Karen June Logan v The State of Western Australia (Ministry of Justice)
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
ANDREW BEECH
No. H 99/47
Number of pages - 52
PERTH, 27-31 March, 17-18, 20 April 2000 (hearing), 12 September 2000
(decision)
#DATE 12:09:2000
Appearances
Ms J Stevens instructed by Marks & Sands Lawyers for the Complainant
Ms C Thatcher and Ms J Pritchard instructed by the Crown Solicitor for the
State of Western Australia for the Respondent
Order
See paragraph 9. Determination
ANDREW BEECH
1. INTRODUCTION
This is an inquiry pursuant to s.79(1) of the Disability Discrimination
Act 1992 (Cth) ("the DDA") into a complaint by Karen June Logan against the
State of Western Australia, by whom she was employed within the Ministry of
Justice until late 1997.
By letter dated 24 February 1999 the Acting Disability Discrimination
Commissioner referred, pursuant to s.76 of the DDA, the complaint by Ms Logan
to the Human Rights and Equal Opportunity Commission ("the Commission") for
inquiry.
The complaint by Ms Logan (made by letter dated 16 February 1998) was, in
summary, first, that the respondent dismissed her from her employment because
she could not restrain prisoners because of her disability, and, secondly, did
not consider her application for employment as a stores/laundry officer because
she could not restrain prisoners because of her disability. Ms Logan had, for
some years, worked as a prison officer for the respondent at Bunbury Regional
Prison ("Bunbury Prison"). In mid to late 1997 Ms Logan applied for a newly
created position of stores/laundry officer at Bunbury Prison.
It is common ground that on 20 November 1997 the complainant was dismissed from
her employment with the respondent. The respondent also admitted that the
dismissal was on the grounds her disability. The disability referred to has
been described in medical reports tendered into evidence as "multi-level, lower
lumbar, degenerative disc disease" (see Exhibit G, report of Dr Batalin dated
11 September 1996). The respondent says her disability meant that Ms
Logan was unable to restrain prisoners and that the ability to restrain
prisoners is an inherent requirement of the job of a prison officer.
The respondent also admitted that Ms Logan was not considered for the then
newly created position of stores/laundry officer for the same reason, namely
that her disability meant that she was unable to restrain prisoners. It said
that the ability to restrain prisoners was also an inherent requirement of the
job of stores/laundry officer.
From this skeletal outline of the facts the central issues in this inquiry
can, I think, be identified. The respondent's conduct in, first, dismissing the
complainant and, secondly, not considering her for the stores/laundry position
amounts to disability discrimination. In each respect, the respondent treated
Ms Logan "less favourably, in circumstances that are the same or are not
materially different, than [it] treats or would treat a person without the
disability" because of the complainant's disability within the meaning of s.5
DDA. This was accepted by the respondent in the course of the inquiry. In the
light of that admission by the respondent, the claim of indirect discrimination
need not be considered. The issue is whether the admitted discrimination was
unlawful.
The respondent contends that its conduct, referred to above, was not
unlawful discrimination because Ms Logan's disability meant that she would be
unable to carry out one of the inherent requirements of her employment, as well
the employment for which she applied, namely the ability to restrain prisoners.
More specifically, the respondent contended that it was an inherent requirement
of her employment that she could restrain prisoners without undue risk to
herself and to others and that Ms Logan could not carry out that requirement.
Thus the issues central to this inquiry include the identification of the
"particular employment" (within the meaning of s.15(4)(a) of the DDA), the
identification of the inherent requirements of the particular employment, and
whether or not Ms Logan was able to carry out those inherent requirements.
2. THE EVIDENCE
A large volume of evidence was admitted in this inquiry. The taking of evidence
took some 7 days. In addition a large number of witness statements, some quite
lengthy, were admitted as exhibits. There were also a substantial number of
documentary exhibits received. There were, on the other hand, relatively few
issues on which there was a direct conflict of oral evidence. Few, if any, of
such issues are central to the critical issues in the inquiry. Where there is a
direct conflict of evidence on a matter of real significance I will identify
and resolve that conflict in making the factual findings which follow.
It is neither necessary nor desirable that a comprehensive outline of all of
this material be provided in these reasons. Rather, I will attempt to outline
the relevant history, as it developed and identify the areas of evidence
relevant to the issues in the inquiry, as I perceive them.
2.1 Background facts
In May 1986 Ms Logan commenced work as a trainee prison officer. For the first
12 weeks as a trainee she undertook a prison officer training program at the
Academy at Woorooloo. This course included a 5 day segment on "Prisoner
Management and Restraints Training". There was some focus, in submissions, on
the question of how substantial the training in relation to restraints was.
There was also evidence of a range of restraint techniques. These included both
physical and non-physical methods of restraining and techniques involving one
or several prison officers. This is something to which I will return.
After completing 9 months on probation Ms Logan became a permanent prison
officer and worked at Canning Vale Prison.
In early 1987 Ms Logan injured her back at work. While bending down in the
kitchen in the prison she got pain across her lower back and down her leg. She
was off work for about 9 months.
In or about late 1989 she suffered a recurrence of her back injury. This
occurred while she was bending down checking underneath some vehicles. She was
away from work for about 2 months as a result.
By about 1993 Ms Logan moved to the Bunbury Regional Prison where she worked as
a shift prison officer.
On about 5 or 6 August 1996 Ms Logan suffered another recurrence of her back
injury. This occurred while she was getting out of her car. After having
reached over to the glove box to get her wallet she experienced a sharp pain in
her lower back and pain radiating into both legs.
She was then off work until about 16 December 1996 when she commenced a return
to work programme.
On 11 September 1996, at the request of the respondent, she was seen by a
specialist orthopaedic surgeon, Mr Nick Batalin. A report from Mr Batalin dated
11 September 1996 is part of Exhibit G. Mr Batalin had been provided with a
document entitled "Physical Requirements of Prison Officer Duties". That
document was annexure A to the statement of Mr Trevor Scorer. Mr Scorer has
been working within the Ministry of Justice since February 1993 and is
currently the manager of the Employee Welfare and Rehabilitation Unit of the
Ministry of Justice. He explained that the document referred to above had been
created after discussions between employees of the Ministry of Justice in
around 1993.
I will not set out the document in detail but it included, under the heading
of "Prisoner Restraints", the following:
"Prison Officers are required to respond to emergency/prisoner disturbance
situations and physically restrain aggressive or violent prisoners. Physical
requirements may include warding off blows, physically holding and manoeuvring
a prisoner, or application of restraints techniques or equipment in a way that
minimizes injury to all parties involved. This is considered one of the most
physical tasks, and is unpredictable in its time and place".
In his report of 11 September 1996 Mr Batalin stated that activities such as
restraining of prisoners, repetitive twisting and bending could adversely
affect Ms Logan's back.
From the time of the recurrence of her back injury in 1996 until this inquiry
Ms Logan has regularly seen her general practitioner Dr Peter Rae.
In about late October 1996 the respondent referred Ms Logan to a rehabilitation
service provider named Advanced Personnel Management. The relevant officer was
Ms Jennifer Wilkes, who gave evidence at the inquiry. (In 1996 Ms Wilkes was
known by her maiden name of Schurmann however I will refer to her as Ms Wilkes
throughout this decision). Ms Wilkes interviewed Ms Logan on or about 25
October 1996. In the course of that interview Ms Logan stated that among the
normal work duties associated with her work as a shift prison officer was
"restraining prisoners where necessary". During the interview she told Ms
Wilkes that "given her current physical limitation she would find difficulty
with the standing and walking requirements in her normal position". Ms Logan
also said that she would "need to be fit to handle any security situations
before returning to her prison officer position".
Ms Logan agreed, in cross-examination, that she had said things to this effect
to Ms Wilkes.
During November and early December 1996 steps were taken to devise a
rehabilitation programme so as to allow Ms Logan to attempt a gradual return to
normal work duties.
In his report dated 28 November 1996 to Ms Wilkes, Dr Rae observed that Ms
Logan had, by that date, been off work for almost 4 months with only moderate
improvement in symptoms. He noted that she was well motivated to return to
work. I would add that Ms Logan's motivation to return to work emerges
consistently from the evidence of all those in contact with her during 1996 and
1997. Dr Rae also made suggestions for appropriate physical precautions for the
proposed return to work programme. Finally, he stated that it was "reasonable
to think that if [Ms Logan] is not able to return to full duties within the
next 3 months then it is unlikely that she will ever regain that level of
fitness".
On 12 or 13 December 1996 a meeting occurred between Ms Logan, Mr Keith Flynn,
the Superintendent of Bunbury Prison, Mr Dan Millard, an officer of the
Employee Welfare Unit of the Ministry of Justice, Mr Stephen Sandilands, also
of the Employee Welfare Unit, and Ms Wilkes. Mr Phillip Giblett, a prison
officer at Bunbury Prison and a representative of the Western Australian Prison
Officers' Union ("the Union") may also have been present.
The evidence of both Mr Sandilands and Mr Millard was to the effect that the
representatives of the Ministry of Justice emphasised to Ms Logan that her
return to work would occur only in the event that her back problem improved
sufficiently to enable her to carry out her duties and, further, that a return
to work programme generally lasted only for 3 months. Although the possibility
of extensions was discussed, it was made clear that rehabilitation programmes
were necessarily of finite duration and, if there was insufficient improvement,
an officer might be required to be reviewed by a Medical Board. That evidence
was not challenged and I accept it.
Shortly after this meeting Ms Logan commenced a graduated return to work
rehabilitation programme. The programme involved her working a steadily
increasing number of hours per week performing limited duties assisting the
officer responsible for stores at the prison. On the material available, the
programme appears to have been professionally devised and implemented. No
suggestion to the contrary was made.
Ms Logan agreed, during cross-examination, that when she commenced the return
to work programme she understood that she was performing duties which were not
part of a designated job but which had been contrived for her. As it was put by
a number of witnesses, she was performing "supernumerary" duties.
Exhibit C is a letter from Dr Rae that, on its face, was dated either 13
January 1997 or 13 April 1997. Dr Rae said in evidence that his notes suggested
that he had written to Ms Wilkes on 13 January 1997 and there was no note of
any letter on 13 April 1997. On that basis I conclude that Exhibit C was most
likely dated 13 January 1997.
That letter stated that Ms Logan had mentioned the possibility of full time
employment in prison stores. Dr Rae expressed strong support for such a
possibility noting that it gave job and task flexibility "...without the
contingency of prisoner constraint [sic - restraint]". On the basis of Dr Rae's
evidence, I consider that the reference to the contingency of prisoner
restraint was one which had come from his discussions with Ms Logan. In other
words, by January 1997 Ms Logan had mentioned to Dr Rae that the position as a
shift prison officer involved the potential need to restrain prisoners. That is
consistent with it having also been mentioned by Ms Logan to Ms Wilkes at their
initial meeting.
There was ongoing regular contact between Ms Logan and Ms Wilkes. By around
mid-February 1997 Ms Logan told Ms Wilkes that she did not feel she had the
physical capacity to return to her pre-injury position of prison officer. She
also told Ms Wilkes that she was keen to pursue permanent employment in the
stores should such a position be made available.
On 13 February 1997 Dr Rae wrote to Ms Wilkes. In his letter he expressed the
view that if a permanent position in stores became available it would be an
ideal solution to Ms Logan's problems. He also commented that Ms Logan was not
going to be able to work again in the full capacity of a prison officer.
On 20 February 1997 Ms Logan saw Mr Batalin again. He commented that she should
not return to work which would subject her back to repetitive bending or heavy
lifting, but that he saw no contra-indication for work as a light store person
on a full time basis.
During this period, and independently of Ms Logan's situation, the staffing
arrangements at the Bunbury Prison had been under review. In particular, a
proposal for the creation of a new position developed. To put this in context
it is necessary to say something about personnel arrangements at Bunbury
Prison.
2.2 Bunbury Prison
A site plan of the Bunbury Prison was tendered in evidence. From the plan it
can be seen that a number of buildings and other structures are contained
within a razor wire perimeter fence. There are four blocks within which
prisoners are housed. These were described as C block, self care units, minimum
security and maximum security. There is a kitchen, canteen and dining room in
which meals are prepared and taken. There is a separately fenced industrial
area. That area has a number of workshops including workshops for mechanics,
carpentry, metal work, maintenance, grounds, vegetable preparation and a boot
shop. There is also a market garden outside the perimeter fence.
Employees within the prison may be categorised as shift prison officers,
industrial officers and others.
2.2.1 Shift prison officers
As the name suggests, shift prison officers would work, over a period of
months, on various shifts. Some of the shifts included working in cell blocks,
gatehouse control or sallyport as well as working as workshop disciplinary
officers. In each case, the shift prison officer would have responsibility for
various duties within the area of his or her roster. For example, some shift
prison officers would open up prison cells in each block each morning. A shift
prison officer who was working in the cell blocks would be responsible for
supervising the prisoners in that block going to and from meals, to the
workshop area and so on. Three officers would normally be attached to C Block,
where there might be more than 80 prisoners.
Ms Logan was a shift prison officer until her injury in August 1996.
2.2.2 Industrial officers
Evidence was led that in 1997 there were about 20 industrial officers employed
at Bunbury Prison. Of these, about half were what is termed Group 1 industrial
officers, the other half Group 2 industrial officers. Group 2 industrial
officers had a trade qualification. So, for example, a qualified mechanic would
work in that capacity in the workshop. Group 1 industrial officers did not have
any trade qualification. These positions were traditionally filled from the
ranks of prison officers, often when a prison officer wished to stop working
the 12 hour shifts then associated with shift prison officer work.
Group 1 industrial officers had the primary responsibility for the discipline
of prisoners in the industrial area with assistance provided, at times, by
workshop disciplinary officers. These were shift prison officers with the
responsibility for patrolling the workshop area.
One industrial officer had responsibility for each of grounds, maintenance,
mechanics, metal work, the boat shop and vegetable preparation. In the
carpentry workshop there were two industrial officers, one of whom was said by
Mr Giblett to be "disciplinary", the other being a qualified carpenter.
2.2.3 Other employees
The third category of employees at the prison were those appointed under the Public Sector Management Act 1994 (WA) ("the Public Sector Management
Act") pursuant to section 6 of the Prisons Act 1981(WA) ("the Prisons
Act"). This included people in administration and others such as nurses or
those involved in forensic case management.
2.3 Stores/laundry position
Prior to 1997 the duties of the laundry officer at Bunbury Prison had been
coupled with the duties of canteen officer. The increasing prisoner numbers led
to an increasing load on both the canteen and laundry functions. Evidence was
led that the officer who occupied the canteen/laundry position spoke to Mr
Giblett, which led to the position being reviewed at a meeting between that
officer, Mr Giblett, Mr Flynn and Mr Williams. Mr Flynn then applied to his
department to employ an additional industrial officer and to redistribute the
duties. The idea was that the laundry duties would be removed from the canteen
officer and a new position would be created of stores/laundry officer. That
officer would be in addition to the existing stores officer, as well as
performing the laundry duties. The existing stores officer position was
retained, although that officer's duties no longer included stock control.
By some time in early 1997 approval for the funding of the new position was
obtained. By 7 February 1997 Mr Millard made reference in an internal memo to a
potential new position of stores/laundry officer which might be coming up.
By some time early in 1997 Ms Logan was aware of the proposed creation of the
new stores/laundry position. On the evidence above, that was probably by about
January or February 1997, but undoubtedly by April 1997.
In mid April 1997 Ms Wilkes performed a work site evaluation report in relation
to the proposed new position. In the report she recorded the outcomes of a
meeting at Bunbury Prison on 14 April 1997 between Ms Logan, Mr Flynn, Ms
Wilkes, Mr Gerry Archer, a human resources manager of the respondent, and Mr
Juha Kuronen, the stores supervisor at Bunbury Prison.
Because the report provides a convenient summary of the new position, I set out
in full the job summary which was as follows:
"JOB SUMMARY
Responsible for assisting Stores Officer in the operation of the Stores
Department to ensure appropriate stock levels are maintained for the prison and
accurate records of goods and services received by the prison and distributed
throughout the prison are maintained. Also responsible for supervising the
operation of the medium and minimum security laundries. Supervises prisoners
working in the store and laundries. Required to liaise with other prison staff,
including management, as required".
There were task breakdowns of each of the stores and laundry components as
follows:
"Task 1 - Stores
Store duties to comprise 50% of work duties. Required to perform general store
keeping duties, maintain accurate records of stock within the prison, process
requisition forms, complete ledgers and maintain necessary inventory and data
sheets. Paper work duties are performed while seated at a desk, involving
writing and telephone liaison. Receives goods arriving into prison and delivers
goods to departments in prison. Check deliveries against order forms. May be
required to handle some goods (smaller boxes only), however, generally
supervises prisoner(s) to unload goods within the prison. Instructs and
supervises prisoner working within the Store Department, to prepare orders and
carry out stock take. Drives flat top truck into prison to deliver stock to
various locations.
.....
Task 2 - Laundry
Laundry duties to comprise 50% of position. Supervises and instructs prisoners
(2 to 6) working within the Medium and Minimum Security section laundries, to
ensure the laundry operates appropriately and to ensure hygiene levels of
prisoner clothing. Responsible for maintaining a tidy, clean and safe working
environment. Checks stock levels within laundry and makes stock orders as
required. Stock is stored on open shelving. May occasionally handle goods,
although able to instruct prisoners to perform lifting and carrying of stock
from vehicle into laundry. Liaise with other prison staff as required".
By this time, an issue as to whether the new position required an ability to
restrain prisoners had already emerged. Mr Flynn and Mr Archer stated at a
meeting on 14 April 1997 that the position of stores/laundry officer required
an ability to restrain prisoners. The report prepared by Ms Wilkes reflects
that Ms Logan disputed this. Ms Logan said that she had discussed the issue
with her union representative and was informed that industrial officers are not
required to restrain prisoners and may utilise their 2-way radios to call for
assistance if it is necessary to restrain a prisoner.
On 10 April 1997 Mr Flynn signed a job description form for the proposed new
position. The key responsibilities were to ensure all goods and services
required by the prison are recorded in the correct manner, and to ensure that
the medium and minimum security section's laundry effectively maintained
prisoner clothing hygiene levels. Included in the general duties were duties
first, to ensure compliance with the Prisons Act, Regulations, Executive
Directors Rules and other lawfully issued orders; secondly, to maintain
discipline of prisoners under the control of the officer; and thirdly, to
account for the location of prisoners under direct control until handed over to
a relieving officer.
2.4 Further facts
On 21 April 1997 Ms Wilkes wrote to Dr Rae, enclosing a copy of the work site
evaluation report and sought comments on Ms Logan's physical ability to
undertake the duties set out above in task 1 - stores and task 2 - laundry
within that report. Comments were also sought on Ms Logan's ability to assist
in the restraint of prisoners if required. A similar letter was sent from Ms
Wilkes to Mr Batalin.
On 28 April 1997 Dr Rae responded to the letter. He observed that experience
had shown that Ms Logan was well motivated to work and had managed the stores
position well, and that there was no reason that she would not also handle the
laundry position well. He commented that he didn't think Ms Logan should be
expected to be able to restrain a prisoner, adding that it was "highly likely
that in this matter the union is correct, in that the position does not require
her to". The latter comment is a reference to the issue which had, by then,
emerged (and which was apparent from the work site evaluation report) as to
whether the new position had as one of its requirements an ability to restrain
prisoners. Of course, Dr Rae's views in relation to that question are not of
any real assistance. He is a medical practitioner and did not have any
firsthand knowledge of the requirements of the proposed position. What is more
relevant is his observation that Ms Logan should not be expected to be able to
restrain a prisoner.
In re-examination, counsel for the complainant asked Dr Rae to explain his
understanding of the requirement of restraint at the time he had written the
letter. He said that he had, at that time, understood restraint to be a
physically very demanding activity and one which could be "a daily risk
factor". Dr Rae was unable to say where that understanding had come from. In
particular, he did not suggest that there was anyone other than Ms Logan who
might have been the source of such an understanding.
On 2 May 1997 Mr Batalin commented that Ms Logan's ability to assist in
restraining prisoners would probably be impaired and that it was inadvisable
for her to participate in any violence or scuffles. He commented that he saw no
contra-indication for performing the duties outlined in task 1 and task 2 of
the work site evaluation report.
By late May 1997 there were a series of internal memoranda within the Ministry
of Justice on the question of whether prison industrial officers were required
to be able to restrain prisoners. Legal advice was also sought, in this regard,
from a solicitor at the Ministry of Justice.
An argument was put by counsel for the complainant which suggested that the
assertion by the respondent of a need for all industrial officers to be able to
restrain prisoners was something other than a genuine position. It was to rebut
that suggestion that evidence of the seeking and obtaining of legal advice,
referred to in the previous paragraph, was adduced and received by the
respondent. Insofar as the complainant (by her counsel) may have been
suggesting that the Ministry of Justice, and, in particular, Mr Flynn, asserted
that the requirement to restrain prisoners was a requirement of the position of
industrial officer only so as to preclude Ms Logan from the stores/laundry
position, I am unable to accept such a suggestion. I am satisfied that the
position adopted in this regard, throughout 1997, by the respondent was
genuinely held by it. The view of the Ministry, including Mr Flynn, was, and
is, that industrial officers are all prison officers under the Prisons Act and
must all be able to restrain prisoners to ensure they can perform their
statutory powers and obligations.
In coming to this conclusion I have taken into account Ms Logan's evidence that
in March 1997 she had a discussion with Mr Flynn at which he said to her words
to the effect that he wanted to get rid of her. In his evidence Mr Flynn denied
having ever said anything to that effect, commenting that Ms Logan was a valued
and respected officer and that he would not have wanted to get rid of her.
Resolving this conflict of evidence was not easy. Neither version of events
seems to me to be inherently improbable. On the whole, each witness gave their
evidence in a way which gave me no reason to doubt their veracity. However, in
limited respects there were topics in relation to which I could not accept the
evidence of each of Ms Logan and Mr Flynn. In Ms Logan's case, she said in her
evidence-in-chief that by 6 months after her dismissal she was fit to have gone
back to work. In cross-examination it was put to her that for a time extending
well past 6 months after her dismissal she continued to obtain workers'
compensation. It then seemed to me that Ms Logan began to equivocate from the
position she had put plainly in her evidence-in-chief. Further, when it was put
to Ms Logan in cross-examination that for the whole period in which she claimed
workers' compensation it was integral to the receipt of that compensation that
she remained medically unfit to do the job she had most recently occupied, Ms
Logan said that she had not understood this to be the case. In these respects,
I do not accept Ms Logan's evidence.
Mr Flynn asserted in his evidence that he was unable to recall whether his
letter requesting that Ms Logan be referred to the Medical Board was done at
his instigation or at Ms Logan's request. The evidence relating to the Medical
Board will be discussed later in this decision. It seems to me quite plain
from the evidence that Ms Logan at all times stated her desire to remain
employed within the Ministry of Justice, albeit in the then proposed
stores/laundry position. I find it difficult to accept that Mr Flynn was unable
to recall whether Ms Logan had asked to be referred to the Medical Board. Such
a request would have been entirely inconsistent with Ms Logan's conduct
throughout 1997.
However, in the end, I am unable to be satisfied that a conversation of the
kind alleged by Ms Logan, that is that Mr Flynn said to her words to the effect
that he wanted to get rid of her, did occur. In any event, a finding of such a
conversation would, it seems to me, be of very limited significance to the
issues in the case. In particular, it would not alter the conclusion reached
above that Mr Flynn and others within the Ministry of Justice were genuinely of
the view in 1997 that all industrial officers needed to be able to restrain
prisoners to ensure that they could perform their statutory powers and
obligations. That view was by no means confined to Mr Flynn. Rather, it was a
view held and expressed by a number of officers in different parts of the
Ministry of Justice (many of whom had little or no involvement with Ms Logan as
an individual) and a view on which legal advice was sought and obtained.
The Ministry's position in regard to the need to be able to restrain prisoners
had been clarified by late June 1997. On 27 June 1997 a meeting was held at
Bunbury Prison between Ms Logan, Ms Wilkes, Mr Brian Williams, the Deputy
Superintendent of the Prison, a Union representative and Mr Millard. At that
meeting Mr Williams advised that the Ministry's position was that it was
necessary for an industrial officer to be able to restrain a prisoner if
required. Mr Williams also advised that the prison would take steps for Ms
Logan to be referred to the Medical Board with Ms Logan continuing her stores
duties in the meantime. At the meeting it was suggested by Mr Millard that Ms
Logan should consider alternative employment and that he and Ms Wilkes could
assist in finding alternatives. Ms Logan said that she wanted to wait for the
outcome of the Medical Board before considering alternative employment options.
On 30 June 1997 Mr Flynn wrote to the Executive Director of the Ministry of
Justice requesting that Ms Logan be referred to a Medical Board under
regulation 5 of the Prison Regulations (Annexure G to Exhibit F). On 13 August
1997 the Ministry of Justice wrote to the Commissioner of Health requesting the
convening of a Medical Board to examine Ms Logan. Enclosed with the letter
dated 13 August 1997 was the document entitled "Physical Requirements of Prison
Officer Duties" referred to previously. By the end of August 1997, the hearing
of the matter by the Medical Board had been scheduled for 26 September 1997.
In the meantime a further report from Mr Batalin had been obtained. In his
letter of 5 August 1997 to Mr Millard he stated that Ms Logan's condition,
which he described as multi-level lower lumbar degenerative disk disease, meant
that she would be unsuited for full time duties as a "normal prison officer"
and that this was likely to be on a permanent basis.
It appears that during September 1997 Ms Logan was on annual leave for about 3
weeks.
In the preceding months, steps had been taken to advertise the stores/laundry
position. The position was initially advertised on 30 July 1997. The initial
advertisement referred to the position as a laundry instructor. A subsequent
advertisement then occurred, giving the position its correct title of
"laundry/stores officer".
Subsequent to the first advertisement it was discovered that the salary
nominated in the advertisement had been incorrect and had been lower than the
correct salary. The position was corrected by a new advertisement on 27 August
1997. Both Mr Flynn and Mr Williams gave evidence that the new advertisement
was placed, correcting the salary, in the light of recent experience. Evidence
was led that not long before this advertisement was placed, a position had been
advertised at the wrong salary and a complaint had been received from a person
who said that had he known of the correct salary he would have applied for the
position. Mr Giblett, however, sought to suggest in his evidence that the
placement of a new advertisement (with a consequent extension of the closing
date for applications) was unusual and that publication of a correction to the
earlier advertisement would have been sufficient. In that light, it was
suggested on behalf of the complainant that the position had been re-advertised
because Ms Logan had been the only person that responded to the first
advertisement and Mr Flynn wanted somebody other than Ms Logan to get the job.
I am unable to accept that suggestion. I accept the evidence of Mr Flynn and Mr
Williams that the position was re-advertised for the reason that they gave.
Each of the advertisements identified, as the sole essential selection
criterion, that the applicant be a permanent prison officer.
In a letter to the Medical Board dated 22 September 1997, Dr Rae outlined Ms
Logan's medical history and described her return to work in December 1996. Dr
Rae said that the return to work was a great success psychologically,
commenting that the position in stores gave Ms Logan ideal employment. He also
said that "she is not fit, however to take on general prison officer duties".
After having made reference to the issue as to whether an ability to restrain
was necessary for the position, he commented that Ms Logan "could assist if the
need arose but it is not the sort of position she should be in every day". He
concluded by saying that "I would strongly contend that Karen is fit for the
job she has been doing this year in stores but not for general prison officer
duties".
The Medical Board met on 26 September 1997 and prepared a report that day.
The report described Ms Logan as having been unable to continue work as a
prison officer and having been shifted to a position as a stores officer. It
continued "...she has coped well in that position and feels she can manage all
the duties involved. After reviewing the medical evidence we accept that Ms
Logan is unfit to work as a prison officer. She has proven that she is capable
of performing all her current duties".
It is, I think, important to clarify the evidence regarding the relationship
between the duties Ms Logan was performing as part of her rehabilitation
programme and the new stores/laundry position. Both Dr Rae and the Medical
Board appear to have held the view, during 1997, that Ms Logan was already
substantially performing the duties required of the proposed stores/laundry
officer. Certainly Dr Rae said in his evidence that he understood Ms Logan to
be performing a substantive actual job, as opposed to a collection of duties
which had been devised for her. In my view, the evidence establishes quite
clearly that this was not the case. Rather, the duties performed by Ms Logan
during 1997 were supernumerary. They were "contrived" in late 1996 as part of
the return to work programme.
The Medical Board was not asked for its view in relation to the proposed
stores/laundry position, nor was it provided with any information about the
duties of that position.
This comment is not intended as a criticism of Dr Rae or the Medical Board.
Doubtless what Dr Rae and the Medical Board stated was based upon their
understanding of the position. The point of significance is that the fact that
Ms Logan had continued to perform the limited duties given to her was of
limited assistance in assessing her capacity to perform the more substantial
duties required of the new position of stores/laundry officer.
In October 1997 a representative of the Union requested, by a letter to the
Director General of the Ministry of Justice, that the Ministry defer any action
on the Medical Board recommendation, that is, that "...Ms Logan is unfit to
work as a prison officer". Following that request a meeting was held on 14
October 1997 between representatives of the Ministry of Justice at which it was
resolved that the Ministry's position would be maintained, that is, the Medical
Board's recommendation should be implemented. Ms Logan was advised of this
decision shortly afterwards. As a result, Ms Logan's employment terminated on
20 November 1997.
Also at around this time, Mr Williams considered the applications for the new
stores/laundry position. There were two applicants: Ms Logan and Mr Roy Van
Leeuwin (a prison officer at Bunbury Prison). Mr Williams applied the
advertised criteria of permanent prison officer, and by then had medical advice
to the effect that Ms Logan was unable to perform the duties of a prison
officer. He therefore determined that there was only one applicant who met the
essential criteria. Mr Van Leeuwin's application was successful.
Following a request from an officer of the Government Employee Superannuation
Board ("GESB"), Dr Rae wrote a report dated 8 December 1997 in relation to Ms
Logan. In that report Dr Rae commented that Ms Logan was unfit to pursue
employment as a prison officer. He also commented that taking into account Ms
Logan's lack of educational qualifications, her physical impairments and her
age that the likelihood of her being able to find a job of similar
specifications anywhere else was practically non-existent so that "to all
intents and purposes she is totally and permanently disabled".
By letter dated 23 December 1997 the GESB advised that it had approved payment
of a disability benefit to Ms Logan.
Through most of 1998 there were ongoing efforts to investigate the possibility
of alternative employment and re-training. These efforts were not successful.
In late 1998 Ms Logan's workers' compensation claim against the State of
Western Australia was settled.
There was some evidence that prior to the appointment of a new officer to the
stores/laundry position Mr Van Leeuwin had been placed in the position of
acting stores/laundry officer. Mr Flynn was unable to be specific about
precisely when this occurred saying that it was after negotiations with the
Union to approve the creation of the position. This would seem to be, at the
latest, by 30 July 1997 when the first advertisement was placed.
There were other issues on which substantial evidence was led which I will deal
with later in these reasons. These include the duties, day to day tasks and
terms and conditions of employment of a prison officer; the duties, day to day
tasks and terms and conditions of the new stores/laundry position and of
industrial officers generally; the respondent's systems for dealing with
injured prison officers and industrial officers; the training of both
categories of officers; evidence regarding a number of other prison officers
with injuries or other disabilities, and the steps taken by the respondent in
relation to those officers.
3. THE COMPLAINANT'S CLAIMS OF DISCRIMINATION
In the amended points of claim the complainant puts the claim of discrimination in
a variety of ways. Not all of these appeared to have been pursued at the
inquiry. At least as I understood it, counsel for the complainant put the
discrimination case essentially on the basis that each of the following matters
amounted to unlawful direct discrimination:
(a) the dismissal by the respondent of the complainant from her position as
prison officer;
(b) the refusal of the respondent to "accommodate" Ms Logan's disability (by
putting in place alternative work arrangements which will be spelled out later
in these reasons);
(c) the refusal by the respondent to "transfer" Ms Logan from her position as a
prison officer to an industrial officer occupying the newly created
stores/laundry position;
(d) alternatively to (c) above, the refusal by the respondent to consider Ms
Logan's application for the newly created stores/laundry position.
Counsel for the complainant also argued that:
(e) the requirement of the respondent that the complainant be able to restrain
prisoners in order to occupy a position as an industrial officer amounted to
indirect discrimination pursuant to s.6 of the DDA and was in breach of
s.15(1)(b) of the DDA;
(f) the respondent unlawfully harassed the complainant in relation to her
disability in breach of s.35 of the DDA.
For reasons which I will explain further below, it seems to me that the claims
in paragraphs (a) and (d) above are the core claims of discrimination in this
case.
4. DISMISSAL FROM POSITION AS A PRISON OFFICER
4.1 The law
As is mentioned earlier in these reasons, it was conceded by the respondent
that in dismissing Ms Logan from her position as a prison officer it engaged in
disability discrimination within the meaning of s.5 of the DDA. The issue
before me is therefore whether that discrimination was, in the circumstances of
this case, unlawful. The respondent argued that its conduct was not unlawful
discrimination, by operation of s.15(4) of the DDA. Section 15 of the DDA
provides as follows:
"15 Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on
behalf of an employer to discriminate against a person on the ground of the
other person's disability or a disability of any of that other person's
associates:
(a) in the arrangements made for the purpose of determining who should be
offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on
behalf of an employer to discriminate against an employee on the ground of the
employee's disability or a disability of any of that employee's associates:
(a) in the terms or conditions of employment that the employer affords the
employee; or
(b) by denying the employee access, or limiting the employee's access, to
opportunities for promotion, transfer or training, or to any other benefits
associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to
discriminate against another person, on the ground of the other person's
disability, in connection with employment to perform domestic duties on the
premises on which the first-mentioned person resides.
(4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an
employer against a person on the ground of the person's disability, if taking
into account the person's past training, qualifications and experience relevant
to the particular employment and, if the person is already employed by the
employer, the person's performance as an employee, and all other relevant
factors that it is reasonable to take into account, the person because of his
or her disability:
(a) would be unable to carry out the inherent requirements of the particular
employment; or
(b) would, in order to carry out those requirements, require services or
facilities that are not required by persons without the disability and the
provision of which would impose an unjustifiable hardship on the employer."
It can be seen at once that s.15(4) operates only in relation to s.15(1)(b)
and s.15(2)(c). In other words, it operates in relation to the question of to
whom employment is offered and to dismissal of employees. Thus it potentially
applies to the discrimination alleged by the complainant referred to in
paragraphs (a) and (d) above.
The respondent accepted that it bore the onus of satisfying me that its
discrimination had lost its prima facie unlawfulness by operation of s.15(4)
(see X v Commonwealth (1999) 167 ALR 529, at [19] and [30]).
In X v Commonwealth the applicant had been discharged from the army
after a blood test showed that he was HIV positive. The Commissioner who heard
the inquiry into his complaint of discrimination rejected the Commonwealth's
contentions based upon s15(4) of the DDA. The Commissioner drew a distinction
between "the tasks or skills for which a soldier is specifically prepared" and
all other features of employment which were mere "incidents of it". In
particular, in the Commissioner's view, deployment of a solider to a specific
location or in particular circumstances was an incident of the employment and
not one of its inherent requirements.
The majority of the High Court found that the approach of the Commissioner
involved an unduly narrow construction of the notion of inherent requirements
in s.15(4).
Gummow and Hayne JJ explained (at [101]) that s.15(4)(a) applies only "if the
person would be unable to carry out [the inherent] requirements. No
doubt inability must be assessed in a practical way but it is inability, not
difficulty, that must be demonstrated". The reference to inherent requirements
"invites attention to what are the characteristic or essential requirements of
the employment as opposed to those requirements that might be described as
peripheral" (at [102]).
Their Honours explained that in considering the application of s.15(4)(a)
the reference both to inherent requirements and to the particular employment
make it necessary to identify not only the terms and conditions which stipulate
what the employee is to do or be trained for, but also:
"... those terms and conditions which identify the circumstances in which the
particular employment will be carried on. Those circumstances will often
include the place or places at which the employment is to be performed and may
also encompass other considerations. For example, it may be necessary to
consider whether the employee is to work with others in some particular way. It
may also be necessary to consider the dangers to which the employee may be
exposed and the dangers to which the employee make expose others" (at [103]).
Thus, their Honours continued, the inquiry that was required:
"... was an inquiry about what were the requirements of the particular
employment. As we have said, that would begin by identifying the terms and
conditions of service which revealed what the army required of the appellant,
not only in terms of tasks and skills, but also the circumstances in which
those tasks were to be done and skills used. From there the inquiry would move
to identify which of those requirements were inherent requirements of the
particular employment" (at [105]).
At [109] their Honours explained that an employee must be able to perform the
inherent requirements of particular employment "with reasonable safety to the
individual concerned and to others with whom that individual will come in
contact in the course of employment". Deciding what is a reasonable degree of
risk to others involves difficult questions of fact and degree which their
Honours could not resolve (in the light of the way the matter had been
approached at first instance).
McHugh J delivered a separate judgment which is, with respect, also very
helpful in understanding the operation of s.15(4).
His Honour suggested (at [32]) that "carrying out the employment without
endangering the safety of other employees is an inherent requirement of any
employment". He goes on to state (at [33]) that "employment is not a mere
physical activity in which the employee participates as an automaton. It takes
place in a social, legal and economic context... It is therefore always
permissible to have regard to this context when determining the inherent
requirements of a particular employment."
His Honour explained the approach to determining the inherent requirements of
the particular employment (at [37]) as follows:
"Unless the employer's undertaking has been organised so as to permit
discriminatory conduct, the terms of the employment contract, the nature of the
business and the manner of its organisation will be determinative of whether a
requirement is inherent in the particular employment. But only those
requirements that are essential in a business sense (including where
appropriate public administration) or in a legal sense can be regarded as
inhering in the particular employment. The Commission must give appropriate
recognition to the business judgement of the employer in organising its
undertaking and in regarding this or that requirement as essential to the
particular employment. Thus in Christie, Qantas had no obligation
to restructure the roster and bidding system which it utilised for allocating
flights to its pilots in order to accommodate Mr Christie. In the end, however,
it is for the Commission, and not for the employer, to determine whether or not
a requirement is inherent in a particular employment".
His Honour then went on to explain the relationship between ss.15(4)(a) and
(b). Section 15(4)(a) is not, alone, a defence in isolation from s.15(4)(b).
Rather, for s.15(4) to apply 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."
(McHugh J at [38-39], Gummow and Hayne JJ agreeing at [104]).
X v Commonwealth was a case where the employer alleged risk to other
employees arising from the appellant's disability. In that context, McHugh J
set out (at [43]) the issues that will ordinarily arise in determining whether
the disability prevents the employee from carrying out the inherent
requirements of the particular employment:
"1. By reason of some essential feature or defining characteristic of the
particular employment, does the disability pose a real risk to the safety or
health of other persons or the preservation of the property of the employer? In
determining whether there is relevantly a real risk, the Commissioner will have
to consider:
(a) the degree of the risk;
(b) the consequences of the risk being realised;
(c) the employer's legal obligations to co-employees and others, whether
arising from a common law duty of care, occupational health and safety
statutes, or other aspects of the employment regulatory regime;
(d) the function which the employee performs as part of the employer's
undertaking;
(e) the organisation of the employer's undertaking.
2. If the answer to question 1 is no, then the disability does not prevent the
employee carrying out any inherent requirement of the particular employment. If
the answer to question 1 is yes, however, it will be necessary to determine
under s15(4)(b) whether the employee could carry out the work safely with the
assistance of "services or facilities" which the employer could provide without
unjustifiable hardship".
It was accepted by counsel for the complainant that X v Commonwealth establishes that the ability to perform the duties of a particular employment
without unreasonable or undue risk to the safety of others is an inherent
requirement of every employment. However it was argued that the same cannot be
said of the ability to perform the duties of the employment without undue risk
to oneself. In my view, that submission must be rejected. It seems to me that
the reasoning of the High Court in explaining the need for an employee to be
able to perform the duties of a job without undue risk to the safety of others
applies equally to the need for an employee to be able to do so without undue
risk to himself or herself. Both are, in the language used by McHugh J (at
[37]), essential in a legal sense. Moreover, Gummow and Hayne JJ expressed the
proposition with reference to a need for reasonable safety "to the individual
concerned and to others with whom that individual will come in contact" (at
[109]).
In determining whether an employee poses an unreasonable risk to her own safety
one must have regard to the employer's legal obligations to the employee,
arising both under the common law duty of care in tort and under the
occupational health and safety statutes. That, it seems to me, follows from
paragraph [43] of McHugh J's judgment quoted above, when applied to the present
context in which there are said to be risks not only to fellow employees but to
the employee herself. (See also per Callinan J at [172]). It is, in this
context, relevant to note that the common law demands in practical terms a high
standard of care from an employer (see, for example, Council of the Shire of
Wyong v Shirt (1981) 146 CLR 40; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18).
In this sense I accept the submission put on behalf of the respondent that the
question of whether an employee poses an unreasonable or undue risk to herself
or others, in the context of s.15(4), must "dovetail" with the employer's
common law and statutory duties to provide a safe system of work and to take
reasonable precautions to avoid hazards to employees. Section 15(4) ought not
be construed so that an employer is found to have unlawfully discriminated by
failing to allow an employee to continue working (notwithstanding a disability)
when to allow her to so continue leaves the employer open to being liable for
damages for having negligently placed the employee at risk of injury (because
of the disability).
4.2 Is the ability to restrain prisoners an inherent requirement of the
position of prison officer?
In my view it is an essential feature or defining characteristic of the
employment of a prison officer that she be able to restrain prisoners without
undue risk to herself and fellow employees. I set out below a number of matters
which I have taken into account in coming to that conclusion.
Section 15(4) requires the identification of the inherent requirements of the particular employment. Logically, therefore, the first step is to
identify the relevant "particular employment". Employment as a prison officer
plainly encompasses being, at least, a disciplinary or shift prison officer. In
this context, it is either employment as a prison officer in Western Australia
or employment as a prison officer at Bunbury Prison. However, it is unnecessary
to decide that question in that, on either view, I have come to the conclusion
that it is an inherent requirement of the particular employment that a prison
officer be able to restrain prisoners.
The judgment of McHugh J in X v Commonwealth at [37], set out above,
suggests that, in identifying the inherent requirements of the particular
employment, one ought have regard to the terms of the employment contract, the
nature of the business and the manner of its organisation.
The evidence suggests, and both counsel agreed, that a prison officer's terms
of employment are to be found in the Prisons Act and the Gaol Officers Award of
1968 ("the Award") (annexure A to Mr Flynn's statement - Exhibit F). The Award
itself says nothing of assistance for present purposes.
A prison officer is engaged in accordance with s.13 of the Prisons Act. An
officer is required to take an oath of engagement which includes promises to
"do my utmost in the performance of my duty as a prison officer to maintain the
security of every prison in which I serve and the security of the prisoners and
the officers employed at the prison" (see s.13(2)(b)) and to "uphold the Prisons Act 1981 ... and the regulations, rules and standing orders made
under that Act from time to time" (see s.13(2)(c)).
Ms Logan took an oath of engagement in 1986.
A prison officer has the powers and duties set out in s.14 of the Prisons Act,
which provides that every prison officer:
"(a) has a responsibility to maintain the security of the prison where he is
ordered to serve;
(b) is liable to answer for the escape of a prisoner placed in his charge or
for whom when on duty he has a responsibility;
...
(d) may issue to a prisoner such orders as are necessary for the purposes of
this Act, including the security, good order or management of a prison, and may
use such force as he believes on reasonable grounds to be necessary to ensure
that his or other lawful orders are complied with".
The express power for a prison officer to use force to ensure compliance by
prisoners with lawful orders of prison officers was a matter emphasised by
counsel for the respondent. Certainly, it is, at the least, a strong factor in
favour of a finding that the ability to restrain prisoners is an inherent
requirement of the position of a prison officer. A number of other matters seem
to me to point in the same direction.
Regulation 3(3) of the Prisons Regulations 1982 (WA) provides that a prison
officer is engaged to the prison service generally, and not to any particular
prison.
The "business" of the employer in this case is the administration of prisons in
accordance with the Prisons Act and Prisons Regulations. Prison officers are
the persons charged with the primary duty of maintaining security and order in
the prisons.
The way in which Bunbury Prison is organised also supports the conclusion that
an ability to restrain prisoners, where necessary, is an inherent requirement
of the position of prison officer. Without attempting to recount all of the
evidence I would observe that there is a relatively small number of prison
officers on duty at a given time and many occasions arise in which one or two
prison officers may be alone with a number of prisoners.
The shift system at Bunbury Prison requires all prison officers to be available
for the full range of shifts. There was evidence of temporary accommodation of
injured prison officers by allocating to them shifts, with union concurrence,
which minimised prison contact. It was clear on the evidence that such
arrangements were temporary only. As McHugh J observed in X v
Commonwealth (in [37] quoted above), in Qantas Airways Limited v
Christie (1998) 193 CLR 280 ("Christie"), Qantas had no obligation
to restructure the roster and bidding system which it utilised for allocating
flights to its pilots in order to accommodate Mr Christie. For similar reasons,
in my view, a superintendent of a prison is not obliged to restructure the
shift system in order to accommodate a prison officer who is unable to restrain
prisoners without undue risk to the safety to herself or fellow employees. This
conclusion is also relevant to the claim that the failure to "accommodate" Ms
Logan was unlawful discrimination. I will deal with that claim below.
In Allen v State of Western Australia [2000] WASCA 221, a claim by a
prison officer of negligence by his employer was dismissed at trial. That
decision was affirmed on appeal. The following conclusions, upheld on appeal
(at [13]), are equally apposite to the evidence regarding shift prison officers
at this inquiry:
"The employer is in the prison business: without prisoners there is no
business. It is almost impossible to provide work with no prisoner contact.
Furthermore, those jobs with minimal prisoner contact are highly sought after
as `time out' positions by all prisoner officers. Plainly, prison officers
doing shifts with prisoners would fairly expect not to be excluded from such
positions and indeed, it is obviously essential for their good health that they
have time out and that is the arrangement which has been made with the relevant
union".
Counsel for the complainant laid considerable emphasis on the fact that the
training and culture of prison officers was that force was only to be used as a
last resort, that prison officers should not engage in physical confrontation
when alone with prisoners and that physical violence was rarely experienced at
Bunbury Prison. In that context the particular profile of many of the prisoners
at Bunbury Prison, as sex offenders, was said to make violent confrontation
less likely. It was also said that training in the use of physical restraints
occupied only a relatively small part of the training course for prison
officers.
In my view, those matters are not sufficient to undermine the conclusion that
the ability to restrain prisoners is an inherent requirement of being a prison
officer. The potential for conflict to escalate into violence is ever present.
To my mind, it inheres in the notion of a prison. It cannot be predicted when
occasions will arise where a need to physically restrain a prisoner will be
required. Nor can such occasions always be limited to situations where other
prison officers can attend in time to remove the need for a particular prison
officer to be involved. For disciplinary prison officers at least, the ability
to deal with situations where a need arises to physically restrain a prisoner
is essential to being able to fulfil the inherent requirements of the
particular employment.
I have also taken into account the evidence that both the complainant and
respondent appear to have considered that the need to restrain prisoners was a
requirement of being a prison officer. The document entitled "Physical
Requirements of Prison Officer Duties" with its reference to prison restraints
was outlined earlier in these reasons. It has been used within the Ministry of
Justice since about 1993. In early 1997 Ms Logan told both Ms Wilkes and Dr Rae
that restraining prisoners where necessary was part of her duties as a prison
officer.
4.3 Was Ms Logan able to restrain prisoners without undue risk to herself
and others?
Having found that the ability to restrain prisoners is an inherent requirement
of the duties of a prison officer, it is necessary to consider whether Ms Logan
was unable to carry out that inherent requirement. As Gummow and Hayne JJ made
clear in X v Commonwealth, "inability must be assessed in a practical
way but it is inability, not difficulty, that must be demonstrated" (at
[101]).
I have already found that the ability to perform duties without undue risk to
other employees or to oneself is an inherent requirement of every employment.
In my view, the evidence compels the conclusion that Ms Logan was, in 1997,
unable to restrain prisoners without undue or unreasonable risk to herself and
other employees.
In a number of reports and letters during 1997 Dr Rae expressed the view that
Ms Logan should not be expected to restrain prisoners. These include his
letters of 28 April 1997 and 22 September 1997 (Exhibit 8 and Exhibit A).
Counsel for Ms Logan suggested that these letters must be viewed in the light
of Dr Rae's evidence (referred to above) as to his understanding of the nature
and extent of the restraint required.
Against this, the respondent pointed to the simple fact that Dr Rae never
certified Ms Logan as being fit to return to normal prison officer duties.
Dr Rae agreed, in cross-examination, that Ms Logan's symptoms and history meant
that she was at a greater risk than the ordinary person of having a significant
exacerbation of severe pain arising from physically restraining a prisoner.
Mr Batalin's views were to the same effect. The Medical Board also reached the
conclusion that Ms Logan was not fit for duties as a prison officer.
In the light of all the evidence I am satisfied that the need to physically
restrain a prisoner would have involved Ms Logan in a significantly greater
risk of exacerbating her back problem than would be the case for the ordinary
person.
It was argued on behalf of the complainant that, nonetheless, the risk posed to
Ms Logan by the potential need to restrain prisoners was not an unreasonable or
undue one. It was said that age related degenerative problems in the back
affects a significant proportion of the population and so everyone faces
various degrees of risks of back problems. Further, it was submitted that, on
the medical evidence, an exacerbation arising from the need to restrain a
prisoner would not have "crippled" Ms Logan, but merely produced substantial
pain and a significant period off work. Finally, it was said that there was no
medical evidence to suggest that she would have been unable to complete any
necessary restraint of prisoners, thus suggesting that her back problems in no
way endangered fellow employees.
I am unable to accept these submissions. In my view, an employer who is aware
that a particular employee has an existing medical condition which makes that
employee particularly vulnerable to exacerbating that condition by performing
what I have found to be an inherent requirement of the position is entitled to
view the prospect of the employee suffering substantial pain and a significant
period off work as amounting to an undue, unreasonable or unacceptable level of
risk. It seems to me that to come to any other conclusion would be to require
the employer to expose itself to the prospect of a claim in negligence by the
employee. For example, it might later be said that the employer was negligent
in selecting for the vulnerable employee a shift which gave rise to an
increased prospect of the need for physical confrontation. The risks to the
vulnerable employee of injury or aggravation of a pre-existing problem are
plainly `real and not far-fetched or fanciful' (cf Council of the Shire of
Wyong v Shirt (1981) 146 CLR 40).
Further, a person with a known vulnerability to injury in the event of physical
confrontation might be expected to be inclined to hold back if a confrontation
occurs. An employer who is aware of a special vulnerability on the part of a
particular employee might later be subject to a claim by a fellow employee in
such circumstances, and is entitled to take that prospect into account in
determining whether the risk arising from an employee's disability is an undue
or unreasonable risk.
Although it is by no means decisive, it may be worth noting that Ms Logan
herself expressed the view to Ms Wilkes that she did not feel she had the
physical capacity to return to the position of prison officer. Counsel for Ms
Logan suggested that this evidence should be viewed as possibly involving an
attempt by Ms Logan to increase her prospects of obtaining the stores/laundry
position which was a more attractive position to her. If I accepted that
argument, questions might well arise as to what effect that might have upon any
relief claimed by Ms Logan. However it is unnecessary to make a finding in this
regard because, quite apart from the evidence of what Ms Logan said about the
topic, for the reasons set out above I have reached the view that Ms Logan was
unable to restrain prisoners without an undue risk to herself or other prison
officers.
4.4 Other prison officers
In support of the argument that any risk arising from Ms Logan having to
restrain prisoners was not an undue or unreasonable one, counsel for the
complainant led considerable evidence regarding illness or injury on the part
of other prison officers. For reasons to which I now turn, that evidence seems
to me to be of very limited assistance in determining this case.
A large volume of material in the nature of medical reports and certificates
relating to more than 20 other prison officers and industrial officers was
tendered on behalf of the complainant. Questions were asked of Dr Rae, Mr
Batalin and Mr Flynn regarding the medical conditions of these officers. The
medical reports and certificates were tendered and received on the basis that
they constituted material in the possession of the respondent, rather than as
being evidence of the truth of their contents.
It is convenient to begin by considering how such evidence may be relevant to
the issues in this inquiry. Counsel for the complainant sought to use this
evidence in a number of ways. First, she argued that discrimination against Ms
Logan could be demonstrated by showing that Ms Logan had been less favourably
treated than people with objectively similar (or not materially different)
disabilities. However s.5 of the DDA does not call for a comparison between
people with like disabilities. Rather, it requires a comparison of the
treatment of a person with a disability and persons without the disability. In
any event, the fact that discrimination occurred is not in issue. The issue for
this inquiry is whether the discrimination was unlawful.
Secondly, in the context of s.15(4), counsel for the complainant argued that a
consideration of the medical information available regarding other prison
officers was relevant to assessing whether any risk of injury to Ms Logan
arising from the potential need for her to engage in prisoner restraint was an
undue or unacceptable degree of risk. In effect, counsel invited me to take
account of the medical information in the possession of the respondent
regarding various officers, and combine that with expert opinions received in
this inquiry from Mr Batalin or Dr Rae, to conclude that a certain degree of
risk was acceptable to the respondent. She submitted that the respondent is
deemed to have accepted whatever risks emerge from the material in its
possession, even if the respondent had not realised the significance of
material in its possession. In support of these submissions it was also said
that discrimination need not be intentional or knowing.
I am unable to accept these submissions. The issue in this case is the
operation of s.15(4) of the DDA. There is, it seems to me, a distinction
between accepting different levels of risk for different people (which is what
counsel for the complainant invites me to conclude has happened here) and the
respondent simply having made different assessments as to the level of risk of
each relevant individual, which seems to me to be the appropriate conclusion on
the evidence before me.
This is not to suggest that material relating to the medical condition of other
prison officers could not be relevant at all. It may be relevant in a number of
ways. First, if it were demonstrated that a number of people were engaged in a
particular employment and were not able to comply with what an employer said
was an inherent requirement of that employment, plainly this would undermine
the employer's contention. No argument of this kind was made in the inquiry.
Nor is there any evidence to support such an argument, given that the material
was tendered only for the purpose of demonstrating that it was in the
possession of the respondent, and not as evidence of the truth of its contents.
In any event, the material tendered does not seem to me to support any
conclusion that a number of people would be unable to comply with the
requirement of being able to restrain prisoners.
There are two other ways in which the material may be relevant. If the
information in an employer's possession suggested that a number of people could
not comply with what it says to be an inherent requirement, but the employer
did nothing about it, the employer's contention as to what is an inherent
requirement would be significantly undermined. Further, if an employer took no
or no adequate steps to see whether employees were able to comply with what it
said was an inherent requirement of a position, again the employer's contention
would be undermined.
I have considered the substantial material tendered by the complainant
regarding other officers at Bunbury Prison. In my opinion the evidence does not
undermine the respondent's assertion that the ability to restrain prisoners is
an inherent requirement of the position of a prison officer. At the most, from
the perspective of the complainant's arguments, there may have been one or,
perhaps, two instances where arguably the respondent ought to have obtained,
but did not obtain, definitive medical advice on whether an officer was
physically capable of restraining prisoners without undue risk. However, even
on that view I do not consider these to have been such clear cases as to
undermine the consistently held position of the respondent, supported by the
evidence referred to earlier in these reasons, that prison officers are
required to be capable of restraining prisoners. The relevance of this evidence
to industrial officers (as distinct from shift or disciplinary prison officers)
will be dealt with later in these reasons.
The evidence before me also established that an initial medical examination
takes place when a person becomes a prison officer. After that, the respondent
does not have any ongoing system of medical examination of prison officers to
ensure that they remain physically capable of doing the job, including being
able to restrain prisoners. In this regard, the respondent relies substantially
upon "self reporting" by officers. Mr Flynn suggested in his evidence that an
officer's duty under s.12(b) of the Prisons Act to "report to the
superintendent every matter coming to his notice which may jeopardize the
security of the prison" requires prison officers to advise him of any medical
condition which jeopardises a prison officer's ability to perform his role. Mr
Giblett expressed a similar view.
Throughout 1997 the respondent had received consistent medical advice that Ms
Logan was unable to perform her duties as a prison officer. That cannot be said
of any of the other prison officers in respect of whom medical material has
been tendered by the complainant. None of the records of any of those officers
included medical advice that the prison officer was permanently unable to carry
out their duties as a prison officer.
For the reasons set out above, I have come to the view that Ms Logan was unable
to carry out the inherent requirement of being able to restrain prisoners
without undue risk to herself or other employees.
4.5 Section 15(4)(b) - services or facilities
The next question which arises is whether there were services or facilities,
not required by persons without a disability, the provision of which would
enable the complainant to carry out that inherent requirement and the provision
of which would not impose an unjustifiable hardship on the employer (s.15(4)(b)
of the DDA).
The complainant suggested, through her counsel, that relevant "services or
facilities" which might have been provided to her included placing her in an
area of the prison where it was known that there would be less likelihood of a
requirement for restraint and not requiring her to rotate through the normal
roster of a prison officer. In my view, however, that does not constitute
"services or facilities" for the purpose of s.15(4)(b). Section 15(4)(b)
obliges an employer to provide services or facilities which enable an employee
with the disability to carry out the inherent requirements of the particular
employment so long as the provision of those services or facilities does not
impose an unjustifiable hardship on the employer. The re-arrangement of
employment arrangements of the sort contended by the complainant would not have
enabled Ms Logan to carry out the inherent requirement of restraining
prisoners. It would have in fact avoided the need for her to comply with that
requirement. That is not what is contemplated by s.15(4)(b). As Gummow and
Hayne JJ put it in X v Commonwealth (at [102]) the "requirements that
are to be considered are the requirements of the particular employment,
not the requirements of employment of some identified type or some different
employment modified to meet the needs of a disabled employee or applicant for
work". The analogy with the bidding system in Christie, explained
earlier in these reasons, is apposite again here.
Other matters suggested on behalf of the complainant would not, in my view, so
diminish the risk involved in Ms Logan having to restrain prisoners that it
could no longer be said to be an undue or unreasonable risk. The provision of a
personal alarm and a hand held radio would not eliminate the real risk that
circumstances may arise in which Ms Logan was required to restrain a prisoner
(or prisoners) and that she or fellow officers could be put at risk.
For these reasons, I find that the respondent's dismissal of the complainant
from her employment as a prison officer was, by the operation of s.15(4), not
unlawful discrimination.
5. REFUSAL TO "ACCOMMODATE" MS LOGAN'S DISABILITY OR REFUSAL TO TRANSFER
In my view these arguments can be dealt with very briefly. The essence of the
argument put on behalf of the complainant suggested that the respondent should
have "accommodated" Ms Logan's disability by putting in place alternative work
arrangements. These arrangements have been identified previously. It was
suggested that the respondent should have taken account of the complainant's
disability in allocating her shifts as a prison officer, or in giving her
additional support of other prison officers. For reasons which have already
been articulated, it seems to me that the respondent was under no obligation to
do these things. The comments of Gummow and Hayne JJ in X v Commonwealth (at [102] quoted above) seem to me to dispose of any such argument. Further,
the analogy with the bidding system in Christie seems again to apply
here.
Next, it cannot be argued that the respondent discriminated against Ms Logan by
refusing to "transfer" her from her position as a prison officer to the newly
created stores/laundry position. It was not a question of a transfer. The
evidence makes it quite clear that the newly created stores/laundry position,
like all other positions within the prisons system, was to be advertised and
filled on merit. No prison officer had any right to be transferred to the
position. The position was advertised, applications received and then
considered.
In that light the real ground of complaint, if there be ground for complaint,
by Ms Logan is in the refusal by the respondent to consider her application for
the newly created stores/laundry position. It is to that that I now turn. In
doing so it is convenient to begin by considering in more detail some aspects
of the employment of industrial officers within the prison system in Western
Australia.
6. REFUSAL TO CONSIDER APPLICATION FOR STORES/LAUNDRY POSITION
6.1. The role and status of industrial
officers
The Prisons Act contemplates two kinds of officers working within a prison:
prison officers engaged under s.13 and officers appointed, pursuant to s.6(3)
of the Prisons Act, under the Public Sector Management Act. An issue emerged in
this inquiry as to where, during 1997, industrial officers fitted into that
scheme.
Section 6(3) of the Prisons Act provides as follows:
"There may be appointed under and subject to Part 3 of the Public Sector
Management Act such officers, other than prison officers engaged under section
13, as are required for the purpose of this Act".
In my view the evidence establishes beyond any real doubt that industrial
officers were, as at 1997 and for some time earlier, prison officers engaged
under s.13. My reasons for coming to this conclusion are as follows.
A number of witnesses called by the respondent gave evidence that the
respondent has for many years considered industrial officers to be prison
officers who are engaged under s.13 of the Prisons Act. It was argued on behalf
of the complainant that the evidence of Mr David Seal, Manager of Workplace
Reform in Prisons within the Ministry of Justice, together with a letter dated
29 June 1998 from Mr John McColl, the Associate Director of Prison Operations
within the Ministry of Justice (Eexhibit 10), supported a conclusion that
industrial officers had not been engaged under s.13 but, rather, were appointed
under the Public Sector Management Act pursuant to s.6(3) of the Prisons Act. I
do not accept the complainant's submission. In my view, the evidence referred
to suggests that industrial officers were engaged under s.13 but that there had
been some cases where no oath of engagement (as required by s.13) had actually
been taken. Contrary to submissions on behalf of the complainant, that fact
would not thereby have converted an industrial officer to having been appointed
under s.6 of the Prisons Act. There was no evidence of industrial officers
having been so appointed. It simply meant that there had been a failure to
comply with a statutory formality. What legal consequences, if any, would flow
from that does not need to be considered in this context.
As was explained above, not all industrial officers were former shift prison
officers or qualified as such. Grade 2 industrial officers were people with
trade qualifications.
Mr Flynn said in his evidence that the position regarding the qualification of,
and criteria for, industrial officers changed over time. He gave evidence that
the respondent sought to avoid the duplication of resources arising from the
need to have prison officers to maintain security and safety in the industrial
areas. Thus, over time, industrial officers were appointed who, as an essential
requirement of their positions, were appointed as prison officers qualified to
also carry out the duties and responsibilities of prison officers. The timing
of these suggested changes was not entirely clear, but Mr Flynn's evidence
seemed to suggest that the change had occurred by 1996. However, in about 1995
or 1996 Mr Gerry Jackson was employed as an industrial relief officer. This
position did not require, as an essential criteria, that Mr Jackson be a
permanent prison officer.
Mr Seal said in his evidence (as did Mr Giblett) that during 1997 there was a
review of industrial officer classifications pursuant to the Enterprise
Bargaining Agreement ("EBA") entered into between the respondent and the Union.
The EBA was registered on 5 May 1997. That review is ongoing and has continued
since 1998.
In 1998 the respondent proposed, and the Union accepted, that industrial
officers should have the same training as prison officers. Up until that time
the training for industrial officers had been significantly different from the
training for prison officers.
Mr Williams gave evidence that a prison officer employed in 1996 to work at
Bunbury Prison would have undertaken a nine month probationary officer training
course initially at Wooroloo or Canning Vale Prison. The first three months
consisted of residential training and then the next six months was done on the
job. Detailed evidence was adduced by the respondent as to the contents of this
training. Against this, evidence was given that a Group 2 carpentry shop
instructor would have had one week's orientation at Bunbury Prison. That would
have included some training in security, some training in the standard orders
in what to bring and not to bring into prisons and orientation through the
industrial area involved.
Mr Flynn explained the development of training for industrial officers. In
around 1992, while he was at Roebourne Prison, he caused a pilot program to be
introduced enabling industrial officers to become trained as prison officers,
thereby improving their prospects of promotion. When he went to Bunbury Prison
he encouraged his industrial officers to do the same although it was not
mandatory. This led to increased flexibility in the workforce.
Mr Flynn said that the reason that such training was not mandatory for
industrial officers was largely based on the convenience of the Ministry of
Justice. He explained that shift officers can be employed in batches of 20
people and trained in such groups. On the other hand, the industrial positions
tend to arise on an individual basis so training one individual would be more
difficult.
Mr Flynn further explained that some aspects of a shift prison officer's
training would never be used by an industrial officer. It would, he said, have
been a waste of training time and money to provide industrial officers with
training for things they would not normally encounter because in reality their
jobs were different day to day.
Mr Flynn identified Mr Kuronen, a stores officer, as the only industrial
officer at Group 1 or Level 1 who had not previously been a shift officer.
Before coming to Bunbury Prison Mr Kuronen had occupied a stores type position
at Casuarina Prison and was employed under the Public Sector Management Act or
its predecessor.
A number of witnesses called by the respondent gave evidence to the effect that
being able to restrain prisoners is an inherent requirement of employment as an
industrial officer within the prison.
Mr Flynn said in his statement (Exhibit F) that he considers it an essential
requirement of being a prison officer to be able to restrain prisoners when and
if the need arises and that that requirement exists irrespective of whether or
not the prison officer is occupying a position as an industrial officer. He
went on to state that in managing the Bunbury Prison he relies on the ability
of all prison officers, including industrial officers, to be able to restrain
prisoners and manage them in accordance with the Prisons Act and Regulations.
If he could not rely on industrial officers to carry out the duties of prison
officers when and if the need arises it would be necessary to engage a
considerable number of extra prison officers to ensure prison security and
safety.
Mr Williams expressed the view in his written statement (Exhibit E) that it is
very important that both prison officers and industrial officers be physically
capable of restraining prisoners because in their every day work they come into
contact with prisoners. Industrial officers work closely with prisoners and are
responsible for giving them orders with which they must ensure compliance.
Further, industrial officers often work in environments where there are tools
or equipment available which could be used as weapons. If a prison officer or
industrial officer was unable to restrain prisoners this would ultimately pose
a security risk for the prison. In addition, both the officer concerned, other
officers, staff and members of the community working in the prison, and other
prisoners would be at risk of injury if a prison officer or industrial officer
was not physically able to restrain prisoners. If possible, officers seek to
avoid confrontation. However this is not always possible.
Mr Seal also expressed the view that industrial officers generally work very
closely on a day to day basis with prisoners and often in an environment where
there are tools and equipment which could be used as weapons. In that light it
is important that industrial officers are able to deal with prisoners and to
respond effectively to resolve a conflict. He said that an industrial officer
requires the physical ability to restrain prisoners as well as a knowledge of
and training in how to deal with prisoners in ways that avoid the need to
resort to a physical response.
6.2 What is the "particular employment"?
If, as the respondent argued, the "particular employment" is employment as a
prison officer in Western Australia (or employment as a prison officer at
Bunbury Prison) then the complainant was unable to carry out an inherent
requirement of that employment. I have already so found in coming to the
conclusion that dismissal of the complainant as a prison officer was not
unlawful discrimination. However, if the "particular employment" is more
narrowly delineated it is then necessary to identify the inherent requirements
of that particular employment.
The respondent's submission was that because an industrial officer was a prison
officer under the Prisons Act the position of industrial officer therefore has the same inherent requirements. A premise of that
submission is that the "particular employment" of all shift prison officers and
industrial officers is engagement under s.13 of the Prisons Act. I have already
found that industrial officers were engaged under s.13. However, that finding
does not, in my view, determine the question of what the particular employment
is for the purposes of s.15(4). It is possible that two employees may have
common statutory obligations in performing their contract of employment, but
nonetheless have different contracts of employment with different duties and
tasks to be performed. It could not then be said, necessarily, that the two
employees had the same "particular employment". In other words, in my view it
is necessary to have regard to all of the terms of a contract of employment,
not solely those arising from an applicable statute, to identify the
"particular employment" for the purposes of s.15(4).
In Christie the question was whether Mr Christie's employment with
Qantas had been terminated for a reason proscribed by s170DF of the Industrial Relations Act 1988 (Cth). Sub-section (1) of that section
prohibited termination for reasons including the employee's age. However
sub-section (2) provided that sub-section (1) did not prevent age from being a
reason for terminating employment if the reason was based on the "inherent
requirements of the particular position".
Thus the statutory context in Christie was substantially similar,
although not identical, to s.15(4) of the DDA. In Christie, Gummow J commented that "the `particular position' emphasises that the
sub-section is directed to the precise case in question, not to a general class
of persons of which the employee comprises one member" (at [101]).
It seems to me that the same reasoning applies, possibly with more force, to
the reference in s.15(4) DDA to the "particular employment".
That approach to the identification of the "particular employment", for the
purposes of s.15(4), seems to me to be consistent with the approach taken in X v Commonwealth. The passage from the judgment of Gummow and Hayne JJ
at [105], quoted above, supports that approach. So too, in my view, does McHugh
J's analysis of the scope of the appellant's employment (at [62] - [67]). In
that part of his judgment, his Honour identified the scope of the appellant's
employment, present and future, as a critical factor for determination, but
found that the Commission had not undertaken the necessary factual analysis.
Because no allocation to any particular branch or unit had occurred by the time
of the appellant's discharge, the scope of his employment could not be narrowed
in that way. His Honour found that the precise content of the particular
employment was a question for the Commission to determine and that this had not
occurred.
Thus, it seems to me, I must identify the scope of the contract of employment
of the successful applicant for the position of stores/laundry officer in order
to determine what the "particular employment" is.
The evidence available in order to perform that task is quite limited. The
contractual relationship between the successful applicant for that job and the
respondent was not the subject of any direct evidence. Nor, indeed, was there
evidence of the precise content of the contractual relationship between a shift
prison officer and the respondent. It was simply accepted by both counsel that,
in the latter case at least, the contract of employment was simply to the
effect that a prison officer, upon taking oath of engagement, becomes employed
to perform the duties of a prison officer in accordance with the Prisons Act,
and with the rights and obligations created by the Award. Can that be equally
said of the terms and conditions of employment of the successful applicant for
the position of stores/laundry officer? If it can, then the "particular
employment" is the same as has already been considered.
The respondent argued that all officers engaged under s.13 of the Prisons Act,
whether in positions as shift prison officers or industrial officers, are
employed on the basis that they will work as prison officers under s.13, in
whatever capacity they are commanded and anywhere within Western Australia. The
respondent therefore contended that an industrial officer with a trade
qualification in, for example, carpentry, working as an industrial officer in
the carpentry workshop at Bunbury Prison could be commanded, as a matter of
contract between employer and employee, by his employer to work as a shift
prison officer.
The respondent relied upon regulation 3(3) of the Prisons Regulations in this
context. However I do not consider that regulation 3(3) determines the
question. It may well mean that an officer can be ordered to move from one
prison to another. However in my view it does not mean that the employer can
order a carpenter employed in the carpentry workshop to work as a prison
officer. There is an air of unreality about such a proposition. Many industrial
officers are not qualified to work as shift prison officers (for example, Mr
Kuronen and the trade qualified Group 2 industrial officers). Counsel for the
respondent suggested that industrial relations and other realities would
probably preclude such conduct from ever occurring. However, there seems to me
to be a real question as to whether the contractual relationship between
employer and employee would permit such an occurrence (quite apart from any
industrial relations constraints on the employer's orders to the employee).
The answer to that question would turn, in large measure at least, upon the
precise communications which constituted the contract of employment of the
relevant industrial officer. There is, in that regard, very little evidence.
The precise content of discussions or documents constituting the employment
contract of the successful applicant for the stores/laundry position is not at
all clear from the evidence. The advertisement of the position describes it as
a position as "stores/laundry officer at Bunbury Regional Prison". The duties
are stated to be the carrying out of all duties associated with the efficient
running of the laundry and stores. The job description form also described the
office and its responsibilities and is summarised earlier in these reasons.
In the absence of clear evidence, it seems to me reasonable to conclude that
these documents would constitute part of the contract of employment of the
successful applicant for the position of stores/laundry officer.
I am unable to identify anything in the content of those documents which would
be sufficient to empower the respondent, as the employer of the successful
applicant for the stores/laundry position, to direct that person to work as a
shift prison officer or indeed as an industrial officer outside of the
stores/laundry position. Nor am I able to be satisfied from any other evidence
at the inquiry that the respondent is so empowered.
For these reasons I conclude that the "particular employment", for the purposes
of s.15(4), is employment as the stores/laundry officer at Bunbury Prison.
That conclusion by no means removes the significance of the fact that the
successful applicant for the stores/laundry position would be engaged as a
prison officer with the duties set out in ss.12 to 14 of the Prisons Act. That
fact is relevant to the identification of the inherent requirements of the
position, to which I now turn.
6.3 What are the inherent requirements of the particular employment of
stores/laundry officer?
The day to day tasks contractually provided for are, I think, summarised
reasonably accurately in Ms Wilkes' work site evaluation report which is quoted
at length above. It can be seen at once that the contractual tasks of a stores
officer are different from that of a disciplinary or shift prison officer in
that, in the latter situation, one of if not the primary focus of the day to
day duties is the management of prisoners per se.
However, that is by no means the end of the matter. It is plain from the High
Court's decision in X v Commonwealth that one must have regard to where,
when, in what circumstances and with whom those tasks are to be performed (at
[106]). Both the stores and laundry roles require a degree of prisoner contact.
Prisoner contact in the laundry role was considerably more substantial.
The laundry component of the position involves day to day regular supervision
of up to six prisoners. The evidence is that these prisoners would be medium or
minimum security prisoners. The prisoners selected for the laundry would, on
the evidence, be chosen bearing in mind the likelihood that they would be
working on their own for a lot of the time. As at 1997 there would have been
prisoners working seven days a week in the laundry. The stores/laundry position
was for Monday to Friday. Thus it was contemplated that on weekends the
prisoners in the stores/laundry position would not have any direct supervision.
A degree of supervision would come from occasional visits from roving
disciplinary prison officers. Further, the stores/laundry officer was, by
definition, only spending about half of her or his time in the laundry. So
while the officer was engaged in stores duties, the prisoners in the laundry
would also be unsupervised (apart from roving prison officers).
Mr Flynn's evidence was to the effect that the need for the stores/laundry
officer to be able to restrain prisoners arose from the general view (held by
him and upon which he had obtained advice from the Ministry of Justice) that
all industrial officers were prison officers under the Prisons Act and
therefore must be able to restrain prisoners. He did not suggest that he had
specifically analysed the position of stores/laundry officer to come to the
view that it required an ability to restrain prisoners.
The respondent led evidence to the effect that all industrial officers must be
able to restrain prisoners, and as to the reasons that that is important
(outlined above). That position is undermined, to some degree, by several
matters. As was acknowledged, such has not always been the position. There
remains within the prison system a number of industrial officers who are not
qualified prison officers. Group 2 industrial officers are not, generally,
qualified prison officers, but have a trade qualification. In each of the boot
shop and metal shop there was, in 1997, a single Group 2 industrial officer
with, respectively, 17 and 12 prisoners under his supervision. Each was
entirely on his own apart from roving officers dropping in from time to time. A
phone or radio could be used to call for help if necessary.
Mr Jackson was employed as an industrial relief officer not long before 1997.
He was not required to be qualified or trained as a prison officer. Mr Kuronen
was the stores officer. He was not a qualified prison officer, nor did he have
a trade qualification. There was substantial evidence regarding an injury he
received to his shoulder. Counsel for the respondent appeared to accept that
there was nothing in the material put before the inquiry to establish that the
respondent took any steps to satisfy itself, when Mr Kuronen returned to work,
that Mr Kuronen was capable of restraining prisoners. This is not a matter on
which I put substantial weight, however it may be seen as not coincidental that
the position Mr Kuronen occupied was one which, in reality, involved little
prisoner contact.
The differences in training of industrial officers and prison officers, as
at 1997 and prior to that, reflected, at least in part, a recognition of the
difference in the reality of the day to day tasks involved in those jobs.
The duties set out in the job description form are summarised above. These
duties included, as point 2, a duty to maintain discipline of prisoners. This
was suggested by Mr Giblett to be unusual. He contrasted the position, in this
regard, with the job description for an industrial officer in the market garden
(Exhibit D). I note, in that context, what appears to be an earlier draft of
the job description form provided to Ms Wilkes (annexure KK to Exhibit N) which
omitted point 2 - the duty to maintain discipline of prisoners. In any event,
as was suggested in a question by counsel for the respondent, the inclusion of
the duty to maintain discipline of prisoners seems to add nothing of substance
to the duty at point 1 (common to all industrial officer positions) of ensuring
compliance with the Prisons Act and Regulations and other lawfully issued
orders. In that light, the successful applicant for the stores/laundry position
did not have materially different duties, as regards the control of prisoners,
than other industrial officers, including Mr Jackson, Mr Kuronen and the
officers in the boot shop and metal shop referred to above.
While engaged in duties in the laundry, the stores/laundry officer had duties
under s.14 of the Prisons Act as well as having taken an oath in terms
summarised earlier in these reasons. That fact, combined with contact with
prisoners is, the respondent argued, sufficient to compel the conclusion that
the ability to restrain prisoners is an inherent requirement of the employment
as stores/laundry officer.
I am not persuaded that that is so. I do not doubt that it would be desirable
for anyone whose employment involved regular contact with prisoners to have a
physical capacity to restrain prisoners if the need arose. That desirability is
reinforced if the employee has a statutory duty to do her utmost in the
performance of her duties to maintain the security of the prison and has the
statutory power to use such force as she believes on reasonable grounds to be
necessary to ensure that her lawful orders are complied with. Similarly, as Mr
Giblett said, it is desirable that all industrial officers be trained to
restrain prisoners because it is possible that the need may arise.
However, in my view it is a question of degree whether there is, in a
particular employment, sufficient prospect of a need arising for the exercise
of the statutory power to use reasonable force so that it can be said to be an inherent requirement of the employment that the person be able to
restrain prisoners. The existence of the statutory powers and duties does not
of necessity, without more, compel the conclusion that ability to restrain is
an inherent requirement. An employee may have such statutory power and duties
but be in an employment which means the occasion for exercise of such power is,
in practical terms, nil. I do not suggest that that is so in this case. The
point is made to explain my view that questions of degree are involved.
That questions of degree are involved seems to me to be supported, albeit by
analogy, by the analysis of McHugh J in X v Commonwealth at [42], where
there is reference to the relevance of the degree and circumstances of contact
between the employee and others.
The evidence suggests that employment as the stores/laundry officer involves
contact with prisoners which is significantly more limited in nature, extent
and circumstances, than that entailed by employment as a shift prison officer.
In the laundry part of the job, contact is limited to a small number of
prisoners in a particular environment, that is, the laundry. The prisoners are,
for reasons mentioned earlier, unlikely to be the most difficult to manage and
supervise. The stores role involves contact with prisoners which is even more
limited.
The prospect of circumstances arising where the stores/laundry officer
needed to physically restrain a prisoner seems to me to be very substantially
lower than for a shift prison officer.
On the evidence before me, I am not satisfied that physical capacity to
restrain prisoners is truly "essential" or "necessary to ensure the adequate
performance of the employment" (per McHugh J in Christie at 310) of the
stores/laundry officer.
In coming to this view I have taken into account the evidence of the
respondent's witnesses regarding the reasons why it is important that all
industrial officers be able to restrain prison officers. I have sought to give
(as McHugh J said ought be done, in X v Commonwealth at [37])
appropriate recognition to the business judgment of the respondent in
organising its undertaking and in regarding this or that requirement as
essential to the particular employment. However, as McHugh J said, in the end,
it is for the Commission, not the employer, to determine whether or not a
requirement is inherent in a particular employment.
Consistent with that, the fact that the advertisement itself stated, as an
essential criterion, that a person be a permanent prison officer is not, in my
view, determinative of the inherent requirements of the employment. In Christie, Brennan CJ, Gaudron J and McHugh J all held that a stipulation
within the contract between employer and employee is not conclusive of whether
a requirement is inherent in the employment (at 284, 294-5 and 310). I am
unable to identify any compelling reason for that requirement when, in 1997,
there were industrial officers who were not qualified prison officers (and,
indeed, not otherwise trained in restraining prisoners) occupying the positions
of industrial officers in stores, the boot shop and the metal shop, and in the
latter two cases with more prisoners than were working in the stores or
laundry.
For the reasons set out above I conclude that the respondent has not discharged
its onus of proving that it was an inherent requirement of the position of
stores/laundry officer that the holder of that position be physically able to
restrain prisoners. In that light, the respondent's discrimination in refusing
to consider the complainant for that position amounted to unlawful
discrimination.
In light of this finding there is no need to consider the claim of indirect
discrimination.
7. CLAIM OF HARASSMENT
The remaining part of the complainant's claim is harassment. The complainant
complains that the respondent has contravened s.35(2) of the DDA in a variety
of ways particularised in paragraph 15 of the amended points of claim.
Section 35(2) provides as follows:
"35 Harassment in employment
...
(2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed;
and
(b) has a disability;
in relation to the disability."
The complainant says that the respondent, through Mr Flynn, harassed her in
relation to her disability in various ways which may be summarised as
follows:
(a) Mr Flynn informing the complainant that he would ensure that she would be
dismissed as a result of a forced attendance to the Medical Board;
(b) by insisting that she work outside the stores office and telling her that
if she didn't like it she could leave;
(c) by requesting that she take leave so that they could arrange the position
without her presence;
(d) by placing Mr Van Leeuwin in the position of acting stores/laundry officer
before the position was advertised.
One or two additional matters, not included in the points of claim, were raised
in closing submissions as constituting harassment. I will dispose of those very
briefly. The additional matters relied upon either did not, on my earlier
findings, occur or in my view are plainly incapable of constituting harassment.
A number of arguments were raised on the part of the respondent as to why the
harassment claim must fail. However, in the light of my factual findings, it is
not necessary to deal with all of those arguments.
Of the conduct alleged by the complainant to constitute harassment, in my view,
only the final allegation, of placing Mr Van Leeuwin in the position of acting
stores/laundry officer was conduct which actually occurred.
I do not need to decide whether a single discrete act of this kind could
constitute harassment. The ordinary meaning of the word "harass" would seem to
involve persisting or repeated conduct. In any event, the conduct of placing Mr
Van Leewuin in the position of acting stores/laundry officer cannot, on the
evidence I have heard, be said to amount to harassment.
For these reasons I find that there has been no contravention by the
respondent of s.35 of the DDA.
8. RELIEF
I move now to consider the consequences of my earlier finding of unlawful
discrimination by the respondent in refusing to consider the complainant's
application for the stores/laundry position.
Section 103(1) of the DDA provides that after holding an inquiry the
Commission may:
"...
(b) if it finds the complaint substantiated - so find and make a determination
which, if appropriate, may include any one or more of the following:
(i) a declaration that the respondent had engaged in conduct, or committed an
act, that is unlawful under a provision of Part 2 of this Act and should not
repeat or continue such unlawful conduct;
...
(iv) a declaration that the respondent should pay to the complainant damages by
way of compensation for any loss or damage suffered because of the conduct of
the respondent".
The complainant submitted that substantial damages should be awarded.
Guidance as to the approach to be taken in quantifying damages is provided by
the decision of the Full Federal Court in Hall v Sheiban Pty Ltd (1989)
85 ALR 503. In that case (which was a sex discrimination case, with the
relevant legislation providing corresponding powers as apply here) Wilcox J
explained that tort provides the closest analogy and will often be a useful
test although it is not to be applied slavishly. Generally speaking, his Honour
said that the correct way to approach the assessment of damages is to compare
the position in which the complainant might have been expected to be if the
discriminatory conduct had not occurred with the situation in which she was
placed by reason of the conduct of the respondent.
As French J said in the same case, the focus should be on the requirement of
the legislation that the loss or damage be "by reason of" the conduct
complained of. The same point applies here, although the legislation requires
that the loss or damage be suffered "because of" the conduct complained of.
In that way, it seems to me that the matter is to be approached similarly to
issues of causation in a claim by a person who suffers damage by the misleading
conduct of another in contravention of s.52 of the Trade Practices Act 1974 (Cth) (as to which see Wardley Australia v State of Western
Australia (1992) 175 CLR 514).
In summary, therefore, my task is to apply a commonsense concept of causation
to determine what loss and damage was caused by the respondent's unlawful
discrimination.
In the revised particulars of detriment filed in March 2000 the complainant
claims damages for components including:
(a) past loss of income;
(b) future loss of income, and superannuation benefits;
(c) damages for stress, depression and loss of enjoyment of life.
The particulars of detriment claim on the alternative bases of loss of income
as a prison officer or as an industrial officer. On my findings, it is, of
course, only the latter which is relevant.
In the course of the parties' presentation of final submissions I invited them
to provide supplementary written submissions in relation to the particulars of
detriment and damages issues generally. The parties did not file any further
submissions. In that light, I will proceed on the basis that the net figures
referred to in the particulars of detriment provided to me are supported by the
evidence. That was a specific topic on which supplementary submissions were
invited.
The particulars of detriment accept that the effect of workers' compensation
payments received by the complainant was that she suffered no loss of income up
to about April 1999. The particulars then suggest past income to have been lost
in an amount of approximately $16,000.00 with a claim for future income of
about $240,000.00, and an additional amount of $22,000.00 for lost
superannuation benefits.
Those claims are put on the basis that the complainant lost, as a result of the
unlawful discrimination of the respondent, all of the income she would have
earned as an industrial officer occupying the stores/laundry position.
On the findings I have made above, that cannot be said to be the case. The
unlawful discrimination, as I have found it, was constituted by the
respondent's failure to consider Ms Logan's application for the position of
stores/laundry officer. Plainly, in that light, it cannot be said that the
discrimination caused her to lose the entirety of the income to be derived from
that job.
The DDA imposes a statutory duty not to discriminate unlawfully when
considering an application for employment. The applicant thereby has a
correlative right to have the application considered without unlawful
discrimination.
Thus, what must be valued for present purposes is the opportunity to have been
considered for the stores/laundry position without unlawful discrimination.
That exercise is, necessarily, a difficult one involving a degree of
speculation. A number of factors must be taken into account, including the
probability that it would have been realised and value of the opportunity had
it been realised.
The approach to be taken to the assessment of the value of a lost chance or
opportunity has been considered in cases in the High Court, including Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 and Sellars v
Adelaide Petroleum NL (1994) 179 CLR 332. I will apply the approach taken
in those cases to the present issues. For a recent example of the application
of these principles in a discrimination case, see Commonwealth v HREOC and
Peacock [2000] FCA 1150, at para [54] and following.
There is very little evidence to assist in the process of assessing the
probability that Ms Logan's application for the stores/laundry position would
have been successful. The respondent led no evidence as to how two competing
applications would have been dealt with. The only stated essential criterion
was "permanent prison officer". I have already found that that criterion
incorporated matters which I have found not to be inherent requirements of the
position of stores/laundry officer. Other criteria are identified as desirable
in the advertisement. There is nothing of substance in the evidence to assist
me in how those criteria might have been applied as between the two competing
applicants.
Another foundation of the way the complainant's damages claim is formulated is
that it assumes that the complainant would have continued working through to
65. That appears to have been her stated intention. However, that, in itself,
can be only of limited weight. It is difficult for anyone to predict with
confidence what will occur over the next 15 years. The respondent tendered (as
Exhibit W) some information demonstrating the age at which a number of female
employees at the prison have resigned or had their contract expired. That
evidence supports the conclusion that it is unusual for an officer to remain in
employment at the prison through to an age of 65.
Further, the evidence suggests that there is some danger of a recurrence of Ms
Logan's back problems and that such recurrence might anyway have prevented her
to continue to work through to the age of 65.
A third foundation of the formulation of the complainant's damages claim is
that all of the income which would have been earned through the stores/laundry
position has been "lost" as a result of the discrimination because the
complainant is and will remain unable to get any other paid work. Evidence was
led of some attempts by Ms Logan to find other work or to develop other skills
(with assistance from Ms Wilkes and others). Unfortunately, there is support in
that evidence for a suggestion that Ms Logan may be unlikely to obtain any
substantial other work. However, that is a long way from being able to conclude
that she should be given damages on the assumption that she will not obtain any
further paid work through to the year 2013.
Taking all these matters into account, and doing the best I can with the
limited material available, I would award damages of $35,000.00 as compensation
for the value of the lost opportunity to be properly considered for the
stores/laundry position.
There was evidence that Ms Logan suffered stress and some depression as a
result of the events in late 1997. It is, of course, difficult to dissect the
dismissal from the position as prison officer (which I have found to be not
unlawful) from the consequences of the refusal to be considered for the
stores/laundry position.
Section 103(4) expressly allows for relevant damages to include humiliation and
injury to a complainant's feelings.
I would award an amount of $3,000.00 for this head of damage.
There was some suggestion that costs should be awarded against the respondent.
Legal expenses are not specifically provided for in the DDA. In addition,
s.103(1)(iv) of the DDA does not extend to legal costs incurred by a
complainant (AMC v Wilson (1996) 68 FCR 46 per Heerey J at 66 in
relation to analogous provisions in the Racial Discrimination Act 1975 (Cth)). Accordingly I make no award for costs.
9. DETERMINATION
Pursuant to s.103 of the DDA I make the following declarations:
(a) the respondent unlawfully discriminated against the complainant in breach
of s.15(1)(b) of the DDA in failing to consider the complainant's application
for the position of stores/laundry officer on the basis of her disability;
(b) that within 28 days of the date of this decision the respondent pay to the
complainant:
(i) the sum of $35,000.00 compensation for the lost opportunity to be properly
considered for the stores/laundry position; and
(ii) the sum of $3,000.00 compensation for humiliation and injury to feelings.
I certify that this and the preceding fifty-one pages (51) pages are a true
copy of the Reasons for Decision of Inquiry Commissioner Andrew Beech.
Hearing Solicitor:
Date: 12 September 2000