling of Ms Sluggett’s return to work, particularly whether management had assigned her appropriate duties to do in the light of the medical evidence available. Ms Julie Baker-Smith, an independent consultant, was nominated by FaCSIA management to conduct the review.
621. Ms Sluggett is critical of Ms Baker-Smith’s report. In particular, Ms Sluggett asserts that she was given insufficient time to respond to the investigation and Ms Baker-Smith was provided with incorrect information, particularly in terms of the duty statement which was provided to her. I assume that Ms Sluggett asserts that these are incidents of direct discrimination against her.
622. Ms Baker-Smith was appointed to undertake the review on 17 August 2006. She first contacted Ms Sluggett on 23 August and interviewed on 31 August. Regrettably, the electronic record of this interview was lost by Ms Baker-Smith. In these circumstances, Ms Baker-Smith offered Ms Sluggett a further interview appointment or to supply her with the framework of her statement for Ms Sluggett to complete by email. Ms Sluggett accepted the second alternative.
623. In particular, Ms Baker-Smith asked for Ms Sluggett’s response to three questions, as follows:
     • Whether the duties assigned to Ms Sluggett were appropriate, given her medical condition and in accordance with the medical advice obtained prior to her recommencing duties;
     • Whether the workplace modifications made to accommodate Ms Sluggett complied with the workplace assessments and were appropriate for her to carry out the duties allocated to her;
     • Were the identifiable alternatives to the workplace arrangements and return to work plan provided to Ms Sluggett which would conform with both the medical advice provided and be acceptable to Ms Sluggett and management.
624. Ms Sluggett provided brief answers to these questions, by email, on 5 October 2006. However, she was unable to comply with the timeframe set by Ms Baker-Smith, which was subsequently extended on a number of occasions, to provide a more lengthy statement.
625. I am satisfied that Ms Baker-Smith gave Ms Sluggett an ample opportunity to take part in the review of action process. I am satisfied that Ms Sluggett responded to Ms Baker-Smith’s requests for information with obfuscation and delay.
626. I am also satisfied that, if Ms Baker-Smith had been compiling a similar review, in respect of another employee and had met with such delay, she would have felt compelled to finalise her review. The review of action report was completed on 23 October 2006, approximately two months after Ms Sluggett had been initially interviewed.
627. In my view, nothing turns on the duty statement provided to Ms Baker-Smith. She was aware of the duties required of Ms Sluggett and was provided with all relevant information, including copies of the Lewis, Dewing and Agus reports. In addition, she interviewed Ms Corbisiero, Ms Merrick and Mr Cohen, as well as Ms Sluggett herself. Accordingly, all concerned had a more than adequate opportunity to explain to Ms Baker-Smith what was expected of Ms Sluggett at the ICC.
628. Ms Baker-Smith found that the ICC management had substantially implemented the recommendations of the Dewing, Lewis and Agus reports and had supplied the ergonomic equipment to Ms Sluggett recommended in those reports. However, Ms Sluggett herself had failed to observe the recommendations of the various experts and to utilise the equipment provided for her.
629. Ms Baker-Smith’s main findings were that there was no evidence available to her to show that the duties assigned to Ms Sluggett were inappropriate or were not in accordance with the medical advice available. She also found that the workplace modifications made to accommodate Ms Sluggett’s needs substantially complied with the workplace assessments carried out and were appropriate for her to carry out the duties for which she had been allocated.
630. Ms Baker-Smith made two specific recommendations regarding modifications to Ms Sluggett’s workplace. They were firstly relocating Ms Sluggett’s workstation across the aisle, from where she was then located and secondly Ms Sluggett use emails as an alternative to direct forms of communication within the ICC office.
631. Ms Baker-Smith did not form a favourable impression of Ms Sluggett. In particular, she was critical of Ms Sluggett’s response to the review process, particularly her failure to provide a written submission to Ms Baker-Smith, notwithstanding the time extended to her in which to do so. In her report, Ms Baker-Smith wrote as follows:
     • “We now consider Chandra Sluggett to have been quite disingenuous about her professed willingness to cooperate with this Review. An examination of the folio documents we have been provided with and the evidence of the witnesses in this Review suggests that her modus operandi, when she is required to commit to a course of action, is to consistently fail to do so, attributing every default to her disability and tendency to “fatigue”. We note, however, that in the intervening period since our interview with Sluggett she has taken a holiday in Sydney, where, she said at interview, she attended a wedding and for which, she said at interview, she intended to make her dress. Since the date of interview we have only been able to contact Sluggett on the rare occasions she has attended work. At other times she has completely ignored our emails, text messages and telephone messages, despite overwhelming us with email correspondence at the commencement of this Review. Indeed, in order to contact her we resorted to calling her after hours from a “private number”. Sluggett has recently informed her employees that she has been absent from work due to illness, yet on this so-called sick leave, when we spoke with Sluggett by telephone, she said that she had taken time off work to complete her statement and submission.
     • The evidence is that Chandra Sluggett has no difficulty:
     • ➢ Writing lengthy emails connected with processes arising from her disability and other personal matters (as evinced by the evidence generally);
     • ➢ Standing at the photocopier for lengthy periods to copy personal documents (according to Susan Corbisiero);
     • ➢ Standing for lengthy periods, chatting to other staff about non-work related matters (according to Susan Corbisiero);
     • On the basis of the entire evidence considered throughout the course of this Review we make the following opinion based observations:
     • 1. Chandra Sluggett’s workplace behaviour since August, 2005 has been characterised by an indirect resistance to directions and expectations for adequate performance; anger; opposition to authority and the expectations of others, all of which have been expressed covertly by:
     • ➢ Obstructionishm;
     • ➢ Obfuscation;
     • ➢ Procrastination;
     • ➢ Stubbornness;
     • ➢ Non-compliance;
     • ➢ Intentional inefficiency.
     • 2. For reasons that are not entirely clear, Chandra Sluggett appears to have no intention of ever performing the duties set out in the modified APS 2 Registry Officer PD.
     • 3. Chandra Sluggett’s behaviour since August, 2005 has been in breach of APS Values (notably: ethical standards; achieving results) and the APS Code of Conduct (notably: behave honestly and with integrity; care and diligence; treat everyone with respect and courtesy, and without harassment; comply with any lawful and reasonable direction; uphold APS Values and the reputation of the APS).
     • 4. Chandra Sluggett’s behaviour has had the effect of traumatising those who have attempted to manage any aspect of her work, including the management of her “rehabilitation” with respect to her disability. We characterise this behaviour, in some of its manifestations, as bullying behaviour.”[153]
632. Undoubtedly this was a harsh finding in respect of Ms Sluggett. On the basis available to me, which covers the same period as that encompassed in Ms Baker-Smith’s report, I do not consider Ms Baker-Smith’s findings to be either unreasonable or against the weight of the evidence available. In my view, Ms Baker-Smith conducted a thorough investigation and one on which the Commonwealth was entitled to rely.
633. The review of action report was forwarded to Ms Lawless, who responded to it on 23 October 2006. In this regard, Ms Lawless wrote to Ms Sluggett in the following terms:
     • “... the only reasonable conclusion based on the evidence is that the directions provided to you are lawful, reasonable and fully compliant with the medical evidence and workplace assessment. In this context you should continue to work in accordance with the directions provided to you.”
634. Ms Sluggett was advised that if she was dissatisfied with Ms Lawless’ finding, she was entitled to apply to the Merits Protection Commissioner for a secondary review.
635. Ms Sluggett, around this time, requested that Mr Cohen provide her with a copy of her rehabilitation file. He complied with this request, sending it in a sealed carton to Ms Corbisiero. Ms Sluggett has deposed that she was “absolutely shattered” at what she considered to be an insensitive breach of her privacy. The implication of Ms Sluggett’s affidavit evidence was that Ms Corbisiero had inspected these records with some malign intent.
636. Further evidence and cross examination of Ms Sluggett herself demonstrated that this was not the case. Mr Cohen’s evidence was that he had addressed the box of files to Ms Corbisiero, as a matter of prudence. At the time, Ms Sluggett was frequently absent from the office and he believed that the most secure method to ensure the delivery of the documents to Ms Sluggett was via Ms Corbisiero.
637. Ms Sluggett confirmed that the box was sealed when she received it and she had monitored it, within the office, since its arrival. Accordingly, there is no suggestion that Ms Sluggett’s privacy has been breached in any way whatsoever.
638. This is an inconsequential matter. However it is indicative of Ms Sluggett’s propensity to make complaints about her treatment, which are exaggerated or unfounded. For self apparent reasons, this issue cannot be the subject of any claim relating to the provisions of the DDA.
639. The review of action report did not directly result in any changes in the ICC other than that it confirmed the duties allocated to Ms Sluggett were appropriate for her and, as such, she was obliged to obey legal directives issued to her. The management of the ICC had already adopted a policy whereby communications involving Ms Sluggett were conducted electronically.
640. Ms Sluggett also complains that Ms Corbisiero allocated another staff member to a workstation across the aisle, as recommended initially by Ms Agus and as suggested in the review of action report. Ms Corbisiero’s evidence was that there were several empty desks at the time and Ms Sluggett did not specifically raise with her wanting to move to any particular desk. I find that this was not a significant issue for anyone concerned at the time.

j) The initiation of the code of conduct proceedings

641. Ms Baker-Smith’s report and the response to it by Ms Lawless did nothing to alleviate the tensions between Ms Corbisiero and Ms Sluggett. The lateral solution to the issue suggested by Ms Buchanan, in her report, was not adopted. In the absence of moving Ms Sluggett out of the ICC, the course of the confrontation between her and management continued. The immediate topic of conflict was the answering of telephones, particularly those which went to the extensions of other staff members.
642. On 23 October 2006, Ms Corbisiero complained in an email that Ms Sluggett was not answering these phone calls. Ms Sluggett countered with “I think you are getting confused with duties outlined in the duty statement with additional tasks you want me to do. The registry officer duty statement given to me on 28 July 2006, refers to answering “switchboard”, which is different to answering phones belonging to other staff in the office.” This email continued in a similar tone and was forwarded to other staff members at the ICC.
643. Ms Corbisiero complained about copying other staff members into Ms Sluggett’s emails. She ultimately replied that her expectation of Ms Sluggett was that she be a team member of the Adelaide ICC and answer other staff members’ phones by working out how to pick up the call from her own phone. She also asked that Ms Sluggett perform reasonable requests made of her from staff and management.[154]
644. On 6 November 2006, a meeting was held of the administrative staff at the ICC. The meeting was convened by Ms Merrick. Amongst other outcomes from the meeting, it was reported that Ms Sluggett would have primary responsibility for incoming calls and visitors and for the creation of new files and maintaining existing ones. She was to assist Ms Ansell as directed.
645. It is common ground between the parties that Ms Sluggett had not performed mail duties since early August. In the late afternoon of 6 November, following the meeting earlier in the day, Ms Corbisiero forwarded Ms Sluggett an email headed “Corporate service admin duties Oct”. The email read as follows:
     • “Chandra – following up from our discussion with the team this morning.
     • You indicated that you:
       • Would not process the mail as we discussed
       • You will perform the switch duties ‘as best you can’
       • You will require assistance from time to time – such as opening the door
     • To assist with planning and completion of the duties, I have decided that you and Natasha should meet each morning. These meetings should only take up to 10 mins and you will discuss your duties for the day. This strategy will assist monitoring your progress against the tasks and allow any adjustments that are necessary. At the end of the day, you will be required to provide Natasha with an email summary of your progress and completion of the day’s tasks. You will discuss this summary at each morning’s meeting.
     • The review of action report established that the duties you are required to perform are reasonable and within your capacity and capability. Therefore, I expect the mail to be processed by you each day. You are able to spread this task through the day, take the mail to your desk or any other adjustments to this task that is necessary. If you continue to refuse to complete this task you are failing to follow reasonable direction and as you have been previously advised it may constitute a breach of the code of conduct. I note that you have refused to perform this task since 8 August.
     • There are other issues I wish to discuss with you on my return from Canberra. These issues include your part time request, your medical appointments, other tasks that you have not performed satisfactorily and your IPMS. I will arrange for a time for this meeting on my return.”[155]
646. Following this email, Ms Sluggett did not resume the mail duties. Ms Corbisiero had been essentially vindicated by the review of action report, which centred on whether attending to the mail was within Ms Sluggett’s capacity. These duties had not been found to be beyond Ms Sluggett’s physical abilities. In addition, Ms Sluggett had been directed by Ms Lawless to obey all lawful directions given to her.
647. From Ms Corbisiero’s point of view, Ms Sluggett continued to disregard her directions regarding the performance of the mail and other aspects of her responsibilities at the ICC. Her choices in response to this behaviour were to either ignore it, which she did from time to time or engineer some form of solution to the impasse. Ms Corbisiero is not the type of manager who would be willing to turn a blind eye indefinitely to the fact that a person subject to her direction was not undertaking any duties.
648. In August and afterwards, Ms Corbisiero had sent emails, which in my view were conciliatory in tone, providing suggestions as to how Ms Sluggett might perform the mail and offering various forms of assistance to her. These overtures had not resulted in any obvious and permanent solution to the problems within the ICC surrounding Ms Sluggett’s position. In these circumstances, it was Ms Corbisiero’s perception that Ms Sluggett was being defiant and oppositional to her authority.
649. In these circumstances, Ms Corbisiero wrote a formal minute to Ms Sluggett, on 29 November 2006 headed “Potential Breach of The Code of Conduct” in the following terms:
     • “Chandra,
     • I am writing to confirm the outcome of our discussion of Friday 24 November where you again refused to comply with lawful and reasonable directions concerning the performance of your duties in relation to processing Mail. Your refusal at this meeting follows on from a considerable history of non compliance which is detailed in the attachment. Most recently the review into your original refusal to comply in August of this year resulted in a finding that the directions provided were lawful and reasonable. The report and the finding were provided to you in an email dated 23 October 2006 and an accompanying letter of the same date repeated the direction that you were required to comply. The letter also indicated that you could appeal the finding to the Merit Protection Commissioner but pending the outcome of any review the Ps Act and associated legislation required that you continue to comply with the directions.
     • I am now once again reminding you of your obligations and formally directing you to comply with the directions to perform your duties in the manner required and discussed with you at the meeting on 24 November 2006. As discussed previously, your failure to comply with lawful and reasonable directions, and your continuing refusal, represent behaviour which potentially breaches the APS values and Code of Conduct most specifically.
       • (5) An APS employee must comply with any lawful and reasonable direction given by someone in the employees Agency who has authority to give the direction.
     • In view of this, I am copying this minute to Stephen Walker, Branch Manager People Branch, for his consideration in terms of any Code of Conduct action he considers appropriate.”[156]
650. Ms Corbisiero’s minute was also forwarded to Stephen Walker. At the time, Mr Walker was the branch manager of FaCSIA People Branch. On or around 8 May 2007, Mr Walker delegated Allison Denny-Collins, at the time a senior manager in FaCSIA to conduct an investigation to determine whether Ms Sluggett had breached the APS Code of Conduct. Accordingly, it is a misnomer for Ms Sluggett to assert that, at this stage, the Commonwealth had commenced breach of code of conduct proceedings against her.
651. Ms Denny-Collins formally contacted Ms Sluggett on 8 May 2007. Ms Denny-Collins provided Ms Sluggett with details of what were described as “suspected” breaches of the APS Code of Conduct and indicated to her that she (Ms Sluggett) would have an opportunity to make submissions in respect of those alleged breaches.
652. The alleged breaches of the code of conduct provided to Ms Sluggett by Ms Denny-Collins were as follows:
     • On a number of occasions, in August of 2006, Ms Sluggett had not complied with lawful and reasonable directions in relation to the processing of mail;
     • Ms Sluggett was not taking advantage of ergonomic equipment provided to her by FaCSIA;
     • Ms Sluggett had behaved discourteously at the meeting of 28 July 2006;
     • Ms Sluggett had not been achieving the results or performing her current duties in accordance with her APS2 duty statement.
653. In her minute dated 8 May 2007, Ms Denny-Collins also noted the outcome of the review of actions investigation conducted by Ms Baker-Smith, which had culminated in Ms Lawless directing Ms Sluggett to continue to work in accordance with the existing directions given to her. Ms Denny-Collins further noted Ms Corbisiero’s minute of 29 November 2006, in which Ms Sluggett had been warned that her behaviour constituted a possible breach of the APS Code of Conduct.[157]
654. Ms Denny-Collins never completed her investigations. Accordingly, it was never concluded whether Ms Sluggett’s behaviour, from August of 2006 onwards, did constitute a breach of the APS Code of Conduct. Accordingly, it is necessary for me to determine whether this investigatory process can constitute direct discrimination, on the basis of Ms Sluggett’s disability, in contravention of section 5 of the DDA.
655. In order to establish this aspect of her claim, Ms Sluggett must demonstrate that the FaCSIA management would not have dealt with a person in Ms Sluggett’s situation and with her characteristics but without her disability, in the same way in which it dealt with Ms Sluggett, namely by referring her behaviour to an independent person to investigate whether her (Ms Sluggett’s) behaviour represented a breach of a statutorily mandated code of conduct.
656. In my view, any manager who was confronted by a person who refused to perform core aspects of his or her duties, following an independent investigation of whether those duties were within that person’s capabilities, would have engaged a similar disciplinary process to that which was applied to Ms Sluggett.
657. It should be noted however that this disciplinary process was not of itself conclusive and, within its remit, provided to Ms Sluggett the opportunity to put her side of things, particularly to provide any relevant exculpatory evidence to the investigator concerned.
658. The process to be overseen by Ms Denny-Collins was preliminary in nature. It did not reach any definitive conclusions and importantly did not result in any specific sanction being imposed on Ms Sluggett herself. As such, I do not think that the process itself can be regarded as being discriminatory against Ms Sluggett and so unlawful.

j) The allegation of harassment arising on 16 May 2007 and afterwards

659. During the morning of 16 May 2007, Ms Sluggett alleges that she was the subject of harassment emanating from Ms Corbisiero, as a result of an exchange between them regarding the answering of a telephone. Witnesses to the incident, besides Ms Sluggett and Ms Corbisiero themselves were Julie Gregory and Anne Liddell, who was a public servant attached to the Department of Communications, Information Technology and the Arts, who was apparently visiting the ICC at the time.
660. Ms Gregory has deposed an affidavit, which has been filed on behalf of the Commonwealth. Ms Sluggett did not require her to attend court for cross examination. Ms Liddell has not been called to give evidence, however Ms Sluggett has exhibited an email which Ms Liddell wrote on 16 May 2007.
661. Ms Sluggett was absent from work from around midday on 16 May 2007 to 28 May 2007. On this latter date, she completed a “workplace hazard & injury report form.”[158] Under the heading “harassment and bullying incident” Ms Sluggett provided the following account of the incident:
     • “I was sitting at my desk ... when Susan Corbisiero ... verbally attacked me in an aggressive voice and threatened me with another breach of code of conduct because I did not answer Julia Gregory’s phone before Julia could get to it ... Susan walked to my desk, bearing over my desk in an intimidating manner and asked me in an aggressive voice, ‘Chandra, why aren’t you answering that phone?’ I said (still sitting at my desk) ‘Julia is still here and asked why can’t staff put their phones on voicemail like they do at other times?’ Susan said ‘because I prefer not to’. Susan interpreted my response as a refusal to perform my duties and said in an aggressive and attacking manner ‘right then you are refusing to follow a reasonable direction; you are not performing switchboard duties which are part of registry officer position, I am going to ...’ (and started to walk away). I interrupted and asked ‘why do you threaten me with every single thing with code of conduct but you don’t hold other staff responsible for not performing their duties’. ‘You always threatened me and I have asked you to stop threatening and harassing me about it.’ ...”
662. The context of this incident was that the majority of staff members of the ICC were leaving the office to attend a morning tea to celebrate Families’ Week at another FaCSIA office in the Adelaide CBD. Ms Sluggett was not attending the morning tea, because of the distance she would have had to walk to the other location.
663. In her affidavit, Ms Sluggett described Ms Corbisiero’s response to her failure to answer the ringing telephone as being screaming “like a dog barking in an attacking manner” as she (Ms Corbisiero) leaned over the partition of her workstation.
664. Ms Gregory was leaving the ICC to attend the morning tea. She does not recall if it was her telephone ringing. She recalls Ms Corbisiero asking Ms Sluggett if she would answer the telephone, to which Ms Sluggett replied with words to the effect of “I’ll see what I can do”, or “if I can”, or “I’ll try”.
665. It is the effect of Ms Gregory’s evidence that Ms Corbisiero reacted to this response intemperately. Ms Gregory describes the exchange between Ms Sluggett and Ms Corbisiero as being “a heightened one”. However, she provides no other specifics of it. She cannot recall Ms Sluggett either shaking or crying, after the incident and believes that if this had occurred, she would have remembered because it would have been a serious and unusual event within the workplace.
666. Ms Corbisiero agrees that there was an unfortunate altercation between her and Ms Sluggett but she asserts that Ms Sluggett was neither crying nor distraught during the incident or immediately afterwards. It is her evidence that she essentially lost her composure in response to some level of provocation or incitement emanating from Ms Sluggett and her behaviour can be excused because of the tense atmosphere at the ICC, which was largely a consequence of Ms Sluggett’s conduct.
667. Ms Corbisiero deposes that approximately five minutes before she left the ICC, she had spoken to Ms Sluggett and invited her to come to the morning tea, an invitation which Ms Sluggett had declined. Thereafter, she asked Ms Sluggett if she could please answer the phones, whilst the other staff were away. Ms Corbisiero remembers “very clearly” that Ms Sluggett said she would try to do so.
668. Thereafter, Ms Corbisiero provides the following account of what happened:
     • “As we were leaving the telephone was ringing and I heard it ring several times, it was at least five times. I remember this because I initially hesitated to say anything and I kept walking, but it became evident to me from the continuing ringing that it was not going to be answered. The applicant was sitting at her desk and had just responded to my request about answering the telephones only minutes earlier. I turned back and asked the applicant if she was going to answer the telephone, to which she immediately snapped back at me that I do not expect this of other staff, so why should I expect it from her. I reiterated to the applicant that the process in the office when staff are out is that reception answers the call. This was an established practice and so I reminded the applicant of this. The applicant then proceeded to argue with me. I may have raised my voice in frustration as the applicant was being argumentative and refusing to answer the telephone ...”[159]
669. In her email, Ms Liddell indicates that prior to 16 May 2007, she had no previous knowledge of Ms Sluggett’s work history at the ICC. Thereafter, she provided the following account of the incident:
     • “The ICC manager was on the way out of the office and had paused in the walkway near Chandra’s desk waiting for a colleague. As the colleague walked away from her desk her phone rang. She turned back to get it and the ICC manager asked Chandra to answer the phones while they were out. Chandra seemed to query the request which triggered the ICC manager to approach her desk, raise her voice and say ‘Chandra, it’s a reasonable request, why won’t you just answer the phones etc etc.’ There was then dispute between the two about the matter although I note that while Chandra was protesting she was not aggressive. However, in my view the incident escalated compared to the issue and that the ICC manager quickly progressed to using a raised voice and an aggressive manner that seemed excessive. It made me quite surprised and uncomfortable to be around. While the initial request seemed to me to be reasonable, the way it was handled was not appropriate to address performance issues in that way in the workplace when there were clearly other people present. It lasted about two-three minutes when thereafter most of the office left for an event.”[160]
670. In my view, Ms Liddell recounts a heated and heightened exchange between Ms Corbisiero and Ms Sluggett. However it falls short of the haranguing and harassment described by Ms Sluggett. Following the incident, Ms Liddell describes Ms Sluggett as being embarrassed and deflated. Later, Ms Liddell said she became increasingly upset and was crying.
671. I do not find that Ms Corbisiero screamed at Ms Sluggett or barked at her like a dog. In my view, the evidence, when taken as a whole, indicates that Ms Corbisiero behaved intemperately towards Ms Sluggett. However, I can appreciate why she would have lost her composure in the circumstances which prevailed at the time.
672. I accept that Ms Sluggett was upset by the incident, but so to was Ms Corbisiero. She deposes that she felt “upset and frustrated that I was placed in a situation where I had exchanged words with the applicant over this incident.”[161] As I have indicated previously, one of the aspects of Ms Corbisiero’s evidence, which struck me as being significant during the course of the trial, was the fact that she broke down whilst giving her evidence. I accept that Ms Corbisiero found many of her dealings with Ms Sluggett to be highly stressful.
673. Clearly Ms Corbisiero could have handled the incident better and she was right to remonstrate with herself for losing her composure, given that she was in a managerial position over Ms Sluggett. However, I also find that Ms Sluggett’s conduct precipitated the confrontation. Ms Corbisiero’s behaviour was reactive rather than initiatory.
674. In the context of a claim for harassment, the distinction is important. In order to amount to harassment, the behaviour complained of must be both persistent and harrying. In my view, Ms Corbisiero’s conduct was neither. It was an isolated incident, which occurred when Ms Corbisiero was under some stress. Ms Corbisiero may be criticised for being discourteous or unprofessional but I do not think her behaviour to constitute harassment. I consider Ms Liddell’s nomenclature to be the most apposite to describe Ms Corbisiero’s behaviour. In the context of the workplace, it was inappropriate.
675. In addition, I do not believe that the fact that Ms Corbisiero lost her temper with Ms Sluggett can be said to relate to Ms Sluggett’s level of disability. Ms Corbisiero was frustrated at her perception that Ms Sluggett was disinclined to answer the ringing telephone, after she had indicated she would endeavour to do so. Ms Sluggett was not being berated as a result of her disability. Accordingly, I do not believe that this matter constitutes harassment for the purposes of section 35 of the DDA.
676. Whilst she was absent from work, following the incident of 16 May 2007, Ms Sluggett consulted her psychiatrist, Dr Thompkins, who diagnosed her as suffering from “dissociative order, conversion disorder, panic disorder” and certified her as unfit for work until 27 May 2007. Ms Sluggett returned to her duties at the ICC on 28 May 2007.
677. Ms Sluggett complains that she was cold shouldered by Ms Corbisiero on her return to work. By necessary implication, it is Ms Sluggett’s position that this behaviour intensified the unsatisfactory conduct of Ms Corbisiero, which had occurred earlier. In particular, Ms Sluggett complains about the contents of email Ms Corbisiero sent her on 26 June 2007. The email read as follows:
     • “Chandra
     • Please be reminded that the Corporate Service area is responsible for answering the phones.
     • There are a number of FaCSIA ICC staff out of the office at the moment, so it is even more essential that you answer the phone, as Maria is currently not here to back you up in your role.
     • As previously advised, it is not acceptable that phones go to voicemail.”[162]
678. Ms Sluggett asserts that she found the email distressing. That may be so but in my view the email is anodyne and commonplace. On its face, it is expressed in courteous and unexceptional office language. Ms Corbisiero’s position is that she was entitled to send the email as one of Ms Sluggett’s primary duties was to answer the telephone. I do not accept that this email can be regarded as harassing of Ms Sluggett.

k) September 2007 – the ICC’s move to Level 18 and its co-location with FaCSIA

679. On 24 September 2007, the ICC was co-located with the South Australian office of FaCSIA at level 18, 11 Waymouth Street, Adelaide. Ms Sluggett insinuates that the move resulted in her having to perform more physically onerous duties, including having to walk to other staff members desks to answer telephones.
680. I reject this contention as being contrary to the weight of evidence. With the co-location, incoming calls to the ICC were dealt with by the FaCSIA switchboard. I also accept Ms Shaw’s evidence that, by the time of the co-location, Ms Sluggett’s reception duties were “minimal” as her tasks had been absorbed into the corporate services area of FaCSIA.
681. It seems Ms Sluggett may have been required to answer some internal calls which had gone to the desk of any staff member, which was temporarily unattended. Such calls would have been few in number and would have been able to have been answered by Ms Sluggett from her own workstation. It was unnecessary for her to physically move to answer the phone in question, as she could pick up the call from her own extension. I reject Ms Sluggett’s contention that the applicable extension numbers changed with an unreasonable level of frequency.
682. I also accept Ms Shaw’s evidence that the management of the ICC made a “conscious decision” to place Ms Sluggett’s workstation close to the office front door and other amenities within the office. She was also provided with a basement car parking space. The intent of these arrangements being to minimise the amount of walking Ms Sluggett had to undertake.
683. The tenor of Ms Sluggett’s evidence is that following the incident of 16 May 2007, she felt insecure and frightened in the workplace. In addition, she complains that senior management, at FaCSIA, failed to action or investigate properly her complaint of harassment by Ms Corbisiero.
684. In this regard, Ms Sluggett’s criticisms are levelled at Ms Coleman, who was the deputy state manager of FaCSIA at the relevant time. Ms Sluggett, in effect, asserts that Ms Coleman ignored her very serious complaint of harassment, which she (Ms Sluggett) had graphically detailed to her.
685. On balance, I prefer Ms Coleman’s evidence to that of Ms Sluggett. In particular, Ms Sluggett asserts that she told Ms Coleman that she was contemplating contacting police, if Ms Corbisiero approached her again. Clearly, this was a significant matter and Ms Coleman deposes that if it had been raised with her, it would have stuck in her mind. Ms Coleman has no such recollection.
686. It was arranged for Ms Sluggett to meet with Ms Coleman on 4 July 2007. Ms Coleman was not a direct line manager in respect of Ms Sluggett. Rather, she had been tasked by Mr Canney of the national office of FaCSIA to investigate the issues arising from the “workplace hazard & injury report form” which Ms Sluggett had completed on 28 May 2007.
687. Ms Coleman reported back in writing to Mr Canney her account of the meeting with Ms Sluggett. I have no reason to consider that this account was inaccurate or slanted in some way to disadvantage Ms Sluggett. Rather, I accept that Ms Coleman’s involvement with Ms Sluggett was peripheral and ended chiefly because Ms Sluggett made it clear to her that she did not wish Ms Coleman to investigate the matter through departmental channels.
688. Ms Coleman reported back to Mr Canney as follows:
     • “I spoke with Chandra on 3 July 2007. Chandra was most persistent that the papers I had was not a [formal] complaint and that she would be pursuing her formal complaint through HREOC. Consequently she did not want to comment about options for dealing with the issue. I did attempt to convey that we were keen to try to address the issue locally – at least to make the ICC office environment workable.
     • Chandra did briefly reflect on the scenario that generated the Workplace Hazard and Injury form being completed. Chandra also commented that she considered that other people were not held responsible for their duties, eg placing their phone on voicemail and practicing basic telephone etiquette. Also, Chandra reflected dissatisfaction with her treatment with respect to OH&S matters [relating back to a meeting with Paul Cohen, Lorraine Merrick and Chandra on 20 July 2006] and her inability to do things such as attend the regular all staff “Stand-Up Coffee” meetings. Communication was identified as a major port of failure.
     • Although not ideal and because of the eventual collocation of the ICC with the Adelaide Office, it was agreed that the reporting lines would be that Chandra reports to Lorraine Merrick or, in her absence, to Kira Kudinoff.”[163]
689. I accept that this email represents a proper reflection of how Ms Coleman understood the situation in respect of what Ms Sluggett wanted to be done about her complaint. Ms Sluggett made it clear that she did not want FaCSIA management dealing with the matter. Rather, her preference was to make a complaint to HREOC. Nonetheless, given the problems in the professional relationship between Ms Sluggett and Ms Corbisiero, Ms Coleman made arrangements for Ms Sluggett to report to Ms Kudinoff, in lieu of Ms Corbisiero.
690. Accordingly, it is in my view disingenuous of Ms Sluggett to assert that Ms Coleman (and by necessary implication the senior management of FaCSIA) conscientiously ignored the issue of 16 May 2007, which had occurred between Ms Sluggett and Ms Corbisiero. In my view, Ms Coleman did what was appropriate in the circumstances, given what Ms Sluggett had conveyed to her about her (Ms Sluggett’s) intentions in the matter.
691. From Ms Coleman’s perspective, given that she was not directly relevant to Ms Sluggett’s management, there was nothing arising from the meeting which required follow up from Ms Coleman.
     50. 28 August 2007 – 28 May 2008 - the circumstances leading to Ms Sluggett’s retrenchment
692. In mid-2007, an independent management consultant John Robinson of Yellowedge Consulting was retained to investigate the staffing implications of the Adelaide ICC being co-located with the South Australian state office of FaCSIA. Mr Robinson completed the report in July of 2007. The staffing structure recommended by Mr Robinson did not include an APS2 position within the ICC.
693. As a consequence, Ms Sluggett was invited, as an officer of the public service who had been identified as excess to departmental requirements, to submit an election to be voluntarily retrenched. This invitation was issued on 27 September 2007.[164]
694. It is Ms Sluggett’s contention that the decision to offer her a voluntary retrenchment was disingenuously made by FaCSIA and was motivated by the Department’s desire to remove her because of the difficulty she had occasioned management as a result of her disability. Ms Sluggett deposed as follows:
     • “It was fairly clear that the reason I was being made excess to requirements was because of my complaints, my Comcare claim and the incidents that had occurred prior to this decision being made.”[165]
695. Accordingly, it is Ms Sluggett’s position that the decision to declare her potential excess to departmental requirements was an incident of direct discrimination in employment contrary to the provisions of the DDA. In order to support this assertion, it is necessary for Ms Sluggett to establish a nexus between the decision in question and Ms Sluggett’s disability.
696. The reason for Mr Robinson’s report was that the ICC was moving its location. I accept that this move resulted in the duplication of corporate services provided by ICC staff and FaCSIA state office staff members respectively. In such circumstances, it is to be anticipated that there would be a review of staffing levels within the two departments concerned. In my view, such a review was a responsible and predictable administrative responsive to a significant change of circumstances. As such I do not accept that the commissioning of the report itself was motivated by any ulterior motive FaCSIA management had in respect of Ms Sluggett.
697. In all these circumstances, I do not think there is anything unusual or sinister about Mr Robinson’s report. I accept that the report was independent of the FaCSIA management and was based on an examination of the various positions concerned within FaCSIA’s Adelaide office and the ICC and any duplication arising, rather than the identity of the actual individuals who occupied each of them.
698. Ms Sluggett’s major complaint about Mr Robinson’s report and FaCSIA’s response to it was that it resulted in Maria Pagoda, a temporary APS4 employee, being retained within the corporate structure and being nominated to perform duties which Ms Sluggett discharged. The implication being that this was a conscious and unfair decision on the part of management intended to thwart Ms Sluggett.
699. An analysis of the Business Plan attached to Mr Robinson’s report shows that at the time Ms Sluggett had few duties in comparison to Ms Pagoda. In any event, Mr Robinson’s proposed re-structure made provision for an interim APS4 officer to provide file management and business support for a period of six to twelve months.[166]
700. Accordingly I do not consider that the evidence reveals that the roles of the APS2 registry officer (Ms Sluggett) and the APS4 officer (Ms Pagoda) were interchangeable. As a result of these matters, I do not think that the decision to retain Ms Pagoda, albeit on a temporary basis, can be regarded as being discriminatory of Ms Sluggett.
701. Ms Sluggett was invited to apply for a voluntary retrenchment on 27 September 2007.[167] Ms Sluggett describes this as coming as a “complete shock” to her. Given the time of the commencement of Mr Robinson’s report and given the fact that Ms Shaw and Ms Kudinoff had earlier discussed the issue with her and provided her with a copy of Mr Robinson’s report, this seems unlikely to me. More tellingly, Ms Toovey, the state manager of FaCSIA sent a confidential minute to Ms Sluggett on 28 August 2007 formally advising her that she was potentially excess to the staffing requirements of FaCSIA’s Adelaide office.[168]
702. What is more significant is the suggestion made by Ms Sluggett that the timing of the offer of retrenchment indicates that it was motivated by the contents of a psychiatric report of Dr Cossof, which had been prepared in respect of her. After having examined her on 27 August 2007, at the request of Comcare, Dr Cossof diagnosed Ms Sluggett as suffering from dysthmia and acute stress disorder caused by her perception of difficulties at work. The report itself was dated 31 August 2007.[169]
703. Given that Ms Toovey’s minute was composed on 28 August and Dr Cossof’s report was prepared three days later, I fail to see that there is any connection between FaCSIA’s decision to offer Ms Sluggett a voluntary retrenchment and the issues raised by Dr Cossof in her report. I reject the contention that the letter to Ms Sluggett of 27 September, inviting her to apply for retrenchment, was some form of subterfuge designed to remove Ms Sluggett from the ICC because of her disability and the complaints she had made about her treatment in the workplace.
704. To my mind, a proper analysis of the relevant evidence does in fact indicate that Ms Sluggett was surplus to FaCSIA’s staffing requirement. As such, in my view, Ms Sluggett’s retrenchment cannot be characterised as being discriminatory or some form of victimisation of her. Although it obviously had very significant consequences for Ms Sluggett herself, the redundancy was otherwise an unexceptional piece of public service administration and was unrelated to Ms Sluggett’s disability.
705. As Ms Sluggett’s position had been declared otiose, in late September of 2007, she was moved to another workstation, whilst she worked out the required period of seven months prior to her redundancy becoming effective. At her request, a further assessment of her new workstation was undertaken. This involved Dr Quadros and Ms Agus and was overseen by Ms Shaw, who was now Ms Sluggett’s line manager.
706. Ms Agus provided a comprehensive ergonomic workplace assessment report on 24 October 2007.[170] In the report, she confirms that she has consulted with Dr Quadros. In the report, Ms Agus recommended that a standard corner desk with a straight rather than a round cut out be obtained for Ms Sluggett; that flatter armrests be fitted to her chair; and she be provided with a smaller keyboard and a writing slope.
707. Ms Agus also recommended that modifications be undertaken in respect of the weight of the disabled toilet door which was utilised by Ms Sluggett. Ms Shaw confirms that she referred the issue to FaCSIA property in Canberra and after tenders were called, the modifications were made.
708. In February of 2008, Ms Sluggett was provided with a new desk in line with Ms Agus’ recommendations. Ms Sluggett deposes that the provision of the new desk made a remarkable difference to her ability to perform tasks assigned to her. A contention which is supported by a further follow up assessment, which was conducted by Ms Agus on 28 February 2008.[171]
709. Ms Sluggett deposes that she was pleased at the manner in which Ms Agus’ recommendations were implemented and the fact that they reduced her symptoms. The implication arising from her evidence being that it was a comparatively simple exercise to modify her workstation to make it suitable for her and it was only when she had been found to be excess to requirements that these modifications were implemented.
710. It is the case that the Commonwealth implemented the recommendations made by Ms Agus. Clearly these actions, on its part, cannot be regarded as discriminatory of Ms Sluggett. What Ms Sluggett suggests is that the apparent ease with which these modifications were made establishes definitively that the respondent had behaved in a discriminatory manner against her earlier.
711. I do not accept that this is so. Ms Agus’ two final reports in respect of Ms Sluggett’s workstation were the final reports in a series of reports, which included reports from Ms Agus herself. In my view, the evidence indicates that the Commonwealth acted in respect of each of those reports. The fact that, from Ms Sluggett’s perspective, it was the final reports which were the most effective ones does not by necessary implication establish that the Commonwealth was discriminatory in respect of its implementation of the earlier reports and so acted unlawfully towards her.
712. It may be the case that those advising the Commonwealth about Ms Sluggett’s ergonomic requirements could have done so better or more sensitively. However, it is not suggested that the expert advice obtained by the Commonwealth was inappropriate. Nor, in my view, does the evidence indicate that it was ignored because of any issue arising from Ms Sluggett’s level of disability.
713. At Ms Sluggett’s request, innumerable ergonomic experts had been called in to assess her workplace. These included Dr Lewis, Ms Buchan, Mr Dewing and Dr Jezukaitis, as well as Ms Agus herself on several occasions. Accordingly, it is misleading to suggest that it was only after she had been declared excess to staffing requirements that heed was given to Ms Sluggett’s disability needs in the workplace.
714. Ms Sluggett complains that nothing was done to remedy the weight of one of the doors. Ms Shaw deposes that she offered to Ms Sluggett that she could telephone her when she wanted to go out the door in question, an offer which Ms Sluggett declined. It should also be noted that two of the doors into the office, albeit not the ones most convenient for Ms Sluggett, were automatic ones.
715. Ms Shaw and Ms Kudinoff obtained the services of a career consultant to assist Ms Sluggett obtain an alternative position. This process was not successful. During the time leading up to her retrenchment, Ms Sluggett was allocated what Ms Kudinoff described as “several short term research projects”. I have not been provided with any definitive evidence as to what was meant by this.
716. Ms Sluggett’s evidence is contradictory about how she reacted to the tasks which were allocated to her in this period. In her initial affidavit she deposes that she was “pleased and happy” with her new situation. The implication being that she was not the intrinsically difficult person to accommodate as the Commonwealth would have her. On the other hand, in a more recent affidavit, she deposed that she was not provided “meaningful” work in this period.
717. It seems to me to be against the weight of the evidence that the period during which Ms Sluggett was being supervised by Ms Shaw and Ms Kudinoff inaugurated a period of employment satisfaction for Ms Sluggett, which stood in marked contrast to what had occurred to her earlier at the ICC. The implication being her earlier unhappiness was due to the discriminatory conduct of the previous managers towards her. I am concerned that Ms Sluggett is being capricious when she attempts to portray her situation thus.
718. Notwithstanding Ms Sluggett’s reports of considerable improvements in her physical condition arising from the new desk allocated to her and the implementation of the other recommendations made by Ms Agus, in February of 2008, Dr Quadros reduced her hours of work to 14.50 hours over two days per week because of “ongoing pain in [her] injuries and deterioration in [her] physical health.”[172]
719. As a result of these matters, Ms Sluggett’s then case manager, Fleur Bowler referred her to an occupational physician, Dr Shepherd for assessment in May of 2008. Dr Shepherd wrote as follows:
     • “Given her report level of symptoms and reported level of function, my feeling is that she would be better off not being at work at all with a goal of improving of her health over an extended period, and if this successful she could then make a return to work. If this is unsuccessful, which is possible given her diagnosis of post polio syndrome and Dr Nigel Quadros’ opinion that this is likely to become more severe, if anything, there is a reasonable likelihood she will never return to any duties requiring any physical tasks.”[173]
720. It is my finding that the management of the ICC, through the aegis of Ms Shaw and Ms Kudinoff, acted responsively and appropriately to Ms Sluggett’s level of disability in the period immediately prior to her becoming redundant on 28 May 2008. They cannot be categorised as failing to respond appropriately to Ms Sluggett’s level of disability. However, in my assessment, it is disingenuous and simplistic for Ms Sluggett to imply that it was a comparatively easy thing to accommodate her level of disability within the workplace and so suggest that the earlier management team had failed in this regard in comparison.
721. Ms Sluggett was unsuccessful in her attempts to secure an alternative position in the Commonwealth Public Service. She worked out the mandated period prior to her redundancy becoming effective on 28 May 2008. She has not worked in the period since.

Conclusions

722. I have attempted to analyse each of the applicant’s complaints of discrimination within her workplace at the ICC. On an individual basis, I have found that none of her complaints amount to unlawful conduct on the part of the respondent and its agents. The question which remains however is whether viewed cumulatively the behaviour of the Commonwealth, over the course of its final three or four year employment relationship with Ms Sluggett, can be viewed as discriminatory and so unlawful.
723. Essentially, is it the case that items of behaviour which, when viewed in isolation appear innocuous, when viewed in context with similar items, in totality those items present a different picture of a concerted and pernicious campaign against Ms Sluggett motivated by her disability?
724. I do not believe so. Clearly the atmosphere within the ICC grew more and more difficult over time. Attempts by management to resolve the difficulties were ineffective. I am of the view that the evidence indicates that this unhappy state of affairs arose because of Ms Sluggett’s behaviour and actions within the workplace, rather than as a response by the ICC’s management to her disabilities.
725. The lateral solution to the difficulties within the ICC was to provide Ms Sluggett with the research position of her preference. Ms Buchan suggested such an outcome. Clearly this was the outcome sought by Ms Sluggett. However such a position was not available and the Commonwealth was not obliged to create such a position for Ms Sluggett.
726. This was highly unsatisfactory to Ms Sluggett for a variety of reasons. It was not in keeping with her tertiary qualifications or previous experience at ATSIC. In response to her dissatisfaction, I am satisfied that the evidence indicates that, throughout her time as an APS2 officer at the ICC, Ms Sluggett waged a passive campaign, based on intransigence and obstruction to management, to secure her preferred outcome, following the abolition of the Regional Council of ATSIC, which was to have a research position based at a higher APS level.
727. It was this behaviour to which the Commonwealth had to respond. It meant that nothing which the Commonwealth did or provided to Ms Sluggett, in response to her complaints arising from her significant level of disability, was capable of satisfying her. It meant that there would always be further complaint from Ms Sluggett, ostensibly based on her disability, until such time as her wish to have another position had been satisfied.
728. Dr Bleby, counsel for the respondent, has characterised Ms Sluggett’s facility to make complaints of discriminatory behaviour, on the basis of her disability, as a “weapon” which is tantamount to an “abuse of the system” on her part.[174] These are harsh criticisms for the Commonwealth to level against her. With some regret, I have come to the conclusion that Ms Sluggett did indeed use her undoubted familiarity with the mechanisms of complaint as an instrument of intimidation against the respondent and its agents.
729. In response to Ms Sluggett’s manifold complaints, the respondent engaged a variety of independent experts to provide advice about how Ms Sluggett’s needs could be accommodated within the workplace. It followed the recommendations provided to it. At times, with the benefit of hindsight, it could be said that some of the Commonwealth’s agents could have acted quicker or have communicated better or more empathetically with Ms Sluggett. But these are not the applicable criteria for discrimination under the DDA and, in any event, Ms Sluggett was not likely to have been mollified by any such expressions of empathy.
730. To a large extent, Ms Sluggett decided what duties she would undertake at the ICC. Up to a certain point, to avoid conflict, the ICC management was passively accepting of this state of affairs but ultimately it was untenable for it to continue. As such it was inevitable that, because of Ms Sluggett’s behaviour, there would have to be a code of conduct investigation. This arose because of Ms Sluggett’s conduct not because of her disability. It was Ms Sluggett’s behaviour which led to the confrontation not her disability per se.
731. In any event, the investigation into a possible breach of the Public Service Code of Conduct was never finalised and no formal adverse finding has been made against Ms Sluggett. Ms Sluggett was terminated from her position because of the co-location of the ICC with the state office of FaCSIA and the resulting inquiry into staffing requirements, which found her position to be otiose.
732. Pursuant to section 5 of the DDA, the essential question for the court is why Ms Sluggett was treated in the way she was by the management of the ICC. Did she receive less favourable treatment because of her disability rather than for some other reason?
733. This requires a comparison to be made between Ms Sluggett and a person without her disability but who displays the same behavioural characteristics as she. I am satisfied that a person who did not suffer from the characteristics of post-polio syndrome but who displayed the same level of intransigence and obstructive behaviour in the workplace, as did Ms Sluggett, over the course of her employment at the ICC, would have been treated in the same manner by the management of the ICC. Ultimately the behaviour of such an employee would have been subject to some form of stricture.
734. There is no dispute in this case that Ms Sluggett is significantly disabled. As such, it is to her credit that she has obtained tertiary qualifications and was able to secure employment for herself in the Public Service. It is in fact the opinion of some of the medical experts involved in this case, notably Dr Shepherd and Ms Buchan, that those suffering post-polio syndrome, to the degree of Ms Sluggett, are precluded from employment involving significant physical exertion.
735. However this case is not specifically an inquiry into the level of Ms Sluggett’s disability and what was her actual capacity for work during the periods in question. The case is concerned about how the respondent acted in respect of Ms Sluggett’s disability and whether she was discriminated against, in her workplace, because of it.
736. In particular whether Ms Sluggett was unreasonably required by the respondent to comply with a condition or conditions arising from her employment, with which it was impossible for her to comply because of her disability. These are issues germane to whether there has been any indirect discrimination against Ms Sluggett.
737. In my view, the evidence indicates that Ms Sluggett is a most judicious guardian of her health. To all intents and purposes, she decided what she would and would not do, whilst at the ICC. The various duty statements applicable to Ms Sluggett from time to time nominally allocated duties to Ms Sluggett, although these duties were also subject to discussion between her and management. Management accepted without demur that some duties were not appropriate to be allocated to Ms Sluggett and these were allocated elsewhere.
738. The evidence also indicates that Ms Sluggett declined to perform many of the duties allocated to her at the ICC. Over time she was released from responsibility for those duties, sometimes unofficially, and their discharge devolved on to others at the ICC. Accordingly Ms Sluggett was not compelled to perform duties at the ICC, which she judged were beyond her capacity. She did not do them and she was not subject to compulsion to do them.
739. The Commonwealth currently doubts and the ICC management at the time doubted the validity and motivation of many of Ms Sluggett’s decisions in regards to what she would or would not do as an APS2 registry officer. Nonetheless the respondent went to some lengths to modify the duties remaining to Ms Sluggett by enlisting the services of suitably qualified experts to provide advice to its relevant management about how Ms Sluggett could perform her duties.
740. What duties remained to Ms Sluggett were, in my view, significantly modified over time by the respondent in the light of advice provided to it. Amongst other things Ms Sluggett was directed to pace her tasks. She was provided with ergonomic equipment. When Ms Sluggett was provided with directions to apply herself to a particular duty, in the circumstances of this case, those directions do not appear to me to have been unreasonable ones. The evidence also indicates that Ms Sluggett was able to comply with her duties after modifications had been made.
741. During the period of her employment at the ICC, Ms Sluggett’s decision not to undertake particular tasks created an atmosphere of tension and resentment in the workplace. Individual members of the management team reacted to this tension from time to time, not always with composure. These reactions may be criticised for being unprofessional, however, in my view, they do not amount to harassment for the purposes of the applicable legislation.
742. For these reasons, I have come to the conclusion that Ms Sluggett’s complaint should be dismissed. Accordingly, it is not necessary for me to embark upon a process of calculation of any damages to be awarded to her, which would involve an assessment of the expert medical evidence which has been led before me.

Costs

743. There remains the issue of costs. The Commonwealth has sought costs on a solicitor and own client basis.[175] The hearing before me occupied thirty one sittings days. Accordingly the potential quantum of costs, if any are awarded, is significant. Ms Sluggett is not a person of means. She is currently unemployed. She is also significantly disabled. It also seems likely that she has incurred her own liability in respect of costs, although I am unaware of the basis on which she has been granted legal assistance to advance her complaint before me.
744. The Commonwealth rigorously contested these proceedings, as it was entitled to do. The proceedings were also of great significance to Ms Sluggett herself and touched on an issue of public importance. The purpose of the Disability Discrimination Act 1992 is to outlaw discriminatory behaviour on the basis of a person’s disability. Through the legislation, the Government of Australia has recognised that such discrimination is a societal evil. As such, the legislation is remedial in nature and it is in the public interest that the victims of such discrimination are encouraged to come forward.
745. On any view, there is a marked discrepancy in the financial resources available to the parties in this case. Although it is a legal cliché, when compared to Ms Sluggett, the resources of the Commonwealth can be said to be limitless. These are relevant considerations to the question of costs.
746. Pursuant to section 79 of the Federal Magistrates Act 1999 I have jurisdiction to make an award of costs in favour of the respondent. Such an award is discretionary. At this juncture, I do not consider that I have sufficient material before me to be able properly to exercise such a discretion.
747. For that reason, I propose directing that, in the event the respondent wishes to pursue an application for costs it makes a formal application to this effect supported by affidavit within twenty eight days of the date of these orders. Ms Sluggett will then be able to respond formally to such application.
748. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seven hundred and forty-eight (748) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 30 August 2011

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[1] See exhibit CS22 to the affidavit of the applicant filed 4 February 2009. Hereafter references to exhibits prefaced by “CS” are to be found in Ms Sluggett’s affidavit of this date.
[2] Ibid at paragraph 28
[3] Ibid at paragraph 104
[4] See CS22
[5] See CS23
[6] See CS24
[7] See Ms Sluggett’s affidavit of 4 February 2009 at paragraph 136
[8] See CS26
[9] See CS33
[10] See CS34
[11] See CS39
[12] See CS35
[13] See CS42
[14] See CS48
[15] See CS49
[16] See CS56
[17] See exhibit WS1 to the affidavit of Wesley Slater filed 24 March 2009
[18] See CS64
[19] See Australian Public Service Act 1999 at section 13
[20] See Australian Public Service Act 1999 at section 10
[21] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 226
[22] See CS64
[23] See CS66
[24] See CS67
[25] See CS68
[26] See CS73
[27] See Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. The date of commencement of this legislation is 5 August 2009.
[28] See Purvis v New South Wales (Department of Education & Training) [2003] HCA 62; (2003) 217 CLR 92
[29] Ibid at 100-101
[30] See Maxworthy v Shaw (2010) FMCA 1014
[31] Ibid at paragraph 66
[32] Ibid at paragraph 69
[33] See Fetherston v Peninsula Health [2004] FCA 485
[34] Ibid at paragraph 73
[35] Ibid at paragraph 86
[36] Ibid at paragraph 89
[37] See Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664
[38] Ibid at paragraph 100
[39] See Forest v Queensland Health [2007] FCA 936; (2007) 161 FCR 152 at 164
[40] See Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987; (2002) 123 FCR 561 at 577
[41] Ibid at paragraph 81
[42] See Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 361 per Mason CJ & Gaudron J
[43] See Catholic Education Office & Anor v Clarke (2004) FCR 121 at 145-146
[44] Ibid at page 146
[45] See Daghlian v Australian Postal Corporation [2003] FCA 759
[46] Ibid at paragraph 111
[47] See McCormack v Commonwealth of Australia [2007] FMCA 1245 at page 31
[48] See Penhall-Jones v State of New South Wales (No2) [2008] FMCA 832 at page 23
[49] See O’Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 at 376
[50] See McDonald v Hospital Superannuation Board (1999) EOC 93-025
[51] See Vance v State Rail Authority [2004] FMCA 240 at paragraphs 54-58
[52] See affidavit of Ms Sluggett filed 4 February 2009 at paragraph 18
[53] See Sluggett v HREOC ibid at 563-564
[54] Ibid at page 565-566
[55] See written submissions of the respondent – page 7 at paragraph 16
[56] See CS2
[57] See CS22
[58] See exhibit 17
[59] See CS6
[60] See transcript at page 311
[61] See CS12
[62] Ibid at paragraph 51-52
[63] See written submission of the Commonwealth at page 8
[64] See CS14
[65] See transcript at page 29
[66] See respondent’s written submissions at page 4
[67] See applicant’s final submissions at page 1
[68] See Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332
[69] Transcript of 17 November 2009 at page 30
[70] Ibid at page 31
[71] Ibid at page 38
[72] See Briginshaw & Briginshaw (1938) 60 CLR 366 at 362
[73] See Qantas Airways Limited v Gama [2008] FCA FC69 at 139
[74] See Ms Plomaritis affidavit filed 9 June 2009 at paragraph 26
[75] Ibid at paragraph 32-33
[76] See Ms Corbisiero’s affidavit of evidence filed 25 June 2009 at paragraph 66
[77] See Mr Cohen’s affidavit filed 24 March 2009 at paragraph 3
[78] See Transcript at p 184
[79] See CS80
[80] See CS80
[81] See CS18
[82] See CS17
[83] See applicant’s affidavit filed 4 February 2009 at paragraph 104
[84] See Ms Sluggett’s affidavit filed 9 October 2009 at paragraph 3.2
[85] See CS18
[86] See CS83 – 9 October 2009
[87] See CS22
[88] See CS20
[89] Ibid at paragraph 110
[90] See CS82 and CS83
[91] See CS83
[92] See CS23
[93] See CS23 – the Dewing Report at paragraph 3
[94] See CS24 – the first Lewis report at page 7
[95] See exhibit 38
[96] See applicant’s affidavit filed 4 February 2009 at paragraph 131
[97] Ibid at paragraph 133
[98] See CS32
[99] See Mr Cox’s affidavit filed 13 March 2009 at paragraph 3
[100] Ibid at paragraph 3
[101] Ibid at paragraph 3
[102] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 140
[103] See Mr Cox’s affidavit filed 13 March 2009 at paragraph 7
[104] See CS28
[105] See CS29
[106] See Ms Sluggett’s affidavit at paragraph 145
[107] See Mr Cox’s affidavit filed 13 March 2009 at paragraphs 11-13
[108] See exhibit 18
[109] See exhibit TC1 to Mr Cox’s affidavit filed 13 March 2009
[110] See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
[111] See annexure TC1 to Mr Cox’s affidavit filed 13 March 2009
[112] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 150
[113] See exhibit 19
[114] See exhibit 19
[115] See CS30
[116] See CS33
[117] See Ms Corbisiero’s affidavit filed 25 June 2009 at paragraph 4
[118] See CS34
[119] See CS35
[120] See Mr Cohen’s affidavit filed 24 March 2009 at paragraph 7
[121] See CS36
[122] See Mr Cohen’s affidavit filed 24 March 2009 at paragraph 4
[123] See CS37
[124] See exhibit 21
[125] See Ms Corbisiero’s affidavit filed 25 June 2009 at paragraph 23
[126] See exhibit 23
[127] See Ms Corbisiero’s affidavit filed 25 June 2009 at paragraph 17
[128] See exhibit 23
[129] See CS42
[130] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraphs 177
[131] See CS45
[132] See CS45
[133] See CS46
[134] See Mr Cohen’s affidavit filed 24 March 2009 at paragraph 21
[135] See CS47
[136] See CS48
[137] See CS49
[138] See CS49
[139] See CS52
[140] See CS50
[141] See CS43
[142] See CS54
[143] See CS53
[144] See exhibit 25
[145] See CS52
[146] See Ms Corbisiero’s affidavit filed 25 June 2009 at paragraph 44
[147] See Ms Corbisiero affidavit filed 25 June 2009 at paragraph 45
[148] See CS56
[149] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 216
[150] See exhibit 26
[151] See CS59
[152] See exhibit 33
[153] See CS64
[154] See CS56
[155] See CS56
[156] See CS56
[157] See CS66
[158] See CS68
[159] See Ms Corbisiero’s affidavit filed 25 June 2009 at paragraph 52
[160] See CS69
[161] Ibid at paragraph 57
[162] See CS70
[163] See exhibit H1 to the affidavit of Heather Coleman filed 27 February 2009
[164] See CS74
[165] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 261
[166] See CS73 at page 7
[167] See CS74
[168] See CS73
[169] See CS75
[170] See Exhibit CS76
[171] See CS77
[172] See Ms Sluggett’s affidavit filed 4 February 2009 at paragraph 272
[173] See CS78 at page 4
[174] See Respondent’s final submissions at paragraph 380
[175] See Response filed 7 July 2008