Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW) CaseBase | (2015) 251 IR 136 | [2015] FCCA 1827 | BC201506045 HUNTLEY v STATE OF NSW, DEPT OF POLICE AND JUSTICE (CORRECTIVE SERVICES NSW) BC201506045 Unreported Judgments Federal Circuit Court of Australia (formerly Federal Magistrates Court of Australia) · 484 Paragraphs Federal Circuit Court of Australia Judge Nicholls SYG 1537 of 2013 10 - 11, 13, 16 - 18 June 2014, 3 July 2015 Huntley v State of Nsw, Department of Police and Justice (Corrective Services Nsw) [2015] FCCA 1827 Headnotes HUMAN RIGHTS — Disability discrimination — Whether respondent failed to provide reasonable adjustments — Whether applicant was unable to perform inherent requirements of the employment position — Whether respondent breached terms of employment contract. (CTH) Australian Human Rights Commission Act 1986 , ss.46PH, 46PO (CTH) Disability Discrimination Act 1992 , ss.4, 5, 6, 15, 21A, 21B (CTH) Federal Circuit Court of Australia Act 1999 , s.76 (CTH) Federal Circuit Court Rules 2001 , rr.15.07, 26.01 (CTH) Civil Procedures Act 2005 , s.100 (NSW) Public Sector Employment and Management Act 2002 , s.86 Cases cited:; Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 167 FCR 537; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Limited v Karajan Holding Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 1; Baulch v Lyndoch Warrnambool Inc (2010) 27 VR 1; Bulstrode v Trimble [1970] VR 840; Message v Baires Contracting Pty Ltd [2011] VSC 75; Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6; Watts v Australian Postal Corporation [2014] FCA 370; Varas v Fairfield City Council [2009] FCA 689; Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133; Alexander v Cappello and Anor [2013] FCCA 860; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, cited Judge Nicholls [1] This is an application made by Ms Caryn Huntley (“Ms Huntley”) on 5 July 2013 pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”). In the application the applicant alleges that the respondent, State of NSW, Department of Police and Justice (Corrective Services NSW) (“CSNSW”) unlawfully Page 2 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 discriminated against Ms Huntley on the grounds of her disability in breach of the Disability Discrimination Act 1992 (Cth) (“the DDA”). [2] A “Notice of Termination” was issued pursuant to s.46PH(2) of the AHRC Act on 8 May 2013, which stated that the complaint alleging unlawful discrimination under the DDA had been terminated before the AHRC under s.46PH(1)(i) of the Act. The Issue [3] Ms Huntley alleges that CSNSW, an agency or division of the Department discriminated against her on the ground of her disability. Ms Huntley alleges that CSNSW engaged in direct and indirect unlawful discrimination and failed to provide any reasonable adjustments to Ms Huntley’s workplace and employment in breach of ss.5, 6 and 15 of the DDA. Further, to the extent that CSNSW seeks to rely on them, that the terms of ss.21A and 21B of the DDA were not met. The Application [4] Ms Huntley asserts that at relevant times she suffered (and continues to suffer) from Crohn’s Disease, a disability for the purposes of s.4 of the DDA (“the Crohns disability”). Further, that, at the relevant times, she also suffered from Idiopathic Hypersomnolance, also a disability for the purposes of s.4 of the DDA (“the IH disability”). CSNSW does not contest that Ms Huntley, at different times had, and continues to have, the above disabilities. [5] Ms Huntley seeks the following declarations, made against the Department (in light of CSNSW’s relation to the Department): 1) The Department unlawfully discriminated against her in breach of ss.5 and 15 of the DDA. 2) The Department unlawfully discriminated against her in breach of ss.6 and 15 of the DDA. 3) Ms Huntley met all the relevant requirements of her position such that s.21A of the DDA was not met by the Department. 4) The continued employment of Ms Huntley would not have imposed on unjustifiable hardship to the Department and as such s.21B of the DDA has not been made out by the Department. 5) The Department has breached express and implied terms of Ms Huntley’s contract of employment. [6] In the original application to the Court made on 5 July 2013 she sought the following orders: 1) An order pursuant to s.46PO(4)(b) of the AHRC Act that Ms Huntley be reinstated to her position of Probation and Parole Officer, Clerk Max 6, in the Campbelltown office of the Department. 2) An order pursuant to s.46PO(4)(b) of the AHRC Act that Ms Huntley be promoted to the next available position of Senior Probation and Parole Officer, Clerk Grade 7, in the Campbelltown office of the Department. 3) An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department to re-credit Ms Huntley’s leave entitlements for the period of 11 May 2011 to 15 July 2011 (3 days sick leave, 14 days recreation leave and 30 days long service leave). 4) An order pursuant to s.46PO(4)(b) of the AHRC Act directing the Department to provide a public apology to Ms Huntley in the form of a half page newspaper advertisement in The Sydney Morning Herald within 14 days of the decision which summarises the decision and the declarations and orders made. 5) An order pursuant to s.46PO(4)(d) of the AHRC Act that the Department pay Ms Huntley compensation for loss or damage suffered by Ms Huntley caused by the Department’s contraventions of the DDA and breaches of the contract, namely: e Compensation for pain and suffering and breach of contract of an amount of $100,000. f For loss of wages, leave entitlements and superannuation during the period of 18 July 2011 to 3 January 2012 in the amount of $39,448.83 (not including any return that would have been earned on superannuation contributions). g The costs of Ms Huntley seeing a psychologist in response to the Department’s unlawful treatment of her in the amount of $2,534.00 to date and estimated to be $4,550.00 for the next two years. h The loss of wages and superannuation from the denial of promotion opportunities, opportunities to act in a higher grade position and be promoted to a Senior Probation Officer from March 2010 to the date Page 3 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 of the decision in these proceedings, estimated to be $50,998.96 to the date of this application (not including any return that would have been earned on superannuation contributions). 6) An order pursuant to s.46PO(4)(a) of the AHRC Act directing the Department not to repeat or continue such unlawful discrimination. 7) Costs. 8) Interest. [7] Ms Huntley filed a “Schedule of Damages” on 5 June 2014 which provided updated details for the amounts sought at [6](5) above, in the following terms: “Economic Loss from 10 May 2011 to 10 June 2014 a) Lost wages 18 June 2011 to 3 January 2012 of $35,187.03. Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1). b) Lost superannuation contributions 18 July 2011 to 3 January 2012. Notes: 9% of gross wages of $3.166.83. Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1). c) Lost leave entitlements 11 May 2011 to 17 July 2011 of $14,249.64. Notes: Affidavit of Caryn Huntley affirmed 14 February 2014 paragraphs 405 to 406. CH1 pages 397 to 398 and 535 to 543. — -49 days leave entitlements at 290.81 per day (3 days personal leave, 14 days recreation leave, 32 days extended leave). — Psychologist costs from 11 May 2011 to 10 June 2014 of $7,312.00. Notes: CH1 page 594 shows costs at $125.00 per session - fortnightly intervals 75% of costs 78 sessions. Report of Alicia McIntyre page 79 of affidavit of Helen Carter. e) Loss of Promotion opportunities 1 July 2012 to 10 June 2014. Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598. — - $284.75 for loss of higher duties allowance 21 May 2011 to 30 June 2012. — - $1,903.96 for period 1 July 2011 to 30 June 2012 [Actual pay grade Maximum 6 ($77,797) Projected pay grade without discrimination of Minimum Grade 7 ($80,096)]. — - $1,951.37 for period 1 July 2012 to 30 September 2012 [Actual pay grade ($79,711) Projected pay grade without discrimination Minimum Grade 1 (82098)]. — - $1,314.00 for period 1 October 2012 to 30 June 2013 [Actual pay grade Max 6 ($79,711); projected pay grade without discrimination of Maximum Grade 7 ($84,533)]. — - $4,817.18 for period 1 July 2013 to 10 June 2014 [Actual pay grade Max 6 (81520 to projected pay ground without discrimination of grade 7 Maximum ($86,472)]. Economic loss from 10 June 2014 to 30 June 2016 a) loss of promotion opportunities 1 July 2014 to 30 June 2017 of $26,042. Page 4 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598. — - $8,322.08 for period 1 July 2014 to 30 June 2015 [Actual pay grade Max 6 ($81520) projected pay grade without discrimination of Minimum Grade 8 ($90,075)]. — - $8,733.56 for period 1 July 2015 to 30 June 2016 [Projected pay grade with discrimination of Minimum 7 ($83,962) Projected pay grade without discrimination of Maximum 8 ($92,940)]. — - $8,986.49 for period 1 July 2016 to 30 June 2017 [Projected pay grade with discrimination of Maximum 7 ($86,472) Projected pay grade without discrimination of Minimum 9 ($98,401)]. — - Based on pay scales for year ended 30 June 2014 as further ones are not available. Avoid need for net present value discount. — 75% of costs of psychological treatment at a session every 2 weeks from 1 July 2014 to 30 June 2016 of $4,975.00. General Damages a) For pain and suffering and damage to health of $100,000. Interest a) Interest on lost salary and superannuation in the period of 18 July 2011 to 3 January 2012 calculated to 10 June 2014 of $7,404.67. Notes: Calculated at 4 points above reserve bank cash rate for period from pay date to date of commencement of hearing. b) Interest on damages for lost promotion opportunities of $618.00. Notes Calculated at 4 points above reserve bank cash rate for period from end of less set out in part e) of economic loss above until first date of hearing.” [8] At the hearing, Ms Huntley informed the Court that she did not press the fourth declaration (see above at [5]) in relation to unjustifiable hardship. Further that she did not seek orders 1 and 2 (see above at [6]), in relation to reinstatement and promotion as she had found another position (“the NSW Police position”). The Legislation [9] Section 4 of the DDA contains the following relevant definitions: “disability, in relation to a person, means: (a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person’s body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or Page 5 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 (i) previously existed but no longer exists; or (j) may exist in the future (including because of a genetic predisposition to that disability); or (k) is imputed to a person. To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. … reasonable adjustment: an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.” [10] Section 5 of the DDA defines direct discrimination as follows: “(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: b the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and c the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.” [11] Section 6 of the DDA defines indirect discrimination as follows: “6 Indirect disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: b the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and c because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and d the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: b the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and c because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and d the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. Page 6 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.” [12] Section 15 of the DDA, relevantly, concerns 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: 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: b in the terms or conditions of employment that the employer affords the employee; or c 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 d by dismissing the employee; or e by subjecting the employee to any other (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.” [13] Sections 21A and 21B of the DDA, relevantly define “inherent requirements” and “unjustifiable hardship” in relation to unlawful discrimination: “21A Exception — inherent requirements Inherent requirements (1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: a the discrimination relates to particular work (including promotion or transfer to particular work); and b because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person. (2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work: b the aggrieved person’s past training, qualifications and experience relevant to the particular work; c if the aggrieved person already works for the discriminator — the aggrieved person’s performance in working for the discriminator; d any other factor that it is reasonable to take into account. (3) For the purposes of this section, the aggrieved person works for another person if: b the other person employs the aggrieved person; or c the other person engages the aggrieved person as a commission agent; or d the aggrieved person works for the other person as a contract worker; or e the other person and the aggrieved person are members of a partnership; or a both of the following apply: Page 7 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 vi the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation; vii the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation. Opportunities for promotion, transfer and training and registered organisations (4) This section does not apply in relation to: a discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or b discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009).” [14] Section 46PO of the AHRC Act is in the following relevant terms: “46PO Application to court if complaint is terminated (1) If: a a complaint has been terminated by the President under section 46PE or 46PH; and b the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: b must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or c must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: b an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; c an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; d an order requiring a respondent to employ or re‑employ an applicant; e an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; f an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; g an order declaring that it would be inappropriate for any further action to be taken in the matter. Page 8 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 (5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 , subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976). (6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)). (8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages.” Evidence Before the Court [15] A number of affidavits were filed by both parties. Prior to the hearing, both parties filed and served a list of objections to the evidence that had been filed. [16] Ms Huntley sought to read and rely on the following affidavits at the hearing: 1) The affidavit of Kenneth Scott Huntley, teacher, made on 13 February 2014 (“KSH”). CSNSW objected to the entire affidavit of Mr Huntley on the basis of relevance. CSNSW submitted that it was not relevant to a fact in issue. It submitted that Mr Huntley, Ms Huntley’s husband, was not in the workplace where the discrimination allegedly took place, and that the affidavit was only “self-serving” in relation to its assessment of Ms Huntley’s emotions. Ms Huntley submitted that it was relevant as it went to the domestic ramifications of the discrimination, and provided further information in relation to the damages claim. I agreed with Ms Huntley. The objection was overruled and the affidavit was read into evidence. 2) The affidavit of Caryn Huntley, Senior Analyst, Panel Operations, Professional Standards Command, NSW Police Force, made on 14 February 2014 (“CH1”). No objections were made by CSNSW. Ms Huntley provided a document listing “minor amendments” to the affidavit, with no objection from CSNSW. 3) The affidavit of Helen Katherine Carter, solicitor, made on 28 February 2014 (“HKC”). No objection by CSNSW. Attached to the affidavit were a number of expert medical reports. The authors of these reports were not required by CSNSW for cross-examination. 4) The affidavit of Caryn Huntley, Senior Analyst, Panel Operations, Professional Standards Command, NSW Police Force, made on 21 May 2014 (“CH 2”). No objection by CSNSW. [17] CSNSW sought to read and rely on the following affidavits: [the objections made by Ms Huntley and rulings on those objections can be found in Schedule 1 to this judgment. The following evidence was read in light of the evidentiary findings outlined in that Schedule.] 1) The affidavit of Rosemary Caruana (“Ms Caruana”), Assistant Commissioner, Community Corrections at Corrective Services New South Wales made on 1 April 2014. 2) The affidavit of Gai Hillyard (“Ms Hillyard”), Acting Business Relations Manager, Human Resources Division, Corrective Services NSW, made on 1 April 2014. 3) The affidavit of Robert Malcolm Morgan (“Mr Morgan”), retired Director, Community Offender Services, Campbelltown, made on 1 April 2014. 4) The affidavit of Leah Nicholson (“Ms Nicholson”), General Manager, made on 14 April 2014. 5) The affidavit of Nyree Smith (“Ms N Smith”), Manager of Community Corrections, Liverpool, New South Wales, made on 14 April 2014. 6) The affidavit of Wendy Lobley (“Ms Lobley”), Manager, Injury Management at Corrective Services New South Wales made on 23 April 2014. 7) The affidavit of Anna Borg (aka Anita Borg) (“Ms Borg”), Acting Senior Project Officer, made on 3 June 2014 and filed on 4 June 2014. Not read (see further below). The Applicant’s Case and Evidence June 2009 to March 2010 Page 9 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [18] The following is derived from “Annexure A” to the application made on 5 July 2013 and the evidence before the Court. Ms Huntley commenced work with CSNSW as a trainee Probation and Parole Officer on 31 January 2005. At the time of the application to the Court, Ms Huntley held the substantive position of Probation and Parole Officer (“PPO”). She held a number of roles that fell within her substantive position over the time of her employment (see [12] - [19] of CH1). [19] Ms Huntley was diagnosed with the Crohn’s disability in June 2009. As stated above, CSNSW does not contest that Ms Huntley was diagnosed with, or has, the Crohn’s disability. [20] On the evidence before the Court, Ms Huntley was diagnosed with the Crohn’s disability in mid-2009. She was diagnosed following surgery to remove a peri-anal abscess on 24 June 2009. Ms Huntley was unfit for work between 22 June 2009 and 3 July 2009. A further medical certificate from Ms Huntley’s gastroenterologist, Dr Paul Edwards, declared Ms Huntley unfit to work between 30 July 2009 and 31 August 2009. [21] As a result of the Crohn’s disability, Ms Huntley required frequent bathroom access and was restricted in her ability to travel without “immediate” access to a bathroom. Ms Huntley’s access requirements could not be anticipated and were often “urgent”. [22] During the time of Ms Huntley’s diagnoses, and in subsequent weeks, she took approximately 10 weeks of leave. When she returned to work she was capable of performing some duties. However she was unable to perform the “field work” component of the PPO position as a result of her physical needs due to the Crohn’s disability. Dr Edwards prepared a report for CSNSW, as requested by it, on 26 August 2009, to enable a “return to work plan” to be implemented ([62] and [64] of CH1, and see page 86 - 87 of the exhibit to CH1). [23] Between July 2009 and 9 September 2010 Ms Huntley entered into an informal arrangement with her then manager, Mr Morgan, to allow Ms Huntley to perform modified duties as a PPO. Ms Huntley returned to her PPO position on 31 August 2009. [24] On the evidence of Ms Huntley, the adjustments to the PPO position were said to be as follows (see [43] - [67] of CH1): 1) She did not perform home visits for the cases, or reports, allocated to her. These were performed by her supervisor, or her PPO colleagues. 2) Her case load was reduced from over 140 hours per month to no more than 80 hours per month. She continued to be assigned “offenders” of all “risk levels”. 3) She was permanently placed on “intake” duties. 4) She was given the “additional duty of being responsible to meet with all ‘walk-ins’.” 5) She responded to all external enquiries from other District Offices and Parole Units. 6) She carried out ad hoc administrative tasks as required. 7) She undertook further report writing and administrative tasks to relieve her colleagues who were in turn relieving her of the need to perform home visits [25] Ms Huntley alleged that CSNSW did not perform an appropriate workplace assessment with her after she returned to work in late July 2009, or thereafter. No plan for reasonable adjustments was put in place. [26] This arrangement continued from 31 August 2009 until March 2010. March 2010 Meeting [27] In March 2010 Mr Morgan advised Ms Huntley that the informal arrangement could not continue due to constraints that it placed on the operations in the workplace ([80] of CH1 and see [11] of Mr Morgan’s affidavit). At this time no constraints were identified, no formal workplace assessment was conducted, and no complaints from co-workers were provided before the decision to terminate the informal arrangement was made ([70] of CH1). [28] Ms Huntley was referred for a medical assessment by a Government Medical Officer (“GMO”), Dr Louise Crowle (“Dr Crowle”), due to the cessation of this work arrangement, and her inability to perform field visits due to the Crohn’s disability. Ms Huntley was advised by Mr Morgan that the purpose of the medical assessment was to determine what other roles Ms Huntley would be more suited to as a result of the restrictions on her ability to perform field visits due to the Crohn’s disability (see [80] of CH1). [29] Following the medical assessment, Ms Huntley was deemed permanently unfit for her substantive position (see pages 116 ‑ 120 of the exhibit to CH1 (“the first report of Dr Crowle”)). Ms Huntley alleged that Dr Crowle was not informed of the “inherent requirements” of the relevant occupational “role”, or requested to identify any reasonable adjustments by CSNSW. Page 10 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [30] In approximately June or July 2010, CSNSW asked Ms Huntley if she would prefer to be redeployed or medically retired ([88] of CH1 and [12] of Mr Morgan’s affidavit). Ms Huntley indicated her preference for redeployment ([88] of CH1). A representative of CSNSW advised her that there were two alternate positions available. The two positions were both in correctional facilities and required meeting with inmates in secure areas ([91] - [98] of CH1, and see pages 277 - 280 of the exhibit to CH1). [31] Ms Huntley declined both positions citing their incompatibility with her physical needs as a result of the Crohn’s disability (with reference to the initial medical report) and the security requirements of the correctional facilities ([91] - [98] and [112] of CH1, see pages 277 - 280 of the exhibit to CH1). The Expression of Interest Position [32] In July 2010 Ms Huntley applied for an Expression of Interest position with the Corrections Intelligence Group (“CIG” and “the CIG position”). In making the application, the supervising manager of the CIG position was made aware of Ms Huntley’s sick leave record. On 19 August 2010 Mr Wayne Creighton, Manager, Corrections Intelligence Group contacted Ms Huntley and discussed concerns about her sick leave record. Ms Huntley advised as to her, then, current severity of the Crohn’s disability ([99] ‑ [106] of CH1 and page 283 of the exhibit to CH1). [33] Ms Huntley was offered the CIG position on merit and commenced the CIG position on 13 September 2010 (see page 295 of the exhibit to CH1). The CIG position was extended twice to, in or around, April 2011, and to, in or around, May 2011. When Ms Huntley left the PPO position, she was informed by Mr Morgan that on leaving she would not be able to return ([118] of CH1). [34] Ms Huntley was in contact with Ms Lobley, Manager, Injury Management of CSNSW, in relation to finding a further position for relocation, as the CIG position was not permanent (see pages 299 - 300 of the exhibit to CH1). [35] In late 2010 and throughout 2011 Ms Huntley began to experience extreme fatigue, excessive day time sleepiness and an inability to wake from sleep. Through an extended diagnostic process Ms Huntley was diagnosed with the IH disability on 29 July 2011 ([239] of CH1). During the diagnostic process Ms Huntley took varying amounts of seek leave due to her then undiagnosed IH disability ([130] - [133] of CH1). [36] In early 2011, Ms Huntley sought permission to complete office duties from home ([137] of CH1). This request was denied and no reasons were provided (see page 327 of the exhibit to CH1, and see further below). [37] On 22 and 23 February 2011, Ms Hillyard, the Human Resources Manager of the CIG role, sent correspondence by email to Ms Lobley, Ms Nicholson and others, which discussed Ms Huntley’s sick leave (see [138] of CH1 and pages 303-304 of the exhibit to CH1). Ms Huntley was not aware of this communication. Further, Ms Huntley was not approached about her sick leave while in the CIG position, or at any other time. [38] From 29 April 2011, Ms Huntley commenced applying for a number of other jobs and submitted expressions of interest, including for a NSW Police position (see [145] of CH1 and pages 308 - 326 of the exhibit to CH1). The 10 May 2011 Meeting [39] On 10 May 2011, prior to the diagnosis of the IH disability, Ms Huntley underwent an electroencephalogram (“EEG”) as a part of the diagnostic process. After the EEG she felt “lightheaded and dizzy”. She contacted her supervisor (“Ms Janelle Farroway”) to advise that she would not be attending at her work that afternoon ([158] of CH1). She was contacted by her supervisor to request her attendance at a meeting that day. She attended the meeting (see [168] - [174] of CH1). Ms Huntley maintained, under cross examination, that she did not know of this meeting until that day. [40] The meeting was attended by Ms Huntley, Ms Hillyard, Ms Lobley and Ms Nicholson. At the meeting Ms Lobley informed Ms Huntley that the CIG position would not be further extended, in effect, due to her illness and her extended sick leave record. As such, Ms Huntley would be nominally returned to her PPO position. Ms Lobley informed Ms Huntley that CSNSW had previously intended to “medically retire” Ms Huntley in August 2010, however as she had obtained the CIG position that process did not proceed. Ms Lobley stated that Ms Huntley was sent correspondence by letter in 2010 informing her of CSNSW’s intentions ([175] of CH1). Ms Huntley alleges that she did not receive that correspondence. [41] At the meeting on 10 May 2011 Ms Lobley informed Ms Huntley that Ms Huntley had two choices, either to agree to a medical retirement or to undertake a further medical assessment. Ms Huntley was advised that as at 20 May 2011 she would be directed to go on leave pending CSNSW’s decision. Further, that as such, she did not have a position to report to following 20 May 2011. Ms Lobley further informed Ms Huntley that CSNSW would be “guided” by the results of the medical assessment as to Ms Huntley’s ability to continue working with CSNSW. Ms Huntley declined the offer of medical retirement. [42] At the meeting on 10 May 2011, Ms Huntley inquired about CSNSW’s ability to assist her in securing a position with NSW Police. Ms Lobley informed Ms Huntley that CSNSW would not assist with, or consider, an inter- agency transfer. Further, that any application by Ms Huntley for a position with NSW Police would need to be obtained on “merit”. Page 11 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 After the 10 May 2011 Meeting [43] Following the meeting on 10 May 2011, Ms Huntley went home in a distressed stated (see [186] - [192] of CH1). She attended at her doctor’s surgery on 11 May 2011 in a “distressed” and “anxious state”, allegedly as a result of the meeting with Ms Lobley, Ms Hillyard and Ms Nicholson on 10 May 2011 ([195] at CH1). Ms Huntley was declared unfit to work for the period of 11 May 2011 to 20 May 2011. Ms Huntley submitted that it was CSNSW’s “conduct” at this meeting that caused her to suffer a significant exacerbation of her psychological condition, for which she had been in therapy following her diagnosis of the Crohns disability, and caused her to suffer “Major Depressive Disorder” (see Ms McIntyre’s report attached at HKC8 of Ms Carter’s affidavit and see further below). [44] On 27 July 2011 Ms Huntley underwent a second medical assessment with Dr Crowle to determine if she was fit for her substantive duties ([237] of CH1). Following the diagnosis of Ms Huntley’s IH disability on 29 July 2011, Ms Huntley informed Dr Crowle of the diagnosis ([240] at CH1). [45] The second medical assessment found that Ms Huntley was permanently unfit for her substantive position, that is the PPO position (see pages 406 - 413 of the exhibit to CH1). Ms Huntley alleges that, again, CSNSW did not provide the “inherent requirements” of Ms Huntley’s position to Dr Crowle, or ask Dr Crowle to consider what “reasonable adjustments” could be made to her position to enable her to continue in that position. [46] During the period of 11 May 2011 to 15 July 2011, CSNSW applied Ms Huntley’s accrued leave entitlements, without her consent. Ms Huntley had not applied for, or been granted, leave, and her non-attendance following 20 May 2011 was in accordance with the direction from Ms Lobley at the 10 May 2011 meeting. CSNSW ceased paying Ms Huntley’s salary on 18 July 2011 and placed her on leave without pay, without her consent, at this time (see [243] - [244] of CH1). [47] During June 2010 to May 2011, Ms Huntley claims that she wrote to CSNSW with the assistance of a union representative seeking suitable alternate positions to which she could be transferred. Following the 10 May 2011 meeting, CSNSW, through its representatives, including Ms Lobley, indicated that it was not willing to consider transferring Ms Huntley to alternate positions. [48] In approximately September 2011 Ms Huntley applied for the position with NSW Police and was successful in her application on 3 January 2012. Ms Huntley alleges that CSNSW “delayed” in sending her leave records and performance checks to NSW Police, and only did so after repeated contact and requests from her. [49] Ms Huntley sought a temporary transfer under s.86 of the Public Sector Employment and Management Act 2002 (NSW) to undertake her secondment with NSW Police. She made such an application by email to Mr Morgan on 16 January 2012 (see [350] of CH1, and pages 521 ‑ 522 of the exhibit to CH1). Ms Huntley submitted that CSNSW’s “non-action” of this request was another manifestation of its discrimination towards her. [50] In November 2011 Ms Huntley attended a meeting with Ms Lobley, the CSNSW’s Industrial Officer and director of Workplace Relations (a Ms C Hellams, who did not give evidence before the Court), Ms Huntley’s Union representative and Ms Huntley’s rehabilitation consultant ([297] of CH1). At this meeting Ms Huntley was told that that an application made by her for a position within CSNSW had been deemed unsuitable because of her disabilities because it would be a “high stress position”. Ms Huntley requested that future assessments of the suitability of alternate positions be done in consultation with her or her treating doctors. Further, that no recommendations regarding restrictions on positions based on stress were in either the first or second medical assessment conducted by Dr Crowle ([297] - [299] at CH1). [51] At the November 2011 meeting Ms Lobley, as a representative of CSNSW, informed Ms Huntley that “Human Resources” were reviewing all available vacancies to locate a suitable alternate position for Ms Huntley. However, Ms Huntley alleges that CSNSW did not request her resume to assess suitability for any such positions ([297] of CH1). [52] In June 2012 CSNSW asserted (through a representative) that it was not required to secure an alternate position or provide any “adjustments” to Ms Huntley ([373] of CH1 and pages 552-559 of the exhibit to CH1). [53] On 18 October 2012 Ms Huntley lodged a complaint with the Australian Human Rights Commission alleging contraventions of the DDA by CSNSW. By notice dated 8 May 2013 and pursuant to s.46PH(2) of the AHRC Act, a delegate of the President of the Commission terminated the complaint. The Contract of Employment [54] Ms Huntley’s case before the Court also asserts that CSNSW breached a number of implied terms in her contract of employment. Ms Huntley’s case was that the terms of her contract of employment with CSNSW was in part express and in part implied (see [10] at annexure A to the application to this Court). [55] The express terms were said to be contained in a letter dated 22 December 2004 from CSNSW to Ms Huntley and signed by Ms Huntley on 30 December 2004 (see pages 3-4 of the exhibit to CH1). Page 12 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [56] The implied terms were said to be applied by operation of law and as a matter of fact. There were said to be (see further below): 1) The term of trust and confidence; 2) The safe work term; 3) The good faith term; 4) The reasonable adjustment term; and 5) The policy compliance term. CSNSW’s Response and Case [57] In an amended response filed on 13 November 2013, CSNSW, in essence, “admitted” that Ms Huntley had the Crohn’s disability and the IH disability. CSNSW’s response, while acknowledging that a “work arrangement” had been in place when Ms Huntley returned to work in 2008, contended that it was a “short term, structured return to work program”. CSNSW contended that in working under this arrangement Ms Huntley demonstrated that she was unable to perform an inherent requirement of the position (field work) that comprised “20%” of the position. I note that Ms Huntley asserted that it was 15%. In any event, CSNSW asserted that the remaining “80% internal office based report writing and other administrative work” could not be completed if the external field work was not completed. [58] As such, CSNSW’s “defence” appeared to be that their conduct in moving to medically retire Ms Huntley was a result of her being unable to perform inherent requirements of her substantive position, with reference to the exemption outlined in s.21A of the DDA. [59] In relation to the individual circumstances alleged by Ms Huntley in “Annexure A”, CSNSW’s response was as follows. June 2009 to September 2010 [60] CSNSW denied that there was no formal workplace assessment in place for the period of July 2009 to September 2010. It contended that the arrangement was a “short term, structured return to work program in accordance with medical recommendations and the agreement of all parties”. [61] It denied that Mr Morgan told Ms Huntley that the arrangement could not continue due to long term constraints on the workplace and that no workplace assessment was done. It contended that Ms Huntley was informed by Mr Morgan that the arrangement was a “short term” arrangement. In initial submissions, CSNSW indicated that it would always have been a short term arrangement as the constraints on the workplace had a serious affect on the safety of the community. No evidence was provided in support of this contention, and no further submissions were made. [62] It denied the statement attributed to Mr Morgan at [33] above. It denied that, in referring Ms Huntley to the GMO, it did not outline the inherent requirements of the position, which it said were attached to the brief, or that it did not request information on any reasonable adjustments. It stated that no reasonable adjustments could be made to Ms Huntley’s position due to the inherent requirements of the position. [63] CSNSW stated that Ms Huntley could only be given the options of medical retirement or redeployment. It admitted that she requested redeployment. It admitted that Ms Huntley was offered two positions for redeployment within correctional facilities, but did not admit that they were inappropriate because of the Crohn’s disability. It submitted that the positions were a clear indication of CSNSW attempts to assist Ms Huntley in redeployment. The CIG Position [64] In relation to the CIG position, it admitted that Ms Huntley applied for the position, that she obtained the position, and was in the position from 13 September 2010 until in, or around, May 2011. However, it did not admit that the supervisor of the CIG position was told of her sick leave record. However, I note that in the affidavit of Ms N Smith, she admits to giving this information to “a person at CIG” (at [42]). [65] In relation to the IH disability diagnosis, it could not admit or deny Ms Huntley’s personal medical history and diagnostic process, but did admit that she orally requested to work from home, and that she took varying amounts of sick leave during the duration of her CIG position. [66] In relation to the correspondence sent to Ms Lobley by Ms Hillyard on 23 February 2011 about finding a new position for Ms Huntley (see pages 303 - 304 of the exhibit to CH1), CSNSW admitted the correspondence. However, it contended that it was its “procedure” that when an employee took over 15 days a year of sick leave, that the situation be referred to Ms Lobley for review in accordance with the “NSW Department of Premier and Cabinet Procedures for Managing Non-Work Related Injuries or Health Conditions”. It was unclear if CSNSW admitted, or did not admit, that Ms Huntley had not been approached at this time in relation to her sick leave. Page 13 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 The 10 May 2011 Meeting [67] In relation to the meeting on 10 May 2011, CSNSW contended that it had been Ms Huntley who requested the meeting. CSNSW admitted that a letter had not been sent to Ms Huntley in relation to earlier plans to medically retire her. However it did not admit that Ms Huntley was told that her CIG position would not be extended due to her disability or her sick leave record, or that CSNSW had not proceeded with earlier plans to medically retire her because she had obtained the CIG position. [68] CSNSW contended that it was Ms Nicholson who informed Ms Huntley that the CIG position would not continue after 20 May 2011. After the 10 May 2011 Meeting [69] In relation to Ms Huntley’s claims concerning sick leave and other leave entitlements after this time, CSNSW contended that as she was “permanently unfit for her substantive position” there was no other option other than to place her on sick leave. Further, that when Ms Huntley’s leave entitlements ran out, she was told of this and it was suggested that she may be able to obtain assistance from Centrelink. [70] In relation to the second GMO medical assessment, CSNSW repeated its admissions and contentions in relation to the first medical assessment. [71] CSNSW did not admit that Ms Lobley “made it clear that they were unwilling to consider transferring” Ms Huntley into alternate positions. [72] It denied any “delay” in providing documents for Ms Huntley’s application to the NSW Police. Further, that CSNSW had no power to “ask NSW Police” to hire its staff or request transfers. I could not see this was subsequently developed beyond an example of the ongoing treatment of Ms Huntley by CSNSW, and her resulting frustration. [73] In relation to the November 2011 meeting, CSNSW admitted that Ms Huntley applied for a CIG position with it, however did not admit that the position was not suitable for Ms Huntley because it would be “too stressful”. Further, it denied that Ms Lobley advised Ms Huntley that “Human Resources” were “reviewing” all available positions. CSNSW contended that it provided Ms Huntley with a vocational assessment through an independent provider. It denied that Ms Huntley’s resume was not provided during this process. It admitted that there were no restrictions in relation to stress in the medical assessments. [74] CSNSW denied that it asserted that it was not required to assist Ms Huntley in securing an alternate position, contending it attempted this by providing her with the vocational assessment provider, and the assessment report provided on 15 September 2011. Contract of Employment [75] CSNSW denied that the contract of employment with Ms Huntley was other than the express documents set out in its amended response. [76] CSNSW did not admit that there was an implied term of “Trust and Confidence”. [77] CSNSW admitted that the contract contained an implied term that it would perform its obligations in good faith towards Ms Huntley and its other employees. [78] CSNSW denied that it had breached any implied term that it would comply with its statutory obligations to ensure Ms Huntley was not discriminated against because of her disability, or to provide reasonable adjustments. Again, CSNSW referred to their contention that Ms Huntley was unable to perform the inherent requirements of the position, and that in these circumstances, reasonable adjustments could not be made. [79] CSNSW admitted that an implied term of the contract was that it would meet the terms of its policies (see “Annexure A”, as attached to the application, at [16]), however contended that all the policies were subject to exceptions. [80] In all, CSNSW denied any breach of the implied terms set out by Ms Huntley. Consideration The Key Issues [81] In light of the above background, it is clear that large parts of the entire factual account given both by Ms Huntley and CSNSW remain in contention. Bearing in mind the legislative scheme, the following issues arise for determination in the present case: 1) Was CSNSW’s treatment of Ms Huntley, and the decision to “medically retire” her from her employment an act, or acts, of direct disability discrimination within the meaning of s.15 and s.5 of the DDA? Page 14 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 2) Was Ms Huntley’s disability the reason, or one of the reasons, for the treatment and/or decision to “terminate” Ms Huntley’s employment? 3) Did CSNSW’s actions fall within the exceptions of the DDA to discrimination? 4) Was Ms Huntley treated less favourably than a person without her disabilities was, or would be, in the same circumstances? 5) Was CSNSW’s treatment of Ms Huntley, and the decision to “medically retire” her from her employment, an act or acts of indirect disability discrimination within the meaning of s.15 and s.6 of the DDA? [82] A key question to be answered in relation to the above, is whether CSNSW undertook any appropriate steps to make reasonable adjustments, or to enquire as to the possibility of making reasonable adjustments, to allow Ms Huntley to perform the duties of her position. [83] To a large extent, this question turns on the view of the medical assessments done in 2010 and 2011 by the GMO, Dr Crowle. Ms Huntley submitted that these assessments did not provide CSNSW with the “defence” that it had undertaken a process to identify possible reasonable adjustments. Further, that as no other workplace assessments had been completed, CSNSW did not make a proper assessment of Ms Huntley’s PPO position, either in line with the various workplace policies in place in CSNSW, including the reasonable adjustment policy, managing sick leave policy and others, or otherwise. [84] On the evidence, including under cross examination of its various witnesses, CSNSW did not deny that some of its policies had not been followed in relation to Ms Huntley. It appeared to submit that individual situations were influenced by relevant policies which were implemented and followed. Preliminary Matters [85] A number of matters require some preliminary note. [86] First, although I did not understand it to ultimately emerge as a point of dispute between the parties, I note and agree with CSNSW’s submissions that Ms Huntley bears the onus of proof in establishing her claims in relation to disability discrimination (Qantas Airways Limited v Gama[2008] FCAFC 69; (2008) 167 FCR 537 (“Gama”)), and the relevant standard is the balance of probabilities. [87] CSNSW also referred to Gama at [139] and Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) for the proposition that the strength of the evidence necessary to meet that standard “will vary according to the nature of what is sought to be proved”. Plainly, that is accepted given the authorities (see also s.140(2) of the Evidence Act 1995 (Cth)). [88] CSNSW then proposed that the allegations made by Ms Huntley are “serious” and that this must be borne in mind when assessing the strength of the evidence put to support her claims (with reference to Briginshaw). [89] The resultant difficulty, however, is that CSNSW’s submissions were silent as to how the nature of what is alleged, or what specific parts of the matters alleged, are of the level of seriousness, such as to fall within the particular caution expressed in the authorities to which CSNSW refers. Nor is this otherwise apparent from the circumstances. In short, the submissions lacked helpful particularity. [90] I also note, relevantly, that Ms Huntley did not allege fraudulent or criminal conduct on the part of CSNSW or those who acted for it (see Neat Holdings Pty Limited v Karajan Holding Pty Ltd[1992] HCA 66; (1992) 110 ALR 449). [91] In all, therefore, the direction provided by relevant authorities is, obviously, to be accepted. The lack of specificity in CSNSW’s submissions, and the lack of an attempt to relate the proposition asserted to the various pieces of evidence presented, means that it remains a general proposition. That is, without any real focus on the evidence necessary to assist in the question of whether the allegations can be made out on the standard of the balance of probabilities. Although CSNSW noted that in Gama (at [139]) the Full Federal Court stated that “the strength will vary according to the nature of what is sought to be proved”, the submissions remained unhelpful in relation to such an analysis. [92] In any event, I have sought to proceed in a manner consistent with the direction provided by the authorities. [93] Second, while CSNSW, correctly, submitted that in matters of this type Ms Huntley bears the relevant onus in establishing her case, this does not mean that CSNSW is relieved of the task of arguing why, or how, Ms Huntley’s case fails in this respect. That is, to put a coherent case, probative of the evidence, against those matters asserted by Ms Huntley. [94] In the current case, while Ms Huntley’s written submissions focussed on key issues said to establish her case, CSNSW’s written submissions were largely silent in relation to these matters. I note that CSNSW submitted that it operated on the basis of “remarks” said to have been made by Ms Huntley’s counsel in this matter, that “written submissions would not be necessary”. Further, that had it understood otherwise, the submissions “would have been fuller” (see [1] of CSNSW’s outline of submissions). Page 15 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [95] While some focus was directed to some aspects of Ms Huntley’s “key issues” in CSNSW’s oral submissions, its focus was largely on the question of “reasonable adjustments”. As presented, I understood CSNSW’s primary (although plainly not exclusive) position as follows. Relying on s.21A of the DDA, because of Ms Huntley’s disability (noting that Ms Huntley was diagnosed with two relevant conditions at different times), she was, and would be, unable to carry out the inherent requirements of the relevant position of her employment even where CSNSW made reasonable adjustments to that position for her. CSNSW’s oral submissions did not satisfactorily explain the earlier general assertion that reasonable adjustments could not be made given the nature of the requirements of the position. [96] In this light, CSNSW’s submissions directed attention to four different periods in the chronology of relevant events. These were primarily, although not exclusively, linked to “changes” to Ms Huntley’s health, and the various attempts which CSNSW said were made to provide reasonable adjustments to Ms Huntley’s work circumstances. In this CSNSW properly understood that it bore the onus of proof in establishing this “defence” to Ms Huntley’s charges. [97] Third, at the end of the final day of the hearing in this matter, CSNSW sought, and was granted, leave to file and serve further written submissions being in the nature of references to relevant authorities. This was defined as essentially a list of authorities, in relation to [83] - [85] of CSNSW’s written submissions. [Note: There are two paragraphs in the submissions numbered [83]. The reference here is to the “second” [83] beginning at page 8 of the written submissions.] These paragraphs of CSNSW’s submissions deal with some aspects of the inherent requirements for Ms Huntley’s position of employment and in relation to the question of whether CSNSW had made reasonable adjustments in 2010 such that Ms Huntley could continue in the role she held at that time. [98] The subsequent written submissions from CSNSW however go beyond the limited leave granted. They seek to address broader matters of direct and indirect discrimination, and make, albeit brief, submissions in relation to the “inherent requirements” matter. [99] I have not had regard to CSNSW’s further written submissions in relation to the matters other than the “inherent requirements” matter. Even if CSNSW had not anticipated, or even had misunderstood, that Ms Huntley would provide an outline of written submissions at the beginning of the last day of hearing, it would not be fair to Ms Huntley to consider these submissions without having given her the opportunity to respond. [100] In any event, the opportunity for oral submissions was available to CSNSW and the leave granted was clear in its focus and limitation. Ultimately, notwithstanding what CSNSW may have understood from Ms Huntley’s counsel, the choice as to how to present its case and the manner of presentation was one for CSNSW. [101] Fourth, and further, this latter point is also relevant to the presentation generally of CSNSW’s evidence. As set out above, at the hearing, CSNSW sought leave to read the affidavit of Ms Anita Borg made on 3 June 2014. Ms Borg was said to be Ms Huntley’s direct supervisor at part of the relevant time. At directions in this matter over six months before the commencement of the hearing, a number of orders were made to enable the progression of this case to a final hearing. Amongst those orders, an order was made giving CSNSW the opportunity to file evidence by way of affidavit by a date about two months before the hearing, and a date set reasonably in the sequence of the events leading to the final hearing. [102] It is the case, that Ms Huntley was given an opportunity to file further affidavit evidence in light of the timetable made earlier in these proceedings, as evidence in reply to CSNSW’s evidence. This time was extended prior to the hearing due to the initial late filing of CSNSW’s evidence. However, this was done at an earlier time to the hearing. It is also to be noted that that timetable sought to give the parties the respective and reasonable opportunity to prepare their cases for the final hearing. [103] The relevant order was made on 30 October 2013. CSNSW was given until 1 April 2014 to file all affidavits to be relied on. With the consent of Ms Huntley this was extended to 15 April 2014. [104] It is to be remembered, as set out above, that the strategy employed by CSNSW in these proceedings, as illustrated by the approach in the written submissions, was to focus on the “defence” of reasonable adjustments and inherent requirements (s.21A of the DDA), rather than, additionally and directly engaging with Ms Huntley’s approach of seeking to establish either direct or indirect discrimination under the DDA. [105] In that latter context, I accept that the evidence of an immediate and direct supervisor of Ms Huntley during part of the period of relevant employment would be an important part of CSNSW’s case in addressing some of Ms Huntley’s claims. [106] I understood there to be, at best, two elements to CSNSW’s explanation as to why the affidavit of Ms Borg was not filed earlier and was indeed produced only in the week immediately before the commencement of the final hearing (that is, it was lodged on Wednesday 4 June 2014). [107] One, CSNSW submitted that the affidavit of Ms Borg was prepared in response to the Ms Huntley’s “second” affidavit of 21 May 2014. That is, that it was only with the filing and serving of that affidavit that CSNSW had notice of the desirability of obtaining evidence from Ms Borg. Even if that were the case, what was left unexplained was that there was no attempt, given the “late” submission of the affidavit, to seek any consent from the other side for its Page 16 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 filing to be effected within any “extended” time provided by an order of the Court, or indeed to seek some urgent and timely interlocutory intervention by the Court. [108] In any event, I have some difficulty in the circumstances of this case, in accepting that the relevance of any evidence, from a person who was said to be Ms Huntley’s immediate supervisor at a relevant time, was not understood to be important in the context of CSNSW seeking to respond to the application, by arguing that reasonable adjustments had been attempted or made to Ms Huntley’s work circumstances, or that any such adjustment would still have left the employment situation as unworkable, due to the inherent requirements of the position. [109] Two, the submission was that it had been difficult to “obtain instructions” in this case given staff and management “turnover” and given the time since relevant events had occurred. This must be rejected in the circumstances as being an adequate explanation of the failure to secure Ms Borg’s evidence at an earlier time. I also understood CSNSW to mean that it was difficult to determine supervisory and management structures, and chains of command, in relation to Ms Huntley, and especially given the length of time of her employment, and the length of time since the claimed events. [110] CSNSW’s articulated defence to the application provides a basis to understand its submission to be that those responsible for preparing CSNSW’s case were not aware of Ms Borg’s relevance to their case until sometime after the filing of Ms Huntley’s affidavit of 21 May 2014. [111] I did not accept this as a satisfactory explanation for the “delay” in providing the affidavit. It must be remembered that CSNSW is a division or agency of a department of the State of New South Wales Government. I find it difficult to accept that the records of such an organisation were such that they were not readily amenable to a more timely interrogation as to work structures and personnel at the relevant time. After all, Ms Huntley’s work locations and employment history were clear from the annexure to her application which commenced these proceedings. Ultimately, Ms Huntley should not be prejudiced by any failure by CSNSW’s solicitors to properly and comprehensively prepare their case. [112] Five, in oral submissions, Ms Huntley made assertions generally about the way CSNSW sought to conduct its case. I understood the thrust of these submissions was to put the Court on notice as to the respective strength, and reliability, of the evidence presented by the various witnesses. In short, and generally, CSNSW’s witnesses were said to have, in varying ways, “deficiencies” in their evidence exposed under cross-examination, while Ms Huntley’s witnesses’ evidence remained unshaken. [113] CSNSW sought to explain that it was not “encumbent” on counsel to cross-examine Ms Huntley in a “strong way”. CSNSW referred to the Federal Circuit Court Rules 2001 (Cth) (“the FCCA Rules”) and the “objects” of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”). In short, that this Court, consistent with the FCCA Act, should operate in a “more informal way”. [114] That may, indeed, be generally the case. However, I do not understand either the FCCA Act or the FCC Rules to seek to “amend” the approach to the rules of evidence in matters of this type. How the parties choose to cross-examine is a matter for them, of course, within the bounds of propriety, civility, and the rules of evidence. Ultimately, the Court can only proceed on the evidence presented. Any assessment of weight to be accorded must flow from the nature, and character, of that evidence in the circumstances presented. Key Factual Disputes [115] As set out above, Ms Huntley identified a number of key events arising from the evidence and circumstances presented which she says established, on balance, her claims under the DDA. These key events raise the following questions: 1) Whether CSNSW gave Ms Huntley notice of the meeting on 10 May 2011 (“the meeting of 10 May 2011”). 2) Whether Ms Huntley could travel more than 30 minutes to work (“the travel restriction”). 3) Whether Ms Huntley’s sick leave was ever discussed prior to 10 May 2011 and whether there was compliance by CSNSW with the Managing Sick Leave Policy (“Ms Huntley’s sick leave”). 4) Whether Ms Huntley was capable of holding down a full time office based position (“Ms Huntley’s capabilities in employment”). 5) Whether the conduct of CSNSW, caused Ms Huntley to suffer a significant exacerbation in her psychological condition causing her to suffer Major Depressive Disorder (“Ms Huntley’s psychological conditions”). [116] It is convenient to be reminded of some of the chronological context, as referred to above, within which these key events occurred (drawn from CH1 and the parties’ submissions): Page 17 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 1) Ms Huntley worked as a Child Protection Caseworker with the then Department of Corrective Services (from 2001 to May 2002 (“CPC”)). 2) Work from 16 June 2003 as a CPC at the Department of Corrective Services in a temporary capacity. 3) 30 December 2004 offered accepted permanent position with CSNSW as a Probation and Parole Officer (“PPO”). 4) Commenced training on 31 January 2005 for PPO position. 5) Commenced work as trainee PPO on 29 March 2005 at Campbelltown District Office of CSNSW. 6) 27 January 2006 approved for advancement within relevant clerical grade. Completed probationary and assessment period as PPO. Made permanent employee. 7) October 2006 first of several periods as temporary supervisor of other PPOs as unit leader at Campbelltown District Office. 8) Various incremental progressions in clerical grades in 2007. 9) Commenced Career Development Program in 2008. 10) Later in 2008 Ms Huntley commenced work as a PPO at the Campbelltown Community Offenders Support Program (“COSP”). 11) Applicant began experiencing certain medical symptoms from late 2008 to mid-2009. 12) In June 2009 Ms Huntley was diagnosed with Crohn’s Disease following surgery. 13) Ms Huntley was on sick leave between 22 June 2009 and late August 2009 when she returned to work. 14) 31 August 2009 returned to work as PPO at CDO. Duties adjusted - but subject of dispute between parties now as to effect. 15) Worked as PPO at CDO from 31 August 2009 to March 2010 (with “restrictions” or “adjustments”). 16) 22 October 2009 to May 2010 underwent various treatments and medical procedures related to Crohn’s Disease. 17) March 2010 Ms Huntley was advised by CSNSW that she would no longer continue to work as a PPO (various referrals for medical review). 18) However, duties did not change. 19) Mid-to-late 2010 submitted an Expression of Interest (“EOI”) for a position with the CIG. On 13 September 2010 commenced work with CIG. Ms Huntley was offered this position, initially from 13 September 2010 to 13 January 2011. It was ultimately extended to sometime in May 2011. 20) 10 May 2011, see further below. 21) 16 June 2011 Ms Huntley attended meeting at CSNSW’s Head Office, see further below. 22) Ms Huntley was diagnosed with Idiopathic Hypersomnolance on 29 July 2011. 23) Commenced with NSW police in January 2012. [117] As stated above, there was no dispute between the parties that both Crohn’s disease and Idiopathic Hypersomnolance fall within the definition of “disability” for the purposes of the DDA (see s.4). The dispute centres around the key events as identified by Ms Huntley (see [115] above), and whether CSNSW put in place reasonable adjustments to address the effects of the disabilities on the work places. The Meeting of 10 May 2011 [118] A key critical event is the meeting of 10 May 2011, and the question posed by Ms Huntley as to whether she was given reasonable notice, in the circumstances, of this meeting. It is of note that at this time CSNSW knew of the Crohn’s disability, but not the IH disability. [119] As set out above, at the relevant time Ms Huntley was placed on temporary appointment within CSNSW with the CIG as an Intelligence Analyst from 13 September 2010 (she remained a “permanent employee” of CSNSW). [120] Following the appointment, and after commencing the position at CIG, the evidence is that Ms Huntley experienced various symptoms relating to sleeping difficulties. Ms Huntley pursued medical evaluation with various Page 18 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 medical, including specialist, practitioners. As set out above, she was ultimately diagnosed with the IH disability on 29 July 2011. Ms Huntley took various sick leave during this period. Her evidence was that she requested permission that she be allowed to complete her “office” duties at home. [121] It appears the periods of sick leave were of concern to Ms Hillyard who expressed this in an email of 23 February 2011 addressed to, relevantly, Ms Wendy Lobley and others, including Mr James Smith, a regional human resources manager. Ms Hillyard’s attention had been drawn to Ms Huntley’s situation by Ms Leah Nicholson, who was Ms Huntley’s “line manager” at CIG. [122] It was Ms Hillyard’s evidence that she was “prompted” to call the meeting (of 10 May 2011) because of an email from Ms Huntley to Ms Nicholson on 4 May 2011 reiterating her request that she be allowed to work from home (see page 327 of the exhibit to CH1 and [137] and [146] of CH1). Ms Nicholson did not “support” Ms Huntley’s request. The meeting was arranged to include Ms Huntley, Ms Nicholson and Ms Lobley. It appears that the date was chosen because Ms Lobley was intending to otherwise visit the relevant office on that day. [123] Ms Huntley claims that she was required to attend the meeting without notice. CSNSW pleaded that Ms Huntley requested the meeting (see [52] of the amended response). [124] Ms Huntley’s evidence was clear. She attended a neurologist’s surgery in the morning of 10 May 2011 for certain medical tests. She felt unwell as a result of the tests. She then sent a message by mobile phone to her supervisor Ms Farroway to say she would not be coming to work that day. She maintained that she had no notice of the meeting, and first became aware of it when Ms Farroway, who had already sent a number of other messages, advised her that Ms Nicholson “wanted to know” if she could come to the office to attend a meeting. [125] Ms Huntley’s evidence was that, in a telephone conversation within minutes of this message from Ms Farroway, Ms Farroway was unable to tell her why the meeting was called. Ms Huntley’s evidence was that even when she arrived at the office, about an hour and a half later, Ms Nicholson only told her that the meeting was about “some HR thing”. Ms Huntley’s evidence was that she “confirmed” her records and could not find any prior notice of the meeting. Ms Huntley’s relevant evidence under cross-examination, to the extent that it was pursued, was clear, consistent in its detail, and remained without relevant doubt. I agree with Ms Huntley’s submissions that in cross-examination CSNSW did not put to Ms Huntley that she was untruthful in, or for that matter mistaken about, her relevant evidence. [126] The relevant participants in the events of 10 May 2011 were Ms Huntley, Ms Nicholson, Ms Lobley and Ms Hillyard. There was evidence that a Mr Wayne Creighton was a manager senior to Ms Nicholson in the “local” hierarchy, but he does not appear to have taken any relevant role in this incident. I note also that Ms Farroway did not give evidence in these proceedings, and on the evidence, did not attend the meeting. [127] As opposed to Ms Huntley’s evidence, Ms Nicholson gave evidence in her affidavit that she spoke to Ms Huntley a “day or so” before the meeting and “ascertained” that she had been told about the meeting. Before the Court, Ms Huntley referred to Ms Nicholson’s statement of 15 June 2011 (see pages 358 - 361 of the exhibit to CH1), prepared in relation to certain workers compensation proceedings. [128] In that statement Ms Nicholson does not say that she spoke to Ms Huntley “a day or so” before the meeting to “ascertain” whether she knew of it. Rather, a reasonable inference can be drawn from that statement, that responsibility for the organisation of the meeting was with Ms Hillyard (“[a]s far as I was aware the meeting had been organised by Gai Hillyard”). [129] Further, Ms Nicholson’s statement says that on the day of the meeting (page 359 of the exhibit to CH1): “…Janelle Thoroughway (acting Community Manager within Corrections Intelligence) informed me that Caryn had gone off sick that day. I asked Janelle to contact Caryn and ask her to attend the office [as] there was a meeting scheduled for later that day…” [Note in the statement the reference to “Thoroughway” appears to be an error and should probably be a reference to “Farroway”.] [130] It is of relevance to note Ms Nicholson’s affidavit evidence in relation to the reasons for the meeting being called. Ms Huntley’s secondment to the CIG was to end, and had ended “formally” on 2 March 2011 (see further below). However, Ms Huntley continued to work at CIG, and it appears she was under the impression that it had been extended to at least May 2011 (see above). [131] It would appear that Ms Nicholson’s evidence is that the date for this cessation was confirmed by Ms Hillyard because of the amount of sick leave Ms Huntley had taken, and Ms Huntley’s “inability to travel more than 30 minutes to CIG could no longer be supported and should cease on 2 March 2011”, when the secondment would not be extended ([8] of Ms Nicholson’s affidavit). [132] While Ms Nicholson gave evidence of various concerns and issues giving rise to the meeting, there was no evidence that Ms Huntley was told, in the days prior to the meeting, what was to be discussed at the meeting. Ms Nicholson’s evidence now is that Ms Huntley was “fully consulted about alternative placements at CSNSW or a further medical assessment” ([11] of Ms Nicholson’s affidavit). However, other than insisting that she told Ms Page 19 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 Huntley that the meeting was scheduled for 10 May 2011, there was no evidence that she told her of the detail of the meeting, or the reason for calling it. [133] In response to questions during cross-examination, Ms Nicholson’s evidence could be understood as being that she told Ms Huntley about the meeting prior to 10 May 2011. However, there remained no evidence that she told her of any relevant detail, as otherwise explained in her affidavit, as to the reason for the meeting. [134] As stated above, Ms Huntley, in her initial affidavit gave evidence that after arriving at work on 10 May 2011 she asked Ms Nicholson “what’s this meeting about?” (see [169] of CH1). Ms Huntley’s evidence was that Ms Nicholson responded “some HR thing”. In her affidavit, Ms Nicholson gave evidence that after Ms Huntley arrived at work she “spoke briefly about the meeting” with her ([13] of Ms Nicholson’s affidavit). [135] In cross-examination Ms Nicholson, at first, gave evidence that she told Ms Huntley, at this time, that the meeting “was to work out what was happening with her tenure”. When it was then put to her that what she said was that “it was an HR matter”, Ms Nicholson agreed that this is what she said. This agrees with Ms Huntley’s account of the “brief” conversation. [136] It is to be remembered that there was no evidence from Ms Nicholson that at any time prior to the meeting Ms Huntley was given any specificity by her as to what the meeting was about. It is of note that while Ms Nicholson’s evidence was initially that it was to work out Ms Huntley’s “tenure”, she agreed in cross-examination that she did not tell Ms Huntley that her placement at CIG was at an end. A matter which had been “decided” (on Ms Nicholson’s evidence) earlier by Ms Hillyard (see email of February 23 at pages 303-304 of the exhibit to CH1). [137] Ms Lobley gave evidence that sometime in April 2011 she was contacted by Ms Hillyard and Ms Nicholson “about a meeting and indicating that [Ms Huntley’s] secondment at Silverwater should come to an end…” ([9] of Ms Lobley’s affidavit). Ms Lobley’s evidence was that Ms Hillyard asked her to meet with Ms Huntley, although she did not provide a date as to when this occurred. At best, Ms Lobley’s evidence was that a meeting had been arranged. Her evidence was silent as to the matter of notice. It is clear that she did not give any notice to Ms Huntley. [138] Ms Hillyard’s evidence was Ms Huntley’s email requesting that she work from home, which had been directed to Ms Nicholson, “prompted [Ms Hillyard] to arrange a meeting” ([11] of Ms Hillyard’s affidavit). There was no evidence that she personally took any step to notify Ms Huntley of the meeting, nor for that matter that she caused anyone else (including Ms Nicholson) to give Ms Huntley any such notice, let alone any detail about CSNSW’s concern arising from the request to work from home or the sick leave taken by Ms Huntley. [139] Ms Huntley submitted to the Court that during cross-examination it was never put to her that she was not telling the truth when she said she had not been given notice of the meeting and related matters. Ms Huntley submitted that the failure to address this directly in cross-examination attracts the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunne”) and therefore invited the Court’s acceptance of Ms Huntley’s relevant evidence (see also Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 2 NSWLR 1 andBaulch v Lyndoch Warrnambool Inc (2010) 27 VR 1 (“Baulch”)). [140] Even without the “invitation” flowing from the rule in Browne v Dunne, I find that on balance Ms Huntley’s evidence is to be preferred to that of Ms Nicholson in relation to whether Ms Huntley was given prior notice of the meeting by Ms Nicholson. Ms Nicholson’s relevant evidence was equivocal. It lacked the clarity and certainty of Ms Huntley’s evidence. In one aspect, as set out above, it confirmed Ms Huntley’s version. [141] In coming to this conclusion, I did not need to have regard to the evidence of Mr Huntley which corroborated Ms Huntley’s account, albeit based on a reported conversation with her as to her distress after the meeting, as arising from the circumstances of the meeting. [142] I also agree with Ms Huntley that the application of the rule in Browne v Dunn in the circumstances presented, emphasises the acceptance of Ms Huntley’s account in relation to this key factual dispute. [143] I find that Ms Huntley was not given notice of the meeting of 10 May 2011 prior to that date. I find that Ms Huntley was also not put on notice of the detail of the meeting in the short time prior to the meeting. The Travel Restriction [144] The second key factual dispute concerns whether Ms Huntley could, or could not, travel for more than 30 minutes to work. [145] The circumstances surrounding this matter arise from Ms Huntley’s Crohn’s disability, and the subsequent physical need for regular toilet breaks. It is to be remembered, as referred to above, that this was part of the “medical issues” that Ms Hillyard said in her evidence prompted her to arrange the meeting of 10 May 2011 and cease Ms Huntley’s secondment to CIG. [146] Ms Hillyard’s evidence was ([7] of Ms Hillyard’s affidavit): “I was concerned that the Applicant was driving more than 30 minutes from her home in Austral to Silverwater and then more than 30 minutes back to her home. I googled the distance between Austral and Silverwater.” [147] This was one of the factors that led Ms Hillyard to conclude that Ms Huntley’s continued secondment to CIG would not be “supported” and should cease on 2 March 2011 (see [9] of Ms Hillyard’s affidavit). It appears that this Page 20 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 was communicated by Ms Hillyard to the “CIG Manager”, but there is no satisfactory evidence that she sought to communicate this to Ms Huntley prior to the meeting of 10 May 2011. [148] In her affidavit, Ms Nicholson confirmed Ms Hillyard’s concern about the inability to travel for more than 30 minutes (see [8] of Ms Nicholson’s affidavit). [149] In cross-examination, Ms Hillyard insisted that the decision that Ms Huntley’s continued secondment at CIG was not supported was not her decision (see the email of 22 February 2011 at page 303 of CH1). In her affidavit Ms Nicholson gave evidence, referring to Ms Hillyard raising in her email of 22 February 2011, that Ms Huntley had been medically assessed and that the recommendation was that she take car trips of no more than 30 minutes in length. [150] It is of note that none of CSNSW’s witnesses took, or it must be said appeared to want to take, responsibility for the genesis of the view expressed in Ms Hillyard’s email. I note that this was not only in relation to the “travel restriction”, but also in relation to the matter of the cessation of the secondment. Ms Nicholson, for example, repeated that it emanated from Ms Hillyard. There was no evidence that the decision to accept that Ms Huntley could not travel for more than 30 minutes was her decision. Ms Hillyard gave evidence in cross-examination that it was Ms Nicholson’s decision. [151] Ms Huntley’s evidence was that, at the relevant time, she was able to undertake car trips for more than 30 minutes ([24] of CH2). Ms Huntley referred to the medical assessment of 15 June 2010 prepared by Dr Crowle (see above). [152] Dr Crowle’s report is in evidence (see at pages 116-120 of the exhibit to CH1). Relevantly, it states (page 119 of the exhibit to CH1): “Ms Huntley is suitable to perform full time office based duties where there is unrestricted access to toilet facilities. Travel in association with work should ideally be limited to less than 30 minutes or planned such that Ms Huntley can have reliable access to toilet facilities. The information provided indicates that she has likely reached maximum medical improvement and these recommendations are likely long-term.” [Emphasis added.] [153] In her first affidavit, Ms Huntley relevantly states that she was able to take car trips of longer duration than 30 minutes in circumstances where such trips included planned toilet breaks. She gave, as an example, her travel from home to CIG where she had “planned” for the journey by making sure she knew where she could stop for toilet breaks. [154] It is clear that Dr Crowle’s report did not state simply that Ms Huntley could not travel for more than 30 minutes. Plainly, the relevant part of the report was that, in the alternative, Ms Huntley could undertake longer car trips in circumstances that were planned to allow for toilet breaks. [155] Ms Hillyard, in her affidavit evidence now, appears to have understood the twin aspects of Dr Crowle’s recommendation (see at [6]). However, there is nothing in Ms Hillyard’s subsequent evidence, in her affidavit, or orally before the Court, to show that this understanding was applied at the relevant time in CSNSW’s subsequent conduct involving Ms Huntley. [156] In her email of 22 February 2011, Ms Hillyard relevantly reports Dr Crowle’s assessment as reflecting the alternatives set out above (page 303 of the exhibit to CH1). However, in the same email Ms Hillyard then proceeds, inexplicably, on the basis that Ms Huntley is unable to travel for more than 30 minutes (see page 304 of the exhibit to CH1): “Due to the amount a sick leave taken and her inability to travel for more than 30 minutes, Ms Huntley’s secondment at CIG can no longer be supported. Ms Huntley’s secondment ceases on 2/3/11.” [157] In cross-examination Ms Hillyard was unable to satisfactorily explain how, in the same email, she progressed in her relevant reasoning from a position where Dr Crowle’s alternative was noted, to a position where the basis for her subsequent comment (as set out at [156] above) did not allow for travel of over 30 minutes, and further was the sole basis for the “decision” that Ms Huntley’s secondment to CIG could not be supported. [158] In cross-examination Ms Hillyard gave evidence that this statement could not be characterised as a “decision” because, as she was not the relevant manager of Ms Huntley, she had no authority to make that decision. Her evidence was that it was not her decision, but was one for Ms Nicholson to make. [159] Ms Nicholson’s affidavit evidence reports what was, in effect, her understanding of Ms Hillyard’s email. In her affidavit, Ms Nicholson reports that in her email Ms Hillyard said (at [7]): “…Ms Hillyard also raised in the email that the Applicant had been medically assessed and it was recommended to take car trips no more than 30 minutes in length.” [160] In cross-examination, Ms Nicholson gave evidence that she did not recall seeing Dr Crowle’s report, and had no independent recollection of it from that time. Ms Nicholson was equivocal as to the genesis of the decision not to Page 21 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 support the extension of Ms Huntley’s placement at CIG. At first Ms Nicholson stated it was not her decision. But subsequently agreed it was her decision. She gave evidence that she became aware of the 30 minute travel issue when Ms Hillyard brought it to her attention, and she did not extend the secondment on that basis. [161] Ms Nicholson’s evidence was that while she was not responsible for Ms Huntley’s appointment to CIG, she was, at the relevant time, the line manager at CIG when Ms Huntley commenced her duties. That is, she had some managerial responsibility for Ms Huntley, including the review of her sick leave record. Ms Hillyard was said to be Ms Nicholson’s human resources advisor. [162] In my view, on the evidence generally presented in this matter, it can be said that, in a number of instances, the relevant management lines of responsibility in CSNSW were, at the relevant times, ill-defined, and amorphous, or at best poorly explained before the Court. [163] What can be said, on balance and ultimately, although the evidence was unclear in some aspects, is that despite her initial evidence to the contrary in cross-examination, Ms Nicholson was the manager with responsibility for the subsequent decision not to extend the secondment. It is also available to say that on her own evidence Ms Nicholson did not directly rely on Dr Crowle’s report, but on what she understood Ms Hillyard to have, ultimately, reported of it. [164] I find that Ms Nicholson’s expressed understanding of what Dr Crowle stated is factually inconsistent, or not reflective, of the entire relevant recommendation made by Dr Crowle. That is, CSNSW proceeded on the factually incorrect basis that Ms Huntley could not work in a situation which required car trips of more than 30 minutes. This plainly has relevance also to the matter of reasonable adjustments (see further below). Ms Huntley’s Sick Leave [165] The third key area of factual dispute between the parties concerns the question as to whether Ms Huntley’s sick leave was discussed with her prior to 10 May 2011. Further, whether there was compliance by CSNSW with its “Managing Sick Leave Policy” (see pages 199 - 212 of the exhibit to CH1). [166] It is to be remembered, as referred to above, that both Ms Nicholson and Ms Hillyard were concerned, as at February 2011, that Ms Huntley had taken a large amount of sick leave since she had commenced working at CIG. In her email of 22 February 2011, Ms Hillyard gave, as one, of two reasons as to why Ms Huntley’s extension at CIG could not be supported, as being due to the amount of sick leave she had taken. [167] Ms Nicholson’s evidence was that she “observed” that while Ms Huntley was in the Intelligence Analyst position at CIG “she was unable to attend work full time due to her ongoing health problems”. Ms Nicholson’s evidence was that she spoke to Ms Huntley about the “frequency” of her sick leave (see at [6]). Further, Ms Nicholson’s evidence, with relevance to CSNSW’s administration of its sick leave policy, was that she had spoken with Ms Huntley, sometime in early 2011, “about the issue of proper procedures for calling in sick…” (at [16]). [168] Ms Huntley’s evidence, in both affidavits, was that Ms Nicholson had not spoken to her about the frequency of her sick leave and had not spoken to her about the “proper procedures” for notifying absences due to sickness ([193] of CH1 and [60] of CH2). [169] As above, I find that, as best as CSNSW’s evidence could be understood as to its relevant lines of management and responsibility, Ms Nicholson was Ms Huntley’s responsible manager at CIG. I note again Ms Nicholson’s difficulty in explaining responsibility for various relevant management decisions concerning Ms Huntley (for example, the 30 minutes travel issue). Nor was it clear from Ms Nicholson’s oral evidence the extent to which she simply accepted, relied upon, or merely followed Ms Hillyard’s advice in relation to “decisions” concerning Ms Huntley. [170] In contrast to Ms Nicholson, on this question Ms Hillyard gave clear evidence that she did not discuss the sick leave matter with Ms Huntley. She was also clear that she could not remember having “instructed” anyone else to have such a discussion with Ms Huntley. [171] The questions in dispute are resolved with reference to what I find to be the unequivocal evidence of Ms Huntley. Ms Huntley’s evidence, that no such conversations took place was not shaken in cross-examination. This compares favourably to the evidence of Ms Nicholson, whose evidence did not display the characteristics revealed in Ms Huntley’s evidence. [172] Further, I agree with Ms Huntley’s submissions that Ms Nicholson’s affidavit evidence lacks relevant detail. She merely stated that she spoke to Ms Huntley about the frequency of sick leave. This was left without any relevant, or helpful, temporal context. There was also an absence of detail about what exactly was discussed, and whether Ms Huntley gave any response or explanation of her position. The situation was not made any clearer by Ms Nicholson’s oral evidence. [173] As stated above, Ms Nicholson’s evidence, on the question of the discussion of the sick leave protocols, suffers from an even greater lack of clarity. At [16] of her affidavit, Ms Nicholson refers to Ms Janelle Farroway as being Ms Huntley’s “supervisor”. It is to be remembered that Ms Farroway did not give evidence in these proceedings. Page 22 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [174] Ms Nicholson’s affidavit evidence was that she spoke to Ms Huntley “sometime in early 2011…about the issue of proper procedures for calling in sick…”. This again lacks any helpful temporal context or detail. [175] Further, Ms Nicholson’s relevant evidence under cross-examination was problematic. It was Ms Nicholson’s evidence that the relevant policy (the “old policy”, relevant during Ms Huntley’s time at CIG) contained a number of formal steps to be undertaken in relation to the management of sick leave (see in particular pages 207 ‑ 208 of the exhibit to CH1). [176] “Steps” in this process involved a formal interview and, if necessary, a “formal counselling” session conducted by the “manager” of the employee “…to identify if there are any underlying causes for absences” (see at page 207 of the exhibit to CH1). Ms Nicholson gave evidence that she conducted both in relation to Ms Huntley. [177] When pressed as to whether there was any record of a “formal counselling” session, Ms Nicholson then gave evidence that the discussion she had with Ms Huntley was not a “formal counselling” session. Nor could she produce any documents to support her evidence of either interview or counselling session. [178] Ms Nicholson gave evidence that she could not “find [her] documents”. She explained that she no longer worked at CIG and did not have access to the documents. I draw the inference that some search had occurred for the documents, from Ms Nicholson’s oral evidence that “they can’t find the file, everything has been archived…”. In context, I understand the reference to “they” to be persons acting on behalf of, or for, CSNSW. [179] Ultimately, Ms Nicholson agreed that she did not follow the steps as referred to in the policy documents. I understood this to be an assertion that she did not follow the procedures in the fashion required (for example, with the necessary “formality” or structure). [180] In contrast, in the matter of Ms Nicholson’s claimed conversation, or conversations, concerning the proper procedures for notifying absences due to illness, Ms Huntley was clear and unequivocal in her rejection of Ms Nicholson’s claims. Further, Ms Huntley was not challenged in cross-examination about her evidence that Ms Nicholson had not spoken to her about the frequency of sick leave in the time leading up to the meeting of 10 May 2011. I note that Ms Huntley did give evidence that on the day of that meeting Ms Nicholson requested, through Ms Farroway, that she “call in” her sick leave as opposed to contacting Ms Farroway, directly. It appears that this was not done “prior” to the meeting in any meaningful way. [181] I find, on balance, that Ms Nicholson, did not speak to Ms Huntley about either of those issues prior to May 2011. I further find that Ms Nicholson did not undertake the relevant procedures in relation to Ms Huntley during this time as set out in CSNSW’s policy statement. Ms Huntley’s Ability to Perform Duties [182] The fourth factual dispute between the parties concerns Ms Huntley’s ability, during the relevant period, to perform the duties of a fulltime office-based position. [183] The particular dispute appears to arise between the parties from the relevant difference between the evidence of Ms Lobley and Ms Huntley. Ms Lobley’s evidence was that (at [30] of her affidavit): “Around the time of the meeting on 10 May 2011 I considered that the Applicant’s absences from work indicated that her illness was not improving and that it did not allow her to attend work fulltime. It is my experience that with any person in those circumstances arrangements would be made to set in train the process that would determine whether that person is fit for work or would be medically retired. As the Applicant had arranged a secondment with NSW Police I did not pursue the arrange1nents for medical retirement.” [184] The relevant evidence from Ms Huntley refers to Dr Crowle’s report. It is to be remembered that CSNSW first referred Ms Huntley to Dr Crowle in May 2010 (for the medical referral notification see pages 90 ‑ 92 of the exhibit to CH1). At that time, Ms Huntley was employed as a PPO at the Campbelltown District Office of CSNSW. [185] Dr Crowle was asked her opinion as to (see page 91 of the exhibit to CH1): “… 2. … please advise whether Ms Huntley is: a. Currently fit for her substantive position; or b. Temporarily unfit for her substantive position; or c. Permanently unfit for her substantive position.” [186] As stated above, Dr Crowle’s report of 15 June 2010 is reproduced in the exhibit to CH1 at pages 116 - 120. Dr Crowle’s opinion of Ms Huntley’s work capacity was that “she was suitable to perform fulltime office based duties Page 23 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 where there is unrestricted access to toilet facilities”. Ms Huntley was “assessed as permanently unfit for the full duties of her substantive position” (the PPO position at Campbelltown). [187] Dr Crowle’s second report of 10 August 2011 is reproduced at pages 407 to 415 of the exhibit to CH1. CSNSW referred Ms Huntley’s case to Dr Crowle on this occasion for a medical assessment and Ms Huntley’s “fitness to undertake any employment within Corrective Services NSW” (page 407 of the exhibit to CH1). [188] The relevant part of Dr Crowle’s report, and the question she was asked was as follows (page 412 of the exhibit to CH1): “2. Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice for a timeframe for return to her substantive position. In order for this to be durable, please provide guidance as to the capabilities anticipated during the graded return to these substantive duties. Ms Huntley is medically suitable for office based sedentary work provided there is reliable access to toilet facilities. Ms Huntley’s travel arrangements need to accommodate her requirement to have reliable access to toilet facilities. Possible strategies include identification of a travel route where there are reliable places to stop and access toilet facilities if travelling by car and travel at times of day to avoid peak hour traffic. It is recommended that Ms Huntley return to work on a graded return of hours, commencing at 25 hours per week and upgrading to full hours over a 2 to 3 month period as this would be beneficial in upgrading to sustainable full time hours of work while she continues to establish management of her most recently diagnosed condition. Utilisation of relevant flexible work hour policies or work from home arrangements, should this be possible in any suitable position, would assist in reducing the amount of sick leave required and provide flexibility to avoid peak hour traffic travel.” [189] Ms Huntley’s submission to the Court is that little weight should be given to Ms Lobley’s evidence (at [183] above) in this regard as it is contradicted by Dr Crowle’s reports, and Ms Huntley’s evidence before the Court, that for the past two and a half years she has successfully occupied a full time office based position within the NSW Police. [190] There is no basis to doubt that Ms Lobley held the opinion that she asserts she held in May 2011. Little, and therefore lesser, weight to that accorded to Ms Huntley’s evidence, should be accorded to this part of Ms Lobley’s evidence for the following reasons. It is not necessary to refer to Ms Huntley’s evidence as to her subsequent work capacity. [191] The best view of the evidence before the Court is that Ms Lobley is not a medical practitioner. There is no evidence that she has any relevant medical qualifications or experience. There is no basis in the evidence before the Court to accept Ms Lobley’s opinion that Ms Huntley’s “illness is not improving”. Ms Lobley is a lay person in relation to medical matters. There is nothing in her evidence, or in the evidence generally, to say she formed this view because of any medical evidence presented to her. [192] The relevant evidence from Dr Crowle, to whom CSNSW had referred Ms Huntley, in an expert medical opinion in June 2010, and a second in August 2011, was that Ms Huntley was, with some restriction, able to ultimately return to full time office work. That is, it confirmed that after a graduated return Ms Huntley could resume full time office work. [193] Ms Lobley’s evidence, therefore, needs to be seen in the following way. It is not a view supported by any medical evidence or even opinion. It is contradicted by the relevant medical evidence from 2010 and by the subsequent medical report prepared some 2 to 3 months after the events of May 2011. I find, on the evidence, that Ms Huntley was able to return to work in the manner explained by Dr Crowle and to perform the duties of a “full time office position”. Ms Huntley’s Psychological Condition [194] The fifth key area of factual dispute concerns the question of whether CSNSW’s conduct caused damage to Ms Huntley’s mental health. In this regard, Ms Huntley directs attention to the evidence of Ms Carter of 14 February 2014, and, in particular, to the report from Ms Alicia McIntyre, a psychologist, annexed to Ms Carter’s affidavit (see “HKC 8” annexed to the affidavit of Ms Carter). [195] The dispute arises between the parties as a result of CSNSW’s cross-examination of Ms Huntley and her husband, Mr Huntley, in relation to Ms McIntyre’s report. [196] It is important to note that Ms McIntyre made clear in her report, dated 17 January 2014, that her report was not as a medical practitioner but as a trained psychologist. Therefore, her report was “limited to medical conditions which are psychological in nature”. Ms McIntyre stated that Ms Huntley had been her patient for over four years (from 22 August 2009). [197] The relevant parts of Ms McIntyre’s report, for current purposes are as follows: 1) Her opinion that Ms Huntley’s symptoms which led to the diagnosis of a Major Depressive Disorder, were work related, albeit with “acute and chronic stressors” ([9] at page 8 of the report). Page 24 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 2) In relation to the meeting of 10 May 2011, Ms McIntyre assessed, based on records available to her, that Ms Huntley suffered an “acute stress reaction”. She understood from her records that, Ms Huntley had said she was told at the meeting she was to be “medically retired” ([10] at page 4 of the report). 3) Ms McIntyre’s note, made in light of sessions with Ms Huntley at the relevant time, reveal that, from May 2011, “more intense strategies for the management of distress and increased depressive symptomology” were employed ([11] at page 4 of the report). 4) Ms Huntley reported generally unfair proceedings adopted by CSNSW to her. On this basis Ms McIntyre’s “professional conclusion” was that “the events from 10 May 2011 have acted as an acute and chronic stressor”. These stressors “exacerbated” Ms Huntley’s “depressive symptomology, prolonged the requirement for treatment and have [possibly] impaired full recovery of Major Depressive Disorder” ([12] at page 5 of the report). 5) This disorder had an impact on various aspects of Ms Huntley’s life including her “ability to function to her full potential in her life, professionally, socially and relationally” ([13] at page 5 of the report). [198] Ms Huntley submitted that CSNSW elected not to cross-examine Ms McIntyre. I note that Ms McIntyre’s report was not before the Court as an annexure to any affidavit by her, but to that of Ms Carter. Nonetheless, there was no objection to the report being read into evidence as an annexure to Ms Carter’s affidavit. Nor, importantly, was there any report of any attempt to call, or subpoena, Ms McIntyre as a witness. [199] CSNSW, albeit to a limited extent, sought to cross-examine Ms Huntley and Mr Huntley in relation to the report. I agree with Ms Huntley that attempts by CSNSW to, in effect, elicit what Ms Huntley and Mr Huntley thought of the report, or even to explain it, were of no assistance to CSNSW’s case. Ms McIntyre’s report, to the extent that it gives her opinion in relation to matters within her expertise, speaks for itself. In the absence of any direct challenge to Ms McIntyre, or of any other evidence to challenge or even doubt aspects of her report, which was put in evidence before the Court, leads to the situation where I accept what is stated in Ms McIntyre’s report (see Bulstrode v Trimble [1970] VR 840 (“Bulstrode”), see also Baulch, Message v Baires Contracting Pty Ltd [2011] VSC 75 (“Message”) and Ian Rumney Office Equipment v The State of Tasmania [1998] TASSC 6 (“Rumney”)). As it is presented, and as it stands, Ms McIntyre’s report is not “incredible or unconvincing” (Bulstrode). [200] Ms Huntley relied on Bulstrode for the proposition that in the absence of any reason not to, evidence which is unchallenged before the Court, and which is not “incredible or unconvincing” may provide good reason to accept the evidence (see also Baulch, Message, Rumney). [201] What is of immediate note is that the issue in Bulstrode was a failure to call the deponent of an affidavit for cross-examination. In the current circumstances, Ms McIntyre did not depose her evidence in any affidavit. [202] However, her report is in evidence before the Court as a result of Ms Carter’s affidavit. Ms Carter gave evidence that she wrote to Ms McIntyre on 18 November 2013 (see [9] of Ms Carter’s affidavit and annexure HKC7). The letter sought a “medical report” from Ms McIntyre concerning Ms Huntley’s relevant medical condition. The letter sent, as attached, various relevant documents and sought answers to specific questions. Importantly, it drew Ms McIntyre’s attention to r.15.07 of the FCCA Rules concerning expert witnesses. [203] In Ms McIntyre’s report (at HKC8), she confirmed that she had read and understood that she as “bound” by the conditions of the “Expert Witness Code of Conduct” and prepared her report in accordance with relevant articles. [204] Ms McIntyre’s report states that her expert opinion is restricted to “medical conditions which are psychological in nature”. That is, within her area of expertise (see page 3 of the report). [205] There is nothing in Ms McIntyre’s report, nor otherwise before the Court, to say that the report is “incredible or unconvincing”. In the circumstances, those parts of the report relied on by Ms Huntley now form the basis on which the relevant submissions may be made and accepted by the Court. I accept her report as evidence of Ms Huntley’s psychological condition at the relevant times. [206] CSNSW sought to emphasise that Ms Huntley consulted Ms McIntyre prior to August 2009 and that the diagnosis of the depressive symptomology preceded August 2009. That is, before Ms Huntley returned to work after being diagnosed with the Crohn’s disability. That must be accepted on the evidence. [207] However, Ms Huntley’s reliance on Ms McIntyre’s report was not based on any argument that CSNSW caused the Major Depressive Disorder, but that at relevant times, for example after the meeting of 10 May 2011, its conduct significantly exacerbated that condition and prolonged consequent treatment. I find that Ms McIntyre’s report stands in support of that proposition. [208] Ms Huntley’s submissions also refer to parts of her evidence relevant to this issue ([52] - [59] of Ms Huntley’s closing submissions ): Page 25 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 “[52] Ms Huntley, in her affidavit affirmed 14 February 2014 outlined the impact the discriminatory conduct of the CSNSW had on her after 10 May 2011. [53] At paragraph 391 of that affidavit Ms Huntley says: ‘Prior to May 2011, I felt safe and secure in my employment with Corrective Services NSW. I felt that for the most part, I was recognised as a valuable member of any team that I worked with and I was consistently allocated complex and difficult matters. This provided me with a sense of validation regarding the quality of work that I produced and how I was perceived by my colleagues, my supervisors and my managers’ [54] At paragraph 393 of the affidavit of 14 February 2014 Ms Huntley says: ‘After 10 May 2011 I sought and received considerable emotional support from my family, friends, Doctor and my Psychologist. Despite this support, my mood rapidly deteriorated. I had thoughts of suicidal ideation, however I never made any plans to kill myself, the thoughts often circulated through my mind. I felt powerless, swamped, overwhelmed and daunted by the simplest of tasks. I felt as though I had lost over my own life. I spent many days not functioning in any real capacity, on these days I would barely make it out of bed to lay on the lounge where I would say for the rest of the day in a sort of depressed stupor.’ [55] At paragraph 394 of that affidavit Ms Huntley gives the following evidence: ‘I found myself becoming extremely irritated by things which previously would not have bothered me. I would verbally lash out at my husband or my family members out of frustration with the situation that CSNSW had placed me into. I have thrown a number of objects out of sheer frustration as there has been nothing else I could do to release my anger and frustration at the people who I felt have caused it.’ [56] At paragraph 397 of the affidavit of 14 February 2014 Ms Huntley states: ‘When Ms Prasad told me to go to Centrelink and apply for benefits which I knew that I was not eligible for, I felt angry, frustrated and humiliated. I have always taken pride in the fact that I have worked since I have been old enough and for never having to need the assistance of Government benefits to cover my living expenses. I felt like I was being forced to apply for benefits when I was fit to work and I wanted to work, but CSNSW were preventing me from working and earning my wage.’ [57] At paragraph 400 of the affidavit of 14 February 2014 Ms Huntley says: ‘I also felt like I had been robbed of any sense of security. I was at risk of having to declare bankruptcy had I been forced to go for much longer than what I was forced to without being paid. Due to this lack of security, there were a number of days when I felt completely gutted. As time wore on, I had no quality of life any more as everything was about survival and what bill had to be paid compared to what could wait until next fortnight when my husband got paid again. And I was stuck in an impossible situation as I had to maintain my medical costs being Doctor visits, medications, tests, health insurance and over the counter medications in order to ensure that if a position did become available that I could attend work and perform to my usual standard but I didn’t have the financial means to do this. During this period in time, my fortnightly medical bills were in the vicinity of $300. It is difficult to look back now and see how we managed to survive this period.’ [58] At paragraph 401 of the affidavit Ms Huntley says: ‘Prior to the discriminatory actions of CSNSW, my husband and I were looking to start a family together. However, with the loss of income, and until January 2014, lack of permanent role I had to delay attempting to conceive.’ [59] At paragraph 403 of the affidavit of 14 February Ms Huntley says: ‘Due to the actions of CSNSW, I went from working being one facet of my life to my not working consuming every other facet of my life. My sense of identity, self-worth and purpose is intrinsically linked with the fact that I am worker, always have been and always will be. This aspect of my identity was ripped from me with no warning, no preparation and no care as to how it was done. It devastated me, my husband and my family as we have all been affected by it. After I was told I had no position to report to and I ceased to be paid my wages I could not afford the Page 26 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 life that I had built for myself. Any activity or purchase was delayed until it became absolutely necessary, my husband and I withdrew from social gatherings as we could not afford to participate. I felt like my world was consumed by the fact that I was no living with disabilities and chronic illnesses and my work issues.’ [209] Further, Ms Huntley referred to the relevant part of Mr Huntley’s evidence ([62] of Ms Huntley’s closing submissions): “At paragraph 21 of the affidavit of Kenneth Scott Huntley affirmed 13 February 2014, Mr Huntley says: ‘From May to October 2011, Caryn, who I had always observed to be an outgoing and social person, became withdrawn and uninterested in life. I would come home from work to find her lying on the couch just watching TV having hardly moved from when I had left that morning to go to work. She was angry, and easily irritated by things that previously would not have affected her and was extremely emotional. He would snap at me more often. She was also more curt with other family members. She was more prone to incidents of road rage. She would initiate argument with me, occasionally waking me in the middle of the lines in her friends’ comments when I could not perceive any. She would create huge amounts of clutter in our house, and then fly into a rage at me because of the clutter, blaming me for the mess. She would also on occasion express suicidal thoughts. I had never heard Caryn express any suicidal thoughts prior to May 10, 2011, and these comments troubled me deeply.’ [210] Both Ms Huntley and Mr Huntley were not cross-examined on this aspect of their respective evidence. In the absence of any reason to argue to the contrary, in these circumstances, I accept that evidence. I find that the conduct of CSNSW at relevant times exacerbated Ms Huntley’s psychological condition for the periods she claims and contributed to her difficulties as she claims. Reasonable Adjustments and Inherent Requirements [211] As set out above, CSNSW’s defence is that it was not obliged to put reasonable adjustments in place because Ms Huntley could not meet the inherent requirements of the position. Or, alternatively, it attempted to reasonably accommodate Ms Huntley. [212] In her submissions, Ms Huntley proposed four key areas where she said reasonable adjustments could have been and were not made: 1) CSNSW’s failure to assess the adjustments put in place in September 2009 and to ascertain whether they were reasonable and could continue before advising Ms Huntley in March 2010 that they could not continue. 2) CSNSW’s failure to consider and make reasonable adjustments to the PPO role in the period of March 2010 until early July 2010 when it determined that she was substantively unfit for the PPO role. 3) The failure to make reasonable adjustments for Ms Huntley to enable her to continue in the CIG secondment. 4) The failure to consider or make reasonable adjustments for Ms Huntley in or around June 2011 when Ms Huntley was referred by Ms Lobley for a second medical assessment by Dr Crowle. [213] The first period is from 31 August 2009 to March 2010. CSNSW understood the allegation as to the period between September 2009 and March 2010 to be that it was said not to have provided any reasonable adjustments in relation to Ms Huntley’s PPO position at the Campbelltown Office of CSNSW. [214] I understood the allegation also to be that there was no consultation with Ms Huntley in relation to the PPO position when she returned to work on 31 August 2009 and in the immediate following period. The complaint, therefore, is not necessarily that no attempt at adjustments was made, but that the adjustments were not reasonable for a number of reasons, including as a result of the lack of opportunity for input by Ms Huntley. [215] The context for this complaint is that Ms Huntley was diagnosed with the Crohn’s disability in June 2009 and was absent from work as a result until her return on 31 August 2009. [216] CSNSW says that a Return to Work Plan (“RTWP”) was implemented from 31 August to 20 October 2009 in relation to the PPO position. Mr Morgan gave evidence that a RTWP “was prepared” when Ms Huntley returned to work (see [10] of Mr Morgan’s affidavit and pages 53 to 56 for the RTWP). [I note that pages 55 to 56 were missing from the annexure to the affidavit and were handed up during the hearing.] [217] CSNSW’s submission was that a number of medical reports were available that provided the basis for the preparation of the RTWP (see for example, Dr Edward’s report to Mr Fallon, the Director of CSNSW Human Resources dated 26 August 2009 and see [50] - [57] and [64] of CH1 and pages 80 ‑ 82 and 86 ‑ 87 of the exhibit to CH1). Page 27 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [218] The submission was that Mr Morgan understood from the medical reports that Ms Huntley would find it difficult to do home visits and required “good access to toilet facilities at all times”. Mr Morgan’s understanding at the relevant time was said to be represented in a “Request for Non-Compensable Service” document prepared by him (see pages 49 - 50 annexed to the affidavit of Mr Morgan). [219] CSNSW noted that, in light of that understanding, the adjustment to Ms Huntley’s duties as a PPO was to vary her caseload to accommodate an 80 hours per month caseload, instead of 140 hours per month, and to “restrict” Ms Huntley from undertaking home or field visits. [220] Mr Morgan gave evidence that at that relevant time he did not consider that Ms Huntley had a “disability”. Rather, that he understood that she had an “illness” (at [8] and [10] of Mr Morgan’s affidavit). Based on the reports to him, he was of the view that her “illness” may improve over time. [221] I understood CSNSW’s submissions to be that while Mr Morgan proceeded on the basis of focussing on Ms Huntley’s situation as being one of having an “illness” whose immediate prognosis was not static, he did not discriminate “against” Ms Huntley in that he provided her with reasonable adjustments to her employment situation which would have enabled her to return to an office environment with the possibility of her returning to “normal” PPO duties at some time. [222] While others appear to have had some involvement in the prioritisation of the RTWP (Ms N Smith, who gave evidence before the Court and Mr Fallon, who did not give evidence before the Court), the instigator and primary actor in the drafting of the RTWP, and with responsibility for its implementation, was Mr Morgan. He met with Ms Huntley on 1 September 2009, when the draft RTWP was given to her. [223] A number of matters emerge for consideration from this. First, on the evidence, Ms Huntley was not given the opportunity to provide any input into the drafting of the RTWP document. I did not understand CSNSW to submit, or the state of Mr Morgan’s evidence to support, the proposition that Ms Huntley was given any such opportunity. I accept Ms Huntley’s evidence that on return to work she was “presented” with this document. [224] Second, on the evidence, I find that the impetus for the instigation of this document, and the drafting of its terms came from Mr Morgan. It is important to note that the attempt by Mr Morgan to provide this document is an acknowledgement that he understood the need to engage in conduct to assist in the return of Ms Huntley to the workplace. [225] However, such an understanding is not sufficient, of itself, to establish that CSNSW provided reasonable adjustments to Ms Huntley as at August/September 2009. These elements, and the findings flowing from them, direct attention to Mr Morgan’s understanding of what he was meant to do, such as to meet CSNSW’s obligations, and his understanding of the relevant situation that then informed the drafting of the RTWP. It is of note that this “understanding” was achieved without any input from Ms Huntley. [226] I note as preliminary to what follows that, before the Court, Ms Huntley made a reference that CSNSW, through its various managers, supervisors and other who dealt with Ms Huntley, displayed a “callousness” in relation to Ms Huntley. This was “objected” to by CSNSW which argued at some length that its various actions in relation to Ms Huntley could not be characterised as “callous”. It must be said that CSNSW appeared to make more of Ms Huntley’s counsel’s reference than was intended by her. I understood Ms Huntley’s reference in submissions to “callousness” as being an emotive description of CSNSW’s failure to properly engage with Ms Huntley. For example, by seeking her input where appropriate in the drafting of the RTWP or putting her on notice, reasonably, of important events, such as the meeting of 10 May 20111, or properly informing her of “plans” to affect her medical retirement. [227] I did not understand Ms Huntley’s submission to be a personal attack on the various managers and supervisors as being “cold” or “unfeeling”. Rather, the focus was on their various and relevant actions which led to the impact on, and consequences for, Ms Huntley. [228] In my view, arising from the evidence presented, the impact of this conduct on Ms Huntley arose from poor management practices, unclear lines of management and supervisory responsibility, a lack of proper, and with some exceptions (at times Mr Morgan), the inability or unwillingness of managers and supervisors to accept responsibility for their actions, the lack of understanding, and to make timely and clear decisions about Ms Huntley’s situation. The reference to “callousness”, therefore, can best be understood as a descriptor of the cumulative effect of poor management and organisation, rather than any individual attitude. In effect, it was a description of the combined conduct of CSNSW, as an organisation, in relation to Ms Huntley. The matter appears to be one of a lack of individual “competence”, rather than callousness. [229] In any event, it cannot be said that Mr Morgan acted “callously” in relation to the matter of Ms Huntley’s return to work in August 2009 and the drafting of the RTWP. While there were, as is set out below, matters which can be described as deficiencies in how Mr Morgan addressed this matter, it is not the case that it can be said he was unfeeling or that he acted with any general disregard towards Ms Huntley. For example, the failure to ask Ms Huntley for input, in my view, represents a deficiency of proper management of this issue, rather than a “callous” approach. Page 28 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [230] In any event, the difficulties for CSNSW in establishing that it took steps and implemented reasonable adjustments on Ms Huntley’s return to work in August 2009 are as follows. [231] First, Mr Morgan, on his own evidence, proceeded on the basis that at that time Ms Huntley suffered from an illness with the possibility that her symptoms would improve. [232] Second, the fact that the RTWP was said to be a “short-term” program supports Ms Huntley’s proposition that Mr Morgan misunderstood the relevant medical evidence provided at that time. That evidence included a report from Dr P Edwards who had been asked by Mr Fallon (on behalf of CSNSW) to provide a report (that report is at pages 86 - 87 of the exhibit to CH1). [233] Amongst other matters, Dr Edwards made clear, in response to the specific question as to whether the relevant prognosis was short or long term, that it was a “long term” prognosis. Mr Morgan’s evidence was that Ms Huntley told him that her symptoms may improve, remain the same or worsen. Nonetheless, his evidence was that it was a “temporary” situation. In the absence of any satisfactory explanation arising from Mr Morgan’s evidence as to what he meant, it is open, in light of Dr Edwards’ report which was available to CSNSW, to find that Mr Morgan did misunderstand the medical evidence. [234] Third, I understood CSNSW’s submissions to be that the RTWP was to cover a period of at least “some six months” from early September 2009. That is, that it was not a short term “temporary” arrangement. The basis for that submission was not satisfactorily explained. It may be that the submissions derived from Mr Morgan’s evidence, when he agreed with the proposition put to him, that the RTWP subsequently “remained in operation” until Ms Huntley moved to the CIG in September 2010. [235] On its face the RTWP plainly states that it was to commence on 31 August 2009 and “Date Ends/Review: 2/10/09”. A period of just over one month. There is no evidence before the Court that any process took place, let alone involving Ms Huntley, extending the time of the currency of the RTWP beyond that date. What arises therefore was that, at best for CSNSW, a one month plan purportedly seeking to address adjustments to Ms Huntley’s work situation as a PPO was put in place. However, I do not accept that any such formal plan can be said to have applied for the remainder of Ms Huntley’s time at the Campbelltown office. [236] Nor was there any satisfactory evidence before the Court that any review of Ms Huntley’s work situation was conducted during this period. That is, even if it could be said that Mr Morgan, Ms N Smith and the other employees at the Campbelltown Office of CSNSW, albeit without formally notifying other relevant personnel in CSNSW, acted as if the RTWP was in place for the entirely of the period, there is no evidence of any assessment or evaluation such as to then be able to determine whether the adjustments were reasonable in the circumstances. [237] Fourth, CSNSW sought in submissions to draw attention to what it now says were the inherent requirements of the PPO position at the relevant times. That is, as at late August/early September 2009, and, including the time after the RTWP “ceased” until Ms Huntley commenced her role at CIG. [238] For example, CSNSW referred to “R3” which was said to show the relevant inherent requirements and that the attached “guidelines” and the policies of CSNSW informed that understanding of the position (“guidelines”) and as explained by Mr Morgan (at [5] of his affidavit). [239] The difficulty for CSNSW before the Court is that it referred to various documents and asked the Court to determine what the inherent requirements of the PPO position at Campbelltown Office were on or around August/September 2009. While I agree with Ms Huntley’s submission that the relevant question is ultimately one for the Court, that consideration must derive from, and must be probative of, the evidence as to the situation at the relevant time, how this was understood by relevant managers, and how it was applied and implemented in relation to Ms Huntley’s circumstances. That is, the consequences for Ms Huntley given her disabilities. As Ms Huntley correctly, in my view, submitted, CSNSW’s submissions did not derive from evidence presented by any relevant witness as to the inherent requirements at the time, or how they understood and operated at that time. Rather, CSNSW has sought now to review or analyse documents which are said to derive from the relevant periods and to make submissions from that current analysis as to the matter of inherent requirements as they should have been at the relevant times. [240] In this light, one important factor, among others, emerges. That is, CSNSW’s election to argue what these documents could mean, instead of relying on relevant evidence of what they meant, or could have meant, at the relevant time, is that Ms Huntley was denied the opportunity to cross-examine any witness for CSNSW as to what the inherent requirements were at the relevant time and how the requirements were understood by the relevant personnel and how they in fact operated. [241] The result is that there was no relevant evidentiary context, which Ms Huntley was able to properly test before the Court. What CSNSW now says was done by it, for Ms Huntley on her return in August/September 2009, is left without a base on which to conduct the analysis as to the relevant inherent requirements and CSNSW’s subsequent conduct in light of those requirements at the relevant times. [242] What can be said on the evidence is that the RTWP was to the effect that, on the evidence of Ms Huntley, Mr Morgan and Ms N Smith, on return, her duties as a PPO were to supervise a “small caseload” of offenders (not qualified or defined), assist in certain duties in the event of other staff absences, complete pre-sentence reports and Page 29 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 attendant matters by interviewing offenders, and any other additional tasks allocated by supervisors or managers. These latter were said to be restricted by the “medical restrictions” of Ms Huntley not “conducting duties outside the office including home visits”, and to take “appropriate bathroom breaks”. These matters assume importance as to what occurred subsequently in the period from September 2009 to when she left the Campbelltown Office. [243] The import of this is that there was no evidence before the Court that any of the relevant managers or supervisors, including importantly, Mr Morgan, turned their mind, at the relevant time, specifically, to what were the inherent requirements of the PPO position to which Ms Huntley returned, and what reasonable adjustments could be made in that light. [244] Attempts by CSNSW to argue that these were “assumed”, or to rely on evidence now that various witnesses, at the time of the giving of their evidence, knew of the inherent requirements at the relevant times, is not sufficient to show that any relevant or responsible person at the material time turned their mind to these matters. [245] CSNSW’s conduct during this period must also be seen through that part of Mr Morgan’s evidence as to how, as the responsible manager, he approached the matter of Ms Huntley’s return to work in August/September 2009 and in the subsequent relevant period. I note that from all of CSNSW’s witnesses who gave evidence, it was clear that only Mr Morgan accepted responsibility for the conduct of these matters in relation to Ms Huntley at that time. [246] As stated above, Mr Morgan’s evidence was that he dealt with the creation of the RTWP and subsequently in dealings with Ms Huntley on the basis that Ms Huntley had an “illness”. Plainly, Ms Huntley did have an illness or illnesses. [247] However, CSNSW now is seeking to defend the case against it on the basis that reasonable adjustments were made to Ms Huntley’s work situation in August/September 2009, but, nonetheless, that she could not meet the inherent requirements of the position. As stated above, that defence, and the arguments in support, flows from the DDA (see s.21A). That section does not talk of “illness”, but rather “disability”. It is the case that the definition of “disability” in the DDA (see s.4), includes reference to “illness” (see “disability at s.4(c), (d) and (g)). However, it plainly includes more than that. [248] A focus on “disability”, as opposed to “illness”, at the relevant time would have allowed a focus on what the consequences of the disability were for Ms Huntley and CSNSW in terms of Ms Huntley’s work situation and CSNSW’s responsibilities. Rather what appears, on the evidence, to have been the case was a more limited focus, primarily on what was seen as Ms Huntley’s inability to fully participate, physically, in work duties, and to attend work for lengthy periods due to her absences. [249] Some clarification is needed in relation to what appeared to be CSNSW’s understanding of s.21A of the DDA. In oral submissions CSNSW stated that it agreed with Ms Huntley that it bore the onus of proving that reasonable adjustments were made at the relevant periods, and, in the context of the inherent requirements of the position, that no further reasonable adjustments could be made. [250] In its written submissions CSNSW explained its understanding of the current circumstances as being that because of her “disability” Ms Huntley was “unable to carry out the inherent requirements of the PPO position even if [CSNSW] made reasonable adjustments for her” ([17] of CSNSW’s closing submissions). [251] Before the Court, CSNSW’s submissions appeared to proceed on the assumption that reasonable adjustments could not be provided to Ms Huntley, or could not accommodate her needs, given her circumstances. The submissions, in part, were that reasonable adjustments were offered, and attempts at implementing such adjustments were made to the PPO position occupied by Ms Huntley in an attempt to accommodate the medical restrictions of her “illness”. [252] Here the consequence of the focus on the “illness”, as opposed to the “disability” is demonstrated, and is also revelatory of CSNSW’s failure to make out its defence pursuant to s.21A of the DDA. See also Ms Huntley’s reliance on Watts v Australian Postal Corporation [2014] FCA 370 (“Watts”)at [23]: “To what does the adjustment relate? By s 5(2), it is made ‘for’ the person with a disability. It is not made ‘to’ the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification ‘for’ the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an ‘adjustment’ that, a decade or two ago, may have been little more than a theory.” [253] I agree with Ms Huntley that the relevant onus rests with CSNSW to establish that Ms Huntley could not have performed the inherent requirements of the PPO even if, and where, reasonable adjustments were made. If this is Page 30 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 what was meant by CSNSW’s relevant written submissions, as referred to above, then this is not how I understood CSNSW’s case to have been subsequently developed. [254] It is also of assistance, in focussing on CSNSW’s conduct in the period from September 2009 to early July 2010, when Ms Huntley was said to be “unfit” for the PPO position, to note and apply what was said in Watts at [24]: “Similarly, the range of disabilities covered by the DDA, evident from the definition of ‘disability’ in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that ‘disability’ manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration ‘for’ a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment ‘for’ a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment ‘for’ a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an adjustment’.” [255] Two matters, relevantly, are of assistance in the disposition of this case. These revolve around the time that Ms Huntley was told that she would be removed from her PPO position in March 2010 and the culmination of her time as a PPO at Campbelltown in September 2010. [256] The following elements, drawn from what is set out above, are relevant to this consideration. One, the creation of a RTWP, in circumstances where Ms Huntley was given no effective opportunity to have any input. Two, the stated duration of the RTWP, which without review and in some unexplained fashion was said to have continued to have currency beyond that time. Three, the focus on the “illness”, rather than the “disability”. Four, the lack of satisfactory evidence as to what, at the relevant time, were considered to be the inherent requirements of the PPO position. [257] The RTWP makes reference to Ms Huntley’s duties as a PPO in the period post September 2009 (see above). The evidence before the Court is that in March 2010, Mr Morgan, Ms N Smith and Ms Caruana were said to be concerned with the “difficulties” arising from Ms Huntley’s frequent sick leave and absences without notice (noting on the evidence, that medical certificates were provided in relation to all absences). [258] These difficulties were variously described as having an impact on the work of the other PPOs at the Campbelltown Office. For example, home visits were being conducted by the other PPOs in the office. Mr Morgan told Ms Huntley in March 2010 that the “arrangements” that had been put in place in relation to her return to work could not continue ([11] of Mr Morgan’s affidavit). Mr Morgan gave evidence that in this regard he also saw his responsibilities as extending beyond Ms Huntley to the efficient management of the office and the impact on other staff. [259] Having regard to what, ultimately, was admitted into evidence and in particular the oral evidence given by Mr Morgan, Ms N Smith and Ms Caruana, I find that while not exclusively so, CSNSW’s primary focus was not on providing reasonable adjustments in light of Ms Huntley’s disability, but in dealing with a person whom they saw had an illness which necessitated long, disruptive and unplanned absences from work which impacted on the efficiency of the work of the office, and impacted on other staff. [260] It is understandable that managers and supervisors at the Campbelltown Office would seek to focus on the work that needed to be done, the efficiency and effectiveness of the office’s operations, and the wellbeing of other staff. [261] However, the DDA, and the reliance by CSNSW on s.21A of it, in defence of Ms Huntley’s assertions against it, requires a balance between those proper considerations set out above, and the efforts to provide reasonable adjustments in light of Ms Huntley’s disability. CSNSW did not achieve this balance. While, on the evidence, it may be accepted that the task faced by CSNSW contained some difficult issues, these cannot be said to excuse CSNSW’s failure to provide, or to attempt to provide, reasonable adjustments to Ms Huntley. [262] This deficiency can also be seen with specific reference to, but not exclusively, CSNSW’s conduct in relation to the two referrals for medical reports to Dr Crowle, and the lack of reasonable adjustments after March 2010. [263] The findings made above in relation to these matters are relevant to what immediately follows. While Mr Morgan’s concerns were conveyed to Ms Huntley sometime in March 2010, it was not until 7 May 2010 that CSNSW took action to refer for assessment, what it said was, the matter of Ms Huntley’s “fitness for duties” (see page 90 and pages 91-115 of the exhibit to CH1). Page 31 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [264] The letter to Ms Huntley of 7 May 2010 was signed by Ms Joanne Frearson, the then “Manager, Injury Management”. The referral to Dr Crowle was signed by Ms Felicity Collins “OHS & IM Coordinator”. Neither gave evidence before the Court. Further, there was no evidence from CSNSW that those who arranged for the referral, consulted those who, on the evidence, were relevant managers and supervisors (Mr Morgan, Ms N Smith, Mr Fallon, Ms M Miller, acting Operations Manager, Campbelltown Probation and Parole, or Ms Borg) in the preparation and transmission of the referral, and in particular the documents attached to the referral. [265] CSNSW submitted to the Court that the “inherent requirements” of the PPO position were provided in the referral to Dr Crowle and that the “referral documents” included consideration of the matter of reasonable adjustments. [266] To make good the first proposition, CSNSW pointed to the reference to the position description being attached to the referral (see page 99 of the exhibit to CH1). Dr Crowle acknowledged she had the PPO “Position description” before her (page 116.10 of the exhibit to CH1). The position description is reproduced at page 390 of the exhibit to CH1. [267] The difficulty for CSNSW is that the position description on which it now relies in its submissions was the document attached to the second referral to Dr Crowle in June 2011 (see CSNSW’s closing submissions at [38], footnote 32). It is not clear on the evidence whether this was the relevant position description as at May/June 2010 (the time of the first referral to Dr Crowle, and the making of her first report). [268] However, even if this document was said to be relevant, and in the same form, at the time of the first referral, it is, on any plain reading, a generic document in relation to “jobs” or positions having the “position title” of “Probation and Parole Officer” at “various” locations (see page 390 of the exhibit to CH1). [269] The document lists “Selection Criteria” to be addressed by applicants for the position, and sets out “Key Challenges and Influences” and “Key Outcomes/Accountabilities”. Further, there is a long list of “Capabilities” descriptions which relate to the “Capability” level identified (see page 390 of the exhibit to CH1). [270] The difficulty with this document is its generic nature. Its limitation now is the lack of evidence as to its specific relevance to the question of the inherent requirements of Ms Huntley’s PPO position at the Campbelltown Office. This can be illustrated with the fact that the list of “capability” descriptions, includes descriptors which are otherwise said not be relevant to the PPO position (for example, Level 4 Capability Descriptors). [271] I find that the “Position Description” in the document, and relied on by CSNSW now, is not a clear statement of the inherent requirements of Ms Huntley’s PPO position at the Campbelltown Office at the relevant time. [272] It may be that the inherent requirements are subsumed, whether in part or even in whole, or can be derived from this document. However, the state of CSNSW’s evidence before the Court leads to the finding that there is no satisfactory evidence that any relevant manager or supervisor at the relevant time conducted any such assessment to ascertain the inherent requirements. [273] Ms Huntley’s evidence, which I accept, was that there was no consultation with her at the relevant period both in relation to what were considered to be the specific inherent requirements of the PPO position or any reasonable adjustments. [274] The difficulty for CSNSW now is also illustrated by the lack of evidence that Dr Crowle was informed by any relevant person, at the relevant time, of the “Minimum Standards for Referral of Employees” (see “B” of “Revised Fitness to Continue Procedures” at pages 99 - 101 of the exhibit to CH1). [275] It is to be noted that this was part of the bundle of documents which Ms Frearson sent to Ms Huntley under cover of the letter of 7 May 2010 (see page 90 of the exhibit to CH1), and which were said to have been provided to “the external medical provider”, in context, Dr Crowle. [276] Therefore, what emerges is that Dr Crowle was sent a generic policy statement (“Guidelines” - see page 99 of the exhibit to CH1). There is no evidence that she was briefed, or had referred to her, the object, or substance, of those guidelines as they related specifically to Ms Huntley’s circumstances. [277] For example, these guidelines state that while the referral to the GMO must be made by a delegate with authority to do so, that part of the report dealing with the employee’s work performance must be undertaken by the employee’s immediate supervisor. The requirement is said to be that this is to occur in all but exceptional cases (see page 100 of the exhibit to CH1). [278] The context of these guidelines is clear from the evidence. This is that referrals to the GMO flow from a “right” of employers and employees to refer, to a GMO, an employee for an assessment of fitness to continue in employment. The employer’s position was said, among other matters, to flow from OHS obligations (see page 100 of the exhibit to CH1). The minimum standards involved in any such referral address the need to provide the GMO with “objective, accurate and relevant information”. Part of the contribution to that information matrix is that a mandatory report on work performance (“must”) be completed, except in “exceptional” cases, by the employee’s immediate supervisor. [279] The logic of that position is clear, particularly given the need to provide the GMO with accurate and relevant information. There is no evidence this was complied with in Ms Huntley’s case in 2010. Page 32 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [280] There is no reason to impugn the “integrity” of Dr Crowle’s work in terms of her assessment as the relevant GMO in this case. However, that assessment, as the guidelines plainly recognise, is dependent on “objective, accurate and relevant information” to be submitted in a particular way. In the current case, this was not done in relation to information on work performance. It is not Dr Crowle’s report which is at issue here, but whether CSNSW can be said at the relevant times to have properly understood the inherent requirements of the particular PPO position in respect of which any reasonable adjustment would need to be calibrated, assessed and implemented. [281] The entire matter of the referral and CSNSW’s conduct stands as an example of CSNSW’s lack of evidence before the Court that any relevant person at the relevant time understood the inherent requirements as they applied to this position, let alone that reasonable adjustments could be made in these circumstances, or were in fact made. [282] The guidelines also provide for certain other matters to be included in any referral to the GMO. For example, the referral should contain a “position description” which sets out the inherent requirements, and job demands of the position. As stated above, the referral of May 2010 to Dr Crowle did not use the term “inherent requirements”. Nor, on any plain reading, was any such matter otherwise raised in the referral to Dr Crowle. [283] This provides some basis to, among other things, draw an inference, that this was not an issue in the mind, or minds, of those who proposed the referral. There was no evidence before the Court either from, or about, Ms Collins or Ms Frearson to support any proposition that it was. It was not clear on CSNSW’s submissions whether it sought to argue that all of the matters in the position description were relevant to the specific PPO position in the Campbelltown Office and were to be seen as the inherent requirements of that position. In any event, the difficulty is that there is no evidence before the Court that this was seen to be the case by anyone involved in the referral of 2010 to Dr Crowle, or that that was conveyed to Dr Crowle. Further, there is no satisfactory evidence that any other manager at the relevant time acted in relation to Ms Huntley’s circumstances on that basis as being mindful of the specific matters relevant to the inherent requirements of that position (Ms Collins, Ms Frearson and Ms Lobley). [284] Nor, on the evidence, can it be said that there was any report by Ms Huntley’s immediate supervisor dealing with Ms Huntley’s work performance in line with relevant guidelines. While there is evidence from Mr Morgan, and others, as to their concerns at the time, on the evidence from Ms Huntley, Ms Borg was the immediate supervisor (see above in relation to Ms Borg’s affidavit and why it was not read). [285] In any event, there was no performance report even from Mr Morgan who had managerial responsibility in the Campbelltown Office or Ms N Smith, who appeared to “act” in his position when required. Nor for that matter was any such report sent to Dr Crowle in 2010 (see “#3” at page 93 of the exhibit to CH1). It is to be remembered that the inherent requirements of the PPO position, and work performance, were plainly relevant considerations to the question of reasonable adjustments. The relevance of the above to the current consideration is that it also supports the view that those who acted for CSNSW did not see as their focus, let alone an important focus, reasonable adjustments being made for Ms Huntley. [286] The second referral to Dr Crowle suffers from similar difficulties (see pages 380 - 396 of the exhibit to CH1) to the first, and stands in further support of Ms Huntley’s case before the Court. See further below. [287] Again, there is no evidence before the Court that all of the elements in the position description, in the circumstances actually before the Court, are part of the inherent requirements of the PPO position as CSNSW now submits. [288] It is important to note that in key respects CSNSW’s witnesses proceeded on the basis of a number of assumptions not reasonably open to them. For example, the “30 minute” limitation for travel and that the position statement was a statement as to the inherent requirements of the job. [289] Further, CSNSW also relied on a number of assumptions made by relevant managers at relevant times as to the operation of the PPO position. For example, CSNSW provided no corroborative documents to support the proposition that the PPO to whom a particular offender is “assigned” must conduct home visits in relation to that offender. It may be that CSNSW saw PPOs as operating as some sort of “account manager” in relation to a specific cohort of offenders. I note CSNSW’s submissions concerning efficient operations in this regard. [290] However, what remains is that, as agreed by Ms Caruana in her evidence, the proposition for which CSNSW now contends concerning home visits was “assumed” to be the case. This is also an illustration of the lack of clarity by CSNSW’s managers and supervisors in understanding the extent of their relevant responsibilities towards Ms Huntley, as a person with a disability as defined in the DDA. [291] In all, therefore, in relation the period from August/September 2009 to September 2010, I find that CSNSW did not make reasonable adjustments to enable Ms Huntley to continue in the PPO position at the Campbelltown Office. [292] The next broad period of relevance in relation to reasonable adjustments is Ms Huntley’s secondment to the CIG. As set out above and with reference to Ms Huntley’s evidence, with no dispute between the parties, Ms Huntley commenced work on 13 September 2010 as a senior analyst with CSNSW’s CIG. The secondment continued until 10 May 2011, following a meeting on that day at the CIG office (see further above in relation to the meeting of 10 May 2011). Page 33 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [293] CSNSW submitted that it understood Ms Huntley’s evidence to be that the Crohn’s Disability had “settled down” by September 2010, albeit that Ms Huntley “felt fatigued”. CSNSW noted what it says were the many visits to medical professionals during and prior to that period. [294] Ms Huntley’s evidence was that in early 2011 she spoke to Ms Nicholson and asked that she be “assessed” to see if she was able to work at home. The reason for this, on Ms Huntley’s evidence, was that she was tired and fatigued. Ms Huntley did not know that these symptoms were part of what was subsequently diagnosed as a sleep disorder (the IH disability diagnosed on 29 July 2011), itself a disability under the DDA. [295] It is of assistance in the determination of the dispute between the parties in relation to this period to first set out the key aspects of the evidence of CSNSW witnesses and CSNSW’s submissions as they related to the relevant chronology of events leading up to the meeting of 10 May 2011, as it relates to reasonable adjustments. [296] Plainly, CSNSW could not have known about the IH disability as at early 2011. However, the approach from Ms Huntley to work from home was put in the context of “assisting” her until her doctors could determine what was wrong with her. [297] In submissions, CSNSW stated that Ms Nicholson’s evidence was that CSNSW chose not to accept Ms Huntley’s request, and it was refused because of a variety of factors, including “security issues”. However, Ms Huntley’s evidence was that she understood that were other factors that were said to inform CSNSW’s view that Ms Huntley would not be able to perform the requirements of her position. She understood that these were said to be “core duties” of the position. In that circumstance it was said that the burden that would be placed on other staff if Ms Huntley were to work from home. [298] Some care must be taken here with what Ms Nicholson’s evidence actually is. In her affidavit, Ms Nicholson stated that she “told” Ms Huntley that she “could not support” Ms Huntley’s request to work from home ([5] of Ms Nicholson’s affidavit). [299] The questions here, given Ms Nicholson’s referral of the matter to others in CSNSW, are who made the decision to refuse the request, when was the decision made, and on what basis was it made. Plainly this is relevant to the issue of whether reasonable adjustments were considered or, if not, the basis for any such lack of consideration. I note here that, in submissions, CSNSW otherwise says that reasonable adjustments were not made, but an explanation is proffered. [300] During cross-examination Ms Nicholson’s evidence as to her response to Ms Huntley’s request, and whether she made the “decision” to refuse the request at that time, was not entirely clear. Her evidence was that she told Ms Huntley that she would make inquiries about the request and get back to Ms Huntley. She also gave evidence that the request was left “open” as at early 2011, but that she told Ms Huntley that if she were to work from home while employed by CSNSW, it would not be an “opportunity” made available to her at CIG. [301] Ms Nicholson, however, gave further evidence that she told Ms Huntley at that time that it would be “unlikely” that she would work from home. At best, if for no other reason, because of “security concerns” about the “sensitive information” included in the work of CIG being taken outside the office. Her evidence subsequently was that she told Ms Huntley that working from home was not “an open option”. [302] The difficulty in understanding the nature of what Ms Nicholson purported to do in this conversation with Ms Huntley is compounded by the fact that she then referred the matter to Ms Hillyard. This would suggest that Ms Nicholson did not make the decision to refuse Ms Huntley’s request, although she gave evidence she told Ms Huntley that it would be “unlikely”. [303] Ms Nicholson was also questioned about her knowledge of CSNSWs “reasonable adjustments policy” and whether she, as Ms Huntley’s relevant manager at the time, introduced any reasonable adjustments in CIG to accommodate Ms Huntley’s disability. [304] Ultimately, her evidence was that, noting the elements of the reasonable adjustments policy, she did nothing in adjusting the duties of the position occupied in CIG at that time by Ms Huntley. [305] In cross-examination, Ms Nicholson was taken to an email from Ms Hillyard (whom she had involved in this issue) to Mr J Smith, Ms Lobley, herself and Ms Parkes (dated 22 February 2011, see pages 303 - 304 of the exhibit to CH1). Amongst other things, the email addressed whether Ms Huntley’s continued secondment to CIG could be accommodated because of the amount of sick leave taken and the inability to travel for more than 30 minutes (see above at [144] - [164]). [306] This gives rise to the following. First, it is not clear whether Ms Nicholson made the decision, as such, to refuse the request to work from home. What is clear is that Ms Nicholson, as a relevant manager within CSNSW, proceeded on the basis that this would not occur, and made no other reasonable adjustments to Ms Huntley’s work duties. [307] Second, once the matter was referred to Ms Hillyard, the issue considered by CSNSW’s managers was not whether Ms Huntley could work from home, but that her secondment to CIG could no longer be supported. As stated above, Ms Nicholson also subsequently agreed in cross-examination that she made the decision that Ms Huntley’s secondment to CIG would cease on 2 March 2011. Page 34 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [308] Third, what was not clear on the evidence from Ms Nicholson was how, in the referral to Ms Hillyard, the issue changed from one of whether Ms Huntley could work from home, to the cessation of her secondment at CIG. [309] Ms Hillyard’s evidence is that at the relevant time she was the acting human resources manager at CIG. She gave evidence that her role was to act in an “advisory” capacity on human resource matters to supervisors and managers. On this basis, it would appear that the referral of the issue of working from home by Ms Nicholson was for the purpose of obtaining advice. Noting that Ms Nicholson’s evidence was otherwise that any such approval was in any event “unlikely”, which raised the question as to why she referred the matter to Ms Hillyard. [310] A number of matters emerge from Ms Hillyard’s evidence. First, Ms Hillyard stressed in her evidence that her role was one of advice and facilitation. Yet, it was also initially her evidence that what was said by her in her email of 27 February 2011 that the cessation of the secondment to CIG could no longer be “supported” because of the amount of sick leave and the 30 minute travel restriction, was her, that is a, “decision”. [311] She subsequently gave evidence to the contrary that this was not her decision because such decisions were for managers to make. In context, this would appear to be a reference to Ms Nicholson. This, therefore, still leaves open the question as to who made the decision or even whether any decision was made, on Ms Huntley’s request to work from home. [312] The origins of the question of the time taken for sick leave remained unclear on the evidence. At best, it can be said that Ms Nicholson raised concerns with Ms Hillyard about the sick leave taken by Ms Huntley. Although the context in which it was raised (work from home or cessation of secondment) remains unclear. [313] Ms Hillyard gave evidence that she reviewed the relevant sick leave documentation. This could be the basis of her statement in the email of 22 February 2011 of the amount of sick leave taken, or it could be that the source was Ms Nicholson, or both. That remained unclear. What is clear is that CSNSW, through its relevant personnel, was at least as at February 2011 concerned about the amount of time taken as sick leave by Ms Huntley. [314] What is also clear is that the concern about the 30 minute travel restriction, as stated in the email, emanated from Ms Hillyard. Ms Nicholson gave evidence that she did not previously know about this. However, her subsequent conduct does support the proposition that she adopted this as a basis for the decision to cease Ms Huntley’s secondment to CIG. [315] As stated above, Ms Hillyard, in cross-examination, did not agree with the proposition that the statement in her email “…her inability to travel for more than 30 minutes…” (see page 304 of the exhibit to CH1) was a misrepresentation of what Dr Crowle had relevantly said in her first report (see above at [144] - [164]). [316] Ms Hillyard’s evidence was that she had accurately identified what Dr Crowle had said in her initial report earlier in her email, “…[t]he assessment also concluded that travel in association with work should ideally be limited to less than 30 minutes or planned such that she can have reliable access to toilet facilities…” (see page 304 of the exhibit to CH1). I note my findings above, that Ms Hillyard’s statement was incorrect. [317] In any event, the matter is put beyond doubt by Ms Nicholson’s ultimate evidence. Her evidence was that although she did not understand it at the relevant time, she now understood that Dr Crowle’s report did not simply state that travel was restricted to 30 minutes. It is of note that this had been one of the reasons given, at the time, for the decision not to extend the secondment. A decision which she said was her decision, albeit based on advice. [318] CSNSW admitted that it did not make any reasonable adjustments to Ms Huntley’s work situation up to the time of the decision not to extend the secondment and the duration of the time Ms Huntley remained at CIG. CSNSW pointed to their “Reasonable Adjustment Policy” (see pages 116 ‑ 120 of the exhibit to CH1) to submit, that consistent with that policy, no reasonable adjustments were made because among other reasons, the inherent requirements of the job could not be met. [319] CSNSW’s submissions pointed to what were said, in the policy statement, to be examples of reasonable adjustments. These were flexible start/finish time, working from home, part-time work and temporary adjustments to suit the employee while the employee is experiencing temporary problems (see [46] of CSNSW’s closing submissions). [320] The immediate difficulty for CSNSW on the evidence presented, is that there does not appear to have been any actual decision made regarding the request to work from home. On its face, this was not an unreasonable request given that CSNSW’s own policy contemplated this as an example of a reasonable adjustment. [321] A greater difficulty for CSNSW flows from the admission that no reasonable adjustments were made. The argument is that a reasonable adjustment involving working from home could not be implemented, in light of the relevant policy. [322] The evidence reveals that two issues emerged. First, Ms Huntley’s request for an extension of time on the secondment (see [142] of CH1 and page 306 of the exhibit to CH1). Second, the actual “cessation” of the secondment. As to what happened to the former this remained unexplained on the evidence. Of the two matters, a decision can only be said to have been made about the latter. As set out above, the reasons for this decision, as adopted by Ms Nicholson, were sick leave taken and travel requirements. Page 35 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [323] While Ms Nicholson gave evidence now that CIG security restrictions could have been compromised if Ms Huntley worked from home, I did not understand her evidence to be that that was an element in the decision to not extend the secondment at CIG. Nor, however, was there any other evidence to support any contention to the contrary. [324] As to working from home, I find no decision as such was made by any of the relevant parties. It appears on the evidence, that while Ms Nicholson indicated lack of support for this, and that it was “unlikely” to occur, the referral to Ms Hillyard resulted in this matter becoming subsumed in the stated concerns about sick leave taken and the matter of the 30 minute travel time restriction. [325] Ms Hillyard’s evidence is (at [8] of her affidavit) that on 22 and 23 February 2011 she sent emails to Mr J Smith and Ms Lobley (see the email of 22 February 2011 referred to above). From her evidence it is clear that an important element in her action in sending the emails was that it appeared that CIG management had not been aware of Ms Huntley’s “condition” until Ms Huntley applied to work from home. She said she asked them if “alternative placement” or “medical assessment” options for Ms Huntley had been arranged. It is important to note that there were no questions concerning reasonable adjustments. The “alternative placement” was, in context, a reference to, or connected with, the cessation of her secondment in CIG. [326] Ms Lobley gave evidence that she received the emails and understood what was put to her to be that Ms Huntley’s placement in CIG could no longer be supported, and a request to advise of an alternative placement. Her evidence was that this request was not consistent with her responsibilities as the manager of CSNSW Injury Management. That responsibility was said to lay with CSNSW Human Resources. Mr J Smith, who in an email describes himself as “Regional Human Resources Manager” (see page 303 of the exhibit to CH1), did not give evidence in these proceedings. In all, therefore, there is no evidence before the Court that any action was taken by CSNSW in response to Ms Hillyard’s email. [327] It must be remembered that notwithstanding that the “decision” (as described above) had been that Ms Huntley’s secondment at CIG was to cease on 2 March 2011, Ms Huntley appears to have continued in that placement. [328] Ms Hillyard gave evidence that she was prompted by an email that she received from Ms Huntley on 6 May 2011, regarding an application she had made for a position as an Intelligence Analyst with the NSW Police and the request to work from home, to arrange a meeting with Ms Huntley. [329] What remained unexplained in Ms Hillyard’s evidence was why this request to work from home was still seen as a live issue as at 6 May 2011 when it appears to have been subsumed, and in essence overtaken, by the events of February 2011. [330] In any event, this provides a further basis to reveal that CSNSW failed to properly address Ms Huntley’s disability while she was on secondment at CIG (as distinct from the PPO position) as from February 2011. Further, it is to be remembered that there is no evidence that during this period, that any assessment was made that Ms Huntley could not carry out these requirements of the CIG position which may have some basis to support the defence before the Court pursuant to s.21A of the DDA. [331] I say “may” here because it was not clear in CSNSW’s submissions that that defence was meant to be pursued in relation to the CIG placement. CSNSW’s closing submissions (at [17]) make reference only to the PPO position in this context. [332] In any event, this may be explained by CSNSW’s oral submissions that no reasonable adjustments were required with the CIG position because the requirements of that job were a “perfect fit” with what Dr Edwards, Dr Watson Ng, gastroenterologist, and Dr Crowle (at that time, in relation to the first report) had said in their respective reports. [333] In CSNSW’s submissions, the issues that led to the meeting of 10 May 2011 being “arranged” were the sick leave matter and the request to work from home. See above in relation to the notice of the meeting for more information. [334] It is also important to note, in the context of this submission, the evidence of Ms Lobley. It is to be remembered that Ms Lobley was the manager of Injury Management in CSNSW. At a time just prior to Ms Huntley commencing at the CIG, Ms Lobley sent an email on 6 August 2010 (see “A4”), to Ms L Colley. It is in the following terms: “Lyn Can you tell me if there has been any jobs offered to this lady. If so What and where. I am thinking medical retirement maybe the best answer? Do you know anything about her?” [The term “this lady” appears to be a reference to Ms Huntley as inferred from the subject of the email.] Page 36 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [335] Again it is important to note that there was no reference in the email to any consideration as to reasonable adjustments. Although, as at 6 August 2010, any reference to reasonable adjustments would have been in relation to the PPO position. [336] Ms Lobley gave evidence that she understood that Ms Huntley had attended the GMO on 2 June 2010 for an assessment, and that the GMO had recommended that she was “permanently unfit for her substantive position”. That is, in context, the PPO position at the Campbelltown Office. In this context, Ms Lobley said she received an email from Ms Huntley seeking redeployment from her “substantive position” noting that she had commenced the temporary appointment at CIG at this time (October 2010, see pages 299-300 of the exhibit to CH1). [337] Ms Lobley’s evidence was that given that Ms Huntley had moved on secondment to the CIG (as at 13 September 2010) she responded that they should wait and see how matters developed at CIG “…in light of the restrictions imposed on her because of her illness…” ([7] of her affidavit). [338] It is again of note that while it was obviously, and factually, correct to refer to Ms Huntley’s problem as an “illness”, there is nothing in the evidence of Ms Lobley to say that the problem was also seen as one of a “disability”, which imposed particular obligations on CSNSW which should have been factored into its conduct and decision making. [339] This point is important to note in the context of subsequent conduct by relevant personnel in their dealings with Ms Huntley. Ms Lobley gave evidence that Ms Hillyard and Ms Nicholson contacted her in April 2011 about having a meeting. Ms Lobley says, generally consistent with the evidence of Ms Hillyard and Ms Nicholson, that she had possibly been told in February 2011 that Ms Huntley’s placement at CIG could no longer be supported. However, she also gave evidence that she was asked for advice about “alternative placements”. Why Ms Hillyard asked Ms Lobley for this advice was not clear given Ms Lobley’s repeated evidence that she did not have responsibility for alternative placements. [340] Given that Ms Huntley’s secondment was to end in early March as a result of the “decision” of Ms Nicholson, with the input by Ms Hillyard, it was not explained before the Court why Ms Hillyard and Ms Nicholson waited until April 2011 to ask Ms Lobley to come to a meeting and to prepare a return to work program for Ms Huntley to return to her substantive position as a PPO at the Campbelltown Office. [341] In any event, on the evidence, Ms Hillyard had already come to the view, based on Dr Crowle’s report (in context the first report), including the assessment, which she understood said, that Ms Huntley was not fit for the PPO position at the Campbelltown Office, that Ms Huntley could not return to work (presumably anywhere with CSNSW) until a medical report assessed her as being “well enough” to undertake the duties of her substantive position. The request to Ms Lobley from Ms Hillyard that she consider “alternative placements” is inconsistent with Ms Hillyard’s view as to Ms Huntley’s return to work. This was not satisfactorily explained before the Court. [342] Again, it is not clear why no relevant action was taken until the meeting of 10 May 2011 was “arranged”. If the “delay” was due in any way to Ms Huntley’s absences on sick leave (with certificates) that was not made clear before the Court. Whether Ms Huntley was given notice of this meeting, let alone reasonable notice as to the purpose of the meeting is addressed above. [343] While the detail of what occurred at the meeting of 10 May 2011 is the subject of dispute between the parties, one “result” of the meeting was said to be that Ms Huntley was to undertake a further medical assessment. This ultimately led to the second report from Dr Crowle. [344] One matter of note from the meeting, which again is illustrative of CSNSW’s conduct towards Ms Huntley, is that as explained in Ms Lobley’s evidence, Ms Huntley was told for the first time that a letter had been sent “regarding medical retirement” previously. Ms Lobley proceeded on the assumption that Ms Huntley had been sent a letter advising of what she described as CSNSW’s “plans to medically retire her, as this was part of the established process after a GMO’s report of that kind” ([16] of Ms Lobley’s affidavit). [345] Ms Lobley’s assumption that Ms Huntley had been provided with a relevant letter, is on the evidence, mistaken. Ms Lobley was clear before the Court that she proceeded on this assumption, and was unaware that no such letter had been sent to Ms Huntley. [346] Before, the Court, CSNSW referred to its “Health Review Policy and Guidelines” as to the “process” for medical retirement (as quoted at [55] of CSNSW’s closing submissions): “…If advice is received from an approved medical assessor that an employee is permanently unfit to undertake to inherent requirements and job demands of their substantive position, CSNSW is obliged to act on this advice and medically retire the employee unless alternative employment, commensurate with the transferable skills, work fitness and substantive salary of the employee, can be identified…” [347] Dr Crowle’s first report did conclude that Ms Huntley was permanently unfit for her substantive PPO position. Plainly having been done at an earlier time it said nothing about the CIG position. CSNSW submitted that Ms Nicholson gave evidence that Ms Huntley did not at any time, request from her that reasonable adjustments be made in relation to the CIG position. However, in my view, Ms Huntley’s request for permission to work from home was just such a request for a reasonable adjustment to her work. Page 37 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [348] Further, it was CSNSW’s repeated position before the Court that Ms Huntley’s permanent substantive position was the PPO position and not at CIG. The policy to which CSNSW now refers plainly speaks of an obligation to act on advice to medically retire the employee where an approved medical assessor has assessed the employee as being permanently unfit to undertake the duties of the substantive position, unless alternative employment can be found. However, Ms Huntley was not medically retired, but referred to Dr Crowle for a second time. She was “placed on sick leave” pending this assessment (see page 387 of the exhibit to CH1) (see further below). [349] What remains, however, is that CSNSW did not make reasonable adjustments to enable Ms Huntley to continue in the CIG position, albeit on secondment. Ms Huntley submitted that CSNSW appeared to have focussed on the view that because the CIG position was not Ms Huntley’s substantive position, that is, she was on secondment, no reasonable adjustments were required in relation to that position. [350] I agree with Ms Huntley that the evidence (as variously referred to above) allows for such a view. CSNSW submitted that no reasonable adjustments were made. The first reason for this was said to be that no request for adjustments was made by Ms Huntley (see [45] of CSNSW’s closing submissions). CSNSW relies now on s.21A of the DDA to argue, among other things, that the obligation to provide reasonable adjustments was rendered futile because Ms Huntley was unable to carry out the inherent requirements of the CIG position. I cannot see that such an argument can assist CSNSW, even if it could be said to be because Ms Huntley did not seek any reasonable adjustments, noting that I have found that she did. [351] Section 21A of the DDA makes no such provision. If CSNSW seeks to rely on this defence then the elements relevant to that section are focused on the inability to carry out the inherent requirements, not on whether Ms Huntley asked for reasonable adjustments. CSNSW’s obligation here is not negated by any such claimed failure by Ms Huntley. In any event, for the reasons set out above, I do not agree with the proposition that Ms Huntley did not make such a request. [352] The second reason was said to be the report from Dr Crowle to the effect that Ms Huntley was “suitable to perform fulltime office based duties where there is unrestricted access to toilet facilities” (see pages 116 - 120 of the exhibit to CH1). That, of course, was said by Dr Crowle in relation to the PPO position. In this regard no assessment let alone any considered assessment was made by CSNSW of the CIG position to identify the inherent requirements of that position and whether reasonable adjustments could be made to it. [353] In this regard, also, the second referral to Dr Crowle by Ms Lobley (see undated letter at pages 387-388 of the exhibit to CH1) made no reference to the CIG position, but was sent in reference to the PPO position (see page 388 of the exhibit to CH1). [354] That may be explained by the fact that at that time CSNSW had decided to “remove” Ms Huntley from the CIG position. That “removal” was based on the misunderstanding of what Dr Crowle said in the first report (see above), and the view taken that because of the amount of sick leave taken, Ms Huntley was unable to perform the duties of the full time CIG position. [355] What remains, however, is that no consideration of any reasonable adjustments to the CIG position were conducted. The relevant evidence of CSNSW’s witnesses agreed with this. No consideration of the inherent requirements of the CIG position was undertaken. [356] In her evidence relating to the meeting of 10 May 2011, Ms Lobley stated that at the meeting Ms Huntley spoke of her request to work from home. Although CSNSW does not now, nor at the relevant time, appear to recognise this as an element relevant to the consideration of reasonable adjustments, CSNSW’s objection to the request, according to Ms Lobley’s evidence, involved what was said to be Ms Huntley’s duty of managing other staff at CIG, and Ms Lobley’s view that this could not be done remotely from home. In cross-examination Ms Lobley agreed that she did not have direct knowledge of the claim that the applicant was required to manage staff. [357] Ms Huntley’s evidence was that managing other staff at CIG was not a formal part of her duties. Her evidence was that no staff approached her in the context of her being their supervisor, nor was she informed of this as being a part of her duties. [358] Ms Nicholson gave evidence that she did not know whether Ms Huntley supervised other staff. It may be that there is some difference between formally managing and supervising staff as part of an employee’s duties, and providing informal mentoring or advice to a colleague. However, what remains is that in the context of whether it was feasible or not for Ms Huntley to perform the CIG position from home, as she sought to explore, her duties did not require supervision of other staff. I accept Ms Huntley’s evidence in this regard. [359] In all, CSNSW decided to end Ms Huntley’s placement at CIG, without consulting Ms Huntley at least to explore what could have been reasonably possible and feasible. As set out above, this decision was made, variously, based on a misunderstanding of a relevant part of Dr Crowle’s first report, a report in any event given in the context of the PPO and not the CIG role, and various assumptions made by CSNSW which could not be sustained. [360] The “decision” to cease the secondment at CIG, although the secondment was allowed to continue for some time beyond the initial cessation date (from 2 March 2011 to 10 May 2011), was made without specific medical Page 38 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 assessment relevant to the CIG position. Even the second request to Dr Crowle was not made in the context of the CIG position, but in the context of a “return” to the PPO position. This was in light of other evidence that Mr Morgan had told Ms Huntley that she could not return to the PPO position (see [118] and [188] of CH1). [361] Finally, what can be said in support of the adverse findings against CSNSW in this matter is that on the evidence, CSNSW’s conduct in relation to Ms Huntley, and its dealings with her during this period, was characterised by various misunderstandings, assumptions without foundation, an unclear, or lack, of understanding of relevant obligations, and an attitude of presumption, if not a failure to bring an open mind to the resolution of various matters. An example of this latter characteristic is Ms Lobley’s “decision” as early as August 2010 that the only option to be pursued in relation to Ms Huntley was that she should be medically retired. All of these elements amounted to CSNSW not attempting to implement reasonable adjustments to assist Ms Huntley, as required by the DDA. [362] In relation to the “nominal” resumption of the PPO position, and as set out above, the second referral to Dr Crowle was sent by Ms Lobley after the meeting of 10 May 2011 (see pages 387 ‑ 388 of the exhibit to CH1). It sought an assessment in the context of the PPO position. The referral is somewhat at odds with other evidence to the effect that CSNSW was proceeding down the path of her medical retirement. In any event, the report sought clarification, variously, as to Ms Huntley’s fitness for the PPO position. It may be that the second referral was motivated by some understanding that the first referral, and the subsequent report, did not provide a sound basis to proceed to medical retirement. However, this was not made clear by the evidence presented. [363] The advice to Dr Crowle was that Ms Huntley had “…been placed on sick leave while we seek further medical advice on how to assist Ms Huntley in the workplace” (see page 387 of the exhibit to CH1). There are a number of difficulties with this referral. I should note that while the referral, in two places, refers to Ms Huntley as “his” and “him”, I do not see these as being anything other than typographical errors. [364] Of far greater import is the following. One, it is to be remembered that Ms Lobley, who authored the referral, was at the relevant time the Manager of Injury Management for CSNSW. Her duties were apparently focussed on “injury management”. Although it is not clear on the evidence how this focus was required to manifest itself in relation to Ms Huntley. There was no evidence before the Court that she had any knowledge of the inherent requirements of the PPO position or that she had spoken to any relevant person in this regard, or had otherwise taken steps to properly inform herself. [365] Two, this second referral, as with the first, proceeded on the assumption that every duty listed in the PPO Position Description was an “inherent requirement” in the context of the DDA. In the absence of any evidence from CSNSW to support this contention, and in light of what is relevantly set out above, I agree with Ms Huntley that this cannot be sustained and is not therefore available to CSNSW to rely on in the disposition of these proceedings. [366] Three, another deficiency in the referral arises from the following. In her report, Dr Crowle answered the specific questions put to her by Ms Lobley (see page 388 of the exhibit to CH1): “1. In your medical opinion and with reference to the circumstances presented with this referral, please advise whether Ms Huntley is: a) Currently fit for her substantive position; or b) Temporarily unfit to work in her substantive position; or c) Permanently unfit to work in her substantive position. d) Fit to undertake any employment that she is suitable qualified for. 2. Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice with a timeframe for her to return to her substantive duties. In order for this to [be] durable, please provide guidance to the capabilities anticipated during a graded return to his substantive duties. 3. Please comment on current treatment, including medications, and / or anything else you are aware of that would prevent or minimise further absence. 4. Should Ms Huntley be assessed as permanently unfit for his substantive position, please provide advice of permanent restrictions preventing him from undertaking his role as a Correctional Officer with CSNSW.” [367] Nothing in what follows should be taken in any way as being critical of Dr Crowle. In my view, Dr Crowle acted appropriately in answering the questions put to her. The relevantly “unsatisfactory” nature of Dr Crowle’s report, in the circumstances, arises from the questions put to her which shaped her response. Page 39 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [368] What is missing in the referral is any reference to the matter of “disability”. While the referral makes reference to Ms Huntley’s “medical issues”, there is no attempt to link these to the question of disability. Nor is it possible to draw any relevant inference from the referral. [369] Four, as is clear, the referral was focussed on the question of Ms Huntley’s fitness or otherwise for work. This is consistent with the view that CSNSW had taken (see for example Ms Lobley, as early as August 2010), that Ms Huntley should be medically retired. There was no focus on, nor did the questions asked of Dr Crowle allow for, any consideration in the context of the inherent requirements of the PPO position, of whether any reasonable adjustments could be made. In short, there was no evidence that CSNSW focussed on the need to deal with Ms Huntley as a person with a disability under the DDA. [370] Five, attempts now before the Court to present the argument that reasonable adjustments were not possible, or reasonable, in this period for the PPO position again suffered from a lack of evidentiary substance and relied on assumptions rather than proper assessment or knowledge. For example, as referred to above, the evidence from Ms Caruana was that it was assumed that all visits by PPOs to offender’s homes would be done by the individual PPO assigned to each offender remained as assumption without any evidentiary basis. [371] There is dispute between the parties as to the relevance of certain events after the meeting of 10 May 2011. For example, CSNSW submits that on 11 May 2011 Ms Huntley was diagnosed with an Anxiety Adjustment Disorder and was declared “unfit” by a medical practitioner (Dr Karen Farmer, Ms Huntley’s General Practitioner, see [196] of CH1 and page 332 of the exhibit to CH1 for the period 11 to 20 May 2011). [372] CSNSW sought to explain before the Court, that as the CIG position “finished” on 20 May 2011 and as Ms Huntley had been found to be unfit (as at 11 May 2011) to resume her substantive PPO position at the Campbelltown Office, she was “placed” on sick leave. Although it was not made clear before the Court, the latter finding apparently flowed from Dr Crowle’s first medical report, and not the report from Dr Farmer. If that is the case, then this submission suffers from the same deficiencies as set out above in relation to CSNSW’s reliance on the first Dr Crowle report. (I note also Ms Nicholson’s evidence that the secondment to the CIG position ceased in March 2011). [373] Ms Huntley’s complaint now is that there was no proper basis for her being put on sick leave at this time. The complaint extends to the “unauthorised” use of her sick leave between 20 May 2011 and 10 August 2011. Further, that she was placed on sick leave without pay until 3 January 2012 without any prior notice to her. [374] Ms Huntley drew attention to the documentary medical evidence relevant to this period. It is the case that Ms Huntley provided a medical certificate (Workcover NSW) to CSNSW with the diagnosis of “Anxiety adjustment disorder” on 11 May 2011 (see page 332 of the exhibit to CH1). The certificate did state that Ms Huntley was “unfit for work”. Relevantly, however, that unfitness was said to be for a finite, and short, period. That is, 11 to 20 May 2011. [375] It is to be remembered that this immediately followed on the meeting of 10 May 2011. Ms Huntley attended an assessment with a medical practitioner on 11 May 2011, was given the certificate referred to above, and on 11 May 2011 asked Ms Lobley (by email, see page 333 of the exhibit to CH1) to send confirmation of what was discussed at the meeting, and the options (“choices”) she was given. [376] On 12 May 2011 Ms Huntley also sent an email to Ms Nicholson (see page 334 of the exhibit to CH1) asking for details as to what was discussed at the meeting on 10 May 2011. On the evidence, it does not appear that Ms Huntley received any satisfactory response to either email. [377] On 12 May 2011, Ms Huntley also sent an email to Ms Lobley asking her for a copy of the letter which she had been told at the meeting had been sent to her previously, in August 2010, and which was said to have notified her of CSNSW’s intention to proceed to her retirement on medical grounds (see page 335 of the exhibit to CH1). [378] Ms Lobley’s response by email on 12 May 2011 (see page 336 of the exhibit to CH1) is not responsive to this request. Ms Lobley’s response was as follows: “Caryn as stated I have to look back at our records prior to my time and this is why I have indicated I will re refer you for another assessment to ensure that a fair process is followed. Again if you are telling me you are fit for full duties please supply evidence that supports this. You acknowledge that you received a copy of the medical report and the restrictions are based on this report and it has been determined that you cannot resume your substantive duties. I will organise for another assessment to make sure due process is followed the outcomes of this will be appropriately notified to you. Additionally you indicated that you medical status had changed and given the fact the report was done several months ago so I think its appropriate to re do this to determine if this is appropriate. The fitness to for duty document can be found on the premiers Dept web site…” Page 40 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [Errors in the original.] [379] The response is, at best, ambiguous and unhelpful. For example, is Ms Lobley seeking to say she was looking at relevant records prior to her “time”, and this was why she had not produced the letter? If that is the case, then without looking at the records she appears to have determined that Ms Huntley be referred for another medical assessment. [380] In my view, the preferred relevant explanation is, as set out earlier in this judgment, that no letter had been sent to Ms Huntley. Ms Lobley’s evidence that she arranged another medical referral “to ensure due process was followed” (at [29] of her affidavit and see page 336 of the exhibit to CH1) in the circumstances can be understood as an acknowledgement that it had not been followed in the past. The references in the email to Ms Huntley’s claims of a “changed medical status” and the fact that the report was done “several months ago” were plainly put as additional to the concern about due process. [381] Ms Huntley responded on 12 May 2011 directing Ms Lobley to her initial request (see page 337 of the exhibit to CH1). Ms Lobley responded on 13 May 2011 (see page 338 of the exhibit to CH1). It must be said that the response in the circumstances is again unclear in a number of relevant respects, and appears to be an attempt to reconcile, or explain, deficiencies in what had occurred in the past. [382] First, the response again acknowledges that “processes” were not followed in relation to the previous “assessment”. Second, it relies on Dr Crowle’s report as to the conclusion that Ms Huntley was “permanently” not fit for her substantive position. This leaves unexplained the deficiencies in the process that led to the obtaining of the report, and how such deficiencies may have affected any such conclusion. [383] Further, this conclusion needs to be seen in light of Dr Crowle’s opinion (see page 119 of the exhibit to CH1) that Ms Huntley was “suitable to perform full time office based duties” in appropriate circumstances. It is clear that Dr Crowle proceeded from that opinion to the conclusion in light of the answers to “specific questions” that were put to her (see page 119.6 of the exhibit to CH1). Question two directed Dr Crowle to the attached “position description” (see page 119.7 of the exhibit to CH1). Dr Crowle’s conclusion was given in that light. [384] I have already set out above the relevant difficulties associated with that document, and in particular the misdirection it creates, and diversion from the proper focus on a person with a disability, and the matter of the reasonable adjustments to the inherent requirements of the relevant position. [385] Further, as stated above, there is a lack of evidence as to whether the document before the Court, attached to the second referral, was the same as that attached to the first referral. [386] Third, the response from Ms Lobley states that she acknowledges that Ms Huntley “did not receive” the letter regarding medical referral. It must be said that this is a strange phrase to use in circumstances where no letter was sent. Logic dictates that a letter that is not sent cannot be received. [387] Fourth, even as at 13 May 2011 Ms Lobley appeared to not have properly read Dr Crowle’s first report. She repeats the statement from the medical report that said that Ms Huntley “…not travel more [than] 30 minutes” (see page 338 of the exhibit to CH1). As set out above, the report went on to provide an alternative (“or planned such that Ms Huntley can have access to toilet facilities”). [388] CSNSW, therefore, proceeded to make the second referral to Dr Crowle (see page 387 of the exhibit to CH1). The referral was made by Ms Lobley. As stated above, the letter to Dr Crowle is undated but appears to have been made on or soon after 20 June 2011 (see page 386 of the exhibit to CH1). [389] There is evidence before the Court that Ms Huntley provided another medical certificate dated 6 June 2011 to CSNSW (see page 355 of the exhibit to CH1). A Ms Lee Parkes, who in an email to Ms Huntley, describes herself as the “Injury Management Coordinator” (see page 356 of the exhibit to CH1), acknowledged receipt of this medical certificate. [390] The medical certificate, provided by Dr Farmer, appears to have been obtained in the context of “Workcover NSW” processes. The certificate states that Ms Huntley is “fit for pre-injury duties”. In context, this appears to be a reference to the “injury” alleged by Ms Huntley as a result of the meeting of 10 May 2011. [391] While Ms Parkes acknowledged receipt of the email, she does not appear to have recognised its significance or to have considered what should be done with it. Ms Parkes did not give evidence before the Court. On what is in her email, her focus appeared to be to obtain sick leave forms from Ms Huntley. It may be that Ms Parkes saw the certificate as being relevant only to the Workcover matter, but that is not clear from her email. Nor did CSNSW provide any evidence to the Court to explain this. In any event, that would still not relieve CSNSW from the need to deal with relevant medical evidence before it in an appropriate way. [392] Further, there is no evidence before the Court to say that Ms Parkes and Ms Lobley at that time were, in terms of structure, or in terms of responsibilities, in any supervisory or direct management relationship. [393] The similarity of their position titles as both appear to have responsibilities for “Injury Management”, relevantly allows an inference to be drawn that they did have some structural or operational relationship. On this basis, the relevant responsible personnel appeared to have adopted two different courses of action in relation to the issues of Ms Huntley’s fitness for work, and sick leave. Page 41 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [394] Ms Lobley had determined, it would appear from at least the time of the after meeting of 10 May 2011 and following the correspondence with Ms Huntley in relation to the non-existent letter of August 2010, that Ms Huntley was to be referred to the GMO to assess her fitness for work. This, as set out above, was said to arise from the concerns about the amount of sick leave Ms Huntley had taken and travel, for the inability of CIG to retain her on secondment because of sick leave. [395] However, as at 20 June 2011, the date of the referral to the GMO, CSNSW was in possession of the medical certificate from Dr Farmer. What can be said, in the circumstances presented to the Court about that certificate, is that it clearly related to the immediate period after the meeting of 10 May 2011. [396] As referred to above, what can be said therefore, is that Dr Farmer’s certificate of 6 June 2011 was created in the context of the Workcover complaint initiated by Ms Huntley. Ms Huntley was diagnosed with “anxiety adjustment disorder”. As at 6 June 2011 Dr Farmer’s opinion was that Ms Huntley’s employment was a substantial contributing factor to Ms Huntley’s “anxiety adjustment disorder”. In context, therefore, the earlier certificate, from 11 May 2011, was given in the immediate aftermath of the meeting of 10 May 2011, and by 6 June 2011 Ms Huntley was assessed as being in a position to return to duty and was fit for that purpose. [397] On the evidence, I take the view that at least as at 10 May 2011 Ms Lobley was of the view that the preferred course of action was that Ms Huntley be medically retired. The matter of the letter, said by Ms Lobley to have been sent to Ms Huntley in August 2010, was said to be a notice of intention to medically retire Ms Huntley. [398] There is no apparent reference to the certificate of 6 June 2011 from Dr Farmer in the referral to Dr Crowle (see the list of documents referred to Dr Crowle as set out at page 408 of the exhibit to CH1). It is the case that a comprehensive report of Ms Huntley’s immediate medical history would appear to have been relevant to this referral. [399] The additional importance of the certificate of 6 June 2011 for the current consideration is as follows. In the referral to Dr Crowle, Ms Lobley states that Ms Huntley was “placed on sick leave while we seek further medical advice” (see page 387 of the exhibit to CH1). In context, that was a reference to the advice sought from Dr Crowle. However, there is nothing in the evidence to show that the decision taken by CSNSW to place Ms Huntley on sick leave, took any consideration of, what was after all, relevant medical evidence, as to Ms Huntley’s fitness for duty. [400] In all, I agree with Ms Huntley that no reasonable adjustments were made to her employment in light of her disabilities in the period up to the date of Dr Crowle’s second report (10 August 2011). CSNSW appears to have determined on a course which avoided the need to enter into any such consideration by placing Ms Huntley on sick leave pending the report from Dr Crowle in circumstances where there was a medical certificate before it to the effect that Ms Huntley was fit for duty. There is no evidence that CSNSW gave any proper consideration to the medical opinion. [401] In its submissions to the Court, CSNSW pointed to evidence given by Ms Huntley that even after 20 May 2011 she was still feeling unwell. That may have been the case, but that still does not relieve CSNSW of its obligation towards a person with a disability to consider the medical evidence otherwise before it as at 6 June 2011, that she was fit for work. [402] It may be that Dr Farmer’s report was limited to the matter of Ms Huntley’s anxiety disorder and that the opinion of fitness for duty was limited to that context. However it is not for this Court now to do what CSNSW should have done at the relevant time. There is no evidence before the Court that CSNSW gave any consideration to determine that question, nor indeed any relevant consideration to the certificate of 6 June 2011. [403] There was some concern expressed by CSNSW before the Court that Ms Huntley sought to allege that Ms Lobley engaged in some “conspiracy” against her. Before the Court Ms Huntley rejected that she made any such allegation. [404] CSNSW’s submissions were at pains to show that Ms Lobley, who was said to have many years of relevant experience, including as a specialist in injury management, was focussed on assisting Ms Huntley, and in that light rejected any criticism of Ms Lobley’s actions. [405] For example, Ms Huntley’s evidence was that she was distressed as a result of what occurred at the meeting of 10 May 2011. Before the Court, CSNSW sought to portray Ms Lobley as not having done a “bad thing” in her consideration that an employee be medically retired. It was submitted, without any evidentiary basis as to what the situation was in relation to CSNSW’s employees at the relevant time, that “some people” want to be medically retired. [406] Ms Lobley was said to have given Ms Huntley the options of referral for a second medical assessment, “…or taking the option of medical retirement”. I have difficulty with that submission. On the evidence, the two are not mutually exclusive. In my view, Ms Huntley was offered a second medical referral for assessment because CSNSW recognised, as set out above, the deficiencies of the first. [407] In my view the evidence is that CSNSW sought to press medical retirement and the way to achieve this was through a second medical assessment by a GMO. I agree with Ms Huntley that on the evidence Ms Lobley had predetermined, at least as at 10 May 2011, that Ms Huntley should be medically retired. Page 42 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [408] It was not satisfactorily explained before the Court whether the position title of “Injury Management” as held by Ms Lobley included, or was to be taken as synonymous with, “Disability Management” or whether the position’s duties and responsibilities include any focus on managing persons with a disability. [409] However, even allowing that this was a part of Ms Lobley’s responsibility, on balance, the evidence shows her management solution to Ms Huntley’s “injury”, given the large amount of sick leave taken, which on the evidence was said to be of concern to CSNSW, was to take the avenue of medical assessment to produce the outcome of medical retirement. [410] I agree with Ms Huntley that in the period after 20 May 2011 to 10 August 2011, CSNSW did discriminate against Ms Huntley, as that concept is understood in light of the DDA, as CSNSW did not seek to make reasonable adjustments to the PPO position, which on CSNSW’s own evidence remained Ms Huntley’s “substantive position”, and one to which she was to return once the “extended” secondment at CIG had ended. [411] I should note that in cross-examination CSNSW put to Ms Huntley that she wanted to stay at CIG because she was “happy” there. The submission was that Ms Huntley did not want to return to the PPO position. [412] It is certainly the case that Ms Huntley expressed her contentment with the CIG position. However it does not follow, without any evidentiary basis, to say that this meant she did not want to return to the PPO position. Ms Huntley’s evidence was that she understood that the management at Campbelltown had made clear that they could not accommodate her return. What remains is that the secondment at CIG ended and, under the policies and practices of CSNSW, the PPO position at the Campbelltown office remained her “substantive” position. [413] As stated above, on 27 July 2011 Ms Huntley was examined by Dr Crowle for the purposes of second referral. On 10 August 2011, Dr Crowle reported that (see page 413 of the exhibit to CH1): “Ms Huntley is permanently unfit (for the foreseeable future 12 months or more) for her substantive position as a Probation and Parole Officer. Ms Huntley has residual capacity for suitable work as outlined in the body of this report.” [414] This was explained as follows (see page 411‑412, as relevant, of the exhibit to CH1): “… 2. Should Ms Huntley be assessed as temporarily unfit for her substantive position, please provide advice for a timeframe for return to her substantive position. In order for this to be durable, please provide guidance as to the capabilities anticipated during this graded return to these substantive duties Ms Huntley is medically suitable for office based sedentary work provided there is reliable access to toilet facilities. Ms Huntley’s travel arrangements need to accommodate her requirement to have reliable access to toilet facilities. Possible strategies include identification of a travel route where there are reliable places to stop and access toilet facilities if travelling by car and travel at times of day to avoid peak hour traffic. It is recommended that Ms Huntley return to work on a graded return of hours, commencing at 25 hours per week and upgrading to full hours over a 2 to 3 month period as this would be beneficial in upgrading to sustainable full time hours of work while she continues to establish management of her most recently diagnosed condition. Utilisation of relevant flexible work hour policies or work from home arrangements, should this be possible in any suitable position, would assist in reducing the amount of sick leave required and provide flexibility to avoid peak hour traffic travel….” In written submissions (at [59]) CSNSW states that Dr Crowle produced the second report on 17 September 2011. I understood this to be a typographical error as on the evidence Dr Crowle’s second report was dated 10 August 2011. [415] It was Mr Morgan’s evidence that Ms Huntley did not return to work as a PPO at the Campbelltown office from the secondment at CIG because the “adjusted” duties at the Campbelltown office could not continue, as had been previously advised to Ms Huntley at a meeting which also included Mr M Fallon and Ms M Miller apparently held in mid-2010 (I note that the affidavit was amended in oral evidence). However, she was told at this meeting by Mr Fallon that “someone from Corrective Services” would assist in finding an alternative position in CSNSW ([88] of CH1 and [12] of Mr Morgan’s affidavit). [416] It was also Mr Morgan’s evidence that Ms Huntley was told that there would be no consideration of medical retirement at that time (see [12] of Mr Morgan’s affidavit). As set out previously, Ms Lobley’s evidence, which appears to stem from the concern about the amount of sick leave taken by Ms Huntley when she commenced the secondment at CIG on 13 September 2010, gives rise to the contrary view that medical retirement was to be pursued by CSNSW. Page 43 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [417] It is to be remembered, as set out at length above, that at the meeting of 10 May 2011 Ms Lobley told Ms Huntley she had been sent a letter advising her of CSNSW’s intention to medically retire her in August 2010. As set out above, the letter was not sent. [418] I accept Ms Huntley’s evidence that Ms Lobley told her on 10 May 2011 that the letter to retire her had been sent “last year”. That is some time in 2010. On Ms Huntley’s evidence of what Ms Lobley told her, this was intended to refer to some period before she commenced the secondment at CIG. That is, 13 September 2010. [419] At best, as stated above, Ms Lobley’s explanation for her mistaken belief that the letter had been sent was that this was the “usual” practice after the receipt of a GMO report such as the first Dr Crowle report. [420] What emerges, therefore, is that in mid‑2010 Mr Morgan told Ms Huntley that she would not be medically retired (as Mr Fallon, who did not give evidence, was to assist in finding her an alternative position). Ms Lobley, as at May 2011, told Ms Huntley that at some time during that period, prior to 13 September 2010, she was told she would be medically retired. [421] CSNSW’s insistence, as expressed primarily through Ms Lobley and to a lesser extent, Ms Hillyard and Ms Nicholson, at the meeting of 10 May 2011 that Ms Huntley would be referred for medical assessment with a view to medical retirement, must be seen in light of the above. That is, Mr Morgan, who was not involved in the meeting of 10 May 2011, proceeded in a different direction. [422] At the meeting of 10 May 2011, my view of the evidence, is that Ms Huntley was presented with what can be described as a “Catch-22” situation. She was told she could not return to her PPO position at the Campbelltown Office because she had been found medically unfit to fulfil the duties of that position. She was told that she could not be redeployed from her PPO position because she was not “excess” to staff requirements. Therefore, the only option available was medical retirement. An “option” which on Ms Lobley’s view would have been the “usual” avenue to pursue following receipt of Dr Crowle’s first report. [423] In the circumstances, Ms Lobley’s “explanation” to Ms Huntley that she would either be medically retired or would need to be found medically fit to return to the PPO position must be seen as an ultimatum put to Ms Huntley, without notice, without consultation, at the meeting and importantly, without any proper regard or consideration as to whether the inherent duties of the PPO positon could be reasonably adjusted, in light of Dr Crowle’s first report, so that Ms Huntley could return there. [424] In submissions, CSNSW referred to the following part of Ms Huntley’s affidavit evidence (see [58] of CSNSW’s submissions): “but I can’t return to my substantive position because I can’t do home visits. I was assessed as permanently unfit last year…” [425] This quote was relied upon by CSNSW before the Court, at best, to argue that Ms Huntley acknowledged that she could not return to the PPO position after the CIG secondment had ended because she understood she had been assessed as “permanently unfit”. [426] A fair reading of the entire conversation reported by Ms Huntley in her first affidavit (CH1) at [175] (which spans some three pages) reveals that the focus on this quote, taken out of context, is misleading. In context, it was Ms Huntley’s immediate response to Ms Lobley’s statement that she could not be redeployed because she was not an “excess” staff member and her permanent position was the PPO position at the Campbelltown Office. [427] Any reasonable understanding of what was said by Ms Huntley was not that she was saying she would return to the PPO position or did not want to return, but it was a reminder to Ms Lobley that she had been told she could not return to the PPO position by the relevant manager, Mr Morgan. [428] CSNSW also made reference to the date of the second assessment of Dr Crowle (29 July 2011) and the diagnosis made by Dr Sultana Syed-Aziza on 29 July 2011 (see at [239] of CH1) that Ms Huntley suffered from the IH disability. CSNSW made reference to Dr Crowle’s finding (of 10 August 2011) that, in effect, Ms Huntley was suitable for office based sedentary work on the basis of there being suitable access to toilet facilities. The submission also noted that Dr Crowle recommended a “graded return of hours” for her over a 2 to 3 month period. [429] Ms Huntley remained on sick leave, where she had been previously placed by CSNSW, until 3 January 2012. At that time she took up a position with the NSW Police with whom, on the evidence, she continues to be employed. [430] What was not satisfactorily explained before the Court was the absence of any action by CSNSW to implement Dr Crowle’s second recommendation. CSNSW’s submissions implied, although not explicitly stated, that the diagnosis of the IH disability was somehow a factor in this absence of action. However, on the evidence Ms Huntley told Dr Crowle of the diagnosis although Dr Crowle required “confirmation…in writing” from Ms Huntley’s specialist (see [240] of CH1).The point is that Dr Crowle’s second recommendation was made after she had knowledge of the diagnosis. In this light, the IH disability should not have prevented the implementation of Dr Crowle’s recommendation. [431] At best, it appears CSNSW waited to see if Ms Huntley would be successful in her application for a position with the NSW Police. Page 44 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [432] It is the case that CSNSW did take some steps to bring to Ms Huntley’s notice a number of vacancies within CSNSW which sought expressions of interest for consideration (see page 484 of the exhibit to CH1). Ms Huntley also attended an interview, unsuccessfully, for a position as a Subpoena Clerk with CSNSW in November 2011 (see page 482 of the exhibit to CH1). Further, CSNSW did provide Ms Huntley with assistance to apply for other positions (see above and [297] of CH1). [433] Ms Huntley gave evidence of a meeting she attended on 8 November 2011 at the NSW Head Office (see [50] above and at [297] of CH1). CSNSW cross-examined Ms Huntley as to this meeting, however her evidence was not shaken and remained clear. During cross-examination, Ms Lobley did not recall her statements during the meeting. Ms Huntley’s evidence provides a further basis to find CSNSW discriminated against her and failed to make reasonable adjustments to her work situation. A number of matters emerge from the evidence, such as access to internal advertisements. As Ms Huntley was on enforced leave she could not access the internal networks to receive these. There is no evidence that internal job opportunities were sent to Ms Huntley by CSNSW. This was discussed at the November 2011, with an indication that she would be sent internal advertisements by individuals within HR, and, on the evidence, this occurred after that date (see pages 476 - 478 and 484 - 489 of the exhibit to CH1). This clearly shows that Ms Huntley did not have the opportunity in that prior period to pursue internal relocation. [434] Further, in relation Ms Lobley’s statement that positions were being sought for Ms Huntley, it is clear that this was done without any contact with Ms Huntley. Ms Huntley’s evidence also shows that Ms Lobley put further “limitations” on Ms Huntley in relation to the “stress” of a position that Ms Huntley had applied for. There was no evidence before the Court that this was a limitation based on medical evidence before Ms Lobley. Again, there had been no attempt to properly engage with Ms Huntley. CSNSW’s actions proceeded on presumptions that did not have a basis in the facts before it. I also accept Ms Huntley’s submission that this evidence showed that CSNSW was not effectively focussing on redeployment for her, instead it remained focused on medical retirement. [435] What is missing in all of this, however, was any attempt by CSNSW to implement Dr Crowle’s recommendation in this period, and instead continue to have Ms Huntley on leave. As such, no reasonable adjustments were considered, as required by the DDA. [436] In all, I find that CSNSW discriminated against Ms Huntley in breach of the DDA. For the reasons set out above, I agree with Ms Huntley that CSNSW failed to make reasonable adjustments for Ms Huntley to enable her to continue in the PPO position in 2010, failed to consider, let alone make, reasonable adjustments to allow her to continue in the CIG secondment, and in its determination that Ms Huntley was unfit for the position of PPO in 2011. [437] Further, given the factual findings made above, arising from the view of the evidence that I have taken, I find that CSNSW discriminated against Ms Huntley because of her disability by treating her less favourably in her employment (s.5 of the DDA, Varas v Fairfield City Council [2009] FCA 689 andPurvis v State of New South Wales (Department of Education and Training)[2003] HCA 62; (2003) 217 CLR 92; (2003) 202 ALR 133). Breach of Contract [438] As set out above, Ms Huntley also alleges that CSNSW breached a number of terms implied into her contract of employment (“the contract”). These were as set out above at [56]. [439] Ms Huntley submitted that CSNSW’s direction that she not attend work, and its failure to place her on “special paid leave” was a breach of the contract. [440] Before the Court Ms Huntley drew attention to “A7”, shown to Ms Lobley during cross-examination. This was a copy of the “Public Service Personnel Handbook”. In particular, the following was drawn to Ms Lobley’s, and the Court’s, attention (at paragraph 6.17.11.2): “Grant of Special Leave An employee directed to cease duty or not to resume duty is to be granted special leave until such time as the nominated health provider has formed a recommendation on the appropriateness or otherwise of granting sick leave. Such time may involve medical assessment by the nominated health provider, other specialists and consultation with the employee’s treating medical practitioner.” [441] Ms Huntley also drew attention to the procedures for “Managing Non Work Related Injuries” or health conditions (see pages 213 ‑ 231 of the exhibit to CH1), in particular: “…if a direction has been given to an employee to cease duty pending a medical assessment, paid special leave should be granted. Following the medical assessment, should the employee be deemed unfit and the nominated medical assessor advises that sick leave is appropriate, then available sick leave is to apply from when the employee was directed to cease duty.” Page 45 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [442] As set out variously above, Dr Crowle’s second report stated that Ms Huntley was “currently fit to undertake employment in an office based environment on a graduated return to work plan”. [443] I find that CSNSW acted inconsistently with its Managing Sick Leave Policy (see pages 199 - 212 of the exhibit to CH1) by not providing Ms Huntley with formal counselling for the “unsatisfactory sick leave record”. CSNSW did not provide any evidence as to why this policy had not been followed in relation to Ms Huntley, prior to the meeting of 10 May 2011. [444] Ms Huntley submitted that CSNSW breached the implied terms of trust and confidence in acting in a manner, from September 2009 and onwards, which was likely to destroy the relationship of trust and confidence. These actions included: 1) Failing to consider or make reasonable adjustment for Ms Huntley’s disabilities from September 2009 until her resignation in January 2014. 2) Requiring Ms Huntley to go on sick leave, recreational leave and unpaid leave from May 2011 without notifying her, and in breach of the CSNSW’s “Handbook” and relevant policies. 3) Failing to comply with the CSNSW’s Managing Sick Leave Policy. 4) Failing to make a “proper effort” to redeploy Ms Huntley to a full time office based position with CSNSW. [445] Ms Huntley submitted that CSNSW breached the implied safety term of the contract through its action on 10 May 2011 and the resulting consequences which had a detrimental impact on Ms Huntley’s health. CSNSW breached the safety term by not giving Ms Huntley any warning of the nature of the meeting of 10 May 2011, and not advising her that she was being placed on leave without pay. [446] Finally, Ms Huntley submitted that implicit in the employment contract was a term that CSNSW act in good faith, reasonably, with proper regard to her interests, in a manner which was not capricious, arbitrary or unreasonable. CSNSW breached this term by failing to perform its obligations, under the DDA and its own polices. In particular, the breaches include: 1) CSNSW purporting to exercise a right to put Ms Huntley on sick leave, extended leave and recreational leave from May 2011 to June 2011 without consulting her or notifying her. 2) Purporting to exercise a right to put Ms Huntley on leave without pay from the period 18 July 2011 without consulting her or giving her notice of the decision. [447] I agree with Ms Huntley that implicit, as a matter of law, in the contract of employment between Ms Huntley and CSNSW, which commenced on 30 December 2011 and ended on 21 January 2014, were the terms of trust and confidence as between the parties, safe work, good faith, the obligation to make reasonable adjustments and that CSNSW did not act inconsistently with its own policies. [448] I find, taking into account the findings of fact set out above, showing the CSNSW discriminated against Ms Huntley in her employment due to her disability, that CSNSW breached each of those terms at various times during the period of the contract. [449] On the evidence there are a number of instances, from at least September 2009 to the cessation of the contract effected by Ms Huntley’s resignation in January 2014, from which I find that the term of trust and confidence was breached. [450] As set out above, CSNSW failed to make reasonable adjustments for Ms Huntley’s disabilities from the various times when it had knowledge of those disabilities. In relation to the period while Ms Huntley was on secondment to CIG, CSNSW failed to consider making any such adjustments. [451] From May 2011 (after the time of the cessation of the “unfitness” for duty as specified in Dr Edward’s certificate), CSNSW imposed on Ms Huntley the necessity to take recreational and unpaid leave without providing proper notice to her. While it was appropriate that Ms Huntley took sick leave for absences from work when she was sick, in this period any such imposition of other leave, without any notification to her of those actions, is a breach of the term of trust and confidence as it arises from the contract of employment. [452] Further, CSNSW did not provide any explanation as to why it failed to make any proper effort to redeploy Ms Huntley to another full time office based position within the organisation. This was in circumstances where the evidence, applicable to various times within the period of the contract, from Dr Crowle was that Ms Huntley could perform, full time office based duties with access to toilet facilities. [453] I find, on the evidence, that the various conduct of CSNSW’s managers and supervisors in relation to the meeting of 10 May 2011 and its aftermath as set out above, had an adverse and significant impact on Ms Huntley’s health. As set out above, Ms Huntley was not given notice of the meeting, in circumstances where the purpose of Page 46 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 the meeting had important consequences for her employment, in terms of the capacity to continue in her employment and the impact of being placed on leave without pay. [454] I also find, in light of the evidence set out variously above, that CSNSW failed to perform obligations under the DDA and its own published policies. The failures of making reasonable adjustments, the lack of fairness in its communications with Ms Huntley were exacerbated by such conduct as putting Ms Huntley on extended leave and recreational leave, and without notification or consultation, sick leave, variously, during the period of May 2011 to July 2011 and then leave without pay in July 2011. CSNSW acted arbitrarily and capriciously in this regard. Its unexplained failure to act in good faith also gives rise to a finding that it acted unreasonably. Damages [455] Given the findings made above, it is appropriate to consider Ms Huntley’s claims for damages and relief generally. [456] As stated above, Ms Huntley claims that she suffered both economic and non-economic loss as a result of CSNSW’s conduct. Ms Huntley made submissions on this issue and provided a detailed “Schedule of Damages”. In contrast, CSNSW made no submissions on the matter and did not seek any further opportunity to do so. It is not the practice in matters of this type in this Court to separate the question of damages from the substantive hearing. [457] Ms Huntley has put evidence before the Court on which she sought to base various components of economic loss which she says she suffered as a result of CSNSW’s conduct (see [242] ‑ [244] and [405] ‑ [410] of CH1). Ms Huntley has sought to quantify this in the Schedule of Damages, including the loss of wages, loss of leave entitlements (with reference to [405] - [406] of CH1 and [79] of CH2), “psychologist costs”, and loss of promotion opportunities. I also took Ms Huntley to submit that the “loss of promotional opportunities” focussed on the potential promotions that Ms Huntley could have applied for, and probably received, had she not been discriminated against because of her disability. [458] Ms Huntley’s submissions on economic loss stated that the damages had been calculated on the basis that her income earning potential will have recovered from the impact of CSNSW’s discriminatory conduct by 30 June 2017. I accept this submission in relation to the lost promotional opportunities, as calculated in the Schedule of Damages. However, I note that this, and the amount sought in the Schedule of Damages, made an amendment to the amount sought for “psychologist costs” of a further two years. This was not explained by Ms Huntley as being related to her “earning potential”. The application to the Court, which she did not formally seek to amend, sought an amount commensurate to two years from the date of the application, 5 July 2013. In the absence of any submissions as to the “extended” time period, I cannot be satisfied that the timeframe should be extended. In these circumstances, the appropriate amount, taking into account the amount included in the Schedule of Damages up to 10 June 2014, and calculated to extend to 5 July 2015, is $9,937.00. [459] It is important to note that CSNSW filed no evidence to satisfactorily assist the Court in this consideration, nor were any submissions made in relation to damages by CSNSW. Nor, importantly, was Ms Huntley challenged before the Court in relation to this evidence. I agree with Ms Huntley’s submission that in the circumstances there is no basis on which to not accept her relevant evidence. I do so. [460] I note Ms Huntley’s written submissions at [126]. The Schedule of Damages is attached to this judgment at Schedule 3. Having regard to that material and my findings above, I find that CSNSW is to pay Ms Huntley an amount of $98,863.89 for economic loss as result of its conduct. [461] Ms Huntley also sought a payment of interest. This was calculated to be $7,407.67 on lost salary and superannuation and $618.00 on lost promotional opportunities up to the date of the hearing. Ms Huntley’s calculation was consistent with s.100 of the Civil Procedures Act 2005 (Cth). Further, no good case has been shown by CSNSW for not making an order for interest pursuant to s.76(3) of theFCCA Act. Therefore, I find that CSNSW is to pay Ms Huntley interest between 18 July 2011 and the date of this judgment on lost salary and superannuation, and lost promotion opportunities, pursuant to s.76(3)(c) of the FCCA Act and r.26.01 of the FCCA Rules. [462] Ms Huntley also sought an amount of $100,000 for non-economic loss. The evidence of Ms Huntley, the evidence attached to the affidavit of Ms Carter, including the report from Ms McIntyre, and the evidence of Mr Huntley are relevant to this consideration. [463] The report of Ms McIntyre’s assessment of Ms Huntley’s mental health and the damage alleged is discussed above. As stated above, the report is annexed at HKC8 of Ms Carter’s affidavit. [464] Ms Huntley drew attention to the following parts of Ms McIntyre’s report: “Again, I am unable to offer an opinion as to whether Mrs Huntley’s physical medical conditions are work related or non-work related as I am not a medical practitioner. It is, however, my opinion that Mrs Huntley’s symptoms which make up the diagnosis of Major Depressive Disorder, along with the associated acute and chronic stressors, have been work related… Page 47 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 The contents in records of a telephone call between Mrs Huntley and I on the evening of 10th of May, 2011 depict Mrs Huntley as suffering an acute stress reaction to allegedly unexpected news; that the Human Resources Department of Corrective Services were planning to medically retire … Consultation notes from the month of May 2011 and the following sessions depict more intense treatment strategies for the management of intense distress and increased depressive symptomology reported by Mrs Huntley… Again, the term ‘medical condition’ is limited to psychological condition given the writer’s qualifications. If the event, as report to me by Mrs Huntley, of alleged inconsistent, ineffective and unfair procedural processes breaching public service policy, procedure, law and/or are discriminatory in nature, then it would be my professional conclusion that the events from 10 May 2011 have acted as an acute and chronic stressor. Acute and chronic stressors exacerbated Mrs Huntley’s depressive symptomology, prolonged the requirement for treatment and have possible impaired full recovery of Major Depressive Disorder… Major Depressive Disorder symptomology currently impacts Mrs Huntley’s ability to function to her full potential in her life, professionally, socially and relationally. At times Major Depressive Disorder limits her ability to advocate for herself without significant psychological support. The latter assertion is determined by Mrs Huntley’s disclosures that without therapy she ‘would not be here’ or words to that effect. Major Depressive Disorder symptoms along with the uncertainty of her vocational future at times lead to Mrs Huntley’s social and relationship withdrawal from her husband. Mrs Huntley’s symptomology impacts on the distribution of work load between them as a couple and creates discord to such as extend that Mrs Huntley has separated or threatened to separate from Mr Huntley for brief periods of time. Major Depressive Disorder symptoms and their impact on Mrs Huntley’s life have strongly influenced Mr and Mrs Huntley’s decision to not pursue becoming parents. Mrs Huntley turned 33 in the year her work place issues commenced; and age at which most women would consider parenthood and know that if they do not prioritise at that time the conception of child, that a child, or children would be less likely an outcome, if at all. Further the total absence of Major Depressive Disorder systems would allow Mrs Huntley’s personal outlook; emotional well-being and occupational performance to reach optimal levels of functioning.” [465] As stated above, it is the case that Ms McIntyre was not called for examination, or cross-examination. Ms Huntley says that in these circumstances her opinion, which should be seen as an “expert opinion” should be accepted. For the reasons stated above, I accepted Ms McIntyre’s report as evidence in that light. [466] Ms Huntley also relied on her own evidence to support the claim for non-economic damages in terms of the impact of CSNSW’s conduct on her after 10 May 2011 (see her [391], [393], [394], [397], [400] - [401], [403] of CH1). There was no relevant cross-examination of Ms Huntley’s own evidence about the impact. There were no submissions by CSNSW that Ms Huntley’s evidence should not, in part or in full, be accepted. In all the circumstances, including in the absence of any other evidence to the contrary, I accept Ms Huntley’s evidence in this regard. [467] Mr Huntley also gave evidence on this point (see [21] of Mr Huntley’s affidavit). It is the case that it may have been available for CSNSW to make submissions as to Mr Huntley’s lack of direct observation of some relevant events to which he made reference. However, no such submission was made. Further, such a submission could not be made in relation to his direct observation, and conduct during the relevant time. That is, the observed impact on Ms Huntley. This evidence also is accepted as supporting Ms Huntley’s claim. [468] Ms Huntley referred to Alexander v Cappelloand Anor [2013] FCCA 860 at [148] - [149] (per Judge Driver) to differentiate between what were said to be “different” classes of claims with respect to general damages: 1) Claims where there is no medical or expert evidence, 2) Claims with medical expert evidence but the damage does not show psychological trauma, and 3) Claims where the medical or expert evidence demonstrates significant psychological trauma. [469] Ms Huntley submitted that on the evidence, her case falls within the third category identified by his Honour (at [148]): “…Claims where the medical or expert evidence demonstrates significant psychological trauma. These cases have Page 48 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 led to awards in excess of $20,000 and up to $100,000. Cases such as Poniatowska and Lee along with VCAT decision Tan v Xenos are cases of this kind.” [470] Plainly, CSNSW did not cause, by its conduct, Ms Huntley’s disabilities. The focus for current purposes must be on whether CSNSW’s conduct, as described variously above, caused further, or “contributed to”, “trauma” to Ms Huntley, and “pain and suffering” (Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (“Richardson”) at [69] - [70] and [96] - [103]). Further, if so, whether it was significant, as she now asserts, such as to support the claim for $100,000 in general damages. [471] On the evidence, I find that Ms Huntley was diagnosed as suffering depression prior to the events of May 2011. Plainly CSNSW’s conduct therefore cannot be said to have caused this condition. However, I agree, on the evidence as referred to above, that CSNSW’s conduct did result in an acute and, on the report from Ms McIntyre, chronic impact on Ms Huntley. I note Ms McIntyre’s report as to the relevant “original diagnosis” of “Major Depressive Disorder” as being “moderate in severity”. This was linked to what were described as “acute and/or chronic stressors”, which on the evidence I accept, resulted from CSNSW’s conduct as variously described above. [472] For current purposes, it is also important to note Ms McIntyre’s prognosis that the “ongoing acute and chronic stressors and health conditions are likely to sustain her diagnosis” (see page 4 of the report). I understand this to mean that the stressors on Ms Huntley, and her “health” conditions, are both relevant to the prognosis. [473] I accept that CSNSW’s conduct caused psychological injury to Ms Huntley. In the circumstances that injury was “significant”. However, this must be seen in light of Ms McIntyre’s opinion (see page 4 of the report): “However, Mrs Huntley’s expression of current symptomology remains linked to, and is a function of, the following factors: anti-depressant usage; active participation in treatment both medical and psychological; her reported level of current workplace functioning; and absence or presence of on-going chronic and acute stress(ors). Should any of these factors change there is likely to be a shift in Mrs Huntley’s presentation.” [474] In all, the impact on Ms Huntley of CSNSW’s conduct has been significant in the sense of the psychological trauma she has suffered. In reaching this conclusion I have taken into account that the depression in some degree was pre-existing, the significant impact of CSNSW’s conduct, and Ms McIntyre’s diagnosis of Ms Huntley’s psychological symptomology meeting the criteria for “Major Depressive Disorder”, as being described as “mild” on balance. I also accept that the impact of CSNSW’s actions caused Ms Huntley “pain and suffering”, through emotional distress. I am of the view that an amount of $75,000 is appropriate as general damages. Conclusion [475] The declarations that I will make, therefore, are [as stated above, they are made against the Department in light of the relevant relationship between CSNSW and the Department]: 1) The Department unlawfully discriminated against her in breach of ss.5 and 15 of the DDA. 2) Ms Huntley met all the relevant requirements of her position such that s.21A of the DDA was not met by the Department. 3) The Department has breached express and implied terms of Ms Huntley’s contract of employment. [476] Ms Huntley sought a declaration that the Department also breached s.6 of the DDA, being indirect discrimination. As I have made a declaration that they breached s.5 of the Act, it is not necessary to make a finding that the Department breached s.6 of the DDA (Australian Iron and Steel Pty Ltd v Banovic[1989] HCA 56; (1989) 168 CLR 165, andWaters v Public Transport Corporation[1991] HCA 49; (1991) 173 CLR 349). [477] The orders that I will make are in the following terms: 1) Pursuant to s.46PO(4)(a) of the AHRC Act the Department to re-credit Ms Huntley’s leave entitlements for the period of 11 May 2011 to 15 July 2011. 2) Pursuant to s.46PO(4)(d) of the AHRC Act the Department pay Ms Huntley compensation for loss or damage suffered by Ms Huntley caused by the Department’s contraventions of the DDA and breaches of the contract, namely: b Compensation for pain and suffering and breach of contract of an amount of $75,000. c For loss of wages, leave entitlements, superannuation, psychologist costs and loss of promotion opportunities in the amount of $98,863.89. 3) The Department to pay Ms Huntley interest on her loss of wages, leave entitlements, superannuation and loss of promotion opportunities pursuant to s.76(3)(c) of the FCCA Act and r.39.06 of the Federal Court Rules 2011 . Page 49 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 [478] Ms Huntley’s application for an order pursuant to s.46PO(4)(b) of the AHRC Act was not adequately pressed in submissions or the evidence before the Court. In these circumstances, I am not satisfied that such an order should be made. [479] Ms Huntley’s application for an order pursuant to s.46PO(4)(a) of the AHRC Act that the Department not repeat or continue such unlawful discrimination was also not adequately pressed. Such injunctive relief may possibly have symbolic and educative value, however Ms Huntley did not make submissions on this point. Again, in these circumstances, I am not satisfied that such an order should be made. [480] I will hear the parties as to costs. Schedule 1 [481] Ms Huntley filed a comprehensive document concerning objections to the affidavits that CSNSW had filed. [482] Below is a table outlining the objections and the rulings made on those objections. [“A” - Admitted, “NA” - Not admitted.] Affidavit of Rosemary Caruana affirmed on 1 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 4 “which was an inherent Opinion “inherent” - NA requirement of the ConclusionLegal position of a PPO” question in issue Affidavit of Gai Hillyard affirmed 1 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 12 “Ms Nicholson… HearsayConclusio Withdrawn NA 10 May 2011. n 1 “ H W N 3 T e it A h a h e r d A s r p a a p y w li C n c o a n n c t l t u o s l i d o … n f o r t h e m e e ti n g ” Page 50 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 15 to 18 (first “of these ConclusionNarrativ [15] Second sentence) arrangements” eNot direct speech sentence - NA. Remainder A [16] Last sentence - A Remainder - NA [17] - A [18] - first sentence - NA. Affidavit of Wendy Lobley affirmed 23 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 10 “the inherent duties of” OpinionConclusionLeg NA al question in issue 14 “However, … the Hearsay Not pressed. NA appointment.” 15 Entire paragraph ConclusionNarrativeNo Second sentence - NA t direct speech “Narcolepsy” - NA Remainder - A 16 “At the meeting… ConclusionNarrativeNo A retirement” t direct speech 16 “because I assumed… OpinionConclusion A that kind.” 16 “Any plans… the CIG OpinionConclusion Not pressed NA position.” 17 Entire paragraph OpinionConclusionRel NA evance 18 “At the meeting… ConclusionNarrativeNo Not pressed NA during the meeting.” t direct speech Affidavit of Robert Morgan affirmed 1 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 9 Entire Paragraph ConclusionNarrativeNo NA t direct speechStaff members not identified 9 “After the applicant Hearsay NA returned… difficulty for other staff. 11 “In March 2010… ConclusionNarrativeNo A unexpectedly absent.” t direct speechStaff members not identified 11 “It was an inherent OpinionConclusionLeg “inherent” - NA requirement… visits.” al question in issue 12 Entire Paragraph ConclusionNarrativeNo “it was agreed” - NA Page 51 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 t direct speech “All options… supportive manner” - NA Remainder - A Affidavit of Leah Nicholson affirmed 14 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 5 “I told the Applicant… ConclusionNarrativeNo A during this t direct speech conversation” 7 “that stated… in Emails speak for NA length.” themselves 8 Entire paragraph Emails speak for NA except material in themselves brackets at end Affidavit of Nyree Smith affirmed 14 April 2014 Paragraph Portion Objection Respondent’s Ruling Response 6 Entire paragraph OpinionConclusionSpe A culative 7 “discussions were ConclusionNarrativeNo NA held… management t direct speechIdentity strategies.” of person making statement to Applicant is unidentifiedNot clear if deponent or some other person 11 “The Applicant was ConclusionNarrativeNo NA advised… within the t direct speechIdentity workplace.” of person making statement to Applicant is unidentifiedNot clear if deponent or some other person 18 “I advised the Emails speak for NA Applicant… end of themselves August 2009” 39 “I discussed with her… ConclusionNarrativeNo NA at Campbelltown.” t direct speech 41 “After the Applicant… ConclusionNarrativeNo NA was impacting on their t direct speechStaff workloads.” members not identified Schedule 2 - Exhibits [483] The following were handed up and marked as exhibits during the course of the hearing. Page 52 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 Exhibit Party Description A1 Ms Huntley Senior Assistance Commissioner’s Memorandum No, 11/2004 dated 15 April 2004 A2 Ms Huntley Emails from Wayne Creighton and Bob Morgan, Department of Corrective Services Reference A3 Ms Huntley Community Corrections Assistant Commissioner’s Memorandum No 2013/15 dated 10 May 2013 A4 Ms Huntley Emails from Trudi Mares and Wendy Lobley, Department of Corrective Services Reference A5 Ms Huntley Emails from Trudi Mares and Caryn Huntley, Department of Corrective Services Reference A6 Ms Huntley Request from PCC Lawyers and Consultants and response from CSNSW A7 Ms Huntley Personnel Handbook, Department of Premier and Cabinet, Version 11.1, updated April 2011 A8 Ms Huntley Applicant’s Sick Leave Table Schedule 3 - Damages [484] The following is from Ms Huntley’s Schedule of Damages filed on 5 June 2014: “Economic Loss from 10 May 2011 to 10 June 2014 a) Lost wages 18 June 2011 to 3 January 2012 of $35,187.03. Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1). b) Lost superannuation contributions 18 July 2011 to 3 January 2012. Notes: 9% of gross wages of $3.166.83. Notes: paragraph 242 to 244 affidavit of Caryn Huntley affirmed 14 February 2014. Gross wages of $2,908.09 per fortnight (page 586 CH1). c) Lost leave entitlements 11 May 2011 to 17 July 2011 of $14,249.64. Notes: Affidavit of Caryn Huntley affirmed 14 February 2014 paragraphs 405 to 406. CH1 pages 397 to 398 and 535 to 543. — -49 days leave entitlements at 290.81 per day (3 days personal leave, 14 days recreation leave, 32 days extended leave). — Psychologist costs from 11 May 2011 to 10 June 2014 of $7,312.00. Page 53 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 Notes: CH1 page 594 shows costs at $125.00 per session - fortnightly intervals 75% of costs 78 sessions. Report of Alicia McIntyre page 79 of affidavit of Helen Carter. e) Loss of Promotion opportunities 1 July 2012 to 10 June 2014. Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598. — - $284.75 for loss of higher duties allowance 21 May 2011 to 30 June 2012. — - $1,903.96 for period 1 July 2011 to 30 June 2012 [Actual pay grade Maximum 6 ($77,797) Projected pay grade without discrimination of Minimum Grade 7 ($80,096)]. — - $1,951.37 for period 1 July 2012 to 30 September 2012 [Actual pay grade ($79,711) Projected pay grade without discrimination Minimum Grade 1 (82098)]. — - $1,314.00 for period 1 October 2012 to 30 June 2013 [Actual pay grade Max 6 ($79,711); projected pay grade without discrimination of Maximum Grade 7 ($84,533)]. — - $4,817.18 for period 1 July 2013 to 10 June 2014 [Actual pay grade Max 6 (81520 to projected pay ground without discrimination of grade 7 Maximum ($86,472)]. Economic loss from 10 June 2014 to 30 June 2016 a) loss of promotion opportunities 1 July 2014 to 30 June 2017 of $26,042. Notes: Paragraph 410 of affidavit of Caryn Huntley affirmed 14 February 2014 and CH1 pages 586, 595, 596 to 598. — - $8,322.08 for period 1 July 2014 to 30 June 2015 [Actual pay grade Max 6 ($81520) projected pay grade without discrimination of Minimum Grade 8 ($90,075)]. — - $8,733.56 for period 1 July 2015 to 30 June 2016 [Projected pay grade with discrimination of Minimum 7 ($83,962) Projected pay grade without discrimination of Maximum 8 ($92,940)]. — - $8,986.49 for period 1 July 2016 to 30 June 2017 [Projected pay grade with discrimination of Maximum 7 ($86,472) Projected pay grade without discrimination of Minimum 9 ($98,401)]. — - Based on pay scales for year ended 30 June 2014 as further ones are not available. Avoid need for net present value discount. — 75% of costs of psychological treatment at a session every 2 weeks from 1 July 2014 to 30 June 2016 of $4,975.00. General Damages a) For pain and suffering and damage to health of $100,000. Interest a) Interest on lost salary and superannuation in the period of 18 July 2011 to 3 January 2012 calculated to 10 June 2014 of $7,404.67. Notes: Calculated at 4 points above reserve bank cash rate for period from pay date to date of commencement of hearing. b) Interest on damages for lost promotion opportunities of $618.00. Notes Calculated at 4 points above reserve bank cash rate for period from end of less set out in part e) of economic loss above until first date of hearing.” Order Page 54 of 54 Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW), [2015] FCCA 1827 Orders accordingly. Counsel for the applicant: Ms C Ronalds SC Solicitor for the applicant: PCC Lawyers Counsel for the respondent: Ms T Jowett Solicitor for the respondent: New South Wales Department of Police and Justice (Corrective Services NSW) End of Document