Case: Power v Aboriginal Hostels Limited [2003] FCA 1475 ; (2003) 133 FCR 254
Outcome: followed
In Power v Aboriginal Hostels Limited [2003] FCA 1475 ; (2003) 133 FCR 254 Selway J held that it is the imputed disability which is relevant. His Honour said at [15]-[18]: 15 The next question is whether the appellant is unable to perform those duties 'because of his disability'. That question was not addressed by the learned Federal Magistrate. In my view the failure to address that question was an appealable error. If the question had been addressed then there are two possibilities. The first is that the 'imputed disorder' of depression is the relevant disability. Alternatively, his actual condition of an adjustment disorder (from which he seems to have recovered) is the relevant disability. 16 The appellant's submissions assumed that the relevant disability was the actual condition of the appellant at the time of his termination. On that basis the appellant submitted that he could perform the inherent requirements of the position - indeed, he was doing so for the four weeks before his employment was terminated. Consequently, he argued, s 15(4) of the DDA had no application. 17 On the other hand the respondent's submissions assumed that the relevant disability was the imputed disorder of depression, notwithstanding that the appellant was not suffering from that disability. On this basis the respondent argued that in light of the report of Dr Ducrou the appellant was unable to comply with the inherent duties of the position. 18 So far as my research reveals, there is no authority directly on point. The definition of 'disability' in s 4 of the DDA purports to be an exhaustive definition, 'unless the contrary intention appears'. There is no obvious contrary intention disclosed by s 15(4). Nor is there any obvious reason to imply one. The DDA is principally directed to the elimination as far as possible of 'discrimination against persons on the ground of disability' in relevant areas (s 3 DDA). It is not directed at achieving 'fair outcomes' as such. Consequently what is prohibited is discriminatory behaviour based upon disability. 'Imputed' disability is sufficient for this purpose. What the DDA prohibited in this case was not the dismissal of the appellant for a reason which was wrong, but the dismissal of the appellant who had a disability (albeit an imputed one) in circumstances where a person without a disability would not have been dismissed. When it is understood that the DDA is directed at the ground of discrimination (which includes imputed disability) and not 'fair outcomes' then there seems no reason to imply that 'disability' appearing in s 15(4) of the DDA does not include imputed disability. 64 Additionally to his Honour's observations, it can be said that it is likely that the word "disability" wherever it appears in s 15(4) is referring to the same thing. Where first appearing, "disability" is obviously referring to the discrimination alleged against the employer seeking to rely on the defence. If that discrimination was on the ground of imputed disability, then "disability" means imputed disability and the later expression "his or her disability" refers to the disability imputed to the employee alleging discrimination. 65 Since s 15 as a whole is setting up a norm of conduct, it is to be read as addressed to employers as at the time they are contemplating potentially discriminatory conduct. Subsections (1) and (2) tell employers what they must not do. Subsections (3) and (4) tell them in what circumstances they may lawfully do what would otherwise amount to unlawful discrimination. This suggests that what subs (4) is concerned with are circumstances known to the employer at the time. However, consistently with the philosophy of anti-discrimination legislation (see [58] above), the criterion is an objective one as is indicated by the reference to "all other factors that it is reasonable to take into account". The relevant circumstances include the nature of the imputed disability in the light of such medical investigation as may be reasonable and the availability of reasonable treatment.