Federal Court Rejects Employee's Disability Discrimination Case

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [COMPANY] [2009] FCA 1392

HUMAN RIGHTS – discrimination – hearing disability – [NAME] indirect discrimination of applicant contrary to ss 6 and 15 of Disability Discrimination Act 1992 (Cth) – whether respondent imposed requirement or condition that applicant perform employment without the assistance of flashing lights or telephone typewriter – requirement or condition that applicant attend training sessions and staff meetings without qualified interpreters – whether applicant able to comply with requirements or conditions – applicant failed to show requirements or conditions not reasonable HUMAN RIGHTS – discrimination – hearing disability – [NAME] direct discrimination of applicant contrary to ss 5 and 15 of Disability Discrimination Act 1992 (Cth) – whether less favourable treatment of applicant – no less favourable treatment shown – treatment not the result of applicant's disability

Disability Discrimination Act 1992 (Cth) ss 5, 6, 15 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(1) Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 3(1), 6(2) Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008) Jones v Dunkel (1959) 101 CLR 298 cited [NAME] v [NAME] (1991) 173 CLR 349 referred to Catholic Education Office v Clarke (2004) 138 FCR 121 referred to Australian Iron and [COMPANY] v Banovic (1989) 168 CLR 165 referred to [NAME] v [NAME] (2006) 151 FCR 562 referred to Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 distinguished Nulyarimma v Thompson (1999) 96 FCR 153 referred to [NAME] v State of New South Wales (2003) 217 CLR 92 applied [COMPANY] en liquidation v [COMPANY] (1990) 169 CLR 279 applied [NAME] v [NAME] [2002] FCA 883 cited [NAME] v [NAME] (No 2) (2001) 115 FCR 229 applied [APPELLANT] v [COMPANY] (ACN [[RESPONDENT]])

VID 693 of 2008

MARSHALL J

27 NOVEMBER 2009

[APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

[APPELLANT]

general division VID 693 of 2008

BETWEEN: [APPELLANT]

Applicant

[RESPONDENT])

Respondent

[APPELLANT] OF ORDER: 27 NOVEMBER 2009

[APPELLANT]

THE COURT ORDERS THAT:

1. The application is dismissed. 2. The applicant pay the respondent's costs of the proceeding, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

[APPELLANT]

general division VID 693 of 2008

[APPELLANT]

Applicant

[RESPONDENT])

Respondent

JUDGE: MARSHALL J

DATE: 27 NOVEMBER 2009

PLACE: [APPELLANT] FOR

JUDGMENT 1 The applicant, [APPELLANT], brings this application pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), following the termination of her complaint to the Human Rights and Equal Opportunity Commission on 13 August 2008. 2 [NAME] [APPELLANT] alleges that the respondent, trading as [NAME] ("[NAME]"), discriminated against her by reason of her disability in her employment with [NAME] from September 2003 to October 2008 in violation of ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) ("the Act"). It is common ground that [NAME] is an employer for the purposes of the Act.

background 3 [NAME] [APPELLANT] has profound deafness, a disability for the purposes of the Act; see s 4(1) of the Act. She is unable to hear or speak and communicates by means of Australian Sign Language ("[NAME]"). [NAME] [APPELLANT] has [COMPANY] written English and [COMPANY] lip-reading ability. 4 The respondent is a not for profit organisation and a registered charity which provides services to people with disabilities. It provides residential services in Victoria's Mornington Peninsula region. At all material times, [NAME] operated a [NAME] ("[NAME]") in [NAME], Mornington. [NAME] [APPELLANT] was employed by [NAME] at the [NAME] as a Disability Support Worker. 5 [NAME] is not a specialist organisation catering for hearing impaired people. Its clients are primarily individuals with intellectual disabilities. Some of its intellectually impaired clients have also been hearing impaired. At all [NAME] times, two clients at the [NAME] were profoundly deaf as well as having cerebral palsy and intellectual disabilities. [NAME] [APPELLANT] worked closely with those clients, [APPELLANT] and [APPELLANT]. A third resident of the [NAME] was also unable to communicate verbally and had "extremely [COMPANY]" sign language skills.

A volunteer — then a casual 6 [NAME] [APPELLANT] commenced work as a volunteer at the [NAME] on 9 August 2003. Her engagement at the [NAME] was arranged by [NAME] [NAME] [NAME] [NAME] of SensWide, an employment service for people with hearing or visual disabilities. On 23 July 2003, [NAME] and [NAME] [APPELLANT] met with [NAME], the then residential manager of [NAME]. [NAME] [NAME], a qualified [NAME] paraprofessional interpreter, interpreted at the meeting. As a result of the meeting, [NAME] offered [NAME] [APPELLANT] one hour of volunteer work each Saturday. 7 [NAME] [APPELLANT] gave evidence that, at the meeting, [NAME] [APPELLANT] explained to Mr [NAME] "that interpreters needed to be provided" and raised the issue of the provision of special equipment, such as a telephone typewriter ("TTY"). 8 Mr [APPELLANT] stated that [NAME] [APPELLANT] was able to perform her role as a volunteer without the assistance of a qualified interpreter and that nothing to the contrary was said by either [NAME] [APPELLANT] or [NAME] at the 23 July 2003 meeting. Mr [NAME] also gave evidence that he was not aware, following the meeting, that [NAME] [APPELLANT] required a qualified interpreter for meetings. He said that "[t]here was no discussion" of equipment such as TTYs and flashing lights at the meeting. 9 I am satisfied that the evidence discloses that [NAME] [APPELLANT]'s needs in the workplace were not discussed at the 23 July 2003 meeting. [NAME] [NAME] testified that she had no specific recollection of discussing such matters and her case progress notes confirm this. I reject [NAME] [APPELLANT]'s evidence, in cross-examination, that the provision of equipment was discussed at the 23 July 2003 meeting. That evidence is inconsistent with the evidence of Mr [APPELLANT] and [NAME]. [NAME] [APPELLANT] appears to have been confused about the topics discussed at the two meetings that [NAME] [NAME] attended with [NAME], one on 23 July 2003 and one which occurred later during her employment. This type of confusion was present in much of [NAME] [APPELLANT]'s evidence. Generally, where there are conflicting accounts of events, I have preferred the evidence of [NAME] witnesses to that of [NAME] [APPELLANT]. 10 On 28 August 2003, [NAME] offered [NAME] [APPELLANT] paid casual employment with [NAME], consisting of one shift per fortnight with the possibility of further periods of casual work when [NAME] staff members were unavailable. [NAME] [APPELLANT] became an employee of [NAME] in early September 2003. At the commencement of her employment, [NAME] was not aware that [NAME] [APPELLANT] required qualified interpreters or [NAME] equipment to perform her duties.

Relief sought 11 [NAME] [APPELLANT] initially sought the following remedies in her amended statement of claim: (a) A declaration that the Respondent has discriminated against the Applicant since March 2003;

(b) The Applicant be reinstated to her position at the [NAME];

(c) An order forbidding the Respondent from discriminating against the Applicant;

(d) An order that the Respondent provide qualified interpreters for all professional development, training opportunities and meetings;

(e) An order that the Respondent allow the access code to the spare key of the [NAME] be given to the Applicant;

(f) An order that the Applicant receive the same opportunities as [NAME] do to fill shifts;

(g) An order that the Applicant be allowed to work sleep over shifts;

(h) An order that the Applicant be allowed to drive the bus in all situations that [NAME] do;

(i) Damages;

(j) Costs.

[NAME] [APPELLANT] concedes in her submissions that, as [NAME] no longer operates the [NAME], "many of the remedies previously sought are no longer [NAME]". It is not necessary at present to say anything further about the relief sought.

submissions on the evidence 12 [NAME] [APPELLANT]'s submissions relied on Jones v Dunkel (1959) 101 CLR 298tosuggest that her evidence should be accepted uncritically on several issues. Many of the issues which her counsel referred to were ones on which [NAME] called evidence from its witnesses. As counsel for [NAME] observed, the principle in Jones v Dunkel will not assist in the creation of evidence, merely the drawing of inferences where this is supported by [NAME] [APPELLANT]'s evidence. The evidence before the Court on the [NAME] issues raised by [NAME] [APPELLANT]'s application does not lead to the application of [NAME] v Dunkel,asthere is nothing to suggest that [NAME] failed to called evidence on any matters of material significance from witnesses it would have been expected to call.

Statutory framework 13 The Act renders unlawful conduct which constitutes discrimination on the ground of disability in the context of employment. At all material times, s 15 of the Act relevantly provided: (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the [NAME]'s disability or a disability of any of that [NAME]'s associates:

(a) in the arrangements made for the purpose of determining who should be offered employment; or

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates:

(a) in the terms or conditions of employment that the employer affords the employee; or

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any [NAME] benefits associated with employment; or

(c) by dismissing the employee; or

(d) by subjecting the employee to any [NAME] detriment.

14 For the discrimination [NAME] to have been unlawful, it must have occurred "on the ground" of [NAME] [APPELLANT]'s disability. The discrimination may have been either direct or indirect discrimination as defined in the Act. 15 Section 15(4) of the Act provides protection for employers when hiring or dismissing a disabled person. The Act does not impose an affirmative obligation on an employer to provide aids to a disabled employee. In contrast to the position in the United States, if an employee asks for accommodation or additional services or facilities in order to be able to perform their employment the Act does not impose an obligation to provide "reasonable accommodations". Rather, the Act provides that when determining whether to hire a prospective employee or dismiss a current employee it is important to assess whether the disabled employee can carry out the "inherent requirements" of the particular employment and whether additional "services or facilities" would enable the person to meet these inherent requirements becomes [NAME]; see s 15(4)(a) of the Act. Discrimination towards an employee is not unlawful if providing the additional services or facilities would impose "an unjustifiable hardship on the employer"; see s 15(4)(b) of the Act.

Issues for determination 16 The issues for determination in this proceeding are: · whether [NAME] engaged in direct discrimination against [NAME] [APPELLANT]; · whether [NAME] engaged in indirect discrimination against [NAME] [APPELLANT]; and · if discrimination against [NAME] [APPELLANT] occurred within the meaning of ss 5 or 6 of the Act, whether this discrimination is contrary to s 15(1) or (2) of the Act.

ALLEGATIONS OF INDIRECT DISCRIMINATION 17 [NAME] [APPELLANT] claims that [NAME] discriminated against her on the grounds of her deafness by requiring her to comply with the requirement or condition that she access her employment without the "adjustments" she required. 18 In this respect, [NAME] [APPELLANT] relies on s 6 of the Act which deals with "indirect disability discrimination". At all material times, s 6 of the Act provided: For the purposes of this Act, a person ([NAME]) discriminates against another person ([NAME]) on the ground of a disability of the [NAME] if the [NAME] requires the [NAME] to comply with a requirement or condition:

(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the [NAME] does not or is not able to comply.

(original emphasis.) 19 [NAME] [APPELLANT] alleges that [NAME] indirectly discriminated against her within the meaning of s 6 of the Act by imposing a condition on her that she access her employment without the facilities she required. Specifically, [NAME] [APPELLANT] claims that in order to be treated equally as an employee, she required the following facilities or "adjustments": (a) qualified [NAME] to allow her to participate in meetings, training and in all [NAME] situations where her hearing peers relied on the spoken word;

(b) a telephone typewriter in her workplace to allow her to make telephone calls;

(c) flashing lights to alert her to the presence of visitors to the [NAME].

20 [NAME] [APPELLANT] submits [NAME] indirectly discriminated against her by denying her access or limiting her access to opportunities for promotion, training and [NAME] benefits associated with employment. She also claims that she was subjected to "[NAME] detriment" as a result of being unable to participate in training sessions as her skills stagnated, leading to reductions in the number of hours she worked and her income; see s 15(2)(a)–(c) of the Act. 21 To establish that [NAME] indirectly discriminated against her, [NAME] [APPELLANT] must demonstrate: · that [NAME] required [NAME] [APPELLANT] to comply with a requirement or condition; · with which a substantially higher proportion of persons without her disability comply or are able to comply; · with which [NAME] [APPELLANT] does not, or is not able, to comply; and · the requirement or condition is not reasonable having regard to all the circumstances of the case. Any indirect discrimination will be unlawful if [NAME] [APPELLANT] can also show that the discrimination occurred on the ground of her disability within the meaning of ss 15(1) or (2) of the Act.

The legislative framework

A requirement or condition 22 Whether a "requirement or condition" has been imposed on a person is a question of fact; see [NAME] v [NAME] (1991) 173 CLR 349 at 394 per Dawson and Toohey JJ, 408 per [NAME] J and see also Catholic Education Office v Clarke (2004) 138 FCR 121 at [102] per Sackville and Stone JJ. The phrase "requirement or condition" in s 6 of the Act is to be construed broadly to include any form of qualification or prerequisite, although the actual requirement or condition itself should be formulated with some precision; see [NAME] at [103] and Australian Iron and [COMPANY] v Banovic (1989) 168 CLR 165 at 185 per Dawson J. 23 An [NAME] may be found to have insisted on compliance with a requirement or condition within the meaning of s 6 of the Act even though the requirement or condition is not explicitly imposed. It is sufficient that the requirement or condition is implicit in the conduct that is said to constitute indirect discrimination; see [NAME] at 360 per Mason CJ and [NAME], 392 per Dawson and Toohey JJ and 407 per McHugh J. For example, the Court in [NAME] considered that it was open to the trial judge to find that the removal of conductors from trams amounted to a requirement or condition that disabled people could fully avail themselves of the services only if they could use trams without the assistance of conductors; at 361 per Mason CJ and [NAME] J. 24 Several cases have characterised the requirement to participate and receive classroom instruction without [NAME] as a "requirement or condition" within the meaning of s 6 of the Act; see eg, Clarke and [NAME] v [NAME] (2006) 151 FCR 562. In Clarke both the trial judge and [ADDRESS] found that not providing [NAME] to a student with a hearing disability imposed a condition on him with which he could not comply; at [11] per Tamberlin J, [126] per Sackville and [NAME] JJ. Similarly, the Court in [NAME] held that a student would be "denied the opportunity to achieve her full potential" if she were required to undertake her education without the assistance of [NAME]; at [130] per [NAME] and [NAME] JJ. 25 [NAME] submits that cases such as [NAME] and [NAME] must be treated with caution as they are education, rather than employment, cases. [NAME] [APPELLANT] contends that these principles apply to both educational situations and her ability to participate in staff meetings and professional development. In particular, she argues that it was not sufficient for her to simply "cope" by attending some of the required training sessions and staff meetings and access the information through written English. [NAME] [APPELLANT] alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for [NAME] [APPELLANT] argues that [NAME]'s submission that she accessed her employment as she attended work and received her wages over a number of years ignores the conditions of her employment which caused her detriment. 26 There are significant difficulties with the case as formulated by [NAME] [APPELLANT], in particular the emphasis on her ability to "access her employment". Employment in that sense is ultimately the range of duties performed in the employee­–employer relationship and it is not analogous to access to education, services or facilities. [NAME] [APPELLANT]'s emphasis on "access" to her employment is also not reflected in the wording of the Act which speaks only of employment and its terms and conditions. The notion of "access" to employment in the Act only arises in relation to access to the benefits associated with employment and not employment per se. The question posed by the Act is whether an employee has been subject to indirect discrimination in their employment. It is unhelpful to rely, as [NAME] [APPELLANT] does, on an entitlement to "access" employment. 27 The present case is not an education or a services case. Ultimately, whether a "requirement or condition" has been imposed is a question of fact. The Act defines discrimination and provides for specific contexts in which such discrimination is prohibited; including in employment, education, access to premises, goods, services and facilities. Each context is treated separately in the Act and raises different issues for consideration. In this respect, the "education cases" relied on by [NAME] [APPELLANT] are of [COMPANY] assistance.

A substantially higher proportion without the disability comply or are able to comply with the requirement or condition 28 The next step in determining whether indirect discrimination has occurred within the meaning of s 6 of the Act is to identify "an appropriate base group" with which to compare the individual alleging indirect discrimination in order to assess whether a substantially higher proportion of the individuals in the base group are able to comply with the requirement or condition; see [NAME] at 178–9 per [NAME] and [NAME] JJ, 187 per [NAME] J.

Ability to comply 29 The third step in the analysis is to determine whether [NAME] [APPELLANT] was able to comply with the requirement or condition. [ADDRESS] in [NAME] at [134] stated if: a disabled person will suffer serious disadvantage in complying with a requirement or condition of the [NAME] kind, irrespective of whether that person can "cope" with the requirement or condition the "not able to comply" element of s 6(c) of the Act will be satisfied.

Reasonableness 30 To succeed in her claim, [NAME] [APPELLANT] also must show that the imposition of the requirement or condition was not reasonable having regard to all the circumstances of the case. In the absence of evidence to establish that the requirement or condition was unreasonable, the conduct engaged in by [NAME] will not be discriminatory. As with the [NAME] aspects of her claim, the onus is on [NAME] [APPELLANT] to prove that the requirement or condition imposed was not reasonable in all the circumstances.

Analysis of indirect discrimination claims

Request for a TTY 31 A major issue in contest in the proceeding is whether [NAME] [APPELLANT] required [NAME] to provide her with a TTY before it ultimately provided her with one in July 2008. 32 A TTY is a telephone device which can be used by deaf people. It looks like a small typewriter. One can dial a number and then communicate with another person by typing on the keyboard. It enables deaf people to communicate more efficiently than they otherwise could, especially with people who are not adept at texting on mobile phones. 33 [NAME] [APPELLANT] gave evidence that shortly after commencing employment with [NAME] in 2003, she asked her team [NAME], Mr [NAME], about [NAME]'s buying of a TTY. She said that Mr [NAME] did not deny her request but a TTY was not purchased at that time. She also said that she mentioned her need for a TTY to Mr [NAME] a few times in 2003 and a few more times in 2004. [NAME] [APPELLANT] then brought in a portable TTY from home and later her [NAME] from home. She stopped bringing a TTY into work because [NAME] staff members were unhappy about it taking up the only telephone line available at the southern end of the [NAME]. 34 [NAME] [APPELLANT]'s evidence about requesting a TTY in 2004 is curious because in November 2004, Mr [APPELLANT], the Chief Executive Officer of [NAME], asked [NAME] [APPELLANT] if [NAME] could assist her with the purchase of equipment, such as a warning light system. That was her perfect opportunity to request a TTY but she did not do so. This tends to suggest that the provision of a TTY was not a burning issue for her. In cross‑examination, [NAME] [APPELLANT] conceded that Mr [APPELLANT] asked how he could help her and that she said nothing about a TTY. In such circumstances, as at 4 November 2004, [NAME] could not be criticised for not providing a TTY. 35 On 20 October 2006, [NAME], the Residential Service Manager of [NAME] and Deputy Chief Executive Officer, offered to purchase a TTY for [NAME] [APPELLANT]. Earlier, on 12 October 2006, [NAME] [APPELLANT] had brought the issue to [NAME] [APPELLANT] attention by faxing to her a request for a TTY. It is unclear why [NAME] [APPELLANT] offer was not taken up. I find [NAME] [APPELLANT]'s response that she did not take up the offer for fear of losing more shifts to lack credibility. How could one realistically expect to lose shifts for taking up an offer from management for something which, on [NAME] [APPELLANT]'s own evidence, she had been "pestering" for repeatedly? 36 [NAME] [APPELLANT] gave evidence that she told [NAME] [APPELLANT] she would bring in a TTY from home and that [NAME] [NAME] said that she could do so. Whether a TTY was necessary for [NAME] [APPELLANT]'s work is beside the point. There was no lack of will from [NAME] to provide one but [NAME] [APPELLANT] did not press the issue with any fervour at any time between 4 November 2004 and mid 2007. 37 [NAME] [NAME], a former employee of [NAME], gave evidence that in December 2006 she told [NAME] [APPELLANT], [NAME]'s Residential Co-ordinator, that [NAME] [APPELLANT] had asked her to remind [NAME] that [NAME] [APPELLANT] had sent [NAME] emails requesting a TTY. That evidence is unbelievable. [NAME] [NAME] denies receiving any such emails. None is in evidence. At that time, all [NAME] [APPELLANT] needed to do was to contact [NAME] [APPELLANT] and take her up on her offer to provide a TTY. 38 Prior to 5 July 2007 [NAME] could have considered with confidence that provision of a TTY to [NAME] [APPELLANT] was not an issue at the [NAME]. However, on 5 July 2007, [NAME] [NAME] (a self‑styled "anti-discrimination consultant") wrote to [NAME] on behalf of [NAME] [APPELLANT]. The letter included the following comment: I believe there is no TTY at the house to enable [NAME] [APPELLANT] to make a [RESPONDENT] call like [NAME] staff. After refusing to have a face to face meeting with [NAME] [NAME], [NAME] [NAME] pressed for a written response to the issues raised in the 5 July letter. 39 [NAME] [NAME] responded to [NAME] [NAME] in writing on 6 September 2007. Any delay from 5 July 2007 is attributable to [NAME] [NAME] refusal to meet with [NAME] [NAME], despite [NAME] [NAME] willingness to meet at a place and time suitable to [NAME] [NAME] and for [NAME] to pay for an [NAME] interpreter for [NAME] [APPELLANT] to attend the meeting. On the issue of a TTY, [NAME] [APPELLANT] said in her 6 September letter: We have discussed with [NAME] on a number of occasions our willingness to provide a TTY writer in the house for her benefit. On each occasion [NAME] has told us that she has an old TTY at home that she could bring in and set up for herself. To date she has not provided this TTY writer and I presume she does not regard the matter as one of significance or priority.

At the conclusion of her 6 September letter [NAME] [NAME] reiterated her preparedness for a meeting with [NAME] and [NAME] [APPELLANT] at any time that suited them. [NAME] arranged a meeting for 19 October 2007 to discuss the "non-provision of a TTY" and [NAME] issues but the meeting was cancelled due to the absence of a qualified [NAME] interpreter. 40 The evidence does not explain the circumstances that led to the provision of a TTY in July 2008. There is no evidence that [NAME] was at fault in not providing a TTY between October 2007 and July 2008. [NAME] [APPELLANT] gave evidence that she was not asked by [NAME] [APPELLANT] for a TTY until 2008. I accept that evidence and [NAME] [NAME] was not challenged on that aspect of her evidence. 41 [NAME] [NAME] frankly conceded that a TTY possibly should have been provided before 2008. But it was not until 2008 that it was clear to [NAME] that [NAME] [APPELLANT] actually required one, as distinct from representations being made about wanting a TTY only for [NAME] [APPELLANT] not to press the issue. It appears that [NAME] [APPELLANT] did not consider the provision of a TTY a matter of high priority for her until 2008. 42 There is no evidence to support the allegation that [NAME] engaged in indirect discrimination by not providing a TTY to [NAME] [APPELLANT]. It is doubtful whether [NAME] can be said to have imposed a requirement or condition on [NAME] [APPELLANT] prior to 2008 that she access her employment without a TTY, as it was unclear to [NAME] that [NAME] [APPELLANT] required the provision of a TTY until 2008. 43 In any event, even if such a requirement or condition were imposed by [NAME], [NAME] [APPELLANT] has not established that the imposition of that requirement or condition was not reasonable. As noted above, [NAME] [APPELLANT] did not consider a TTY a high priority until 2008. In light of [NAME] [APPELLANT]'s failure to make her need for a TTY clear to [NAME], the imposition of the requirement was reasonable. Indeed, in November 2004, [NAME] offered to purchase a TTY but this offer was not taken up by [NAME] [APPELLANT]. [NAME] became aware of [NAME] [APPELLANT]'s request for a TTY in 2008, a TTY was provided.

Accordingly, [NAME] did not engage in indirect discrimination against [NAME] [APPELLANT] in relation to the failure to provide a TTY.

Request for flashing lights 44 It is difficult to believe that [NAME] [APPELLANT], as is contended, requested Mr [APPELLANT] to install flashing lights in 2004, given that in the minutes of the meeting of 2004 and a follow‑up meeting in January 2005 nothing was said by [NAME] [APPELLANT] of her desire to have flashing lights installed. In fact, at the time she did not believe a buzzer system was necessary to attract her attention. [NAME] [APPELLANT] would have been expected to have said something about the installation of flashing lights given Mr [NAME] comments about her inability to attain "equal status" in the house because she could not answer the door or telephone. 45 [NAME] [APPELLANT] contends that she requested flashing lights, both directly, and through [NAME] staff members. [NAME] [APPELLANT] began work at [NAME] in May 2006 when [NAME] [APPELLANT] was absent on long term sick leave. In her affidavit, [NAME] [APPELLANT] stated that [NAME] [APPELLANT] did not "at any time" ask her to provide flashing lights for the [NAME]. [NAME] [NAME] stated that the only request she ever received for flashing lights was from Mr [NAME], the father of [NAME] and [NAME], and they were provided shortly after his request. 46 [NAME] [APPELLANT], gave evidence that she was aware of [NAME] [APPELLANT] requesting: a TTY, interpreters and flashing lights for the house. In particular, [NAME] asked me to follow up her requests for this assistance by contacting our line manager, [NAME] ("[NAME]") on about 6 - 8 occasions to ask what was happening, and when her requests were going to be met. In cross-examination, [NAME] [NAME] stated that she was aware of these requests because she interpreted between [NAME] [APPELLANT] and [NAME] on the telephone and raised it at a staff meeting on [NAME] [APPELLANT]'s behalf. [NAME] said that she also reminded [NAME] [APPELLANT], on behalf of [NAME] [APPELLANT], that [NAME] [APPELLANT] had sent [NAME] emails requesting a TTY and flashing lights. [NAME] [NAME] claimed that she had seen some of these emails. There is no [NAME] evidence of these emails. There are several emails exhibited to the affidavit of [NAME] [APPELLANT] which are addressed to [NAME] [APPELLANT] discussing both pagers and a TTY. However, none of these emails mentions flashing lights. 47 [NAME] [NAME], who worked at the [NAME] between January 2006 and December 2007, said that "there was regular discussion from Team Leaders in relation to purchasing supporting equipment, such as a TTY and flashing lights for [NAME], and providing interpreters". However, [NAME] [NAME] admitted in cross‑examination that she was not a party to these discussions. The better view of the evidence is that [NAME] [APPELLANT] did not ask [NAME] [APPELLANT] to provide her with flashing lights. 48 On 12 October 2006, [NAME] [APPELLANT] sent a fax to [NAME] [APPELLANT] listing questions for [NAME]. Included was her query, "Why not have a page with vibrate or door's bel [sic] flash (deaf equipment) and don't need to hear TTY". [NAME] [APPELLANT] replied to [NAME] [APPELLANT] stating that she had forwarded the questions to [NAME] [NAME]. [NAME] [NAME] responded in an email to [NAME] [NAME] that she was: not prepared to attend another meeting to go over the same issues again.

I have put some copies of minutes etc in the post for you, to demonstrate that we have in fact gone over all these areas with [NAME] on numerous occasions; she just doesn't want to accept the answers.

In her response to [NAME] [APPELLANT]'s question regarding "deaf equipment", [NAME] [APPELLANT] addressed only the issue of a TTY and did not discuss the issues of a pager or flashing lights. [NAME] [NAME] said in cross-examination that she did not address each of the queries raised by [NAME] [APPELLANT] because "we had already offered to purchase anything that she needed". 49 As of 12 October 2006, a request by [NAME] [APPELLANT] had been made for the purchase of flashing lights. [NAME] [APPELLANT] did not offer to meet with [NAME] [APPELLANT] to discuss the purchase of the equipment, as occurred with the TTY. [NAME] [APPELLANT] had not previously taken up the offer for equipment to be purchased, [NAME] [APPELLANT] had expressed a willingness to use anything that would assist her in her employment. 50 In 2007, flashing lights were installed at the [NAME] in response to the request made by Mr [APPELLANT] on behalf of his sons. 51 Prior to [NAME] [APPELLANT] commencing paid employment with [NAME], [NAME] [APPELLANT] and [NAME] did not ask [NAME] to provide qualified interpreters or any [NAME] facilities, including flashing lights, to assist [NAME] [APPELLANT] in her employment.

Accordingly, before 12 October 2006, [NAME] did not impose a condition or requirement on [NAME] [APPELLANT] that she access her employment without flashing lights as the evidence indicates that [NAME] was unaware that [NAME] [APPELLANT] required the installation of flashing lights and no such request had been made by [NAME] [APPELLANT]. No indirect discrimination occurred in respect of this period. 52 [NAME] [APPELLANT]'s request for flashing lights on 12 October 2006 and until their installation in 2007, [NAME] imposed a requirement or condition that [NAME] [APPELLANT] perform her employment without flashing lights. The requirement was one which the [NAME] at the [NAME] were able to comply with as they could hear if a visitor was at the door. 53 [NAME] [APPELLANT] was able to perform most aspects of her employment without the installation of flashing lights. She was unable to answer the door without the aid of flashing lights. [NAME] [APPELLANT] was able to "cope" with the condition as another staff member was required to be in the [NAME] at all times. Nevertheless, the [NAME] test is whether [NAME] [APPELLANT] was able to comply with the requirement; see [APPELLANT] at [134]. [ADDRESS] in Hurstnoted that an inability to comply may shown if "a disabled person will suffer serious disadvantage in complying with the requirement or condition"; at [134]. [NAME] [APPELLANT] has not shown that she suffered any serious disadvantage from her inability to answer the door. There is evidence to suggest that in 2004 her inability to hear whether someone was at the door was a source of grievances among [NAME] staff members. However, there is no evidence to indicate that this was a live issue in 2006 when the request for flashing lights was made. By this time, [NAME] had also purchased a pager which provided staff members with a means of attracting [NAME] [APPELLANT]'s attention. Her work consisted of caring for the clients at the [NAME] and she has not shown that her inability to answer the door led to any serious disadvantage. It is a requirement with which [NAME] [APPELLANT] was able to comply in performing her employment. 55 Similarly, [NAME] [APPELLANT] has not demonstrated that the requirement was unreasonable in all the circumstances. Her counsel placed considerable emphasis on [NAME]'s failure to plead reliance on s 15(4) of the Act. However, the onus is on [NAME] [APPELLANT] to demonstrate that the requirement or condition was one which was not reasonable in all the circumstances. At the time, [NAME] [APPELLANT] was working approximately 15 hours per fortnight. It is also reasonable to infer that answering the door was incidental to the performance of her duties as a Disability Support Worker. In addition, [NAME]'s policy was to not have staff members alone at the [NAME] at any time. [NAME] [APPELLANT]'s hours, the policy that staff members not work alone at any time and the incidental nature of the task, [NAME]'s imposition of the requirement or condition that [NAME] [APPELLANT] carry out her employment without the aid of flashing lights was reasonable. 56 [NAME] [APPELLANT]'s claim of indirect discrimination as a result of the failure to provide flashing lights prior to their installation in 2007 fails.

Training sessions 57 [NAME] [APPELLANT] contends that [NAME] indirectly discriminated against her as [NAME] required her to access her employment without the assistance of a qualified [NAME] interpreter at staff meetings, training sessions and "in all [NAME] situations". 58 [NAME] [APPELLANT] also made allegations in relation to the forms which she was required to complete in order to apply for training sessions. However this issue is irrelevant to the question of whether she was required to comply with a requirement or condition that she attend training sessions without the assistance of qualified interpreters.

A requirement or condition 59 [NAME] [APPELLANT] did not request the provision of qualified interpreters prior to commencing her employment. From 3 September 2003, [NAME] was aware of her need for interpreters following a conversation between Mr [NAME] and [NAME] [NAME]. [NAME] [NAME] discussed with Mr [NAME] the importance of a qualified interpreter to enable [NAME] [APPELLANT] to access information at an upcoming first aid course. Mr [NAME] replied that [NAME] would "play it by ear". [NAME] [NAME] was not sure of the qualifications the person Mr [NAME] had arranged to act as [NAME] had, as he had not made the identity of the interpreter clear, therefore she made: a point of discussing the importance of having a qualified interpreter for [NAME] so that she could have a solid understanding of all the information regarding her work commitments, any training, and so on. [NAME] [NAME] gave evidence that during this conversation she also discussed a wage subsidy to pay for interpreting services in the future. 60 [NAME] [APPELLANT] stated that from 2003–08 she attended only three training sessions where a qualified [NAME] interpreter was present. Each session was held at an external location and qualified interpreters were booked and paid for by the external provider. These sessions comprised first aid courses in 2003 and 2007 held at [NAME] and an information session on the Disability Act 2006 (Vic) conducted by the Department of Human Services ("[NAME]") in July 2007. This differs from the case pleaded by [NAME] [APPELLANT] which said that she only attended one training session with a qualified [NAME] interpreter during her employment. 61 [NAME] [APPELLANT] said that she told [NAME] [APPELLANT] that she wanted to attend the [NAME] training session and as a result assumed that she would be attending the session. Similarly, [NAME] [APPELLANT] gave evidence that [NAME] [APPELLANT] asked [NAME] at a staff meeting to secure [NAME] for the [NAME] training and that [NAME] [NAME] said she would obtain approval from [NAME]. [NAME] [APPELLANT] said that once she arrived at the [NAME] training session and realised no interpreter had been booked she arranged [NAME] for the session. As a result, [NAME] [APPELLANT] did not participate in the first hour of the training session. 62 [NAME] [NAME] denies these allegations. She sent a facsimile to [NAME] [APPELLANT] on 14 June 2007 stating that she was not aware that [NAME] [APPELLANT] was attending the [NAME] training as [NAME] [APPELLANT] had not confirmed her attendance. 63 Earlier, on 15 September 2005, [NAME] wrote to [NAME] [APPELLANT] in response to her request to [NAME] [APPELLANT] for the provision of interpreters at various training courses during the remainder of the year. Mr [NAME] stated: You are aware through earlier discussions, and particularly through the letter sent to you from Client Services Manager, [NAME] on 17 September last year (see copy attached), that the cost of providing [NAME] is prohibitive on the funds we are provided in our training budget.

However the following guidelines will give you a clear understanding of training opportunities, when [NAME] may be provided, if available, or when alternative arrangements may be made:

1. For all compulsory training involving staff of [NAME].

2. For up to 10 hours of additional training each year to attend [COMPANY] [[NAME]] training as selected by you and approved by your [NAME] or Coordinator, from the Annual Training Schedule.

3. You will be supported to attend appropriate training through the Victorian Deaf Society's training calendar provided it relates to your work at [NAME]. I will provide an update of their schedule as soon as it is available.

4. At your request, arrangements may be made for you to receive copies of the written content, notes, or reports from courses which you do not attend, but which are [NAME] to your work.

You should apply for attendance at courses or written material through your [NAME] in the usual way by using the Staff Development form.

(original emphasis.)

64 The three occasions on which [NAME] [APPELLANT] attended a training session with the assistance of a qualified interpreter are noted above. [NAME] [APPELLANT] attended a training session with a staff member or [NAME] acting as [NAME] on the following occasions: · In 2003, [NAME] [APPELLANT] attended a first aid training course where [NAME] [APPELLANT] [NAME], the mother of [NAME] and [APPELLANT], interpreted for her. · On 29 April 2005, [NAME] [APPELLANT] attended a Dementia and Down's Syndrome training session run by [NAME]. Interpreting was conducted by [NAME], a [NAME] staff member. · On 17 March 2005, [NAME] offered training sessions to its staff members, including a compulsory health services session. [NAME], a [NAME] staff member, acted as [NAME] [APPELLANT]'s interpreter. · In April 2005, [NAME] [APPELLANT] completed a fire safety training session. A [NAME] staff member, "[NAME]", interpreted at the training session. · In 2007, [NAME] [APPELLANT] also completed a fire safety training session. Interpreting at the session was undertaken by [NAME], a [NAME] staff member. · In 2007, [NAME] [APPELLANT] completed bullying training organised by [NAME]. Mr [APPELLANT] interpreted the training session for [NAME] [APPELLANT]. 65 The evidence indicates that [NAME] [APPELLANT] agreed to the use of an unqualified interpreter on several occasions. Firstly, [NAME] [APPELLANT] agreed to [NAME] providing interpreting services at the 2003 first aid course. [NAME] [APPELLANT] subsequently told [NAME] [APPELLANT] and Mr [APPELLANT] that she was happy with both the interpreter and the arrangements made. In cross-examination, [NAME] [APPELLANT] said that she accepted the arrangements because of the short notice and her belief that, as a volunteer, she had no [NAME] choice. Prior to [NAME] [APPELLANT] commencing paid employment with [NAME], and for the purpose of the 2003 first aid course, [NAME] [APPELLANT] and [NAME] did not request that [NAME] provide qualified interpreters or any [NAME] services to assist [NAME] [APPELLANT] in her employment. 66 In relation to the 2007 bullying training, [NAME] advised [NAME] [APPELLANT] to organise [NAME] if she wanted [NAME] for the training session. [NAME] [APPELLANT] stated that she believed that [NAME] [APPELLANT] would be better placed to arrange [NAME] as she believed that three weeks notice was required to book [NAME]. [NAME] [APPELLANT] asserted, in cross‑examination, that it was not her responsibility to book [NAME] as all requests to [NAME] had to originate from [NAME]. [NAME] [APPELLANT] asked [NAME] to contact [NAME] and negotiate the booking, but was told that she needed to give at least three weeks notice. 67 [NAME] [APPELLANT] admitted that [NAME] [APPELLANT] told her that [NAME] was unable to secure [NAME] for the training session, but that it would be repeating the bullying training at a later date and that if she agreed to attend the second training day, [NAME] would be booked. [NAME] [APPELLANT] said that she was concerned that "[NAME] would not be booked, and I would miss out yet again". She insisted on attending the first training session and agreed to Mr [NAME] acting as [NAME] for her. 68 In choosing to attend the first training session, despite knowing arrangements for [NAME] could not be made, [NAME] [APPELLANT] chose to attend without a qualified interpreter. In these circumstances, [NAME] did not impose a requirement on her to participate in the training session without a qualified interpreter as it suggested [NAME] [APPELLANT] attend the later training session. As such, no indirect discrimination arises from this event. 69 [NAME] imposed a requirement or condition that [NAME] [APPELLANT] access training sessions without the use of a qualified [NAME] interpreter, except on the occasions where she chose to attend a training session without a qualified interpreter.

A higher proportion of employees without the disability are able to comply 70 In this situation the appropriate base group for comparison is [NAME] staff members at the [NAME] without a hearing disability. [NAME] members were able to comply with the requirement or condition that they attend training sessions without the assistance of an [NAME] interpreter as they were able to access the information aurally.

Is [NAME] [APPELLANT] unable to comply with the requirement or condition? 71 [NAME] [APPELLANT] indicated her discontent with the quality of interpreting provided by staff members. In relation to the 2005 health services training session, she [NAME] that "[w]henever [NAME] 'interpreted' I missed most of what was being said". She also stated that she "missed out on a lot of the information" provided in the April 2005 fire safety training session. [NAME] [APPELLANT] nevertheless conceded that she received written materials containing the information which she studied at home. [NAME] [APPELLANT] also [NAME] that [NAME] [APPELLANT] treated the 2007 fire safety training session and her interpreting of it as a "bit of a joke". She said that [NAME] [NAME] did not interpret any questions or discussions by staff members during the training session. 72 Despite her claims, [NAME] [APPELLANT] acknowledged that she could receive the information provided in training sessions by means [NAME] than qualified [NAME]. For example, on 17 July 2007, [NAME] [APPELLANT] completed a training application form to attend a first aid training session. The form indicated that [NAME] [APPELLANT] "would like a staff to help with interpreting [APPELLANT] or [APPELLANT] [sic]" at the training session. [NAME] [APPELLANT] said that this request was the result of her concern that [NAME] would not be booked, but the evidence indicates [NAME] [APPELLANT]'s willingness to use staff members as interpreters at training sessions. 73 [NAME] [APPELLANT] was able to "cope" with the requirement that she attend training sessions without a qualified interpreter, her evidence indicates that she was at a disadvantage in completing the training sessions and receiving information. The interpreting provided by staff members ameliorated this situation, as did the provision of information in [NAME] forms, such as workbooks. However, [NAME] [APPELLANT] could not comply with the requirement to attend training sessions without qualified [NAME].

Reasonableness of the requirement or condition 74 To support her claim of indirect discrimination, [NAME] [APPELLANT] must also show that the requirement or condition was not reasonable. The amended statement of claim at [16] relies on the following to demonstrate that the requirement was unreasonable: (a) Many of the adjustments required by the Applicant, were also required by the deaf clients;

(b) the Respondent is funded and charged with providing services specifically to people with disabilities;

(c) the Charter of Human Rights and Responsibilities Act 2006 (Vic);

(d) the United Nations Convention on the Rights of Persons with Disabilities;

(e) the significant adverse consequences of the discrimination upon the Applicant;

(f) the relatively insignificant cost of compliance with the Act upon the Respondent's overall budget and [NAME] commitments;

(g) the savings the Respondent has made, and will continue to make, in discriminating against the Applicant.

These claims were not further particularised. 75 The first ground relied on by [NAME] [APPELLANT] is irrelevant to the issue of interpreters at training sessions. [NAME] at training sessions cannot be said to have also been required by [NAME]'s clients as there is no evidence to suggest that clients attended the staff training sessions. 76 The second ground is misconceived. [NAME] [APPELLANT] was not a client of [NAME], but an employee. [NAME]'s obligations in relation to the Act do not differ from any [NAME] employer merely because of the industry in which [NAME] operated; it is not held to a higher standard. [NAME]'s provision of services to persons with disabilities is irrelevant to the reasonableness of the requirement that [NAME] [APPELLANT] attend training sessions without a qualified interpreter. 77 [NAME] [APPELLANT]'s reliance on the Charter of Human Rights and Responsibilities Act 2006 (Vic) is misplaced. The interpretation of the Act by this Court is unaffected by the Charter. The Charter applies only to the interpretation of Victorian, not Commonwealth legislation. Similarly, the Charter only applies to the functions performed by Victorian courts and tribunals and does not bind this Court; see ss 3(1) and 6(2) of the Charter. The Charter does not elucidate the question of whether a requirement or condition was not reasonable. Reference to the Charter does not assist [NAME] [APPELLANT] in her claim. 78 Australia is a State Party to the Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, [2008] ATS 12 (entered into force 3 May 2008). However, this does not lead to the conclusion that the requirement or condition imposed by [NAME] was not reasonable. It is well settled that the mere fact of ratification does not import any rights or obligations into domestic law; see Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 at 286–7 per Mason CJ and Deane J, 315 per [NAME] J and see also Nulyarimma v Thompson (1999) 96 FCR 153 at [20] per Wilcox and Whitlam JJ. A convention may aid in interpretation of an Act where there is ambiguity but the Convention cannot be relied on to reach the conclusion that the requirement or condition was not reasonable; see [NAME] at 287 per [NAME] CJ and [NAME] J. The [NAME] terms of the Act are unambiguous and the situation is not one of legitimate expectations created by a decision maker as described in [NAME]. The Convention is irrelevant to the present proceeding. 79 [NAME] [APPELLANT] points to the "significant adverse consequences of the discrimination" she is said to have experienced in support of the proposition that the requirement or condition was not reasonable. The "significant adverse consequences" which [NAME] [APPELLANT] refers to were not particularised. The amended statement of claim alleges that [NAME] [APPELLANT] suffered "diminished enjoyment of and participation in her employment" and "diminished training opportunities". Although she was disadvantaged by the failure to provide qualified interpreters at training session, this does not inevitably lead to the conclusion that the requirement or condition was not reasonable in all the circumstances. Whether the requirement or condition was unreasonable must be considered in light of all the [NAME] circumstances, not merely those which affected [NAME] [APPELLANT]. 80 [NAME] [APPELLANT] claims that the requirement or condition was not reasonable due to "the relatively insignificant cost of compliance with the Act upon the Respondent's overall budget and [NAME] commitments". She did not adduce any evidence in support of this claim. Minimal evidence was adduced by [NAME] in relation to the cost of providing interpreters. However, the onus lies with [NAME] [APPELLANT] to establish the unreasonableness of the requirement or condition. She has not shown that the provision of interpreters represented a "relatively insignificant" expense, nor adduced any evidence to demonstrate what impact may have been on [NAME]'s budget or [NAME] commitments. Rather, [NAME]'s evidence, including Mr [NAME] 15 September 2005 letter, suggests that the costs were significant. In this respect, it is worth noting that Mr [NAME] letter related to interpreters "or [NAME] arrangements" and was not an unqualified offer of [NAME] at all training sessions attended by [NAME] [APPELLANT]. This claim also assumes that [NAME] has breached the Act, a matter which is not established until after the requirement or condition is shown to be not reasonable. The logic of [NAME] [APPELLANT]'s contention is fundamentally flawed. 81 [NAME] [APPELLANT] also relies on the [NAME] "savings the Respondent has made, and will continue to make, in discriminating against the Applicant" in support of the contention that the requirement or condition regarding interpreters was not reasonable. It is difficult to understand what is meant by this claim. Whether or not discrimination has occurred is a matter for this Court to determine. It has not been shown what "savings" were made by the imposition of the requirement. [NAME] [APPELLANT] also failed to explain how the existence of any purported savings supports the proposition that the requirement was not reasonable. 82 Until November 2007, [NAME] [APPELLANT] was a casual employee of [NAME]. During her employment with [NAME] she was given the opportunity to access several training sessions run by both internal and external providers. Although qualified interpreters were not provided on many occasions, [NAME] sought to ensure that the information was conveyed to [NAME] [APPELLANT] in [NAME] ways. As a not for profit, charitable organisation, its primary obligation was the care of its clients, within its budget. [NAME] [APPELLANT] has not discharged her onus to demonstrate that the requirement was not reasonable in all the circumstances. 83 As [NAME] [APPELLANT] has failed to show that the requirement or condition that she participate in training sessions without the assistance of qualified interpreters was not reasonable, the allegation of indirect discrimination is not made out.

Staff meetings 84 [NAME] [APPELLANT] also alleges that [NAME] indirectly discriminated against her by failing to provide qualified [NAME] at staff meetings. [NAME] [APPELLANT] claims that [NAME] imposed a requirement or condition that she attend staff meetings without a qualified interpreter. She contends that the requirement was one with which she was unable to comply and was unreasonable. 85 Staff meetings at the [NAME] were initially held monthly. The staff meetings became fortnightly in late 2004.

A requirement or condition 86 [NAME] was aware of [NAME] [APPELLANT]'s desire for qualified interpreters at staff meetings following a meeting on 27 February 2004 between [NAME] [APPELLANT], [NAME], [NAME] (a senior staff member) and [NAME] (who interpreted at the meeting). The meeting was organised in response to an email from [NAME] [APPELLANT] to [NAME] stating that she was experiencing difficulties with [NAME] staff members and in understanding the parents of some clients. Both Mr [NAME] and [NAME] [NAME] have concluded their employment with [NAME] and neither was called to give evidence. 87 [NAME] [NAME] said that the participants at this meeting "acknowledged that communication was an issue and asked SensWide for support". She offered four [NAME] classes for [NAME] staff members and to interpret at some monthly staff meetings. [NAME] [APPELLANT]'s shifts were to be increased to eight hours a week in order to ensure that [NAME] would be eligible for a wage subsidy from the Department of Workplace Relations. 88 [NAME] [APPELLANT] stated that at her meeting with Mr [APPELLANT] and [NAME] [APPELLANT] on 23 July 2003, prior to her beginning her employment with [NAME], [NAME] [NAME]: said that there will be interpreters provided, TTYs, if [NAME] provide the work over 16 hours. If it's under that, then they won't provide that but if it's over 16 hours, then you'll have these provisions. And this was all explained to our team [NAME] and they said you're responsible to feed this information back up through the chain of the hierarchy back at [NAME] and she was responsible to tell the information when she returned. This correlates with [NAME] [NAME] recollection of the meeting on 27 February 2004. I find that [NAME] [APPELLANT] is mistaken in her recollection of the date of this meeting and that this evidence relates to what was said in February 2004 not July 2003. 89 I find that interpreters were discussed at the meeting on the 27 February 2004 as well as an increase in hours and wage subsidy, but not the need for special equipment, such as TTYs and flashing lights. As noted at [9] of these reasons, [NAME] [APPELLANT] appears to have been confused about the topics discussed at the two meetings that [NAME] [NAME] attended with [NAME] on 23 July 2003 and on 27 February 2004. 90 [NAME] [NAME] acknowledged that staff meetings "formed part of [NAME] [APPELLANT]'s roster and she was expected to attend" the meetings. [NAME] [NAME] also stated that the staff meetings involved: discussing each client, and what their needs are, and if there are any appointments coming up, or if there are any specific activities that they would be going to, and all staff are invited to participate in that. And if they're talking about incidents, or strategies — behaviour management strategies, all of those sorts that would be used by all of the staff[.] The staff meetings provided the [NAME] staff members with information to assist them to perform their employment. 91 From 27 February 2004, [NAME] imposed a condition or requirement that [NAME] [APPELLANT] perform her duties without the assistance of qualified interpreters at staff meetings as, with the exception of the [COMPANY] interpreting services provided by [NAME] [NAME], qualified interpreters were not provided at staff meetings.

A higher proportion of employees without the disability are able to comply 92 In this case the appropriate group for comparison is the [NAME] staff members without a hearing disability. Staff members without a hearing disability were able to comply with the requirement or condition that [NAME] were not provided at staff meetings. [NAME] members could access the information discussed at staff meetings aurally without the need for [NAME].

Is [NAME] [APPELLANT] unable to comply with the requirement or condition? 93 [NAME] [APPELLANT] contends that she was unable to comply with the condition as she could not participate in staff meetings without a qualified interpreter and points to her difficulty in accessing the information discussed at staff meetings in [NAME] forms. 94 Staff members interpreted for [NAME] [APPELLANT] at staff meetings. [NAME] [APPELLANT] gave evidence the [NAME] staff members had not undertaken any interpreting classes and that the staff member with the highest level of [NAME] training, [NAME], had completed three levels of basic [NAME]. [NAME] [NAME] resigned in December 2004. 95 In early November 2004, [NAME] [NAME] met individually with [NAME] [NAME], [NAME] [NAME] [NAME], and [NAME] [NAME] — three staff members who were the subject of complaints by [NAME] [APPELLANT]. Each staff member raised their concerns over communication difficulties they were experiencing with [NAME] [APPELLANT]. 96 On 27 January 2005, a follow-up meeting occurred between [NAME] [APPELLANT], [NAME], Mr [APPELLANT], [NAME] [APPELLANT], [NAME] [APPELLANT] and [NAME] [APPELLANT] to resolve the issues between them and [NAME] [APPELLANT]. A qualified interpreter was present at the meeting. General communication difficulties were identified as an issue by the participants. In particular, Mr [NAME] raised a concern: that [NAME] was just not getting enough information to do her job properly, she can't hear the everyday conversation that was going on around the house and not everything is written in the [[NAME] communication] book, she can't be expected to know what needs doing if people don't take the time to explain it to her.

97 [NAME] contends that there were [NAME] means by which [NAME] [APPELLANT] was kept informed of what took place at staff meetings, such as through minutes of the meetings and providing the information in writing to her. [NAME] considered that these methods of communication provided her with meaningful access to the information discussed at staff meetings. [NAME] [NAME], in her 6 September 2007 letter to [NAME] [NAME] stated: The minutes of all staff meetings are filed in a folder marked 'Staff Meetings' on the shelf in the staff office. They have always been kept there. It is a staff responsibility to read through the minutes each fortnight. [NAME] cannot realistically claim that she is deprived of any information that arises in the course of staff meetings. 98 [NAME] [NAME] acknowledged that she had received a number of facsimiles and emails from [NAME] [APPELLANT] regarding the provision of interpreters and her frustration with the interpreting by staff members. At the time, [NAME] [APPELLANT] reported to [NAME] [APPELLANT]. [NAME] [APPELLANT] stated that [NAME] [APPELLANT] seemed to be happy with [NAME] staff members interpreting for her at staff meetings. However, she also said that she did not usually attend staff meetings and that she had not asked [NAME] [APPELLANT] what her preferences were in relation to interpreters. In cross‑examination, [NAME] [NAME] admitted that she had received correspondence from [NAME] [APPELLANT] on behalf of [NAME] [APPELLANT] in July 2007. That correspondence discussed communication problems [NAME] [APPELLANT] was said to be experiencing. [NAME] [APPELLANT] also acknowledged that interpreters were not provided for staff meetings until May 2008. 99 [NAME] contends that the extent to which professional interpreters at staff meetings were required is debatable and cited examples when [NAME] [APPELLANT], by her own conduct, recognised the adequacy of the interpreting provided by staff members at meetings. On 19 February 2007, [NAME] [APPELLANT] sought a meeting with [NAME] [APPELLANT] and attended without arranging [NAME]. Similarly, on 21 May 2008, [NAME] [APPELLANT] suggested [NAME] for a staff meeting could be obtained "from [NAME] or outside, not from B[ungower Road] House staff". 100 [NAME] [APPELLANT] acknowledged that as the meeting on 19 February 2007 was unplanned, [NAME] did not have time to arrange a qualified interpreter. She said that she had been waiting for "many, many months" to speak with [NAME] [NAME] and [NAME] [APPELLANT]. In relation to the second example, [NAME] [APPELLANT] stated that she made the suggestion as a particular staff member from the day service, [NAME], had better signing skills than [NAME] staff members. She said that she believed that [NAME] would not book a qualified interpreter for staff meetings. [NAME] [APPELLANT] also claimed that she suggested a staff member from outside the [NAME] act as her interpreter as she felt a [NAME] staff member could not participate in the meeting and interpret for her simultaneously. 101 Much of the material before the Court relates to general communication difficulties experienced by [NAME] [APPELLANT] rather than her ability to access information discussed at staff meetings. However, the evidence supports the inference that these difficulties extended to her ability to participate in staff meetings. The information arising from staff meetings was made available to [NAME] [APPELLANT] in a number of [NAME] ways, such as staff members acting as interpreters and minutes of meetings. Nevertheless, [NAME] [APPELLANT]'s ability to cope with the requirement is not equivalent to an ability to comply with the requirement. She was unable to comply with the requirement or condition that she attend staff meetings without the assistance of a qualified interpreter.

Reasonableness 102 The factors outlined at [74] of these reasons were also relied on in support of the proposition that the requirement that [NAME] [APPELLANT] attend staff meetings without the assistance of qualified [NAME] was not reasonable. For the reasons outlined above, it is unnecessary to deal further with considerations (a)–(d) or (g) raised by [NAME] [APPELLANT]. 103 In relation to the [NAME] "relatively insignificant cost" of providing interpreters at fortnightly staff meetings, the evidence supports the proposition that the costs involved were significant. On 30 March 2004, a decision was made that [NAME] [NAME] attend and interpret at some staff meetings with SensWide to pay for the interpreting costs of some staff meetings and [NAME] to pay for the costs of [NAME] staff meetings. [NAME] [NAME] stated that this arrangement was to reduce the financial burden on [NAME]. [NAME] relied on the evidence of [NAME] [NAME], director of [NAME], as to the cost of obtaining interpreters for staff meetings. The figures provided by [NAME] [NAME] indicate that the cost to [NAME] of accredited [NAME] attending a two hour staff meeting would be approximately $700, an annual cost of some $18,000. [NAME] adduced no evidence as to its resources to meet that cost, the onus is on [NAME] [APPELLANT] to establish that the requirement or condition was not reasonable. [NAME] [APPELLANT]'s payment summaries tendered to the Court show that her wages were: · $12,428 in the financial year ending 30 June 2004; · $22,901 in the financial year ending 30 June 2005; · $8,927 in the financial year ending 30 June 2006; · $9,317 in the financial year ending 30 June 2007; and · $20,239 in the financial year ending 30 June 2008. In light of the discrepancy between her income and the cost of interpreters, I do not accept [NAME] [APPELLANT]'s submission that the provision of qualified interpreters at staff meetings represents a "relatively insignificant cost". In this respect, she has failed to show that the imposition of the requirement or condition was not reasonable. 104 [NAME] [APPELLANT] suggests that the "significant adverse consequences" she experienced indicate that the condition or requirement was not reasonable. [NAME] [APPELLANT]'s reception of the information raised in staff meetings would have been less than perfect, the evidence shows that the information was provided to her through [NAME] means. In [NAME] [NAME] email of 21 May 2008, she offered to ensure that staff members with a higher level of [NAME] training were in attendance at all staff meetings. [NAME] [APPELLANT]'s inability to comply with the requirement or condition does not result in the conclusion that she experienced significant adverse consequences. [NAME] [APPELLANT] continued in her employment and was able to perform her duties. The evidence does not support her contention that her wages and hours were reduced. Additionally, the language of the Act requires consideration of all the [NAME] circumstances, not simply the effect of the requirement or condition on [NAME] [APPELLANT]. 105 In light of the significant costs involved in providing qualified interpreters at staff meetings; the provision of the information in [NAME] ways, including minutes and the use of staff members as interpreters; [NAME] [APPELLANT]'s status as a casual employee and the relatively few hours she worked; [NAME] [APPELLANT] has not established that condition or requirement was not reasonable. No indirect discrimination arises in respect of the failure to provide qualified [NAME] at staff meetings.

"In all [NAME] situations" 106 [NAME] [APPELLANT] also [NAME] that [NAME] engaged in indirect discrimination as she required the provision of [NAME] "in all [NAME] situations where her hearing peers relied on the spoken word". 107 Unlike the failure to provide qualified [NAME] at staff meetings or install flashing lights, it is difficult to distil the requirement or condition [NAME] to have been imposed by [NAME]. It is unclear from her amended statement of claim what is meant by the claim. The allegation was not particularised. [NAME] [APPELLANT] has not indicated in which situations it is said that "her hearing peers relied on the spoken word". At its highest, the claim suggests that interpreters should have been provided at all times while [NAME] [APPELLANT] was working. As the requirement or condition cannot be assessed with precision, it is impossible to assess whether [NAME] [APPELLANT] was unable to comply with the requirement or condition, if it were imposed or whether it was not reasonable. 108 If the allegation [NAME] [APPELLANT] seeks to raise is that [NAME] discriminated against her by not providing qualified interpreters at all times, even if such a condition or requirement were imposed by [NAME], she has failed to show that the requirement or condition was not reasonable. No evidence was adduced in support of the proposition that the condition was unreasonable. Each of the factors discussed in relation to the provision of interpreters at staff meetings and training sessions applies equally to this claim. There is no evidence before the Court which suggests that [NAME]'s failure to provide [NAME] [APPELLANT] with a qualified interpreter at all times was not reasonable. This claim of indirect discrimination is not made out by [NAME] [APPELLANT].

ALLEGATIONS OF DIRECT DISCRIMINATION 109 [NAME] [APPELLANT] contends in her amended statement of claim at [17] that [NAME] treated her less favourably within the meaning of s 5 of the Act as it: (a) would not allow the Applicant to attend doctor's appointments with deaf clients but would allow [NAME] to do so;

(b) would not allow the Applicant to have the access code to the spare key to the [NAME] but would allow [NAME] to do so;

(c) would not allow the Applicant to work sleep over shifts but would allow [NAME] to do so;

(d) changed rosters to preclude the Applicant from working sleep over shifts;

(e) provided diverse training and professional development opportunities to [NAME] but not the Applicant;

(f) provided extra shifts to [NAME] in preference to the Applicant;

(g) provided formal contracts to [NAME] but not the Applicant;

(h) subjected the Applicant to restrictions that [NAME] were not subjected to.

Allegation (h) was not particularised. 110 [NAME] [APPELLANT] alleges that [NAME] directly discriminated against her in the terms or conditions of employment that she was afforded, in denying or limiting her access to opportunities for promotion, training or any [NAME] benefit and in subjecting her to [NAME] detriment; see ss 15(2)(a), (b) and (d) of the Act. She submits that the "[NAME] detriment" includes loss of income resulting from a reduction in the hours she worked. She also contends that [NAME] discriminated against her by awarding permanent and casual shifts and rosters to [NAME] when, given her experience, length of time at the [NAME], language ability and the preferences of clients, the shifts should have been allocated to her. She submits such conduct is a breach of s 15(1)(a), (b) and (c) of the Act. 111 The definition of direct discrimination in s 5(1) of the Act in place at the [NAME] time stated: For the purposes of this Act, a person ([NAME]) discriminates against another person ([NAME]) on the ground of a disability of the [NAME] if, because of the [NAME]'s disability, the [NAME] treats or proposes to treat the [NAME] less favourably than, in circumstances that are the same or are not materially different, the [NAME] treats or would treat a person without the disability.

(original emphasis.)

112 In [NAME] v State of New South Wales (2003) 217 CLR 92, Gummow, Hayne and Heydon JJ noted at [213] that the concept of less favourable treatment involves an objective assessment and comparison: of the treatment which the [NAME] gives, or proposes to give, to the [NAME] and the treatment that the [NAME] would give, or would propose to give, to a person without the [NAME]'s disability "in circumstances that are the same or are not materially different". The last phrase in s 5(1) qualified by s 5(2) of the Act, which provides that a disabled person's need for different accommodation or services does not constitute a material difference when determining whether the [NAME] has treated the disabled person less favourably than a person without the disability. 113 Section 5(1) of the Act requires that the circumstances surrounding the treatment of the disabled person are identified. What must then be examined is what would have been done in those circumstances if the [NAME] person were not disabled; see [NAME] at [223] per [NAME] and [NAME] JJ. These circumstances are the objective features that surround the actual or intended treatment of the disabled person by the [NAME]; see [NAME] at [224]. If the comparison reveals that the disabled individual was treated less favourably, the further question which must be asked is whether that difference was "because of" their disability; see [NAME] at [236] per Callinan J. 114 The [NAME] questions for determination are, firstly, how would [NAME] have treated a person in these circumstances without [NAME] [APPELLANT]'s profound deafness? Secondly, if the treatment of [NAME] [APPELLANT] was less favourable than the treatment that would be given to a person without her disability, was that difference because of her disability? Section 15 of the Act only applies if it is shown that [NAME] [APPELLANT] was treated less favourably than a person without her disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of [NAME] [APPELLANT]'s treatment. 115 In the present case, that the [NAME] "[NAME]" is an employee of [NAME], in a similar role, without [NAME] [APPELLANT]'s disability who also has her attributes. For example, the [NAME] in [APPELLANT] was a child without the applicant's disability who nevertheless displayed the same violent behaviour as the applicant; [NAME] at [222]–[225]. I will separately consider each allegation of direct discrimination and the [NAME] circumstances in relation to each allegation.

Doctors' appointments 116 [NAME] [APPELLANT] claims that [NAME] treated her less favourably than [NAME] in that it would not allow [NAME] [APPELLANT] to attend doctors' appointments with deaf clients but would allow [NAME] to attend appointments. She said that she was only permitted to attend medical appointments when she went with [NAME] and [NAME] mother, [NAME] [NAME], and did so on two or three occasions. 117 Mr [NAME] gave evidence that both [NAME] [NAME] and [NAME] [NAME] told him that "[NAME]" had said that [NAME] [APPELLANT] was not permitted to take clients to medical appointments as she was deaf and unable to communicate with doctors. However this evidence is hearsay and unsupported by [NAME] evidence. 118 [NAME] [NAME] stated that the majority of doctors' appointments were attended by the parents of clients and that [NAME] would provide a staff member, if requested, for support. There is also evidence that [NAME] [APPELLANT] attended a medical appointment alone with [APPELLANT], where communication with the doctor occurred through written notes. On [NAME] occasions, [NAME] [NAME] and [NAME] [NAME] each attended medical appointments with Mr [NAME] and his sons. This evidence is consistent with [NAME] [NAME] evidence that parents usually took clients to medical appointments and a staff member was provided, if requested, to accompany them for support. 119 There is no evidence that [NAME] [APPELLANT] was treated any less favourably than [NAME] staff members in this regard because the evidence fails to identify any occasion where a staff member attended a medical appointment alone with a client. This aspect of [NAME] [APPELLANT]'s claim fails.

Access code to the spare key 120 [NAME] [APPELLANT] claims that [NAME] treated her less favourably in that it would not allow her to have the access code to obtain the spare key to the [NAME] but would allow [NAME] to do so. 121 [NAME] [APPELLANT] admitted that she had not asked [NAME] [APPELLANT] for the access code until 2008, at which point [NAME] gave it to her. She said that before [NAME] was employed at the [NAME] she had asked [NAME] [NAME] for the access code but was told that casual staff members were not entitled to the code. [NAME] [APPELLANT] also said that following this incident she noticed [NAME] casual staff had access to the code. 122 [NAME] [NAME] said that [NAME] [NAME] had told her that she would give [NAME] [NAME] the access code, but added "you're not to give it to [NAME]". I found [NAME] [NAME] to be an unimpressive witness and give little weight to her statements. 123 [NAME] [NAME] said that the access code to the key to the front door was given to all staff who worked at the [NAME]. [NAME] [NAME] also stated that the access code was not a secret, as it was the first four digits of the [RESPONDENT] number. 124 This seems to be an issue of mismanagement and miscommunication rather than discrimination. I accept the evidence of [NAME] [NAME] that all staff should have had the access code to the front door. I do not accept that [NAME] [APPELLANT] was not given the access code prior to 2008 because of her casual status. That proposition conflicts with the evidence of [NAME] [APPELLANT]. Nevertheless, once management knew [NAME] [APPELLANT] had not been given the code, she was provided with the access code. There simply is no evidence to show any less favourable treatment in this regard and this allegation of direct discrimination is not sustained.

Sleepover shifts 125 [NAME] [APPELLANT] claims that [NAME] treated her less favourably in that it would not allow her to work sleepover shifts but would allow [NAME] to do so. She also alleges that [NAME] altered rosters to preclude her from working sleepover shifts. 126 [NAME] [APPELLANT] acknowledged that at the beginning of her employment with [NAME] she did not want to work sleepover shifts and made this known to [NAME]. She said that later in her employment there were sleepover shifts available and, as she desired more hours, she told [NAME] that she would be willing to work sleepover shifts. [NAME] [APPELLANT] admitted that she did not ask [NAME] [APPELLANT] if she could work sleepover shifts. [NAME] [APPELLANT] claimed that she had communicated her desire to work sleepover shifts to [NAME] [NAME] in a facsimile sometime in 2006 and at a meeting. [NAME] [APPELLANT] was unable to produce this facsimile and there are no minutes of any meeting where [NAME] [APPELLANT] requested sleepover shifts. [NAME] [APPELLANT] denies this exchange occurred. 127 This claim fails on the evidence. There is no evidence [NAME] than [NAME] [APPELLANT]'s own statements of her communicating her desire to do sleepover shifts. I accept [NAME] [APPELLANT] evidence that no request was made by [NAME] [APPELLANT] to work sleepover shifts. As [NAME] [APPELLANT] has no [NAME] skills, any meeting between [NAME] and [NAME] [APPELLANT] would have been a formal occasion with [NAME] present. The absence of minutes recording [NAME] [APPELLANT]'s [NAME] request supports [NAME] [APPELLANT] evidence that no request was made. 128 As far as management was concerned, [NAME] [APPELLANT] had communicated early on in her employment her desire not to work sleepover shifts. Whether or not [NAME] [APPELLANT] can or should work sleepover shifts is irrelevant. [NAME] [APPELLANT] was treated the same as any [NAME] employee who did not have her disability who had told management he or she did not want to work sleepover shifts — by honouring her request.

Roster allocations 129 [NAME] [APPELLANT] claims that [NAME] treated her less favourably in that it provided extra shifts to [NAME] in preference to [NAME] [APPELLANT], resulting in the reduction of her hours from the period 2003–08. She also alleges that permanent and casual shifts and rosters were given to [NAME] when the hours should have been allocated to her, in light of her experience, length of time at the [NAME], language ability and preference of the deaf clients and their parents that she work with them. 130 As discussed above, [NAME] [APPELLANT]'s claim that [NAME] would change rosters to preclude her from working sleepover shifts fails on the evidence. 131 There is little evidence of a reduction in [NAME] [APPELLANT]'s working hours. The amended statement of claim states that [NAME] [APPELLANT]'s hours were reduced from approximately 68 hours per fortnight in 2003 to approximately: · 45 hours per fortnight in 2004; · 34 hours per fortnight in 2005; and · 14 hours per fortnight in 2008. [NAME], in its defence, admitted the 2003, 2004 and 2005 figures as suggested in the amended statement of claim. However, on [NAME] [APPELLANT]'s own evidence, she worked only 24–34 hours per fortnight in 2003. Similarly, the rosters relied on by [NAME] [APPELLANT] show that in 2008 she was rostered to work between 15–33 hours per fortnight. This is supported by her payment summaries, referred to at [103] of these reasons, which show that her wages for the year ending 30 June 2008 were comparable to the years ending 30 June 2004 and 30 June 2005. It is also consistent with the evidence of [NAME] [APPELLANT] who stated [NAME] [APPELLANT]'s core hours remained constant throughout her employment. [NAME] contends that there is no evidence that [NAME] [APPELLANT] sought extra shifts. [NAME] [APPELLANT] gave evidence that [NAME] [APPELLANT] was invited to apply for additional shifts on the basis that whoever sought a roster line would have to commit to all the shifts on the roster line. In a letter dated 19 July 2005, [NAME] invited [NAME] [APPELLANT] to apply for [NAME] [APPELLANT] roster line but stressed that: Now that [NAME] has resigned from her position at [NAME], her roster line will be advertised and assigned, only after applicants have been interviewed. The roster line will NOT be broken up so that existing staff can take the shifts they want. It was this practise that had led to so many problems at [NAME]. You are welcome to apply but you must be able to commit to all the shifts in the roster line. [NAME] [APPELLANT] also gave evidence that [NAME] [APPELLANT] did not apply for any advertised positions at the [NAME], despite encouragement to do so. 133 [NAME] contends that [NAME] [APPELLANT]'s desire to only work at the [NAME] [COMPANY] her opportunities to undertake additional shifts. [NAME] also argues that, contrary to [NAME] [APPELLANT]'s claims, she was not excluded from working on Sundays or until 10.00 pm and that on occasion she was given extra paid hours; such as being paid to go on holidays with the [NAME] to Sydney and [NAME], to go to the Deaf Olympics and to attend a conference in Geelong. [NAME] [APPELLANT] [NAME] that the only reason she was given these extra paid hours was because Mr [NAME] and his sons requested her personally. [NAME] [APPELLANT] also rejected [NAME] [APPELLANT]'s claims that she was the most "qualified" to fill shifts at the [NAME] as [NAME] [APPELLANT] had no professional qualifications for the role at the time. 134 [NAME] [APPELLANT] admitted, in cross‑examination, that following [NAME] [NAME] resignation in January 2007, she was offered and accepted an additional three hours work each fortnight. [NAME] [APPELLANT] said that she would have welcomed the opportunity to apply for [NAME] [NAME] entire roster line, as there were no sleepover shifts on the line. She also complained that [NAME] used casual and agency staff rather than increasing her hours. 135 [NAME] [NAME] said that the roster was reorganised to "amalgamate unworkable short roster lines…to enable staff to meet the individual needs of the clients". [NAME] [NAME] also gave evidence that [NAME] used casuals and agency staff as "[w]e continued to be hopeful that we could recruit to the set roster lines and advertised positions regularly". She stated that all staff members, including [NAME], were required to apply and interview for vacant positions. 136 [NAME] [APPELLANT] said that she did not know where positions were advertised and that she had requested for [NAME] [NAME] to personally advise her via letter or email if advertisements for roster lines were placed, but she was never notified. She argues that if [NAME] had sought to "encourage" her, it could have advised her when positions were being advertised and assisted her to complete the [NAME] application. As it was, no staff member assisted [NAME] [APPELLANT] to apply for any positions. 137 [NAME] [APPELLANT] admitted that she did not apply for any positions offered by [NAME]. She stated that usually these positions did not suit her as they had a sleepover shift or conflicted with her classes. She also said that she sought to apply for some roster lines that had sleepovers but that [NAME] was unwilling to re-arrange the roster line to remove the sleepover shifts. [NAME] [APPELLANT] claimed that when [NAME] hired new employees it was flexible in rearranging the roster lines.

[NAME] 138 The [NAME] is a hearing employee of [NAME] who exhibited [NAME] [APPELLANT]'s attributes. That is, an employee who did not posses [NAME] professional qualifications and did not apply for additional shifts or advertised positions, or was unable to commit to all shifts in a vacant roster line.

Was there differential treatment? 139 There is no evidence to show that [NAME] [APPELLANT] was treated differently to a hearing employee in similar circumstances. [NAME] [APPELLANT] was aware of the need to apply for vacant positions and [NAME]'s policy of not altering roster lines. By not altering the roster lines, [NAME] did not treat [NAME] [APPELLANT] differently to the [NAME]. Similarly, [NAME] [APPELLANT] was not treated differently to [NAME] employees who did not apply for advertised positions as [NAME]'s policy was to require all employees to apply for positions. 140 [NAME] [APPELLANT]'s claim in relation to roster allocations fails.

Training and professional development opportunities 141 [NAME] [APPELLANT] claims that [NAME] treated her less favourably in that it provided diverse training and professional development opportunities to [NAME] but that these opportunities were not made available to her. She did not give evidence as to the ability of [NAME] staff members to enrol in or attend training sessions. 142 [NAME] [NAME] stated that a training calendar was organised at the beginning of each year and was available to all staff, with staff members informed of additional training sessions by memoranda. [NAME] [NAME] and [NAME] [NAME] each gave evidence that staff members applied for training sessions using an application form. [NAME] [APPELLANT] said that she never helped [NAME] [APPELLANT], nor explained to her how, to complete these forms. A memorandum from Mr [NAME] on 25 June 2007 listed available courses and instructed staff to apply for the training sessions "using the Staff Development Application Forms". [NAME] [APPELLANT] signed this memorandum on 29 June 2007, acknowledging her awareness of its contents. 143 [NAME] [APPELLANT] said that her attempts at applying for training courses "rarely were successful" as she experienced the following difficulties: a. She was not at the [NAME] as much as [NAME] staff and…I was just not always at the [NAME] at the time memos were first put out about it.

b. The training forms and/or memo were not in view even when I arrived for my shifts. …

c. At no time did a [NAME] approach me and tell me about training and ask if I wanted to go. …

d. There was no board for staff notices. Staff notices were often clipped to venetian blinds.

e. There was no special time in staff meetings to discuss training. It was left to staff to watch out for forms. This changed a little in the last six months of my work.

144 In February 2005, [NAME] offered Dementia and Down's Syndrome training. [NAME] [APPELLANT] was not selected for inclusion in the first training session and attended a training session run in April 2005. Mr [NAME] said that 38 employees applied for the training session but only 22 places were available. Priority in the allocation of places was given to employees working in areas where there were greater numbers of older clients with Down's Syndrome. [NAME] [APPELLANT] admitted in cross examination that she was aware that she was not the only [NAME] staff member who was excluded from the training session. [NAME] explained that the training was not [NAME] to her role, she "accepted that fact". [NAME] [APPELLANT] agreed that the April session was run for employees who had missed out on the first training session and that her inclusion in this session had nothing to do with interpreter arrangements, but was simply because a second session was offered. 145 [NAME] [APPELLANT] said that in 2005 she applied for a training course on Personal Outcome Measurement Systems; however her name was omitted from the list of staff members who were to attend the course. [NAME] [NAME] said that when she was employed by [NAME], she was the only person able to facilitate this training and that in any training course there were many more applicants than could be accommodated. She also stated that throughout 2004 and 2005 preference in allocating places in the Personal Outcome Measurement Systems course was given to the senior staff at [NAME] as they were responsible for managing the changes that were discussed in the training session. 146 [NAME] [APPELLANT] conceded that she was never told by anyone at [NAME] that the reason why she was unable to attend a training session was because [NAME] did not want to book [NAME]. She also agreed that, on occasions, there were more applicants than positions available in a given training course.

[NAME] 147 The [NAME] for the purposes of this claim is another employee, without [NAME] [APPELLANT]'s disability, who applied for training which was not directly [NAME] or who did not apply for a training session using the required application form.

Was there differential treatment? 148 [NAME] [APPELLANT] has not shown that [NAME] were able to attend a greater number of training sessions, being training sessions which were not [NAME] to their roles, or were able to attend sessions without completing the [NAME] application forms. The failure to include [NAME] [APPELLANT] in some training sessions is attributable to the training sessions not being [NAME] to her role or her failure to complete the necessary application forms. There is no evidence to indicate that there was any differential treatment of [NAME] [APPELLANT]. 149 [NAME] [APPELLANT] has not shown that any direct discrimination occurred on this ground.

[NAME] restrictions 150 [NAME] [APPELLANT] claims that [NAME] discriminated against her as it "subjected the Applicant to restrictions that [NAME] were not subject to". This allegation was not particularised by [NAME] [APPELLANT]. 151 As stated by Mason CJ and [NAME] in [APPELLANT] en liquidation v [COMPANY] (1990) 169 CLR 279 at 286: The function of pleadings is to state with sufficient clarity the case that must be met so as to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her, and to define the issues for decision. See also [NAME] v [NAME] [2002] FCA 883 at [4]–[5] per [NAME]. The allegation that [NAME] [APPELLANT] was subject to unspecified "restrictions that [NAME] were not subject to" fails to enable [NAME] or this Court to determine what allegations of discriminatory treatment are made. 152 A great deal of evidence was tendered by [NAME] [APPELLANT] in relation to matters such as driving the [NAME] bus, access to client files and a sock thrown at her by a fellow employee in an attempt to gain her attention. The worker involved in the sock-throwing incident later apologised and was reprimanded. However, it is unclear which of these relate to allegations of direct discrimination or what the less favourable treatment is said to be. It is not the role of this Court to amend the failings in the amended statement of claim. [NAME] [APPELLANT] was represented at the trial. That responsibility lay with her legal representatives. 153 As the less favourable treatment or restrictions cannot be identified with any degree of precision or clarity this claim also fails.

conclusion 154 [NAME] [APPELLANT] has not succeeded in establishing any direct or indirect discrimination by [NAME]. The application is dismissed. There are no special or unusual circumstances in this proceeding which dictate that costs should not follow the event; see [NAME] v [NAME] (No 2) (2001) 115 FCR 229 at [11] per Black CJ and French J. I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 27 November 2009 Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

Date of Judgment: 27 November 2009