Perlidis v Brambles Security Services Limited Trading as Brambles Armoured [2003] NSWADT 11 (17 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Perlidis -v- Brambles Security Services Limited Trading as Brambles Armoured [2003] NSWADT 11

PARTIES: APPLICANT

Arthur Perlidis

RESPONDENT

Brambles Security Services Limited Trading as Brambles Armoured

FILE NUMBERS: 18 of 1998

HEARING DATES: 04/02/02 - 06/02/02, 02/04/02- 03/04/2002

SUBMISSIONS CLOSED: 11-07-2002

DECISION DATE: 17-01-2003

BEFORE: Britton A - Judicial MemberTaksa L - MemberClayton S - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Disability Discrimination Act 1992 (Cth)

Equal Opportunity Act 1995 (Vic)

Occupational Health and Safety Act 1983

CASES CITED: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

O' Callaghan v Loder [1984] EOC 92-023

Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031

Waterhouse v Bell (1991) 25 NSWLR 99

Commonwealth v Humphries [1998] FCA 1031

HR&EO Commission v Mt Isa Mines Ltd (1993) 118 ALR (at 102-3)

Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252

X v The Commonwealth (2000) CLR 177

Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12

APPLICATION: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

D Hollyoak, agent

ORDERS: 1. That the respondent pay the applicant the sum of $16,365 no later than 21 days from the date of this decision.

Reasons for Decision:

1 This decision concerns a complaint of unlawful discrimination on the grounds of disability in the area of employment. The complainant, Arthur Perlidis, alleges that his former employer, Brambles Securities Services t/as Brambles Armoured ("Brambles") (the respondent), subjected him to unlawful discrimination contrary to the provisions of s 49D of the Anti-Discrimination Act 1977 (the Act). The respondent denies this.

2 Mr Perlidis lodged a complaint with the President of the Anti-Discrimination Board ("the President") on 12 April 1996 alleging discrimination on the ground of disability. By letter dated 6 March 1998, the President referred Mr Perlidis' complaint, together with a report relating to inquiries made by the President ("the President's Report"), to the Tribunal under s 94(1) of the Act. He did so as he believed the matter could not be resolved through conciliation.

Background

3 Mr Perlidis commenced employment with Brambles on 27 July 1981 as a vault teller. He worked in that position for about 24 months and from May 1983 worked as, according to him, a "security guard" or member of a "car crew". There were usually three members assigned to each crew: a driver, an escort and a rear guard. Among other things, the crew were required to collect, transport and deliver cash, valuables and/ or payroll on behalf of the respondent's clients, who included banks, large employers, airports. Deliveries were made in armoured vehicles. Members of the car crew carried firearms.

4 In or about May 1990, Mr Perlidis injured his lower back at work, suffering a ruptured lower disc. The injury recurred in early August 1992 and he was off work for about two weeks. A further injury occurred in March 1993. It is common ground that this back injury constitutes a disability for the purpose of s 4(1) of the Act. (The injury also constitutes a "physical impairment" and Mr Perlidis was a "physically handicapped person" for the purpose of the Act, before the amendments, which came into effect on 8 August 1994 ("the former Act").

5 Mr Perlidis regularly worked significant amounts of overtime before he was injured in August 1992. He claims that from May 1993 to December 15 1995 the respondent implemented a policy that prevented injured workers, such as himself, from working "rostered overtime". This is denied.

6 Following his injury in August 1992 until his ultimate dismissal in 1996, Mr Perlidis saw various medical practitioners and rehabilitation consultants about his injury. In a medical certificate dated 9 August 1992, his treating practitioner, Dr Singer, certified him fit for light duties only. On 18 June 1993 he was certified unable to lift weights of more than 8 kilograms and it was recommended that he avoid bending, stooping and lifting. This advice was repeated in a certificate issued on 8 September 1993. On 14 November his treating doctor certified that his lifting capacity could be increased to 20 kilograms, increasing this to 22 kilograms on 19 December 1995 and 29 kilograms on 15 February 1996. In February 1997, Mr Perlidis was certified as "fit for modified duties" with no lifting over 28 kilograms.

7 Mr Perlidis was dismissed for the first time on 3 March 1995. An application seeking his reinstatement was filed in the New South Wales Industrial Relations Commission by the Transport Workers Union of Australia (TWU). Approximately six weeks later an agreement was reached, the terms of which were recorded in a letter dated 12 April 1955 from Brian Barrett, then manager of Brambles Security Services, addressed to Brian Lee, an officer of the TWU ("the reinstatement agreement"). That letter provided:

a. Mr Perlidis shall be employed at the Company's Beaconsfield Branch as an Armoured Vehicle Operator to undertake the functions of ATM Courier and ancillary duties. The rate of pay and other conditions applicable to this position shall be as set out in the Transport Industry Armoured Cars & C (State) Award and the Brambles Armoured Enterprise Agreement.

b. Mr Perlidis shall be expected to work as directed by supervisors or the Branch Manager within the range of duties of the above position and there shall be no restrictions imposed on his performance of work by the Transport Workers Union or its members.

c. The position offered to Mr Perlidis is not a light duties position but a set position available to him on the basis that:-

i. The Functional Capacity Evaluation of Mr Perlidis indicates that with "appropriate strengthening" that in time, Mr Perlidis should be capable of performing a broader range of duties and that this position will enable him to address these issues and

ii. that Mr Perlidis shall, subject to discussion and clarification with his own doctor, be expected to undertake a physical fitness program to meet the expectations of the Functional Capacity Evaluation. The cost of a reasonable fitness program shall be met by the Company however Mr Perlidis shall be expected to participate in that program in his own time and

iii. the position is available for a period of three (3) months until Friday 21st July 1995. The position shall be reviewed in the week leading up to 21st July with the aim of determining whether a more extensive position would be suitable to Mr Perlidis. Should it eventuate that Mr Perlidis continues at that time to be restricted to the duties set out in point 1 then it must be understood that it is most unlikely that an extension of that position would be available to Mr Perlidis.

iv. It must be recognised that the nature of the Company's business places an emphasis on employees being capable of performing the full range of tasks required. The Company's decision in relation to Mr Perlidis is very much influenced by the functional assessment that the restrictions on Mr Perlidis appear to be derived very much from his level of fitness and conditioning and therefore are capable of correction.

v. The Company appreciates that opportunity of resolving this issue through discussion and believes that the agreement provides a good basis for Mr Perlidis to return to the workforce.

8 Mr Perlidis did not immediately commence the fitness program referred to in Mr Barrett's letter because of travel difficulties. (The respondent's nominated gym was in Mascot and Mr Perlidis lived in Leura.) Discussions ensued and in June 1995 Mr Perlidis commenced the program and was given two days off work each week to attend the gym.

9 In July 1995 Darren Peake, Brambles' Beaconsfield Branch Manager, wrote to Mr Perlidis advising that because of the difficulties with commencing the gym program he had decided to extend the reinstatement agreement for a further three months. This was notwithstanding that Mr Perlidis remained unfit to resume his pre-August 1992 duties. By letter dated 11 October 1995, Mr Peake advised that while further rehabilitation had not enabled Mr Perlidis to return to his former duties, the rehabilitation period was extended for a further six weeks on the basis of the "slightly more optimistic" medical prognosis.

10 Mr Perlidis was finally dismissed on 16 February 1996. In a letter of that date Mr Peake wrote: "As all efforts at rehabilitation have met with limited success when combined with no certain prognosis for future return to work I am left with no alternative than to terminate your employment effective immediately."

11 Subsequently, Mr Perlidis made a claim under the Workers Compensation Act. That claim was settled on 12 November 1997, that claim was settled. Under the terms of that agreement, Brambles was to pay Mr Perlidis the sum of $42,500 calculated as follows: $43.46 per week from 5 March 1993 to 30 June 1993 increasing to $303.98 for the period 1 July 1993 to 16 February 1996.

Points of Claim

12 Points of claim were filed in this matter setting out nine allegations, which can be broadly summarised as follows:

i. Restrictions on access to overtime;

ii. Termination of employment on 16 February 1996;

iii. Threats to terminate Mr Perlidis' employment;

iv. Denial of access to light duties following injury in August 1992;

v, Refusal by the respondent's officers to acknowledge Mr Perlidis'injury and provide appropriate rehabilitation services;

vi. Comments by Mr Peake, questioning the veracity of Mr Perlidis' claims about his injury;

vii. Failure by respondent to offer position within Total Service Solutions (TSS);

13 Mr Perlidis seeks $40,000 in damages.

Relevant legislative provisions

14 The complaints referred to the Tribunal by the President span the period August 1992 to February 1995. The Act was amended during that period, and some of the amendments are relevant to the complaints before us. It is therefore necessary to examine the relevant provisions that were in operation before and after 8 August 1994.

Pre 8 August 1994

15 The terms "physical impairment" and "physically handicapped person" were defined in s 4(1) of the Act as follows:

"'[P]hysical impairment', in relation to a person means any defect or disturbance in the normal structure and functioning of the person's body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment."

"'[P]hysically handicapped person' means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life."

16 Sections 49A(1) and (3) provided:

"49A (1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of -

(a) his physical impairment;

(b) a characteristic that appertains generally to persons having the same physical impairment as the physically handicapped person; or

(c) a characteristic that is generally imputed to persons having the same physical impairment as the physically handicapped person;

he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person.

. . .

(3) A person discriminates against a physically handicapped person on the ground of his physical impairment if he requires the physically handicapped person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons who are not physically handicapped persons comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the physically handicapped person does not or is not able to comply."

17 Section 49B(2) provided:

"49B (2) It is unlawful for an employer to discriminate against an employee who is a physically handicapped person on the ground of his physical impairment -

(a) in the terms or conditions of employment which he affords him;

(b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

(c) by dismissing him or subjecting him to any other detriment."

18 Section 49L provided certain exceptions for conduct that would otherwise constitute discrimination on the ground of physical impairment. Section 49L(2) provided:

"49L (2) Nothing in . . . section 49B(2)(a) or (b) . . . renders unlawful discrimination by an employer, principal or person against a physically handicapped person on the ground of his physical impairment in respect of any determination by the employer, principal or person of any terms or conditions relating to the physically handicapped person that are reasonable having regard to either or both of the following:

(a) any limitation or restriction that the physically handicapped person's physical impairment would or does impose on his ability to carry out the work required to be performed in the course of the employment or engagement concerned;

(b) any services or facilities which would be or are required by the physically handicapped person in order to carry out the work referred to in paragraph (a) and which would not be or are not required by persons who are not physically handicapped persons."

Commencing 8 August 1994

19 Sub section 4(1) defines "disability" at s 4 to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

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

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

20 The substantive provisions on which Mr Perlidis relies is s 49D(2) of the Act. That section provides:

49D(2) [Terms and Conditions] It is unlawful for an employer to discriminate against an employee on the ground of disability:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

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

(3)...

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

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

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

21 Discrimination on the ground of disability is defined in s 49B of the Act:

49B(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

49B(2) [Characteristic] For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3)...

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

22 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.

Allegation 1: Overtime restriction

23 Mr Perlidis claims that the respondent unlawfully discriminated against him by restricting the amount of overtime he could work throughout the period May 1993 to December 15 1995 ("the relevant period"). We understand Mr Perlidis to assert that this restriction contravenes s 49D(2)(a)(terms and conditions); s 49D(2)(b) (any other benefit); s 49D(2)(d) (any other detriment). Given the period spanned by this allegation it is necessary to examine also the relevant provisions of the Act that were in existence before 8 August 1994. The relevant provisions of the former Act are s 49B(2)(a), (b) and (c).

24 The issue for us to determine is whether this alleged overtime restriction constitutes unlawful discrimination as proscribed by in s 49B(1)(a) of the Act (s 49A(1) of the former Act). In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal considered the leading authorities and posed a question to be asked in cases of direct discrimination: "Did the respondent on the ground of the complainant's disability treat the complainant less favourably than it treated or would have treated a person without that disability in the same circumstances or circumstances that were not materially different?" This test involves two elements , which the Appeal Panel called "different treatment" and "causation".

25 To succeed in this complaint, Mr Perlidis must establish, first, that the respondent, in restricting his opportunity to work overtime, subjected him to different treatment; and second, that it did so on the grounds of his disability. Through the operation of s 4A of the Act, Mr Perlidis is required to prove only that his disability was one of the reasons for the less favourable treatment for the period after 8 August 1994. For the period before that date, Mr Perlidis must show that his physical impairment constituted a "significant factor" in the decisionmaking process (see O' Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) and/or that one of the real or operative grounds for doing the act was his physical impairment. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at p 106.)

Was Mr Perlidis denied overtime?

26 It is not in issue that throughout the relevant period, it was open to Brambles' employees to volunteer for overtime work and a number did so. While Mr Perlidis worked some overtime throughout the relevant period (he termed this "unscheduled overtime") the number of overtime hours he worked was significantly less than he had worked before March 1993.

27 Mr Perlidis claims that throughout the relevant period, management told him that he could not work rostered overtime. He relies on an internal memo addressed to Darren Peake to support his contention that an overtime restriction was in place that was not lifted until 15 December 1995 (the date of the memo). That memo read: "... the only restrictions that should be included in a return to work program are those mutually agreed between the principal parties and which are consistent with available medical advice. I presume the above adequately answers the specific query regarding overtime for Don Moon [an injured employee]. "

28 Evidence was given by Ms Thomas and Mr Byrne that there was no blanket policy banning injured workers from rostered overtime. However, on this point we prefer Mr Perlidis' evidence, which is supported by his former colleague, Mr Whybrow. Mr Perlidis' claim is consistent with his reduced overtime earnings throughout the relevant period and the payment of a considerable sum to him in a workers compensation settlement, purportedly for loss of overtime earnings.

Does the overtime restriction constitute unlawful discrimination?

29 While Mr Perlidis was treated differently to other colleagues, can it be said that the overtime restriction constitutes less favourable treatment? The respondent argues that this treatment was not less favourable. It says that in the circumstances of this case, it is relevant to inquire into the motive for the overtime restriction. It maintains that it was unable to offer Mr Perlidis light duties on the overtime roster because, first, had it done so, Mr Perlidis' colleagues would have had to "carry" him and take on all the tasks, such as heavy lifting, which he was unable to do on account of medical restrictions. As a consequence, the colleagues would have been at risk of injury. Second, the restrictions were necessary to avoid further risk of injury to Mr Perlidis himself.

30 It is to be observed that at no time throughout the relevant period was medical advice given to Mr Perlidis that he should avoid overtime. The respondent may have held the genuine belief that such a restriction was warranted. However, in our view the respondent's motive for imposing the restriction will not determine whether it was less favourable treatment. As the respondent points out, there is some support for the proposition that motive may be relevant in determining whether a complainant has been subjected to less favourable treatment (See for example, Commonwealth v Humphries [1998] FCA 1031 per Keifel, J at 12.9; HR&EO Commission v Mt Isa Mines Ltd (1993) 118 ALR per Lockhart J (at 102-3), we are not satisfied that the facts of this particular case warrant a departure from the more established approach adopted in a significant line of authority, which makes clear that conduct may still be characterised as discriminatory even if a respondent had no motive or intention to discriminate. (See, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at p. 359 and the judgment of Clarke JA in Waterhouse v Bell (1991) EOC 92-376 at pp. 78, 589-78, 590.)

31 The second argument relied on by the respondent is that Mr Perlidis suffered no detriment - the cornerstone of "less favorable treatment" - as he was fully compensated by way of the workers compensation settlement. Mr Perlidis disputes this and says that the settlement represents only partial compensation. Even if the respondent is correct and no financial loss was suffered, this in our view will only be relevant to the calculation of damages. Mr Perlidis was subjected to the stress and financial uncertainty of being denied the opportunity to supplement his income through overtime earnings. This constitutes real detriment.

32 We find Mr Perlidis has been subjected to less favourable treatment.

33 The next issue to determine is whether the respondent restricted overtime on the grounds of Mr Perlidis' disability (or physical impairment).

34 It is argued for the respondent that overtime was restricted, not because of Mr Perlidis's disability, but rather because of an intervening step, namely the rehabilitation program, which was put in place on medical advice to assist his recovery. The tasks he could undertake were restricted as a result of this program. This argument is circular and unsustainable. It is self-evident that were it not for the disability, the rehabilitation program would not have been needed. While the two are clearly related, the program does not, as we understand the respondent to argue, trump the disability. The unavoidable conclusion in our view is that a significant factor in the respondent's decision was Mr Perlidis' disability (or physical impairment).

35 Accordingly, we find that by limiting Mr Perlidis' overtime throughout the relevant period, the respondent discriminated against him in contravention of s 49(2)(a), (b) and (d) of the Act and s 49B(2)(a), (b) and (c) of the former Act.

Section 54

36 The respondent argues in the alternative, that it is entitled to rely on the defence provided by s 54 of the Act. The respondent asserts that it was necessary to put in place overtime restrictions to comply with s 15 of the Occupational Health and Safety Act 1993 (the OH&S Act).

37 Sub-section 54(1) provides:

54(1) [Compliance with requirement] Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act, any regulation, ordinance, by-law, rule or other instrument made under any such other Act.

38 Section 109 of the Act provides that the onus of proving that the respondent's conduct falls within one of the exceptions to the Act, of which s 54 is but one, lies with the respondent. Thus the burden of proving necessity lies with the respondent.

39 This submission requires us to explore the relationship between s 54 of the Act and s 15 of the OH&S Act. As pointed out by the Appeal Panel in Commissioner of Corrective Services v Maxwell [2001] NSWADTAP 21 at [78], we need to examine the breadth of s 54 and the extent and nature of the obligations imposed on an employer by s15 of the OH&S Act.

40 A respondent cannot convert otherwise unlawful conduct into lawful conduct by merely asserting that it acted in compliance with a requirement of any other Act. The operation of s 39 of the now repealed Equal Opportunity Act 1984 (Vict.), broadly equivalent to s 54 of the Act was considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 393. In that decision Dawson and Toohey JJ said (at 173):

"If it were necessary for the respondent to commit acts of discrimination in order to carry out the specific directions of the Minister for Transport or the Director-General of Transport then, by virtue of s 39(e)(ii), those acts would not be unlawful, but if there were a discretion as to the manner in which the specific directions might be carried out which offered a choice between discrimination and no discrimination, the adoption of discriminatory means would be afforded no protection by s 39(e)(ii)."

41 We turn now to consider the nature of the obligation imposed on the respondent by Section 15 of the OH&S Act. Section 15(1) of the OH&S Act imposes on employers a far-reaching strict liability to ensure at work the health, safety and welfare of their employees. Section 15(2) sets out a non-exhaustive list of indicia of how an employer can contravene s 15(1). Section 15 relevantly provides:

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control:

(i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

42 State Transit Authority v Slowey [1999] NSWSC 47 provides guidance on the approach that should be taken where the s 54 defence is raised. In that decision Barr J endorsed the approach taken by the NSW Equal Opportunity Tribunal in Kitt v Tourism Commission (1987) EOC pp 92-196, citing with approval the following passage:

"By virtue of sec. 109 of the Anti-Discrimination Act, the burden of establishing this defence lies upon the respondent. It must be affirmatively proved that the respondent's obligations under the Occupational Health and Safety Act required that Mr Kitt be dismissed from his employment as a guide; or to put it another way, that the continued employment of Mr Kitt constituted such a risk to the safety of other persons within the caves that the employer was obliged to dismiss him in order to comply with the legislation.

There is no concept of reasonableness imported here. The question is not one of what the employer believed, nor of whether any such belief was reasonably held or based upon adequate grounds. The sole question is whether, from an objective point of view, Mr Kitt's employment constituted a risk to the safety of other persons, within the meaning of sec. 15(1) and 16(1) of the Occupational Health and Safety Act."

43 Was it necessary for the respondent to refuse Mr Perlidis rostered overtime to comply with its obligations to him and his colleagues under s 15 of the OH&S Act? As noted, there is simply no medical evidence before us to support the respondent's contention that overtime hours would have jeopardized Mr Perlidis' health or safety. But what of his colleagues? The respondent argues that it could not include Mr Perlidis on the overtime roster because it would have meant that his able-bodied colleagues would have been obliged to carry his share of heavy and strenuous work, putting their own health and safety at risk.

44 This argument appears to be based on the assumption that the overtime work available throughout the relevant period was exclusively standard car crew/AVO work. However, the evidence reveals that this was not the case. Mr Perlidis' unchallenged evidence was that before his 1992 injury, the bulk of his overtime work involved ATM breakdown work, which did not require heavy lifting. His evidence, supported by many of his witnesses, was to the effect that there was significant ATM breakdown work available in overtime hours throughout the relevant period. It would seem that the respondent did not give any consideration to the proportion of available overtime work that Mr Perlidis could safely do without the need to modify the work of his colleagues.

45 The Court of Appeal in Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252 at 268-269, makes it clear that to rely on the s 54 defence, the respondent was not under a positive duty to provide altered or light duties. However, in this case it would appear that the respondent has applied a blanket ruling without properly taking into account the nature of overtime work available. It may be there was some overtime work that Mr Perlidis could not to do without risking injury to himself or others. For example, the respondent may have been justified in their decision if Mr Perlidis had worked exclusively as a member of the car crew thus requiring his colleagues to modify their work. But this was not the only overtime work available.

46 We are not satisfied that the respondent has established that it was necessary to ban Mr Perlidis from all rostered overtime work in order to comply with s15 of the OH&S Act. Accordingly, the s 54(1)(a) defence is not made out.

Relief

47 Mr Perlidis seeks damages of $11,628. He asserts that because of the overtime restriction he suffered economic loss of $57,688 for which he has been partly compensated through his workers compensation settlement. Taking into account this payment ($42,000), he calculates his loss to be $11,628. The basis of this calculation is set out in Exhibit A 11, which compares Mr Perlidis' income for the relevant period with the average income of employees, Fred Talliana, Jeff Taylor and Neil McGilvray. Mr Perlidis contends that the income of these employees was comparable to that he would have received but for the overtime restriction.

48 The respondent challenges this calculation and argues that the appropriate basis for determining loss is that used in Mr Perlidis' workers compensation settlement. The methodology employed to calculate that settlement is identical to that now proposed by Mr Perlidis, with the only difference being that a different comparator group was used namely Fred Talliana, Neil McGilvray, Anthony Parasiliti and Adrien Hopkins.

49 The respondent argues that Mr Perlidis is bound by the terms of that settlement. It relies on the Admissions signed by Mr Perlidis, dated 12 November 1997, which state "on payment of the award, I will have no further entitlements to wages or compensation and I acknowledge that I have been paid all entitlements to wages and compensation to date."

50 The settlement of itself does not stop Mr Perlidis from seeking redress under the Act. However, having entered into an agreement for compensation for lost overtime, and having agreed to the basis for calculating that loss, it is not now open to Mr Perlidis to argue that the methodology underlying that calculation was somehow flawed. Mr Perlidis gave some evidence that at the time he entered into the agreement he did not fully understand its implications and he had some difficulties with his legal representatives. In the absence of any evidence of fraud or duress, it is not now open to Mr Perlidis to seek to effectively set aside that agreement.

51 Even if we are wrong on this point, we are not satisfied on balance, despite the voluminous evidence and submissions on this point, that the comparator group proposed by Mr Perlidis, provides a more (or less) reliable means of assessing what his income might have been during the relevant period than that used in the workers compensation settlement.

52 Accordingly, we are not satisfied that Mr Perlidis has suffered any financial loss for the imposition of the overtime restriction and therefore we make no order for damages.

Allegation 2: termination of employment

53 Mr Perlidis contends that the respondent, in dismissing him, contravened s 49D(2)(c) of the Act. The respondent submits that Mr Perlidis was dismissed because he was unable to meet the inherent requirements of an AVO. Its submissions proceeded on the basis that such treatment cannot be characterised as less favourable treatment.

54 In determining whether less favourable treatment has been established, a comparison needs to be made to the treatment afforded to an actual employee without Mr Perlidis' disability. Whereas in this case, no such employee is identified, the comparison needs to be made between a hypothetical employee without Mr Perlidis' disability who does not retain the characteristics imputed to, or which characterise, that disability i.e. the medical restrictions on the range of work he may undertake. In our view, for much the same reason as set out in check of these reasons, the decision to dismiss Mr Perlidis constitutes less favourable treatment.

55 What was the reason for that decision? The respondent contends that Mr Perlidis was dismissed because of his inability to carry out the inherent requirements of his positions, not because of his disability. That was the evidence given by Brambles Executive Director, Human Resources, Kerry Wilson . That submission mirrors that put by the respondent in respect of allegation one, the overtime restriction. Mr Perlidis' disability may have meant he was unable to perform certain tasks (a question of fact to be addressed) but the fact remains that one of the reasons the respondent decided to dismiss him was his disability.

Section 54

56 Having found that the necessary elements of less favourable treatment and causation are made out we must now consider whether the respondent is entitled to rely on s 49D(4) of the Act. It bears the onus of proof. Section 49D(4) provides that no discrimination exists if the decision to dismiss Mr Perlidis was made because his disability meant that he was unable to carry out the inherent requirements of his position and that it would be unjustifiably harsh to expect Brambles to provide assistance (not required by employees without his disability) to enable him to carry out those requirements.

Particular Employment

57 Critical to the respondent's ability to rely on s 54 is the identification, to use the language of the section, of Mr Perlidis' "particular employment".

58 A live issue in these proceedings was whether the terms "AVO" and "car crew" are interchangeable. Brambles says they are. Mr Perlidis contends otherwise. He says that the term AVO was not used at Brambles until about 1996 when he had left the company.

59 It may well be that the term, AVO, was not commonly used while Mr Perlidis worked at Brambles. However, having carefully examined all the material before us we fail to see any meaningful difference in the respective duties undertaken by members of the "car crew" as opposed to "AVOs" and proceed on the basis that the two terms are interchangeable.

60 Was Mr Perlidis "particular employment", as contended by the respondent, that of an AVO (or car crew member)? He was employed under the Transport Industry Armoured Cars (State) Award and the Brambles Armoured NSW Agreement 1994. The Award contained three job classifications: AVO, armoured vehicle escort and dispatch hand. On his own evidence, Mr Perlidis was not employed as vehicle escort or dispatch hand.

61 Mr Perlidis argues that he was not an AVO/ car crew member as he was originally employed as a vault attendant and was not transferred from that position. This argument is unsustainable. Mr Perlidis worked as a member of a car crew from 1983 until his injury in 1991. The absence of any "transfer" documentation does not mean that somehow, by default, he continues to "hold" his original position.

62 Mr Perlidis' alternative submission is that before his dismissal, his job was ATM work (and other light duties). He states that before his injury, he was primarily involved in ATM, not AVO work. The former involved the frontline servicing, cleaning and replenishing of ATM machines, which, unlike the work assigned to car crews, did not routinely involve heavy lifting. While the evidence shows that before his injury, during ordinary hours, Mr Perlidis performed some ATM work, his substantive position was that of an AVO.

63 As made clear by Justices Gummow and Hayne in X v The Commonwealth (2000) CLR 177 [at 208] the term, "particular employment" [as used in s 15(4) of the Disability Discrimination Act 1992 (Cth) (which is materially identical to s 49D (4) of the Act)] does not embrace a position made available to an injured worker on a short term basis pending their recovery. Accordingly, Mr Perlidis' "particular employment" at the time of his dismissal was the position of AVO/car crew (involving some ATM work) as held by him before to his injury in August 1992.

Inherent Requirement

64 Mr Justice McHugh in X v The Commonwealth at 187 described an "inherent requirement" for the purpose of s 15(4) of the Disability Discrimination Act, as an essential requirement of the particular employment. According to him [at 187-188]: "...it embraced more than the physical ability to carry out the physical tasks encompassed by the particular employment" and included "...carrying out the employment without endangering the safety of others ..."

65 What then were the inherent requirements of an AVO? The Award defines an AVO to mean:

Armoured Vehicle Operator - Armoured vehicle operator shall be an employee qualified to drive and who holds the relevant licences and has completed the all required training. An operator will be appointed at Company discretion and will be qualified and available to perform non-driving duties and non-armoured vehicle duties.

An AVO must be able to perform armoured duties and driving duties but also "non -armoured" duties and "non-driving" duties which include loading/unloading of cargo, escorting other guards, administrative duties, recording and maintaining log of activities and preparing cargo for upcoming delivery.

66 Mr Wilson, the Executive Director, Human Resources, Brambles gave evidence of what he understood to be the inherent requirements of an AVO:

Licences to carry/use loaded firearms

Ability to lift, carry, push and pull cargo/safes (including above shoulder lifts and walking up and down stairs carrying such weights). The Award specified 40.82 kilograms in weight without assistance and in excess of 40.82 kilograms with assistance, if required, as lifting requirements for an AVO position. Despite the Award provision, the Company allowed AVOs to lift a minimum of 27 kilograms (in all directions including above the shoulder)

Ability to drive an armoured vehicle

Ability to maintain crouched or kneeling position for up to 30 minutes

Numeracy and literacy; reading to ensure daily schedule is adhered to/maintain log of daily activities/counting bags/bundles

Ability to operate short wave radio and mobile phone and to respond to radio calls from base

Psychological: ability to remain alone in confined space (rear of armoured vehicle) for up to 60 minutes

Escort/support duty: ability to monitor the environment at all times so to be alerted to potential danger.

Repair/service Automatic Teller Machines ("ATM").

67 The evidence given by Mr Perlidis about the duties of an AVO did not substantially differ from that given by the respondent's witnesses.

68 The undisputed evidence before the Tribunal is that AVOs were frequently required to lift weights in excess of 29 kilograms (and up to 42 kilograms) often from awkward positions.

Ability to Meet Inherent Requirements

69 We must now consider whether Mr Perlidis' was unable to carry out those requirements because of his disability.

70 Mr Wilson gave evidence that, given the nature of the work undertaken by an AVO i.e. the movement and protection of money and valuables, it was essential that all employees be physically and mentally fit. He says that this view is consistent with the findings of the Industrial Relations Commission as set out in its Report to the Minister for Industrial Relations, regarding the transport and delivery of cash and other valuables industry, 28 February 1997. (Matter No. IRC 1880 of 1995). In that report the Commission identified a number of reasons why AVOs (CIT guards) need to be mentally and physically fit [which it identified many were not]. These include:

"So that they can cope with the stress of the job;

So that they do not misuse their firearms and endanger either themselves, their colleagues or members of the public;

So that they respond appropriately in an emergency;

So that they remain alert on the job; and

So that they do not look like soft targets"

71 The respondent asserts that the most significant (but not only) requirement that Mr Perlidis could not meet at the time of his dismissal was the ability to lift weights in excess of 29 kilograms. Throughout the period August 1992 until his dismissal, Mr Perlidis had been subjected to weight restrictions on medical advice. While these restrictions were progressively increased, at the date of his dismissal he was restricted from lifting more than 29 kilos. For most of this period he was advised not to bend, stop or twist. It is not clear from the material before us whether at the time of his dismissal these restrictions on movement were in place.

72 The clear evidence before us is that AVOs were often called upon to lift weights in excess of 29 kilograms. This requirement could not be described as peripheral to the work of an AVO. Mr Perlidis not only had difficulty, but also was unable, on medical advice, to meet that requirement.

73 We are satisfied on balance that because of these weight restrictions, Mr Perlidis was unable to meet an inherent requirement of the position of an AVO.

Provision of services and facilities

74 Section 49D(4)(a) cannot be read in isolation from s 49D(4)(b). Justice McHugh made this clear in X v The Commonwealth [at 190]:

...If the employee can carry out those requirements with services or facilities, which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15. For discrimination falling within s 15 to be not unlawful, therefore, the employee must have been discriminated against because he or she was: (a) not only unable to carry out the inherent requirements of the particular employment without assistance; but was also (b) able to do so only with assistance that it would be unjustifiably harsh to expect the employer to provide.

75 Section 49C defines unjustifiable hardship to mean:

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

76 In Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12 the Appeal Panel considered the meanings of the words "are to be taken into account" in s 49C. The Panel concluded:

61 In accordance with the High Court's view in Meneling the factors listed in s 49C must be given weight as fundamental elements in the decision making process. Furthermore, as O'Loughlin J reasoned in Department of Defence v Jodette Margaret Fox, a court or tribunal would not be complying with its statutory obligation if it merely took those matters into account in a " token" or "nominal" fashion.

77 It is clear from the face of s 49D(4)(b) that an employer seeking to rely on that provision must establish that an unjustifiable hardship would result if it were required to provide relevant services and facilities. Does this section also require the employer to assess whether services or facilities can be identified, that would enable its employee with a disability to carry out the inherent requirements of their position?

78 Section 49C requires that in determining "unjustifiable hardship" all relevant circumstances must be taken into account. In our view one of the relevant factors to be taken into account is whether relevant services or facilities exist. When read together with s 49D(4)(b), it is implicit that an employer must make some enquiries before concluding that it would be unjustifiably harsh to provide such services or facilities. It would be unjustifiably harsh to require an employee to provide services and facilities that do not exist. However, it would be impossible to reach that conclusion without some enquiry. The type of enquiry will depend on the circumstances of the case. Sometimes the form of assistance that would enable a disabled person to meet the inherent requirements of their particular employment will be self evident, such as a ramp to enable wheelchair access. Alternatively, the disabled employee may be able to propose a form of assistance. In other cases, some form of workplace assessment may be needed. But as a minimum, some attempt must be made to determine whether some service or facility could be provided to enable the relevant employee to carry out the inherent requirements of their position.

79 Mr Perlidis did not volunteer any forms of assistance that may have enabled him to work as an AVO and made no submissions on this point. The respondent briefly addressed this in written submissions:

... Evidence was also put on by Ms Thomas as to why modifications to the workplace could not be made, such that they would have accommodated the restrictions of Mr Perlidis, reference 3 April 2002 at page 88, paragraph 30-page 94, paragraph 25.

80 What was the evidence of Ms Thomas? Amanda Thomas is currently the Manager, Skills Recognition Projects, Training and Development Department, Brambles Australia. She commenced employment with Brambles as NSW Safety Rehabilitation Manager about two weeks before Mr Perlidis' dismissal. She gave evidence on a range of matters concerning Mr Perlidis' employment and medical condition, relying primarily on the material contained in his file at Brambles.

81 She said that over recent years Brambles had given consideration to whether it would be possible to redesign the work of AVOs in a more ergonomically sensitive way. In her opinion the options were limited as many of Brambles trucks were thirty years old and little better, to use her words, than " bricks on wheels". In her view, on the basis of a risk assessment undertaken [after Mr Perlidis' dismissal], given the nature of the work involved, there was little scope for redesign. She said that "it's a manually intensive job... despite countless minds looking at it [the work of AVOs], its significantly done the same way today as it was six years ago when I started in the company".

82 Ms Thomas properly conceded that she did not know whether, at the time the decision was made to dismiss Mr Perlidis, any consideration had been given to whether the job of an AVO could be modified so as to accommodate Mr Perlidis' disability. Her understanding of Brambles' policy at that time was that unless the injured worker could return to normal duties within a reasonable period, termination would result as to do otherwise would place undue strain on other workers placing them potentially at risk of injury.

83 The Tribunal also asked Mr Wilson whether consideration had been given before the dismissal to any form of assistance that may have enabled Mr Perlidis meet the requirements of his position. He said " look I know there were... I can't speak with authority ..but I know there were. I know that things like trolleys were introduced and used to hang off the back of trucks...I'm not sure when that was introduced".

84 At the time of the decision to dismiss Mr Perlidis, the relevant managers within Brambles had concluded that he would be unable to return to normal duties at least for the foreseeable future. It is clear that that reasonable rehabilitation services had been provided to Mr Perlidis. There is no clear evidence that anyone within Brambles gave any thought to whether any assistance could be provided to enable him to return to his pre-injury duties.

85 It may be, as Ms Thomas believes, that the nature of the work of an AVO does not lend itself to modification. There may well be no form of assistance that exists, or could be devised, that would have enabled Mr Perlidis to meet the inherent requirements of his position. It may be that the costs of providing such services or facilities (if in fact they could be identified) would be prohibitive and would have imposed an unjustifiable hardship on the respondent.

86 There is, however, no evidence that this was given even cursory consideration. It is apparent that the focus of the respondent's inquiry was whether, through the provision of rehabilitation services, Mr Perlidis could be supported to return to his pre-injury duties. While rehabilitation services constitute services for the purpose of s 49D(4)(b), this is not the only form of assistance contemplated by the provision. The language of the section is broad: "services and facilities not required by person without that disability."

87 There is simply no evidence that, at the time the dismissal decision was made, anyone had turned their mind to whether it was possible for Mr Perlidis to return to normal duties with assistance. While s 49D(4)(b) does not require an employer to provide an employee with alternative or light duties, it does require an employer to give consideration to whether the employee could carry out the inherent requirements of their position with the assistance of services or facilities.

88 We are satisfied that Mr Perlidis was unable to carry out the inherent requirements of his position, without assistance, at the time of his dismissal. The respondent has not, however, established that it would have imposed an unjustifiable hardship to provide assistance to Mr Perlidis to enable him to carry out the inherent requirements of his particular employment.

89 Accordingly, we find that the respondent is not entitled to the benefit of the s 49D(4) defence and, in dismissing Mr Perlidis, unlawfully discriminated against him in contravention of s 49D(2)(c) of the Act.

Section 54

90 Finally, we consider s 54 of the Act. The respondent bears the onus of proving that it was obliged to dismiss Mr Perlidis in order to comply with s 15 and/or s 16 of the OH&S Act. The relevant position against which s 15 compliance is to be judged is not some modified or altered position but rather Mr Perlidis' substantive position of AVO.

91 What factors should be taken into account in determining whether an employee's continued employment may have constituted a risk to the safety of him or herself and/or others? Relevant factors may include the nature of the employment, the nature and duration of the disability and whether any assistance could be provided that would allow the employee to carry out their duties safely.

92 As noted in the context of our consideration of s 49D(4) there is no evidence that at the time of the dismissal the respondent gave any serious consideration to whether assistance could have been provided to Mr Perlidis to allow him to return to his pre-injury duties. The authorities make it clear that s 54 should be read strictly and the party seeking to rely on that defence must establish that it acted out of necessity. In the context of the OH&S Act, this does not require an employer to prove that no alternative duties were available or, that it would be unreasonable to continue to offer light duties. It does, in our view, require the employer to show that it had made some efforts to consider whether some assistance could be provided to enable the work of the substantive position to be carried (words missing?) concerned and/ or their colleagues.

93 We accept the general proposition that if Mr Perlidis had been returned to his pre-injury duties his health and safety may have been at risk. We accept that had he remained on light duties indefinitely, the health and safety of his co-workers may have been compromised. However, we do not accept on balance that the respondent has established that because of its OH&S obligations, it had no discretion and no option but to dismiss him. It was open to the respondent to examine whether Mr Perlidis could be provided with assistance to carry out the work of an AVO and/or to explore alternative ways in which that work could be carried out.

94 In the absence of any evidence of reasonable steps being made taken to determine that issue we are not satisfied that the respondent has established that it was necessary for it to dismiss Mr Perlidis to comply with s 15 and/or s 16 of the OH&S Act.

Conclusion

95 We find that the respondent, in dismissing Mr Perlidis, discriminated against him in contravention of s 49D(2) (c) of the Act.

Relief

96 Mr Perlidis seeks the sum of $16,365 in damages. He has been unable to find fulltime employment since his dismissal. We are satisfied he has made reasonable efforts to find alternate employment without success and has lost income of at least the amount claimed. Accordingly, we order that he be paid $16,365 within 21 days.

Allegation 3: Threats of dismissal

97 Mr Perlidis asserts that the respondent's managers threatened him with dismissal following his reinstatement in 1995. If proven, this conduct may constitute unlawful conduct in contravention of s 49D(2)(d) of the Act.

98 It is not in issue that Mr Peake reminded Mr Perlidis through correspondence, on a number of occasions following his reinstatement, that unless he was unable to return to his pre-injury duties within the period as agreed, he would be dismissed. This warning was consistent with the terms of the reinstatement agreement.

99 It is apparent that at the time these warnings were given, Mr Perlidis considered that Mr Peake was acting unreasonably. On a number of occasions he challenged management, arguing that he should be able to remain on light duties, which he had been performing diligently and without complaint, for close to three years. Understandably he felt insecure. His position was vulnerable. He had already been terminated, only to be reinstated on condition that he overcome his medical restrictions, which was proving to be difficult.

100 The respondent argues that procedural fairness dictated that Mr Perlidis be put squarely on notice of the consequences of his inability to return to his pre-injury duties within the required period.

101 The issue for determination is whether, in repeating these warnings, in the manner it did, Mr Perlidis was treated less favourably than a person without his disability would have been treated. There may be circumstances where threatening an employee with dismissal may constitute less favourable treatment, for example where an employee is continually and publicly threatened with dismissal. While it was no doubt greatly troubling for Mr Perlidis to be reminded that his dismissal was imminent unless his medical condition improved, a fair reading of the relevant correspondence would not indicate that the "threat" was not conveyed in an unnecessary or unpleasant manner. On balance, we are not persuaded that had a reinstatement agreement been entered into with an employee without Mr Perlidis' disability, that the respondent would not have acted as it did - that is, remind the employee of the basis on which their reinstatement rested.

102 We are not satisfied that less favourable treatment was afforded Mr Perlidis and therefore we dismiss this complaint.

Allegation 4: Failure to provide light duties

Evidence

103 Mr Perlidis alleges that Brambles ignored the recommendation of his treating doctor and placed him on full (or normal) duties after his return to work from injury in August 1992. He said that, except for a short period, he was not offered light duties until March 1993, when he suffered a further injury. He said his duties during that period were identical and he was expected to lift weights of up to 40 kilograms and more. He gave evidence that this treatment was in contrast to that afforded other injured workers whom he observed being placed in light duties upon their claims that light duties were provided from August 1992.

104 Ms Thomas denies this claim. In her evidence she relied exclusively on Mr Perlidis' rehabilitation file, primarily the reports of Occupational Therapist, Ms Everett.

105 In cross-examination, it was put to Mr Perlidis that his claim conflicted with the reports of Ms Everett, dated 28 October 1992, 25 November 1992, 4 January and 22 March 1993. All note that at the time of the assessment that he was on light or selected duties. Mr Perlidis said that Ms Everett must have been mistaken and that he had never told her that he was on light duties, when he was not.

Findings and Conclusions

106 While Ms Everett's report supports the respondent's assertion that light duties were provided after August 1992, orthopaedic surgeon, Dr Allan Pollock notes in his report dated 19 February 1993, that upon Mr Perlidis' return to work in August 1992 light duties could not be obtained so he was returned to full duties. Dr Pollock recorded that light duties on a courier van were found in about mid-January 1993. This is broadly consistent with Mr Perlidis' history recorded by occupational therapist, Judith Davidson, in her report of 13 May 1993. It is to be further noted that Ms Everett's report of 4 January 1992 indicates that there had been some discussions between the parties about suitable duties and at the request of Mr Perlidis' treating doctor, Dr Singer, he was rostered on courier duties for a limited period.

107 The reports of Dr Pollock and Ms Davidson read together with Ms Everett's January 1994 report lend support to Mr Perlidis' claim that at least for some time after August 1992 the scope of his duties were not as settled as the respondent now contends.

108 The respondent further relies on a series of rehabilitation agreements, headed " Rehabilitation Program -Suitable Duties", signed by Mr Perlidis and Rehabilitation Co-ordinator, Stacey Ostrow. These agreements record that Mr Perlidis and Ms Ostrow signed off on a program that proposed that Mr Perlidis work "suitable light duties." It is to be noted that the first of these agreements was entered into on 26 March 1993.

109 It appears to us more likely than not that for sometime after August 1992 Mr Perlidis returned to "normal" duties. In his evidence Mr Perlidis had difficulties recalling the exact period he was placed on full duties. However, a letter dated 24 June 1997 from his (then) legal representatives to the President provides some insight. It states: "Mr Perlidis commenced full duties following this second accident on 17 August 1992 with full duties until 4 January 1993. Light duties from 4 January 1993 until 15 February 1993. Mr Perlidis was back on full duties from 15 February 1993 until 19 March 1993."

110 We find on balance that the respondent did place Mr Perlidis on normal duties following his August 1992 injury until January 1993, against medical advice. In the absence of any independent evidence to support Mr Perlidis' claim about the period after January 1993, we make no findings in relation to that period.

111 Can it be said that this constitutes less favorable treatment? The respondent submitted throughout this inquiry that it was company policy at all relevant times to place injured employees on duties commensurate with their medical restrictions. This treatment is different to that afforded to Mr Perlidis for the period at least up until January 1993. It is apparent that such treatment represents a detriment, potentially placing him at risk of further injury. We find the first element of the test of direct discrimination to be made out.

112 The more difficult issue to determine is why the respondent returned Mr Perlidis to full duties after his August 1992 injury. Mr Perlidis must establish that his disability, or a characteristic of his disability, was a significant factor in that decision. We have before us no evidence of why Mr Perlidis was returned to normal duties. The respondent has consistently denied that it did. Nor has Mr Perlidis been able to shed any light on this apparent aberration in his former employer's practice.

113 Without direct evidence, can it be said that there is any evidence on which to infer that the respondent acted as it did on the grounds of the respondent's disability? There are a number of possible explanations for Mr Perlidis' return to full duties. It may be that the relevant manager doubted the veracity of Mr Perlidis' claims about his injury. It may be that management incompetence or oversight was behind the decision. But whatever the reason, having carefully examined all the material before us we are not satisfied that Mr Perlidis' disability was an operative or significant factor in that decision.

114 Accordingly this complaint is dismissed.

Allegation 5: failure of respondent's officers to acknowledge injury

115 Mr Perlidis alleges that Ron Burn, Brian Barret, Tom Saltern, and Sophie Ostrow failed to acknowledge his injury and provide appropriate support. The period prior to January 1993 has been dealt with under Allegation 4.

116 The evidence before us is that from March 1993 until his dismissal in 1996, Mr Perlidis was placed on restricted duties, agreed between him and his rehabilitation provider. Mr Perlidis does not contend that his duties during this period were inappropriate.

117 In about April 1995 a plan was agreed to which involved Mr Perlidis attending a gym program based at Mascot airport. Mr Perlidis said he was disadvantaged in three ways. First, he was required to travel a significant distance to attend the gym (about three to four hours per day). Second, he was not compensated for this travel. Third, as he was not able to return to work he missed out on overtime and lost pay as a result.

118 We turn now to the evidence concerning the allegations concerning the alleged inadequate rehabilitation program. Following his August 1992 medical practitioners and rehabilitation experts regularly monitored Mr Perlidis. At various times he received physiotherapy.

119 The evidence shows that efforts at assisting Mr Perlidis return to his pre injury duties accelerated in 1995 with the introduction of the gym program. While it may have been that more intensive support could have been provided before that time, we are not satisfied that the failure to do so constitutes less favorable treatment. Nor are we satisfied that the arrangements in respect of the gym program constitute less favorable treatment.

120 Accordingly this claim is dismissed.

Allegation 6: Veracity of complaint

121 According to Mr Perlidis, soon after his reinstatement in 1995 he was approached by a man then unknown to him in the loading dock in front of colleagues, Max Wallace, Dave Duncan and Adrien Hopkins. This man said in a stern and abrupt voice, " Are you fair dinkum about going back to full duties?" He later discovered that this was the newly appointed manager of the Beaconsfield Branch, Darren Peake.

122 According to Mr. Perlidis, on 15 March 1995 he attended a meeting in Mr Peake's office where his bona fides about returning to full duties and his commitment to the gym program were again challenged. Mr Perlidis said he and Mr Peake were the only people at that meeting.

123 In a statement dated 16 February 1997, Mr Peake denied that he had questioned Mr Perlidis in a public forum about being "fair dinkum" about his injury. He stated that following Mr Perlidis' reinstatement, he had a number of conversations with him about the progress of his rehabilitation.

124 In the absence of any independent evidence we are unable to make any findings about these two apparently conflicting accounts and accordingly dismiss this claim.

Allegation 7 : Failure to appoint to TSS

125 By letter dated 26 June 1996, Mr Perlidis unsuccessfully applied for a position within Total Service Solution (TSS), a newly established division within Brambles. TSS was establishes in about April 1996. Mr Perlidis claims this constitutes unlawful discrimination.

126 Mr Perlidis' application to TSS was made after he had lodged a complaint with the President on 12 April 1996.

127 The jurisdiction of this Tribunal to determine Mr Perlidis' complaints arises out of the operation of s 96 of the Act. Section 96 provides that the Tribunal shall hold an inquiry into each complaint or matter referred to it under s 94(1). The President referred Mr Perlidis' complaints under that section. A complaint referred to the Tribunal under s 94(1) is initiated by a "complaint" in writing, lodged with the President "in respect of any contravention of this Act".

128 The TSS allegation occurred after the complaint was referred to the Tribunal by the President. Therefore we are without jurisdiction to determine this matter.

Orders

That the respondent pay Mr Perlidis the sum of $16,365 within 21 days of the date of this decision.