An Aboriginal land council has failed to overturn an order that it pay almost $22,000 compensation to a casual survey worker for ceasing to offer him work because of his epilepsy.
As a result of the appeal, the Deerubbin Local Aboriginal Land Council will be required to pay an additional $2000 to the family of the worker, who died after the appeal was heard but not determined.
The land council engaged the indigenous worker as a casual between July 2003 and October 2005 to monitor work on construction projects to prevent damage to any unearthed Aboriginal cultural artefacts (see Related Article).
After having an epileptic fit at a worksite in March 2005, he was offered less work than previously, and, after being hospitalised for seizure-related treatment in October, he wasn't offered any further work.
The Administrative Decisions Tribunal upheld his disability discrimination complaint, rejecting the land council’s assertions that it had offered him less and then no work because of a downturn in construction work rather than his disability.
In making its decision, the Tribunal accepted that the worker had not received as much work and had been more affected by the downturn than another worker on the same casual register who did not have a disability.
The land council argued in its appeal that the Tribunal had failed to give it sufficient notice or opportunity to provide information on the person chosen as the comparator. However, the appeal panel rejected this, saying that the land council had given oral and written evidence on the use of other employees as comparators.
It also maintained the Tribunal was wrong in using the other employee as the comparator because of differences in their circumstances and that the Tribunal had reversed the burden of proof to the land council when it assisted the worker to correct deficiencies in his case.
"The problem with the Land Council's submission about causation and the drawing of inferences is that it assumes that the Tribunal may only have regard to [the worker’s] evidence when determining whether an unavoidable inference of disability discrimination arises", the appeal panel said.
“If a respondent chooses to adduce evidence on that issue, the Tribunal may have regard to all the evidence in determining whether the legal burden has been discharged. That does not mean that the legal burden of proof shifts to the respondent.”
In arguing that the Tribunal had incorrectly determined economic loss, the appeal panel found that the Tribunal calculated economic loss of $5,810 from March 5, 2005 to December 29, 2005 and $6,000 from December 30, 2005 for a further year. This total $11,810 was added to the amount of $10,000 for general damages.
The land council argued the calculations were wrong because the time periods exceeded the period of the complaint; incorrectly assessed the first period of economic loss and failed to discount the amount on the basis that the worker had failed to mitigate his loss.
The appeal panel said that the Tribunal had correctly found that while an alleged breach must occur within the period of the complaint, the financial loss can continue after the end of the complaint period.
In reconsidering the calculations of the first period, the appeal panel found that the Tribunal had incorrectly ruled that his economic loss was $5,810 when it should have been $7,951.40, not an amount smaller than $5,810 as argued by the Land Council.
This meant that the total economic loss was $13,951 and the total damages should be $23,951.00.
The panel upheld the land council’s argument that there had been insufficient discounting of the amount to offset the worker’s failure to mitigate his loss, but that it was not appropriate to apply this discount to the initial period when he was still being offered some work by the Land Council.
Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15 (7 May 2012)