[ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Magistrates Court of Australia You are here: AustLII >> Databases >> Federal Magistrates Court of Australia >> 2012 >> [2012] FMCA 340 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cugura v Frankston City Council [2012] FMCA 340 (24 April 2012) Federal Magistrates Court of Australia [ Index ] [ Search ] [ Download ] [ Help ] Cugura v Frankston City Council [2012] FMCA 340 (24 April 2012) Last Updated: 1 May 2012 FEDERAL MAGISTRATES COURT OF AUSTRALIA CUGURA v FRANKSTON CITY COUNCIL [2012] FMCA 340 INDUSTRIAL LAW – General protections applications – claim employment terminated due to physical disability or family responsibilities – burden of proof – application dismissed. Fair Work Act 2009 (Cth) ss.336 , 340 , 341 , 342 , 351 , 352 , 360 , 361 , 370 , 370 (2), 371 , 570 Disability Discrimination Act 1992 (Cth) ss.4 , 5 , 6 Evidence Act 1975 (Cth) s.140(2) Cugura v Frankston City Council [2011] FMCA 195 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Hodkinson v The Commonwealth [2011] FMCA 171 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCA FC 14 Liquor Hospitality & Misc Union v Arnotts Biscuits Ltd [2010] FCA 770 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 Stephens v Australian Postal Corporation [2011] FMCA 448 Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92 Farah v Ahn & Anor [2012] FMCA 44 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 Applicant: LUDWIG LEWIS CUGURA Respondent: FRANKSTON CITY COUNCIL File Number: (P)MLG 1724 of 2010 Judgment of: O'Sullivan FM Hearing dates: 5, 6, 7 & 8 March 2012 Date of Last Submission: 8 March 2012 Delivered at: Melbourne Delivered on: 24 April 2012 REPRESENTATION Counsel for the Applicant: Ms S. Aufgang Solicitors for the Applicant: AED Legal Centre Counsel for the Respondent: Ms S. Bingham Solicitors for the Respondent: Macpherson & Kelley Lawyers THE COURT ORDERS THAT: (1) The application filed 27 April 2011 be dismissed. (2) The respondent file and serve any written submissions in relation to costs within 14 days. (3) The applicant file and serve any written submissions in reply 14 days thereafter. AND THE COURT NOTES: (4) The question of costs will be determined on the papers unless otherwise requested in submissions. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE (P)MLG 1724 of 2010 LUDWIG LEWIS CUGURA Applicant And FRANKSTON CITY COUNCIL Respondent REASONS FOR JUDGMENT Introduction On 27 April 2011 Ludwig Lewis Cugura (“the applicant”) filed an application with the Court alleging his employment with Frankston City Council (“the respondent”) had been terminated in breach of the Fair Work Act 2009 (Cth) (“the Act”). The applicant is over 45 years of age. The applicant commenced employment with the respondent in March 2009 and his employment was terminated in September 2010. Procedural history This is not the first application filed by the applicant. In 2010 the applicant had filed an application in relation to the termination of his employment with the respondent which was dismissed on jurisdictional grounds. [1] The current application is a “general protections court application” as defined in s.370(2) of the Act. As a consequence, s.371(a) of the Act required that the applicant must first bring his complaint to Fair Work Australia (“FWA”) and it was accepted he did so. Those proceedings failed to effect a conciliated outcome and a certificate was issued by Commissioner Roe on 21 April 2011. [2] The matter proceeded on the basis the certificate was valid. Upon the issue of the certificate from FWA, proceedings in this Court may then be brought, but subject to a time limit in s.371(2): “Time for application (2) Despite section 544, a general protections court application that requires a certificate under section 369 must be made within 14 days after the cerficate is issued, or within such period as a court allows on an application made during or after those 14 days.” It was accepted that the applicant had filed this application within the requisite period. The applicant claimed at item [25] of the Form 2 accompanying his application filed 27 April 2011 that s.344(c) and ss.351(ab) and (b) of the Act were relevant to his claim. [3] The application was given a first return date of 9 June 2011. On that occasion the applicant appeared in person and the respondent was represented by Counsel. Orders and direction were made listing the matter for a trial on 9 November 2011. Before the matter could come on for trial, and after the parties had been to mediation, solicitors from the AED Legal Centre came on the record for the applicant. By that time the respondent had filed its material for the trial that had been fixed for 9 November 2011. However, the applicant had not. Accordingly, and with the consent of the parties, the matter was listed for a mention on 20 October 2011. At the mention on 20 October 2011 orders were made by consent which provided: “1. Paragraphs 6 and 8 to 10 of the orders made on 9 June 2011 be vacated and replaced with the following orders. 2. The parties exchange affidavits of documents, excluding those documents exhibited to the Respondent’s affidavits filed 14 October 2011 by 7 November 2011. 3. Inspection of documents to take place on or before 14 November 2011. 4. The Applicant shall file and serve any affidavit material upon which he intends to rely at the final hearing by 15 December 2011. 5. The Respondent can seek leave to lead oral evidence in reply to the material filed by the Applicant. 6. The parties shall exchange a list of objections to affidavits together with grounds and outline of submissions by 16 February 2012 ... 7. The trial listed on 9 November 2011 be vacated. 8. The proceedings be listed for trial on 5 March 2012 ...” In the application the applicant claimed that the termination of his employment in September 2010 was unlawful by reason of the breaches of the Act referred to above. The applicant sought relief by way of reinstatement, compensation and penalty. The respondent opposed that relief and sought that the application be dismissed. [4] At the commencement of the trial the applicant’s Counsel confirmed that the applicant only pressed his claim in relation to s.351 of the Act and abandoned the claim in the application in relation to s.344 of the Act [5] . Background In what follows a statement of fact constitutes a finding of fact on the balance of probabilities unless the context suggests otherwise. The applicant had surgery as a result of cancer between 2001 and 2005. The applicant obtained a medical certificate in 2008 that said he had “ a large scar left flank due to surgery to his left kidney, parathesia, especially when external pressure applied. ” The medical certificate went on to state “ wearing seat belt at the driver site (sic) makes his symptoms worse ”. The applicant’s doctor diagnosed parathesia. This is defined as any subjective sensation experienced as numbness tingling or a “ pins and needles feeling ”. [6] The applicant didn’t wear a seat belt when driving as he believed he wasn’t required to by either Vic Roads or Police. The respondent is a Council established under the Local Government Act 1989 (Vic) in Melbourne’s Eastern suburbs. The respondent employs approximately 1,000 employees. In 2009 the applicant applied for the position of Senior Community Safety Officer – Security Cameras with the respondent. In March 2009 the applicant was offered employment with the respondent as Senior Community Safety Officer – Security Cameras. On 21 March 2009 the applicant signed a health declaration form that represented that he had no existing or pre-existing injuries or diseases that could affect the nature of the employment being offered to him. The applicant was inter alia required to hold a current Victorian drivers licence, be able to drive a motor vehicle in compliance with the laws of Victoria, comply with the respondent’s policies and procedures [7] and follow all reasonable and lawful directions. There were also terms and conditions of the applicant’s employment which included inter alia that his conditions of employment would be in accordance with the Frankston City Council Enterprise Agreement , and his employment was subject to a probationary period. The applicant commenced employment on 23 March 2009 and after an induction process in April the respondent provided the applicant with a utility for the purpose of carrying out his duties. As part of the respondents’ Community Safety Team, the applicant reported to the Community Safety Coordinator and liaised with police, other council services, traders and other community groups to manage anti social behaviour in the area. In or around May 2009, the applicant requested that the respondent provide him with an alternative vehicle. The applicant was able to exchange vehicles. A short time later the applicant advised the respondent he would go back to using the utility. After the expiration of his probationary period and in either October or November 2009 the applicant first told the respondent that he had scar tissue on the side of his body as a result of an operation for cancer. This was after he raised concerns he had with the vehicles provided to him by the respondent. The issue of an alternative vehicle for the applicant was raised again in late 2009 and not much appears to have been fed back to the applicant on this issue until April 2010. By this time, Ms King was the manager responsible for the applicant. However whilst the applicant may not have been told the respondent had inter alia taken advice from solicitor on its obligations under the Occupational Health and Safety Act 2004 (Vic) and from Vic Roads to find alternatives to accommodate the applicant’s concerns. By April 2010 it is clear that the applicant’s behaviour had already begun to present problems for the respondent. The applicant had been directed by a number of managers to ensure he: referred queries and requests to the relevant manager; not attend upon any potential offender; not use equipment unless he was appropriately trained and certified; not bring his son to work or have his son accompany him whilst working. There had also been directions issued to the applicant regarding working hours and following manager’s requests. Also in April 2010, at the request of the respondent, the applicant was assessed by an occupational therapist. The report prepared as a result of this made a number of recommendations for both the applicant and the respondent to implement. In late April 2010 the applicant advised the respondent that he would no longer be driving the utility and returned the vehicle to the respondent. Also in late April 2010 the applicant was directed not to drive his personal vehicle for work purposes. In either late April or early May 2010 the applicant made a complaint to the respondent. The complaint raised issues as to alleged bullying, harassment and discrimination. Mr Eagles an industrial relations consultant, was engaged by the respondent to investigate the complaint made by the applicant. Mr Eagles provided a report to the respondent which didn’t substantiate the applicant’s complaint but included a recommendation that the applicant be provided with a suitable vehicle or be reimbursed for the costs or expense of using his own vehicle. In May 2010 there were discussions with the applicant concerning his working hours and the need to seek approval to work over time and non standard hours. In late May 2010 the applicant was asked to provide his opinion on vehicles appropriate to accommodate his needs and permit him to carry out his duties. The applicant provided a list of alternative vehicles and the respondent undertook investigations into those alternatives. Mr Dickson commenced with the respondent as the manager responsible for the business unit in which the applicant worked in June 2010. By July 2010 the applicant was being directed by Ms King to complete a daily log book. At or around this time it came to the respondent’s attention that the applicant had been using his private vehicle for work. Ms King again directed the applicant not to use his private vehicle for work and confirmed that he would not be reimbursed for the private vehicle costs as he had not complied with the respondent’s requirements for him to do so. There had also been occasion for the respondent to remind the applicant not to attend at addresses identified as “hot spots” for offending or anti social behaviour and that this should be left to police. In late July 2010 and pending an assessment and report into alternative vehicles to meet the applicant’s needs, the applicant was directed not to drive for work by Ms King and Mr Dickson. On 19 August 2010 it was confirmed the respondent’s fleet vehicles were unable to be safely modified to enable the applicant to drive without a seat belt and a risk assessment done by the respondent recommended that the applicant should not be allowed to drive. On 24 August 2010, the respondent advised the applicant of this and that he would be deployed to carry out administrative duties in the respondent’s Community Safety Team at the Keys Street office. After the meeting at which this was conveyed, the applicant went home sick. On 26 August 2010 Mr Henson, the respondent’s Occupational Health and Safety Coordinator provided the written Hazard/Risk Assessment that was used to identify and assess risks associated with the applicant not wearing a seatbelt and/or vehicle modifications. Between 25 August 2010 and 27 August 2010 the applicant was absent on sick leave . During this time the applicant informed the respondent that his general practitioner had suggested that he ‘could’ wear a seatbelt while performing his duties subject to specified modifications to the vehicle. In late August 2010, the applicant was requested to attend an examination to assess whether the applicant was able to perform the inherent requirements of his position. The applicant believed he didn’t need to do so. Ultimately the respondent didn’t pursue the matter as a result of events that occurred over the weekend of 28 and 29 August 2010. After receipt of the advice from the applicant about his doctor’s latest opinion (and on 27 August 2010) Mr Dickson, advised the applicant that the respondent would need to assess the new information. He confirmed his direction the applicant attend the respondent’s office in Keys Street to perform office duties upon his return to work. The applicant informed Mr Dickson he would be returning to work on Monday, 30 August 2010 and that he would report for duty at the respondent’s depot in Buna Avenue. Mr Dickson confirmed with the applicant that his previous duties had been reassigned on a short term basis. Mr Dickson again directed the applicant to report for work at Keys Street and informed the applicant upon his return to work that he may be required to be assessed by a medical practitioner. On 28 August 2010 the applicant sent an email to a number of members of Victoria Police. That email identified a member of the public as a “ graffitist ” and forwarded with it a series of internal emails that had been sent to and from the applicant and various of the respondent’s managers. [8] The first part of the email was: “Hi All, It appears I might be made the scapegoat for something (possibly CCTV which were purchased before my time) that I am totally unaware of – The vehicle issue relating to seat-belts is a furphy, as I have found an engineering co. that specialises in modifications for people with disabilities and finally I have been able to null and void the issue all together. My doctor has written a certificate that states that no structural modifications are now necessary providing a few simple ergonomic requirements are met when selecting a vehicle for my use. I have no intention to be a martyr for Council and the memo below has been on going dilemma of not being able to perform to the best of my capacity – Other draw-backs have been: No colour photocopier, No still camera, using my own vehicle since April without being reimbursed for running costs, No funds being made available for the brochures I had produced...Including the Hoon Hotline brochure that I was printing at home and the obvious never-ending drama with the portable CCTV Cameras. I thought it was best to inform everyone in case I get shown the back door next week. I hope I was able to show and provide a small sample of Councils and my own personal capabilities in supporting Police and service to the community, I would like to add that the members I dealt with from Frankston Police were all professional and a pleasure to work with. The candid humour at times during our meetings was the icing on the relationship. PS, My last offering is a graffitist which has the tag name of ‘SHORTIE’ working/tagging Montery Blvd and Excelsior Drive Frankston (Pines Area). The graffitist is located at [NAME REDACTED] and is a 18 year old female (you will note that property is the only one not tagged). My fingers are crossed to last out next week and things pan-out positively! Regards [9] ” On 30 August 2011 Ms King received, from Chief Inspector Cooke of the Victoria Police, a copy of the email sent by the applicant referred to above. On being made aware of the above the respondent decided to suspend the applicant on full pay p ending the outcome of a formal investigation into his conduct in sending the emails. Mr Eagles was engaged to conduct a formal investigation into the conduct of the applicant. Mr Eagles and Ms Bentley (the respondent’s Human Resources Coordinator) then met with the applicant to inform him of the allegations against him. On 2 September 2010 at a meeting attended by Ms Graves (the respondent’s Manager for Organisation Development), Mr Eagles and Ms Bentley and after having given full consideration to the applicant's response to the allegations, the applicant’s employment was terminated for gross misconduct. The notice of termination issued to the applicant provided: “Dear Ludwig, Re: Notice of Dismissal I refer to the meeting held on 2 September, 1010, with yourself, Juanita Graves – Manager Organisation Development, Jennie Bentley – Human Resources Coordinator, and Michael Eagles. A number of serious allegations were put to you. You were given an opportunity to respond to each of the allegations. We gave due consideration to your explanation of events. We have determined that your actions constitute gross misconduct under the Council’s Disciplinary Guidelines and are clearly in breach of Council’s Code of Conduct. Following a full and thorough consideration of all the issues including tenure of employment, in accordance with the provisions of Part B, Clause 19.1.5 of the Frankston City Council Enterprise Agreement (No.5) 2007, I confirm that your employment with Frankston City Council was terminated at the end of the meeting with immediate effect. ...” [10] Upon termination the applicant was paid outstanding salary and annual leave entitlements. The applicant’s claim As noted earlier the application filed 27 April 2011 only identified the sections of the Act referred to therein as the basis for his claim. Despite orders and direction for the filing of contentions of fact and law, the only document that identified the grounds of the applicant was the submissions filed on behalf of the applicant on 28 February 2012. In that document it was submitted: “The Applicant submits that in the circumstances set out in his Affidavit materials, that he was dismissed from his employment with the Respondent because of, or for reasons that included, his disability, which constituted adverse action against him in terms of Section 342 (1) Item 1(a) of the Fair Work Act 2009 (“the FWA”) and breached section 351 (1) of the FWA. .... 3. At all material times the Applicant suffered from paresthesia associated with a large scar, resulting from surgery to his left kidney (“the disability”) (paragraph 8). He had a letter from his doctor which enabled him to drive a vehicle without wearing a seat belt (paragraph 9). The Applicant also refers to the Affidavit of Dr Cheng-Jie Gu dated 15 December 2011 filed and served herein. 4. The paresthesia constitutes a disorder, malformation or disfigurement of the Applicant’s body and is a disability, physical disability or impairment for the purposes of the Disability Discrimination Act 1992 (Commonwealth) (“the DDA”), the Equal Opportunity Act 1995 (Victoria) (“the EOA”) and the FWA. ... 8. Although the Respondent attempted to find the Applicant a suitable vehicle, it ultimately failed to do so. ... 10. The Applicant submits that, although the Respondent made attempts to provide an alternative or modified vehicle, the Respondent did not adequately explore options open to it. ... 11. The failure of the Respondent to provide reasonable accommodation of the disability led it unnecessarily and unreasonably to conclude that the Applicant could not perform the inherent requirements of his position and told him so at the meeting that took place on 29 July 2010 by advising him that he could not drive a vehicle for work (paragraph 29). 12. The Respondent’s position regarding the Applicant not driving in connection with his work for the Respondent was reinforced by the Respondent at the meeting that took place on 24 August 2010 and caused the Applicant reasonably to conclude that his position as Senior Community Safety Officer – Security Cameras was effectively terminated at that stage (paragraphs 33 and 34). The Applicant submits that this situation arose because of the disability and the Respondent’s failure to accommodate it. ... 16. The stand down by the Respondent of the Applicant from his normal duties was because of the disability and the alleged inability of the Respondent to accommodate the disability and led to the Applicant becoming ill and requiring time off work. The Applicant was highly distressed and emotional at the action of the Respondent in standing him down. In this state of mind he wrote to his Police colleagues in terms of the Police email. 17. It was the effective removal of the Applicant from his position, with the excuse that he could not perform the inherent requirements of the position, that led directly to the Police email. ... 19. A few days after the Police email was sent the Respondent dismissed the Applicant, giving the reason that the Applicant, by sending the Police email, had engaged in “gross misconduct”. 20. It is submitted that the Applicant would not have been stood down from driving, removed from his position with the Respondent and subsequently dismissed had the Respondent reasonably accommodated his disability by providing an alternative or modified vehicle or even been prepared to allow him to use his own vehicle with an appropriate allowance. There is a direct link between the disability and the dismissal. The Applicant was, in the circumstances, dismissed because of the disability, or for reasons that included the disability, contrary to Section 15 of the DDA and Section 14 of the EOA. This constituted adverse action against him in terms of Section 342 (1) Item 1(a) of the FWA and breached Section 351 (1) of the FWA.” The respondent’s position In the response filed 22 June 2011 the respondent’s position was: “1. The Applicant’s employment was terminated by the Respondent for misconduct. The conduct in which that Applicant engaged was contrary to the Respondent’s Staff Code of Conduct and constituted serious misconduct under the Respondent’s Disciplinary Guidelines. 2. The Respondent did not engage in any conduct that was discriminatory in relation to the Applicant’s employment, and the Applicant’s termination was not as a result of any such alleged discrimination. 3. The Applicant’s application is without merit, has been instituted without reasonable cause, alternatively the applicant’s unreasonable acts or omissions in commencing proceedings against the respondent have caused the respondent to incur costs.” The trial At the trial the applicant was represented by Ms Aufgang of Counsel and the respondent by Ms Bingham of Counsel. The applicant relied on: his affidavit filed 15 December 2011 marked exhibit A1; the affidavit of Dr Cheng-Jie Gu filed 15 December 2011 marked exhibit A2; the affidavit of Chief Inspector Ron Cooke filed 15 December 2011 marked exhibit A3; the affidavit of Inspector Cecily Allan filed, by consent, on 5 March 2012 marked exhibit A4; and the submissions filed 28 February 2012 marked exhibit A7. The applicant also relied on a number of exhibits that were tendered to the Court. [11] The respondent relied on: the affidavit of Melissa King filed 14 October 2011 marked exhibit R10; the affidavit of Paul Twaites filed 14 October 2011 marked exhibit R11; the affidavit of Graham Hayden filed 14 October 2011 marked exhibit R12; the affidavit of Steve Dickson filed 14 October 2011 marked exhibit R13; the affidavit of Troy Henson filed 14 October 2011 marked exhibit R14; the affidavit of Jennie Bentley filed 14 October 2011 marked exhibit R15; the affidavit of Juanita Graves filed 14 October 2011 marked exhibit R16; and the affidavit of Mick Eagles filed 14 October 2011 marked exhibit R17; and the submissions filed 16 February 2012 marked exhibit R18. The respondent also relied on a number of exhibits that were tendered to the Court [12] during cross examination but ultimately these were not of any assistance in determining the matter. Evidence A lot of the evidence that was adduced at trial was principally directed to the applicant’s history before his employment and his interactions with other employees during his employment. The parties also adduced evidence of perceptions of how the applicant discharged his duties. Evidence was also adduced concerning the applicant’s relationships with members of the Victoria Police. Much of that evidence that was taken up with contested assertions about the applicant’s history, work performance, medical condition and whether modifications could have been made to the respondent’s vehicles. For reasons that will become clear presently a lot of that evidence was of marginal, if any, relevance to the issues before the Court and was unhelpful. Surprisingly only limited time at trial was devoted to considering a number of incidents that occurred in late July/August 2010. The evidence that was adduced on these matters (such as it was) was ultimately of considerable import to the disposition of the application. Given the issues in the matter it is necessary to set out my assessment of credibility of the witnesses for the applicant and the respondent. The views that I express were formed at the time of the hearing and confirmed upon reading the transcript. The applicant The applicant gave evidence and was cross examined. The applicant adopted his affidavit referred to earlier. A lot of the applicant’s affidavit was devoted to events prior to those that were ultimately central to the determination of this application. In relation to those events in late July/August 2010 the applicant deposed: “29. A meeting then took place on 29 July 2010. The meeting was conducted by Melissa King and Steven Dickson on behalf of the Council. I was told that I should not drive a vehicle for work. I said that basically, this meant that I could no longer perform my duties as at least 50% or more of my duties involved interacting with the community via vehicle use. It was clear to me therefore that my services to Council as Senior Community Safety Officer were very likely at an end. ... 32. In about late July or early August 2010, I was directed by Melissa King to remain in my office during working hours and to provide a daily work activity brief and not to conduct any Council activities on behalf of Council whilst commuting to or from work at weekends. This was further confirmation to me that my employment with the Council was at an end along with the situation of not being permitted by Counsel to drive without a seat belt and Council’s clear statement to me that the seat belt modification was not possible and that there were not suitable alternative vehicles... I told Melissa King when this occurred, and there was no objection from her. What I did on leaving the office would always then be discussed at the weekly meetings with Chief Inspector Cook and Inspector Allan. 33. On about Tuesday 24 August 2010, a meeting took place with Steven Dickson and Melissa King in Steven Dickson’s office. I was informed that I could not do the role. They had looked for an alternative role and the only one available was the Ambassador role, which they also said I could not perform because I have no saliva gland which requires me to take water constantly. They said there were no other roles available at Council and that I should go home after the meeting and get back to them on the following Friday regarding what direction I was going to take. 34. I clearly understood that my employment at Frankston City Council had come to an end. I immediately sought legal advice via the ombudsman and I wrote by email to the ombudsman... ... 36. On 25 August 2010, I was reassessed by my physician and we were able to make adjustments for seat belt use. I would be able to wear a seat belt provided a few ergonomic aspects on the vehicle were met; this meant that no structural change was necessary to any vehicle’s seat belt (initially it was going to be an extension arm from the left of the seat that the seat belt connects to.) These are products available for the obese and pregnant women. The certification was passed on to Council the very next day via email. Now produced and show to me and marked “LLC-20” is a true copy of the email that I sent to Troy Henson, Steven Dickson and others dated 26 August 2010 and which is marked “SD-12” in the Affidavit of Steven Dickson. 37. In my understanding and belief, my employment was already at an end, because of the disability and the Council’s position that the seat belt problem could not be accommodated. I was in a state of distress and I wrote to my Police colleagues about what was happening by email dated 28 August 2010 (“the Police email”). Now produced and shown to me and marked “LLC-21” is a true copy of the Police email. 38. In the Police email, I also advised the Police of a suspect, in accordance with the practice of mutual exchange of suspects referred to in paragraph 4. 39. Council required me to hand in my mobile phone, relocate to another address and to take direction from the Co-ordinator regarding alternative duties. I was also directed to change my work commencement time with Council. 40. I am a single parent with a prep age son at school. I could not comply with this directive, as I had to take my son to school in accordance with the arrangements that had been in place throughout my employment. This arrangement was contrary to the understanding I had with Melissa King regarding my carer responsibilities for my son. I sent an email about this to Steven Dickson and this email is set out as Exhibit “JB 31” in the Affidivit of Jennie Bentley filed in this proceeding. Now produced and shown to me and marked “LLC-22” is a true copy of that exhibit. 41. On 30 August 2010, I handed over the mobile phone, noted that I could not access my computer and my landline was redirected. That afternoon, I was visited by the Co-ordinator of Human Services, Jennie Bentley, and my Line Manager, Steven Dickson. The discussion was about the Police email. My reason for sending it was that the Police were my colleagues and I had a close working relationship with them. I was telling them what was happening and how I felt. As regards the reference to a suspect, that was part of my job. After a somewhat heated discussion, I was ordered to leave the premises and not return. I was informed that I would be on leave with pay. [13] ” Throughout his evidence before the Court the applicant revealed an unwillingness to engage candidly with questions Counsel for the respondent. The refusal to engage directly with suggestions in cross examination that his attitude or behaviour was unreasonable was particularly unedifying. Put simply the applicant’s evidence regarding the claims by the respondent of a lack of candour on his part in completing the health declaration form revealed an unfortunate reticence to engage frankly with the facts. The applicant’s evidence was he hadn’t been wearing a seatbelt since 2002 and he didn’t deem it necessary to tell the respondent when he started. When asked in cross examination about Dr Gu’s diagnosis of parathesia the applicant’s response made clear he wasn’t aware of that medical term or what it meant. The applicant’s evidence in cross examination was also notable for his answers where he repeatedly sought to deflect blame to others or where he sought to dissemble in the face of what to him were no doubt inconvenient facts. The applicant variously claimed at times in his affidavit (and in submissions made on his behalf) that his employment was at an end in late August 2010. Putting to one side that his own affidavit was inconsistent on this issue, his own evidence before the Court belied the truth of this claim. [14] Furthermore the applicant’s own evidence made plain he had been issued with repeated directions by the respondent. Ultimately the applicant’s own evidence corroborated that given by the witnesses for the respondent (to which I will turn) that the applicant was “a law unto himself.” There were a number of points of conflict between the applicant’s evidence and that given by the witnesses for the respondent. One example will suffice to illustrate why I prefer the evidence of the respondent’s witnesses where there is such a conflict. The applicant did not dispute he had been given several directions not to use his own vehicle. However the applicant vigorously maintained the fact he continued to do so had been effectively signed off on by Ms King. The applicant in his evidence before the Court was most insistent in offering the following as an illustration of this claimed tacit approval: “So you were told not to drive and you were told Mr Cuthbertson should drive you if you needed to go somewhere?---She also said, You could drive as well. And in complete disregard for that directive, you drove your won vehicle, didn’t you?--- With her knowledge. Well, I put it to you it wasn’t with her knowledge. You did things off your own bat and then told people later?---I sent her an email. [15] ... Mr Cugura, were you aware that you required prior authorisation for the use of a private vehicle?---No. NO, you weren’t. NO. You just went off and used your vehicle in any event?--- No. I told Melissa that I was going to drive my own vehicle, because I had handed back the council one. [16] ... But, in any event, Mr Cugura, you were told not to, weren’t you?---Not to what? Drive - - -?---I have a lift to Melissa in my vehicle, as well. That’s not true. Ms King will give evidence that she has never been inside your vehicle. In fact, the issue about you not driving was reinforced by Mr Dixon, wasn’t it?---Correct” [17] Later in re-examination his evidence was: “You stated yesterday that you gave Melissa King a lift, and my learned friend said she would give evidence – not she the learned friend, but Melissa King would give evidence that she had never been inside your vehicle. What were the circumstances?--- She needed – her car was being dropped off at the Mazda dealership and she needed a lift back, and I said, “Yep, no worries, I will drive you back to your office”. And she wasn’t the only one that was in my vehicle from Council staff.” [18] In her evidence before the Court Ms King was confronted with this allegation by the applicant and the transcript of her evidence reveals the following exchange on that issue: “Did you ever rescind your directive to him to not to drive a vehicle? Did you ever tell – did you ever give him permission after- withdraw that. Did you ever give him permission after you told him not to drive, to drive a vehicle?---No. It’s alleged by Mr Cugura that on one occasion that you asked to be dropped to pick up your car for servicing, in his affidavit? And that he drove you in his private motor vehicle. Do you recall that?---No, not at all. I don’t remember that. Where is your car usually serviced?---It’s at the Buna Avenue office, and that’s where Ludwig was working. And why is your car serviced at the Buna Avenue office?---All of our work vehicles are serviced at that location.” [19] This exchange belies the veracity of the applicant’s claim that he gave a lift to Ms King. It is inexplicable given how definitive the applicant was in making this claim that if the applicant had driven Ms King as he claimed he wouldn’t have mentioned Ms King’s car was serviced at the depot but he didn’t do so. There was no explanation given in relation to this disjunct in his evidence and I don’t accept his claim in this regard. The applicant’s claim on this issue was consistent with a lot of his evidence which contained many half assertions and where he frequently spoke in an oblique way and left inferences hanging. Having had the opportunity to observe the applicant give evidence and be cross-examined it is clear he regards himself as having been unfairly dealt with by the respondent. However his application before the Court was of a much more precise and particular nature and it is that issue only that the Court must determine. Dr Cheng-Jie Gu Dr Cheng-Jie Ghu swore an affidavit on which the applicant relied. Dr Ghu gave evidence and was cross examined. Dr Ghu adopted her affidavit. Dr Ghu’s evidence was the applicant had been her patient since 2008 and she was of the opinion he had parathesia. Dr Ghu’s evidence did however make clear that the applicant’s presentation and in particular what the applicant told her was the principal diagnostic tool on which she formed her opinion. Chief Inspector Cooke Chief Inspector Cooke swore an affidavit on which the applicant relied. Chief Inspector Cooke gave evidence and was cross examined. Chief Inspector Cooke adopted his affidavit. Chief Inspector Cooke’s evidence was necessarily limited and ultimately of, subject to what follows, little forensic assistance to the Court in relation to the issues between the parties given the claim made by the applicant before the Court. However Chief Inspector Cooke’s evidence was notable in one respect when he said in the course of cross examination he raised the issue that he had received the email sent by the applicant with Ms King as he was concerned about the “inappropriateness involved in it”. Inspector Allan Inspector Allan swore an affidavit on which the applicant relied. Inspector Allan gave evidence and was cross examined. Inspector Allan adopted her affidavit. Inspector Allan’s evidence was also necessarily limited and like that of Chief Inspector Cooke was of little assistance in relation to the claim made by the applicant before the Court. Melissa King Ms King gave evidence and was cross examined. She adopted her affidavit referred to earlier. Ms King is the co-ordinator responsible for the area in which the applicant worked and was the manager responsible for him in 2010. Ms King had deposed inter alia that: “69. After Ludwig’s return from leave on or about 5 July 2010, I requested that Ludwig complete a daily log. There were a number of reasons for me doing this. Firstly because of Council’s community safety priority and the mobile cameras were a politically sensitive area for Council, secondly the mobile cameras were something that Councillors often sought information about so that they could supply information to the community and I was particularly interested in obtaining the details from such a log because despite my never having approved Ludwig to work on weekends, he continued to do so contrary to my directive and it would enable me to keep track of Ludwig’s day to day movements as we worked out of different offices. I initially discussed this requirement to complete a daily log with Ludwig verbally. I then followed up our verbal discussion with an email asking for Ludwig’s comments on a draft daily reporting sheet. Now produced and shown to me and marked MK30 is a true copy of my email to Ludwig as to the proposed daily reporting sheet dated 8 July 2010. 70. Approximately 90 minutes after I sent my email referred to in paragraph 69 above, Ludwig responded. His email was critical and openly negative. It read as follows: “Hi Melissa, My Comments: Micro-managing 101 – it could be time to hit the streets! This will backfire as it will highlight inefficiencies with the department; EG. Wanted to do XYZ, unable due to ABC. This is not a good thing and doesn’t help with time management, trust or respect of staff – This will cause resentment and ramifications if our department (Community Safety) is singled out with this daily report monitoring. I strongly recommend a monthly brief which we can improve on and forwarded [sic] to Councillors to read – it became quite clear that no one is reading these briefs simply by the way HR reacted when I had been interviewed recently. At the moment I am disappointed with Frankston City Council and how it deals with some basic requests for me to excel in my role, not to mention the financial aspect – I don’t want to be some sort of corporate martyr by making do with what’s on offer and continually having to stick my hand in my pocket, to simply progress with my work / service to the community. Regards, Ludwig”. Now produced and shown to me and marked MK31 is a true copy of Ludwig’s email to me of 8 July 2010.” [20] To understand Ms King’s evidence on this issue, it is important to put it in context. It will be recalled that the applicant reported to Ms King. To appreciate the import of her evidence on the difficulties she faced in managing the applicant, it is also necessary to refer to his evidence in reply. Indicative of the applicant’s attitude generally was his evidence in relation to why he had refused to comply with the directions given by Ms King in July 2010 that are referred to above. Tellingly, the applicant’s evidence in response to this was: “As regards the request referred to in paragraph 69 of Melissa’s Affidavit, that I provide a daily log, I did not think this would be a good idea, as it would show the fact that I was largely restricted to doing very little and this would reflect badly on her management skills. That is what I was getting at in my email in reply referred to in paragraph 70 of Melissa’s Affidavit.” [21] In relation to events in late August 2010, Ms King deposed: “On 24 August 2010 Ludwig attended a meeting with Steve and I. At the meeting, the following transpired: 94.1 Steve said to Ludwig that Council was not able to modify a car to suit his personal medical needs and which also satisfied Council’s OH&S responsibilities; 94.2 Ludwig sat there with his arms crossed and said words to the effect of: I don’t agree. Council is just putting up obstacles; 94.3 Steve said that Troy Henderson was presently compiling a written report as to Council’s findings in relation to the vehicle; 94.4 Ludwig said that he believed that Council had simply failed to find a solution to the problem: 94.5 Steve said to Ludwig that as he could no longer drive, he couldn’t perform the duties of his role and that therefore an alternative arrangement was necessary. He said that at least in the interim, Ludwig would be required to report for duties at the Keys Street office where he would be assigned administrative duties in line with his current physical work abilities and which would be consistent with his skills and current level of responsibility; 94.6 Steve said to Ludwig that he could be redeployed at least temporarily into the Ambassador position if he wanted it . Steve said that the position was a Band 5 position but that his current pay level would be maintained for the role if he wished to accept it. Ludwig said to Steve and I that he would think further about that option and Steve offered him until late on the coming Friday to advise as to whether he wished to undertake the Ambassador role. Steve also told Ludwig that as the Ambassador role entailed a lot of walking, he would need to undertake a medical assessment prior to commencing in the role.” [22] Mr Dickson’s evidence to which I will refer shortly was to the same effect. [23] In her evidence before the Court Ms King’s evidence in response to several of the allegations made by the applicant was: “Ms King, could you describe for his Honour Mr Cugura’s demeanour in circumstances when you were giving him directives in the course of his employment?---Yes. I gave Ludwig a direction to complete a daily work sheet of his tasks because I did not know where he was and what he was doing during the day. I wanted to, I suppose, have an idea of what his workload was, but also his area of CCTV cameras was a high priority for Council, and I asked on a number of occasions. I actually even made up a sheet for him, a running sheet, and when I spoke to him he crossed his arms and said, “No, I’m not going to do it”. I mean, if it was something he didn’t agree with, then he didn’t want to do that at all. So he refused that directive. And how would you describe your experience in managing Mr Cugura?---It was extremely difficult. There were several things that I had asked him to seek approval for and I suppose his general practice was not to seek that approval; he would go out and do things anyway. He was basically a law unto himself...” [24] I accept the evidence of Ms King that the applicant refused to follow directions and that he was very difficult to manage. Paul Twaites Mr Twaites gave evidence and was cross examined. Mr Twaites adopted his affidavit referred to earlier. [25] Mr Twaites is the respondent’s fleet services co-ordinator and gave evidence of the respondent’s attempts to get a suitable vehicle for the applicant. Mr Twaites gave evidence of his involvement with, the applicant, and in investigations into replacement vehicles for him between November 2009 and April 2010. Mr Twaites also gave evidence of his investigations into what options could be explored with the respondent’s fleet suppliers. Graham Hayden Mr Hayden gave evidence and was cross examined. Mr Hayden adopted his affidavit referred to earlier. Mr Hayden is the physical services manager for the respondent and gave evidence of his direct involvement with the applicant. That evidence made plain Mr Hayden at least was able to ensure the applicant complied with his directions. Mr Hayden gave evidence of amongst other things a meeting he had with the applicant in April 2010 where directions were issued to the applicant regarding his role and responsibilities were reinforced. [26] Steve Dickson Mr Dickson gave evidence and was cross examined. Mr Dickson adopted his affidavit referred to earlier. [27] Mr Dickson is the safety and compliance manager for the respondent and was the group manager responsible for the area in which the applicant worked at the time of his termination. In relation to the email sent by the applicant to police on 28 August 2010, as noted earlier, the applicant in his affidavit hadn’t denied sending the email and had variously justified sending it on the grounds that the police were his “ colleagues ” and he was “ telling them what was happening and how [he] felt.” [28] Mr Dickson’s evidence was on becoming aware of the email sent by the applicant to Victoria Police on 28 August 2010 that: “45. I discussed the email that Ludwig had sent to Police with Juanita Graves (at the time, Manager Organisation Development) and Jennie Bentley (at the time, Council’s HR Corodinator) a short time later. I said that we should meet with Ludwig about it right away. It was agreed that Jennie would accompany me and Jennie and I then went to see Ludwig. We had to go to Buna Avenue to see him. When we arrived, we sat Ludwig down in his office and I told him that we felt the email was inappropriate and that Council had in fact done a lot of work and were continuing to do so, to try and resolve the issue. I said that the sending of the email was contrary to Council’s expectations of a member of staff and that it was damaging to Council’s reputation. Ludwig showed no remorse and became angry and, for the first time that I had seen, antagonistic. He said words to the effect: I don’t see the problem. I work closely with the police. I can say whatever I think is appropriate to them. Council is being overly sensitive. You guys put your heads in the sand. I get no recognition or support. You make it impossible. It didn’t seem that he had even listened to what we had said. He couldn’t at all see it from our side. At the end of the meeting, Jennie and I told Ludwig that he was stood down on full pay until such time as Council had an opportunity to perform a review of the situation. Ludwig said words to the effect: This is just classic. Outrageous. I felt that Ludwig had become quite testy and I said: we need you to leave now. I escorted Ludwig off Council’s premises. My sense as I was doing so was that I should be careful where I stood in case he took a swing at me. He was so angry.” [29] Contrary to various and contradictory claims made in the applicant’s affidavit, Mr Dickson’s evidence made clear that the applicant was directed to attend for work on 30 August 2010 and hadn’t been terminated. The applicant grudgingly acknowledged this during the course of cross examination. [30] Mr Dickson’s evidence before the Court on the issue of attempts made by the respondent to accommodate and address the applicant’s concerns and continue to employ him whilst still meeting its occupational health and safety responsibilities was consistent with his affidavit where he had deposed: “30. Melissa and I met with Ludwig later that day (namely 24 August 2010). At the meeting I said to Ludwig words to the effect: Look, Troy has reviewed the matter. He’s looked at whether we can do down the path to modify a vehicle. We can modify one but if we do, it destroys the 5 star ANCAP rating as to safety. The question then is, is that a problem for Council. The answer is yes it is. Ludwig seemed to become quite agitated and said words to the affect: I don’t agree with that. Troy is just not asking the right questions. I responded using words to the effect: He has. We’ve looked into it and if we modify the vehicle it does affect the safety of it and that result is unacceptable. Ludwig said words to the effect: You’re not looking for solutions. I then said words to the effect: Gee mate, we’ve done a lot of work. I then told Ludwig that Tony would be preparing a report. Ludwig asked to see the report and I agreed that he would be provided with a copy of it. 31. I then told Ludwig that because he could no longer perform the duties of his role, an alternative arrangement was necessary and that at least in the interim he would be required to report for duties at the Keys Street office where he would be assigned administrative duties which would be in line with his physical work abilities and which would be consistent with his skills and current level of responsibility; and ... 37. On 26 August 2010 at 8.31am I received an email from Ludwig. It had been sent directly to Troy but I had received a copy of it. It read as follows: “Hi Troy/All, After being reassessed by my Doctor (see attached) we have ascertained that I will be able to wear a seatbelt providing the vehicle has the following: Automatic transmission, lumbar support adjustments, ride height – seat at hip level for ease of egress and access, left bolster to be modified to driver’s seat (as noted). These items can be obtained and modified on numerous vehicles on the market and should null and void any issue with providing a vehicle to suit my physical/medical needs. Obviously a goods carrying vehicle with rigid suspension would not be appropriate. I await your next direction – my home email is [email protected] . Regards Ludwig. Now produced and shown to me and marked SD12 is a true copy of Ludwig’s email sent at 8.31am on 26 August 2010. This email also attached a copy of a letter from Ludwig’s doctor. 38. At 12.52pm on 27 August 2010, I sent a response to Ludwig as follows: “Thanks Ludwig, this appears to be good news heading in the right direction. We will need to assess this new information in light of previous statements and hope to do this over the next week. I note that you have not been at work for this week and a medical certificate should be provided to support this absence upon your return. In the interim I would ask when you expect to return to work from your current period of sick leave? As discussed this week when you return could you please attend the Keys Street office as previously advised. Duties will be allocated to you at this office pending a further review of your position in line with this new information that you have presented. I appreciate your ongoing help in this matter Steve.” Now produced and shown to me and marked SD13 is a true copy of my email to Ludwig in this regard. [31] 39. At 1.58pm on 27 August 2010 I receive a response email from Ludwig as follows: “Hi Steven, I welcome your response and expect to return to work on Monday 30 August. So as we don’t compound the issue of the vehicle, I will park my personal vehicle at Buna Ave Seaford which has been the sole employment address from my commencement – this will avoid any added travel (relocation) allowance or parking issues at the Keys Street location. Note: I will not be able to access any of the information that is currently stored on my desktop computer at Buna Ave at the Keys Street location. It will also cause confusion with stakeholders (informants and residents supporting Council’s community safety stance that I have established a personal relationship/partnership with – including Police) that call me directly on the land-line. This relocation will also not avail myself to support the needs of Ian Cuthbertson and Done Bone. If I don’t hear otherwise, I will stick to this arrangement. Kind regards, Ludwig.” Now produced and show to me and marked SD14 is a true copy of the email I received from Ludwig in this regard. 40. I became quite frustrated with Ludwig’s response as this was effectively a failure to follow a direction that I had issued to him and was directly contradictory to the discussion that Melissa and I had had with him during our meeting on 24 August 2010. At 2.59pm on 27 August 2010 I sent an email to Ludwig as follows: “Hi Ludwig, As we discussed last week your duties have been reassigned from CCTV and related operations and accordingly Melissa will deal with any issues flowing from this change in responsibilities. In relation to matters of phone contact your landline will be call forwarded to another officer who will be covering your duties on the short term. You should also hand your mobile phone to Melissa who will have your mobile phone monitored in the same manner as the landline. I am sure we may have some difficulties in this change of responsibilities over the short term however we will deal with them as they arise with your assistance. Accordingly I restate that you should report for duties at the Keys Street office at 8.20am on Monday 30 August 2010 for discussion with Melissa/Paul for your new interim period tasks. To ensure that Council has undertaken all of its OHS responsibilities in relation to your health needs you may be required to attend a medical practitioner appointed by Council to independently assess your specific working requirements. I hope that this can be arranged over the next week. Great to hear that you will be returning to work on Monday!! Steve. Now produced and shown to me and marked SD15 is a true copy of my email sent to Ludwig in this regard.” [32] Mr Dickson appeared a conscientious manager and honest witness. He acknowledged the applicant’s commitment to his work but his evidence made clear he was concerned about the applicant’s inability to accept and follow directions. Mr Dickson’s evidence was not shaken in cross examination and I accept his evidence. Troy Henson Mr Henson gave evidence and was cross examined. Mr Henson adopted his affidavit referred to earlier. [33] Mr Henson is the respondent’s Occupational Health and Safety Consultant and gave evidence of his investigations into and risk assessment of the applicant and any particular requirements needed to accommodate his disability. Mr Henson gave evidence that when he commenced with the respondent in May 2010 he was made aware the applicant claimed he wasn’t required to wear a seat belt. Mr Henson gave evidence that as a result he was concerned the respondent may be breaching its obligations under the occupational health and safety law if it allowed him to do so. Mr Henson’s evidence detailed his investigation into how the respondent could meet its occupational health and safety obligations and his opinion that the respondent should not allow the applicant to drive for work purposes whilst the applicant was not wearing a seat belt. [34] Mr Henson’s evidence was particularly impressive in so far as it revealed the considerable thought given to and investment in trying to accommodate the applicant’s needs and meet the respondent’s occupational health and safety obligations. Jennie Bentley Ms Bentley gave evidence and was cross examined. Ms Bentley adopted her affidavit referred to earlier. [35] Ms Bentley is the respondent’s Human Resources Consultant and gave evidence of her involvement with issues concerning the applicant including the investigation into and the meeting concerning the allegations of the applicant’s misconduct in late August 2010. Ms Bentley gave evidence as to the reasons for creation of roles such as that carried out by the applicant with the aim of reducing rubbish dumping, asset damage and anti social behaviour. Ms Bentley confirmed that the first the respondent knew the applicant had scar tissue that caused problems for him when driving was around November 2009. By reference to documentation held by the respondent Ms Bentley confirmed the applicant had been repeatedly warned about the need to follow the respondent’s policies and procedures. Ms Bentley gave evidence of the concerns raised with the applicant during the course of its investigation into his conduct in sending the police emails on 28 August 2010. Ms Bentley’s evidence was the concerns raised included breaches of the respondent’s email policy and code of conduct. Ms Bentley was not challenged in relation to much of her evidence relating to the events in late August and early September 2010 and I see no reason not to accept her evidence. Michael Eagles Mr Eagles gave evidence and was cross examined. Mr Eagles adopted his affidavit referred to earlier. [36] Mr Eagles, who is an Industrial Relations Consultant, was engaged by the respondent to carry out the two investigations into issues related to the applicant referred to earlier. In his affidavit and in relation to the meeting at which the decision to terminate the applicant’s employment was made, Mr Eagles deposed: “38. I discussed with Ludwig the behaviours and actions he had taken which were unacceptable to Council, including: (a) the email; (b) disobeying lawful directions in driving his own vehicle on Council business when instructed not to; and (c) misleading the Council on the health declaration for the purpose of employment. Finally, I said that Ludwig had refused to accept responsibility and gave no acknowledgement of his actions. I said that he had left Council wide open to scrutiny. I said that he had shown no regret about sending the email and therefore the trust between him and Council was diminished. I also said that not only had Council’s trust in him completely broken down, but his actions had also called into question whether the community could trust him.” [37] In his evidence before the Court Mr Eagles’ evidence in relation to the first investigation concerning the applicant’s complaints was they were unsubstantiated. In relation to the second investigation concerning the applicant’s conduct and sending the emails on 28 August 2010 Mr Eagle’s evidence was that the emails sent by the applicant were completely inappropriate. Mr Eagles gave evidence he believed the applicant had breached directions given to him and the respondent was left with little option given this and the information gathered during the investigation (including that the applicant had misled that investigation) than to terminate the applicant’s employment. Importantly, Mr Eagles evidence was he did not make that decision and it was Ms Graves who made the decision to terminate the applicant’s employment. Mr Eagles was not challenged on his evidence in relation to these matters and I see no reason not to accept his evidence. Juanita Graves Ms Graves gave evidence and was cross examined. Ms Graves adopted her affidavit referred to earlier. [38] Ms Graves is the respondent’s Group Organisation Development Manager and the officer responsible for making the decision to terminate the applicant’s employment. In her affidavit and in relation to the meeting at which the decision to terminate the applicant’s employment was made, Ms Graves deposed: “23. ...Ludwig’s answers to Mick’s questions indicated to me that he had no insight into the fact that his conduct was inappropriate and a serious breach of trust which the Council placed in Ludwig. Further, the answers given and Ludgwig’s demeanour in the interview were quite aggressive and his responses were cynical about Council both in relation to its efforts to find a resolution to the issue with the motor vehicle and its approach in response to the email. ... 26. The decision to terminate Ludwig’s employment related only to the matter of him having sent the email. In making the decision I had no regard to the circumstances and issues relating to Ludwig’s use of a motor vehicle or to his scar. Had Ludwig not sent the email to Police on 28 August 2010, his employment would not have been terminated. Council had taken significant steps to accommodate Ludwig’s physical requirements and when it became apparent that it could not accommodate Ludwig’s physical requirements and when it became apparent that it could not accommodate that with a suitably modified vehicle, it had made suitable alternative arrangements to redeploy him in a position that would accommodate his needs, maintain his salary and ensure that Council complied with its OH&S obligations.” [39] In her evidence before the Court, Ms Graves said her impression was that the applicant did what he wanted to do and was “a law unto himself.” Ms Graves’ was asked directly whether she was aware of the applicant having family responsibilities or a disability. [40] However Ms Graves was not challenged in relation to her affidavit evidence or her evidence before the Court as to the reason why the applicant’s employment was terminated. Ms Graves evidence on the reason for the applicant’s termination was unequivocal. In the absence of any challenge to her evidence on this issue I see no reason not to accept that the reasons she gave in her evidence for the termination of the applicant’s employment alone were the reasons. Relevant legislation The Act The applicant’s claim is a general protections court application as defined in s.370(2) of the Act to mean “an application to a Court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.” Section 370(2) is contained in Part 3-1 of the Act. For the purposes of this application the following are the relevant legislative provisions in the Act. Section 336 of the Act provides: “ The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.” Section 340 of the Act provides: “Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4-1).” Section 341 of the Act provides: “Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee--in relation to his or her employment.” Section 351 of the Act provides “(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4-1). (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. (3) Each of the following is an anti-discrimination law: (aa) the Age Discrimination Act 2004 ; (ab) the Disability Discrimination Act 1992 ; (ac) the Racial Discrimination Act 1975 ; (ad) the Sex Discrimination Act 1984 ; (a) the Anti-Discrimination Act 1977 of New South Wales; (b) the Equal Opportunity Act 1995 of Victoria; (c) the Anti-Discrimination Act 1991 of Queensland; (d) the Equal Opportunity Act 1984 of Western Australia; (e) the Equal Opportunity Act 1984 of South Australia; (f) the Anti-Discrimination Act 1998 of Tasmania; (g) the Discrimination Act 1991 of the Australian Capital Territory; (h) the Anti-Discrimination Act of the Northern Territory.” Section 360 of the Act provides: “Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.” Section 361 of the Act provides: “Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction.” The Disability Discrimination Act The applicant submitted that the Disability Discrimination Act 1992 had relevance to his claim under the Act. Section 4 of the Disability Discrimination Act 1992 provides: "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 (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.” Sections 5 and 6 of that Act provide: “5. Direct 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, 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: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) 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. 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: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) 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 (c) 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: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) 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 (c) 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. (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.” Approach to legislative provisions The provisions in the Act that arise for consideration in these proceedings were considered by the Full Court of the Federal Court in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCA FC 14 (“ Barclay ”). In that case the majority said (albeit in the context of considering the provisions of s.346 in Part 3 - 1 of the Fair Work Act ) at paragraphs [27] to [34] that: “[27] The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it “ because ” the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347. [28] The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “ real reason ” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. [29] So much is evident from the use of the word “ because ”. It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word “ because ” is utilised: see in particular Purvis at [142]–[166] per McHugh and Kirby JJ and at [234]–[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515 at [31] per Carr J, [61]–[63] per Kiefel J and [151] per Allsop J. [30] Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct ( Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 at [216] ), or between the cause of conduct and the reason for conduct ( Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125: (i) The Act and the authorities do not distinguish between a “ reason ” and a “ factor ”; indeed, in Bowling , these terms are used interchangeably. [31] Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of “ because ” and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason. [32] The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision — in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be “ dissociated from the circumstances ” that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity. [33] It is important, however, to appreciate that not all of the circumstances specified by s 346 (in conjunction with s 347) are circumstances specified for the purpose of identifying whether the causal link of an operative reason exists. Objective facts, dependent on the determination of questions of mixed fact and law, have now been included in s 346 to a much greater extent than they were in the section’s predecessors. Section 347 is replete with examples. For instance “ lawful activity ” in (b)(ii) and (iii) and “ lawful request ” in (b)(iv). Whether a person is or is not a member or officer of an industrial association is also a fact to be ascertained objectively by reference to a legal standard, usually the rules of the association. [34] It is for an applicant to prove the existence of objective facts of the kind we have identified: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590 at [44] and the cases there cited. The specification in ss 346 and 347 of facts of this kind is designed to delineate the area of protection from adverse action afforded by s 346. For instance, an employee is not protected by s 346 (in conjunction with s 347(b)(ii)) where the activity promoted for or on behalf of an industrial association is not a lawful activity. However, it is not necessary that the subjective belief held by the person accused of the adverse action about such a fact should correlate with the legal conclusion as to the existence or non-existence of that fact. Thus a contravention of s 346 (in conjunction with s 347(b)(ii)) may occur where the activity promoted by the employee was lawful, but where the employer taking the adverse action held a subjective belief that it was not. In such a case, a failure by the employer to establish that the real reason for the taking of the adverse action was dissociated from the circumstance that the employee was promoting a lawful activity for or on behalf of an industrial association will result in a finding of contravention, irrespective of the employer’s subjective belief that the activity was unlawful. The “connection” between the adverse action and the industrial activity will be sufficiently made out in those circumstances: see the Explanatory Memorandum at para 1400.” In addition to the decision in Barclay (supra) the legislative provisions relevant to this application have been considered in a subsequent Full Court decision in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 , (“ Khiani ”) where at paragraphs [31] to [36] it was said: “31. ...A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right. 32. The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. In the present case, the appellant’s further amended application identified injury in her employment “by workplace stress due to underperformance action imposed and employment terminated”; alteration of the appellant’s position to her prejudice “by imposing underperformance action”; and discrimination between the appellant and other employees of the respondent, the nature of which was not explained by means of particulars or otherwise. To the extent to which the appellant raised allegations of adverse action prior to 1 July 2009, including the decision to review her performance and the actions taken in respect of that review, the primary judge was correct to say that it was not open to the appellant to allege adverse action, because the Fair Work Act is not retrospective in its application. The appellant could have amended her claim to rely on the provisions of the Workplace Relations Act that continue to operate in respect of conduct prior to 1 July 2009, if she wished to contend that what was done in relation to her performance review prior to that date was adverse action. She did not do so. Accordingly, as the primary judge said, it was only the preliminary decision and the final decision to terminate the appellant’s employment to which the appellant could point as adverse action. 33. To the extent to which the appellant attempted to claim on appeal that the requirement to respond within seven days to the preliminary decision amounted to the taking of adverse action, there is a question whether she was attempting to make a case she had not made before the primary judge. Although, at one point when she was addressing the primary judge during the trial, the appellant said that she was asked to respond to the preliminary decision while she was on sick leave and that she had responded, stating that she was on sick leave, she did not appear to be raising this issue as an aspect of adverse action. Her complaint was that Ms Jones did not give any consideration to the fact that she was on sick leave. If the appellant were intending to raise this form of adverse action by that submission, she was doing so in final addresses, after Ms Jones had given evidence. An attempt to raise the issue on appeal has the effect of depriving the respondent of the opportunity to call evidence specifically in relation to it. As the respondent carried the onus of proving, on the balance of probabilities, of the absence of a causal connection between adverse action and a right to take, or the taking of, sick leave, pursuant to s 361(1) of the Fair Work Act (with the exception of the interim injunction claim, which does not appear to have been pursued in any event), the appellant ought not to be permitted to raise a new claim of adverse action on appeal. 34. The question therefore is whether the adverse action to which the preliminary decision and the final decision to terminate the appellant’s employment amounted was taken because the appellant had a right to sick leave or had exercised it. The same question arises in relation to sick leave as a workplace right, pursuant to s 340(1) , or because of the direct ban on dismissal during temporary absence from work because of illness or injury, pursuant to s 352 of the Fair Work Act . In each case, the respondent was required to prove that neither the preliminary decision nor the final decision was taken because the appellant was on sick leave. 35. The primary judge accepted that the written reasons for the preliminary decision, and for the final decision, were the operative reasons for those decisions. The reasons for making those decisions did not include the fact that the appellant was on sick leave. 36. At [64] of her reasons for judgment, the primary judge said that the appellant had “not established that the adverse action against her was taken because of a workplace right.” That conclusion involved a misstatement of the incidence of the onus of proof. Pursuant to s 361 of the Fair Work Act , the onus of proof as to causation fell on the respondent. Despite this error, it is clear from what was said earlier in her Honour’s reasons for judgment that the respondent had discharged its onus in relation to both the preliminary decision and the final decision. The primary judge accepted the evidence of Ms Jones as to what her reasons were. She did so in the context of the circumstances of the case, which would have made the opposite conclusion remarkable. The fact that there was a temporal connection between the adverse action and the taking of leave by the appellant did not require the conclusion that there was a causal connection. In circumstances in which the preliminary decision and the final decision were the culmination of a long process of attempting to review the performance of the appellant, in which she failed to achieve a satisfactory level of performance and otherwise frustrated the conduct of the process, makes it abundantly clear that the respondent was not simply taking advantage of the fact that the appellant was on leave in order to dismiss her.” Given the applicant’s position in submissions, in relation to the provisions of the Disability Discrimination Act , it is useful to consider what was said by Cameron FM in Hodkinson v The Commonwealth [2011] FMCA 171 where in a case that also considered an application under the Act similar to that presently before the Court and where at paragraphs [138] to [147] His Honour said: “138. Section 351 of the FWA relevantly prohibits an employer from taking adverse action against an employee because of the latter’s physical or mental disability. Section 351(2) provides, amongst other things, that that prohibition does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken. Section 351(3) defines “anti-discrimination law” to include, relevantly, the Disability Discrimination Act . 139. The applicant submitted that her dismissal was taken “for a reason which included her physical disability, in a manner which breaches the provision fo [sic] the DD Act”. She postulated some interaction between s.351 and the Disability Discrimination Act , particularly its ss.5 and 6 which, for the purposes of that Act, define direct and indirect disability discrimination. Although the applicant’s submissions concerning the allegedly discriminatory conduct of the respondent, and the possible relevance of the Disability Discrimination Act to s.351, related principally to her allegations of injury in employment, alteration of her position to her detriment and discrimination between employees, they are also relevant to her allegation that her dismissal contravened s.351. Consequently, it is useful at this point to consider whether the interpretation of s.351 and its prohibition on adverse action because of an employee’s disability is affected or informed by the content of the Disability Discrimination Act , particularly as the applicant has also submitted that that Act’s definition of disability should be taken into account when interpreting that word where it appears in s.351. 140. Although s.351 is headed “Discrimination” this heading is not to be taken as part of the Act: s.13(3), Acts Interpretation Act 1901 . The section does not prohibit “discrimination” as such but, rather, identifies conduct which is generally considered to be discriminatory. It is by demonstrating the occurrence of adverse action and the fact that it was motivated for a reason prohibited by s.351(1), such as a person’s disability, that a contravention is proved. The criteria found in s.351(1) rely in no way on the Disability Discrimination Act . 141. Further, s.351 does not employ the word “discrimination” other than as a term by which to identify other Acts which provide exceptions to the operation of s.351(1). The absence of that word from the list of prohibited reasons for adverse action found in s.351(1) means that there is no grammatical link between that sub-section and ss.5 and 6 of the Disability Discrimination Act . There is, therefore, no term in s.351(1) whose proper construction may be understood by reference to what is contained in ss.5 and 6 of the Disability Discrimination Act . 142. Additionally, the fact that s.351(1)’s operation is limited by reference to exceptions derived from anti-discrimination legislation provides no basis to conclude that other features of those Acts should also influence the operation of s.351. Section 351(2) is dependent upon s.351(1) and is concerned with limiting s.351(1)’s scope, not with expanding it. Consequently, the fact that certain conduct mentioned in the Disability Discrimination Act is expressly excluded from the reach of s.351(1) does not, in the circumstances, suggest that conduct mentioned in the Disability Discrimination Act which is not so excluded is to be included in the proscriptions in s.351(1) other than to the extent that the sub-section’s express terms already prohibit it. That is to say, s.351(2)’s exclusion of certain conduct from the operation of s.351(1) by reference to, amongst others, the Disability Discrimination Act , is insufficient to incorporate into s.351(1) conduct referred to in those Acts which is not excepted by s.351(2). 143. For these reasons, conduct which contravenes the Disability Discrimination Act does not, by reason of that contravention, also contravene the FWA. 144. The applicant’s allegation of disability discrimination also raises the question of the proper interpretation of the word “disability” where it appears in s.351(1). If a term is used in different statutes in different contexts, then the definition of that term in one statute is unlikely to assist in interpreting that term in the other: M Collins & Son Ltd v Bankstown Municipal Council (1958) 3 LGRA 216 per Sugerman J at 220. However, if the two statutes deal with related concepts then a definition in one may assist in the interpretation of the other although it will not fix the meaning of the term in the second statute: R v Scott (1990) 20 NSWLR 72 per Gleeson CJ at 77. 145. Disability is defined in s.4 of the Disability Discrimination Act in the terms quoted above at [15]. That definition appears to reflect the particular objects of the Disability Discrimination Act . By contrast, nothing about the way the word “disability” is used in s.351(1) suggests that it should be understood other than according to its ordinary meaning or that it should have the extended meaning which it is given in the Disability Discrimination Act . To the extent that the Disability Discrimination Act defines “disability” in terms consonant with the ordinary meaning of that word, it can assist in its interpretation where it appears in s.351(1). However, it is by reference to that ordinary meaning that it should be understood. In that regard, the Macquarie Dictionary (5th ed.) relevantly defines “disability” as: 1. lack of competent power, strength, or physical or mental ability; incapacity. 2. a particular physical or mental weakness or incapacity. Further, the Shorter Oxford English Dictionary (6th ed.) relevantly defines “disability” as: 3. An instance of lacking ability; now spec. a physical or mental condition (usu. permanent) that limits a person’s movements, activities, or senses. 146. Where it is used in s.351(1), I conclude that the word “disability” should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act . Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them. 147. Allegations that adverse action has been taken because of a person’s disability should be made and particularised clearly. In proceedings under the Disability Discrimination Act , it has been held that the precise identification of the alleged disability is critical to an allegation of disability discrimination: Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at 567 [89] per French and Jacobson JJ; Stevenson v Murdoch Community Services Inc [2010] FCA 648 at [87] . The same requirement should apply to allegations under the FWA that adverse action has been taken because of an employee’s disability.” In Farah v Ahn & Anor [2012] FMCA at [70] to [75] Smith FM dealt with s.351 of the Act, reveiwed the authorities referred to earlier in these reasons and at paragraph 75 said: “As I noted in Stephens v Australian Postal Corporation (No.2 ) (sic) [2011] FMCA 448 at [83] , their Honours in Barclay also pointed out the limited role of a test of discriminatory treatment by comparison with other employees. Subsection 351(1) raises only a test whether one of its specified attributed of the employee provided one of the ‘real reasons’ for the particular dismissal. If it did, then the employer has contravened the section, unless the action is found not to be unlawful under the anti-discrimination legislation listed in s.351(3) or one of the other defences under s.351(2) is established by the employer.” As was made clear in submissions before the Court at the conclusion of the trial the respondent in this case does not seek to justify the termination of the applicant because of his disability. Rather, the respondent asks the Court to find that his disability was not the, or a, reason for his termination. The respondent maintains the applicant was terminated because of misconduct. However, I note what was said by Marshall J, in Sallehpour v Fronteir Software Pty Ltd [2005] FCA at [38], where his Honour pointed out that proceedings of this sort do not call upon the Court to determine whether the termination of the applicant’s employment was in itself fair or unfair. [41] Submissions As noted earlier the parties filed written submission on which they relied at trial. [42] Applicant’s Submissions In the applicant’s written submissions filed on 28 February 2012 so far as is presently relevant it had been submitted: “The Applicant submits that in the circumstances set out in his Affidavit materials, that he was dismissed from his employment with the Respondent because of, or for reasons that included, his disability, which constituted adverse action against him in terms of section 342(1) Item 1(a) of the Fair Work Act 2009 (“The FWA”) and breached Section 351 (1) of the FWA. ... 3. At all material times the Applicant suffered from paresthesia associated with a large scar, resulting from surgery to his left kidney (“the disability”) (paragraph 8). He had a letter from his doctor which enabled him to drive a vehicle without wearing a seat belt (paragraph 9). The Applicant also refers to the Affidavit of Dr Cheng-Jie Gu dated 15 December 2011 filed and served herein. 4. The paresthesia constitutes a disorder, malformation or disfigurement of the Applicant’s body and is a disability, physical disability or impairment for the purposes of the Disability Discrimination Act 1992 (Commonwealth) (“the DDA”), the Equal Opportunity Act 1995 (Victoria) (“the EOA”) and the FWA. 5. As a consequence of the disability, the wearing of a seatbelt, whilst driving made the symptoms of the disability worse (paragraphs 8 and 9 and the exhibit “LLC-8” referred to therein and the said Affidavit of Dr Cheng-Jie Gu) which manifestation of the disability is hereafter called (“the disability manifestation”). 6. Initially it was not foreseeable that the disability manifestation would affect his employment. It was not until the actual experience of driving the vehicle provided by the Respondent and the significant pain, this caused him, that he first reported the disability manifestation to the Respondent at the review of his employment in September 2009. From that time, he Respondent knew of the disability and the disability manifestation (paragraphs 10 to 12). 7. The Applicant sought the assistance of the Respondent in finding him a suitable vehicle to avoid exacerbation of the disability (paragraphs 10 to 12). 8. Although the Respondent attempted to find the Applicant a suitable vehicle, it ultimately failed to do so. ... 11. The failure of the Respondent to provide reasonable accommodation of the disability led it unnecessarily and unreasonably to conclude that the Applicant could not perform the inherent requirements of his position and told him so at the meeting that took place on 29 July 2010 by advising him that he could not drive a vehicle for work (paragraph 29). 12. The Respondent’s position regarding the Applicant not driving in connection with his work for the Respondent was reinforced by the Respondent at the meeting that took place on 24 August 2010 and caused the Applicant reasonably to conclude that his position as Senior Community Safety Officer – Security Cameras was effectively terminated at that stage (paragraphs 33 and 34). The Applicant submits that this situation arose because of the disability and the Respondent’s failure to accommodate it. ... 16. The stand down by the Respondent of the Applicant from his normal duties was because of the disability and the alleged inability of the Respondent to accommodate the disability and led to the Applicant becoming ill and requiring time off work. The Applicant was highly distressed and emotional at the action of the Respondent in standing him down. In this state of mind he wrote to his Police colleagues in terms of the Police email. ... 20. It is submitted that the Applicant would not have been stood down from driving, removed from his position with the Respondent and subsequently dismissed had the Respondent reasonably accommodated his disability by providing an alternative or modified vehicle or even been prepared to allow him to use his own vehicle with an appropriate allowance. There is a direct link between the disability and the dismissal. The Applicant was, in the circumstances, dismissed because of the disability, or for reasons that included the disability, contrary to Section 15 of the DDA and Section 14 of the EOA. This constituted adverse action against him in terms of Section 342 (1) Item 1(a) of the FWA and breached Section 351 (1) of the FWA.” At the conclusion of the evidence the applicant through his Counsel confirmed he relied on those submissions. Tellingly, Counsel for the applicant acknowledged it had never been put to the respondent’s witnesses (and in particular the decision maker, Ms Graves) that the applicant’s employment had been terminated because of or for reasons including a physical disability or family responsibilities. In relation to the applicant’s reliance on the proscribed reason of physical disability, Counsel for the applicant claimed the disability in this case was the applicant was “unable to have things close to that part of his torso” and was “unable to wear a seat belt as a result”. Counsel for the applicant acknowledged the applicant had admitted sending the emails after which the respondent had stood him down and (following an investigation) terminated his employment. However Counsel for the applicant argued the applicant had sent the emails because the respondent could not find the applicant a car and the applicant who was “passionate” about his position had been “removed” from his role. It was submitted it was “ understandable” (at the time of sending the emails) for the applicant to think his employment was at an end. Notwithstanding the failure to put this to the respondent’s witnesses Counsel for the applicant in reference to the emails sent by her client attempted to argue that there was a nexus between the applicant’s physical disability and his termination by contending that the applicant sent the emails in a “state of mind brought on by the disability that didn’t enable him to wear a seatbelt”. Counsel for the applicant, in a submission that was difficult to follow, argued that but for the action taken against the applicant (the claimed removal from the position and what was said to be the applicant’s “not unnatural reaction”) the applicant would not have sent the emails. Counsel for the applicant argued the emails provided the respondent with the opportunity to solve the problem of providing the applicant with a car or what to do with him. Counsel for the applicant, understandably in light of the evidence made no submissions before the Court in relation to the issue of family responsibilities. Respondent’s submissions The respondent’s written submissions filed on 16 February 2012 it was submitted: “... 54. It is not disputed that the applicant was dismissed by the respondent, it is although submitted that the termination of the applicant’s employment was for reasons other than a physical disability, namely that he engaged in gross misconduct. 55. Section 342(1) Item (1)(d) is the only adverse action circumstance which contemplates a comparator. [43] That is, a comparison between the Applicant and another employee without the attribute, who behaved in a similar manner to the Applicant. [44] ... 63. An applicant must adequately identify the physical disability from which he alleges he suffers [45] . On the material filed by the applicant it would appear that the disability is described as parathesia. 64. If the applicant discharges the onus upon him, the onus of proof then shifts to the respondent to show that it did not engage in adverse action “because” of the disability which the applicant describes as parathesia. 65. It is submitted that the real or operative reason for dismissal [46] of the applicant by the respondent was gross misconduct constituted by: (a) the sending out of the content of the email referred to in paragraphs 43 and 44; (b) the failure to comply with the respondent’s code of conduct; (c) the failure to comply with all reasonable and lawful directions in the course of his employment; (d) general insubordination. 66. In so far as it is alleged that the respondent discriminated between the applicant and other employees (which is specifically denied), it is submitted that: (a) it took all reasonable steps to accommodate the applicant’s requirements; (b) the applicant’s requirements could not be met due to occupational health and safety requirements in the workplace; (c) it treated the applicant in the same manner as any employee who sought accommodations in the workplace; (d) it treated the applicant in the same manner as it would any employee who engaged in conduct of a similar or like nature to that in which the applicant engaged in, namely: i. the sending of and the content of the email referred to in paragraphs 43 and 44; ii. failing to comply with the respondent’s code of conduct; iii. failing to comply with reasonable and lawful directions in the course of his employment. 67. It is submitted that the respondent has gone to great lengths to attempt to accommodate the disability alleged to be suffered by the applicant including extensive research into potential accommodations and providing alternative duties. It was a primary concern to the respondent that it met both statutory and internal occupational health and safety requirements. 68. The respondent sought advices on its occupational health and safety obligations to an employee particularly in regard to modifying a vehicle or giving the applicant dispensation to drive without a seatbelt. In considering the interaction between an employer’s obligations under the Equal Opportunity Act 1995 (Vic) ( EO Act ) and the Occupational Health & Safety Act (Vic) ( OH&S Act ) the Court of Appeal held as follows: “Although the matter is not free from difficulty, I have formed the view that Mr Kaye's submissions are correct. S21(4)(d) of the EO Act assumes that the discrimination to which it refers has occurred. The only question is whether it is authorized by or under a law of Victoria. Where an employer has introduced, pursuant to obligations imposed upon it by the law of Victoria, a regime of work practices Appropriately designed to secure, inter alia, the health and safety of a category of employees, it must, in my view, be authorized by that law to implement that regime without concern as to whether such implementation is operating discriminately or not. It is true, as his Honour remarked, that the EO Act is concerned with individuals and whether those individuals have been discriminated against on the ground of status; but it is equally true that the EO Act is not concerned with discrimination per se but with whether such discrimination is unlawful. In dealing with the issue of alleged "discrimination in employment", s21 requires the Tribunal to be satisfied not only that discrimination has occurred but that the discrimination is unlawful in the sense, inter alia, that it is not authorized by a law of the State. In circumstances where an employee is contending that he has been discriminated against by the application of a policy which has been developed by his employer in conformity with its legal obligation to safeguard persons, including that employee, against risks to their health, it seems to me that it could scarcely have been the legislative intention that it was for the Tribunal to determine whether the policy operated in an unlawfully discriminatory way depending upon its view of whether the policy should have been applied to a particular individual. For otherwise it would mean in the long run that employers are powerless to introduce safety standards for specific work practices because a tribunal of fact, which has no legal responsibility for setting those standards, can effectively modify them in respect of particular individuals and can, thus, expose the employer to future liability to those individuals in the event that harm befalls them. One can conceive of many circumstances in which an employer of a large work-force might wish to set safety standards, albeit potentially discriminatory in nature, to protect a particular class of that work-force in fulfilment of the obligations which the law imposes upon it as an employer. It would, in my view, be wholly destructive of those obligations if the Tribunal, constituted by the EO Act, were free to conclude, as a matter of fact, that the application of the standards was not authorized in respect of a particular member of the class. Indeed, if the question to be asked in each case is whether the Tribunal, on the facts, is satisfied that the employer's policy could not apply to the claimant, rather than whether it is satisfied that the employer, in good faith, applied its policy to the claimant, then it seems to me that the existence and purpose of the policy, as an instrument of authorized discrimination, becomes meaningless, as does the application of s21(4)(d).” [47] 69. It is submitted that the decision of the Court of Appeal gives rise to a defence at section 351(2)(a) of the FW Act namely that the discrimination (which is specifically denied) was not unlawful under the EO Act as the respondent was complying with its obligations under the OH&S Act. 70. Further it is submitted that the applicant was unable to perform the inherent requirements of his job at the time he was stood down because he was unable to comply with the respondent’s occupational health and safety requirements with respect to driving a motor vehicle while undertaking his duties. It is the evidence of the applicant that he was only able to perform 50 percent of his duties if he was unable to drive a motor vehicle. Accordingly it is submitted that section 351(1) does not apply to the respondent’s action by reason of section 351(2)(b). 71. In so far as it is alleged that the respondent discriminated between the applicant and other employees (which is specifically denied), it is submitted that: (a) the respondent took all reasonable steps to accommodate the applicant’s requirements; (b) the applicant’s requirements could not be meet due to occupational health and safety requirements in the workplace; (c) the respondent treated the applicant in the same manner as any employee who sought accommodations in the workplace; (d) the respondent treated the applicant in the same manner as it would any employee who engaged in conduct of a similar or like nature to that in which the applicant engaged in, namely: i. the sending of and the content of the email referred to in paragraph 43 and 44; ii. failing to comply with the respondent’s code of conduct; iii. the failure to comply with reasonable and lawful directions in the course of his employment. 72. It is submitted that by reason of the matters referred to, the applicant’s claim pursuant to section 351 of the FW Act must be dismissed.” In oral submissions before the Court at the conclusion of the evidence Counsel for the respondent submitted by reference to the authorities referred to above that the applicant bore the onus to establish the prescribed attribute (i.e. disability and family responsibilities). Counsel for the respondent noted the applicant had to indentify the disability with particularity and it was submitted that the applicant had failed to do so. It was submitted in so far as the applicant had sought to rely on family responsibilities the applicant had not led to evidence capable of establishing this particularly given the evidence of Ms King and Mr Dickson. Counsel for the respondent with reference to the Full Courts decision in Khiani (supra) submitted that the reason for the termination of the applicant’s employment was not because he had family responsibilities or a physical disability. By reference to the evidence of Ms Graves, Mr Eagles and the applicant’s own evidence it was submitted that the operative reasons for the termination of the applicants employment were “dissociated” from his physical disability or family responsibilities. Counsel for the respondent by reference to the evidence of Ms King, Mr Dickson, Ms Bentley, Mr Eagles and Ms Graves submitted that any temporal nexus between the applicant’s physical disability and the termination was broken by the events in late August and early September 2010. Accordingly it was submitted the Court should find the reason for the termination of the applicant’s employment was not for and did not include a physical disability or family responsibilities. Consideration I have not recited, nor do I intend to recite all of the evidence that was presented at hearing, although all of that evidence has been considered and taken into account. A number of matters that were raised in evidence and put in submissions by both parties had little or no bearing on the matter before the Court and so won’t be rehearsed further. As Smith FM said in Stephens v Australian Postal Corporation [2011] FMCA 448 under s.551 of the Act the factual issues are to be determined in accordance with the rules of evidence, including the ‘balance of probabilities’ standard of satisfaction in civil proceedings, but taking into account the matters identified in s.140(2) of the Evidence Act 1995 (Cth). [48] Whilst the evidence was the applicant had been at times commended for his work, it was also clear, that the applicant regarded himself as unique and behaved accordingly. This behaviour ranged from how he responded to requests or directions from his managers to how he believed he could interact with police. The applicant may very well have been an enthusiastic employee however the evidence also discloses someone who bridled against being made accountable for his actions or compliance with the respondent’s policies and procedures and repeatedly failed to follow directions which didn’t suit him. Whilst it wasn’t entirely clear from the evidence before the Court the applicant believed he didn’t have to wear a seatbelt due to the parathesia referred to in Dr Gu’s medical certificate. The respondent, as the evidence of its witnesses (including Ms King, Mr Dickson, and Mr Henson) made clear had concerns about its ability to meet its occupational safety obligations both in relation to the applicant’s stated concerns about the suitability of vehicles provided to him, any modifications it could make, and irrespective of these matters the applicant driving (even his own vehicle) without a seatbelt. It was not until 26 August 2010 that the applicant presented the respondent with a medical certificate from Dr Gu (the second such certificate) [49] that the applicant claimed allowed him to wear a seatbelt subject to certain conditions. Ms King and Mr Dickson made clear in their evidence that the applicant was being redeployed whilst the respondent reassessed the situation in light of the latest advice from Dr Gu but that the applicant had work to do at Keys Street and other opportunities that could be pursued and that he had not been terminated. The uncontroversial evidence is after being advised by Mr Dickson that on his return to work he was expected to carry out duties at the Key Street office as part of the Community Safety Team that the applicant sent the emails referred to earlier. Whilst a great deal of time at trial was devoted to questioning whether the emails (which were copies of those sent by the applicant on 28 August 2010 exhibited to Ms King’s affidavit) had been altered the applicant did not deny sending the emails to the police. The submission on behalf of the applicant made at the conclusion of the trial attempted to deal with the applicant’s acknowledgment that he sent the email by claiming that he sent the emails in a state of mind brought on by the disability that didn’t enable him to wear a seatbelt. As set out earlier the respondent’s key witness and the person who made the decision to terminate the applicant’s employment denied that the action it took against the applicant (i.e. the termination) was for the reason or for reasons including his physical disability or family responsibilities. There is no dispute that the action taken against the applicant (the termination) and alleged by the applicant to constitute adverse action occurred as a matter of fact and was adverse action within the meaning of that term as set out in s.341 of the Act. In Stephens v Australia Postal Corporation [2011] FMCA 448 at paragraph 83 Smith FM was called on to consider the same provisions of the Act presently under consideration in the context of a general protections claim before him. His Honour said: “83. It is important to note the relevance to s.351 of observations in Barclay , which limited the confining effects under some discrimination laws of the High Court’s reasoning in Purvis (supra). As they observed, the categories of ‘adverse action’ defined in s.342 only raise a test of discriminatory treatment by comparison with other employees , where that action alone is alleged as the adverse action. They noted: 35. The central question in Purvis was whether a disabled child whose disability caused him to behave violently at school had been discriminated against, in contravention of s 5(1) of the Disability Discrimination Act 1992 (Cth), by being excluded from the school. The High Court held that the relevant comparison, for the purposes of determining whether such a contravention had occurred, was between the child concerned and another child without the disability, but who had behaved in a similarly violent way. See Gleeson CJ at [12], Gummow, Hayne and Heydon JJ at [221]-[225] and Callinan J at [273]. With the exception of para (d) of item 1 of the table in s 342, which extends the concept of adverse action by an employer against an employee to discrimination between that employee and other employees of the employer, the provisions of Divs 3 and 4 of Pt 3 - 1 of the Fair Work Act do not require that any comparison be undertaken between the treatment of the employee in question and any other employee or employees, actual or notional, who acted in the same way as the employee in question. The provisions focus on the protection of the person who has a particular attribute, or engages in particular activity, without regard to how others might be treated if they did not have the benefit of the protection afforded by the provisions. It is not to the point to say that any other employee who acted in the same way would have been subject to the same discipline. 36. In applying the provisions of ss 341 and 346 of the Fair Work Act , except when the adverse action alleged is confined to discrimination when compared with other employees of the employer, a comparative test of the kind dealt with by the High Court in Purvis is not appropriate. 84. These observations have particular pertinence to the application of s.351(1) , since they point out that the section does not raise any comparison test, except where the ‘adverse action’ which is alleged to have occurred for the purposes of s.351(1) was adverse action defined under s.342(1) item 1(d). Where the adverse action is alleged, for example, to have been ‘dismisses the employee’ within item 1(a), a contravention is established by showing the proscribed reason for the particular action, without any added test of comparison with employees not having the relevant attribute. Even if that adverse action was non-discriminatory by comparison with other employees, the employer can only escape contravention of s.351(1) by establishing one of the special defences under s.342(2). ...” His Honour then went on at paragraph 85 of his decision to refer to the decision of Cameron FM in Hodkinson v The Commonwealth [2011] FMCA 171 at paragraphs 145-146 and then continued: “86. I respectfully agree that, in the absence of any statutory definition, the word should be construed by reference to its ordinary meaning. However, that meaning is to be considered in the context of the statutory objects of the provision, which is to proscribe adverse action when taken because the employee has one of a variety of personal attributes which are specified in the section. The section operates in a real world, where an employer might otherwise be tempted to take adverse action by reason of one of these attributes, motivated by a variety of considerations including irrational prejudices or a rational belief that the employer’s business would benefit materially by removing a person with that attribute from its workforce. The underlying motive for the proscribed action is irrelevant to the existence of the contravention – all that is needed is the requisite ‘reason’ in the sense explained in Barclay (supra). 87. Where it is intended that a ‘physical or mental disability’ may be one of these attributes, it would not, in my opinion, be a proper construction of the words to limit them in an overly refined way to the underlying diagnosed medical or physiological or psychological condition. Some of the inherent consequences of the underlying condition on the personal capacities of the disabled person, including some of the inherent consequences of the medical condition bearing on the employee’s presentation as a person and his or her work performance must be intended to be part of the employee’s ‘disability’. So much, in my opinion, would be consistent with the dictionary definitions’ references to ‘incapacity’ and ‘that limits a person’s movements, activities, or senses’.” Given the nature of the applicant’s claim I note that Logan J explained the nature of the onus cast upon applicant in an application such as this in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows: “13. Subject to the operation of s 360 and s 361 of the Fair Work Act , the Union carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” I also note that Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 said as follows: “That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 ; (1999) 140 IR 131 at [161] - [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585 ; [2008] 177 IR 306 at 321-322 [49] - [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585 ; [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.” Counsel for the respondent submitted that the applicant had not established any condition which could be characterised as a ‘disability’ with sufficient particularity. I accept that the applicant has the onus of proof of this threshold element in s.351, but I do not accept that he failed to meet it at least in relation to the allegation concerning the physical disability. In my opinion, and adopting the ordinary meaning referred to in the above authorities, the ‘physical disability’ which the applicant asserts was clear and well known to the respondent, and there was ample evidence to prove its existence was acknowledged between the parties in July and August 2010. The evidence demonstrates that during the course of 2009 and 2010 the applicant raised issues related to his medical condition and his inability to drive with a seat belt with a number of officers of the respondent. The evidence is also that attempts were made by the respondent to investigate those issues and make any appropriate adjustments including by way of either modification to or replacement of existing vehicles or provision of alternative duties to the applicant due to his physical disability. Then, and as a result of the applicant’s emails sent on 28 August 2011 and the investigation that was commenced by the respondent as a result of the applicant’s action coming to its attention, on 2 September 2010 the respondent terminated the applicant’s employment. The applicant’s submissions filed prior to the trial failed to indentify a claim based on family responsibilities. [50] Aside from the application itself this was the only document that set out the basis for the applicant’s claim and any allegation in relation to the issue of family responsibilities was not identified with any particularity in the applicant’s affidavit. [51] The only identification of the basis for such a claim was by the applicant’s Counsel when appearing before the Court when reference was made to a direction that the applicant attends for work on 30 August 2010. [52] As matters transpired the applicant’s evidence before the Court also didn’t identify with the requisite degree of particularity a claim in this regard. The evidence however does not support a finding in relation to family responsibilities. There was no specific evidence led that the applicant was not able to meet family responsibilities because of the respondent’s requirements or that the respondent took action against him because of those. The applicant failed to particularise the claimed family responsibilities. Moreover the applicant did not claim he hadn’t been provided with flexibility to accommodate child care responsibilities or lead evidence demonstrating he had been disadvantaged as compared to other employees. This allegation was also not put to the respondent’s witnesses. [53] Ms King and Mr Dickson in their evidence before the Court made plain there was flexibility available to accommodate family responsibilities but all employees were expected to comply with approval, directions and reporting requirements. [54] In any event, neither Ms King nor Mr Dickson were involved in the decision to terminate the applicant’s employment. Accordingly, the evidence in this matter then reveals the necessary facts to engage the operation of s.361 of the Act but only in relation to the issue of physical disability. That is the Court is to presume that the adverse action was taken against the applicant for the proscribed reason that he had a physical disability. As was acknowledged by Counsel for the respondent upon that finding the onus then shifts to the respondent to satisfy the Court that the adverse action taken against the applicant was not for the proscribed reason. Section 361 of the Act which casts the onus on the respondent is concerned with the motivation for the allegedly contravening conduct. The provision which the applicant alleges the respondent contravened and for which s.361 has relevance, is s.351 of the Act. The section essentially provides that a person must not engage in the conduct identified elsewhere in Part 3.1 “ because ” of certain circumstances or characteristics peculiarly relevant to a person who is the object of that conduct. In this case, that is the applicant’s physical disability. In order to meet the onus the respondent who is alleged to have contravened the provision in which the word “because” is found (in this case s.351) must establish that the real reason for the adverse action (in this case the termination) did not include the proscribed reason. To do so, the real reason or reasons for taking the adverse action must be shown to be “dissociated” from the proscribed reason alleged to have led to the adverse action. [55] The relevant issue is the decision-maker’s motivation and whether it included a proscribed reason, not whether the information on which the decision to take adverse action was based was flawed or the reasons why that information might have been flawed. The relevant provisions of the Act upon which the applicant relied do not prevent the termination of an employee. As the Full Court in Khiani (supra) [56] notes the crucial issue in an application under the provisions of Part 3.1 of the Act is the causal connection between adverse action and one or more of the factors mentioned in Part 3.1 of the Act. I note in Barclay (supra) the Full Court referred to the decision in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 (“ Bowling” ). In considering whether the onus of proof that applied in those proceedings had been discharged Mason J looked at the evidence and who were the real and effective decision makers. Gibbs J agreed with Mason J’s reasons for judgment in Bowling. He added a number of observations, one of which is pertinent in this case at [239]: “If in the present case evidence had been given by [those] responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.” Whilst the allegation was not put to Ms Graves or to the respondent’s other witnesses the applicant’s case (leaving to one side his own evidence) was that the stated reason for his termination was not the true reason. It was the applicant’s position that it was because of his physical disability. There was no claim, argument or submission made that there should be a comparative test applied in this regard, nor was there any evidence led, that would support such a finding even if it had been. The evidence reveals that neither Ms King nor Ms Dickson was involved in the decision to terminate the applicant’s employment. The only person whose motivation ultimately counts in this case is Ms Graves and she denied terminating the applicant on account of, or for reasons including, his physical disability and she was not challenged on this. The difficulty facing almost all of the submissions made on behalf of the applicant (where they were not otherwise at odds with his own evidence) is the weight of evidence to the contrary. Notwithstanding the attempts by and on behalf of the applicant to find sinister undertones in all aspects of the respondent’s conduct I am satisfied on the balance of probabilities that the respondent saw itself faced with a serious problem in late August and early September 2010 caused by the applicant’s conduct and it commenced on its investigation into him sending the emails to Victoria Police on 28 August 2010. The evidence of Ms Bentley, Mr Eagles and Ms Graves confirms the decision to terminate the applicant’s employment was a considered one and was not a foregone conclusion. The decision to terminate the application was only taken after the investigation had been completed and the applicant’s responses considered. That evidence also made clear the respondent did not have regard to the applicant’s physical disability in doing so and the investigation was focused on the applicant’s conduct and sending of the emails to Victoria Police. In this case there was overwhelming evidence regarding the reasons for the decision to terminate the applicant’s employment. The evidence before the Court is that Ms Graves was the real and effective decision maker and her evidence as to the reason for termination was not challenged. Ms Graves’ evidence which I accept was “[t]he decision to terminate [the applicant’s] employment related only to the matter of him having sent the email. In making the decision I had no regard to the circumstances and issues relating to [his disability] ”. [57] I find the reasons advanced by the respondent for the applicant’s termination credible. Moreover, the temporal proximity between the termination and the discussions regarding issues in relation the applicant’s physical disability and the respondent’s inability to provide a modified vehicle and decision to move the applicant to alternative duties is a matter that is explained by the evidence adduced on behalf of the respondent. As the Full Court in Khiani noted just because there is a temporal link does not mean there was a causal link. [58] The applicant’s submissions which played on the claimed existence of a temporal link failed however to deal with the uncontradicted evidence as to what were the reasons or reasons for the termination. Ms Graves’ evidence was that any disability the applicant had played no part in (the decision to or) the termination of the applicant’s employment. The evidence given by Ms Graves was unequivocal. I accept it as to the real and operative reason. I am satisfied the decision to terminate was ‘dissociated’ [59] from any physical disability of the applicant. In this case having regard to the claims made in the application on the evidence before the Court I am satisfied the respondent has discharged the onus of proof under s.361 of the Act. Conclusion The Court has come to the view on the evidence that the applicant was terminated for reasons dissociated from his disability it follows his application should be dismissed. Given the provisions of s.570 of the Act if the parties are unable to agree on appropriate orders as to costs then they have liberty to make any submissions in writing on that question. In that event submissions are to be filed within 14 days by the respondent. The applicant will have a further 14 days to respond. Those submissions should not exceed five pages in length. The question of costs will be determined on the papers unless the parties request otherwise in their submissions. I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM Date: 24 April 2012 [1] Cugura v Frankston City Council [2011] FMCA 195 [2] Whilst the respondent raised a jurisdictional issue, in submissions filed before the trial, ultimately Counsel for the respondent couldn’t take the matter further. The respondent hadn’t pursued an appeal in relation to the decision of the Commissioner or the issue of the certificate and accepted the certificate on its face was valid and was content for the matter to proceed on that basis. [3] The latter appears to be a reference to ss.351(3)(ab) and 351(3)(b) of the Act. [4] see response filed 22 June 2011. [5] see transcript 6 October 2012, p21 lines 37-38 and p24 lines 7-9. [6] see Mosbys Medical Dictionary 8 th Edition 2009. [7] see for example Staff Code of Conduct Exhibit JB35 to affidavit of Jennie Bentley filed 14 October 2011 [8] see Exhibit MK50 to affidavit of Melissa King filed 14 October 2011 [9] ibid [10] see Exhibit JG6 to affidavit of Juanita Graves filed 14 October 2011 [11] see Exhibit A5 – original of emails at annexures MK50 and MK51 to affidavit of Melissa King filed 14 October 2011 and Exhibit A6 extracts from ANCAP and Carbuddy websites. [12] see Exhibit R1 notes from Dr McGovern, Exhibit R2 Notes from Dr Gu, Exhibit R3 Professor Jefferies report to Dr Gu, Exhibit R4 letter from applicant to Dr Gu, Exhibits R5-R9 extracts from affidavits of applicant in proceedings (P)MLC2663/2008. [13] see affidavit filed 15 December 2011 [14] see paragraphs 34 and 39 of the applicant’s affidavit filed 15 December 2011 [15] see transcript 6 March 2012 p81 lines 31-38 [16] see transcript 6 March 2012 p83 lines 31-36 [17] see transcript 6 March 2012 p84 lines 1-6 [18] see transcript 7 March 2012 p140 lines 5-11 [19] see transcript 7 March 2012 p154 line 4-16 [20] see affidavit filed 14 October 2011 [21] see paragraph 57 of the applicant’s affidavit filed 15 December 2011 [22] see affidavit filed 14 October 2011 [23] see paragraphs 30-35 of Dickson affidavit filed 14 October 2011 [24] see transcript 7 March 2012 p153 line 33-47 [25] see affidavit filed 14 October 2011 [26] see exhibit GH4 to affidavit filed 14 October 2011 [27] see affidavit filed 14 October 2011 [28] see paragraph 41 of the applicant’s affidavit. This evidence of the applicant was at odds with the submissions made on the applicant’s behalf in closing which sought to recast that evidence. The submission was the applicant was in a state of mind when sending the email forced on him by his disability (see transcript 8 March 2012 p298 line 9-10) [29] see paragraph 45 affidavit filed 14 October 2011 [30] see transcript 6 March 2012 p87 lines 30-31 and p90 lines 30-33 [31] see affidavit filed 14 October 2011 [32] see affidavit filed 14 October 2011 [33] see affidavit filed 14 October 2011 [34] see exhibit TH5 of affidavit filed 14 October 2011 [35] see affidavit filed 14 October 2011 [36] see affidavit filed 14 October 2011 [37] see affidavit filed 14 October 2011 [38] see affidavit filed 14 October 2011 [39] see affidavit filed 14 October 2011 [40] see transcript 8 March 2012 p260 lines 26-28 [41] see also Khiani v Australia Bureau of Statistics [2010] FCA 1059 at [8] [42] see applicant’s submissions filed 28 February 2012 marked Exhibit A7 and respondent’s submissions filed 16 February 2012 marked Exhibit R18. [43] Barclay Barclay –v- The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14at [35] [44] Purvis –v- State of New South Wales (Department of Education and Training) [2003] HCA 62 ; (2003) 217 CLR 92 at [12] , [221]-[225], [273] [45] Hodkinson v Commonwealth [2011] FMCA 117. [46] Barclay –v- The Board of Bendigo Regional Institute of Technical and Further Education ( Barclay) [2011] FCAFC 14 at [23] , [28] and [30] [47] H.J. Heinz Company Australia v Turner [1998] VR 872 at 882-883. [48] see Qantas Airways Ltd v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 at [110] , [123]-[132] cited in Stephens v Australian Postal Corporation [2011] FMCA 448 [49] It appeared in this second certificate only minor amendments had been made to the certificate issued in 2008. [50] see exhibit A7 [51] see exhibit A1 [52] see transcript 5 March 2012 p-17 line 31 [53] see transcript 6 March 2012 p-84 line 20 and p-86 line 4-6. [54] see transcript 7 March 2012 p-182 line 5-7 [55] see Barclay v Board of Bendigo Regional Institute of Technical & Further Education at [32] [56] see paragraph 31 in Khiani (supra) [57] see affidavit filed 14 October 2011 [58] see paragraph 36 in Khiani referred to at paragraph 123 above [59] see Barclay (supra) at paragraph 32 referred to at paragraph 61 above AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2012/340.html