McNeil v Commonwealth [1995] HREOCA 9 (27 February 1995)

Human Rights and Equal Opportunity Commission

Disability Discrimination Act 1992 (Cth)

No: H94/79

Between :

AMANDA MCNEILL

Complainant

And

COMMONWEALTH OF AUSTRALIA

Respondent

Reasons for Decision

of the Inquiry Commissioner

Mr Stanley Jones QC

Hearing: Melbourne, NSW

Dates: 20 to 24 and 27 February 1995

Appearances: Mr Borenstein for the complainant

Ms Symon for the respondent

1. INTRODUCTION

This is an inquiry pursuant to s.79(1) of the Disability Discrimination Act 1992 (Cth) ("the DDA") into a complaint by Amanda McNeill against the Commonwealth of Australia by whom she was employed within the Department of Social Security (hereinafter after "the Department"). At the commencement of the hearing and with the consent of the parties, I directed that the Commonwealth of Australia be substituted for the Department as the correct respondent to the complaint.

The complainant lodged her complaint with the Human Rights and Equal Opportunity Commission ("the Commission") on 9 February 1994 alleging discrimination pursuant to ss.5, 6 and 15 of the DDA. The complaint was referred to the Commission for inquiry by the Disability Discrimination Commissioner on 6 September 1994 pursuant to s.76(1)(b) of the DDA. The inquiry was conducted by the Commission in Melbourne from 20 to 24 and 27 February 1995.

The discrimination is alleged to arise out of -

(a) the failure of the respondent to provide the necessary work aids and facilities to the complainant as agreed;

(b) the imposition on the complainant of extraordinary, harsh, onerous and unfair monitoring procedures; and

(c) exposing the complainant to an adverse work environment.

The respondent contends that it did not act in a discriminatory fashion but rather went to great lengths to assist the complainant during her probation. The respondent alleges that this was reflected in the equipment that was supplied to her and to the efforts it took to monitor her performance so as to assist the complainant constructively in achieving the necessary standard. The respondent contends that the complainant's disability was irrelevant in her dismissal and it was her poor communication and interpersonal skills that resulted in the termination of her employment.

The relevant provisions of the DDA are -

"3. The objects of this Act are:

(a) to eliminate, as far as possible, discrimination against persons on the

ground of disability in the areas of:

(i) work, accommodation, education, access to premises, clubs and

sport; and..........

(b) to ensure, as far as practicable, that persons with disabilities have the

same rights to equality before the law as the rest of the community; and

(c) to promote recognition and acceptance within the community of the

principle that persons with disabilities have the same fundamental rights as the

rest of the community."

"4. (1) In this Act, unless the contrary intention appears:

`disability', in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or

illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's

body; or

(f) a disorder or malfunction that results in the person learning differently

from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes,

perception of reality, emotions or judgment or that results in disturbed

behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person;"

"5. (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."

"6. For the purposes of this Act, a person ("discriminator") discriminates

against another person ("aggrieved person") on the ground of a disability of the

aggrieved person if the discriminator requires the aggrieved person to comply

with a requirement or condition:

(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."

"10. If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the disability of a person (whether or not it is the

dominant or a substantial reason for doing the act);

then, for the purposes of this Act, the act is taken to be done for that reason."

"15. (1) It is unlawful for an employer or a person acting or purporting to act

on behalf of an employer to discriminate against a person on the ground of the

other person's disability or a disability of any of that other person's

associates:

(a) in the arrangements made for the purpose of determining who should be

offered employment; or

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer or a person acting or purporting to act on

behalf of an employer to discriminate against an employee on the ground of the

employee's disability or a disability of any of that employee's associates:

(a) in the terms or conditions of employment that the employer affords the

employee; or

(b) by denying the employee access, or limiting the employee's access, to

opportunities for promotion, transfer or training, or to any other benefits

associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

(3) Neither paragraph (1) (a) nor (b) renders it unlawful for a person to

discriminate against another person, on the ground of the other person's

disability, in connection with employment to perform domestic duties on the

premises on which the first-mentioned person resides.

(4) Neither paragraph (1) (b) nor (2) (c) renders unlawful discrimination by

an employer against a person on the ground of the person's disability, if taking

into account the person's past training, qualifications and experience relevant

to the particular employment and, if the person is already employed by the

employer, the person's performance as an employee, and all other relevant

factors that it is reasonable to take into account, the person because of his or

her disability:

(a) would be unable to carry out the inherent requirements of the particular

employment; or

(b) would, in order to carry out those requirements, require services or

facilities that are not required by persons without the disability and the

provision of which would impose an unjustifiable hardship on the employer."

"103. (1) After holding an inquiry, the Commission may:

(a) dismiss the complaint the subject of the inquiry; or

(b) if it finds the complaint substantiated - so find and make a determination which, if

appropriate, may include any one or more of the following:

(i) a declaration that the respondent had engaged in conduct, or

committed an act, that is unlawful under a provision of Part 2 of this Act and

should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable

act or course of conduct to redress any loss or damage suffered by the

complainant;

(iii) a declaration that the respondent should employ or re-

employ the complainant;

(iv) a declaration that the respondent should pay to the complainant

damages by way of compensation for any loss or damage suffered because of the

conduct of the respondent;

(v) a declaration that the respondent should promote the

complainant;

(vi) a declaration that the termination of a contract or agreement

should be varied to redress any loss or damage suffered by the complainant;

(vii) a declaration that it would be inappropriate for any further

action to be taken in the matter.

(2) A determination of the Commission under subsection (1) is not binding or

conclusive between any of the parties to the determination.

(3) The Commission may, in the making of a determination under subsection (1),

state any findings of fact upon which the determination is based.

(4) The damage referred to in paragraph (1) (b) includes injury to the

complainant's feelings or humiliation suffered by the complainant."

2. FACTS

The complainant, who was born on the 12 August 1958, holds a degree of Bachelor of Arts from the Australian National University and a Graduate Diploma in Education from Monash University. She is a married woman who lives with her husband and their two infant children.

On 16 September 1992, she sat for and passed a clerical selection test for admission to the Australian Public Service (APS). She was in fact placed at a level in the "order of merit" rankings of all candidates which ultimately led to her being offered a position at an early date. She had, at about this time, experienced short periods of successful employment with the State Electricity Commission and with Monash University.

On 15 February 1993, after an earlier interview with Departmental representatives, the complainant commenced work as a probationary Administrative Service Officer, Level 1 (AS01) at the Morwell office of the Department. Satisfactory completion of her probation would have seen her confirmed in that position.

The duties of this position were essentially of a routine clerical nature involving the use of a computer. She was assigned initially to the Family Payments Section and, in August 1993, transferred to the Disability Support Unit (DSU).

By reason of her University education, the complainant was somewhat over qualified for this role. However, she expressed an ambition to do well in it and thereafter to seek transfer to another unit within the Department where she could use her research and analytical skills. It was stated to her, and she accepted the statement, that no such opportunity existed at Morwell where she lived with her family.

The complainant suffers from Retinopathy of Prematurity. The effects of this condition are described in a report from the Royal Victorian Institute of the Blind dated 25 November 1993 (Attachment 1 to Exhibit 2). Her individual eye vision is 6/60 meaning that at 6 metres she can see what a fully sighted person would see at 60 metres. Using both eyes, her distance vision is 6/18. For fine print she can, with effort and only for a short time, read newspaper print. Otherwise, she would need to use a magnifier. She has tunnel vision and nystagmus, the latter being an involuntary continual movement of the eyes. The nystagmus is exacerbated by fatigue and can sometimes make reading very small print difficult and tiring. This would compound the visual acuity problem referred to above. Because of this condition, the complainant is said to be "legally" blind and she is in receipt of a pension on this ground.

The impact of her disability in terms of performing her work tasks is clear enough. With the provision of special equipment, which will be referred to later, there is no doubt she had the capacity to do the work.

The impact of her disability in forging personal relationships at the workplace is less clear but is nonetheless a highly relevant factor. The complainant's disability requires her to stand very close to persons with whom she is communicating. This is necessary first of all for her to identify the person and, thereafter, to attempt to pick up whatever cues of a non-verbal kind she can. This results in what for many would be an invasion of personal space. My observations of the complainant during 6 days of hearing confirmed the witnesses' description of the closeup focussing and the lack of direct eye contact. I can imagine this conduct could be disconcerting to a person trying to communicate with the complainant without prior awareness of her disability.

The picking up of non-verbal cues and clues is automatic for the fully sighted and, therefore, taken for granted. This problem was commented upon by witness, Ms Sue McDonald, in the following terms:-

"... Amanda has partial vision, but I believe that that in some ways was worse than if she had had no vision, in that people with no vision develop other ways of coping with the fact that they can't see. Amanda tended to rely too much on the small amount of vision she had, so she couldn't pick up visual clues in the same way that you and I might, and with eye contact she wouldn't necessarily see how someone else would use eye contact. She would perhaps see, you know, the face, but the finer details of what the person might be doing might escape her, so she didn't have anything to model her own behaviour on. Because those are the sorts of cues and clues that we pick up unconsciously in our interaction with people. But I believe that she didn't do that because she couldn't see enough to do that.

She wouldn't respond to things that a person might do, but you and I might take the hint, as it were, from observing the way someone's face, you know, the way they move their eyebrows, or something like that, and therefore might not take the hint that she was intruding, or being offensive, or whatever."

The complainant's actions to compensate for her lack of vision form part of the behaviour of a lifetime. Whilst various suggestions were made by counsellors and psychologists to bring about changes in this behaviour, it is understandable she could not readily respond to such suggestions.

Because of the complainant's disability, consideration was given to the provision of specialised equipment at her workplace. The first list of this equipment was provided by the APS recruitment office in its letter to the Department dated 22 January 1993 (Ex. 2, Att. 3) as follows:-

Zoom Text Facilities (Print enlargement)

Raised Monitor/Reading Board

Normal print size

Clear colour contrast

To this list, as result of a meeting with the complainant on 4 February 1993, there was subsequently added an enlarged cursor, a Luxo task light and a hand held magnifier.

The letter setting out the original list carried a reminder of the need to apply "reasonable adjustment principles" to the complainant's employment. Later reference will be made to these principles.

The discrimination referred to above is alleged by the complainant to have had an adverse impact upon the assessments which the complainant had to undergo during her period of probation. These assessments are found in Probationer Reports which are dated respectively:-

3 months - 14 May 1993

6 months - 24 August 1993

9 months - 12 November 1993

11 months - 14 January 1994

Before giving consideration to this allegation, it is necessary to consider the Reasonable Adjustment principle which was accepted by the respondent as applying to the employment of the complainant.

2.1 Reasonable Adjustment

The principle of Reasonable Adjustment (RA) is basic to the employment of people with disabilities. RA is described as "any form of assistance or adjustment that is necessary, possible and reasonable to make to working arrangements, work methods, equipment or the work environment to reduce or eliminate the effects of disabilities" (Exhibit 2, Attachment 5 and Exhibit 15).

The principle of RA was adopted by the respondent as part of equity and equal opportunity ("EEO") policies resulting from a major policy paper issued in 1983. The background to the development of these EEO policies is found in Ex. 2.

The responsibility for ensuring that RA strategies are implemented rests with the Department and, more particularly, with its supervisors and managers (Ex. 2, Att. 2). Page 1 of the booklet titled "Reasonable Adjustment: Enabling a Manager to Focus on Ability" ("the Handbook") contains an expression which, amongst many others, is material to the facts of this case. It is -

"More often than not (Reasonable Adjustment) simply means changing the attitudes of supervisors and co-workers. This is the most critical adjustment of all! If supervisors and co-workers have negative or inappropriate attitudes relating to people's disabilities then the provision of high "tech" equipment will, by itself, do little to ensure a successful placement."

The provision of special equipment for someone with the complainant's disabilities was an obvious requirement in the application of the RA principle. This was acknowledged at the time of her being accepted for the position and throughout her employment by the meeting of her requests for further equipment.

The obligation to instil appropriate attitudes in co-workers is not clearly defined in the Handbook although some tips are given for the steps to be taken at the induction stage. To my mind, the application of the RA principle requires that managers and supervisors take positive steps - firstly, to inform themselves as to the way in which a person's disability will impact upon other staff, secondly, to make co-workers aware of these impacts and thirdly, to create an atmosphere of acceptance prior to, or at least at an early stage in, the disabled person's placement.

The other area in which the RA principle was acknowledged was in the provision of supervision and support. There is conflict between the parties as to the value of the supervision provided - the complainant alleging in fact that the intensity of the supervision was, in itself, discriminatory, the respondent alleging this was done to maximize the complainant's chances of proving herself.

The principle of RA having been acknowledged by the respondent, the issue in this case turns on whether how effectively the principle was applied in the circumstances which confronted the Department and if any failure to apply the principle was discriminatory.

2.2 Provision of Equipment

On 22 February 1993, the complainant was supplied with the writing slope, document holder, Luxo task light and Zoom Text (though the latter did not function properly until 13 August 1993). That is all the equipment identified above save for the hand held magnifier.

The initial list was not sufficiently comprehensive and other items of equipment were, from to time, requested by the complainant. These were a hand held magnifier (an item identified before the complainant commenced work as being required by her), a glow filter supplied on or about 28 April 1993, a range of Luxo magnifier lamps for trial during June and July 1993 which were returned and subsequently replaced with another lamp on 9 August 1993, a talking calculator in June or July 1993 and a twenty inch monitor on 23 December 1993.

No blame attaches to any particular person for the failure to identify these additional needs at any earlier time. This was the first occasion that a person with the vision disabilities of this kind was employed at Morwell and there were aspects about the arrangements which were essentially experimental.

The Zoom Text was identified in the course of the hearing as a major source of difficulty. Without going into the details, it did not in fact work effectively until the 13 August 1993. Even then, its essential limitation - only showing one quadrant of a document or form at a time - had a significant impact on the complainant's work performance, on her level of concentration and on the ease with which she could approach her work.

The lack of comfort even with the properly functioning Zoom Text is illustrated by the fact that as late as December 1993 and at the suggestion of the complainant's then supervisor, Mr Michael Ireland, the complainant was still experimenting with equipment by introducing a 20 inch monitor for her computer.

These equipment related issues impacted also on the office and co-workers. The provision of high level light source necessitated a screen being erected around the complainant's work station. The problems with Zoom Text necessitated technicians being present on a number of occasions with no doubt some disruptive consequence for the office.

But more importantly, the difficulties with the equipment could not fail to have had an effect on whether the complainant could confidently approach her work tasks and on the frequency with which she had to seek help from supervisors and other members of staff.

The complainant spoke of her frustration at not having correctly functioning equipment during the first probation period and the fact that she was criticized for speaking out about this difficulty.

The 3 month Probationer Report written by supervisor, Mr Christopher Kypriotis in consultation with Ms Cath McClusky, Section Manager, makes no mention whatsoever of any lack of equipment. The Probationer Report is most critical in areas of behaviour -

"quick to blame problems with her behaviour upon everyone else especially the shortcomings of her supervisors" -

and co-worker relationships -

"had great difficulty in fitting with the team, ... (staff) find it difficult when dealing with her".

Despite the Probationer Report being generally favourable with respect to the complainant's attendance and work output, it recommended annulment of the appointment.

The respondent contended that the complainant, having demonstrated satisfactory work output and quality, could not argue any link between the failure to supply equipment and her unsatisfactory grading which was based solely on her shortcomings in conduct and communication.

I do not accept that the complainant's performance can be dissected in this way. The need for her communication with co-workers, the nature of that communication and the frequency of the communication were undoubtedly contributed to by the lack of equipment. The lack of awareness in her co-workers of the effects of her disability compounded the problem.

Ms Leigh Snelling put this most succinctly (at p.162) in the following terms:-

"Amanda's frustration at the lack of appropriate equipment would be bound to spill over into the way in which she communicated and interacted with other people in the workplace, and I think that it is disingenuous to separate the two."

The complainant's reaction to the annulment recommendation was, she said, "absolute devastation". Quite rightly having regard to the RA guidelines (Ex. 15 at p.13), -

"If it is felt that the staff member needs more time to adjust to the position and environment, then the probationary period can be extended. Annulment of appointment can only occur when it is proven that Reasonable Adjustment has been tried and any further action(s) would cause undue hardship to the employer and to the staff member with the disability"

- the recommendation was not accepted and the probation assessment period was extended until 14 November 1993.

The 6 month Probationer Report was important as part of the continuing assessment. Again, there is no reference to the non-functioning equipment which in fact was finally made operational some 11 days before the release of this Probationer Report. There is emphasis on deteriorating co-worker relationships and inconsistency in work performance. It is clear from the evidence that the complainant's relationships with co-workers and supervisors was such that no amount of support or counselling would, by this time, have permitted a suitable working environment for her within the Family Payments Section.

I find that the lack of proper equipment and the lack of staff awareness of the effect of her disabilities contributed significantly to this state of affairs.

The 6 month Probationer Report's recommendation that the probation period be extended was associated with the decision to transfer the complainant to the DSU.

2.3 Staff Attitudes and Relationships

Reference has already been made to the obligation to instil appropriate attitudes in staff.

Prior to the complainant taking up her position in February 1993, there was no structured awareness session at which the impact of the complainant's disabilities could be discussed by staff notwithstanding the complainant's specific request that this be done. The complainant was offered the opportunity to write "a piece in the office newsletter". Ms McClusky gave evidence that she discussed the complainant's disabilities at one of the regular meetings for the section staff in the context of talking about the new recruits who were being inducted into the section.

I do not regard the suggestion of the newspaper article nor the holding of such a discussion as fulfilling the obligation imposed by the RA principle. An awareness session for co-workers of some kind was undertaken in September 1993 after the complainant had moved to the DSU but, by this time, I suspect, relationships between the complainant and staff in the Morwell office of the Department had become somewhat fixed.

The Department's office at Morwell is an open plan arrangement with desks for staff in any one section be arranged in a cluster. Approximately 110 persons work in this area with only their senior managers having enclosed office space.

I have no doubt that significant difficulties being experienced by a staff member in one section would be known to at least some staff in another section. This fact, together with the usual dynamics within an office of this kind where lunch and rest room facilities are shared, would have an impact on the attitudes of the staff in the DSU. Whilst the period of the complainant's employment in the DSU is essentially a different chapter in the narrative, it is inevitable that some of the adverse effects on her of the equipment shortcomings and the effects of the adverse views formed by her supervisors and co-workers would continue to influence her new situation.

2.4 Monitoring and Supervision

Initially, the monitoring of the complainant's performance was the same as for other probationers - namely, fortnightly feedback report to the probationer, these reports forming the basis for the 3 monthly Probationer Report.

The complainant's transfer to DSU followed a conference on the 27 August 1993 which was attended by the complainant Messrs Colin Parker (Regional Manager), John Pallott (Section Manager), Michael Ireland (Supervisor), John Cooney (Union Representative), Ms Sue McDonald and Ms Donna Van Nooten (both of Latrobe Personnel). At this meeting, the working arrangements and outcome expectations were negotiated and `agreed upon'.

The complainant was to be under the direct supervision of Mr Ireland, who I found to be an impressive young man, who set out to provide a working environment in which the complainant's probation period could be assessed. It was, however, his first experience of supervising a person with a disability and he was unaware that the complainant had not had a functioning Zoom Text during her time with the Family Payments Section.

This transfer was described as providing a `fresh start' for the complainant. Mr Borenstein, on behalf of the complainant, challenged the accuracy of the statement on two grounds - firstly, there was a higher expectation of the complainant because of her previous 6 months service and secondly, because she was limited to a bare 6 months period, whereas starting probationers could reasonably expect to have 12 months to prove themselves.

The agenda for the 27 August meeting was set by Mr Parker at Morwell who, on his own admission, (Ex. 1 p.198) "maintained a very close interest in the progress of (the complainant's) probation". This, I believe, started with his support for the annulment recommendation in the 3 month Probationer Report.

The August meeting under Mr Parker's control laid down performance targets, required monitoring of the complainant's activities by means of a daily diary and provided for weekly feedback sessions.

Mr Ireland arranged for the complainant to sit at the desk abutting his so that he could directly and personally monitor her work performance.

Additional to the support agencies within the Department, the complainant had available, as she required, support from the staff of Latrobe Personnel. This organization is an independent Government funded agency and its role is to provide assistance through its trained staff for people with disabilities. This assistance took the form of help with training on the job, with providing support at meetings with supervisors/managers and with personal development and co-worker relationships. The complainant was quite used to this support having had earlier contact with Latrobe Personnel in her employment prior to her commencing with the respondent.

Samples of the daily diary kept by Mr Ireland and of the weekly feedback assessments are found in Ex. 1 pp.189-193 and pp.176-186 respectively. For instance -

"Friday 3/9/93 (from p.193 of Referral Report)

8.00am - Computers were down and as Amanda didn't have any file aways she went to Dianne and got some from her. Very good initiative.

9.10am - Mail opening and sorting

10.30am - Finished mail and morning tea

10.45am - Talked to Amanda in regard to the quantity of work and what her duty statement says.

11.10am - Started a time and motion test until 12.00 noon

Amanda completed: 9 bank changes

4 medical certs.

Very good Amanda!!"

"Thursday 9/9/93 (from p.183 of the Referral Report)

8.00am - START - Amanda checked her Rejections & Warnings.

8.30am - FILEAWAYS

9.10am - Mail opening and sorting

10.30am - Went on with work on the computer - File transfers in and out

11.00am - Talked to Amanda and Sue McDonald in regard to the time that Sue spends with Amanda and whether the current times are still appropriate. After discussion about this it was decided between us that it would now be better if Sue could come in the afternoons from 1.30pm - 2.00pm start for two hours each day. To start from Monday 13/9/93.

11.30am - Amanda went on with her work - Bank changes, address and FTO and FII's

12.00 - lunch

1.00 - Amanda automatically went on with her work and sat down and JUST DID IT. "Good Work Amanda". Amanda continued this for the rest of the day with limited supervision by myself.

Worked through the afternoon.

WORK COMPLETED

3 x addresses Rej+Warn=0

2 x nominee

3 x rent

6 x bank

1 x TFN

15

6 file trans in

1 file '' out Total 22"

For the complainant, it was contended that this level of monitoring was oppressive. Mr Cooney described the situation in his statement (Ex. 9) in the following terms:-

"It was the first time I had seen someone monitored as closely as she was. There were stages when she was being monitored on a daily and on an hourly basis. She was stressed by it ...."

Mr Richard Muffatti said (at p.146) -

"... the most severe form of close monitoring I've ever seen in any Department"

Ms Snelling was questioned about this "close monitoring" and expressed her opinion that "it would be extremely unhelpful" (p.161).

For the respondent, it was contended that the level of monitoring was, or was intended to be, helpful allowing the complainant to make necessary adjustments to her conduct or to her work practice so as to meet the pre-determined targets. But also it was to enable the Department to be accountable in the event the complainant's performance was unsatisfactory. In cross-examination, Mr Ireland would not concede that the monitoring was more intensive than normal but he agreed that it was more frequent.

In fact, in the first 8 weeks of the 11 weeks of the assessment period, the complainant achieved a good or satisfactory rating. These assessments contained encouraging comments from Mr Ireland. However, in the remaining 3 weeks, starting on the 1 November 1993, the complainant rated unsatisfactory in some of the areas of assessment.

The complainant's perception of the daily monitoring was that it was "impeding her progress" (Transcript p.35/25) and that it was "too aggressive and too intimidating" (p.35/35). There were side issues as to how the count of her "pieces of work" was undertaken and whether at times work was available for her but these issues do not require specific comment.

One concern raised by the complainant was the fact that if her output was less than the target for one part of the week, she was rated as unsatisfactory for the whole of the week even though the weekly total was achieved. This situation was defended by Mr Parker in his letter to the Personnel Manager on 4 October 1993 in words which highlight the application of different standards. See Ex. 1 p.149:

"I have had regard to (the complainant's) comment that her performance should be assessed over a whole week rather than rated unsatisfactory on the basis of one hour's work. In a clerical environment such as ours, this would be a normal approach. In (the complainant's) case, however, the level of detailed evidence that will be required to support any statements as to whether or not her work is of a satisfactory standard requires a more detailed approach which is impossible without the current diarised input/output approach. To my mind, therefore, if she fails to measure up to a satisfactory standard at any time during the week, she has failed to meet the performance standard required and that will be the assessment."

Significantly, the unsatisfactory ratings started to occur in the lead up to the 9 month Probationer Report. The complainant sought to reduce the intensity of the monitoring and, to this end, a meeting was held on 13 October 1993 which resulted in a shift from hourly to daily assessments. The Minutes of that meeting make clear that the complainant was at this time under pressure to perform (See Exhibit 1 pp.128-9):

"In summary Amanda expressed her concern that:

. The daily monitoring process is counter-productive in time taken to conduct it, and that she finds the intensity of scrutiny of her performance places considerable pressure on her ......

I acknowledge that continuous scrutiny would engender pressure to perform."

As a consequence of the pressure this monitoring imposed on the complainant, Ms McDonald sat beside her on a full-time basis for the 2 weeks before the probation evaluation. The complainant's diary note (Ex. 3) refers to this situation as having "taken a fair amount of time, taking time away from output on a daily basis".

The 9 month Probationer Report recommended annulment notwithstanding the earlier decision to extend to the probation period to the 15 February 1994. Its effect, according to Mr Ireland, was to cause the complainant "to drop her bundle". I accept she never recovered to a point of having a proper working relationship thereafter.

The 11 month Probationer Report was sent on 7 January 1994. This Report contains statistics showing the complainant's performance as being unsatisfactory in most areas for most of the time. It is clear on the evidence that this outcome has its genesis in what had transpired at the workplace in the preceding 9 months.

I should state also that I accept the evidence that many others endeavoured to play a supporting role with the complainant's best interests in mind. These include the support staff from the Department's Work Environment Unit, Latrobe Personnel and co-workers. The various supervisors no doubt applied themselves conscientiously to the task of making assessments, though perhaps not always with necessary level of awareness of the RA principle. However, it is necessary for me to look at the reality of the situation and not the intent of the individual actors who make the work environment what it is.

The view I take of the matter is that the intensity of the monitoring was not only unnecessary but it was inimical to the complainant's chances of proving her worth. I accept the evidence that no other probationer had been subjected to such intense scrutiny.

However well intentioned the monitoring process was and I accept that, on Mr Ireland's part, there was a genuine attempt to make the process work, it did result in the complainant being unable to carry out her work tasks to the best of her ability.

3. FINDINGS

The principles of law which are applicable to a case such as this were identified by the President in X v. McHugh, Auditor for the State of Tasmania (1994) EOC 92-623 at pp.77,312. In summary form they are -

1. The complainant bears the onus of proving that

(a) discrimination occurred

(b) on the ground of disability.

2. The provisions of the DDA must be read in the light of its statutory objects. In this instance s.3 of the DDA.

3. Proof of intention or motive on the part of the respondent is not necessary. It is enough that the material difference in treatment is based on the status of the complainant.

4. The employer seeking to be excused from liability under s.15(4) of the DDA, bears the onus of establishing that the complainant would be unable to carry out the inherent requirements of the employment.

The question of discrimination - direct or indirect - has, in this case, to be looked at in the light of the respondent's obligation under its own RA policy, the relevant areas of which have already been identified.

The question to be decided is whether the complainant's dismissal was based on aspects of her performance that were brought about by her disability and whether in that event the dismissal was unlawful.

Section 5(1) of the DDA contains a definition of discrimination that is often referred to as direct discrimination. Section 5(1) provides that discrimination will be found where a person (in this case, the respondent) treats the aggrieved person (in this case, the complainant) less favourably than, in circumstances that are the same or are not materially different, a person without the disability. Section 5(2) provides that the circumstances will not be dissimilar or materially different just because the person with the disability may require different services or accommodation than a person without the disability.

It would follow that the fact that the complainant required different equipment than that required by her fellow workers would not result prima facie in the situation not coming within s. 5(1).

It is the submission of Counsel for the respondent that the complainant was dismissed as a result of poor conduct, communication and interpersonal skills that were unrelated to the fact that her equipment was not fully available and functioning or to the close monitoring.

As stated above, I disagree with this submission and find that there was a connection between the lack of equipment and intense monitoring and the conduct and communications difficulties displayed by the complainant. The evidence adduced by the complainant satisfied me that much of the complainant's behaviour reflected her frustration at her disability not being reasonably accommodated by the respondent in accordance with the RA principles it was bound to implement. Furthermore, even if one puts the issue of lack of equipment and intense monitoring aside, some of the behavioural matters criticised by the respondent such as the complainant's tendency to interrupt people and make frequent demands of supervisors, are directly attributable (according to Ms McDonald's evidence) to the complainant's disability and the mode of behaviour she has adopted over the years to compensate for her limited sight. Although there is no clear delineation between the causes of particular behaviour, it would be discriminatory in itself, in accordance with X v. McHugh, Auditor for the State of Tasmania (supra), to dismiss the complainant for displaying such characteristics regardless of whether this behaviour was heightened by the lack of equipment and intense monitoring.

It follows that in dismissing the complainant, the respondent was doing so for reasons brought about by, and hence on the ground of, her disability - namely that her inefficiency and her frustration was caused by her disability not being adequately accommodated and also, in part, for displaying behaviour that was a manifestation of her disability.

I find, therefore, that the respondent treated the complainant less favourably than it would have treated someone without her disability and that this less favourable treatment was because of the complainant's disability. The discrimination was, therefore, unlawful pursuant to ss.15(2)(b) and 15(2)(c) of the DDA.

The complainant also alleges indirect discrimination within the meaning of s. 6 of the DDA. The claim is put forward on the basis that the respondent -

(a) failed to provide necessary equipment for the whole of the probationary period;

(b) imposed on the complainant onerous monitoring procedures; and

(c) exposed the complainant to an adverse work environment.

These bases are not, in my view, consonant with the requirements of s.6 of the DDA. The section calls initially for the identification of a specific "requirement or condition" which is to be examined for the presence or otherwise of the characteristics of -

. the compliance capacity of a substantially higher proportion of persons without the disability;

. unreasonableness in the circumstances; and

. the lack of capacity to comply in the complainant.

My attention has not been directed to any specific "requirement or condition" affecting the complainant's employment which, though appearing to be neutral, had a discriminatory effect in practice. As a consequence, there has been no opportunity on the part of the respondent to make submissions on indirect discrimination other than on the bases set out above.

In these circumstances, the claim for indirect discrimination (which has been raised somewhat incidentally) fails. In the light of my previous findings on direct discrimination, it is not necessary to pursue this question further.

My finding that unlawful discrimination tainted the complainant's dismissal makes that dismissal unlawful unless s.15(4) of the DDA applies. On this question, it is for the respondent to convince me that the complainant would be unable to carry out the inherent requirements of her particular employment.

On this issue, the most telling evidence is the fact that in her first 8 weeks at DSU with properly functioning equipment, the complainant performed at a level that was satisfactory or better. Mr Ireland, in cross-examination, indicated that had that performance been sustained, then he would have considered recommending confirmation of her employment at the 9 month mark.

I have already found that the reason for the change in her performance level was the intensity of the monitoring and supervision regime. I have no doubt that the complainant has the intellectual and technical ability to carry out the duties of an ASO1 and I am not persuaded that any of the other grounds upon which the annulment recommendations were made have been established as being present independently of the discriminatory conduct of the respondent. I find, therefore, that the complaint is substantiated and I turn my attention to the remedies which are available pursuant to s.103 of the DDA.

4. RELIEF

The relevant provisions of s. 103 are set out earlier in these reasons for decision.

Specifically, the complainant seeks relief in two forms. Firstly, reinstatement as a confirmed officer of the APS or, alternatively, reinstatement as a probationer. Secondly, damages in the form of general damages for stress, anxiety, inconvenience, aggravated damages because of the deliberate conduct on the part of the respondent and damages for her economic loss.

The respondent opposes any order for reinstatement and any claim for aggravated damages.

The question of reinstatement raises interesting considerations, but in the end result, I am not prepared to make any such order. It is not possible for me on the evidence to say that the complainant has successfully completed the probationary process of the APS such as would entitle her to confirmation in the position of ASO1. My earlier findings go no further than saying that she was not given the opportunity to have her employment appropriately assessed for the purpose of probation. The finding relevant to s.15(4) of the DDA goes no further than saying that the respondent failed to satisfy its onus of establishing that she would be unable to complete successfully the probation process. I am not qualified to make an assessment about the adequacy of her probation experience and there is no evidence which leads me to decide conclusively that the complainant would have met the required standard but for the intrusion of discriminatory conduct.

I am not prepared to order the reinstatement of the complainant as a probationer. The complainant is in a position where the opportunity for her to pursue this course remains, but at her election. If she was prepared to re-sit the entrance examination, it is most probable that she would again receive an `order of merit' ranking which would ensure that she would again be considered by the APS as a probationer. I accept Mr Rodney Pitman's evidence that her previous experience in the Department would not be a factor in her being so placed. It would be quite unwise, I believe, to direct that the complainant be re-employed in the Department at Morwell. I do not believe it would be appropriate to direct the APS to find a position for the complainant in some other Department in a location which is suitable for her, particularly in circumstances where I have no knowledge of staffing requirements nor of the spread of duties to which the complainant might be assigned.

The complainant has now had 12 months experience of the probationary process. It is properly a matter for her whether she wishes to go through that process again. The only burden which she has to bear in order to follow that course is to re-sit the entrance examination. I propose to make some allowance in the assessment of damages to take account of the prospect that she may re-sit the examination and for the inconvenience which such a step would attract.

I have decided that it is appropriate to make a declaration that the respondent should pay damages to the complainant, such damages to be assessed at a level which will be "compensation" for any loss or damage suffered by reason of the conduct of the respondent. The complainant's claim for damages involves three parts: pecuniary, general and aggravated damages.

The pecuniary damages involve past and future economic loss. By arrangement with the parties, I received details of claimed lost earnings in a letter from Slater & Gordon, solicitors for the complainant, dated 10 May 1995. This document has been marked Exhibit 20 in substitution for the existing exhibit. The new document discloses that for the past, the amount of earnings lost by the complainant as a consequence of her dismissal totalled $20,973.08 at trial. If continued to the end of the 1994/5 financial year (a suitably approximate date to the release of this decision) at the rate of $391.94 per week, the loss would be slightly in excess of $28,400.00 gross.

I sought further argument from Counsel as to whether damages recoverable as past loss of earnings would attract a liability for income tax in the complainant's hands. I acknowledge my indebtedness to the legal representatives for their subsequent joint submission and reference to authorities. For convenience, I have marked the submission dated 11 May 1995 and attachments as Exhibit 21. The Commissioner for Taxation Ruling, IT 2424 is directly relevant providing generally that a compensation payment to make up for lost earnings as a result of unlawful acts of discrimination is assessable in the hands of an employee. Further, a compensation payment for unlawful dismissal qualifies as an eligible termination payment and is, therefore, subject to special taxation treatment.

As this case involves the complainant's dismissal and as there can be a discrete calculation of lost earnings up to the date of hearing, it seems to me appropriate in assessing damage to make the calculation on the basis of the complainant's gross salary leaving that part of her compensation to be subject to special taxation treatment in her hands.

The complainant argues also for loss of earning capacity in the future on the basis of a continuing loss of $391.48 per week gross for the balance of her projected working life, namely 30 years and reduced by 50% to take account of contingencies and her prospects of obtaining other employment.

The respondent opposes this approach and contends that there must be taken into account the consideration that the complainant may not have succeeded in the probationary process absent any discrimination.

It is not, in my opinion, reasonable to allow future loss on the basis that the discriminatory conduct has rendered the complainant largely unemployable. What that conduct has in fact done is to put the complainant in the position of having again to sit an entrance examination with the APS or to seek employment elsewhere. Her chances of future employment in either alternative has not been significantly damaged.

I shall include in the assessment for pecuniary damages the full loss of her earnings to date, $28,400.00. I shall include in the assessment of general damages, a sum of $12,500.00 to take account of the complainant's loss of future earnings and for the prospect of having to re-sit the APS examination if she is minded to take that course.

The submissions on behalf of each of the parties as to aggravated damages suggested that there was some confusion between aggravated damages and exemplary damages. Given the dictates of s.103(1)(b)(iv), consideration can be given to aggravated damages which are compensatory, but not to exemplary damages, which are punitive. The distinction is explained in Lamb v. Cotogno [1987] HCA 47; (1989) 164 CLR 1 at p.8. Any allowance for aggravated damages is to compensate the complainant for injury to her feelings caused by insult, humiliation and the like. The correct approach to the assessment of the allowance for aggravated damages was set out by the Federal Court in Hall v. Sheiban [1989] FCA 72; (1989) 85 ALR 503.

There is no doubt that the conduct I have found to be discriminatory, even though unintended, imposed on the complainant a great deal of pressure. There is no doubt also of her strong determination to succeed in the job. The consequence of her failure to do so engendered very strong feelings of disappointment and humiliation which was observed by all who were associated with her. A number of witnesses spoke of her "dropping her bundle".

Since these matters are intertwined with the physical effects of which Dr Pradeep Chhabra spoke (Ex. 14) it would be artificial to attempt to put different money values on such things as injured feelings and humiliation as distinct from anxiety and reactive depression associated with the stress of losing her job.

Dr Chhabra's opinion as to the nature and extent of the complainant's physical problems are contained in two reports dated respectively 8 July 1994 and 17 February 1995 (Exs 14 and 15). In substance, they describe the complainant as having suffered "several bouts of nervous diarrhoea, nausea, light headiness, aching muscles and sore neck as she was suffering stress", that she had "nightmares on some nights" and that she "felt anxious and felt that her self-esteem was destroyed". In 1994, Dr Chhabra diagnosed the complainant as suffering from anxiety and depression which was consistent with the history of her dispute and was related to the termination of her job. The conditions of anxiety and depression appear to have continued at least until July 1994.

I propose to make one assessment of general damages which include an allowance for these physical effects as well as an allowance for aggravated damages. I assess that sum to be $10,000.00.

I have also considered the impact of the fact that I gave to each of the parties leave to be legally represented. The complainant's disability, the imbalance of resources available to the respective parties and the relative novelty of the complaint made the granting of such leave inevitable.

The DDA does not give to the Commission any specific power to award costs. In many decided cases under related discrimination legislation, small allowances have been made in the assessment of damages to take account of legal expenses.

In the circumstances of this case, to make any allowance for legal costs of a six day hearing where evidence was taken from 13 witnesses, would involve a significant amount. To attempt to do so without any information about the actual costs could lead to a result which might well be seen as capricious. A token allowance would only be confusing. The alternative is to note that s.105 of the DDA provides that financial assistance, with the recommendation of the Commission, may be sought from the Attorney-General. It may be that some of the legal costs incurred may be recovered this way subject to the recommendation of the Commission. I do not constitute the Commission for these purposes. If this course is adopted it may allow for the opportunity for an assessment to be made of the complainant's costs based on proper information.

Accordingly, I make no allowance for legal expenses in the damages which I assess in the following amounts:-

Loss of earnings to 30 June 1994 $28,400.00

General damages (including loss

of future earnings and aggravated

damages $22,500.00

__________

$50,900.00

__________

I declare that the respondent should pay to the complainant damages by way of compensation for loss of damage suffered because of the conduct of the respondent the sum of $50,900.00.

DATED at Rockhampton this 26th day of June 1995.

_______________________________

S.G. JONES Q.C.

Commissioner