Case: Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562
Outcome: referred to
cases have characterised the requirement to participate and receive classroom instruction without Auslan interpreters as a "requirement or condition" within the meaning of s 6 of the Act; see eg, Clarke and Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562. In Clarke both the trial judge and Full Court found that not providing Auslan interpreters 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 Stone JJ. Similarly, the Court in Hurst 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 Auslan interpreters; at [130] per Ryan, Finn and Weinberg JJ. Focus submits that cases such as Clarke and Hurst must be treated with caution as they are education, rather than employment, cases. Ms Devers 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. Ms Devers alleges that she was denied meaningful access to her employment as she could not comply with the requirements imposed. Moreover, counsel for Ms Devers argues that Focus'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. The third step in the analysis is to determine whether Ms Devers was able to comply with the requirement or condition. The Full Court in Hurst at [134] stated if: a disabled person will suffer serious disadvantage in complying with a requirement or condition of the relevant 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 To succeed in her claim, Ms Devers 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 Focus will not be discriminatory. As with the other aspects of her claim, the onus is on Ms Devers to prove that the requirement or condition imposed was not reasonable in all the circumstances. ANALYSIS OF INDIRECT DISCRIMINATION CLAIMS Request for a TTY A major issue in contest in the proceeding is whether Ms Devers required Focus to provide her with a TTY before it ultimately provided her with one in July 2008. Ms Devers 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. Ms Devers was able to "cope" with the condition as another staff member was required to be in the CRU at all times. Nevertheless, the relevant test is whether Ms Devers was able to comply with the requirement; see Hurst at [134]. The Court in Hurst noted that an inability to comply may shown if "a disabled person will suffer serious disadvantage in complying with the requirement or condition"; at [134]. Ms Devers 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 other 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, Focus had also purchased a pager which provided staff members with a means of attracting Ms Devers's attention. Her work consisted of caring for the clients at the Bungower Road CRU and she has not shown that her inability to answer the door led to any serious disadvantage. It is a requirement with which Ms Devers was able to comply in performing her employment. Similarly, Ms Devers has not demonstrated that the requirement was unreasonable in all the circumstances. Her counsel placed considerable emphasis on Focus's failure to plead reliance on s 15(4) of the Act. However, the onus is on Ms Devers to demonstrate that the requirement or condition was one which was not reasonable in all the circumstances. At the time, Ms Devers 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, Focus's policy was to not have staff members alone at the Bungower Road CRU at any time. Given Ms Devers's hours, the policy that staff members not work alone at any time and the incidental nature of the task, Focus's imposition of the requirement or condition that Ms Devers carry out her employment without the aid of flashing lights was reasonable. Ms Devers's claim of indirect discrimination as a result of the failure to provide flashing lights prior to their installation in 2007 fails. Training sessions