Clinton John Eyden v. Commonwealth of Australia
No. H97/74
Number of pages - 20
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
PETER JOHNSTON (Inquiry Commissioner)
PERTH, 24-27 July 1997 (hearing), 24 February 1999 (decision)
#DATE 24:2:1999
The complainant represented himself assisted by Mrs A Eyden.
The respondent was represented by Mr P Macliver and Ms J Lord of the Australian
Government Solicitor's Office.
PETER JOHNSTON
1. BACKGROUND
The complainant, Mr Clinton John Eyden, lodged with the Human Rights and
Equal Opportunity Commission ("the Commission") on 23 November 1995 a complaint
under the Disability Discrimination Act 1992 ("the Act"). He claims that
he was advised on 6 November 1995 that he had been successful in an application
for temporary employment with the respondent, the Australian Protective Service
("APS"), as an Assistant Protective Service Officer ("APSO") and that he would
be required to attend a one week training course at Port Hedland starting on 13
November 1995. He was not permitted to attend the training course and, on 23
November 1995, the respondent advised that he could not be employed because of
his condition of colour perception deficiency. According to the respondent Mr
Eyden failed to meet the required medical standard relating to colour vision.
He alleges discrimination in the area of employment within sections 5 and 15 of
the Act. Attempts to resolve the matter by the Disability Discrimination
Commissioner ("the Commissioner") were unsuccessful and on 20 February 1997 the
complaint was referred to the Commission for inquiry under section 76(1) of the
Act.
Since similar issues were raised in this complaint to those in another matter
referred for inquiry, Alan Crombie v Australian Protective
Service ("Crombie"), I directed that evidence common to each
complaint concerning whether persons affected by colour perception deficiency
were able to perform the inherent requirements of employment as officers in the
APS should be heard concurrently.
2. THE ISSUES
The essential issues for determination are:
(a) Whether the respondent engaged in discrimination on the ground of
disability for the purposes of sections 5(1) and 15(1) of the Act:
(i) in relation to the arrangements it made for the complainant to attend an
interview at Port Hedland on 6 November 1995 and undertake the training course
preparatory to him commencing employment as an APSO; and
(ii) in refusing to offer him employment as an APSO on the ground of his colour
visual deficiency.
(b) Whether, if it has so discriminated, the conduct of the respondent is not
unlawful because it may rely on section 15(4) of the Act as a justification for
its refusal.
(c) If the respondent did act unlawfully as alleged, what compensation or other
remedy should be provided to the complainant.
3. THE LEGAL FRAMEWORK
The provisions of the Act, so far as they are relevant, read:
5(1) For the purposes of this Act, a person ("discriminator") discriminates
against another person ("aggrieved person") on the ground of a disability of
the aggrieved person if, because of the aggrieved person's disability, the
discriminator treats or proposes to treat the aggrieved person less favourably
than, in circumstances that are the same or are not materially different, the
discriminator treats or would treat a person without the disability.
15(1) It is unlawful for an employer or a person acting or purporting to act on
behalf of an employer to discriminate against a person on the ground of the
other person's disability ...:
(a) in the arrangements made for the purpose of determining who should be
offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2)......
(3)......
15(4) Neither paragraph (1)(b) .... 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 employer,....and all other relevant factors that it is
reasonable to take into account, the person because of his other 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.
4. THE EVIDENCE
The evidence in Crombie (see above) concerning whether
colour deficient persons can carry out the inherent requirements of employment
as officers in the APS is also relevant to this complaint. Therefore, where
appropriate, cross-reference is made to it in these reasons.
4.1 Evidence for the complainant
4.1.1 The complainant
Mr Eyden provided evidence to the Commission, both by way of written statement
and orally. The Commission also received in evidence correspondence and a
Schedule summarising his claim for losses.
In his written statement the complainant said he had become aware at some time
before November 1995 that applications had been called for positions with the
APS. He had decided to apply for a position as an APSO. This was initially a
temporary position for a three month term. He had received a phone call from a
women officer at the APS centre in Port Hedland requesting him to attend an
interview with Mr Garry Duscher and Mr John Smith on 6 November 1995. At the
time he was conducting his own tyre and repair business in Jurien Bay. In order
to attend the interview he travelled by car to Perth (about 250km) and then
proceeded to fly to Port Hedland. He attended the interview with the two APS
officers on the following Monday. The interview had taken about a half to three
quarters of an hour. He had then been directed to attend a medical examination
with Dr Bowater, a Commonwealth Medical Officer in Port Hedland. Dr Bowater in
his report noted that Mr Eyden failed the medical standard insofar as he was
visually colour deficient. According to Mr Eyden's account, Dr Bowater had
expressed sympathetic observations which encouraged Mr Eyden to think that his
failing the standard might not necessarily be fatal to his employment with the
APS. He had returned to Perth by plane and driven back to Jurien Bay. There he
accepted an offer for the sale of his business which he claimed was
considerably lower than its true value. He then proceeded to move everything he
owned to Port Hedland and drove to Port Hedland in order to commence employment
on 30 November 1995.
The complainant said that when he reached Port Hedland his parents informed him
that his position was under review due to the colour deficiency noted in the
medical report. It was not, however, until several weeks later, on 23 November
1995, that he received a letter informing him that a final decision had been
made not to employ him in the APS. Having moved to Port Hedland and having sold
his business, he was unemployed with no income. This lasted for a period of
about six weeks. He then obtained temporary employment with a tyre business in
Port Hedland. During that time, he made attempts to have the decision
overturned.
In oral expansion of his written statement the complainant indicated that his
mother had telephoned him towards the end of October 1995 and advised him of
the details of a position open with the APS in Port Hedland. He was at that
time the owner-operator (as he saw it) of a business, Jurien Bay Tyre and Auto.
From evidence he later gave in cross-examination it would appear that the
financial arrangements in relation to the original purchase of the business and
for later improvements to it were conducted by Eyden Holdings Pty Limited, a
company of which his parents were the directors. At the time of purchase he had
completed his apprenticeship as a motor mechanic.
Mr Eyden said that he had sent a written application to the APS. As a result of
a phone call from the APS he was advised to attend an interview with Messrs
Duscher and Smith. At the interview he was told he would have to attend a one
week training course. He was advised by Mr Smith that, generally, he had been
found acceptable and was qualified for the job. He was given a letter from Mr
Smith addressed to him dated 6 November 1995. The letter indicated that he
would be offered a position subject to satisfactory medical, police, and
security checks. He was asked to attend a medical examination with Dr Bowater
and that was arranged for that afternoon. Nothing was mentioned at the time
about colour vision. At the medical examination, Dr Bowater, in filling in the
relevant part of the medical form ticked a box to indicate that Mr Eyden did
not meet the medical standard relating to colour vision. Doctor Bowater
informed the complainant that he was colour deficient. He had made comments
indicating that colour deficiency in regard to certain occupations need not be
a bar. Mr Eyden was informed that the results would be sent off to the APS. He
did not, however, contact Mr Duscher or Mr Smith concerning the medical
results.
Mr Eyden then returned to Jurien Bay where arrangements were made, mainly by
his father, to sell the business to a Mr Ian Manns. The business had been
advertised prior to the complainant applying for the job with APS and Mr Manns
had been the only person to express interest in its purchase. The business had
been advertised for sale at $45,000 and after negotiations was sold to Mr Manns
and his wife for $36,500. This was confirmed in a statutory declaration by Mr
Manns produced by the complainant (Exhibit C4). The complainant then drove to
Port Hedland (a distance of approximately 1700 kilometres) with his belongings,
arriving there on 10 or 11 November 1995. During the time he was travelling his
parents had been notified by Mr Duscher that the position was not available
because of the complainant's colour deficiency. Mr Eyden discovered this when
Mr Eyden arrived in Port Hedland. Mr Eyden said he had phoned the APS in Port
Hedland and was advised he was not to attend the training course the following
week. He understood the position was under review and that he would have to
wait for final confirmation of the result.
Some weeks later he received a letter dated 6 December 1995 confirming that he
was not to be appointed. However, the letter had been addressed to Jurien Bay
and had been delayed in getting to him. The letter informed him that no further
action will be taken with his application. He tried to have this overturned at
higher levels, including making representation to the Ombudsman, but these
efforts were not successful. After several weeks he had taken a temporary
position at Tom's Tyres in Port Hedland. Ultimately, he instituted his
complaint to this Commission.
In his correspondence with the APS Mr Eyden had indicated that he was prepared
to undertake a practical test in the form of a colour paint chart in order to
indicate that he could discriminate between colours to a sufficient degree to
carry out the responsibilities of the job. His degree of colour deficiency was
relatively mild. He held, for example, a crayboat master's licence at level 5,
which allowed him to operate a crayboat subject to some restrictions on hours.
He said he was quite able to pick out red and green channel markers even during
the night. His qualifications as a motor mechanic required him to deal with
workshop safety matters such as handling fire extinguishers. At the close of
his evidence he gave a demonstration that showed he could effectively
distinguish between the colours of differently coloured auto-electrical wires
assembled in a bunch (Exhibit C7), as part of his motor mechanic employment.
Since his non-appointment by APS he had undertaken, besides the job at Tom's
Tyres, a position on a cray-fishing boat for several months. This had
terminated because the employment was seasonal.
Until Mr Eyden had received the final letter from the APS he had not, however,
regarded the decision relating to his non-appointment as final. On 23 November
1995 he had instituted this complaint by way of a letter to the Commissioner.
In relation to compensation, Mr Eyden sought to be reimbursed for what he
claimed as loss of value arising from the sale of his business, travel expenses
relating to his attendances in Port Hedland, costs of running his business in
Jurien Bay until it was taken over by Mr Manns, loss of income while unemployed
and due to the lower level of remuneration he had received whilst employed in
the tyre business in Port Hedland compared to what he would have earned as an
APSO, and other living and accommodation expenses while he resided in Port
Hedland pending the outcome of the final determination of his position with
APS.
He supplied a summary of these items and gave details of expenditures that had
been made to improve the business in Jurien Bay. Finally, he claimed $50,000
for the disappointment and disruption to his life.
4.1.2 Mrs Andrea Eyden
Mrs Eyden, the mother of the complainant, said she had received a phone
call from a women officer at the APS office in Port Hedland. As a result,
arrangements had been made for the complainant to attend an interview with
Messrs Duscher and Smith. Subsequently, on 10 November 1995, Mr Duscher had
come around and told her of the problem about her son's failure to pass the
medical. He subsequently telephoned and said that the complainant would not be
able to start the course because of his colour deficiency. She said that Mr
Eyden had instituted appeals to the Ombudsman and to the Commissioner. These
representations were made on or about 23 November 1995 following a
communication from Mr Duscher that the decision regarding her son was final.
4.2 Evidence for the respondent
4.2.1 John Smith
Mr John Smith, the APS business manager of the Western Region in 1995,
gave evidence by way of written statement (Exhibit R1) and orally. He told the
Commission that in order to cope with an influx of detainees from another
detention centre, the APS had advertised for short-term temporary APSOs to take
up additional positions at Port Hedland. There was no guarantee, however, that
staffing levels would continue at the November 1995 level.
He said that he and Mr Duscher had been quite impressed with Mr Eyden in the
interview which had taken place at Port Hedland. At the end of the interview
the complainant had been told that he would be required to have medical,
police, and security checks. If he failed them the offer of employment would be
withdrawn. The complainant had not mentioned there was any medical condition
which might affect the position. Colour blindness or colour deficiency had not
been raised at any time during the interview. A pro forma contract had
been prepared and given to him. The document did not expressly state that the
temporary employment was conditional upon police, security and medical
clearances. On the Monday following the interview Mr Smith became aware that Dr
Bowater had assessed Mr Eyden as not meeting the medical visual standard.
4.3 Other relevant evidence given in the Crombie hearing
4.3.1 Alan Crombie
Mr Crombie had been employed at level of a PSA (the equivalent of an
APSO) for a period of 4 years up till April 1996 at the Port Hedland
Immigration Centre. He had failed the colour vision test prior to his
engagement. This had not been noticed at the time of his appointment. The error
was noticed some time later. Following union representations a decision had
been made by the APS to allow him to continue in his employment at the basic
level but not to appoint him to a higher position. During the four years he was
with the APS he had been able to perform the tasks required of him in that
position without any problem due to his colour deficient vision. Fellow
officers who also gave evidence, including Mr Alan Ackroyd and Ms Darlene
Connors, confirmed that in their experience he had not had any difficulties
carrying out the functions of a PSA. These included dealing with the alarm
panel and other jobs requiring identification of lights, such as recharging
radio batteries.
4.3.2 Mr Graeme Fry
Mr Fry, Assistant Secretary, Core Operations and Client Services with
the APS, told the Commission that the Commonwealth had adopted a public service
structure which distinguished at the lower levels between general service
officers who provided skills of a more technical kind and administrative
service officers who tended to undertake the clerical work. The PSA position
occupied by Mr Crombie was introduced to provide a lower level of guarding at
the general service officer level. It had been thought appropriate to use PSAs
at the Port Hedland Centre to reduce the cost to the Department of Immigration,
the Department in charge of the facility. It was also a fact that the people
detained there at the time when APS first provided officers were considered to
be of low risk.
Mr Fry also explained that from time to time the APS had to meet "surge"
requirements whereby they would have to move officers from one location to
another to undertake special protective security needs as they arose. Regarding
PSAs at Port Hedland, some were posted there on a periodic posting of three to
five years while others were permanently stationed at Port Hedland. Officers
were liable to be transferred anywhere in Australia and had in fact been
transferred from Port Hedland to other locations.
Regarding the requirement that PSAs should have normal colour vision, Mr Fry
stated:
Certainly one of the primary reasons for having colour vision is identification
of people or items. For example, if you've got a group of people in a crowd
situation and they are all/may be of similar colour hair and the same ethnic
origin quite often the only way you're going to identify who a particular
person is, is by the colour of the clothing they are wearing. The problem in a
close environment, for example like Port Hedland, or in a situation like we had
at the Parliament House riot, if you were to seize the wrong person you can
actually inflame the situation rather that diffuse the situation. Certainly in
other areas you could have a bomb threat. A person may ring up and say, 'I have
left an explosive device in a red bag or a blue bag?' This happens on a regular
basis unfortunately at airports, diplomatic missions. We have to go and search
for a specific thing.
He explained that such situations might involve all APS officers (including
PSAs) if they were at the particular facility. He also explained that there may
be circumstances in which it was necessary to give a description of a vehicle
to the police for identification. This could include descriptions of the people
in the vehicle as well as the vehicle itself. If, for example, only a partial
identification of a registration number had been made, identification of the
colour and make of the car would narrow the decision-making down.
Regarding the possibility that an officer might have to work with bombs, Mr Fry
stated that even though a person may not be trained in bomb appraisal all
officers were trained to search and look for suspect devices. If a suspect
device was found a bomb appraisal officer would be called.
He also advised that around September 1995 the organisational structure of the
APS had changed with the office of PSA being abolished and a new designation
introduced. This was Assistant Protective Service Officer, the position for
which Mr Eyden had applied.
Regarding Mr Crombie's performance, Mr Fry said that he never received any
report suggesting that Mr Crombie's colour blindness had affected his abilities
to perform his job. The problem was that Mr Crombie was not able to pass the
general medical standard which applied throughout the APS. Mr Fry was not aware
that any tests had been made to determine whether Mr Crombie could perform the
specific duties of his employment. There was no need to make accommodations in
Mr Crombie's case because, as a PSA, he was always under supervision.
In relation to colour identification, Mr Fry stated that he could not give an
accurate percentage of the times when it would be necessary to identify a
person by the colour of their clothing, and maintained that such an ability
would certainly be relevant. When trying to differentiate between two people,
colour might be the only thing to indicate a difference. Similarly with car
identification, colour could narrow down the number of vehicles of a particular
type.
When asked whether colour identification problems might affect the result in
court proceedings where an APS officer was required to give evidence, Mr Fry
stated that the outcome could affect the APS. Its officers were charged out to
client departments and organisations and cost more than private security
personnel. A loss of credibility could therefore affect the acceptance of the
APS to clients. When asked how often officers might be required to appear in
court, Mr Fry responded that six appearances in a year would be exceptional.
Questioned by Mr Eyden about whether the APS used particular forms of visual
testing such as spotting people in line-ups to see if an applicant could
possibly distinguish between red and green, Mr Fry responded that there had to
be a medical standard set. It would have to be substantiated by medical
opinion. As to whether there could be a more practical test in actual
situations rather than looking at colours in a book (that is, the Ishihara
plates) he said that the standard was something more scientific than just doing
practical tests.
4.3.3 Mr Lawrence Gardiner
Mr Gardiner was a Superintendent in the APS who was the officer in
charge of training of officers of the National Centre in Canberra. He
considered colour perception an important criteria for persons in training
courses. This was because of the need to deal with colour coding relating to
explosives, fire fighting equipment, counter terrorist responses, x-ray
scanning of packages at airports and identification of persons.
Colour coding was important for the identification of explosives in respect of
bomb response training. Basic awareness of the colour systems was important not
only for the protection of the officers themselves but also members of the
client organisation and of the public. Incidents had occurred such as at
airport facilities where articles of a hazardous nature had been identified
simply by their colour coding. Also, the training relating to crowd control
included recognising individuals and making reports which could involve the
colour of the shirt of a particular person. This would be relevant to law
enforcement requirements such as prosecutions. There would be a need to make an
accurate and detailed report of an incident. This was also true of motor
vehicle identification. Training at the Canberra National Centre in fire
protection required an ability to distinguish between different kinds of fire
extinguishers relevant to different kinds of fires. Colour differentiation was
also relevant to persons carrying out x-ray screening duties for packages, as
at airports or residences of important Commonwealth officials. The training
also had to accommodate the needs of the APS in relation to surge situations
where officers might have to be moved around Australia. In some security
situations premises did have multi-coloured alarm panels. Colour coding was
also used in relation to training equipment such as weapons. Hand guns, for
example, were distinguished on the basis of colours of handles to indicate
whether live or dummy ammunition was being used.
Asked whether an applicant for a position could attend a course to ascertain
whether he could comply with the safety aspects, Mr Gardiner said that it could
have been possible. The position was, however, that if an individual could not
meet the prescribed selection criteria he or she would not be allowed to attend
the course. This was "purely on technical grounds from the point of view of the
inability to meet the criteria". The criteria was applied across the board in
effect without reference to an individual's personal capacity.
In cross-examination Mr Eyden put it to Mr Gardiner that a colour deficient
person, depending on the particular diagnosis, could distinguish between the
colours of a fire extinguisher in a practical course; hence such a person might
be able to identify the extinguishers correctly without a problem. In response
Mr Gardiner stated: "what I'd say would be that in our training requirements we
accepted the best advice offered by the fire services and as you know fire
services and symbols quite frequently... do change colour-coded systems."
He then suggested that if a colour coding system changed a colour deficient
person might have difficulty with the new colours. Asked whether the person
could not then be re-tested to see if he could pick out those colours Mr
Gardiner replied that if there was a recorded colour deficiency in relation to
a specific colour only the medical reports would be looked at. In other words,
they "would probably fall back to again, a management criteria". Pressed by Mr
Eyden that colour deficient persons could distinguish relevant colours the
witness again indicated that there would be reliance upon medical advice. If
that was not favourable then the possibility of training would not be
considered. There could be many officers applying for a training course who
have to be screened. He stated:
It wouldn't be practical for the Australian Protective Service to offer
individual further testing to all those officers if they didn't meet the
criteria of the strict requirements. I do recognise there are varying degrees
of colour perception levels where an officer could recognise sometimes green or
whatever. Our circumstances were if the medical service indicated that the
individual was unacceptable, then that's as far as it would go with us. We
wouldn't go any further in the training arrangements. They either met the
criteria or they didn't.
4.3.4 Dr Robert Scott
Dr Robert Scott, an occupational physician, submitted a report to the
Commission dated 20 July 1997. In compiling the report, Dr Scott had access to
various medical reports that had been compiled in relation to Mr Crombie. He
had seen a report of an ophthalmic surgeon, Dr Nagle, dated 20 June 1997 which
was tendered to the Commission. In his report, Dr Scott also had regard to a
report dated 24 August 1992 by Dr M Klein, Senior Medical Officer with the
Commonwealth Department of Health (also made available in evidence), and agreed
with the comments and reasoning therein. He felt the observations made by Dr
Klein were correct about colour deficiency.
In his report, Dr Scott states:
On 24 August 1992 Dr M Klein, Senior Medical Officer, Occupational Medicine,
within the Australian Government Health Service, wrote to Mr G Ryan, Manager,
Administration, APS, explaining, in some detail, the subject of colour vision,
and addressing the question: Is the colour vision standard fair and reasonable?
I agree with these comments and reasoning.
As a consequence of the above I have no difficulty in affirming that colour
defective vision, as diagnosed in the standard, is, and should be, a bar to
employment in the subject positions - ie such a defect does not allow an
applicant to meet the standard.
As an Occupational Physician I then turned my attention to the question of
whether normal colour vision, in a real-life situation, is necessary in the
positions under discussion. I again refer to Dr Klein's memo of 24 August
1992.
Dr Scott had himself visited three sites in the ACT operated by the APS. This
led him to state that "the results of my visits to these three areas was to
confirm, in my mind, the correctness of the current medical standard for
officers in the APS. That is to say, it is my opinion that normal colour
perception, as described in the standard, is required". In concluding that the
medical standard was necessary to the performance of the duties of officers of
the APS, he had had regard to the duty statements of those officers.
The day before giving his evidence Dr Scott had visited the immigration centre
at Port Hedland where Mr Crombie was engaged and had been shown around the
facility. In the light of that this visit he had prepared a supplementary
report dated 23 July 1997 which was tendered in evidence (Exhibit RU). It
referred to a number of situations at Port Hedland involving colour
identification such as changing batteries, fire boards, camera panels, fire
alarms and hand-held radios. He had again concluded that normal colour
perception was essential in carrying out the duties of an officer in two main
respects. The first was the ability to detect colour on control boards and
panels and the second was in relation to the ability to identify individual
persons. He said that the matter of identifying colours of clothing could be
affected by lighting conditions, bad weather, or in emergency situations where
one does not have the time to concentrate. He also thought that the same would
apply in relation to any requirements to identify vehicles. Asked whether his
opinion was that the duties of officers of the APS required normal colour
vision in particular at Port Hedland, he said that he believed that to be
correct.
In cross-examination Dr Scott conceded that under good conditions it would be
possible to see whether a particular light was illuminated and whether it was
flashing or continued in a particular way. With respect to the camera panel
monitor he conceded the red and green lighting was labelled. With respect to
the re-charging of batteries when a light changed from red to green and whether
he could distinguish the change, Dr Scott (who is himself colour deficient)
said: "not easily and I tried to put myself into the situation where, if there
had some form of disturbance and one was using one's mobile phone considerably
and then was wanting to replace the battery in a hurry, I would think there
could well be difficulty with a person with colour defective vision". He agreed
that he was talking about degrees of difficulty, adding that it depended upon
the critical nature of the operation. When asked whether a person of the colour
deficiency from which Mr Crombie suffers would be able to perform his duties as
a PSA if alterations were made to the workplace, he replied:
I would want to know what alterations were considered, where they would be and
under what circumstances and whether that person then would be limited in the
duties as described of those two designations that you mention.
In terms of his principal report, he was asked whether he had been asked to
comment on the standard which applied and whether it was a reasonable standard
or not, to which he replied:
on the medical findings that I was provided with in terms of Mr Crombie and Mr
Eyden, it is, that the standards which were set with which I agreed were then
applicable to those two people and would in my opinion rule them out if I were
asked to say were they able to carry out the duties of those two functions.
He agreed, however, that he had not met Mr Crombie and not tested him
personally in any of the situations or circumstances. He also confirmed to the
Commission that he had not been asked to assess, in relation to specific tasks,
what modifications might need to be made to accommodate Mr Crombie's
deficiencies.
Cross-examined by Mr Eyden, Dr Scott was asked whether, instead of just being
tested on Ishihara test plates and failing, it would be possible that someone
such as himself and Mr Crombie could have been put in circumstances where they
could actually identify the colours and show that they were quite capable of
not misinterpreting colours in a practical sense. Dr Scott replied that he
would have had difficulty in the circumstances of charging the battery in a
hurry. He said "if I were given time to really look, concentrate, think about
it and make a bit of a calculated guess but as for just saying, take it and
swap over, no, I would have problems." In other circumstances he said that he
would have difficulty.
In response to a question from the Commission he said that if asked if someone
was wearing a red t-shirt in a crowd he might well have difficulty depending on
the saturation of red in the t-shirt. This was because colour vision is
dependent upon saturation, brilliance and hue. In re-examination he said it was
possible for people with colour deficiencies to use cues to assist themselves
but suggested there was a slightly greater risk of accidents, for example, in
relation to identifying changes in traffic lights. He stressed that in
sub-optimal environments where, for example, light was poor and a person did
not have much time there would be difficulties in identification of cars. Asked
by the Commission whether the requirements of the standard might be unduly
stringent, Dr Scott disagreed and said that was why Dr Klein had said it was
fair and reasonable and justifiable, and why he (Dr Scott) had agreed with him.
4.4.5 Report of Dr Klein
The report of Dr Klein dated 24 August 1992 was also tendered by the
respondent. It was provided in response to a request for a review of the use of
the Ishihara plates given the existence of other tests. Since it has figured
importantly in the respondent's case the Commission has given close
consideration to the following extracts:
Is the colour vision standard fair and reasonable?
The current colour vision standard for Protective Services Assistants and
Protective Services Officers is that colour vision must be within normal
limits. This is presently assessed as having two or less errors using the
Ishihara Test Plates.
When considering relaxing the standard of colour vision a number of questions
should be asked and these should be systematically answered before a considered
opinion can be made. Obviously the first is whether or not colour vision is
required at all. How often is colour vision required? How many colours are
required to be identified? What accuracy does the process require? Are there
non-colour cues that colour defective people can use? What are the consequences
of a mistake? Are positions available that do not require colour vision? Can
adjustments be made to contract the need for colour vision?
In the case of PSAs and PSOs colour vision is required for recognition in the
following tasks which are examples of the need for colour vision but do not
include every instance where colour vision is needed:
Colour coded passes
Colour coded alarm indicators
Colour coded files
Colour coding on VDUs used in security applications
Person/clothing description and identification
Motor vehicle description/identification
Colour vision is required on a daily basis in most PSA/PSO positions. The
number of colours required to be identified is numerous and the differences in
colour often small. The speed at which colours have to be identified varies but
the situation of pass recognition at peak periods such as the start of the day
and return from lunch requires a fast and accurate interpretation.
Colour vision defective persons are slower at colour recognition, make more
mistakes and often try to conceal the anomaly. The lighting conditions under
which recognition is required are not always optimal. Poor internal lighting is
often the source under which recognition is required.
The accuracy of determining colours is critical. Certain colours on passes
allow access to certain areas and not others. This needs to be quickly and
accurately determined. With pass recognition large numbers of people literally
walk past the observation point without stopping. Any breach of the access
requirement needs a fast decision made and immediate action taken. Accuracy is
required in other areas of colour recognition, however speed is not as
important and time would be theoretically available to use non-colour cues such
as writing on files, alarm panels and VDU screens. Other cues such as flashing
areas on VDU screens would also assist the colour defective person. However,
there is no doubt that these employees would be far less efficient in
performing their duties. As an example, for random checks of offices to
determine whether files have been left out inappropriately a person with normal
colour vision can simply look through a window or doorway and look at the
colours of the folders. A colour defective person may need to actually look
through the pile and read the security classifications written on them.
Colour defective persons under stressful conditions are less likely to give
accurate colour interpretations in such instances as describing colouration of
persons, clothing and motor vehicle when involved in a security breach.
The consequences of making a mistake with colour perception should be well
known to the Australian Protective Service. In this review it would be suffice
to say that the potential is there for a disastrous situation to occur.
After speaking to managerial staff at the Australian Protective Service it
would appear that placing people with defective colour vision in a select small
number of positions not requiring critical colour vision is not practical.
Persons are often required to rotate positions and provide relief manning at
other positions and establishments.
After weighing up the evidence of the review on the colour vision standard it
seems unlikely that any easing of the current requirement for normal colour
vision would be advisable. Conversely, it could be said that the standard
should be more strongly tested by testing for blue vision defects albeit that
they are extremely rare. The current testing procedure only detects defects
with red/green vision (Emphasis added).
The Commission would comment that despite Dr Klein's assessment that the
potential is there for a disastrous situation to occur, there is little in his
report to suggest he is writing from other than a highly generalised and
theoretical perspective. His report appears to be addressed to severely
affected persons, for example, his illustration of a person having to determine
whether a pile of files have been left out inappropriately. His categoric
assessment that employees with colour deficiency could be far less
efficient in performing these duties stands at odds with the experience of
the APS concerning Mr Crombie.
5. SUBMISSIONS OF THE PARTIES
5.1 Submissions of the complainant
Mr Eyden submitted that the matter was basically one of fairness
relating to persons with colour deficient vision. In his case there had been no
reasonable practical testing procedure to ascertain whether or not he actually
could perform the duties of an APSO at Port Hedland. The respondent had relied
on a general medical standard which could not determine whether or not he could
do what the job required. He had had no chance to show that despite his failing
the Ishihara test (which he claimed was crude) he was not so colour deficient
that he could not carry out the requirements of the position. If tested as to
his actual ability to do specific tasks, he would have accepted his
non-appointment if he failed. Overall, it came down to whether he, as an
individual, could perform the requested duties.
He also submitted that, although Mr Crombie's complaint raised issues going
beyond those of whether a colour deficient person could meet the requirements
of a PSA/APSO, the fact that Mr Crombie had been able to function efficiently
as a PSA helped to confirm his (Mr Eyden's) contentions.
Regarding the various items of compensation that he claimed, he submitted they
were fair and reasonable.
5.2 Submissions of the respondent
5.2.1 Preliminary issue: section 15(1)(a)
As the complainant was not legally represented, the Commission raised
with Mr Macliver whether some aspects of the matter could fall within section
15(1)(a) of the Act as well as section 15(1)(b). If so, it would foreclose
reliance by the respondent on section 15(4) so far as section 15(1)(a) was
engaged. Could a failure to acquaint an applicant for an advertised position
like Mr Eyden, that his having a particular condition like colour deficiency
absolutely precluded him from making a successful application, amount to
discrimination in relation to the "arrangements" preceding the making of an
offer? If the respondent was constrained by a medical standard so that it was
futile for the complainant to undertake steps, such as presenting for an
interview, because of his having a particular disability, that, on one view,
could be regarded as involving discrimination on the ground of disability in
relation to the "arrangements" made to consider the complainant for a
particular position of employment. Looked at in that way, the adoption of the
medical policy could constitute a breach of section 15(1)(a). The situation in
the present case was aggravated, arguably, by reason of the failure of the
respondent adequately to disclose the colour vision standard so that the
complainant was induced to enter into the arrangements for possible selection
unaware that, unlike applicants not affected by his disability, he was already
pre-ordained not to be offered employment.
In response, Mr Macliver submitted that section 15(1)(a) could have no
application to the circumstances; rather the matter was one falling within
paragraph (b) of section 15(1). That being the case, section 15(1)(a) was over
taken by section 15(1)(b), so that section 15(4) clearly became relevant.
5.2.2 Response to complainant's contentions
In respect of Mr Eyden's claim that the duties of a PSA/APSO were not as
broad as those of a PSO (as considered in Mr Crombie's case) and, hence, the
vision standard need not be so stringently applied, the respondent's position
was that the base requirements, as disclosed by Mr Smith's evidence, still
meant a PSA or its equivalent classification, an APSO, had to be able
adequately and safely to perform duties such as guarding, screening access,
patrols, monitoring alarms and responding to security incidents. Effective
colour vision was still essential.
With respect to Mr Eyden's contention that relying simply on the Ishihara test
was too crude a process to establish whether or not a person with only a mild
visual impairment could carry out the inherent requirements of the position,
the respondent relied on the expert evidence of Doctors Klein and Scott (and,
in the latter case, the witness's personal experience as well). It was
submitted that the Commission should accept their experience and expert
evaluation over the assertions by a lay person, Mr Eyden, that, if practically
tested, he might have been able to perform the necessary tasks of the job
despite his impairment. Their expert evidence was that persons with colour
deficiency would not always be able to identify colours directly. Given the
responsibility of an APSO for protecting persons, the consequences of a mistake
could be drastic, particularly in an emergency situation. Though perhaps a rare
case, the responsibilities of officers of the APS were such that adopting a
stringent preclusive standard like the Ishihara test was justified.
As to compensation if an adverse finding were made against the respondent on
the issue of discrimination, Mr Macliver submitted that the complainant has
been put on notice by the job advertisement that he would have to satisfy
"stringent medical standards" yet had made no further inquiries from the APS
before flying to Port Hedland for the interview. Further, once he had become
aware that he had not passed the medical standard for vision, he had not
addressed any inquiry about how that might affect his application. Instead, he
had returned to Jurien Bay and had proceeded to make arrangements to finish up
his tyre business and sell.
The respondent also challenged the calculations of alleged actual losses
claimed by Mr Eyden. This was with regard to the sale of his business, the cost
of travel to Port Hedland by motor vehicle, loss of income or wages when forced
to seek alternative employment in Port Hedland and other items such as
accommodation expenses (given he was staying with his parents) and extra
expenses, including higher electricity charges for air conditioning.
As to compensation for hurt, disturbance and distress, the respondent's
submission was this should only be very small, having regard to comparable
awards by the Commission.
6. DISCUSSION OF LEGAL ISSUES AND RELEVANT FINDINGS
6.1 Findings relevant to section 15(1)(a)
As mentioned above, because the complainant was not legally represented
I put to Mr Macliver the possibility that the complaint was capable of falling
within both paragraphs (a) and (b) of section 15(1). Though the respondent
disagreed with that proposition, in my view it is open to me to consider this
complaint as not only based on section 15(1)(b) of the Act but also section
15(1)(a). Section 15(1)(a) may be read to embrace acts or omissions by a
potential employer that occur in the antecedent pre-offer stage that
have an exclusionary effect in terms of foreclosing an employment opportunity
to a person with a disability.
In some cases, and this is probably one of them, there may be a merger or
overlap between the elements necessary to establish a breach of both paragraphs
(a) and (b) of section 15(1). In this instance there was a common disqualifying
policy based on the medical standard but it can be seen to have had an
independent if perhaps incidental effect rendering the arrangements concerning
the interview sterile. The complainant was deprived of any possibility of a
non-discriminatory consideration. Causally, because he was not given reasonable
notice of the standard (which I find to be the case), he acted to his detriment
in proceeding with his application. Section 15(4) has no role to play in those
circumstances.
I find that the relevant "treatment", for the purposes of the definition of
"discrimination" in section 5 of the Act, was the advertising by the respondent
of the job opportunity for which Mr Eyden applied, together with making
arrangements for him to be interviewed without disclosing the relevant bar to
appointment, and the interview process, including the making of an offer of
appointment to him contingent on passing his medical examination. These matters
also constituted the "arrangements" within section 15(1)(a) of the Act.
Implicit in the respondent's pre-engagement dealings with the complainant, and
thus part of the respondent's treatment of him (through not adequately made
known to him), was the fact that as a colour deficient person there was no
prospect for him to succeed in his application. Any application he might make
in response to the advertisement was predestined to be rejected once it was
known that he could not meet the colour vision standard. His act of applying
was susceptible of being treated differently from applications by these without
his disability.
Although the fact that he would not be considered as eligible for appointment
did not become evident until Mr Eyden was medically examined by Dr Bowater, it
was inherently inbedded in the procedures that led up to him attending at Port
Hedland for interview. I do not consider the fact that the complainant was
informed of the need to pass a medical examination as sufficiently specific to
put him on notice that his application would be rejected on the ground of his
visual disability. By not clearly disclosing to the complainant that because of
the standard there was a bar on his potential appointment, the respondent
compounded the effect of its exclusionary policy. Unaware that his application
had no chance of succeeding, the complainant incurred expenses that he could
have avoided if he had known of the bar.
This does not mean that notice of the colour vision bar should have been
included in the advertisement. But where, as in this case, an applicant is
about to expend time and money in order to attend an interview personally, it
would have been reasonable and appropriate to acquaint the applicant with
relevant information, such as that relating to the stringent medical standards
expected of officers in the APS. The position might be different in the
situation where a person does not need to attend at a distant location.
Though there was a faint suggestion in the evidence for the respondent
(statement of Mr Smith, Exhibit R1, paragraphs 11 to 14) that Mr Eyen could
have been interviewed by telephone, I am satisfied that the arrangements made
by the respondent's officer were made with the knowledge that he would
personally attend in Port Hedland and be available for medical examination in
that town. I am therefore satisfied on the evidence that the respondent did
discriminate against the complainant within the meaning of section 5 of the
Act, and further, that this discrimination occurred in the course of
arrangements made for the purpose of determining whether he should be offered
appointment as an APSO with the respondent. Accordingly, I find the respondent
has acted unlawfully in breach of section 15(1)(a) of the Act. In that regard
section 15(4) of the Act does not provide a defence.
I should make it clear that this breach only covers the events between when the
complainant became aware of the advertisement calling for applications up until
when he completed the interview and medical examination process, including his
return to Jurien Bay on 6 November 1995.
Having found that in respect of the preliminary dealings between the parties
there was a discrete breach of section 15(1)(a) I will address the issue of
appropriate remedies separately below. I should add that if I were of opinion
that there had been no separate breach under this head, the damages payable in
respect of this breach would be cumulative with those otherwise payable for
breach of section 15(1)(b). I should also add that I am satisfied that the
conduct of the respondent which I regard as giving rise to a breach of section
15(1)(a) also constitutes, alternatively, a breach of section 15(1)(b) in any
event.
6.2 Findings relevant to section 15(1)(b)
The next question is whether the respondent has breached section
15(1)(b). In that respect I make the following findings.
The complainant, induced by an advertisement published by the respondent,
applied for a position as an APSO in Port Hedland in late October 1995. He was
advised by an officer of the APS to attend an interview on 6 November 1995 in
Port Hedland. He drove to Perth and caught a commercial flight to Port Hedland.
On 6 November 1995 he was interviewed by Messrs Duscher and Smith, officers of
the APS. He was advised that, subject to meeting the necessary medical, police
and security checks, he would be appointed to the position for which he had
applied. At the close of the interview he was informed by letter that he would
have to attend a week's training course the following week.
He then attended, on the afternoon of 6 November 1995, a medical examination by
Dr Bowater. He failed to pass the Ishihara test which was prescribed as the
appropriate colour vision standard by the APS. Dr Bowater indicated to the
complainant that he did not meet the standard. The complainant formed an
impression that there might be a discretion in the relevant senior APS officers
to waive that requirement. I can find no foundation for such a belief, however.
What is clear is that he made no further inquiry to ascertain his situation
arising from his failure to pass the standard. Though he had little time to do
so in Port Hedland, in my view he was put on notice by Dr Bowater of the
possibility of a problem arising over his colour deficiency. Even if he was not
able to inquire further that day, I find he unreasonably assumed he still had a
good chance of selection and appointment. He should have made inquires about
the matter as soon as possible. The failure to do so is relevant to the matter
of any compensation that might arise if the respondent breached section
15(1)(b).
I further find that the complainant returned to Jurien Bay by flying back to
Perth on the evening of 6 November 1995 then driving back to Jurien Bay. There
he put in train, with the assistance of his parents, the closing of his tyre
business. This was effected by his father concluding negotiations with Mr Manns
for the sale and purchase of the business. The price accepted was $36,500,
being $8500 less than the asking price of $45,000. Mr Manns had made the only
offer for the business. The complainant then packed his goods and drove to Port
Hedland, leaving his mother to manage the tyre business pending the hand-over
to Mr Manns.
The parties were in dispute as to the actual distance the complainant would
have travelled, the complainant claiming 1750 km, the respondent 1589 km. While
the latter figure might approximate the shortest distance by road map it is
reasonable to assume that there were further necessary turnings and deviations
along the way. I am prepared to accept 1650 km as a reasonable estimate.
The complainant on reaching Port Hedland received advice he would not be
appointed on account of failing the colour vision standard. That standard had
been imposed as a result of expert medical advice, including the report of Dr
Klein. The complainant was also advised he was not to commence the training
course. He made efforts to have the matter reconsidered by way of what he
describes as an "appeal" but by letter dated 6 December 1995, he was finally
advised officially that his application had been refused. Six weeks after
arriving at Port Hedland on the second occasion he obtained employment in Port
Hedland as a tyre fitter.
In the light of the above findings I am satisfied that as an employer, the
respondent treated the complainant less favourably than applicants who did not
have his colour deficiency disability, and thereby, in refusing to appoint the
complainant to the position of an APSO by reason of him not meeting the
stipulated colour vision standard, discriminated against him on the ground of
his disability, contrary to section 15(1)(b) of the Act.
6.3 Consideration of section 15(4)
Whether the respondent's action was unlawful turns on whether it is excused by
virtue of section 15(4) of the Act.
In that respect, I make the following further findings. The "inherent
requirements of the particular employment" of an APSO at Port Hedland at the
end of 1995 included being able to carry out efficiently such tasks as reading
alarm panels, recharging phone batteries, and identifying persons. In such
cases, identification and description using colour references would be
important and facilitate the performance of the function. As an officer in the
APS could be transferred to another post in a "surge" situation, other
identification functions would be required of such an officer. These would
include identifying packages and bags at airports (possibly containing
dangerous items), describing fleeing motor vehicles and crime suspects, or
picking out persons in a riot situation. Other duties involving colour
identification, such as giving evidence at a prosecution, could also be
entailed.
However, as I concluded in my reasons in Crombie, I am not satisfied on
the basis of the evidence led for the respondent that the complainant would not
have been able to carry out the inherent requirements of the particular
employment (which I regard in this instance as a three month appointment at the
Port Hedland Immigration Centre). It is clear that Mr Crombie had, at that
time, been discharging functions of the same kind as and equivalent to those Mr
Eyden would be required to perform if appointed. It is apparent from the
evidence of the officers of the respondent who worked with or supervised Mr
Crombie that there was no occasion on which it was found he could not do what
was required of him.
For reasons which I have explained at greater length in my reasons for decision
in Crombie, although I place great weight on the expert evidence and
reports of Drs Scott and Klein, their views exhibit an absolute and unqualified
certainty which is not consistent with the actual performance by Mr Crombie of
his duties.
As to Mr Eyden himself, he demonstrated to me that he was able to make adequate
colour differentiations as in the case of the bunch of coloured wires (Exhibit
C7) at least in a tribunal setting. I do not regard myself, as a lay person, as
able to draw inferences from that demonstration that he could, for example,
sufficiently identify a fleeing car by night (to use a paradigm example put
forward by the respondent). But, taken along with the fact that Mr Eyden was
able to meet the colour demands of other employment such as auto mechanic, it
does lead to a reasonable inference that Mr Eyden's colour deficiency did not
substantially inhibit his colour identification in ordinary circumstances.
The respondent, however, has stressed that in a case where public safety is
entailed, the judgement of the complainant's ability to perform the inherent
requirements of the employment must be made in the light of his capacity in
extreme conditions. This may be accepted. But, taken at its highest, I am not
satisfied on the basis of the medical evidence that Mr Eyden could not carry
out the tasks that would have been required of him as an APSO. Given that this
evidence was markedly at odds with what Mr Crombie was able to do without
apparent difficulty, I am not persuaded either way as to whether the
complainant could meet the inherent requirements or not.
The point in the end comes down to the central claim made by the complainant.
It was that the sole reliance by the respondent on the Ishihara test was not a
reasonable basis in his case for assessing him as incapable of carrying out the
inherent requirements of the particular employment. No opportunity was provided
to the complainant to show otherwise. The complainant might well have failed a
test devised by the respondent that was based on the kind of actual tasks or
occurrences an appointee might encounter (even if somewhat unlikely or
extreme). Nor was evidence led, except in the most general terms through Mr
Gardiner, to show that individual testing of the complainant would have
entailed unjustifiable financial or other hardship. I am not persuaded that
there would have been unjustifiable hardship if some practical test, in
addition to the Ishihara test, had been administered to the complainant prior
to any offer being made to him.
The Commission is, therefore, left in a situation where it cannot be satisfied
that the respondent has made out its defence under section 15(4). It follows
that the discrimination engaged in by the respondent in withdrawing its offer
of employment to the complainant was unlawful.
7. REMEDIES
The complainant claims the following amounts by way of compensation:
Loss on sale of business $8500
Travel to Port Hedland $1750
Employment of staff in order to take up position $1750
Week's accommodation paid to appointees $1080
Travel and relief staff relating to interview $1380
Loss of 6 week's income while unemployed $6000
Loss of income for 3 months not employed with APS $7200
Removal fee for travelling back to Perth $1750
Additional costs of living at Port Hedland $1800
Travel/accommodation Jurien-Perth for hearing $ 750
Costs associated with representation from Port Hedland $1200
Faxes, phone, bookkeeping etc $1000
TOTAL $34,160
In addition, the complainant claims $50,000 for personal suffering which he
states is "conservative".
The Commission notes that although the complainant was advised prior to hearing
that items claimed by way of compensation would need to be substantiated, very
little in the form of receipts, accounts and so on was provided to it. The
complainant did file a statement (Exhibit C5) which expanded on his claim in
some respects but it also largely contained assertions rather than proof. There
is nothing before the Commission to show, for example, how much was actually
paid to replacement staff to mind the business while he was absent. The same
can be said about proving any discrepancy between the remuneration paid to an
APSO (no figures having been provided) and what he earned as a tyre fitter in
Port Hedland (though he did provide to the Commission a statement from Toms
Tyre and Brakes Port Hedland that the base wage for an adult tyre fitter was
$366.10 per 38 hour week).
Nevertheless, the Commission is prepared to take reasonable notice of basic
facts and apply an approximate rule of thumb to items it considers properly
attributable to the respondent's breach(es) of the Act.
Having said this, the Commission notes that various of the above items are
insupportable or overinflated, somewhat in the nature of an "ambit" claim. For
instance, the cost of a week's accommodation at Port Hedland that would have
been provided by the APS was never a cost paid by the respondent. To award
compensation for it would represent a windfall. Similarly, there is necessarily
an overlap between claiming compensation while out of work and 3 months' loss
of salary that he would have earned as an APSO. Nor are any costs of the
complainant or his parents associated with pursuing this complaint and
attending the hearing claimable.
Furthermore, I agree with submissions made by Mr Macliver that the complainant
was largely the cause of any loss he might have incurred arising from the sale
of the tyre business in Jurien Bay. He should have waited until it was clear
that the failing of the visual standard would not prevent his employment by
APS. In any event, there was no reliable evidence presented as to the value of
the business. The fact that the business was advertised at a certain price is
no true guide as to its worth. The claim for $8500 is disallowed.
The Commission is satisfied that the following amounts of compensation should
be allowed.
Firstly, in respect of the initial breach of the Act, causing Mr Eyden to
travel unnecessarily to Port Hedland for interview, I find that $300 for motor
vehicle travelling expenses and meals and $150 for any expenses arising from
his absence from the business is reasonable. No claim was expressly made for
airfares. It is clear, however, that these were not met by APS. It would appear
that in later correspondence between the parties, the respondent offered to
make reimbursement for those costs. I have taken that into account in the
directions I make at the conclusion of these reasons.
I also am of the view that $1000 is appropriate as general compensation for the
inconvenience and disruption of attending the interview, and the shock and
disappointment that was occasioned by the announcement that the offer was
withdrawn.
With respect to the breach arising from the refusal to engage him, at least
without giving him a chance to prove he, as an individual, could satisfy the
inherent requirements of the employment, I consider the respondent should pay
$825 for vehicle cost of travel from Jurien Bay to Port Hedland (1650 km x
$.50), $400 for relief staff for the week he was away in Port Hedland expecting
to start the training course, $250 general costs of travelling and $100 for
other general expenses such as faxes and phone calls.
In addition, I would allow 3 weeks at $400 (i.e. $1200) loss of income, and
$300 general extra living costs, while he was unemployed in Port Hedland
awaiting the clarification of his situation. Whilst the complainant may have
sold his business prematurely and thus contributed to his unemployment in the
long run, I am of the opinion that it was reasonable for him to spend several
weeks in Port Hedland seeking to have his situation clarified. Undoubtedly,
poor communications between Jurien and Port Hedland aggravated things in the
first place, but the whole unfortunate imbroglio would have been avoided if
there had been a clear warning to the complainant about the absolute bar the
visual standard presented.
I would disallow all other items of special damage, including an allowance for
extra cost of living expenses in Port Hedland other than during the 3 weeks he
was waiting the outcome of his "appeal". Any other costs such as
airconditioning were necessarily incurred while he stayed there and would
appear to have been paid by his parents in any event.
Finally, I find the complainant should be paid $3000 general compensation for
hurt, disappointment, stress and anguish suffered by reason of the withdrawal
of the offer. This is additional to the amount of $1000 general damages allowed
above.
The complainant claimed he was shattered by the refusal of the position and
that it will have a devastating effect on his future. I do not think that is
the case. He impressed me as a capable, presentable, quick witted young man (as
demonstrated by his astute questioning of witnesses). He should be able to pick
up his bundle and forge a future for himself. The amount of $4000 overall
(consisting of the two separate amounts) may be compared to the amount of $8000
general damages awarded in Crombie. In the latter case Mr Crombie
endured ongoing frustration and disappointment over several years due to the
colour vision bar on his advancement in the APS. In the present case, Mr Eyden,
though looking forward to a career in the APS, had no guarantee that had he
been appointed to the temporary APSO position it would have been extended
beyond the initial three month engagement.
It is also relevant to take into account that the offer of employment was only
for a temporary position and that, had he taken it, his colour vision
deficiency might have proven a problem to his continued employment. As Mr Eyden
himself conceded, there was a possibility that, if properly tested he might not
have been able to carry out all the inherent requirements of the employment.
ORDERS
For the reasons set forth above I declare that the respondent has
unlawfully discriminated against the complainant on the ground of disability
firstly in the arrangements that were made for the purpose of determining
whether he should be offered employment, and further in determining that he
should not be offered employment, contrary to paragraphs (a) and (b) of section
15(1), respectively, of the Disability Discrimination Act 1992 (Cth).
I further direct that the respondent should pay to the complainant as
compensation the sum of $3525 for special damages, calculated as set forth
above, and the sum of $4000 (comprising amounts of $1000 and $3000) for shock,
hurt and disappointment: that is, a sum of $7525 in total.
Finally, I direct that in addition to the above compensation, upon receiving
from the complainant satisfactory information or documentation substantiating
the costs of his airfares relating to his attendance at the interview, the
respondent should reimburse him for those costs.