New South Wales — Sydney Trains v Annovazzi [2024] FCAFC 120
Facts
Ms Annovazzi applied for a trainee train driver position with Sydney Trains in March 2017. Ms Annovazzi had been diagnosed with Asperger’s Syndrome and ADHD prior to her application. In her application, she answered “no” to the question: Do you have any impairment or condition which would affect your ability to perform the job for which you have applied?
In May 2017, as part of the recruitment process, Ms Annovazzi was required to attend a pre-employment health assessment which included a health questionnaire and a clinical examination. Ms Annovazzi answered “no” to several questions in the questionnaire including:
Are you currently being treated by a doctor for any illness or injury?
Are you receiving any medical treatment or taking any medication (prescribed or otherwise)?
Have you ever had, or been told by a doctor that you had a psychiatric illness or nervous disorder?
Ms Annovazzi’s evidence was that she verbally disclosed her diagnoses of Asperger’s Syndrome and ADHD and previous prescribed use of dexamphetamine to the doctor conducting the health assessment. The examining doctor did not record any verbal disclosure in his notes and Ms Annovazzi progressed in the recruitment process.
After the medical examination but before commencing employment, Ms Annovazzi was prescribed dexamphetamine to manage her medical conditions, which she began regularly taking. Shortly after Ms Annovazzi commenced the driver training course, she messaged her manager to inform him that she took medication from time to time and wanted to report it in case it was detected in workplace drug testing.
Sydney Trains initially sought to obtain further medical information / conduct a further assessment to confirm Ms Annovazzi was fit to undertake train driving duties. However, some time after this Sydney Trains instead took the view that Ms Annovazzi was dishonest in the recruitment process and had failed to disclose her medical conditions / medication during the recruitment process.
One of the reasons Sydney Trains claimed to take this view was because there were no references to any medical conditions / medication in the examining doctor’s notes. Ms Annovazzi’s employment was terminated shortly after this for failing to disclose pre-existing undiagnosed medical conditions and use of prescription medication.
Decision at first instance
Ms Annovazzi alleged Sydney trains unlawfully discriminated against her by dismissing her on the basis of her disabilities, which were Attention Deficit Hyperactivity Disorder (ADHD) and Asperger’s Syndrome.
Sydney Trains alleged that it terminated Ms Annovazzi’s employment because she failed to disclose her medical conditions as part of a pre-employment disclosure process, which had been requested for safety reasons.
The primary Judge found that Sydney Trains unlawfully discriminated against Ms Annovazzi by keeping her out of the driver training course and by dismissing her. Sydney Trains appealed this decision on various grounds.
Decision on appeal
The Full Court upheld some of the grounds of appeal and rejected others. It ordered the matter to be referred to a mediator and otherwise remitted to the primary judge to be determined. The Full Court declined to make an order for costs and stated that each party should bear its own costs having regard to the mixed outcome of the appeal.
This case note explores the reasoning of the Full Court, which has broader relevance for the general protections under the Fair Work Act.
Appeal
Sydney Trains appealed on the grounds that the primary judge had made various errors, including that:
section 5(1) of the Disability Discrimination Act 1992 (DDA) was incorrectly applied;
incorrect findings were made in connection with Ms Annovazzi being kept out of the driver training program;
incorrect findings were made as to the identity of decision makers involved in the dismissal decision and causation; and
a finding was incorrectly made that Sydney Trains breached section 30 of the DDA.
The key point, and the point with broader relevance, was about the identification of the decision maker. The Full Court made several general observations about the DDA which have relevance for other areas of law, including the general protections regime under the Fair Work Act 2009 (FW Act).
The Full Court held that focusing on a “decision maker” or on a “decision” can distract from the central question, which is why the aggrieved person was treated as he or she was. Confining the analysis to a specific decision maker risks distracting from the central question, which requires an identification of the conduct said to be discriminatory and an examination as to why that conduct was engaged in. This is highly fact dependent, and in some cases requires examination of acts, conduct and reasons beyond those of a notional decision maker.
In the case of companies, resolving the central question is determined by applying common law principles of attribution, subject to the particular statutory context. The Full Court also held that common law principles of aggregation may be relevant, where a decision is made by more than one individual within a company. In general terms, common law principles of aggregation require separate information held by an officer or agent to be aggregated with that held by another if there is a duty and opportunity to communicate it to the other. Principles of aggregation depend on the statutory context and on the particular substantive rule. The Full Court considered that these rules were broadly consistent with the reasoning employed in the leading case of Wong v NAB (in the general protections context), however, cautioned that the statutory context under the FW Act is distinct from that of the DDA. In that case, the Full Court held that a purported decision maker (in the general protections context) may incorporate the state of mind of other people (in making a decision) by adopting facts or opinions asserted by others. It follows that a decision may be actuated by a prohibited reason if the decision maker acts on ‘tainted’ information or advice provided by others.
Sydney Trains challenged a finding by the primary judge that a particular employee (Ms Samassa) was not the sole decision maker. The Full Court rejected this challenge, stating that there was a process of decision making that involved persons other than Ms Samassa in respect of which preparing the termination letter was the final step. This was consistent with multiple decision makers influencing the decision to terminate Ms Annovazzi’s employment.
The Full Court ultimately allowed the appeal (in part) on the basis that the primary judge had mistakenly characterised the decision makers responsible for the decision to terminate Ms Annovazzi’s employment. The Full Court also held that the primary judge’s reasoning as to causation contained several interrelated assumptions, which were unsupported by evidence and which fell into error. Appeal grounds which challenged the primary’s judge’s identification and application of a hypothetical comparator for the purpose of section 5(1) of the DDA were rejected.
So What?
This decision traversed technical legal provisions and arguments. However, there is relevance beyond the technical legal aspects for business owners and HR. We have outlined some key insights for business decision makers below:
Employees (including more junior employees) who have input into a decision to dismiss can be found to be part of the decision-making process. Where input from multiple people is sought or required, it is important to be clear about the reasons why the decision is being made and the facts or assumptions being relied on.
Simply because one senior employee (for example, within the HR function) has prepared and signed a termination letter does not mean that others are not also decision makers for the purpose of discrimination laws or the general protections regime under the FW Act.
in discrimination cases, the focus is on why the aggrieved person was treated the way he or she was. Risk based decisions made by employers should be mindful of this focus.
Our employment team has prepared an update on a recent Full Federal Court decision in connection with discrimination and related workplace laws. Please click on the link below view the PDF.
