In [The Applicant] v ACT Ambulance Service (Discrimination)  ACAT 61 the applicant claimed that the respondent unlawfully discriminated against her in her employment as a paramedic.
[The Applicant] joined ACT Ambulance in 1994 (). She was diagnosed with PTSD in 2012. In January 2013 and was assigned to the Communications Centre (). At :
The applicant took her dog … to work on 20 and 21 August 2017. On being advised that she was unable to bring [her dog] again, the applicant learnt that her dog needed to pass the public access test in order to be considered a service dog within the terms of the Discrimination Act 1991 (the Act).
On 17 April 2018 [The Applicant] was advised that it was proposed to transfer her from the Com Cen to the Non-Emergency Patient Transport Service.
The applicant advised that she did not want to move to the NEPT and secondly, wanted to bring [her dog] to work… Mr Wren [Chief Officer of ACT Ambulance] emailed the applicant on 23 May 2018 advising that she could not bring her support dog to work until a number of processes were worked through. He also asked the applicant to provide any relevant information regarding the proposed transfer that she wished him to consider by 6 June 2018.
On 2 August 2018 Mr Wren wrote to confirm that [The Applicant] could remain in the communications centre and that he was consulting with staff regarding [her dog]’s attendance at the work place. [Her dog] ‘passed the public access test’ (). The consultation with the Com Cen staff identified that one member had an allergy ‘to dog fur and dander’ ().
On 13 August 2018 the applicant lodged a claim with the Human Rights Commission.
On 30 August 2018 the applicant attended a meeting with her caseworker and a representative of the Justice and Community Safety Directorate (JACS) to discuss her roster in ComCen going forward.
On 7 September 2018 the applicant returned to work in ComCen with [her dog] after being advised that her shift had been moved forward one day so she was not working with the employee with the dog allergy.
Section 8 of the Discrimination Act 1991 (ACT) says:
A person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
Senior Member Brennan said (at ):
The issues for determination by the Tribunal are whether it should find that the respondent discriminated against the applicant in the proposal to transfer the applicant to the NEPT and due to its alleged delay in permitting the applicant to bring [her dog] to work. The issue of indirect discrimination arising from the transfer due to [her dog] being unable to join the applicant in the role is also at issue.
The argument was that the decision, or proposal, to transfer the applicant to the NEPT service was discriminatory if it fell within s 8. At -:
For there to be discrimination, the Act requires that the treatment is unfavourable. In Prezzi and Discrimination Commissioner  ACTAAT 132 (Prezzi) the then Discrimination Tribunal reasoned at paragraph 22 that in considering the Act:
… All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.
The applicant gave evidence for why she considered the move to NEPT was unfavourable to her, which included: “it would be quite detrimental to me and I don’t think I could operate even after the first or second patient because hidden suffering is one thing that I can’t cope with anymore.”
The respondent rejected the categorisation of the proposal to move the applicant to the NEPT as unfavourable. It referred the Tribunal to sections in the INA which opined that ComCen was not the appropriate workplace for the applicant and noted further, the self-reported evidence from the applicant and Ms O’Sullivan that the applicant was deteriorating in being exposed to events which caused trauma and exacerbation of her symptoms.
At  the Senior Member said:
There is conflicting evidence before the Tribunal as to whether the proposed move was unfavourable to the applicant. While her strong preference for remaining in ComCen is clear, comments within the INA, including those attributed to Dr Morvai, that the applicant’s ongoing employment within ComCen and ESA has “risks” for increasing her anxiety and exposing her to “triggering events” provide a contrary view. Given the conflicting evidence, on balance, the Tribunal does not consider the applicant was treated unfavourably and/or subjected to a detriment by the proposed transfer.
In writing to the applicant Mr Wren also raised the issue of her safety and that of the community. There was evidence regarding concerns of the applicant’s ability to cope with the pressure in the ComCen. At - the Senior Member said:
It is evident that in such a crisis environment, the applicant’s colleagues and the wider community need each ComCen member to be able to perform their critical functions at all times…
In his role Mr Wren has responsibility for “the general management and control of the ambulance service” (section 28(3)). The Tribunal is satisfied that this overriding responsibility to the wider community to ensure that ComCen was running to its optimum level was also a consideration in the 29 April 2018 letter.
Additionally, the Tribunal also notes section 30 of the Act which provides that “This Act does not make unlawful anything done necessarily for the purpose of complying with a requirement of – (a) A territory law; …’’. Clearly, this defence to a potential claim of discrimination could extend to provisions in legislation such as Work Health and Safety Act 2011 and Emergencies Act 2004 identified above.
On balance, when considering all the reasons for why the proposal was made, the Tribunal finds there were additional reasons beyond the applicant’s disability and section 30 leaves no doubt that the respondent has obligations to comply with other ACT legislation, such as the two Acts detailed above.
As for the delays in confirming that the applicant could bring [her dog] to work, the Senior Member said (-):
Once the applicant provided evidence of the dog’s accreditation on 17 July 2018, there is no doubt that the respondent could have acted more promptly in undertaking the steps detailed in section 4 of the Animals in the Workplace Guideline … different JACs Directorate employees were responsible to have progressed the workplace’s response to a service dog being at work. While the process was arguably poor, particularly given the prompt and proactive action taken by Ms Lundy in August 2017, the Tribunal does not find that this equates to unfavourable treatment of the applicant due to a protected attribute. In short, the delay of approximately seven weeks, was not so significant such as to give rise to such a claim.
Further, the Tribunal does not consider the failure of the respondent taking action, prior to being notified of [her dog]’s accreditation, equates to discrimination within the terms of the Act. Clearly, it was possible that the dog may not have passed the accreditation requirements.
Finally, at  ‘It follows that having regard to the requirements of the Act in this case, the Tribunal dismisses the application’.
It is unlawful to discriminate on prohibited grounds, including disability. But an employer, such as ACT Ambulance, also has to ensure that it can meet its statutory duties and that the conduct of the workplace does not expose workers and others to unreasonable risks to their health and safety. Balancing those demands is clearly complex. Actions taken to comply with another Act of the ACT are not unlawful even if they do constitute discrimination under the Discrimination Act.
The Discrimination Act does not require an employer to meet the employee’s subjective demands or address their perception of discrimination (). Whether a person has been discriminated against is an ‘objective’ test taking into account both the actions (or inactions) of the employer and the legal obligations upon that employer.