Garity v Commonwealth Bank of Australia [1999] HREOCA 2 (25 January 1999)

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

No.H97/191

Sally Garity

Complainant

And

Commonwealth Bank of Australia

Respondent

REASONS FOR DECISION OF INQUIRY COMMISSIONER THE HON. ROBERT NETTLEFOLD

Date of Decision: 25 January 1999

Hearing Venue: Hobart

Hearing Dates: 27 April - 1 May 1998, 15-17 June 1998

Complainant represented by: Dr Scutt of counsel instructed by Ms A Crotty

Respondent represented by: Mr Burquhart of counsel instructed by Clayton Utz Solicitors

1. INTRODUCTION

By a referral dated 13 August 1997 the Disability Discrimination Commissioner ("the Commissioner") referred this matter for an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") under Section 76 (1)(b) of the Disability Discrimination Act 1992 ("the Act").

The Commissioner's report contains a copy of the complaint and a copy of the response to it by the Commonwealth Bank of Australia ("the Bank"). Each of these documents is quite lengthy and contains a considered, detailed, statement of the party's case. They are important documents which, taken together, describe the issues involved in the "matter" referred. Reference will be made to portions of them at a later stage. But, to avoid lengthy repetition, all that need be said about them now is that, speaking in very general terms, they outline the cases made by the parties in the evidence called at the hearing.

2. THE LEGISLATION

The following sections are relevant to the complainant's case:

Section 4 Interpretation

This section gives a definition of the term "disability", in relation to a person, which clearly includes the complainant's case.

Other definitions in that section which are relevant to this case are "disability discrimination" which has the meaning given by sections 5 to 9 (inclusive), and "discriminate" has the meaning given by sections 5 to 9 (inclusive).

Section 5 Disability Discrimination

"5(1) [Less favourable treatment] 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.

5(2) [Where different accommodation required] 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.

Section 6 Indirect Disability Discrimination

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.

Section 10 Act Done Because of Disability and for other Reason

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.

Section 15 Discrimination in Employment

15 (1) [Offer of employment] 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.

15 (2) [Conditions of employment] 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.

15(3) [Domestic duties excepted] 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.

15(4) [Inability to carry out job] Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by am 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.

Section 35 Harassment in Employment

35(1) [By employer] It is unlawful for a person to harass another person who:

(a) is an employee of that person; and

(b) has a disability;

in relation to the disability.

35(2) [By fellow employee] It is unlawful for a person to harass another person who:

(a) is an employee of a person by whom the first-mentioned person is employed; and

(b) has a disability;

in relation to the disability.

Section 122 Liability of Persons Involved in Unlawful Acts

122 A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.

3. A CONSIDERATION OF THE EVIDENCE CALLED BY THE COMPLAINANT ON THE ISSUE OF LIABILITY

3.1 The complainant's affidavit

On 3 November 1989 the complainant, then Sally Amanda Brett, submitted a written application for employment to the respondent. For present purposes, the significant points in it are:

1. She was born on 3 October 1957.

2. She had gained a High School Certificate in 1973 and had completed a Commercial Certificate course in 1975. She had a typing speed of 50 wpm.

3. Her employment history was stated as:

(i) Bar attendant Hobart 1/6/83 to 17/3/84.

(ii) Public Relations work 1/4/84 to 25/1/85.

(iii) Work at Rottnest Lodge Resort in Western Australia as a receptionist 25/1/85 to 9/12/85. She left that work to return to Tasmania.

4. When asked to indicate areas to which she would be prepared to move, she nominated Perth, Western Australia.

There is a gap of four years between the last day of work disclosed in the application and the first day of work with the respondent. As will be seen, that gap is explained by a serious deterioration in her sight in 1985.

In her affidavit in these proceedings the complainant described herself as a person under medical care as an insulin dependent diabetic, a condition which had continued since she was 9 years of age. She says that she fully understands the management strategies relevant to her condition and that understanding enables her to lead a full and normal life.

The complainant left school at the age of 18 years. From then to age 29 she worked and travelled, experiencing a variety of jobs - waitress, bar attendant and short order cook, typist, housekeeper, "pub" manager - finally spending quite a period as head receptionist and functions manager at Rottnest Lodge Resort.

In 1985 the complainant returned to Tasmania, starting work in the hospitality industry. Tragically, over the next year, the diabetes caused serious deterioration in her sight.

The complainant commenced work with the respondent on 4 December 1989, after about 3 years on an invalid pension. At that time her vision status was nil sight in the right eye and 40 per cent sight in the left. Function in the left eye was lessened by focal and peripheral problems. Towards the end of her period on the invalid pension, she became involved in programs with the Commonwealth Rehabilitation Service. During this time the Royal Guide Dogs Association of Tasmania offered her an opportunity to apply for the job of telephonist at the Tasmanian Head Office of the Bank at 81 Elizabeth Street Hobart. There were 22 applicants for the position, all visually impaired or blind.

The complainant says that, from the very first day, there was no effective training. She was told she would have three weeks with the retiring telephonist, Helen Stuart. But she says that other demands took Ms Stuart away from the switchboard and she spent a total of only 15 hours with her. She did not have any prior banking experience and, as telephonist, she needed an understanding of the responsibilities of different departments, and of officers within those departments. She complains that nothing was done to help her with this, apart from meeting personnel. This lack of training added to the stress involved in tackling a new job after a long period on the pension, due to vision impairment. She complains that there was no support staff or immediate supervision. She says she made up for lack of information and training by using her own initiative and experience to develop a filing system, points of reference and a records and ordering system. However, she found herself frequently phoning supervisors and "associates" with requests for help and information, which, "too often" was not forthcoming.

It took the complainant a long time to realise that many levels of information were not reaching her. In fact, until she transferred up to the Central Branch on the first floor in late 1994, she did not have a full picture of the material she had not had access to, for example, staff circulars and memos, staff meetings and training programs. She felt that this situation was compounded by the isolation of the telephonist/switchboard-operator from other staff. She was not free to wander around to observe what others were doing, she had to stay at her desk. Thus, she was unable to participate in the normal shared work experience, learning from colleagues and from observation. This situation continued for two years, with the complainant learning as she went.

Not long after the complainant began work, one of her senior colleagues, Mr Trevor Williams, discussed with her possible opportunities for training on computer equipment. She told him that, if screen, text size and colour considerations were taken into account, she was prepared to give it a try. She heard nothing further. She considered the chance to train and advance an integral part of her employment, hence she was pleased and encouraged by Mr Williams' suggestion. (In fairness to Mr Williams, it should be noted that he was transferred three months after the arrival of the complainant).

The complainant thought that there were numerous training programs which most employees were expected to attend - after hours and at week-ends. She accepted that some training was job specific, but other training related to general Bank policy such as fees, interest rates and procedural matters. She saw the telephonist/switchboard-operator as one of the first points of customer contact and in the frontline of customer relations. She feels that information and training about bank policies, practices and procedures would have been invaluable in the efficient discharge of her duties. She says that ongoing restructuring in the Bank meant that there was a lot of information which she needed, but it was denied her, simply by her not being included in training courses or asked to participate in staff meetings. She claims to have lost count of the many abusive phone calls she had received from clients on a regular basis, when she was confronted with situations she had not been made aware of and, hence, did not understand.

It was a matter of concern for her that, despite her long service and good Performance and Development Reviews ("PDRs"), she remained at the low classification of GC2.

The complainant claims that she was made to feel a nuisance or incompetent in requesting training of any kind, and the isolation affected her efficiency. In 1992 she attempted to overcome the problems arising from her lack of training by viewing videos in her lunch hour on approximately 20 occasions. She obtained these videos from the Personnel Department. She came to realise, however, that the videos were not the answer to her problem.

The complainant felt that, although her PDRs were good, they showed two weaker areas, product knowledge and initiative. She saw her assessment in those two areas as average. She attributes the weaker assessment in product knowledge to the fact that she did not receive the information she sought. As to the initiative assessment, she says that supervisors were supposed to make daily visits to colleagues and make their assessments on that basis. However, in her case, although initially there were casual visits, they dropped off over a few weeks, until they became monthly, or even less frequent.

The complainant found the PDRs quite demeaning, especially when she could not get adequate training, information or response from most staff, including her immediate supervisors. She formed the view that no one cared about the quality of her work, her requests for assistance or about her personally. She considered her PDRs a real farce as no one really assessed her properly and ignored numerous requests for assistance.

At this stage, the complainant's affidavit deals with events which had a serious effect on the relationship between these parties. Those events are the completion of two PDRs: one dated 25 February 1992 and the other dated 9 March 1992 (they are Exhibits C22 and R4, and Exhibit R5, respectively, in these proceedings). The conflicting evidence about them will call for findings at a later stage, but for now, the only task is to record the complainant's evidence.

The first one in February 1992, was to be her major, annual PDR. Her supervisor at the time, Mr Paul Turner, presented the document to her for her comments. She refused to sign it in the form it was then in because an officer, Mr Peter Scoles, had signed as reviewer and Mr Turner had signed as countersigning officer. She wrote on the form "it would have been of some interest and benefit to have met and been introduced to my reviewer". She felt that it was unfair that Mr Scoles should have assessed her when he had not met her. She says that, at the time, she felt increasing resentment "that I was being totally ignored in all avenues of my work".

She claims that, on the following day, Mr Turner and Mr Scoles "burst into the office, stood over me in a confined space and threatened intimidation. Mr Turner pulled up the spare chair and sat very close to me on my left, while Mr Scoles stood very close to and over to me (sic) on the right". She says that she was told that future supervisors would come down hard on her, and that she would suffer financial loss if she refused to sign a new PDR that did not bear her previous comment. She was told that she "would be throwing them in the deep end". She claims that she was left to consider her options for two weeks.

The complainant did not go to her trade union about this event because one of the supervisors was the Union President. She decided to approach an officer in the Personnel Department. He referred her back to the same supervisors to resolve the problem. She found that advice distressing and felt inadequate and insignificant.

After two weeks Mr Turner returned. He laid the new PDR in front of her to sign. The complainant states "I saw no option but to sign it as I wanted my job and could not afford to take the risk that they would or could follow through on their threats". She signed the new form, which recorded Mr Turner as the reviewer and one D.N.C. Green as the countersigner. The new form did not contain her comment "it would have been of some interest and benefit to have met and been introduced to my reviewer". She claims that Mr Turner threw the original form down on the desk and said "keep it as a souvenir". She noted that the original PDR, Exhibit R4, had been altered. A sentence in the colleague's section was altered. The original sentence was "I have considered this PDR form and have discussed it with my Reviewer". The word "Reviewer" had been crossed (X'd) out in typing and the words "Countersigning officer" put in its place. In the original document, Exhibit R4, Mr Turner was shown as countersigner and Mr Scoles as reviewer.

She says that since the time of this PDR, despite many problems, she has not felt free to make comments on succeeding PDRs because of this experience and fear of losing her job. She says that the only comments she has made since were on a Union Circular Questionnaire, where she tried to bring to the attention of the Union her concerns that she was being ignored when it came to training. The Union did not respond.

Around this time her sister advised her to keep a diary. Since that time she has kept what she describes as an "intermittent journal". She says she had no intention of using it for legal purposes. It became a journal of ongoing frustration and "mistreatment", a place to vent "spleen". Much went unrecorded.

The complainant's stress levels rose and her diabetes worsened. She suffered repeated hypoglycaemic reactions, many of them at work. This necessitated regular breaks for meals to keep her blood sugar levels balanced. She found this an ongoing source of tension. She was dependent on relief appearing in time, as she could not leave the switchboard unattended. She had to ask for additional help during "hypo" reactions, when she needed immediate large doses of extra sugar. The complainant says that, despite the fact that it was well known that she was a severe diabetic, there was a good deal of intolerance, ignorance and lack of acceptance. She claims that she was excluded from work related activities, like training, and social functions, including the staff Christmas lunch.

As the complainant's health condition deteriorated, she had to rely on other staff to relieve her in emergencies. Severe sweating is a symptom of her condition. This would require her to go to the Rest Room to clean herself up, so she had to request of the "girls" from the outer office to relieve her. She felt that, usually, this met with resentment and annoyance. She asserts that it was difficult to obtain relief for her daily lunch breaks.

"The complainant stated that there were times when I worked over my lunch break and afternoon tea and morning breaks more times than I took time out. There was usually no adequate relief and even if I could find relief I was left with the feeling that it was reluctantly given as a favour than that it was my right to have such breaks. There were occasions when this lack of relief interfered with my self medication".

On one occasion she had a hypoglycaemic attack in the presence of her supervisor, Mr Michael Callinan. She felt that he was shocked by her appearance. He allowed her to go home. She felt that it was clear that Mr Callinan did not have any knowledge of her medical condition, even though it was on record. When she returned to work, she explained to him that the eyesight problem and the diabetes were related.

Ms Garity said that during her employment, "I had to continually remind staff of my condition and my disability, as there was a propensity for indifference or ignorance displayed by most staff".

One day she found that she was under extreme stress and had three attacks, which threatened her health. She had a great deal of difficulty getting any real assistance or understanding, even though staff were obviously shocked at her appearance.

She claims that the Bank took no steps to cater for her needs for privacy in administering insulin injections, and she found that demoralising and "intrusive of my person".

In addition, the complainant was experiencing increasing concern over other issues, one of the most critical of those was her personal safety in any emergency situation.

When she first started work she noticed a fire safety plaque in her office. It gave the name of the fire warden for her floor and his extension, information which proved to be out of date. She requested an up to date poster from the then current fire warden. Despite a promise that it would be supplied it did not arrive.

She was not given specific instructions as to what to do in an emergency. The first time she heard the fire alarm, she left the building, unaided and without knowledge of the exits or mustering points. The next time she had prior instructions from her supervisor to remain at her desk to deal with the telephone calls.

From that time on, the complainant was not clear about her status during a fire drill or an alarm. On the majority of occasions, she was told to stay at her desk. Initially, this took the form of a phone call from her supervisor, but reached the point where she simply stayed at her desk when an alarm rang. She was told that, in the event of real emergency, the fire warden would collect her and escort her out. She realised that this assumed that the fire warden was available and not helping somewhere else. She felt that it was obvious that such a statement was of no comfort to her and only caused her more anguish, as she doubted very much that the fire warden would come for her. This was an ongoing source of anxiety.

At one time, very early in her employment, realising that the fire procedure poster in her office was out of date, she inquired of Mr [ ] Brooks whether he was her fire warden. He replied that he was. She asked him some questions about procedure and he said he would get back to her. He did not do so.

On one occasion the fire drill coincided with her lunch period, and after she had left the switchboard for lunch. When she returned, she was in trouble from her supervisor for leaving the switchboard and was told to remain in her position during all future drills. After explaining her view of how this problem arose, she says she recalls thinking that it was unfair and dangerous that a visually impaired person was required to continue working while her fully sighted relief was to evacuate the building during fire drill. She says that her feelings of resentment and sense of self worth were affected greatly by this perception.

The main passage in the complainant's affidavit about this topic is the following:

Being a visually impaired person and not being able to distinguish between fire drills, or false alarms and whether or not there may have been a real fire was agonising for me. I was always on tender hooks and uneasy whenever the alarm went off and this caused me enormous stress. I had real nightmares about being trapped in the building and left to my own resources. I believed in a real emergency that I would be left on my own without knowledge of how to evacuate the building. I often thought of what it would be like if I was trapped and possibly killed or injured.

Attached to her affidavit is a document headed "Tas Fire Service - Calls to 81 Elizabeth Street". It shows that from the date she commenced work until she left work on sick leave in February 1996 there were:

1. 44 entries made in total, in a period of 6 1/4 years, approximately 7 entries per year.

2. Of these, approximately 28 entries simply recorded "system malfunction; insufficient/info."

3. Accidental operation of alarm, 6 entries.

Other entries include;

1. False call, not classified, 2 entries.

2. Failure to notify test, 1 entry.

3. Smoke scare, 1 entry.

4. Simulated condition, 1 entry

5. Fault in detector, wiring or fire indicator panel, 4 entries.

Of course, the document does not record any planned tests or evacuation drills.

The complainant also complained in her affidavit of an inadequate work environment. In mid 1994 workmen came and measured her room. They told her that, due to a reorganisation, she was being moved to the banking chamber on the ground floor. Her supervisor told her that no change was planned. She had inquired because she was concerned, she was going on leave and did not want to come back, unprepared, to a new work space. The day before she was to return to work she rang the Bank and was told by a colleague that the change had occurred. She complains that her supervisor did not ring her at home to advise her of the change.

She was appalled by the condition of her workspace when she saw it. It was poorly lit, cramped, confined and "an obstacle course with electrical cable running everywhere". There was a "junction box" on the floor which she kept tripping over, "but no one would remove it". It was a very noisy place, positioned at the back of the chamber, well away from natural light, against a dark marble wall, with very unusual artificial lighting set in an extremely high ceiling. Bookcases were located two feet behind her chair, making access difficult. The desk and chair were ergonomically unsuitable for her. The contents of her old desk were in boxes against the wall. She adds "I could not see well enough in this new environment to find anything in the boxes and was hard pressed to operate without my visual aids".

She rang her supervisor to request additional lighting, but was told he was on leave for two to three weeks. Her acting supervisor, Mr Nigel Garlick, did not want to commit to new lighting being put in place and wanted her to wait until her supervisor returned. At her insistence he produced a small reading lamp which was not adequate. Three days later, when she was on the phone, the lamp burst into flames. She hung up and switched the burning light off, hoping she would not electrocute herself. Mr Garlick removed the damaged lamp. She was not asked to file a report about the incident. When switching off the burning lamp, she wondered whether the bundles of leads might catch fire also. She adds "I became quite fearful of the whole situation considering that I did not know the procedure for evacuation in an emergency. In the end, no one came to check the electrics and I was without a lamp".

When she arrived back from leave to this new situation, she found that her possessions and tools had been moved. She claims they were left in "disarray" and some were missing. As she is visually impaired, this was more than an inconvenience, her efficiency is dependent on organisation and tools to help aid her sight. She claims that "no consideration was given to me and my needs in planning this move".

When her supervisor returned she demanded upgraded facilities, particularly lighting, but it was still a matter of time, three weeks, before a spotlight appeared." Without consulting with her about her lighting needs, the spotlight was placed incorrectly and was the wrong quality of light. After a further approach to her supervisor, a second spotlight was installed. She adds "he appeared with a light meter and in front of workmen made snide and cutting remarks about the increased `candlepower'. The comments were directed to me and were meant, in my opinion, to relate to my inadequate visual condition and the trouble I had caused him".

The complainant says, further, that "in the cramped work space, a source of irritation was a first aid box mounted on the wall in a position where I kept bumping my head on it." When she saw the state of the first aid kit she was shocked by it. Much of the stuff in the kit was outdated and items were missing from the inventory included in the kit. In the complainant's view, "the thing was a mess". Attempts by her to get the kit restocked failed, in the time she remained in the banking chamber the kit was never restocked.

The next section in the complainant's affidavit deals with a claim of lack of fairness in promotion and additional training.

The complainant states that 1994 saw the development of tensions within the banking industry, as the restructuring of the industry was beginning to gear up. She claims that they were all working in an environment of fear and uncertainty. It was a time when people were looking to the security of their own jobs. It was a time of growing frustration and she renewed her efforts to become involved in the training programs as she found public resistance against such changes was considerable.

She says that, as a telephonist, she had to field inquiries over a wide spectrum of issues. With training, she could have become far more effective in a front line customer relations role. She found that she was filling "a multifunctional role with absolutely minimum support and no ongoing training". She was concerned that, despite good PDR reports, she was being given no advancement and no opportunity to improve, although she was required to take up a multifunctional role.

Training sessions were held adjacent to her work area and she sought permission to attend. She states that "finally", she was included in one ten minute session on a new $2 transaction fee. She claims that this was only the second training session she had had in five years and was to be the last.

The complainant says that she battled against an ongoing perception that she was only the telephonist and did not need information and was blind so did not need it, or could not use it. She found that these messages were recurring. Such perceptions had the effect of undermining her self esteem, especially when compounded by having to deal with customer dissatisfaction directed at her as representative of the Bank. Their constant abuse caused her ongoing stress. She anticipated that she would be abused almost on a daily basis.

She complains, next, about a lack of knowledge of her medical condition. She found that her diabetic condition was worsening and was difficult to control. She was having repeated "hypos" and anxiety attacks. She was working long hours without rostered days off. It was in September 1994 that her supervisor witnessed a severe attack and stated that he had been unaware of her diabetic condition. She feels that he could not, and should not, have been unaware of the disruptions being caused to her work by her deteriorating health. On the occasion of that attack, she had to leave work. It was not the first time she had had to leave work after a similar attack and other staff working around her certainly were aware that she was having difficulties caused by diabetes.

She says that the Bank, as an institution, knew of her diabetes from the records made at the time she was given the job. She claimed that the occupational health nurses at the Bank had been aware of her condition. One of them, Cheryl Freeman, was supportive and was aware of her diabetic condition and that increased stress would bring on an attack. At some point in the restructuring the occupational health function was transferred to Melbourne and Ms Freeman left the Bank. The complainant adds "from then on I had impersonal spasmodic contact with the occupational health unit in Melbourne, but nothing else. I felt alone and abandoned".

Her "hypo" reactions escalated in the period September to December 1994. In this period she entertained fear for her health and, at times, for her life. On 30 November 1994 she was diagnosed with glaucoma, "meaning that I was to lose further sight". At the time, she was under considerable stress with high blood pressure. In December 1994 she asked the Royal Guide Dogs Association for support, in the light of the new diagnosis. When she informed her supervisor of the diagnosis he "snapped back" the words "I know that". She claims that he was put out and concerned about how she would be replaced. She says "he had absolutely no compassion for or interest in where this left me". This occurred just prior to her going on holidays on return from which she was moved to a new work station in Central Banking.

In her new work station she worked under a new supervisor, who listened to her needs. He had her work station moved to a position of maximum light close to windows. Later, she was included in the office environment by her supervisor and received far more of the general available information. She felt that things had changed for the better. However, it only lasted six months, until the supervisor was transferred.

The next complaint to be found in her affidavit is one of inadequate equipment.

At this time she felt that the telephone system was inadequate, not meeting the needs of the banking environment of that time. The situation grew "dramatically worse", she claims, when her former supervisor, the Branch Manager, introduced a new addition to the switchboard. He did this without consultation with her. The change aggravated an already non-functional system. Once a call entered her switchboard's control she could not identify if it returned unanswered. The system was a public relations nightmare "aimed at my ear". She suffered so much stress over this period that she dreaded going to work, because of the abuse. She made complaints about the situation to no avail.

This new system was also in mute creams and greys, colours poorly suited to her visual range. She asked for permission to modify the numbering, but was told the phones did not yet belong to the Bank, and to wait for permission. Despite phone calls to see what was happening, she did not get permission. Eventually she got the numbers from Telstra and stuck them on herself.

The complainant feels that the inadequacy of the equipment and her lack of specific training resulted in many unfortunate incidents. One incident led to a senior officer suggesting that the complainant needed training. Although his complaint came through her superiors, no training followed.

The complainant says that "time and again" she asked for information, training, or help, but did not get it. Or, it would be promised or offered and would not be forthcoming.

She felt that her health was "again in crisis", her self esteem was low and her frustration level high. Her diabetes went out of balance again with frequent "hypo" reactions necessitating a great deal of medical care. In December 1995 she was given two weeks' sick leave for stress and anxiety. She returned to work after that leave for a short time and then went on annual leave. She returned to work again after this leave but only lasted two days. She experienced major "hypo" attacks and an "overwhelming" sense that she could not go on. At this stage, she left the Bank on sick leave. At the time of the hearing she was still on leave from the Bank and was receiving periodic payments from Comcare.

In April 1996 the Bank offered her a voluntary redundancy, through bank officers visiting from Melbourne. She refused the offer.

She has continuing health problems of a serious kind. Since leaving work in February 1996 her kidney condition has deteriorated. She has been diagnosed as having kidney failure "with 18 months maximum left". She says that this time frame has shortened and she will need a multiple organ transplant in the immediate future.

In April 1997 she was approached by an Ms Christine Davin, officer of the Bank from Melbourne, offering her a voluntary redundancy. Ms Davin told her that her position had been abolished. She refused the offer of voluntary redundancy.

3.2 The complainant's oral evidence

Ms Garity said her first supervisor was Mr Williams. He transferred to Melbourne after three months. He visited her reasonably regularly for the first month or so. She described him as "good from a business point of view".

Her next supervisor was Mr Paul Turner. He visited her on a very occasional basis, just formal visits.

Her recollection was that it was three weeks before Christmas 1994 when she moved to her last work station on the first floor. Ms Cindy Root helped her then with information which she realised she should have had from the beginning.

When she started at the Bank on 4 December 1989 she was put in a segregated little office, next door to the mail room, on the second floor. Probably eighteen months after starting work she got a stack of memos delivered to her.

She said that when she was first employed she was not told anything about opportunities for promotion.

She attended staff meetings, in the beginning, three or four times. She did not attend them after that. She did not get notices about staff meetings.

As to fire drills, she said that she had not attended one fire drill. Smoke has an impact on her vision, her eyes start smarting.

She complained that no provision was made for her to administer insulin injections and that "five minutes of someone's time while I did it would have been appreciated".

The idea of setting up a roster to ensure, that when she needed to do a blood test or injection the roster would swing into place, was not discussed at any stage.

In approximately April 1998 the complainant received a circular from the Bank's EEO Unit (Exhibit C3), which was seeking up to date information about, among others, staff members with a disability. The stated aim of the exercise was to better match programs and training to people's needs.

While at the Bank the complainant did not receive a copy of the Bank's EEO policy. Nor did she receive a copy of any disability discrimination policy. She did not receive any training in EEO or disability discrimination at the Bank. She was not aware of anyone from the branch going on an EEO training program or a disability discrimination training program.

During cross-examination, the complainant said that, before she joined the Bank, she had concluded that her chances of getting a job were relatively slight.

Speaking of her appointment to her position she said "they did not tell me this is the only job you are going to have, you're staying in that job and that's it". She said that she got an occasional memo showing that people had been moved around. She accepted that she did not apply for any other position.

She confirmed that, at the time of her appointment, she filled out a document which disclosed that she had diabetes. She also confirmed that she signed a superannuation document putting her on restricted benefits, in the event of retirement, because of a pre-existing condition.

She agreed that her scores on the PDR dated 9 March 1992 were "basically good" (see Exhibit R5).

She accepted that she was "highly annoyed" that she had not seen Mr Scoles, the person shown as the reviewer on the PDR dated 25 February 1992 (Exhibit R4), at any time before she was given that document. At the time of the visit of Messrs Turner and Scoles to her, about that PDR, Mr Scoles said "Sorry I should have met you before", or words to that effect. She said that Mr Turner did not explain that the document, Exhibit R4, would be retyped to show him as the reviewer and Mr Green as the countersigning officer.

Counsel referred the complainant to page 6 of the Referral Report (Exhibit C1) and to the statement "while Mr Scoles remained silent Mr Turner implied that he was very unhappy with my written comments". Her response was to say, "No, he had told me that things would be very hard on me from supervisors and that I would lose out naturally and that I'd thrown him in the deep end. I think the words 'I'm unhappy with you, Ms Brett' for me, doesn't really come into it - he would not have said that to me and he did not say that to me."

Speaking of the fire drills she said that, originally, Mr Turner would ring her up to tell her there was a fire drill on. She estimated that he did that four times. Then the bell went "and that was OK". She was not scared on those occasions, she had been forewarned and told to remain at her desk. She added "Now, other times, when the fire alarms went - well, what do you do? I mean, you haven't got a phone call."

She claimed that her supervisors did not visit her much at any time during her employment. She disagreed with the suggestion that Mr Turner and Mr Alun Roberts looked in on her regularly. She also said that Mr Michael Gandy did not visit her at her work station often.

She arranged for Dr [ ] Hughes to send a letter to the Bank concerning her meal breaks. The letter dated 25 November 1994 (Exhibit C9) is important and should be set out in full:

Sally is an insulin dependant diabetic. It is essential for her to rigidly control her food intake and time this according to her needs. There appears to be some difficulties in arranging this at present. I would be happy to speak to anybody to further explain the situation.

The complainant says that her supervisor at that time, Mr Callinan, did not do anything about it.

She said that a lot of people on the ground floor knew that she was a diabetic.

Having moved to the first floor of the building, she had Mr Leslie Allie as her supervisor for three to four months. The evidence shows that that move was made in December 1994. She spoke well of Mr Allie as a supervisor. She felt that she had found someone in Mr Allie who, at least, took notice of her needs and, at least, had some care as regards how she was operating.

Then Ms Patsy Scott became her supervisor. The complainant received from Ms Scott a form which dealt with possible problems staff were having. She wrote on it "no training" in big letters at the bottom of the form. The form was returned "and nothing ever came of it". She asserted that, at that stage, she had no faith or trust in the Bank or the Union.

She said that, sometimes, she had to leave the console unattended because of "hypo" attacks.

In late 1993 or early 1994 the telephone number 13-2221 was introduced. The effect of that was to transfer a lot of calls to a central point, rather than to have them come into each branch. She claimed that it never worked. But she agreed that, as time went on, because of 13-2221, she had a lot less to do.

During re-examination a document was introduced which was marked Exhibit C8. It is headed "Telephonist" and has a number 1035 as part of the heading. As it appears in evidence, it has "June, 1993" written in ink at the top of it. In the context of the issues in this case, it is an important document which will be considered later. For now, it is sufficient to say that the complainant said "everything they have stated in this I have done and more".

3.3 Evidence of Ms Heather Lawson

Ms Lawson corroborated the complainant's evidence concerning the nature of the work space which the complainant had on the ground floor in 1994. Ms Lawson was working on the ground floor when the complainant was transferred there. The main points she made on that subject were:

1. It was "far removed" from the major area, tucked away from the main activities of other employees.

2. There was "very limited room to move...a dismal inadequate work area".

3. It was a cramped area, there was simply no room for a person to manoeuvre, let alone a person with limited sight.

4. There were a lot of extension cords on the floor where she worked. This was an unsafe situation for the complainant. They did tape the cords down but this made it more difficult to manoeuvre over the cords because of the bulk. During the time the cords were on the floor Ms Lawson says she tripped over them at least twice.

5. There were no adequate lights for Ms Garity. Ms Lawson only observed overhead lights attached to a high ceiling, well over forty feet high. Ms Lawson saw no other lights in the vicinity where the complainant worked.

During the time she and Ms Garity worked in the same area, there was limited contact between Ms Garity and other staff, particularly management. Ms Lawson did not see anyone approach the complainant and her observation was that the complainant was "extremely isolated and forgotten".

Major construction changes occurred at the branch particularly in the period 1992-4. The changes seemed to put considerable stress on a number of people.

3.4 Evidence of Mr Rodney Butler

Mr Butler was employed at the Bank from August 1981 to November 1996. He met the complainant on her first day of employment and worked in close proximity with her during the period she worked at the Bank. The main points he makes are:

1. Her first work station was on the second floor. To get to her work station the complainant had to pass through the area where Mr Butler worked. During the time the complainant worked in this situation, Mr Butler observed minimal contact with other staff and management. Management rarely went into the area to communicate with her. It appeared to Mr Butler that she was isolated, separated from colleagues as well as management.

2. Initially, Mr Butler observed that internal circulars, including news bulletins, were distributed to Ms Garity on an intermittent basis but this stopped after a while and, thereafter, he observed that she did not get circulars or most information that was generally distributed to other staff. Material in the circulars and bulletins included information regarding staff promotions, training, redundancies, office moves, instructions relating to operational changes, staff movements, changes of policy in dealing with other staff and members of the public. Mr Butler recalls having seen circulars relating to fire drill which contained information relating to the fire warden for different floors, which fire exit to use to evacuate the building and where muster points were outside the building, so that a head count could be made. In Mr Butler's opinion, the majority of information contained in these circulars was not only important but necessary to ensure that each staff member had an up to date view of the changes that were occurring within the Bank as well as information pertaining to their safety.

3. To Mr Butler's knowledge, the complainant was "left to her own devices" and received limited training for her position. He says he observed also that she was not given any training to enable her to apply for any other position that may become available in the Bank.

4. The area the complainant occupied on the ground floor in 1994 was cramped and isolated. Lots of filing cabinets and other pieces of furniture limited movement in that area. There were several electrical leads over the floor area where she worked, an obvious danger.

5. He found that the area was not adequately lit and there was a light that reflected off the glossy granite wall "which would make it hard for anyone to read, let alone someone with impaired vision". The area was difficult to access. He found that one needed to manoeuvre around cords, limited space and furniture to get to the switch board.

During cross- examination he said that he did not recall whether Mr Turner visited her from time to time on the second floor. He said that "maybe" Mr Roberts visited her there. Not being in the mail room "all day, every day" he could not say; however, Mr Roberts may have visited her.

As to the electrical cords being on the floor in her ground floor work station, it struck him that the electrical work was not finished, "why otherwise have leads lying all around the floor". He cannot recall two wall lights in that area, only one.

During re-examination, he said that, when he was working next door to her on the second floor, the subject was raised between them as to why she wasn't getting the circulars any more. He spoke to someone about it and "a pile" of circulars were delivered soon after.

3.5 Evidence of Ms Audrey Millhouse

Ms Millhouse has been a friend of the complainant for nineteen years. When the complainant was employed by the respondent, Ms Millhouse was in the habit of meeting the complainant regularly for lunch in the city, sometimes twice a week. Sometimes the complainant would not turn up for lunch on time, or turn up late. The explanation the complainant would give was that she was unable to get anyone to relieve her at all, or to relieve her in time.

Ms Millhouse would discuss the complainant's work with her. The latter would complain that she was under a great deal of stress because of her poor working conditions and a feeling of isolation and a lack of communication with management and most staff. On many occasions the complainant said she was frightened of making a formal complaint because she would lose her job and not find other employment because of her disabilities.

Ms Millhouse recalls talking on the telephone to the complainant on an occasion in 1994 when the complainant said her light had caught on fire. The complainant screamed that the light was "drooping over like a dying swan." Ms Millhouse said:

In the last two years of her employment, I observed the changes in her mental outlook and changes in her physical health. I observed she was under a great deal of stress and anxiety and she displayed considerable anger at her treatment. On numerous occasions I experienced her having a "hypo", either at home or on social occasions, which I believe were directly related to the stress she was experiencing in her work environment. I had not experienced her having these types of attacks on a regular basis before those years.

Later, in her affidavit, Ms Millhouse made an observation which is helpful, because it assists with the task of gaining an insight into the relationship between the complainant and the main participants on the respondent's side. She said:

My observation of Ms Garity, based on a long friendship, is that she is the type of person that will endure considerable hardship and stress without complaining. In my opinion, she acquired this technique through the process of adjusting to her health problems over the years. It would not therefore be evident to people who did not have a close association with her that she was under any stress.

In her oral evidence, Ms Millhouse added to that useful comment in this passage:

I think a lot of the staff were ignorant about her, for the simple reason she always looked good.......and they could not see her deteriorating on the inside, her outside was fine.

Ms Millhouse's impression was that the complainant began to voice concern approximately three to four years into her time with the Bank. She said:

Things started sort of changing, and I think that's probably when all the renovations started and she was starting to be moved around.

Ms Millhouse also said:

I think it would have been about four years into her employment when things started to sort of drastically go wrong and she was just fearing for her position. She was fearing for her position, because who else would employ her.

At another point the witness said:

It was probably three to four years....when she found she couldn't really talk.

During cross-examination Ms Millhouse said that the source of her information and her understanding was, really, what the complainant told her:

She wasn't complaining and telling them how she felt, she felt she couldn't. She tried, but she felt she couldn't.

3.6 Evidence of Ms Christine Laskey

In her affidavit, the complainant's sister, Ms Laskey, said that over the years she had been to the complainant's work on a number of occasions.

On the ground floor she went behind the counter, through all the desks and office partitions to the far back wall. She recalls it as a real obstacle course, just like a maze. Ms Laskey said she arrived at this dark little corner, "with all these electrical cords over the floor." She recalls "a pile of them" on the floor. She had to step over them to get to her sister's desk, which faced into a corner. She said, "I recall feeling horrified that she was expected to work in that environment, which was clearly unsafe." On the occasion of that visit, Ms Laskey found the lighting inadequate. She had trouble seeing, a good indication of the problem her sister would have with her disabilities. She recalls saying to her sister that it was ridiculous and she should bring her own lighting from home. At that time, the complainant told her that she had had a desk light that had melted on the table. Ms Laskey found the situation upsetting. However, her sister said that she hoped to get some additional lighting from her employer.

Ms Laskey remembers suggesting to her sister that she keep a diary, after they had discussed, on a number of occasions, some of the difficulties she was having at work.

Ms Laskey recalls her sister displaying stress and anxiety on several occasions about her conditions at work. Having discussed these problems her sister was experiencing, with her, Ms Laskey felt that her sister's attacks were brought on by the stress at work, and not through her medical condition.

Ms Laskey recalls her sister displaying considerable stress at the prospect of losing her job. Her sister always felt uncertain about her security "and this was related to the poor working conditions and relationships at work".

In her oral evidence, referring again to the work area which the complainant occupied, at one stage, on the ground floor, Ms Laskey said that the biggest worry about that area was that it was so dark. She stated that "it was no place for any person to work, let alone one in Sally's condition."

During cross-examination Ms Laskey said that the evidence she had given was taken from what her sister told her, and the work conditions she saw.

She said that she had mentioned to her sister that she should keep a diary before the "intimidation incident". But, after that, she suggested it again on more than one occasion.

She did not go back to see her sister in her ground floor work area after the occasion on which she made the observations about that area noted above.

4. A CONSIDERATION OF THE EVIDENCE CALLED BY THE RESPONDENT ON THE ISSUE OF LIABILITY

4.1 Evidence of Mr Paul Turner

The first witness for the respondent was Mr Turner, now retired.

Mr Turner joined the Bank in 1949 and retired on 24 June 1993. At that time, he was Assistant Manager Operations located at 81 Elizabeth Street, Hobart. He had held that job for about 15 years.

Mr Turner was on the board which interviewed applicants for the position to which the complainant was later appointed. The job was "Telephonist 81 Elizabeth Street Hobart". Mr Jackson, a blind man, had been the principal telephonist for a long time. He had an assistant. Mr Jackson accepted a redundancy package. The assistant position was abolished. The Bank had introduced a new system whereby staff could dial out direct from their own phones, without going through the switchboard.

Exhibit R18 is a letter from the Personnel Department indicating that they had referred the complainant's medical questionnaire to head office.

Exhibit R3 is the induction program for all new staff. Referring to page 4 of the Exhibit, Mr Turner said that the ticks which appear refer to action taken by him, the dashes indicate that the particular comment was not applicable to the actual position.

The witness said that, as far as he was concerned, there were no problems. The complainant settled down well and, at that stage, he had no part in her training. He said that "from memory I would say Helen Stuart probably did" and that "Ms Garity did not speak to me specifically about training, as far as I remember."

Mr Turner said that "wherever possible", when he was relieving as Manager Operations, he would visit Ms Garity at her work station.

As to the training of the new employee, the complainant, Mr Turner says that she did not mention anything to him about training, "to my knowledge". In his view, the initial training on the switchboard was all that would be required.

The witness said there was a manual on fire drill in every department which was perused by all staff regularly "or should be". Each year there was a practice, the Fire Brigade attended and there was an actual evacuation. As telephone calls were coming in during the practice, by arrangement with the Brigade, the telephonist remained at the switchboard. That matter was discussed with her. The complainant did not query why she had to stay at any stage.

Mr Turner said "to my knowledge" the complainant did not discuss with him anything to do with circulars. He felt that circular instructions, which come out on a regular basis, are specific to the operations of the Bank and, in most cases, would not have any bearing on the actual operation of the switchboard. Where there was a new procedure which would involve the public, then it would be in the Bank's interests to make sure the switchboard-operator was aware of those instructions.

When asked, "Were there any staff meetings held from time to time in respect to which Ms Garity would have attended?", Mr Turner replied, "The usual staff meetings are only ones within departments as actual staff training sessions and they are staff training sessions applicable to the individual departments".

Mr Turner said he could have been aware of the complainant's diabetic condition, from her medical report produced at the appointment stage. But he said he would not have been aware of the ramifications of what that meant for a person's general health and "as far as I am aware, I did not talk to her about it, nor did she talk to me."

Mr Turner said there was a team of relief staff that "would" relieve her to go to lunch, morning tea and other breaks. He said to the Commission that, "as far as I am aware, she did not make comment to me arising out of the process of her being relieved or not... I was not really, no, aware whether she had actual problems with her health arising from diabetes during the time she was employed".

The witness said, that, given the complainant's particular position, there was no other classification (other than GC2) to which she could aspire. He thought that was made clear when she joined, that there were no promotional opportunities available in that position. That "would have been" in the initial discussion prior to her being accepted.

As previously mentioned, the episode concerning the PDRs of February and March 1992 had a serious effect on the relationship between the parties. Unfortunately, therefore, the evidence of the witness on this subject must be outlined in some detail.

Mr Turner said that there was "a hiccup" with the PDR of February 1992. He was acting as Manager Operations, relieving Mr Williams. He explained that with a PDR there is a reviewing officer who prepares the document and a countersigning officer who signs it. He said the practice was that the countersigning officer had to be senior to the reviewing officer. "As I was supposed to be the reviewing officer and, as Manager Operations, I would normally have to be the countersigning officer, I could not act in both positions, so I had to appoint someone lower than me to be the actual reviewing officer."

He said he countersigned the actual form. But, when the PDR was actually completed, he discussed it with Ms Garity. He explained that the procedure was that the actual form is typed up and the reviewing officer has a manual which sets out clearly the guidelines for assessing a particular officer. The reviewing officer works through the different headings and does the assessment. Then it is shown to the countersigning officer and, if the countersigning officer is happy with the assessment, the latter will then sign it and the reviewing officer will then discuss it with the staff member concerned.

Mr Turner said he thought the procedure he followed was "not necessarily" unusual because, quite often, the reviewing officer has no real direct contact with the person who is being assessed. He cited the case of transient staff where reports would be obtained from sections where they had worked.

Referring to that part of the form (Exhibit R4) that provided that the officer "has demonstrated required skills for switchboard TC2-6", he said that would be his assessment. All the other assessments on that page and the next are his. He made the assessments from his knowledge of the operations of the switchboard. Mr Peter Scoles signed as reviewer, he being the next person under Mr Turner. Mr Scoles did not make any assessments but he actually relieved in Mr Turner's position, so he would also have had a working knowledge of her performance.

He said that, normally, the assessment is discussed with the reviewing officer. As he had actually completed the review, it was appropriate that he discussed the assessment with the complainant. It could be that the words on the form "countersigning officer", put in place of the word "reviewer", after the complainant queried that particular comment, could have been added after the initial assessment was done.

He discussed with the complainant the comment she had put on the form. He explained to her the reason why Mr Scoles was involved as the reviewing officer. He said, "I vaguely recall the occasion when I discussed it. I'm sure Sally wasn't over happy at the time". He went to the switchboard to discuss it and, "from memory", he went there alone. He said that the complainant was not happy with the whole situation. They agreed that the assessment would be completely retyped and he would sign as the reviewing officer. He thinks that, at that stage, Mr Williams had been transferred and that Mr Nick Green was Manager Operations. It was agreed that he would countersign the form.

He knows that, at some stage, he and Mr Scoles discussed the situation with the complainant, at what stage that discussion took place he is not sure.

He observed that the switchboard room was a fairly small office. She was seated at her switchboard. He pulled up a seat along side the complainant. He was "possibly" on her left side. He knew at the time she had better eyesight on one side than the other. He thought the left eye was better than the right. He sat where she could "sort of see" the form best. There were only two seats in the office "so Peter Scoles would have stood behind me". He thinks the conversation was merely confirming how the assessment was drawn up and the reason why 'Peter Scoles' name appeared as reviewing officer and his name as countersigning officer "and so this was possibly before we made the offer to have the whole form retyped again, I would say he probably only confirmed anything that I said, I don't think he became directly involved in the conversation". Exhibit R5 is the replacement form, when it was typed a second time. As to whether Mr Turner gave a copy of Exhibit R5 to Ms Garity, he said she "might have had" a photocopy of it.

The original form, which showed him as the countersigning officer did not represent any sort of difficulty for him.

As to whether he conducted any further reviews for the complainant, after that one of February 1992, Mr Turner said there would be two more reviews, a six monthly review and the annual review, which is actually recorded on file. He said that those two further reviews would have been either exactly the same or, perhaps, there might have been an improvement, with 12 months more experience she might have made an improvement under one or two headings.

He explained that, on the PDRs, the marks are not out of 10. Marks of 1 - 2 are sub standard, 3 - 6 is regarded as very good, 7 - 9 are exceptional. Her assessment, therefore, is very good.

In February 1992 he was probably responsible in some way for nearly every assessment completed on the floor, as either reviewer or countersigning officer.

The system was that the completed PDRs were all held on file and, when all the assessments were in, they were submitted to the Personnel Department.

Mr Turner explained that, in February - March 1992, he did not know he would be retiring in June 1993. When somebody new is doing a PDR, or someone commences the task, they do not have access to the previous PDRs, which are held in Personnel. The officer, the subject of a review, often kept a copy of her/his own PDR.

In cross-examination, being questioned about whether there was a circular issued to all staff when the Act commenced, he said, from memory, that there would certainly have been circular advice out to all staff, issued by head office. He expressed himself as being "fairly sure" there was a circular. If a circular came out, he would have been responsible for ensuring that it was dealt with in all the staff training sections of the Bank. Staff training sections deal with all circular advices, new instructions and new procedures. Staff in each department or section are brought together two mornings a week to have those sorts of things discussed with them. He said that was the case in all training matters. Special videos were prepared by head office "and that sort of thing". He would not be 100 per cent sure there was a video on the Act and he cannot remember seeing one. The volume of circulars and training videos was "endless", because the Bank was changing continually at that stage. There was a need for a lot of training because a lot of changes were taking place. There was a whole library of training manuals. All the manuals were readily available.

A booklet headed "You and your PDR" (Exhibit C18) is handed to every staff member when they join the Bank.

He said there was a list of all the staff and their telephone numbers. He offered to have that blown up and typed in very large print for the complainant, and that was actually done. There was a very old typewriter which typed in large letters. He said that, to the best of his knowledge, documents were provided to the complainant using that typewriter. However, he could not be 100 per cent sure that he checked with the complainant that it was actually done.

He agreed that it would have assisted her to have the names blown up in large type. He made that assessment in his role as Assistant Manager. It was his responsibility to look at what measures could be introduced for any member of staff under his supervision, and particularly with a person with disabilities, it was his responsibility to see what measures could be introduced to ease their way in the job. If he put forward a proposal, such as the proposal to type the list of staff members and their numbers in large letters, it was his responsibility to see that it was actually carried through. He said that he could not remember, to be 100 per cent sure, whether he carried it through or not. It did not really occur to him that there might be a need to discuss with her measures that might be taken to assist her to find numbers.

He said that he was not aware that, with diabetes, there is a need for clear regimen about meals and so on.

Asked about the initial training of the complainant, there was the following exchange:

Witness: I said that Helen Stuart, I thought, did program training for Sally Brett when she came into the job.

Q. How do you know what she did?

A. If she hadn't trained her she wouldn't have been able to start on the job. That's the only way I know. That's the basis on which I tell the Commission that Helen Stuart trained her.

Later he said that she could not have gone straight on to that job completely solo, without someone being alongside her.

He said "Well, to the best of my knowledge I was aware that she was being trained. There is a program for each particular job, and as the training officer teaches the person a particular task, they mark it off the form. There is another form that is drawn up for every job and, whatever the duties are on that particular job, they have to be explained to that person. It is not a record which is retained." He added that, "if there hasn't been a form of that nature produced it could be the case it was not used in Sally Brett's case."

The main task of the Manager Operations was visiting staff. He relieved in that role probably 4 weeks every year and at other times when the Manager Operations was away. Before Mr Green took up office he relieved for 4 - 5 months. When he was relieving, his habit was to call and see the complainant 2 - 3 times per week. However, she was not always there. He could have visited her occasionally at other times. When he did visit her, there was just an exchange of greetings and generalities.

On the subject of breaks for lunch and morning and afternoon tea, he said that, generally speaking, there was a fixed roster which was adhered to. He explained that, for example, they might say a particular clerk will relieve the switchboard at these times. The follow through on the roster would be for the head of that clerk's department - "the head should have made sure that the person was relieved on the switchboard at that time". Mr Turner said that he did not speak to those people to make sure a roster was being adhered to. No complaints had come in. It was simply a task which he delegated.

He claimed that the complainant knew what the fire drill was. It should have been explained to her by Helen Stuart in the initial training. However, he did not check to see that it actually was explained to her.

Mr Turner was cross-examined at length on the subject of fire drills. The following is the substance of the exchange.

He said fire alarms went off with some frequency. So frequently that they were always treated as a malfunction of the system, or some such. The time to start to worry was when the evacuation signal came on. That is when action is taken. In most cases they did not have to instigate any of the normal procedures in respect of fire alarms.

If there had been a real fire the evacuation signal would have gone off. In that event, the complainant would have been escorted from the building. She stayed in position and, if the need arose, because of an evacuation signal, a person would go and pick her up. They were all false alarms, so there was no need to alert the complainant. To Mr Turner's knowledge, there was never any practice drill undertaken where a warden escorted the complainant out of the building. As to whether she needed a training session, he felt that the essential thing was that the warden knew what to do. But he did concede that it possibly would have been nicer to have done that; that is, to have a warden escort her out.

He said the complainant knew what the procedure was. The fire instructions would have been at the switchboard. He accepted that fire wardens changed from time to time.

He accepted that the Bank is responsible for taking proper care of staff members. There was also the responsibility of making sure that every member of staff knew what happens during a fire alarm. He agreed that staff did not know just from reading a piece of paper, but they know from going through the actual procedure. He agreed that that ought to have been done on a regular basis. Within the Bank it was accepted that there had to be a regular number of fire drills, so everybody knew what they had to do. They knew what they had to do by physically doing it. He felt that, if her non participation in fire drills was a concern to her, she could have raised it with a supervisor.

The cross-examination of Mr Turner on the subject of PDRs was also extensive.

He said that the practice was the discussion with the reviewee was raised on the draft copy. When the draft is agreed it is typed up. He discussed the PDR of February 1992 with her. He explained to her that he could not sign in both capacities, so they had to get someone else to sign. He explained that "after the event" that is, after she had written her comment on the form. He got the complainant to sign a copy which did not have her comment on it, because she did not like the fact that Peter Scoles was involved as her reviewing officer, when in fact they were his assessments. She wanted his signature as reviewing officer and he was quite happy to do that.

He would have discussed her comment with her, but he cannot remember whether the discussion took place after the document had been typed up from the draft. Then he said "I would say it was discussed before that (that is, before typing up) because that "countersigning officer" had been typed on the form, I would say it was discussed before it was typed up." Then, there was this exchange:

Q.: You agreed, didn't you, that "countersigning officer" - that change - was made after her "It would have been nice" etc. comment had been typed in?

A. No, I'd say probably after it was seen in the handwritten form.

He was quite happy to have it done again, because Mr Green was back and he countersigned.

He said "I'd probably accept then that the original PDR was not in accordance with the rules of the Bank with regard to PDRs". He agreed that it was important to him to act in accordance with the rules, but he thought there were special circumstances in this case.

Counsel then referred to extracts to the following effect from the PDR booklet (Exhibit C18):

1. The annual review takes place on 15 March for general classification staff.

2. The annual review involves the following steps:

(i) First, the staff member is encouraged to complete the performance and self-development self appraisal form and give it to the reviewer a week or so before the performance review discussion.

(ii) Your reviewer will complete your PDR, recording ratings and comments based on your performances over the entire review period.

Mr Turner responded to the effect that if Ms Garity completed a performance and self appraisal form she did not give it to her reviewer. She had not met her reviewer. Indeed, the reviewer, Mr Scoles, did not complete the form. According to Bank procedure, Ms Garity should have met with Mr Scoles, but she did not. However, she did meet with Mr Turner himself.

He continued that "to the best of my knowledge", he went and discussed the form with her alone, "I would say", subsequent to this comment being typed on the form. At that meeting she said that she was not happy that Mr Scoles was recorded on the form as the reviewer. He claims to have explained to her why Mr Scoles' name appeared. He then told the complainant that, if she were happy, they would get the whole form typed again with Mr Turner as reviewer and Mr Green as the countersigner. Mr Turner had in fact done the assessment himself. The discussion with the complainant on the assessment was done off the handwritten form.

Later he said "she could have added that after I discussed it with her. I can't remember now. That's years ago."

When asked "you say you went up to her alone and said Sally I'm being your reviewer on this form?", he replied "Yes. She would have written that on the form after the discussion".

He claimed that he was not concerned about the remark placed on the form by the complainant.

Then he was cross-examined about the visit by him and Mr Scoles to the complainant at the switchboard. The exchange went approximately as follows:

We would have sat down here and he would have been behind there............Well, he was. He was behind us, yes. He was standing behind us as we sat down.

Because of her impaired eyesight you have to be close to the complainant. My chair was right up close so she could read the writing.

Q: In fact, he came up around her other side, didn't he, in order that he could see what was going on?"

A: Well, I wouldn't think so because we were discussing things rather than pointing things out.

No, I thinkhe was just standing behind, but he was just a party standing there and he was there to confirm anything I said.

Well, at this lapse of time I couldn't possibly say for sure where Scoles was standing. I can't say she's right or wrong.

He denied saying to the complainant words to the effect that she would be throwing him in at the deep end, with her comment on the original form, and that the next supervisor would give her a hard time, let alone the money aspects of the PDR. His response took the form of "No, I didn't. There were no words to that effect. Why would I have cause to say 'You're throwing me in at the deep end'?" Counsel's response was "Because she was, wasn't she, you had breached the annual review process?" His reply was that there was a valid reason for that and that it was a good assessment.

The witness explained that officers with the complainant's classification, GC2, worked within a salary range and, if the assessment is satisfactory at the end of each year, the officer goes up to the next grade within the salary range. Because of the quality of her assessment in March 1992 the complainant was qualified for that increase.

He said he did not remember whether he mentioned to her that increase when he was in her room with Mr Scoles discussing the PDR. He agreed that, in that discussion, he did tell her that the ratings on the PDR were his ratings and not Mr Scoles' ratings.

He denied saying that Personnel Department would be of no help to her in the dilemma she had.

Another important aspect of the cross-examination of Mr Turner dealt with an important aspect of this case, namely, the induction process.

Counsel referred to Exhibit R20, an internal memorandum dated 2 May 1990 from Manager Personnel Department, dealing with the confirmation of the complainant's appointment to the service of the Bank.

In particular, she referred to the following passage in that letter: "However, in the circumstances, you may care to mention to Ms Brett the role the A.I.B. plays in the banking industry and give her every opportunity to become a member." She asked the witness "what does it mean "in the circumstances you may care to mention'?" He replied "Well, I'd say it's not really appropriate for Sally to undertake study courses, because she is being employed as a telephonist. There were no study courses related to being a telephonist....Anyone could do the course, if they wanted to. It's open to anybody in the community. There is a monetary consideration once they have qualified and passed a course. The option would be left to the individual whether they chose to do it". Later he said "I am saying that the only training she was entitled to was training in actually the mechanical use of the switchboard".

Counsel referred to Exhibit R3 - the induction program for the complainant - paragraph 5, dealing with the subject of a training supervisor for the new officer. Mr Turner's response was that paragraph did not apply to the complainant. He went on to say that the third paragraph of page one of Exhibit R3 did not apply, because the complainant was being specifically employed as a switchboard-operator. Counsel then put the following question: "Right, so equal opportunity did not apply to Sally Brett"? The witness replied "No, she was appointed as a switchboard-operator".

Later he said that the statement further down the bottom of the page, "completion of inquiry training units," does not apply.

Referring to a passage appearing later on in Exhibit R3 "stress importance of personal development and the need to take a keen interest in all aspects of duties", he said there is a tick there (ticks indicated that particular points on the form had been dealt with, crosses indicating that they had not been dealt with). He continued: "I did that within the limitation of the job. She could only develop so far on the one job. It's not a career orientation position. It was explained to everybody before she was even signed on that this was only to be a specific position in the Bank - a switchboard-operator - and there would be no further advancement from that particular position."

He said that a passage in Exhibit R3 "Outline benefits of study" was not applicable to her.

Mr Turner's view was that the reference to recommending typing classes on Exhibit R3 was not applicable to a recruit where the recruit is to work in other areas where they are not doing typing.

He said the passage on the form which said "Give the details of further on the job training proposed" was not relevant to her case. He did not request her to read section 5 "because there is no further career in that particular position".

Speaking of other sections of the form Mr Turner said "I did not do those, it's about the career, there's no career improvement in that particular position".

In re-examination, he said that there were separate little sections in the Bank which do their own training. That is what he referred to as section training, it is specific to their areas. On the second floor, she was not part of any particular section.

4.2 Evidence of Mr Peter Scoles

Mr Scoles left the Bank in July 1996, having served with the Bank from 1964. In the main, his evidence concerns the February 1992 PDR for the complainant.

Speaking generally, his evidence on that topic supports that given by Mr Turner. The following passages from his evidence should be recorded here, as they represent useful contributions:

A PDR is designed to:

1. give recognition to the individual it has been done on.

2. to provide information to the employer on how the staff is getting on and how they can best be utilised.

If the rules aren't followed then the Bank would look upon that seriously, I would imagine, I don't know. (He is referring there, of course, to the rules dealing with PDRs).

4.3 Evidence of Mr Michael Callinan

Mr Callinan commenced work with the Bank in January 1967 and left the Bank in March 1997, having accepted a redundancy package.

Mr Callinan became Manager Property Tasmania in October 1984 and rose to be Branch Manager at 81 Elizabeth Street Branch in March 1994. He had been the Assistant Manager Operations for about nine months prior to that time.

Mr Callinan said that the complainant came to the ground floor in June 1994. Prior to that move, the position of telephonist was a branch position. Her relief was provided from within the branch numbers. Prior to her move to the ground floor the complainant worked on the second floor. There was another group on the second floor for which the 81 Elizabeth Street branch was also responsible. That group was located immediately adjacent to the complainant's switchboard area. Mr Callinan said that, as a matter of course, "maybe once or twice per week" they would "call in there and have a talk to the staff in both areas". He would talk to the complainant, on those visits, about run of the mill type things and any problems. Usually, an indication was given that things were going OK.

Mr Callinan spoke of the change in the complainant's working hours in 1994, following a new enterprise bargaining agreement. Previously, the complainant started work, he thought, at 8.30 am or 8.45 am. The terms of the EBA required an adjustment to working hours and, an adjustment at the other end of the day not being practicable, an adjustment of the complainant's hours to start at 8.15am was required. As the complainant was off on sick leave, not being aware when she would be back at work and aware that she lived where there was no public transport, he rang her at home to give her as much notice as possible of the change. When he rang, the conversation finished amicably.

Mr Callinan said that, in the period 1993 - 1995, there was quite a significant structural change, "staffwise and also within 81 Elizabeth Street, the accommodation situation". He said that in late 1993 and early 1994 the way the Bank operated changed significantly, and certain sections were created to handle specific tasks. He said that, apparently, early in 1994, a decision was taken that one of those sections would be located on the second floor. Some time in June 1994, a day or two before he went on leave, he had a call from the complainant concerning the fact that she had been told by some building workers that she was going to be moved. He told her that he had no knowledge of any proposed change and, in any event, any change would be some way down the track.

Following that, he spoke to his senior manager, Mr Gandy, about that question, Mr Gandy indicated that it was a possibility that the switchboard would be relocated to the ground floor. He indicated to Mr Gandy that, in his opinion, the ground floor was not an acceptable location. He found that there were a number of issues - difficulty of providing relief to cover rostered days off, holidays, lunch breaks, tea breaks from within the branch structure. Mr Gandy accepted the arguments and the conversation finished with Mr Callinan thinking that nothing was going to happen for some time and, maybe, that some other location would be found. However, while on leave, he found out that the change had been carried out.

He returned from leave and examined the new location of the switchboard. He felt that it was an inappropriate place for the complainant. His view was that the decision to locate the complainant there was wrong. He recognised the possibility that there may not have been other locations available in the short term while the building operations were being carried out.

Mr Callinan described this temporary switchboard space on the ground floor. It is not necessary to recite the details of that. One point, however, requires mention: there were a number of cables to run the switchboard and, at some time, he tidied them up and put them "sort of" between the desk and the wall, back behind the desk, to get them back out of the way.

A short time after his return from leave, the complainant raised with him again about lighting levels in the area. At that time, there was a mercury vapour light which provided a very soft but fairly bright light, located on the top of the office partition, but towards the front and, hence, away from where the complainant was seated. He arranged for that to be relocated. It took a week or so to get it repositioned. It was moved to a position more adjacent to the switchboard.

Following that, the complainant approached him again, saying the lighting was still not satisfactory. He arranged for another light to be provided. Following the installation of that light, he tested the lighting with a light meter. He found that the lighting measured up to the standard which the Bank applied. He asked the complainant to let him know how it went. He does not remember her approaching him again about the lighting.

Mr Callinan said that, during the complainant's stay on the ground floor, there was pressure on staff numbers and staff establishment, including the staff he supervised.

It was his responsibility to arrange for lunch breaks. The relief came, at times, from within the branch and sometimes from Mr Gandy's resources. He said the complainant got to take her food breaks. He was not aware of any instance where she had to give up those breaks. There may have been occasions when she had to make a change to accommodate the late arrival of the relief person.

As to fire drills, he had not received any complaints from Ms Garity about them.

He recalls one discussion with the complainant about training. It was about the time when Bank fees were introduced on savings accounts. There was then a training program consisting of three sessions. He found the third session appropriate to her needs and he arranged for her to attend that. His recollection is that she attended that session while she was employed on the ground floor.

At one stage, it occurred to him that she might be able to help with tasks additional to her telephonist role. He found that, quite often, she would have a book or magazine, as it was not busy. There was a project underway involving recording numbers onto schedules. She agreed to give it a try. She wished to have a good contrast between black and white and that the sheets on which she was to record the material were suitable. They went through a series of trial runs - photocopied original sheets up to an enlarged size. She started doing some of the input sheets. She needed to transcribe some of the information from those sheets onto other schedules, which then had to be sent away to be processed. Another officer approached Mr Callinan saying that a lot of the work was having to be done again. What was causing that was that it was very difficult to read some of the schedules. The work had been done in the requested way, but many of the figures on the sheet could not be read clearly. They had to get other people to "re-input" a lot of the information and complete the schedules. He did not go back to the complainant and tell her that work had to be done again. He did not want to make her feel bad.

Mr Callinan said that, most often, training was given on the basis of particular groups. If there were changes in instruction or procedures that affected particular groups then those staff member attended that particular training session.

On one occasion a staff member said the complainant did not look very well. He found her flushed and sweating. He then became aware that it was caused by her diabetes. He was not aware previously that she had diabetes. That was shortly after her move to the ground floor in June 1994.

When the complainant returned to work following that occasion she told him about her diabetes and the effect it had on her and on her sight. He suggested that she let a staff member know if she had a need to move away from the switchboard. He did not become aware of any later similar incident.

He does not recall seeing Dr Hughes' letter of 25 November 1994 (Exhibit C9) while she worked for him on the ground floor. Nor does he recall seeing Dr Treplin's report (Exhibit C10) during that time.

Mr Callinan's supervisory role with the complainant ceased when she moved to the first floor in December 1994.

As to EEO, in cross-examination he said he understood the Bank did have a disability policy. He does not recall what it was. He would say that he was probably required to read the policy, but he had not done so.

Mr Callinan said that, if the complainant wanted people to know she had an illness that was up to her, not up to him to broadcast it.

He said that, probably, his knowledge of diabetes was very thin until he spoke to the complainant and another diabetic employee. He did know it was essential to control their blood sugar levels. When he observed her "hypo" attack, he did not have a relief roster in place. He did know she had a condition that meant she could have an episode in which she would require help, and where she required to leave the switchboard. He agreed there was a need to have someone available to answer the phone. Ideally, it would have been good to have someone nominated for each day, but staffing in the branch did not allow that. At the time he was given to understand that the situation did not arise where, suddenly, she would have to get up and run off, she would have time to make contact with another officer. He agreed that, in most cases, it would have been possible to have a procedure in place to ensure the complainant could be covered in terms of her need to go off on breaks. But there may have been occasions when the nominated person for that day did not turn up on time; they may have been delayed because they were involved with a customer. If that became protracted someone else would be found. He said that he thought the discussion he had with her, when she returned from leave, about her condition and the agreement on arrangements they discussed, covered the contingency of her needing to leave the switchboard.

Speaking of the temporary switchboard area on the ground floor in the latter half of 1994, he said he did not recall an electrical lead which was taped down in some fashion on to the carpet on the floor.

He agreed that, in hindsight, it probably would have been very nice to get the workers to talk to the complainant about her lighting requirements. At the time, he simply decided to try that level of light.

He did not raise with her a suggestion that she could move into the teller and customer service area. He thinks the question whether she could work at a screen may have come up at the time he was talking to her about the small project mentioned above.

In relation to that project, he agreed that he did not go back to the complainant and discuss the problems with the job she had done. He would do that with other employees. She was the switchboard-operator, not a clerk. There were no other opportunities, similar to that project, which arose. He accepted that it was fair comment that that project was an opportunity for her for which she had been crying out.

Mr Callinan agreed that Exhibit R6 was a PDR dated 9 June 1994 where he was the complainant's reviewer. He agreed that, in the section of that document which contains the words "I would like to be considered for the following areas of work and geographical locations" the complainant had written the numbers 18 (work) and 90 (location). He agreed that 18 referred to telling and/or customer service.

Mr Callinan said that he did not recall what steps he took to help the complainant improve her product knowledge. If there was a suggestion that there was a need for improvement, then steps should have been taken to ensure that the improvement occurred. However, product knowledge was a limited concept in the case of a switchboard-operator, as it was merely a matter of referring the calls to the appropriate area.

Mr Callinan did not recall Mr Turner discussing with him information relating to the complainant's health status. He does not recall Mr Turner passing on that she had diabetes. He felt that it would have been nice to know that.

Mr Callinan said that he did not invite the complainant to attend staff meetings. On one instance, there may have been an industrial issue, or something like that, but not on a regular basis.

He said the purpose of EEO guidelines was to avoid discrimination. He agreed that his role as manager was to ensure that employees with disabilities had opportunity to gain training and skills within the job they had and outside the job.

In re-examination, he said there was a discussion at some time along the lines that she wanted to be a teller or work in customer service, something along those lines. It did not happen because he did not see that there was a possibility that she could work in the areas of telling or customer service, because of her visual problems.

Mr Callinan stated that he did not invite her to sales meetings. She was not involved in sales.

He did not provide her with any training specific to her position when he became Branch Manager. She was doing her job well and had been for some years. Some instructions were given when the 13-2221 number was introduced.

Mr Callinan stated that training in the Bank was more job specific and that sales staff did not get clerical training and vice versa. He did not consider it part of his role as manager to provide training or opportunities in training to the complainant outside of her own job.

He said that the Personnel Department was relocated to Melbourne in late 1993 or early 1994.

4.4 Evidence of Mr Alun Roberts

Mr Roberts worked in the Bank from 1962 to 1997. He was State Manager Personnel Department from 1984 to 1993. He said that in June 1993 the whole department was closed and transferred to Melbourne. Mr Roberts then became Manager Banking Operations on the ground floor of 81 Elizabeth Street. He held that position for 10 weeks. Then he had a special assignment on the mainland for 3-4 months. Then he was appointed to head up a new department called Operations Centre Hobart. He did not return to 81 Elizabeth Street after that.

He was aware of the complainant's appointment, but not aware of her diabetic condition at that time.

He said that the fact that, in certain circumstances, a PDR was discussed with the countersigning officer and not the reviewer would not give rise to any consequences for the countersigner or the reviewer. But he had to say that comments saying that the person being reviewed had not met the reviewer certainly would normally have been followed up, had it been brought to his attention.

During cross-examination, he agreed that Exhibit R5 appeared to be a substitute for Exhibit R4. From Exhibit R5 the colleague's comments are missing.

He agreed that there would not normally be two reviews in existence for the one date.

He referred to the difficulties, generally and for the complainant, when the number 13-2221 was introduced. He recalls talking to the complainant about not switching calls through to certain areas, because it was at the stage where the whole Bank was going through major restructure and everyone was in a learning process. It was quite a radical change from the way the Bank previously did business. Each branch used to be responsible for processing the work that went through the tellers each day. With the changes, it all got bundled up and sent to the Operations Centre. Three call centres were created, in Brisbane, Sydney and Melbourne, designed to take away the great majority of telephone calls from customers to the individual branches. Most people in the Bank would need to have been apprised of the changes.

The person in the telephonist's position would be a key person in terms of customer contact and would need to know at least the basic structural changes. There was a necessary education process to get customers to ring 13-2221. The discussion with the complainant about not putting calls through to a particular department was just part of the general education process. It was just letting her know the desired way of handling it.

He did not know of her diabetic condition while he worked at the Bank. He is not concerned that, as Manager Personnel, he did not know of that condition. He says it was not his position to know that. A medical questionnaire was completed originally which was forwarded to the OH&S people in Sydney. He felt that they were the ones with the medical expertise to check the form to see if there was anything that would affect a person's ability to fulfil their role.

He is aware that regular meals are important for diabetics. He understands that it is vital that they keep their blood sugar levels at a certain consistent level. Most certainly, it would be important for an employer to know this, to ensure the person was able to follow the regime. He thought there was an obligation to let the employer know of the problem at the local level.

He did not agree that, if the condition is disclosed on appointment, it is essential that somebody in a position of authority know to ensure the necessary regime is adhered to. The medical questionnaire was totally confidential, so none of the information on that form could be conveyed to anyone else without the person's authority.

Mr Roberts felt that the complainant was employed to be the telephonist for 81 Elizabeth Street Hobart. Given his understanding of her disabilities, he would have thought that it would not have been possible for her to have any other positions in the Bank. It was not his role as head of Personnel Department to discuss career prospects she might have had in the Bank. That is the role of her Branch Manager or her reviewer.

With PDRs, the ratings in isolation are only one factor. There is a section headed "Future Progress". On that there are 5 different areas. Area 3.3 indicates that a person has potential for advancement after more experience. Area 3.4 has "ready to handle a more senior position." A person may not wish to move on and, if so, the notation of the form will be "appropriately placed at that level".

Referring to the PDR Exhibit R8 , "Future Progress Section", he said it is unusual that there is no notation in any of the boxes, but it is only an interim form for the branch, not part of a formal record. It is unusual not to give some indication.

As far as Mr Roberts was aware, circulars in every branch were made available to every person. However, because of the bulk of the material, he knew that many staff chose not to read them. Quite often branches put them on the noticeboard or in a folder. The folder was normally sitting on a table. In 81 Elizabeth Street there were 4 or 5 or maybe more sets of circulars, in all the various sub-sections.

Mr Roberts' understanding was that the complainant was employed to be a telephonist. That meant that she was a telephonist forever or for as long as she stayed at the Bank. EEO applies to people with disabilities, within the physical limitations of that disability. Discussion about the possibility of moving somewhere else to other jobs would come up, or should do so, in discussions through the normal review process.

4.5 Evidence of Mr Leslie Allie

Mr Allie was the complainant's supervisor from approximately January 1995 to July 1995.

Exhibit R7 is a PDR relating to the complainant which he completed. He was responsible for the marks on it. In arriving at those he did not have any information relating to any scores on previous PDRs.

He said that he knows of the complainant's diabetes, and while he cannot remember where he got that information, it was not told to him in any official capacity.

As to circulars, when supervising the complainant on the first floor, as an administrative area, they would see all the circulars that a branch would normally see. At different times there were up to, say, 20 people in the area. They had a circular list, he thinks at that time really two lists. They split them in half. Each person would initial as they read the circulars and passed them on. He thought the complainant was on one of the lists. He could not say whether she saw the circulars.

During cross-examination Mr Allie said he was not aware that a person with diabetes had to have regular meals. He did not know that it was important for her to keep her blood sugar level at a certain point. If that was causing problems, as a supervisor, he would need to know.

When he was her supervisor, the complainant would go to lunch at a certain time. The other "girls" would know that and be expected to take over at that time. The staffing would have changed over that period of six months. At most times there were 2 or 3 "girls" there, and it could be any one of them who took over the switchboard. Mr Allie could not recall whether there was a written instruction, but there is no doubt it was part of their list of duties to relieve at the various times.

During the six month period when he was her supervisor, she did not have training to do with number 13-2221, nor in relation to the restructuring, nor in relation to the restructuring at any other time.

He wrote on Exhibit R7 "suggested improvements" - "increased product knowledge." He said she could increase product knowledge mainly by circulars, brochures etc. All new products are listed in a circular and mentioned in detail there. Usually you only need the brochures to brush up or reinforce training. He said that, in the administrative area, they do not actually receive much specific product training. It would have been helpful for the telephonist to know something about the product, in order to direct the calls to the correct area. He supposed you would need to know the product groups more so than the individual products within the groups.

In re-examination, he said he did not realise there was any importance attaching to the time of her meals. She did not say anything to him about that. Nor did she say anything to him about being made fearful by the fire alarms.

4.6 Evidence of Mr Michael Gandy

Mr Gandy is Senior Manager Personal Banking in the Hobart division of the Bank. He has been in that role about 4 years.

He described the complainant's employment as "specialised". In fact, her letter of employment signed by Mr Turner specifically stated that she was employed as the telephonist.

He referred to the important document Exhibit C8, headed "Telephonist 1035", with "June 1993" written at the top of it in ink. He said it was out of a book which lists all the duties of staff in the Bank. He was not sure why it said "Mainland Capital Cities". He would say that it applied to Hobart as well. The complainant is a GC2 officer. Exhibit C8 under the heading "Indicative Career Opportunities", lists some positions. Of them, "supervisor switchboard" would not have been available to the complainant as there was only one switchboard-operator (in Hobart). The Bank had established an Operations Centre in Hobart to handle all the office work and those three jobs (listed in Exhibit C8) would have been GC2 positions, handling cheques and processing work from tellers. The Operations Centre was set up about 1994 or thereabouts in Tasmania.

Mr Gandy spoke of the significant changes which had occurred in recent years. Tasmania was an autonomous State. The planning for the downsizing of Tasmania started in about 1992. Progressively, administrative functions were moved to Victoria. The property function disappeared and the personnel function went to Melbourne. Then the Bank moved into a continuous improvement program. They looked to centralise duplicated branch functions. All back office staff work was directed into Hobart and they set up an Operations Centre. The three positions mentioned in Exhibit C8 were part of that. Loan processing was centralised in Hobart. There were significant staff reductions. Last year, the Operations Centre was moved to Melbourne. They are currently in the process of moving the loans processing function to Melbourne. The building at 81 Elizabeth Street had some 200 people and it is now going to have 70 or 80 people.

Mr Gandy is not aware of any discussion in which there was any consideration of the complainant doing any job other than looking after the switchboard. He understood she had a sight disability. He referred to the unsuccessful experiment explained by Mr Callinan. He was not aware of the complainant being encouraged to take on any other activities. She was a telephonist and a good one.

Mr Gandy said that an officer achieves a change in classification through promotion. A particular position can only be reclassified by a committee in Sydney, a process which happens independently of local management. Promotion is on an availability basis. Officers apply for the position and the person considered the best applicant gets the appointment. An officer can ask an immediate supervisor for a change.

Mr Gandy was not sure of the extent of the complainant's vision problem and was not aware of the other illness until "later." He said that "no doubt" it would have "surfaced" at the time she was starting to be absent on sick leave.

During her period of service, Mr Gandy was not aware that she had problems associated with her work.

Referring to the letter from Dr Hughes (Exhibit C9) he would not say that he was familiar with it. He had seen Dr Treplin's letter (Exhibit C10) and thought that the complainant's change from the ground floor to the first floor met the doctor's requirements.

Mr Gandy spoke of the introduction of the call centre number 13-2221. Progressively, a "dramatic" number of calls were taken away from the branches. The complainant had problems with that number initially because of the post office agencies did not have their own systems in place. The complainant's switchboard had approximately 100 post offices attached to it and they were ringing her for customers' account details, instead of ringing 13-2221. For the complainant the problem was to deflect those calls gradually by a process of educating the post office officials. Mr Gandy assisted by discussing that problem with the complainant.

Mr Gandy said that, when the complainant first started work on the second floor, he "rolled" around to her workplace regularly. On occasions he would have a general chat with her. He does not recollect her raising any problems about her work.

Mr Gandy explained why the switchboard was transferred to the ground floor in 1994. The change in location was a consequence of the decision to create an operations centre in Hobart. One aim was to transfer it to an area where the least amount of disruption would be caused. The area on the ground floor which was chosen had a degree of privacy and was easy to cable. The switchboard remained in that ground floor position until the ground floor began to be affected by the changes. At that stage, the work on the first floor was complete and the switchboard was located there and remained there until the complainant left the Bank. The relocation of the switchboard to the ground floor was part of the whole exercise coordinated by officers of the property department in Melbourne. Mr Gandy had an input into it.

Mr Gandy could not be sure whether he discussed with the complainant the move to the ground floor before it was made. Normally, he did not discuss moves with people individually, but with their management.

His evidence was that there was no intention of doing away with the switchboard-operator, while the complainant was at the Bank. Some time after the complainant left, the position was abolished. The number of calls had "dramatically" dropped. Now the calls are handled by the general staff. The 13-2221 number has been very successful, the number of staff in the "Capital office building" is now down to about 90 people and officers have their own direct dialling facility. The decision to abolish the position of switchboard-operator in Hobart would have been made by the quota management staff, a specialist team with headquarters in Sydney.

During cross-examination, Mr Gandy said that training was coordinated through the staff training centre operated by the personnel function. As either Regional Manager or Central Branch Manager he had no input into those "philosophies" at all. There would be training programs continually on a whole range of subjects for all staff. The Bank endeavoured to provide opportunities for training. They needed the staff to be trained. Staff in particular jobs are given on the job training and support training through the staff training centres.

He thought that the complainant was not present at any meeting he had with branch staff. He visited the 81 Elizabeth Street Branch probably on a daily basis, but formal visits were on a "three weekly basis". Branches have meetings every day between 9 and 9.30 am. They then watch a Bank TV program from Sydney and then they have staff training. When Mr Gandy makes a formal visit to the branch, he addresses the staff on the subject which took him there on that day. The complainant was not at the meetings because, for a long time, she was on the second floor.

He cannot say why she was not at the meetings when she moved to the ground floor.

Mr Gandy said that he did not talk to the complainant about opportunities for advancement in the Bank. There were two reasons for that: (i) there were no opportunities presented for advancement and (ii) probably the more important one, the complainant was employed as a telephonist in the building. She was very good at that.

Mr Gandy said that every staff member had the right to put forward expectations concerning where they wish to work. This was discussed at half yearly and annual performance reviews.

Mr Gandy said that he would dispute that the area on the ground floor to which the complainant was transferred was cluttered with junk. He would dispute that there were leads all over the place.

Mr Gandy advised that, as a salesperson in the Bank, you are doing more than just selling merchandise on a stall. You open bank accounts, interface with a computer screen, things a person with a disability in eyesight would have difficulty with.

4.7 Evidence of Mr Nigel Garlick

Mr Garlick is the manager of the Glenorchy Branch. He has held that position for two years. Previously, he was the Assistant Manager of the 81 Elizabeth Street branch for about three years.

Mr Garlick discussed the lighting problem at the complainant's ground floor location. That discussion does not add anything of substance to what has already been recorded as the evidence of other witnesses.

Mr Garlick heard of the complainant's diabetic condition only in recent times.

When Mr Garlick was Assistant Manager at 81 Elizabeth Street, two programs which were running were the customer service program and the continuous improvement program.

The customer service program was like a training program. It would only have affected people involved in direct bank work. The continuous improvement program "virtually" took the processing side and separated it completely, so branch staff would then concentrate on providing service to customers. The administrative functions of the Bank in Hobart went "virtually" to Melbourne. As a result, many administration officers were placed into branch work. People "put up their hands" and sought process work or work with customers. The whole culture of the Bank and the whole way it operated was "virtually" overhauled.

The lending area was divided - personal lending in the branch area, commercial lending in a different area.

At any one time it was important for officers to know which job a particular officer was doing. If a position no longer existed, it was important for people in the branch to know that. There were "always" updates of the telephone directory.

People involved in the customer service areas undertook pretty extensive training, a lot of it, he thought, at week-ends. The training taught selling skills. Tellers did a training program which was slightly different to the one done by the customer service personnel.

A person ringing up the branch for service could ring 38-0400 and the complainant would have to work out where to direct the call.

During the week they would run some product training days and some training days concerned with other functions, such as internal matters or administrative matters. They would have separate product training sessions, when they would concentrate on a particular product, but they also had sales technique training. Mostly they tried to combine it so that everyone got involved in these training sessions. They usually had a period of time in the morning where they would run various training programs.

The continuous improvement program was where the sales culture of the Bank was adapted. Basically, processing work was taken away, which left a group of people who were to be able to sell products to clients.

As Mr Garlick recalls it, positions were advertised and an officer could express an interest in doing back office work or customer service work. Circulars on the subject were issued and there would have been discussions about it at group meetings. The circulars would have issued from head office.

Mr Garlick said that with the Bank circulars, officers could have their names on the lists and, when you read a circular, you initialled it.

Mr Garlick was in administration before he went into the branch area. In administration, there were meetings quite regularly. The subject for the meeting could be anything, virtually a staff meeting. Sometimes it was just, virtually, a general information session. When he went down to the ground floor, to become Assistant Manager 81 Elizabeth Street, there were staff meetings held.

Over a period, all the following functions were transferred to Melbourne: personnel, property, OH&S, processing and loans processing.

Mr Garlick said that he did not think that the complainant was technically part of "our" formal staff quota. He had no idea whose staff she was a member of. He thought she was attached to the administrative area upstairs, Michael Gandy's area.

During cross-examination, there was a lengthy exchange about the details relating to the ground floor space the complainant occupied in 1994. That material has been studied but, in the circumstances, it is not necessary to record it here. The state of those premises was the subject of a good deal of earlier evidence.

Mr Garlick said that C.B.A.T.V. is a recent invention which runs for several minutes each day at 9.00 am. The Branch Manager said it was compulsory viewing. All the full-time officers present would watch it. It contained news items about financial subjects and "all sorts of information". If there were items of interest to part-time officers, they would watch it later. Later, there was a requirement that it be taped and the part-timers saw it every day. The requirement to watch was for everyone in the branch, not everyone in the building. He did not think that there was every a requirement for the complainant to watch it. She, being the telephonist, seeing the whole branch was away, someone had to "man" the telephones. If it had been a requirement for her to watch it, they could have arranged a roster to cover for her.

Returning to the subject of the complainant's status, it was his belief that the complainant was not part of the 81 Elizabeth Street formal quota. He was never told anything different to that. He thought that, for some reason, she was based down there by Michael Gandy.

Returning to the subject of staff training, he said a lot of training was done on the job and a lot you did for yourself. You are often trained by someone else when you go into a job.

In re-examination, he said his understanding was that the complainant did not attend a number of meetings because her role was telephonist for the building.

He also said that the turbo and end of day meetings were all sales meetings designed to enable then to assess how they were going in relation to their targets.

4.8 Evidence of Ms Patsy Scott

Ms Scott became a central branch administration officer in July 1995. She then became the complainant's supervisor, located on the first floor. Their work stations were only about seven metres apart.

Ms Scott cannot recall the complainant making any complaints to her while she was her supervisor.

Ms Scott also discussed the changes in the operation of the Bank. Generally speaking, the discussion is along the lines of material already recorded from the evidence of other witnesses.

Speaking of the complainant's breaks away from the switchboard, Ms Scott said she did not require permission to leave the switchboard. She had scheduled times when she went and she would switch the switchboard through to the typists.

Ms Scott described the complainant as a very capable, very good switchboard operator.

Referring to the PDR of February-March 1992, Ms Scott said that she was not aware that the deviation from routine with that PDR would have got those responsible for it into trouble.

Referring to the subject of training, Ms Scott said that, while the complainant was working under her, she was not included in actual training sessions. Basically, it was sales training, which was the only training conducted at that stage. She was not included in sales training because her position was not sales focussed.

Ms Scott stated that periodically, there were staff meetings. If there was anything to be discussed all staff attended, including the complainant. There were about 8 people in a lending group in the area where the witness and the complainant worked and neither of them attended those meetings. Their meetings were related to lending and sales.

Speaking of the PDR system during cross-examination, Ms Scott said that very few people do complete the self appraisal form. It is made known to people that they can complete it. It was stated in the brochure that they could complete it. If they did not get the brochure they probably would not know that they could complete it.

Asked about the operation of the switchboard, Ms Scott said that some calls which come into the operator do require some "nous" in order to direct them to the right person. The operator does need a limited amount of product knowledge to know who deals with the various aspects of the work.

Ms Scott accepted that, in order to work at their optimal capacity, officers need training. Ms Scott was not aware of any training program the complainant went on when she was her supervisor. She did not suggest any training program to the complainant. There were not that many training courses conducted at that time.

Ms Scott agreed that there was always a problem for the switchboard-operator in that people on the ground floor often did not answer their phones, for various reasons. That problem was the subject of discussions, it was hard to rectify it, it took some time.

The complainant attended staff meetings when there were major issues which affected staff in general. They were not terribly frequent.

Ms Scott does not recall the complainant saying that she was not getting circulars. Circulars went around every day in folders with people's names on them. Ms Scott said it could have been the case that the complainant's name was not on the circulation list, but she was not aware that the complainant was not getting them.

Ms Scott did not have any formal briefing about the complainant's" disabilities. She was aware from working in personnel that she had diabetes and only partial vision. From her experience in personnel, she knows that every new appointee fills out a medical report form and any illness or injury is reported on the form. There were other people in the Bank with diabetes.

The complainant's previous supervisor had been Mr Allie. She did not get a briefing on the complainant's disabilities from Mr Allie or from anyone. She did not go through the issue of her sight disability with the complainant, nor her diabetes. She did not really think about whether issues like lighting, numbers on the telephone and size of numbers in the directories should be dealt with. She did not realise there was a problem. The complainant had been in her job for a number of years and doing it very competently. She did see the complainant reading books at times but it did not occur to her that she might be able to do other jobs in addition to the switchboard.

Ms Scott does not know a great deal about diabetes. She believes it is controlled by diet or diet and insulin injections. She found that out from working with another diabetic. She was aware that it was necessary for the complainant to have regular meals. She did not inform herself about the symptoms of diabetes nor of the importance of diet. Ms Scott understood that the complainant knew how to control her condition, so she did not take any steps to ensure that, as far as possible, she would not have diabetic attacks. She is aware that they can get quite ill, but she has not witnessed an attack. The Bank had officers trained in first-aid on staff.

Ms Scott said that the complainant had set lunch, morning tea and afternoon tea times, to which she adhered. Ms Scott assumed that that was sufficient. She was not informed otherwise. She did not speak to the complainant about it. The complainant could leave her workstation if she needed to, and the "girls" who backed her up understood that. They were aware she was diabetic and sometimes had trouble regulating her blood sugar level.

Ms Scott discussed the subject of fire-drills at length during cross-examination. Sufficient facts on that subject have already been noted. The following points about Ms Scott's response to questions about her responsibilities in the matter should be noted. She said that she did not check with the fire wardens to see whether they had actually gone through the drill procedure with the complainant. It did not occur to her that there could be a problem if she had a hypoglycaemic attack when the fire alarm went off. She agreed that, in hindsight, perhaps, she should have considered it. Now, in hindsight, she thinks it would have been a good idea to ensure she knew that the procedure was that she was to follow in a fire drill. One of the fire wardens should have led her out.

Ms Scott agreed that there was no set roster to ensure that the complainant could do blood tests, insulin injections etc. Nor was there a written meal break roster. But she did take her breaks at the same time virtually every day. She would switch the switchboard through and tell the "girls" she was going. Of course, the practice was reliant on the fact that someone would be there, ready to take the calls. The practice did not involve one of the typists being nominated as the person to relieve, one of the three would be there to perform the back up function. They were all aware of the time of her teas and lunch breaks. But, if it were an unscheduled break, Ms Scott believed that they would tell the other "girls" around the area that they had the switchboard. One of the typists would have been there at all times, the Central Branch phones had to be answered. The typists were well aware that they were second call to the switchboard when the complainant had to go.

Ms Scott said that she definitely was not aware that the complainant could not get five minutes of someone's time to cover for her while she did a blood test. She understood that the "girls" had no problems covering for the complainant when she need to go for breaks. She agreed, however, that she was not the supervisor for these three typists, the Central Branch Lending Manager was. But Ms Scott was satisfied that the typists were fully aware of their responsibilities in the matter. The typists were aware that the complainant had a condition and, if she needed to attend to it, then someone had to be available as a replacement. Ms Scott was not aware that the complainant was having difficulties in terms of having her telephone duties covered for the purpose of doing insulin injections or blood tests. She did not discuss the matter with the complainant.

Ms Scott agreed that she was not aware of the following alleged problem: there were not people around when she was having a "hypo" or needed to rush off to get sweets and things. She referred to the fact that, in Central Branch, they had a fridge at the back of the office with chocolate bars and soft drinks.

She was not aware that, in fact, people were not relieving the complainant.

She accepted that it should not have been the case but agreed that, probably, in order to get training, the complainant had to ask for it. She felt that, perhaps, in hindsight, she could have been more aware of the complainant's needs in relation to training. She added "look, I don't know specifically what training she ought to have got. I would need to have discussed it with her as to what training she felt she required".

On the subject of the complainant's feelings of insecurity in respect of her future in the Bank, in view of all the changes, she agreed that quite a lot of the staff felt insecure. Ms Scott noticed that the number of calls coming into the switchboard declined over the time she was the complainant's supervisor. She expected that they would continue to decline.

Ms Scott agreed that, once calls got to the stage that the complainant had virtually no work, if she was going to retain her job it was essential that she either had training for some other job, or to take on some other tasks while she was working as a telephonist. Ms Scott knew the calls were declining, but had not given it that much thought as to what might happen down the track, given that the Bank's program was continuous. They did not know what would happen next.

Ms Scott was not aware that on one day, when the complainant was under her supervision, she had three hypoglycaemic attacks.

Ms Scott said she was not aware of other jobs in the Bank which the complainant could do.

After the complainant's complaint to the Commission, Ms Scott realised that there was no poster relating to fire drill which the complainant could access on the first floor.

4.9 Evidence of Ms Tracey Lee Bulis

Ms Bulis said that, in the early 1990s, she occasionally relieved the complainant on the switchboard at lunch time. The complainant taught her how to do the work in a couple of weeks, with 10-15 minutes training each day. She is not sure that she received training every day.

In 1995 Ms Bulis and the complainant both worked on the first floor. When Ms Bulis first started there she was told that part of her job was relieving on the switchboard. There were three other people in the area who were trained in switchboard work.

Ms Bulis was told that the complainant was partially blind. From her observation in 1995, she thought that she may have diabetes. At the time she was working close to the complainant she noticed that the complainant had to "run out", maybe twice per week (this refers, of course, to going out to deal with diabetic symptoms).

During cross-examination she said that, in 1995, on the first floor, in addition to her task of relieving on the switchboard, she did typing, reception work and answering the telephone for the lending team. She gave precedence to the Central Branch Manager's work.

About as much as Ms Bulis knew about diabetes is that sufferers require a large sugar intake.

In 1989 and 1990, Ms Bulis attended staff meetings, maybe once per month on the first floor. They would only involve officers in her department.

In 1995, she attended staff meetings more often, usually twice per day, in the same department. Those meetings involved how the Central Branch lenders were going. At the suggestion of her supervisor she was training to be a lender.

Ms Bulis said she did not know how the training system worked, but you get transferred to a branch and the branch manager gives you training, whatever training you need.

Ms Bulis said that, in 1995, there were fewer staff and more pressure to perform. There were never enough hours in the day to get everything done. It was difficult at times to get everything done. Sometimes, she would give expression to annoyance that she was being required to do yet one more task when other things were pressing.

During re-examination, Ms Bulis said her training was always on the job. She has been in the Bank for just over 10 years.

5. AN INITIAL RESPONSE TO THE EVIDENCE NOW OUTLINED

5.1 General Matters

The first matter to be considered is the evidence of the complainant. It is necessary to consider that evidence in two parts:

1. Evidence which deals with what she did, what she said and heard, what she observed and what she experienced.

2. Evidence of opinions formed, evaluations of the purposes, motives and attitudes of others and her understanding of the respondent's practices, methods and policies.

The substance of the complainant's evidence in the first category should be accepted. There are the following strong reasons for that:

1. She presented at the hearing as a person of intelligence and strong character.

2. There is strong corroboration of parts of her evidence in that:

(i) Her evidence of the state and nature of the ground floor workspace which she occupied in the latter part of 1994 is corroborated by the acceptable evidence of Ms Laskey, Ms Lawson and Mr Butler and the opinion on the subject expressed by Mr Callinan.

(ii) Her evidence about the non-receipt of circulars is corroborated in material particulars by the acceptable evidence of Mr Butler.

(iii) Her evidence about fire drills and fire precautions is, to a large degree, confirmed by the evidence of the respondent's witnesses on the subject.

(iv) One of the principal features of her case is that her position as switchboard-operator/ telephonist was a dead-end job. That is to say, she was not given any opportunity to be promoted or transferred to any other job, with the consequence that, largely, she was denied training in bank work because, to a considerable extent, training was job specific; an officer was transferred to a new job and then received the training necessary to do that job efficiently, a successful officer repeating that process until she/he had a wide knowledge of banking. What the complainant complains about on this aspect of her case is strongly confirmed by the circumstance that the state of affairs she complains about is presented by the respondents as the central feature of their case. In other words, there is a large area of common ground on this particular subject.

(v) One of her complaints is that she suffered considerable stress because of her fears that her position would be abolished and she would be left without a position, a state of affairs which has in fact come to pass. She complains that she was not given any training to take on other positions and, thus, retain her employment with the respondent, when her position disappeared. On the other hand, other officers who found that their work was disappearing, because of changed work methods or, more usually, transfer of a banking function to Melbourne, were given training in other areas of Bank work: for example, officers who did processing work were trained in sales work and retained in employment after the operations centre was transferred to Melbourne. There is substantial material in the respondent's case corroborating the facts on which this aspect of her case is based.

The complainant's evidence about difficulties she experienced in getting breaks to partake of food and drink and difficulties she experienced in getting breaks to deal with symptoms arising out of her diabetic condition, is not corroborated but, nevertheless, receives significant support from the acceptable evidence of her friend, Ms Millhouse.

The complainant's evidence falling within the second category mentioned previously has to be approached differently. Material in the complainant's journal and in her evidence shows that she entertains feelings of resentment towards the respondent and some the respondent's officers. Resentment can produce bias and prejudice and, hence, distortion of opinions, evaluations and perceptions. Some of the opinions she expressed contain indications of bias and prejudice. For example, opinions about the intentions, motives and attitudes of fellow officers are often black, rarely grey, and exceptionally white, one example of the last category being her views about the activities of Mr Allie. For this reason, her evidence falling within this category must be considered on an incident by incident or case by case basis. Also, her understanding of the respondent's policies, practices and methods may not always be completely accurate.

One must turn now to state some findings on particular issues:

5.2 The PDR February - March 1992

The substance of the complainant's evidence concerning what was said and done in the course of this transaction is accepted. That the complainant felt intimidated in the course of this transaction is accepted. However, any suggestion that other parties to the transaction were guilty of intentional intimidation is rejected. A number of arguments were raised by the respondent seeking to show that it was unlikely that Mr Turner would have said the things the complainant alleges he said. Those arguments have been carefully considered and rejected.

As mentioned previously, this incident had a serious and adverse effect on the relationship between the parties. The main reason for that was that the complainant felt that the approach taken by the respondent's officers revealed a lack of respect for her and her position in the Bank.

5.3 Fire Drills

The discussion of this subject at the hearing made three things clear:

1. It was a mistake to exclude the complainant from the fire drill activities. True it is that someone had to attend at the switchboard during the exercises. But it was wrong to decree that the complainant had to do that each time. On an appropriate number of occasions, the switchboard relief staff should have attended at the switchboard, leaving the complainant free to participate in the fire drill exercises.

2. When it was the complainant's turn to remain at the switchboard, she should have been requested to do so shortly before the exercise began and she should have been given an adequate explanation of what drill was about to take place.

3. She should have been supplied with up-to-date fire precautions information at her workstation so that that material was immediately available to her.

The defects in the respondent's procedures in relation to fire precautions meant that the complainant was treated less favourably than practically all others, despite the fact that, because of her sight and diabetic disabilities, her need was greater than that of practically all others.

5.4 The level of knowledge locally of the complainant's medical condition

The approach taken by the respondent in relation to the complainant's medical condition fell short of what was reasonably required and what could reasonably have been expected. It is true, no doubt, that the disclosure of disabilities by the complainant in the medical form she submitted at the time of her appointment should have been regarded as a confidential disclosure. However, her permission should have been sought to make appropriate disclosures of it. Certainly, there should have been disclosure to OH&S and local management. There was a need for local management to be instructed about the significance and implications of her diabetic condition, so that her reasonable needs could be catered for on a day to day basis. There should have been a written roster to ensure that she could get appropriate breaks to partake of food and drink and deal with symptoms. The evidence discloses that an inadequate system of management of the complainant, particularly in relation to the needs which her diabetic condition caused, caused her avoidable stress and suffering.

OH&S knew of her severe diabetic condition and ought to have known of the needs which that condition could be expected to create. OH&S personnel should have ensured that a written roster was put in place to deal with her day to day needs.

5.5 Training

There are two parts to this issue: (a) training to perform the duties of switchboard-operator / telephonist and (b) training in other aspects of Bank work.

The training the complainant received, dealing with the duties of her job, when she first started at the Bank, was somewhat inadequate. That had the result that the task of settling into the job was made more difficult and stressful for her than it should have been. However, too much can be made of this aspect of the matter. The evidence of Ms Bulis shows that it was a job which could be understood and handled fairly quickly with a limited amount of training.

The changes which took place at the Bank, over the relevant time, were extensive, both structurally and in terms of the Bank's operations. The rate of change was such that, not only the complainant, but many other members of staff, suffered stress. These changes affected the operation of the switchboard. They meant that the complainant should have received a good deal more training and general information than she did, in order to keep up with the changes and do her job efficiently.

In relation to training in other Bank work, the complainant was held in the one position throughout her stay at the Bank, with the consequence that she did not get the training which other officers got when they changed positions. The respondent's attitude to her position - switchboard-operator and telephonist with no change allowed - necessarily involved, as a consequence, a denial of this main source of Bank training.

The evidence shows that the respondent regarded the PDRs as important. There were two main elements to this process, namely:

1. A six monthly and annual review when the supervisor, generally speaking, considered with the officer her/his performance over the relevant time and considered whether improvements could be made.

2. At those reviews, the reviewee's future was considered, potential and prospects for advancement being reviewed. By the use of this system the respondent, a nation-wide organisation, was able to form an adequate picture of its main asset, its staff. During these discussions, advances in the officer's training, knowledge and skills were discussed.

The respondent's attitude to the complainant - switchboard-operator and only switchboard-operator - meant that the second aspect of the PDR process, that is, consideration of potential and future prospects of the reviewee, had little, if any significance. That being so, training opportunities which opened up for other officers during the PDR process, were denied to her.

The substance of the complainant's case on three other aspects of her complaint should also be accepted. They are (1) a failure by the respondent to supply her with adequate equipment with which to do her job, adequate particulars of the omissions being set out in her evidence; (2) exclusion from many meetings which should have been open to her, particulars, again, being contained in her evidence; and (3) a sense of isolation and exclusion arising out of inadequate attention by staff, particularly managerial staff, to her reasonable needs.

6. SOME POINTS OF LAW

6.1 General

The following propositions are applicable:

1. The complainant carries the burden of proof. The Commission should find her case proved if it is satisfied that the case has been proved on the balance of probabilities.

2. This case is about the relationship between two persons, one a juristic person. The two persons are the complainant and the respondent. To succeed, the complainant must prove that the respondent engaged in conduct which amounted to a breach of the Act. She must prove conduct which, according to the provisions of the Act, constitutes unlawful discrimination. The relevant provisions of the Act did not commence until 1 March 1993. That circumstance gives rise to this question: what use should be made of the evidence dealing with the relationship between these parties from the commencement of the complainant's employment in December 1989 until 28 February 1993? The answer is that this evidence should be taken into account in order to gain an understanding of the relationship between the parties from 1 March 1993 onwards. If the evidence in respect of the earlier period were excluded, there would be an increased risk that an inadequate understanding would be formed of the relationship over the relevant period. For one thing, the culture of the workplace is better understood by considering the whole period from December 1989. Further, in this case, the evidence shows that the relationship had been damaged prior to 1 March 1993, damage which has not been repaired and which had a continuing adverse effect on the relationship throughout the relevant period (c/f Fares v Box Hill College of Technical and Further Education and Anor (1992) EOC 92-391).

3. The Commission should decide whether to accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation but in the light of the whole of the evidence and can draw an inference from a combination of facts, none of which viewed alone would support the inference (Chamberlain & Anor v The Queen [1984] HCA 7; (1984) 153 CLR 521, at 536).

6.2 Discrimination Law

A striking feature of discrimination law in Australia, particularly in the case of disability discrimination law, is that the concept of discrimination, as defined by dictionaries and popular understanding, is considerably wider than discrimination which is unlawful pursuant to the relevant statute, particularly the Act. The most recent leading Australian case - I W v City of Perth and Ors [1997] HCA 30; (1996) 146 ALR 696 - illustrates the point. There, a definable group of citizens were the victims of conduct which, according to the dictionary and popular understanding, amounted to serious discrimination to the point of insult. They were denied any relief. The mantra of "liberal construction" was recited but, in the end, by majority, a narrow view about the scope of a few words in the relevant Act - the Equal Opportunity Act 1984 (WA) - prevailed. In that environment, it is necessary to analyse the relevant words of the Act carefully, before taking responsibility for deciding anything at all. It appears that the noble sentiments of the objects section of the Act, section 3, find an inadequate vehicle in the remaining sections of it.

6.3 Section 5 of the Act

The first word in this section which must be considered is "treats".

The dictionary meaning is: "treat - to behave to or toward (a person, animal etc) in a specified manner" (Webster's New 20^th Century Dictionary 1959, see also Concise Oxford Dictionary). That meaning implies a relationship, in this case the relationship of employer and employee. In this case the specified manner is "less favourably than" etc.

6.4 The meaning of "less favourably than"

This phrase adverts to the notion of equality, expressly referred to in section 3, and impliedly referred to in section 5(2) and other provisions. In 1992, Her Honour Gaudron J wrote that "discrimination is not an easy concept, particularly in a context where there is no comprehensive theory of equality" (see Foreword to Rosemary Hunter, Indirect Discrimination In the Workplace, Federation Press, 1992). It appears that little has been done in Australia since 1992 to provide a comprehensive theory of equality. However, such a theory has been developed and applied by the Canadian Courts. One notion can safely be borrowed from there and from United States jurisprudence and applied to this case. That notion is: "it was a wise man who said there is no greater inequality then the equal treatment of unequals" (Dennis v United States [1950] USSC 43; 339 US 162 at 184 per Frankfurter J.).

A modern application of that notion is to be found in the decision of the Supreme Court of Canada in Elridge and Others v A-G of British Columbia and Another (1997) 3 SCR 624. The medicare system of British Columbia applied equally to the deaf and hearing populations. Both groups were entitled to receive certain medical services free of charge. However, it was contended that sign language interpretation for the deaf was an "ancillary service" and the deaf patient must pay for it, even where the interpretation service was necessary for the safe and adequate delivery of the medical service. It was held that, where the interpretation service was necessary to the safe and adequate delivery of the medical service, it was to be treated as an essential part of the medical service provided, with the result that the deaf person was entitled to that service free of charge. That conclusion was held to be necessary in order to extend to deaf people "equal benefit of the law without discrimination" within the meaning of section 15(1) of the Canadian Charter of Rights and Freedoms. An important passage in that case is the following statement of La Forest J (para 65):

The other equally important objective seeks to take into account the true characteristics of this group (persons with disabilities) which act as headwinds to the enjoyment of society's benefits and to accommodate them. Exclusion from the "mainstream" of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access....Rather, it is the failure to make reasonable accommodation, to fine tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses "the attribution of stereotypical characteristics" reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of the disabled individual, ignores his or her disability and forces the individual to sink or swim within the "mainstream" environment. It is recognition of the actual characteristics, and reasonable accommodation of those characteristics which is the central purpose of section 15(1) in relation to disability.

A further valuable comment on the notion of equality in discrimination law is to be found in R v Big M Drug Mart Ltd (1985) 1 SCR 295 at 347:

The equality necessary to support religious freedom does not require identical treatment of all religions. In fact, the interest of true equality may well require differentiation in treatment.

In Australia, discrimination is a constitutional concept. The terms "discriminate" and "discrimination" appear in such provisions of the Constitution as sections 51(ii), 102 and 117. The dictum of Frankfurter J cited above has been embraced, in effect, in the course of discussion of the constitutional concept of discrimination. In Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 at 478 their Honours Gaudron and McHugh JJ said:

A law is discriminatory if it operates by reference to a distinction which some overriding law decrees to be irrelevant or by reference to a distinction which is in fact irrelevant to the object to be attained; a law is discriminatory if, although it operates by reference to a relevant distinction, the different treatment thereby assigned is not appropriate and adapted to the difference or differences which support the distinction. A law is also discriminatory if, although there is a relevant difference, it proceeds as though there is no such difference or, in other words, if it treats equally things that are unequal - unless, perhaps, there is no practical basis for differentiation. (emphasis supplied)

The statement by La Forest J in Elridge cited above is consistent with that statement of principle and leads to the view that the "principle of reasonable accommodation", stated by him, should be regarded as a central principle of disability discrimination law. The proper construction of the Act shows that the principle of reasonable accommodation is contained in it.

There is recognition of it in section 5(2), section 11, section 15(4) and section 55 of the Act. The comparison exercise contained in section 5(1) should not be done so as to come into conflict with Frankfurter J's famous dictum. The use of the word "favourably" adverts to the notion of giving aid or help. A mere mechanical measure of the aid or help given, which ignores disparate capacities, needs, and circumstances is not sufficient.

6.5 The meaning of "in circumstances that are the same or are not materially different"

I adopt as correct and applicable the following statement:

It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable basis for differential treatment, could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.

(Statement by President Wilson, quoted by Wilcox J in Commonwealth v Human Rights Commission [1993] FCA 547; (1993) 46 FCR 191 at 209[1993] FCA 547; , 119 ALR 133 at 151; by Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 327, 118 ALR 80 at 104; by Toohey J in IW v Perth (supra) at 719, Kirby J at 746.) 6.6 The meaning of "on the ground of"

An intention or motive to discriminate on the part of the alleged discriminator need not be proved (Walters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 357 per Mason CJ and Gaudron J, Deane J at 382). Of course, it helps if it can be proved.

As their Honours Mason CJ and Gaudron J said in Waters at 359:

It would, in our view, significantly impede or hinder the attainment of the objects of the Act if section 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of". (emphasis supplied)

See also per Deane J at 382; see also Australian Iron and Steel v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 176-7.

The effect of an impugned practice, not the underlying intent, is the governing factor in determining whether the practice gave rise to discrimination. Intent to discriminate is not a necessary element of discrimination (O'Malley v Simpson-Sears Ltd 1985 CanLII 18 (SCC); (1985) 2 SCR 536).

The task is to determine whether the "true" basis of the employer's conduct is or was grounded on the proscribed consideration; that is, for example, the disability, race or sex. of the person aggrieved (Australian Iron and Steel Pty Ltd v Banovic supra per Deane J and Gaudron J at 177; see also Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155; James v Eastleigh Borough Council [1990] UKHL 6; [1990] 2 AC 751).

On the face of section 5(1) of the Act, a discriminatory act is done "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 etc. Thus, the phrase "on the ground of" receives a causative construction. The test to be applied is objective, in the sense that it is necessary to show no more than that, because of the aggrieved person's disability, she received the less favourable treatment referred to later in the sub-section (see also Commonwealth of Australia v Humphries and others, unreported, Federal CourtKiefel J, 25 August 1998 at 13).

6.7 Section 6 of the Act

It is not necessary to analyse this section. The only use the complainant seeks to make of it is in respect of her claim in relation to the fire drill. The Commission does not accept the complainant's argument that her claim concerning the fire drill can be brought under section 6. The Commission accepts the respondent's argument to the effect that the evidence in this case does not disclose any case falling within section 6.

The arguments for the complainant in favour of applying section 6 allege that there was a requirement or condition imposed that all employees follow the fire drill. The argument then asserts that the requirement or the condition was one:

with which a substantially higher proportion of persons without the disability comply or are able to comply - "in safety" (understood). True it is that Ms Garity did in fact comply with the requirement. But she did so at great cost to herself as a consequence of her disability. That great cost is one which would not have been suffered by a person without the disability.

This argument can be answered very briefly. The complainant was able to comply. There is excellent evidence to support that view. She did comply. Compliance "at great cost" remains compliance. Section 6 deals with a different kind of case. That is, a case where a condition neutral on its face is shown by analysis to have a disparate impact. There is no disparate impact in this instance; all could comply and all did.

It will be necessary to reconsider the fire drill aspect to decide whether section 5 applies.

6.8 Section 10 of the Act

This section appears to be clear. Previously, some discrimination statutes required the complainant to prove that the proscribed factor was the dominant reason for doing the act. That was found to be too strict a test. This formulation is the response from Parliament. If the proscribed factor is a reason then any other reason may be ignored and the proscribed factor may be treated as the true reason for doing the act.

6.9 Section 15 of the Act

This section also appears to be clear. Two points should, however, be noted:

1. The word "discriminate" has the meaning given to it by section 4.

2. The phrase "on the ground of" has the same meaning as in section 5.

7. A FINAL RESPONSE TO THE EVIDENCE OUTLINED ABOVE

7.1 Failure to provide the complainant with a career path, including a failure to provide opportunities for transfer to other positions and, generally, promotion

The Commission is satisfied that the complainant has proved unlawful discrimination in relation to these aspects of the case pursuant to section 5, section 10 and section 15(2)(a)(b) and (d) of the Act. The very recent decision of Kiefel J in Commonwealth of Australia v Humphries and Ors (supra) directs strong and pointed attention to the need to consider carefully, among other things, the causation element of the case, revealed by the phrases "on the ground of" and "because of". With the learned judge's decision in hand, the Commission states that it is satisfied that a case has been made out to satisfy that element, and all other necessary elements, in relation to the aspects of the matter listed in this heading. Further, in relation to all aspects in respect of which findings are going to be made against the respondent, the Commission is satisfied that the complainant has presented acceptable evidence proving the causation element and all other elements necessary to be proved in order to establish unlawful discrimination.

The law being applied has been stated and will not be repeated. However, the importance for this case of the principle cited from Chamberlain's case should be noted. For the purposes of analysis and exposition it has proved to be convenient to isolate, for separate discussion, different aspects of the relationship between the parties. But it must be kept in mind that there is only one relationship here between two persons, one a juristic person. The case does not involve many relationships between many people (except for evidentiary purposes) - only one relationship. The nature and quality of that relationship provides a thread or theme which gives a unity to the various aspects.

As is so often the case, the basic problem is that there was a misunderstanding. Generally speaking, the senior members of local management believed that the complainant was employed as a switchboard-operator/telephonist and that the terms of the arrangement were that she would continue in that job and would not expect, or be entitled to, any career path or promotion. They believed that that position was made clear to the complainant and she accepted it. On the other hand, the complainant hoped for a career path and promotion, did not understand that she would not be allowed to develop in that way and became increasingly concerned about her lack of progress. On the question of whether the complainant was told of the alleged limitations on her position, her evidence is preferred. She was not told. The respondent's officers believe she was told, but they are mistaken. The complainant, an honest and intelligent person, is not mistaken about a matter of fact of such personal importance to her.

The complainant was a clear and convincing witness. After hearing her evidence, one was convinced that she felt hurt, because she had feelings of isolation, exclusion, even social exclusion and of being the victim of many distinctions drawn between herself and other officers.

Increasingly, she resented being in a dead end job. The feelings of isolation and exclusion were "because of" her disabilities. Her disabilities explain why she was the victim of so much discrimination. The arrangement which the respondent's officers thought they had with her goes a long way to explain much of the discrimination against her. The Bank had a policy of giving people with serious sight impairments "a go". They were proud of what they were doing, a dead end job, they assumed, was better than reliance on social security. Further, they assumed that, because of her obvious sight disability, there was little, if anything, else she could do. That assumption was discriminatory, unlawful stereotyping. The evidence shows the position to be this: because of her disability she got the job; because of her disability, according to the respondent, she was going to remain in that position and not proceed to any other. Exhibit C8 is an important piece of evidence. It proves that it was not the nature of her job which was holding her back. If that was not holding her back what was? The answer is her sight disability.

For the purpose of this heading the comparison required by section 5(1) should be with the respondent's employees at the 81 Elizabeth Street branch and, if it matters, which it probably does not, also the employees of Central Branch at 81 Elizabeth Street Hobart.

7.2 PDR Procedure

The essential analysis here is, in substance, the same as with heading 7.1 (above). Because of her disability, the complainant was treated less favourably than the group just mentioned (above). As with heading 7.1 (above) sections 15(2)(a)(b) and (d) apply.

As mentioned earlier, the PDR was the key process and documentation in terms of career path, career path opportunities, training and training opportunities, promotion and promotional opportunities. The respondent denied the complainant access to, or limited the complainant's access to, opportunities for promotion, transfer, and training (see section 15(2)(b)), in the way that it applied this procedure to her. The way the PDR procedure was applied to her meant that her feelings of isolation, exclusion, being a person apart, were intensified.

7.3 Ongoing employment, increasing sense of being a person apart and vulnerable, because the position of switchboard-operator/telephonist was subject to an increasing risk that it would be abolished, as it ultimately was, because of the reduction in the amount of work involved in the discharge of the duties of the job

Management noticed that, sometimes, the complainant was reading magazines. Mr Callinan tried to find something for her to do, in addition to the switchboard - telephonist duties. The experiment did not succeed, but it was not carried through to a satisfactory conclusion. She was not presented with the errors made and given an opportunity to correct them. No other steps were taken to see whether she could perform other, or additional, tasks. Thus, she was left with the work involved in her job diminishing, because of the downsizing, with the reasonably foreseeable prospect that the position would be abolished, leaving her without a job. This situation caused her stress. The complainant submits, correctly, that the way she was treated in the Callinan experiment amounted to discrimination. In the experiment she was not treated the same as an employee without a disability would, probably, have been treated, that is, "brought to task" for the errors and provided with guidance as to how the work should properly be done. In the circumstances, her situation contrasts with other employees who were given a choice of a "package" or contemplating extra/additional or other tasks in the Bank. They were also given an opportunity to reapply for their jobs. The complainant was told that there was no need for her to apply for her position, it was "secure". Ultimately, the complainant was offered a redundancy package but at a much later time, in 1996 and 1997.

The Commission accepts the complainant's submission that the approach of the respondent to her and her position reflects a discriminatory practice, well before the redundancy offer of 1996 and 1997.

The Commission is satisfied that, under this head also, the complainant has established a case of unlawful discrimination pursuant to sections 5, 10 and 15 (2)(a)(b) and (d) of the Act. The Commission accepts the following submission by the complainant. There were in fact three reasons for the complainant not being provided with opportunities for "on-going" employment with the respondent in the time of change, redundancies and "downsizing" and so on:

1. She was in the position of telephonist/switchboard-operator, which had limited opportunities and a limited career path;

2. She had a sight disability and, therefore, was in the limited position; and

3. Persons in managerial positions within the respondent had perceptions of her and her abilities, capabilities and capacities, because she was a person with a sight disability which meant that they did not provide her with opportunities or any real opportunities for ongoing employment.

The comparison group for the purpose of this heading is the staff of the 81 Elizabeth Street Branch and, if it matters, also the staff of Central Branch, situated at 81 Elizabeth Street.

7.4 Training

The Commission must be careful, when using this analytical approach, to be conscious of the risk of overlapping between headings. This heading is a good example of the risk. The Commission is satisfied that the main source of training in the Bank was what was called "job specific" training, a term the meaning of which has been explained earlier. That type of training has already been covered in 7.1 above by virtue of the operation of section 15 (2)(b).

Adverting to training to do her own job efficiently, by March 1993 the complainant was trained in her job and she was doing it efficiently. But, as previously mentioned, she did need training or assistance to cope with the changes in the Bank and she did not get it at an adequate level. Attempts to cope with the changes with little assistance caused her stress.

The Commission is satisfied that the complainant has established a case under this head, pursuant to sections 5, 10 and 15(2)(a)(b) and (d). The reasoning which produces that result has been sufficiently exposed when dealing with headings 7.1 to 7.3, inclusive. The comparison group is the same as in the last heading.

7.5 Staff Meetings

On the evidence, this would appear to be a relatively minor matter, in that there would not appear to have been many meetings from which she could be said to have been inappropriately excluded. However, there were some.

The Commission is satisfied that a case of unlawful discrimination has been shown under this head pursuant to sections 5, 10 and 15 (a)(b) and (d).

7.6 Circulars

There was unlawful discrimination in this respect also. But it really overlaps to a substantial degree with the previous headings. Supply of circulars falls to a substantial degree into the areas of training and supply of information and knowledge necessary for doing a job efficiently and becoming equipped to cope with duties outside of the switchboard-operator / telephonist role. The essential analysis which shows unlawful discrimination is much the same as with previous headings.

7.7 CBATV

The evidence shows that this reference is to a regular TV program containing current material of interest and value to all Bank staff. Generally speaking, all Bank staff at 81 Elizabeth Street Branch and Central Branch had access to it, except the complainant, although it was only at a later stage that arrangements were made for part-time officers to see it. The exclusion of the complainant from this program cannot be justified on the basis of some organisational need. There were staff members trained to relieve her.

The Commission is satisfied that the complainant has established a case of unlawful discrimination under this heading pursuant to sections 5, 10 and 15 (a) (b) and (d). The essential reasoning supporting this result has been sufficiently exposed. The comparison group is the same as that for the previous headings.

7.8 Fire Drill

The complainant's attempt to bring this matter under section 6 has failed. She does not appear to have submitted that this is a case of direct discrimination. That being so, one hesitates. However, the conclusions reached on the evidence about this point have been stated. On those conclusions, the Commission is satisfied that the complainant has proved a case under this head under sections 5, 10 and 15 (a)(b) and (d).

The evidence clearly shows that there was discrimination, in the ordinary general legal sense of the term, that is "discrimination against" her. Putting it in the vernacular, she was the odd person out, in particularly inappropriate circumstances. The evidence proves her less favourable treatment clearly. Where, then, is the obstacle to a finding? The only one which could be suggested is the requirement to prove causation, "because of". But the Commission is satisfied that that element is proved. The evidence discloses a syndrome here, which is unlawful discrimination because of her disabilities. With the aid of section 10, the causation element is satisfied. The syndrome contains the following important elements - isolation, exclusion, a person set apart. The comparison group is the same as with the previous headings.

7.9 Breaks for meals and to deal with her symptoms

The evidence shows that there was a need for a roster to cope with these problems. There was also a need for those involved with the roster to understand the importance to the complainant of these breaks. The failure to have a proper roster, and a proper system generally, to deal with this problem caused her stress and distress. That being so, she was treated less favourably than other officers without disabilities. They did not suffer, one can assume, because of any difficulty they may have experienced, from time to time in getting their breaks on time. In order to satisfy the "less favourably" element of section 5 the complainant argues that the respondent had a duty to provide her with a safe system of work and quiet enjoyment of her workplace. The contention is that she was treated less favourably than all other employees of the Bank in that she was not provided with a safe system of work and was deprived of quiet enjoyment of her workplace. Whereas, impliedly, all other employees had those benefits. The further contention is that the less favourable treatment was because of her disabilities. The contention is that she lacked a safe system of work because of her disabilities in that an integral part of her safe system of work was the incorporation of special measures to cope with her special needs. In the absence of the special measures, she lacked a safe system of work; thus her lack of a safe system of work was "because of" her disabilities. The contention is that the same argument applies to the failure to ensure the complainant had quiet enjoyment of the workplace. Quiet enjoyment is disturbed, disrupted or not extended to an employee if:

1. she requires "special measures" in order to participate in or have access to quiet enjoyment of the workplace; and

2. those measures are not provided by the employer.

That was the case here.

Those contentions are accepted. In relation to this heading the Commission is satisfied that the complainant has established a case of unlawful discrimination pursuant to sections 5, 10 and 15 (a) (b) and (d).

7.10 A final group of complaints

The contentions of the complainant, in relation to the heading of breaks, which has just been accepted, were also extended to the following complaints of failure to provide:

1. proper lighting; and

2. proper space in which to work.

The complainant's case on those two matters of complaint is also accepted, but that acceptance is restricted to the ground floor space which she occupied in the latter part of 1994.

7.11 Claim of harassment

There is a further claim of harassment contrary to section 35 of the Act.

The Commission is not satisfied that the claim has been proved. The Commission accepts the substance of the evidence of Ms Christine Davin. Ms Davin was following what, for her, was a quite familiar procedure and she was carrying it out, really, in just a routine way. The Commission does not find any harassment in it. The complainant was unwell at the time. But all the respondent sought to do was to submit for consideration an ordinary business offer. It could be accepted or rejected, as, indeed, it was.

8. COMPENSATION

8.1 The lay evidence

Generally speaking, the evidence outlined above will not be repeated here. The following evidence was given by Ms Garity in her affidavit:

* "Since 4 December 1989 my vision status is nil sight in the right eye and 40 per cent in the left. The function of my left eye is lessened by focal and peripheral considerations." (para 5)

* "On one day after I had been under extreme stress I had three attacks which threatened my health. I had a great deal of difficulty getting any real assistance or understanding even though the staff were obviously shocked at my appearance". (para 37)

* "Meanwhile my diabetic condition was worsening and difficult to control. I was having repeated hypos and anxiety attacks as my journal for August 1994 records. I was also working long hours without due RDOs In September 1994 my supervisor the manager witnessed a hypo reaction severe enough for my husband to have to collect me from work...". (para 59)

* "From September to December 1994 my hypo reactions escalated. It was a period of fear for my health and at times for my life. On 30 November I saw Dr Treplin and was diagnosed with glaucoma meaning that I was to lose further sight. This was not happy news, I was under considerable stress with high blood pressure...." (para 61)

* "My health was again in crisis my self esteem was low, my frustration level high, I could generate no sense of urgency from my supervisor I was getting nowhere. My diabetes went out of balance again with frequent hypo reactions resulting in a great deal of medical care. I was quite recently married (March 1994)...." (para 71)

* "In December 1995 I was given two weeks sick leave for stress and anxiety....I returned to work for a short time and then went on annual leave....I went back to work at the end of my holidays and lasted two days with major "hypo attacks" and an overwhelming sense that I could not go on. At this point I left the Bank on sick leave and have not returned." (para 72)

* "I was referred to Tim Greenaway an expert endocrinologist in Hobart by Comcare seeking an expert opinion on diabetes. I returned to him as a private patient and he immediately put me in hospital. Soon after the Comcare assessment my kidney condition deteriorated and I was diagnosed with kidney failure with 18 months maximum left. This time frame has shortened and I will need multiple organ transplants in the immediate future." (para 77)

Some passages from the affidavit of the complainant's husband, Mr Lindsay Garity, should be noted:

* "I observed as 1994 progressed Sally's diabetic condition seemed to deteriorate even though she was visiting her GP on a more regular basis...." (para 12)

* "I could see at that time that her work was causing her considerable stress but she would not involve me other than to say she was experiencing many difficulties at work with her eyesight disability and health...." (para 13)

* "On the night following her return to work from holidays she came home extremely stressed telling me that their workplace had been moved to the ground floor banking chamber...." (para 16)

* "Over the next six months I observed a deterioration in my wife's health and mental and emotional outlook. She was often in tears when I tried to get her to discuss her work problems. She suffered many diabetic reactions and I noticed that she now hated her work but was determined to continue in the hope that her situation would eventually change". (para 19)

* "On a number of occasions when Sally was located on the ground floor in the relocated area, I had to pick her up from work following severe diabetic reactions. On each occasion I immediately took her to her doctor. Her health deteriorated severely during this period". (para 20)

* "From that point on until she was placed on extended sick leave at the end of 1995 I experienced a personal deterioration in my wife to the extent that she lived in fear of losing her job as well as chronic deterioration in her health". [The expression "that point" refers to a discussion between the complainant and Mr Callinan, where she informed him of her diagnosis of glaucoma.] (para 23)

* "However this did not work as her mental and physical health had become so critical that she was unable to function either at work or at home as she had previously done. Her ability to self medicate and look after herself in respect of her diabetic condition became traumatic for her although she endeavoured and succeeded in maintaining the previous standard of care and rigid routine". (para 25)

In his oral evidence Mr Garity said that, in 1994, he got the feeling there was something going on at work that was causing the complainant unhappiness. In particular, around the middle of 1994, she started to lose confidence in her ability to socialise and to discuss just general matters of concern in a social situation.

In her affidavit Susan Brett, the complainant's sister, said "One of the things I do know about my sister is her determination and will power in insuring that people are not unnecessarily burdened as a result of her condition. She was not prone to complain and was very stoic". Continuing, at para 5, she said "This worked very well for her. However I noticed her progressive decline in being able to do this during her employment with the Commonwealth Bank. I observed that she changed from a person of motivation and confidence to a person who displayed considerable stress and unhappiness. I have no reason to think that that there was any other cause for this other than her employment."

Ms Millhouse said, in para 11 of her affidavit: "In the last two years of her employment at the Bank I observed and witnessed the changes in Mrs Garity's mental outlook and changes in her physical health. I observed that she was under a great deal of stress and anxiety and that she displayed considerable anger at the way she was being treated by her employer. On numerous occasions I experienced Mrs Garity having "hypo" attacks either at my home or her home or out on social occasions which I believe were directly related to the stress she was experiencing in her work environment. I had not experienced her having these type of attacks on a regular basis before these years".

In her oral evidence Ms Millhouse said: "She began to voice concern, roughly, I think, 3 - 4 years into her work. Things started sort of changing and I think that's probably when all the renovations started and she was starting to be moved around...."

Later Ms Millhouse said: "I think it would have been about 4 years into her employment when things started to sort of drastically go wrong and she was just fearing for her position because who else would employ her?" In para 8 of her affidavit Christine Laskey said: "I recall on several occasions my sister displaying stress and anxiety about her work conditions. When I discussed these attacks with her it was apparent that the attacks were brought on by the stress she was experiencing at work and not through her medical condition. I have lived with my sister's medical condition for a long time since she was nine years of age. In my opinion the attacks that she had and the deterioration of her health during this time was directly related to her working environment. Prior to her employment with the Bank Sally's condition was always more stable and she and her family could cope with the situation to the extent that she had a full and productive life. This clearly changed progressively during her time with the Bank. I observed that her attacks were more constant and pronounced if the stress at work was high".

In para 9 Ms Laskey said: "I recall my sister displaying considerable stress at the prospect of losing her job. She always felt uncertain about her security and this was related to the poor working conditions and relationships at work. She suffered terribly. During that time I felt inadequate in trying to assist her".

During her oral evidence, Ms Laskey gave a clear and helpful account of her experience of her sister's problems over the relevant time. She said:

Whenever the complainant and I got together, which was quite often, she would always start talking about the Commonwealth Bank.... She would start to get upset (having related the latest humiliation). She would go very pale, she would break out in a sweat, she'd start to shake. I used to get upset because she was upset....it got to a stage where we had an agreement that she wouldn't talk about the Bank it was just too upsetting ... then next time we got together it would come back to the Bank again. There was a continual cycle of Sally being upset and me listening to what she had to say....Sometimes it would progress to an anxiety attack, when you could see it coming on. And there were times when she would have full blown anxiety attacks which again are not very nice.

The complainant is a fairly outgoing person and just seemed to become more and more unhappy, more and more uncertain of what was expected of her....It became a constant litany... "don't panic but"...over every conversation. She was just very unhappy. She was having lots of "hypos" - it's endemic with diabetes. She was having those constantly. She was upset over that, because she couldn't work out why she was having them. She was doing all the right things. They became fairly regular. The anxiety attacks became more pronounced. She was pretty much anxious all the time....It was just never ending. She was always very tense, very upset. Filled with frustration's of the Bank. It was always the Bank.

8.2 The Professional Evidence

8.2.1 The clinical psychologist - Rosemary Laver

Ms Laver reported on 3 May 1996 that the complainant was referred to her by Dr Hughes in February 1996. She first saw her on 21 February 1996. At that time, Ms Laver found the complainant to be extremely tense, anxious and over controlled. The complainant said that she had been away from work for six weeks "to try and get on an even keel" insofar as her health and her capacity to cope were concerned. The complainant admitted to being particularly anxious about her health as her blood pressure was raised, her diabetes was not controlled and her diabetic retinopathy had worsened, as a result of this. The complainant said that, prior to going off work, she had felt very stressed, was continually tired and had concentration difficulties. She reported that the stress she had been experiencing had resulted in her having two very bad hypoglycaemic attacks in a row at work followed by three attacks at home, and it was after these that her doctor had placed her on leave. He had subsequently prescribed an anti-depressant medication which she was then taking, which she said was "helping" her.

The complainant outlined to Ms Laver her principal complaints against the Bank. She said that, because of the unsatisfactory working conditions, she had found herself experiencing increasing sleeping difficulties and becoming increasingly, anxious about the fact that she "mightn't sleep". In relation to her anxiety, which was compounded by her concern about her health, the complainant reported that she had experienced "anxiety attacks" during the previous four weeks. She said that they resembled "hypos", which further added to her anxiety. The complainant said that, most of the time, she felt "pumped tight and that at times (her) breathing was shallow". She admitted that she had not been particularly confident because of her visual impairment, but had become increasingly less confident and felt as if she was "floundering in the dark". She described becoming more and more introspective and self critical and admitted to feeling guilty, seeing it as her "own fault because (she) had not been able to stand up for (herself).... And had let it go on for so long".

She admitted to "beating" herself for not having coped. She said she felt increasingly angry about the unfairness of it all and also said she had bottled these feelings.

The complainant reported developing difficulties in managing her health conditions and, as well, said she had experienced an increasing number of "sweats" unrelated to hypos, tension headaches, knots in her stomach and bouts of diarrhoea. She also admitted to experiencing concentration difficulties, short term memory problems, "fuzziness" in the head and extreme fatigue. She said she had noticed that if she was required to cope with a lot of stimulation she became even more "knackered". She admitted that when she thought of work she experienced strong feelings of avoidance and a heightened fear at what her work would do to her health, particularly as her normal self care regime was no longer working for her. In so far as self care was concerned, she had previously benefited from regularly using an exercise bike, general relaxation and meditation.

Ms Laver was of the opinion that the complainant was demonstrating a chronic stress reaction, with the co-morbidities of anxiety and depression.

On the balance of probabilities, she was of the opinion that these conditions were related to:

1. The stresses of her employment as described in Ms Laver's report. Ms Laver noted that the relocation of the switchboard work station did not accommodate her visual impairment, thereby increasing her anxiety and her feelings of being "unsafe".

2. Ms Laver noted that the complainant's feelings of isolation were increased by her lack of inclusion/involvement in bank procedure, including normal updates regarding changes, as well as the Bank's failure to provide her with ongoing training opportunities.

3. Ms Garity's vulnerability to an adverse reaction to these pressures was obviously increased by her prior health problems. In Ms Laver's opinion the Bank should have accommodated her disabilities, as they employed her in full knowledge of these.

4. Ms Laver felt that it was clear that the active stressors in the work situation impacted negatively on the complainant's underlying health problems, exacerbating her difficulties in managing these, thereby increasing her vulnerability to a stress condition.

Ms Laver felt that the complainant's mental condition had been caused by an interplay between work conditions and her previously existing visual disability. Ms Laver also felt that the complainant's employment had clearly aggravated her diabetic condition, thereby accelerating her related condition of diabetic retinopathy.

Ms Laver advised that the complainant's mental condition rendered her unfit to return to work at that stage. Ms Laver felt the complainant's cognitive symptoms; that is, short term memory problems, concentration difficulties and slowed capacity to process complex stimuli and incoming information, as well as her easy fatigue ability, significantly compromise her capacity to function in the workplace. Ms Laver felt that the cognitive difficulties were being exacerbated by the complainant's easily mobilised anxiety and associated strong feelings of avoidance at thoughts of her workplace.

Ms Laver expressed the view that additional stress exacerbates management difficulties associated with her diabetic problems.

Ms Laver recommended that the complainant have ongoing counselling, the utilisation of cognitive behavioural techniques and the provision of additional stress management strategies. Ms Laver was unsure as to an appropriate time frame for the treatment. As the complainant's treatment was still in the active phase, Ms Laver was unable to provide an accurate prognosis with regard to her mental condition.

Ms Laver wrote to Comcare Australia on 4 August 1997. She advised that she had been treating the complainant. In the process she had become aware of the complainant's physical deterioration. She expressed the view that this deterioration had been largely accelerated by the complainant's stress condition.

Ms Laver was writing to Comcare because she understood that Comcare's then recent decision to stop payments to the complainant was based on the premise that her physical condition rather than her stress condition was preventing her return to work.

Ms Laver advised that, throughout the consultations she had with the complainant, she had formed the view that the complainant was coping extremely well with the discipline of managing her physical condition.

In contrast to that, Ms Laver observed that the complainant still experienced immediate emotional reactivity at the thought of the Bank. She had been unable to resolve her anxiety in this regard and was still demonstrating an immediate and genuine phobic response.

Ms Laver therefore advised that Ms Garity's emotional and, therefore, physiological response remains sufficiently intrusive to prevent her achieving a successful work return, over and above any practical difficulties her physical condition may present. Ms Laver also drew attention to the fact that it is possible to be reliant upon dialysis and also be employable. Ms Laver asked Comcare to reassess their decision on the grounds that the psychological factors extant before her physical deterioration remain the same.

8.2.2 The eye specialists

Dr Treplin has been caring for the complainant for many years. He reviewed her condition on 30 November 1994 and issued a report dated 5 December 1994 (Exhibit C10). In the report Dr Treplin described the then current situation: "Her right vision is reduced to detection of hand movements and her left to 6/36 distance and reading N5 print size with difficulty". Dr Treplin advised that her diabetic eye disease was under control but she was developing atrophy of the retinal pigment epithelium at the left macula which was the cause for her recent reduction in vision. Dr Treplin expressed the hope that this would stabilise at the current level, but there may be progressive deterioration, although she would retain peripheral vision indefinitely. Dr Treplin also reported that the complainant was developing lens opacities in both eyes.

Dr Treplin described the complainant as always highly motivated and courageous concerning her eye condition. He felt she should be visually capable of continuing her job as a switchboard operator if attention could be given to the positioning of equipment such as to capture the most incident light.

There is a further report by Dr Treplin dated 7 May 1996 (Exhibit C21). In that report Dr Treplin advised that he had most recently reviewed the complainant on 2 May 1996. His findings were: "Her vision is reduced to detection of hand movement in her right eye and 6/18 in the left eye although with reading glasses she is able to read normal size reading print with the left eye".

Dr Treplin described the then current situation as fairly stable, which it had been for the previous 18 months. Dr Treplin reported that, throughout the period he had known her, the complainant had exhibited considerable determination in struggling to maintain a normal life and work.

Dr Treplin advised that her left intraocular pressure had been mildly elevated, but this was being controlled by treatment.

Dr Treplin's report concludes with the following paragraph: "The eye condition is directly related to her diabetes and while her work will not have any causative or exacerbating effects on her eye condition, it is apparent that she gets severely stressed when attempting to cope with her severely limited vision resulting from the diabetes."

The most recent report by an eye specialist is from Dr Taranto (Exhibit C21). It is dated 17 April 1998. Dr Taranto advised that he examined the complainant on 17 March 1998. After stating the history of the eye condition, Dr Taranto noted that the complainant's vision had deteriorated since she joined the Bank in 1989, and her diabetes progressed so that she had been on renal dialysis for the past 12 months.

Dr Taranto noted the complainant's basic complaint against the Bank. He then continued: "She feels that the increasing stress associated with lack of cooperation at work has had a detrimental effect on her diabetes control, and has been responsible for progressive worsening of her general health and her vision as a result".

Dr Taranto reported on his examination of the complainant. He found "visual acuity with glasses was right hand movements at 1 metre and Left 6/24. With reading glasses, her left eye reads N6 partly and with difficulty. Bilateral lens opacities were evident, and her fundi showed bilateral optic atrophy with diabetic retinopathy and macular degeneration. Multiple scars were evident from previous laser photocoagulation".

Dr Taranto's diagnosis was: "(1) Bilateral cataracts (2) Bilateral diabetic retinopathy with optic atrophy and macular degeneration."

Dr Taranto's report then gives his opinion in the following terms:

Mrs Garity's visual problems are a direct result of diabetes. Retinopathy is a common result of diabetes, and is usually present some 10 - 15 years after the onset of diabetes. The severity of retinopathy is related to several factors including the duration of diabetes, and rigid diabetic control is essential in retarding the progression of diabetic retinopathy. Factors which aggravate the diabetes will generally aggravate the onset and severity of retinopathy. Stress, especially emotional and mental, can cause marked fluctuations in blood sugar, with resultant aggravation of diabetes and other diabetic complications including retinopathy.

Dr Taranto's prognosis reads as follows: "Mrs Garity's right eye is virtually sightless. Her left vision is reduced to about 25 per cent of normal. This is due largely to macular changes, but may deteriorate especially if her cataracts progress".

Dr Taranto's report presents the following summary: "In summary, Mrs Garity's eyesight and ocular condition are a direct result of her diabetes, and work related stress (by aggravating her diabetes and upsetting her diabetic control) may well have contributed to the progression of diabetic complications including her eye problems".

8.2.3 The endocrinologists

Dr Greenaway in a report to Comcare dated 13 May 1996 (Exhibit C21) said that it is generally accepted that emotional or physical stress can interfere with blood sugar control in diabetic patients.

In a further report dated 26 July 1996 (Exhibit C21) Dr Greenaway said: "It should be stressed, in the context of Sally's claims against the Commonwealth Bank, that it has been well shown that poor glycaemic control leads to the development and progression of diabetic complications such as eye and renal disease. Whilst her stress did not cause her diabetes, it is entirely possible (indeed likely) that her diabetic control has been poor for some time and this has been aggravated by the stress associated with her work situation. In this regard, I would agree with Dr Hughes' comments that her mental state had been affected by work related stress...."

Dr John Burgess submitted a report dated 20 April 1998 (Exhibit C21). He advised that prevention of progression for established complications of diabetes, particularly nephropathy, relates to meticulous control of both blood sugar and hypertension. He found it difficult to quantify the level of control achieved in both these areas prior to the involvement of Dr Greenaway in Mrs Garity's management. In particular, there was little evidence documented in relation to these parameters during the period in question. Notwithstanding those comments, Dr Burgess found the following points pertinent:

Firstly, emotional distress and anxiety are associated with adverse glycaemic outcomes. The relative contribution played by such factors in the overall level of glycaemic control is difficult to quantify. However, it is often not possible to achieve adequate glycaemic control in patients with diabetes during periods of significant emotional upset. The most frequent manifestation relates to raised blood glucose levels, although hypoglycaemia is also a possible outcome.

Secondly, insulin-treated diabetes in general necessitates a regimented pattern of diet, exercise and work. Without such a program underpinning insulin treatment, the risk of both hyper and hypoglycaemia are increased. It is generally recommended that patients receive regular daily exercise, and regularly timed morning tea, lunch and afternoon tea breaks to facilitate their treatment. In general, this requirement should not impinge upon an insulin treated diabetic's capacity to perform well in the majority of occupations.

Given the above circumstances, Ms Garity's contention that her period of stress was associated with an adverse impact on blood sugar control is reasonable and consistent with known facts regarding diabetes and blood sugar control. It is not possible to apportion the component or extent to which the stress associated adverse effect on blood glucose contributed to progression of existent complications of her diabetes, such as retinopathy and nephropathy. Nonetheless, to suggest that stress was associated with an element of these complications is reasonable.

8.2.4 The psychiatrists

Dr Sale saw the complainant on 12 June 1996. In the course of his report (Exhibit C21) Dr Sale said:

Unfortunately, conditions such as diabetes can be adversely affected by outside stresses. It seems likely this has occurred in Ms Garity. As time has passed, and the situation worsened, she has increasingly come to see the Bank as having been the cause of her decline in health. Undoubtedly, her general medical condition and the prognosis it carries would also be a cause of stress to her, a cause of depression and anxiety about her future. Notwithstanding this, the treatment she has received from the Bank appears to have been insensitive, and has substantially added to her difficulties.

Dr Sale then answered a series of questions put to him by Comcare:

1. Ms Garity suffers from an Adjustment Disorder with anxiety and depressive symptoms.

2. Her condition arises from multiple factors. A major factor was the relocation of the switchboard workstation. Other factors include her isolation within the organisation, and her perception of an unsupportive and disinterested management. Finally, her concerns about her illness and its outcome would undoubtedly also have contributed.

3. The employment has caused the condition.

4. While there are background factors contributing, the workplace has been the major cause of difficulties.

5. She is currently incapacitated due to continued anxiousness, emotional lability, and also due to the breakdown in her relationship with her employer.

6. She is totally incapacitated. I am unable to advise when she may be fit enough to return to work.

7. I have some doubts whether any planning for a return to work can be made while there is still a dispute situation.

8. The deterioration in her general health status may act to impede her return to work.

9. Current treatment approach is reasonable and appropriate, and according to Ms Garity, has been helpful. I suspect however that a return to the Commonwealth Bank may not be feasible. Consideration of alternative workplaces may need to be considered. Development of a suitable rehabilitation strategy may have therapeutic value to the worker.

10. There is no simple answer to the question of prognosis. Her prognosis for a return to the C.B.A. is not good. Prognosis for her physical health must also be guarded, particularly if hypertension is becoming an increasing issue. However, these are matters outside of my area of expertise and you may need to seek advice from Ms Garity's treating doctors.

Dr Michael Duke submitted a report to Comcare on 22 May 1997 (Exhibit C21). Dr Duke answered a series of specific questions as follows:

1. From what condition/s does Mrs Garity currently suffer?

From a psychiatric point of view, Mrs Garity suffers from an adjustment disorder with anxiety and depressive symptoms (DSM4, 309.28)

2. Please comment on the relationship between the current condition and the stated incident of 19/1/96.

There are a number of factors involved in Mrs Garity's psychiatric condition extending over a period of approximately three years. The incident of 19 January 1996 is not specific. Such events as failure of induction to the workforce, failure to keep her up to date, failure of fire safety training, not being notified of changes in personnel, as well as changes in the workplace which were not suited to her disability, giving her a perception of unsupportive and neglectful management, have all played a major role in her current condition. Secondly, her advancing diabetes, which interacts, with her feelings of stress, has been a further stressor for her.

3. It appears that Mrs Garity's adjustment disorder with anxiety and depression symptoms were caused by a series of incidents at CBA. Considering she has now been away from this stressful environment for some time, are her current problems related to her compensable condition?

There is no doubt that Mrs Garity is significantly better than when seen by Dr Sale in June 1996. However, there is an outstanding Human Rights Commission case under way at the present time and Mrs Garity continues to display marked distress when the original issues are raised.

4. Is Mrs Garity's pre-existing hypertension related to her stress/anxiety condition?

The most likely cause of her hypertension is her insulin dependent diabetes. Stress related hypertension is a questionable concept and, in any case, it would be labile hypertension rather than a steady one.

5. I note from Mrs Garity's submission of 2/4/96 that she suffered "hypos" (hypoglycaemic reactions) as a result of the stressors at work. Psychiatrist, Dr Ian Sale, in his report dated 17/6/1996, p.3, para 3, said that Mrs Garity suffered symptoms of impaired sleep, anxiety attacks and moodiness. Is/are the "hypos" related to the aforementioned symptoms? If not, is it purely attributable to the management of Mrs Garity's diabetes?

The interaction of stress and diabetic control is a complicated one. There is no doubt that, when a person is placed in ambivalent situations, or in situations causing powerful emotions, this can affect the free fatty acids and their level of diabetic control, either with the onset of hypoglycaemic or hyperglycaemic episodes. As a separate outcome of psycho-social stressors, impaired sleep, anxiety attacks and moodiness can also arise. That is to say, both the impaired diabetic control and the symptoms of an adjustment disorder can have a common predisposing cause, ie stressors in the workplace or elsewhere.

You comment in relation to the poor management of Mrs Garity's diabetes. This has not been demonstrated. As Dr Greenaway notes, "There is a lack of any records of glycosylated haemoglobin levels, which makes an assessment of the adequacy of her diabetic control, prior to review in July 1996, quite difficult".

6. Is the work related component of Mrs Garity's condition causing incapacity or work restrictions? If so please provide details.

Mrs Garity current incapacity is caused by a number of factors. It will be noted that she is having peritoneal dialysis four times daily, she is awaiting a renal transplant, and possible a pancreatic transplant which may or may not be successful. She now has markedly deteriorated vision, and her hypertension has escalated. I consider that these are significant causes of incapacity and restriction, apart from her psychiatric condition.

7. Is Mrs Garity currently totally incapacitated due to her compensable condition? If yes, please advise when she is likely to be fit enough to return to work.

I consider that Mrs Garity is currently totally incapacitated for work, but not due to her psychiatric condition. It is my view that her fatigue, dialysis requirements and deteriorated medical state preclude a return to work at this time.

8. When Mrs Garity has recovered sufficiently to return to work, should her return to work be graduated? etc.

In my opinion, any consideration of a return to work should be postponed until after Mrs Garity's renal transplant. It is my view that the outcome of the current Human Rights Commission hearing will have no bearing on her ability to return to work at this time.

9. Mrs Garity has been receiving psychological treatment for some time. Do you feel this treatment has been of benefit for her compensable condition?

I consider that Mrs Garity's psychological treatment has been of benefit. She has a reportedly good relationship with her psychologist and there has been a noticeable improvement in her psychiatric condition since the assessment by Dr Sale. It is my view that this treatment should continue.

10. What if any, treatment would you recommend for the conditions currently suffered by the claimant? Etc etc.

Mrs Garity's adjustment disorder, with anxiety and depressed mood, requires continual psychological counselling from her current psychologist, and I consider that continued attendance at her general practitioner is also essential.

11. When did or will the injury of 19/1/96 cease to be a significant factor in Mrs Garity's ongoing difficulties? Alternatively, when are the effects of these conditions likely to cease? Please give a like future for the injury.

I am unable to make a definitive statement in relation to when the injury of 19 January 1996, and preceding that date, will cease to be a significant factor.

12. Has the employment component of Mrs Garity's claim ceased?

Not at this stage.

13. What is Mrs Garity's prognosis?

The prognosis for her diabetes is that it is a lifelong condition, and she is now legally blind and awaiting a renal transplant, which may or may not be successful.

In terms of her psychological condition, the adjustment disorder, with mixed anxiety and depressive symptoms is on the mend and I would suggest a review in possibly a further 12 months time.

Dr Isles wrote a report to Dr Hughes dated 29 August 1997 (Exhibit C21). Dr Isles noted that the complainant's difficulties had escalated recently since Comcare had withdrawn financial support.

Dr Isles found no evidence of morbid psychiatric illness or personality disorder. It seemed to him that the complainant had come to terms with the restrictions imposed by her long standing diabetes and the loss of vision which has followed. Dr Isles was impressed with the maturity and stability of her outlook and how well she had taken the latest setback in her stride; that is, being faced with kidney failure. Dr Isles found that she showed courage and fortitude in her adjustment to the physical problems involved. Dr Isles understood that the renal unit was more than satisfied with her progress on dialysis. Dr Isles was clear that there was no reason to suppose that any of these physical conditions would prevent her from undertaking her normal duties.

Dr Isles found, on examination, significant elements of chronic stress disorder. It seemed that the acute distress resulting from this condition had diminished. Dr Isles said that one would expect it to have been alleviated, seeing that she was no longer at work and, therefore, removed from the original stressors. In addition, Dr Isles understood that she had also been in regular constructive therapy with a psychologist highly qualified in that area. Nevertheless, Dr Isles felt that it would be naive in the extreme to think that merely because the signs of the psychological decompensation (sic) had decreased, the emotional condition is somehow no longer the major factor in the patient's inability to return to work.

Dr Isles was firmly of the opinion that, faced with a compulsion to return to her previous position, Mrs Garity would experience a rapid return of florid symptoms associated with acute anxiety. This would immediately render her again unfit to continue her duties. Dr Isles felt that, in this regard, it is important to realise how fragile the present degree of stability is and, consequently, how such a requirement could pose a very real threat to her life. Dr Isles believed that the decision of Comcare to withdraw funding was based on a misunderstanding of psychological problems and an inadequate awareness of the true seriousness of this particular condition.

Dr Isles said that he had explained to her that he was prepared to assist with further treatment which he believed should be undertaken in cooperation with her present therapist. However, it seemed to him that a process of rehabilitation and adequate support were the most important requirements at that stage.

On 20 June 1996, Dr Paul Hughes made the following points in a report to Comcare (Exhibit C21):

1. He saw the complainant during November and December 1995 with symptoms of anxiety and depression. Medication was prescribed.

2. Despite improvement, she remained anxious and unsettled. This culminated in her being unable to work as from 19 February 1996.

3. Dr Hughes felt that her mental state was related to a number of work issues (which he specified).

4. Anxiety had been a problem in the past, but, prior to the current problem, she had been essentially mentally well since 1991. There has been long standing concern about the extent of diabetic (eg visual problems), but Dr Hughes felt that any of these background issues had been minor compared to the work issues. Dr Hughes felt that the work problems had created stresses which had affected her diabetic control and led to intermittent hypertension. Dr Hughes said that he was unable to put a percentage on the amount of deterioration due to her employment.

5. Ms Garity's mental state continued to cause her incapacity to work. He found that she was unable to concentrate with anxiety easily triggered.

6. Dr Hughes said that, in view of the recently recognised renal problems, continuing visual problems and her current mental state, he felt that she may not be able to return to the work force.

8.3 A response to that evidence

The Commission will take the traditional approach to the task of assessing compensation. That is, it will base itself on the practice of the courts in assessing damages for personal injuries suffered as a result of tortious conduct. It will, therefore, consider three aspects of the problem separately but bearing in mind that they tend to overlap and represent only three aspects of the one question. That question is: what figure represents fair and just, but not perfect compensation; what is a fair and just figure for the respondent to pay and the complainant to receive?

8.3.1 Pain suffering and loss of amenities

It is established that the complainant has suffered from a condition classified as "an adjustment disorder with anxiety and depressive symptoms (DSM 4, 309.28)." It is established that that condition was caused by breaches by the respondent of the Act. Feelings of anxiety about her health, due to her long standing diabetic condition, contributed to the illness, but the respondent must take the victim of their unlawful conduct as they find her. This psychiatric condition proved to be a serious one. The Commission is satisfied that the complainant suffered severely. It is notorious that depression and anxiety can cause severe suffering, and they did in this case, as the evidence outlined shows. The evidence dealing with her condition in 1994 is particularly striking. The evidence has been summarised and, hence, examples will be kept to a minimum:

1. Three attacks in one day which "threatened health".

2. In August 1994 repeated "hypos" and anxiety attacks.

3. Hypo reactions escalated (in the period September to December 1994) feared for health and life.

4. Frequent hypo reactions with a great deal of medical care.

The evidence shows that her diabetic condition deteriorated as 1994 progressed. This was due, to a substantial degree at least, to the stresses experienced at work. Visits to the doctor became more regular at this time. In the period June to December 1994, Mr Garity noticed a deterioration in his wife's health and mental state. He found that she experienced many diabetic reactions. She hated work.

In the period November 1994 to the end of 1995, reliable witnesses noticed a personal deterioration in her. She lived in fear of losing her job and there was a chronic deterioration in her health. She could not function, either at home or at work. A serious aspect of the matter is that, from the middle of 1994, it was noticed that she had lost her ability to socialise and converse adequately. Previously, she had coped well with those things.

Her sisters have a clear understanding of her diabetic problems and her mental problems. They describe a person who had her diabetic condition under control and was living a full, happy and productive life. But, during her employment, she changed from a well motivated and confident person to a state where she showed considerable stress, anxiety, unhappiness, anger and frustration, accompanied by "hypo attacks" and anxiety attacks. The change was described as a progressive one over the period of her employment. She was described as having suffered "terribly". Her conversation was dominated by her problems at the Bank. She would relate the latest "humiliation", go pale, break out into a sweat and shake.

Her friend of long standing, Ms Millhouse, spoke of things going "drastically wrong four years into her employment".

The complainant's psychiatric condition was very bad when she went on sick leave on 19 February 1996. She spoke of "an overwhelming sense that she could not go on". The complaints she made to the psychologist at that time certainly bear out that she could not go on. At that time the complainant was extremely tense, anxious, over controlled, particularly anxious about her health. She was experiencing increasing difficulty sleeping and would get anxious about whether she would get to sleep. The complainant described herself as "pumped tight most of the time" and, at times, her breathing was shallow. At the time the complainant spoke of declining confidence, being increasingly introspective, increasingly angry and troubled by feelings of self criticism and guilt. She had problems at that time with an increasing number of sweats. She also experienced tension headaches, "knots in the stomach", diarrhoea, concentration difficulties, extreme fatigue and short term memory problems.

Her psychiatric condition has improved with treatment, Dr Isles' report shows that there was a need for further treatment at the end of August 1997. Dr Isles' report is the most recent of the psychiatric reports. The Commission does not know whether the further treatment recommended by Dr Isles, assuming it was undertaken, was successful. The Commission notes that Dr Burgess, the endocrinologist, reported: "It is apparent from my discussion with her on 16^th April 1998 that her above mentioned employment was, and continues to be, a source of emotional upset". What Dr Burgess noticed was also apparent at the hearing of this complaint.

As 19 February 1996 recedes further into the past, it becomes increasingly difficult to accept that a phobic reaction to the respondent, and thoughts of the respondent, should be accepted as justly grounding a claim for compensation. The burden of proof is on the complainant and the complainant has not produced any psychiatric report with a date later than 29 August 1997. That being so, in all the circumstances, the Commission considers that it is reasonable to treat the psychiatric illness as ceasing to be significant after 31 December 1998. If a later date is appropriate, that was a matter for the complainant to prove.

The respondent's responsibility for the aggravation of kidney disease and eyesight problems must also be noted under this head, it being a factor in the pain and suffering of the complainant.

8.3.2 Effects of the unlawful conduct on the physical condition of the complainant

Eyesight

A useful exercise is to compare the state of the left eye at various relevant dates. The right eye can be left out of account in the present discussion because, at all relevant times, it was either blind or practically so. On 4 December 1989 there was, according to the complainant's affidavit, 40 per cent sight in the left eye, although the function of it was said to be lessened by focal and peripheral considerations. On 30 November 1994, "her current situation is that her right vision is reduced to detection of hand movements and her left to 6/36 distance and reading N5 print size with difficulty" (Dr Treplin). On 2 May 1996 "6/18 in the left eye although with reading glasses, she is able to read normal size reading print with her left eye" (Dr Treplin).

It was stated "visual acuity with glasses was Right hand movements at 1 metre and Left 6/24. With reading glasses her left eye reads N6 partly and with difficulty" (Dr Taranto 17/3/98). Later in his report Dr Taranto said "Her left vision is reduced to about 25 per cent of normal".

Thus, there appears to be a reduction of about 15 per cent in her left vision from 4 December 1989 to 17 March 1998. The reports by the eye specialists show that this is a serious loss for a person with only 40 per cent sight in one eye, at the commencement of her employment with the Bank. It will be noted that, tested with reading glasses, she was able to read normal size reading print with the left eye (2/5/1996 Dr Treplin). But, on 17 March 1998, also tested with reading glasses, her left eye could read N6 partly and with difficulty (Dr Taranto).

There has been a substantial loss of vision in the left eye. That loss is a direct result of the diabetes (Dr Taranto). But Dr Taranto said: "In summary, Mrs Garity's eyesight and ocular condition are a direct result of her diabetes and work related stress (by aggravating her diabetes and upsetting her diabetic control) may well have contributed to the progression of diabetic complication including her eye problem". Dr Taranto's view about the significance of work related stress is supported by other medical reports. The evidence as a whole points to the following passage in Dr Taranto's opinion: "Stress especially emotional and mental can cause marked fluctuations in blood sugar with resultant aggravation of diabetes and other diabetic complications including retinopathy".

The evidence as a whole shows that marked fluctuations in blood sugar did occur. The correct finding is that it is more probable than not that those marked fluctuations in blood sugar aggravated the diabetes and other diabetic complications including retinopathy.

Kidney disease

The following passage from Dr Burgess, is accepted:

Given the above circumstances Mrs Garity's contention that her period of stress was associated with an adverse impact on blood sugar is reasonable and consistent with known facts regarding diabetes and blood glucose control. It is not possible to apportion the component or extent to which the stress associated adverse effect on blood glucose contributed to progression of existent complications of her diabetes such as retinopathy and nephropathy. Nevertheless to suggest that stress was associated with an element of progression of these complications is reasonable.

There is also the following supporting passage from Dr Greenaway: "Whilst her stress did not cause her diabetes it is entirely possible (indeed likely) that her diabetic control has been poor for some time and this has been aggravated by the stress associated with her work situation".

The finding is that it is more probable than not that stress was associated with an element of progression of the nephropathy.

The position is, then, that it is more probable than not that the stress resulting from the unlawful conduct of the respondent was associated with an element of progression of the nephropathy and retinopathy. This being so, it was associated with an element of progression to a really serious physical condition, namely kidney failure and a substantial reduction in the 40 per cent sight left in only one eye, the other eye being practically sightless.

There is an apparent conflict between a passage in Dr Treplin's report of 7 May 1996 and Dr Taranto's report. Dr Treplin said "The eye condition is directly related to her diabetes and while her work will not have any causative or exacerbating effect on her eye condition....". The Commission took into account when considering this passage that Dr Treplin has been the complainant's treating doctor for some years. However, no later report by him was produced. But, in the end, Dr Taranto's view was accepted. It was not challenged by cross-examination and is corroborated by other medical evidence.

8.3.3 Economic Loss

Loss of wages

Ms Garity was paid full wages for 45 weeks. Therefore, there was no loss of wages until 30 December 1996. Since that date Comcare has paid 75 per cent of her salary, and that was continuing when the hearing of the evidence was completed. The Commission assumes that it was continued at least until 31 December 1998. (But whether it was, in fact, of course, was a matter for others). Using the calculation the Commission was given at the hearing, with an adjustment for an admitted error and also for an extension of the period, the result is a lost of $13,500 gross, before tax (in round figures).

Loss of opportunity

To calculate the complainant's loss of opportunity arising from the respondent's actions, one must assume what the outcome would be if the respondent had treated the complainant at all relevant times in accordance with the relevant EEO principles and, in particular, had complied with the Act from the commencement of the relevant provisions on 1 March 1993. The complainant went into the employ of the respondent in December 1989 with diabetes and, speaking generally, only 40 per cent sight in one eye, the other eye being practically blind. She was a person of strong and determined character, good background, above average intelligence and strongly motivated to do well. She had done a commercial course after leaving school and had a typing speed of 50 wpm. Her work at Rottnest Island, and other evidence showed that she was a person with the ability to discharge a responsible role with dignity, resourcefulness and strong commitment. On 4 December 1989 with the aid of reading glasses, she could read normal size reading print.

There is little to guide one as to the likelihood of her succeeding if she had been treated as the relevant principles required. However Exhibit C8 is helpful. The complainant's personality was such that she would also have been an impressive officer in an appropriate sales area. The evidence does not provide much guidance as to the additional rewards which would have been available to her had she been given a reasonable chance. But there is Exhibit R12 which supplies one with some sort of a base.

The Commission must now apply the relevant law. In Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 642-3, Deane, Gaudron and McHugh JJ said:

If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than one per cent - or so high as to be practically certain - say over 99 per cent - the court will take the chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring and to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.

In Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 Mason CJ, Dawson, Toohey and Gaudron JJ at 355 said:

Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value) the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

Applying the principle of law contained in the two cases just cited, the Commission proposes to add in a figure of $5,000 for loss of opportunity.

An exhaustive study of the evidence supports the view that the complainant was well equipped to succeed at the Bank. An employer, obeying the law, could have enabled her to function adequately notwithstanding the vision problem.

The future

There is some difficulty on the following point but, nevertheless, the conclusion is that, assuming the complainant does not have a successful kidney transplant, it is more probable than not that she will not work again. One accepts, without hesitation, the expert medical evidence to the effect that people can work while on dialysis. At one stage (see Dr Duke's report) the complainant was receiving dialysis treatment four times daily. It is, surely, a daunting task to undergo that treatment and also discharge the duties of a responsible job. The detailed evidence about the complainant's condition points to some serious considerations. She had a history of hypertension and unstable blood sugar levels. The evidence points clearly to the serious harm unstable blood sugar levels can cause. If she attempted to work, the complainant would run the risk of stress destabilising her diabetic control. There would be the risk of stress arising from combining treatment and work and stress arising from a reasonable concern that history may repeat itself, by the diabetic condition getting out of control again. Reference should be made, again, to the serious concerns which Dr Isles expressed about a return to the Bank. One realises that the doctor was discussing a proposition which is not the same as the one now under consideration and, of course, he was speaking at a much earlier time. But, faced with such heavy demands, the complainant's body may react in the same way as it did previously. Generally speaking, it is unwise to accept even a small risk of grave harm. Her doctor, Dr Hughes, expressed the view that she would not return to the workforce although, admittedly, at a much earlier time. There is also Dr Duke's view that "in my opinion, any consideration of a return to work should be postponed until after Mrs Garity's renal transplant". It should be noted, however, that the complainant said in evidence "If I am able to, I wish to return to my duties as a telephonist Commonwealth Bank".

The Commission does not have any expert evidence instructing it on the chances of the complainant having a successful kidney transplant. A pancreatic transplant was also mentioned, as a possibility, at least. The Commission does not have evidence of the success rate of such operations. It does not have evidence on the question whether a certain medical history, for example, hypertension, may lessen the chances of success. On the evidence, the Commission is not in a position to say whether it is probable that the contemplated operation, if undertaken, will be successful. The Commission can say that, if there is a successful transplant, the probability is that the complainant will attempt to rejoin the workforce and may well succeed.

The evidence shows that, if the respondent had complied with the Act, the probability is that the complainant would not have been in her present plight as soon as she was. In using the expression "present plight" the Commission is adverting to the kidney failure and 15 per cent reduction in the sight of a one eyed person, whose previous sight is what we know it to have been. But, the natural progression of the underlying diabetic condition would probably have brought her to that state at some stage. It is not possible to say at what stage.

Under this heading, economic loss, the Commission must make some allowance for loss of income earning capacity subsequent to 31 December 1998. Given the state of the evidence, this figure can only be assessed "in the round". A figure of $50,000 appears appropriate, it being assessed on the basis of a period of approximately two years.

The final step is to assign a range of figures under each head and then consider whether, overall, the result appears appropriate or, in other words, fits the evidence. The figures are:

1. Pain and suffering loss of amenities $25,000 - $30,000

2. Effects on physical condition $50,000 - $60,000

3. Economic loss

(i) Loss of opportunities $ 5,000

(ii) Loss of income earning capacity $50,000

4. Special damage $13,500

The Commission is convinced that, because of the unlawful conduct of the respondent, the complainant suffered really serious injury and loss. The recommended award will be $140,000 together with special damage at a gross figure of $13,500.

9. APOLOGY

There is a claim for an apology. It will not be granted. The real question is this: given the size of the award, and considering all the circumstances of the case, should the Commission require the respondent to tender an involuntary apology (if it wishes to tender a voluntary apology it is free to do so)? There are particular matters in the evidence which tend to support the view that this claim should be declined. One understands why the complainant refrained from drawing attention to her numerous problems while working at the Bank. But, if she had been more communicative, the respondent would have been in a better position to deal with the situation.

The declaration concerning unlawful conduct sought by the complainant, is also refused. It is unnecessary.

10. COSTS

The application for costs is refused. Although the decision in Australian Medical Council and Depart of Health (Cth) v HREOC (1996) EOC 92-838 concerns another piece of legislation, it should be accepted as applicable to this Act also. The relevant provisions appear to be in substantially similar terms. If this decision is wrong, which was suggested in argument, that is a matter for the Federal Court. The Commission's duty is to accept the decision of the Court.

There may well be another argument which supports the decision of the learned Judge. That is that the words of the relevant paragraph, empowering a Hearing Commissioner to make "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" should be seen as not extending to the granting of legal costs because, in common law countries, differing approaches have been taken on the subject of legal costs. In some circumstances, "no costs jurisdictions" are the result of the deliberate policy of Parliament. To say that Parliament did not intend the Commission to be a "no costs jurisdiction" constitutes a conclusion for which there is no satisfactory evidence. A consideration of Parliamentary practice in relation to this point suggests that damages and legal costs are two subjects which have been treated as separate areas of discourse. Considerations bearing on the question of granting an order for costs may not always be relevant to the awarding of damages, and vice versa. The denotation of the phrase "loss or damage suffered etc" should not be taken as extending to an award of legal costs.

Section 105, giving power to recommend to the Attorney General that assistance be given to a person in respect of "expenses incurred", is a power given to the Commission. It is not a power given to a Hearing Commissioner. The Hearing Commissioner's power to make a determination and decisions is dealt with in section 103, and not in section 105.

For these reasons there will be:

1. A finding that the complaint has been substantiated.

2. A declaration that the respondent should pay to the complainant $140,000, plus special damage at a gross figure of $13,500, by way of compensation for any loss or damage suffered by the complainant by reason of the conduct of the respondent, within 30 days of the date of the decision.

DATED AT HOBART THIS DAY OF 1999

______________________________________________

ROBERT NETTLEFOLD

HEARING COMMISSIONER