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IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
SYDNEY REGISTRY

No. SYG635/2006

DAMIEN VICKERS

Applicant

THE AMBULANCE SERVICE OF NEW SOUTH WALES

Respondent

SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER

A. INTRODUCTION

1. These submissions are filed on behalf of the Acting Disability Discrimination Commissioner ('the Commissioner') in the event that leave is granted by the Court for the Commissioner to appear as amicus curiae in these proceedings pursuant to s 46PV(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('HREOC Act'). Such leave was sought by the Commissioner by way of Notice of Motion and affidavit affirmed by the Commissioner on 16 June 2006 and filed on the same date.

2. These proceedings raise issues concerning the application of ss 5, 15(1)(a), 15(1)(b) and 15(4) of the Disability Discrimination Act 1992 (Cth) ('DDA'). As these submissions have been prepared prior to the hearing of the matter they are, by necessity, of a broad nature and generally limited to a consideration of the legal principles surrounding these sections of the DDA. The factual issues raised to date in the proceedings are dealt with only to the extent that they provide context for some of the legal principles considered. The Commissioner may, with the leave of the Court, seek to supplement these submissions with brief oral and/or written submissions at the conclusion of the evidence.

B. BACKGROUND

3. For the purposes of these submissions, the Commissioner sets out the central issues in the present dispute:
   
   1. The applicant, Mr Vickers, applied for employment with the respondent as a Trainee Ambulance Officer.
   2. There does not appear to be any dispute between the parties that Mr Vickers has immune mediated type 1 insulin-dependent diabetes mellitus.1 For convenience, the applicant's disability shall hereafter be described as 'diabetes'.
   3. It would also appear to be uncontroversial that diabetes is a disability for the purposes of s 4 of the DDA.
   4. As a part of the selection process for the position, Mr Vickers attended a health assessment. This was stage six in a seven-stage selection process.2
   5. The respondent concluded from this assessment that Mr Vickers was 'medically and physically unfit to perform the duties and requirements necessary for the position of Trainee Ambulance Officer due to: Insulin Dependent Diabetes'.3
   6. The applicant did not proceed to the next stage of the selection process and was not offered employment with the respondent.
   7. The applicant argues in these proceedings that he was discriminated against both in the arrangements made for the purpose of determining who should be offered employment (s 15(1)(a) of the DDA) and in determining who should be offered employment (s 15(1)(b)).
   8. The applicant claims that he was directly discriminated against, as defined by s 5 of the DDA. A claim of indirect discrimination (as defined by s 6) is not pleaded.
   9. The respondent claims that the applicant was and continues to be unable to carry out the inherent requirements of the employment as an ambulance officer.

C. APPROACH TO A CLAIM OF DISCRIMINATION UNDER THE DDA

4. In approaching a claim of discrimination under the DDA, the Commissioner submits that there are three main steps that should be followed.

5. First, it is appropriate to identify a particular act or omission4 that falls within an area of public life in which disability discrimination is made unlawful. In the present case, the applicant claims that the respondent has done acts that fall within s 15(1)(a) ('in the arrangements made for the purposes of determining who should be offered employment') and s 15(1)(b) ('in determining who should be offered employment').

6. Second, it should be asked whether each act identified was an act of discrimination: either direct discrimination (s 5) or indirect discrimination (s 6). In the present case, the applicant claims that the acts of the respondent constituted direct discrimination.

7. The Commissioner notes here that the onus in proving discrimination rests with the applicant. The standard of proof is the civil standard - the balance of probabilities.5 In satisfying the burden of proof, the Commission submits that there is nothing in the present case that would require the applicant to provide evidence of a 'higher standard' as contemplated by the principle stated by Dixon J in Briginshaw v Briginshaw.6

8. Third, any defences raised by the respondent should be considered. In the present matter, the defence of 'inherent requirements' under s 15(4) of the DDA is relevant to the claim of discrimination under s 15(1)(b). The onus of proof in relation to this defence is on the respondent. 7

D. APPROACH TO STATUTORY INTERPRETATION OF DDA

9. In general, when construing legislation designed to protect human rights such as the DDA, the courts have a special responsibility to adopt a beneficial and purposive approach, to give such legislation 'the widest interpretation that its language will permit'.8 Similarly, the courts have a special responsibility to take account of and give effect to the purposes and objects of the legislation.9

10. Further, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object: s 15AA Acts Interpretation Act 1901 (Cth). This approach does not only apply in circumstances where there is an ambiguity or inconsistency in the Act.10

11. The stated objects of the DDA include the following (see s 4):
    
    1. to eliminate as far as possible, discrimination against persons on the ground of disability in the areas of:
       
       1. work, accommodation, education, access to premises, clubs and sport; and
       2. the provision of goods, facilities, services and land; and
       3. existing laws; and
       4. the administration of Commonwealth laws and programs; and
    2. to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
    3. to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

12. To give effect to the objects of the DDA, the Court should construe broadly those provisions which make unlawful discrimination against persons on the ground of disability. Conversely, exemptions and other provisions of the DDA and the HREOC Act which restrict rights should be construed narrowly.11

13. The Court should also apply the principle of the common law that a statute is to be interpreted and applied, so far as its language admits, in a manner which is consistent with established rules of international law and which accords with Australia's treaty obligations.12 That approach is not limited in its application to ambiguous statutory provisions.13 Rather, wherever the language of a statute is susceptible to a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail.14

14. Most relevant to the present case is the Declaration of the Rights of Disabled Persons, 15 ('the Declaration') to which Australia is a party, which provides for:
    
    1. the inherent right of people with disabilities to respect for human dignity and the right to 'enjoy a decent life, as normal and full as possible' (Article 3);
    2. an entitlement to measures designed to enable the self-reliance of people with disabilities (Article 5);
    3. the right to economic and social security and a decent standard of living, including a right, according to their abilities, to secure and retain employment (Article 7);
    4. an entitlement to have the special needs of people with disabilities taken into consideration at all stages of economic and social planning (Article 8); and
    5. the right of persons with disabilities to participate in all social, creative or recreational activities (Article 9).

E. IDENTIFYING AN ACT OR OMISSION WITHIN A PROTECTED AREA OF PUBLIC LIFE

15. The applicant claims that the actions of the respondent fall within ss 15(1)(a) and 15(1)(b) of the DDA. Section 15 provides, relevant to the present application:
    

    (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.

    .

    (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:

    1. would be unable to carry out the inherent requirements of the particular employment; or
    2. 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.

    (i) 'In the arrangements made': the scope of section 15(1)(a)

16. The Commissioner submits that the expression 'in the arrangements' in s 15(1)(a) should be interpreted broadly to encompass all aspects of an employer's process of selection prior to a final decision.

17. In the present matter, the Commissioner submits that the arrangements made by the respondent for the purpose of determining who should be offered employment include the implementation of its seven-stage selection process and any acts and omissions done within that process prior to a final decision. The manner of assessment of Mr Vicker's application, including the conduct of the health assessment, would appear to be the acts the focus of the present application.

    Distinguishing discrimination in 'procedure' and 'outcome'

18. In interpreting s 15(1)(a), regard must be had to s 15(1) as a whole and the distinctions drawn between sub-sections (a), (b) and (c). The Commissioner submits that s 15(1) moves through the key stages of the recruitment of a new employee to prohibit discrimination against a person with a disability at each stage. That is, sub-section (a) deals with the pre-offer stage of the process, sub-section (b) deals with the actual decision by the employer whether or not to offer employment and, where an employer has decided to offer employment, sub-section (c) deals with the terms of such offer.

19. The Commissioner submits that sub-section (a) can be distinguished from sub-section (b) on the basis that sub-section (a) prohibits 'procedural' discrimination. That is, it is intended to ensure that there is a non-discriminatory process of selection which gives all applicants a 'fair go'. By contrast, sub-section (b) is concerned with discrimination in the outcome of the selection process and aims to ensure that the job is offered to the most suitable applicant irrespective of disability (subject to the provisions of s 15(4) relating to 'inherent requirements').

20. In a decision of the Human Rights and Equal Opportunity Commission in Eyden v Commonwealth of Australia,16 Commissioner Johnston stated:
    

    Section 15(1)(a) may be read to embrace acts or omissions by a potential employer that occur in the antecedent pre-offer stage that have an exclusionary effect in terms of foreclosing an employment opportunity to a person with a disability.17 (emphasis in original)

21. Similarly, in considering the then equivalent provision of the Anti Discrimination Act 1977 (NSW), s 49B(1)(a),18 the Equal Opportunity Tribunal in Holdaway v Qantas Airways Limited19 ('Holdaway') stated that
    

    the location of S.49B(1)(a) in a sequence of events relating to offers of employment of which the event in para (a) is logically (and usually temporally) antecedent to the events in para (b) and (c) points strongly to the conclusion that it is apt to catch conduct which logically precedes the point of time at which it can be said that an employer is 'determining who should be offered employment' (para (b)) or fixing 'the terms on which he offers employment' (para (c)).20

22. There is a clear potential for overlap between sub-sections (a) and (b).21 Both are concerned with the stages of the recruitment process during which an employer's mind is gradually fixed upon a final successful applicant. Accordingly, the same set of facts may give rise to a claim under both sub-sections (a) and (b), such as where an employer denies an applicant a process of selection of comparable fairness as afforded to other applicants, and also decides not to offer the applicant employment because of his or her disability. However, the Commissioner submits that a line can and should be drawn between these two sub-sections, on the basis of procedure and outcome.

23. This distinction between procedure and outcome is not merely semantic or academic. Rather, it recognises that discrimination in the process of selection may constitute a discrete and tangible detriment. Even if ultimately unsuccessful, job-seekers are entitled to consideration of their application without discrimination. It can be observed that job-seekers may gain important skills through having their application fairly considered. For example, they may be able to seek constructive feedback on their application and identify areas of their skills or the presentation of their application that may need improvement. They may also be more likely to be given an interview which may provide a chance to develop interview skills and improve confidence.

24. For people with a disability, rejection of an application based, for example, on stereotypes rather than an assessment of merit may also send a blunt message: don't bother. Such a message may damage the confidence and self-esteem of a job-seeker and is contrary to the purposes of the DDA.

25. One of the central aims of the DDA is to relieve persons with a disability from the adverse consequences which flow from stereotypical assumptions about their disability. For example, in Qantas Airways Limited v Christie, Kirby J observed:
    

    The [Disability Discrimination] Act is fundamentally designed to achieve social change by the removal of artificial stereotypes. Unless otherwise excused, it requires, in effect, the assessment of an employee's capacities upon that employee's individual merits.'23 (emphasis added)

26. Similarly, in the second reading speech of the DDA, it was noted that:
    

    This legislation would be a vital element in removing the attitudinal, physical, structural and institutional barriers that people with disabilities currently face.24

    Relationship with the defence of inherent requirements

27. The Commissioner further submits that s 15(1) must be read in light of the 'inherent requirements' defence provided by s 15(4) (the application of which is discussed further below). In particular, the Commissioner submits that the scope of the defence highlights the need to distinguish between acts falling within s 15(1)(a) and s 15(1)(b) on the basis of the distinction between procedure and outcome.

28. Significantly, the defence does not apply to acts falling under s 15(1)(a). This is, in the Commissioner's submission, consistent with the purpose of the prohibition in s 15(1)(a), namely to require a non-discriminatory procedure. It is not open to a respondent to claim that they did not need to properly consider an application made by a person with a disability because 'they couldn't have done the job anyway'.

29. It would thwart Parliament's deliberate limitation of the defence in s 15(4) if acts properly to be understood as falling within s 15(1)(a) are construed as falling within s 15(1)(b).

    Cases considering 'arrangements'

30. There has been only limited judicial consideration of the scope of the phrase 'in the arrangements' in the context of s 15(1)(a) of the DDA.

31. In Holdaway, a case brought under the equivalent provisions of the Anti-Discrimination Act 1977 (NSW), the respondent was found to have a policy that persons with insulin dependent diabetes were ineligible for flight attendant positions. The NSW Equal Opportunity Tribunal accepted the contention made by the complainant (who had insulin dependant diabetes) that the respondent had adopted and applied their policy without taking into account the particular ways in which a person with that disability was affected by it. According to the Tribunal, the respondent's policy fell within the scope of 'the arrangements made for the purposes of determining who should be offered employment', and discriminated against the complainant because of his disability by failing to consider his application on the basis of its individual merits.25 The complainant had, in fact, undergone a medical test, but this was 'irrelevant' as he was excluded from employment by the policy in any event.

32. In Y v Human Rights and Equal Opportunity Commission,26 Finkelstein J considered the scope of s 15(1)(a) and cited Holdaway with approval in respect of the Tribunal's interpretation of s 49B of the Anti-Discrimination Act 1977 (NSW), describing that section as 'the origins' of s 15(1)(a) of the DDA. His Honour observed:
    

    Section 49B was designed to take account of the comments of the Anti-Discrimination Board (Discrimination and Physical Handicap vol 1, 1979) ... [which] pointed out, by reference to the position in the United States, that a common form of discrimination was 'the failure of an employer to provide an individualized determination of a handicapped person's capacity to do a particular job' (p 118). The Board (at pp 120-121) favoured the view 'that an employer's decision to refuse employment to a handicapped person is justified only when the employer has provided an individualised determination of a handicapped person's capacity to do a particular job, whereas it is not justified when the employer's decision is based solely on the assumptions about the handicapping condition.' This approach was, according to the Board, 'central to any effective principle of non-discrimination' in the employment area.27 (emphasis added)

33. His Honour continued:
    

    [Section 49B(1)(a)] covers the situation of an employer who discriminates against a handicapped person without regard to that person's individual characteristics. It covers that situation because it contemplates discrimination taking place before the employer has any knowledge of the individual characteristics of the handicapped person. Put another way, the 'arrangements' which the employer makes for the purpose of determining who should be employed refers in particular to the circumstances in which the employer will decide who should be offered employment without regard to the particular characteristics of the person involved.

    Section 15(1)(a) [of the DDA] is designed to deal with these same circumstances. It seeks to outlaw the established ground under which persons with a disability will not even be considered for employment. It is not apt to cover the situation where a particular individual is refused employment, or an interview for employment, because of that persons' particular disability.28 (emphasis added)

34. The Commissioner submits that this last paragraph must be read very carefully. It should not be understood as meaning that s 15(1)(a) only applies where 'a person with a disability will not even be considered for employment'. There is nothing in the wording of that sub-paragraph that suggests that it is so limited and it is clear from the opinions expressed by his Honour in the preceding paragraphs that s 15(1)(a) should be understood to cover both the refusal (or failure) to consider an application as well as the manner in which it is considered. It is clear from his Honour's analysis that if consideration of a person's application is conducted 'without regard to the particular characteristics of the person involved', it may constitute an unlawful act under s 15(1)(a) if such failure is discriminatory.

35. His Honour's statement that s 15(1)(a) is not apt to cover the situation where a particular individual is refused an interview for employment must also be understood in context. Such a refusal may be, in effect, a decision to refuse a person employment and to this extent it may be challenged under s 15(1)(b). However, the interview process is clearly a matter that falls within the arrangements made for determining who should be offered employment. Acts done in relation to interviews, including refusing to interview a person, willtherefore also fall within the scope of s 15(1)(a). To the extent that his Honour's statement might suggest otherwise, the Commissioner submits that it is, with respect, incorrect.

36. That acts done in the course of considering an application are covered by s 15(1)(a) is supported by the approach taken in Forbes v Australian Federal Police (Commonwealth of Australia).29 In that matter, the applicant alleged, amongst other things, that the respondent had discriminated against her in breach of s 15(1)(a) by failing to put relevant evidence before a review panel considering the applicant's application for continuing employment. The evidence withheld concerned the applicant's depressive illness which was relevant to explain the breakdown in the employment relationship between the applicant and the respondent, a factor that was material in the decision not to offer the applicant employment. Driver FM accepted that the AFP had breached s 15(1)(a) by withholding information about the applicant's medical condition from the panel.

37. Driver FM concluded that the AFP's failure to put relevant evidence before the panel was because of the applicant's disability. This finding was overturned on appeal by the Full Federal Court which considered the decision of the High Court in Purvis v New South Wales (Department of Education and Training),30 a decision which had been handed down since the decision of Driver FM. The Court did not, however, criticise or otherwise disturb the approach taken at first instance, of applying s 15(1)(a) to the employer's process of selection.

    The act or omission in the present case 'in the arrangements made for the purposes of determining who should be offered employment'.

38. The Commissioner submits that the alleged acts or omissions of the respondent the subject of the complaint under s 15(1)(a) may be characterised as:
    • The assessment of Mr Vickers' application for employment; and/or
    • The conduct of the health assessment of Mr Vickers.
39. It is then necessary to ask whether the manner in which such acts were undertaken discriminated against the applicant on the ground of his disability. This is considered further below.

    (ii) 'In determining who should be offered employment': section 15(1)(b)

40. It would appear to be agreed in the present matter that the respondent determined not to offer employment to the applicant. The Commissioner submits that the decision not to offer Mr Vickers employment falls squarely within s 15(1)(b).

F. DIRECT DISCRIMINATION

41. The definition of direct discrimination is set out in s 5 of the DDA as follows:

• (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
• (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

42. The following principles are relevant in applying this definition in the present case.

    Identifying the relevant 'treatment'

43. The test for direct discrimination in s 5 of the DDA requires an identification of the 'treatment' about which complaint is made. As set out above, there would appear to be various aspects to the present claim:
    • the assessment of Mr Vickers' application for employment;
    • the conduct of the health assessment of Mr Vickers; and
    • the decision not to offer Mr Vickers employment.

    'Less favourable'

44. It would seem that the feature of the respondent's treatment of the applicant that is said to render such treatment 'less favourable' is the alleged failure to properly assess the individual circumstances of the applicant (see Outline of Case for the Applicant, [30]-[33]). This includes the alleged failure to take into account:
    • the particular manifestation of the applicant's disability;
    • the long history of its successful treatment;
    • the applicant's successful management of the disability in a similar working environment; and
    • the evidence of the applicant's treating specialist or former employers.

45. The Court must consider whether the relevant treatment of Mr Vickers was less favourable compared with a person without diabetes, in circumstances that are the same or are not materially different. This other person against whom the applicant is to be compared is often referred to as the 'comparator'.

46. The Commissioner submits that the appropriate 'comparator' in the present case is another applicant for the position with all the qualities and attributes of Mr Vickers (including the same skills, qualifications and experience) but who does not have diabetes.

    'Because of' the applicant's disability

47. For direct discrimination to be proven, the respondent's actions in treating the applicant 'less favourably' must be shown to be 'because of' the applicant's disability, namely diabetes.

48. If an act or omission constituting the relevant treatment is done for more than one reason, it is deemed to have been done because of disability if one of the reasons for the act or omission is the disability of the person, even if not the dominant or a substantial reason.31

49. It can be noted, however, that an act or omission will be 'because of' a person's disability if it is considered to be the 'real reason' or 'true basis' for the treatment, even if it was not the intention of the employer to discriminate against the applicant.32

50. In the present case, the applicant claims that the respondent had a policy which prevented the applicant's individual circumstances from being properly assessed because of his diabetes.

51. While such a policy may, if found to exist, be evidence that the treatment of the applicant was 'because of' his disability, the Commissioner submits that it is not necessary to show the existence of a generally applied policy to prove discrimination under s 5 of the DDA. It is sufficient to show that the 'real reason' for, or 'true basis' of, the respondent's conduct was the applicant's diabetes.

    Applying the test in the present case

52. If the Court finds that the respondent failed to assess Mr Vickers' application (or conduct his health assessment) based on his individual circumstances and that a similarly qualified person without diabetes would have had their application assessed (or their health assessment conducted) based on their individual circumstances, and that failure was because of Mr Vickers' diabetes, the claim of direct discrimination in relation to s 15(1)(a) is made out.

53. Similarly, if the Court finds that the respondent failed to undertake an equivalent assessment of the applicant's application based on his individual circumstances as it would have afforded a similarly qualified person without diabetes, and that failure was because of Mr Vickers' diabetes, the claim of direct discrimination in relation to s 15(1)(a) is made out.

54. If the Court finds that the respondent decided not to offer Mr Vickers a job and that a similarly qualified person without diabetes would have been offered a job (or would not have had their application rejected), and that decision was made because of Mr Vickers' diabetes, the claim of direct discrimination in relation to s 15(1)(b) is made out.

G. SECTION 15(4)

55. In the event that the Court finds that the respondent has discriminated against the applicant on the ground of his disability in not offering him employment (s 15(1)(b)), it is necessary to consider the 'inherent requirements' defence in s 15(4). This provides:

(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:

1. would be unable to carry out the inherent requirements of the particular employment; or
2. 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.

56. The onus of establishing each of the elements of s 15(4) is on the respondent.33 It is a question for the Court, not the respondent, as to whether Mr Vickers is able to carry out the inherent requirements of the position.34

57. The relevant date for determining whether an employer's conduct was unlawful, or was relieved from unlawfulness by the terms of s 15(4), is the date that the alleged discriminatory conduct occurred.35

58. The Commissioner notes the decision Commissioner of Police, NSW Police v Zraika,36 in which of the NSW Administrative Decisions Tribunal Appeal Panel considered the defence of 'inherent requirements' under s 49D(4) of the Anti-Discrimination Act 1977 (NSW). That defence is worded in identical terms to that in s 15(4) of the DDA. The Appeal Panel held that it was not necessary for an employer to have properly identified the inherent requirements of a position at the time of the alleged discrimination to be able to rely on the defence. An employer 'is still able to lead evidence at the hearing that, at the time the application was refused, the applicant could not carry out the inherent requirements '37

59. The Commissioner notes, however, that this is not to say that an employer may not have an obligation to conduct an individualised assessment of an employees application. Such an assessment may be required to avoid a finding of discrimination contrary to s 15(1)(a), to which the defence does not apply.

    Particular employment

60. The requirements 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.38
61. In this matter, it does not appear to be in dispute that the particular employment in question was that of Trainee Ambulance Officer.39

    Identifying the inherent requirements of the particular employment

62. 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.40

63. 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.41

64. A court must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. In the end, however it is for the court, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.42

65. It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is 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 will also encompass other considerations.43 For example, it may be necessary to consider whether the employee is to work with others in some particular way.

    Causal connection

66. The onus is on the respondent to establish that 'because of [the person's] disability' he or she would be unable to carry out the inherent requirements of the particular employment. That is, the search is for a causal relationship between disability and being unable to carry out the inherent requirements of that employment.44 It is not 'because of some feature of the person's disability attributed to him on the basis of stereotyped assumptions about that disability'.45

    Inability to carry out inherent requirements

67. The defence under s 15(4) is only available if the respondent establishes that the person would be unable to carry out those requirements. It is inability, not difficulty, that must be demonstrated46 and inability is to be assessed in a practical way.47

68. It was accepted by the majority of the High Court in X v Commonwealth that in some cases it may be necessary for an employer to give consideration to the health and safety of an applicant's co-workers, as well as the applicant and the public at large, in considering whether an applicant with a disability is capable of carrying out the inherent requirements of employment. McHugh J held that carrying out employment without 'unreasonable risk to the safety of fellow employees' is an inherent requirement of any employment.48 Later in the judgement his Honour described the issue as being whether the person's disability posed a 'real risk to the safety or health of other persons', the test for which his Honour described as follows:
    

    1. By reason of some essential feature or defining characteristic of the particular employment, does the disability impose 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, a decision maker will have to consider:

    1. the degree of the risk;
    2. the consequences of the risk being realised;
    3. 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;
    4. the function which the employee performs as part of the employer's undertaking;
    5. 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 s 15(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.49

69. Similarly, Gummow and Hayne JJ (with whom Gibbs CJ and Callinan J agreed) held that:
    

    ...an employee must be able to perform the inherent requirements of a 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... Much will turn on the nature and size of the risks that are said to arise.50 (emphasis added)

70. The Commissioner submits that the approach of the High Court in X v Commonwealth demonstrates that health and safety concerns are not determinative, but must be balanced against other relevant factors. An employer may not simply exclude an applicant on the basis that because of that applicant's disability the employer cannot 'guarantee' the safety of that person and/or others. Such an approach would exclude many persons with disabilities who live with constant risk arising from their disability. Rather, the Commissioner submits that consideration must be given to the individual facts of the case and whether, in light of the various factors identified by McHugh J, the risk posed is unreasonably high. If so, consideration would then need to be given to whether the risks might be reasonably reduced by services or facilities that would not impose an unjustifiable hardship on the employer (discussed further below).

    Past training, qualifications and experience

71. The reference in s 15(4) to those matters that are personal to the person in question (that is, their past training, qualifications and experience relevant to the particular employment) means that an individualised assessment of whether the person can perform the inherent requirements of the particular employment is required by the section, rather than making generalised assumptions about the effect that a disability has on the ability of all people with that disability to carry out particular work.

72. This is clear not only from the wording of the section but is also supported by the objects of the DDA (set out in paragraph 11 above) as well as the right of people with disabilities 'according to their capabilities, to secure and retain employment' recognised by Article 7 of the Declaration (see paragraph 14 above) (emphasis added). The fundamental object of the DDA is recognised as being 'to achieve social change by removing stereotypes.'51

    Unjustifiable hardship

73. Section 15(4) must be read as a whole and when it is so read:
    

    it is clear enough that the object of the sub-section is to prevent discrimination being unlawful whenever the employee is discriminated against because he or she is unable either alone or with assistance to carry out the inherent requirements of the particular employment. If the employee can carry out those requirements with services or facilities which the employer can provide without undue hardship, s 15(4) does not render lawful an act of discrimination by the employer that falls within s 15.52

74. The appropriate approach is first to determine whether or not the respondent has discriminated against the applicant and then determine whether or not the respondent is able to make out the defence of unjustifiable hardship.53

75. The respondent also bears the onus of establishing this aspect of the defence under s15(4).54

76. The applicant may have an evidentiary role to play in assessing 'unjustifiable hardship'. Determining exactly what accommodation an application will require to avoid discriminating against them and how it will best be achieved is an interactive process.55

77. Section 11 of the DDA states the following in relation to 'unjustifiable hardship':
    

    (11) For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

    1. the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
    2. the effect of the disability of a person concerned; and
    3. the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
    4. in the case of the provision of services, or the making available of facilities-an action plan given to the Commissioner under section 64.

78. Implicit in the concept of unjustifiable hardship is that some hardship will be justifiable. The concept of unjustifiable hardship 'connotes much more than just hardship.'56

79. The financial circumstances of the respondent are important, but must be considered in the context of the DDA's objects - the financial burden may be justifiable.57

    
     

Jonathon Hunyor

Brook Hely

Human Rights and Equal Opportunity Commission
Solicitors for the Acting Disability Discrimination Commissioner
7 July 2006

Footnotes

Last updated 1 September, 2006