Abraham v Thomas
[2020] ACAT 41
•15 June 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ABRAHAM v THOMAS (Discrimination) [2020] ACAT 41
DT 13/2019
Catchwords: DISCRIMINATION – whether the applicant had the protected attributes of disability or immigration status – whether the applicant was discriminated against on the basis of disability or immigration status – whether there was unfavourable treatment – whether there was a causal connection between the unfavourable treatment and the applicant’s protected attribute – damages for unfavourable treatment based on immigration status – claim of immigration based on disability dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 18, 21
Discrimination Act 1991 ss 5AA, 7, 8
Human Rights Commission Act 2005 ss 53CA, 53E
Cases cited:Kovac v The Australian Croatian Club Ltd [2014] ACAT 41
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v New South Wales (2003) 217 CLR 92
Tribunal: Senior Member D Mulligan
Date of Orders: 15 June 2020
Date of Reasons for Decision: 15 June 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL DT 13/2019
BETWEEN:
NINUMOL ABRAHAM
Applicant
AND:
ROSE MARY THOMAS
Respondent
TRIBUNAL: Senior Member D Mulligan
DATE:15 June 2020
ORDER
The Tribunal orders that:
1.The application under section 8(2) of the Discrimination Act 1991, relating to discrimination on the basis of disability is dismissed.
2.The application under section 8(2) of the Discrimination Act 1991, that the respondent directly discriminated against the applicant by treating the applicant unfavourably, namely requiring the applicant to work hours beyond that contracted without compensation and by requiring the applicant to participate in a cash back scheme, because of a protected attribute, namely her immigration status, is proved.
3.Pursuant to section 53E(2)(b) of the Human Rights Commission Act 2005, the respondent is ordered not to repeat the unfavourable treatment, referred to in order 2, in relation to any future employees:
4.Pursuant to section 53E(2)(c) of the Human Rights Commission Act 2005 the respondent to pay the applicant the sum of $17,940.92.
………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
1.The applicant in this matter, Ms Ninumol Abraham, is originally from Malayland in India.
2.By profession she is a chef specialising in Indian cuisine.
3.In late 2017, the applicant and her family were living in Auckland, New Zealand, where the applicant was working as a chef.
4.In October 2017, the respondent, Ms Rose Thomas, owned a restaurant known as Binnys Kathitto (the restaurant), which was located at 5 Lonsdale Street, Braddon, ACT.
5.The respondent was assisted in running the restaurant by her husband, Mr Binny Babu.
6.On or about October 2017, the respondent and her husband concluded that they needed to employ another chef, one who had specific skills in cooking South Indian cuisines; which especially includes dosa and parotta.
7.By January 2018, Ms Thomas and Mr Babu had decided to employ Ms Abraham.
8.Ms Thomas wrote to the Department of Immigration and Border Protection seeking to sponsor Ms Abraham on a subclass 457 visa.
9.On or about 11 January 2018, the applicant signed a full-time employment contract[1] (the contract) for the position as a cook at the restaurant. One of the conditions of employment was that “This contract will apply on approval of your application for subclass 457 visa by the DIBP.”
[1] Exhibit Annexure A
10.The applicant was to be paid a base salary of $55,000 per year and to receive superannuation at the rate of 9.5%, bringing the total annual remuneration based to $60,225.
11.The duration of the contract was for a period of two years, although that could be renewed by mutual agreement.
12.The applicant was engaged to work 38 hours per week.
13.Under the contract, Ms Abraham was entitled to four weeks paid annual leave “at the completion of 12 months employment. Annual leave will be taken at a mutually convenient time each year.”
14.Under clause 13 b), the contract could be terminated by the employer, or Ms Abraham, on giving four weeks’ notice of termination, in writing.
15.The employer could also terminate the contract, under clause 13 d), without notice if the employee engaged in serious misconduct, being “misconduct of any kind such that it would be unreasonable to require the employer to continue the employment”.
16.On 31 January 2018, the respondent wrote to the Department of Immigration and Border Protection[2] asking the Department to expedite the applicant’s visa application so that she could more quickly take up her duties.
[2] Annexure A to Mr Babu’s statement
17.Ultimately, that application was successful and the applicant, along with her family, moved to the ACT.
18.The applicant commenced work at the restaurant on 29 May 2018. She continued working at the restaurant until 14 January 2019, when her contract was terminated in writing,[3] by Ms Thomas.
[3] Attachment F to Ms Thomas’ statement
19.According to Ms Abraham, the work conditions were not as she expected.
20.Her evidence was to the effect that she was obliged to work six days per week (Tuesday – Sunday) and that she was rostered to work between 9:00am to 2:30pm, and then again from 5:00pm to 10:30pm, although she often worked later if the restaurant was busy.
21.The applicant believes she regularly worked between 60 to 70 hours per week, considerably more than the 38 hours she agreed to work under the contract.
22.Ms Abraham also complained that from time to time her salary was not paid on the scheduled day and that on those occasions, when challenged about the late payment, Mr Babu would tell her “when I have the money I will pay you”. According to Ms Abraham, Mr Babu, would threaten to send her back to India.
23.Ms Abraham also complained that she was required to pay the respondent the sum of $511.40 each fortnight. The sum had to be paid in cash. The money was given to one of Ms Abraham’s colleagues, who in turn passed it on Mr Babu by putting it in the restaurant’s locker.[4]
[4] Ms Abraham’s statement paragraphs 5-6
24.According to Ms Abraham, she was told that this money was required to pay her tax.
25.Ms Abraham also complains that she was required to pay Mr Babu $100 for each day of leave she took, including sick leave. This was required so that the restaurant would cover the cost of replacement staff.[5]
[5] Ms Abraham’s statement paragraph 7
26.According to the restaurant’s records Ms Abraham took one days’ sick leave on 9 June 2018 and another day’s sick leave on 13 November 2018.[6]
[6] Annexures G & H to Mr Babu’s statement
27.From the perspective of Ms Thomas and Mr Babu, the applicant was not a satisfactory employee. They did not consider her cooking to be of an appropriate professional standard.
28.According to the respondent, she and Mr Babu were not alone in their view of the applicant’s abilities in the kitchen. They allege that on or about 25 June 2018, the restaurant manager, Ms Shojin Thomas (no relation to the respondent), complained to her that the applicant did not appear to know how to make dosa and parotta and was struggling with some basic main dishes and curries.
29.The respondent and Mr Babu were disappointed with the applicant’s abilities but elected to retain the applicant’s services, whilst offering her some training.
30.The respondent and Mr Babu say they met with Ms Abraham between about 4:00pm and 5:00pm on 28 June 2018, when they discussed their concerns about Ms Abraham’s cooking ability. The minutes of the meeting[7] record the following:
Binny and I opened the discussion by explaining Ninumol that your curries are not tasty and it is not prepared as we trained you. We are receiving complaints from customers and customers are telling us that is not tasting like before. We told Ninumol that we are shocked to realise that she was not able to use the grill properly and was not able to do basic Dosa or Roti properly, Porata was just average homestyle cooking. We were in doubt whether she was actually a head chef, as she mentioned during interview. But still were willing to accommodate you thinking that giving more training would improve. We want you to concentrate and improve in your cooking skills as we have sponsored and brought you here with high expectation. We also told her that we really work hard to bring our restaurant to this level, please do not put us down with these bad reviews from the customer. It was noticed that Ninumol was not taking over the grill to prepare the dosa, parotta and kaithitto so we advised her that she should start taking grill section as mentioned in your duties and responsibilities.
[7] Annexure D to Mr Babu’s statement
31.The applicant was not given a copy of the minutes.
32.A few hours later, at about 7:21pm on 28 June 2018, the applicant was sent a text message[8] outlining the need to undertake some training. It is unclear from the evidence as to whether the text message was sent by the respondent or by Mr Babu. The text of the message was as follows:
Chef/Ninumol!!
Official Message:
Ninumol requires lot of training in various items. Important focus1:
Tuesday, Wednesday and Thursday Ninumol is assigned to the following duties: preparation and making of Dosa, Parota an gulab jamun
[8] Annexure C to Mr Babu’s statement
33.According to the respondent, she and Mr Babu had several meetings with Ms Abraham relating to her performance issues and poor attitude. On each occasion, the respondent alleges that Ms Abraham would agree to change and improve, but she never did.
34.According to the respondent, Ms Abraham did not show any interest in improving and that whilst at work she would regularly be using her mobile phone for chats with friends and relatives.
35.The respondent also complains that “on numerous occasions, she (Ms Abraham) would leave work early and come to work late.”
36.I accept that the respondent had issues with the applicant’s cooking abilities and theses concerns were raised with her on a number of occasions, from at least 28 June 2018.
37.The applicant also had a number of complaints about the way she was treated as an employee.
38.At about 4:53pm on Sunday, November 11, 2018, the applicant sent the respondent an email in which she set out her grievances. The email was as follows:[9]
Dear Rose
Good morning, I hope you are having a good day and enjoying your time off with newborn. I wish you a great time with little girl. As you are aware I haven’t been paid for the last fortnight. Could you explain why I didn’t get paid, my family depends on my payment. Your husband Binny has told me that he can only pay me whenever he has money. It’s unfair and there are good Binny, your husband spoke with me under the influence of alcohol and intimidate me and was inappropriate while I was on shift work at Binny Cahitto. I am giving back $511.40 every fortnight before you pay me my salary. I have been doing it since My 2018. As you have told me that this is to pay tax, I still can’t understand this. I have great concerns for this. Binny, your husband has told me he is going to cancel my visa and me and my family get deported because you are the sponsor for me here when I asked him about my salary yesterday which was due on 05/11/18, I am under huge stress and I haven’t paid my rent and struggling to buy groceries for my family. Please speak to your husband and not to intimidate me, specially after drinking alcohol. I would like to get 2 days off in a week. As you are aware I come to work in the morning at 9 am and leaving 10:30 pm six days a week. I understand i get 2 hours break between 9 am – 10:30 pm. This break time subject to food orders, there are many time we could not even afford to have this break. I am struggling with this roster. I may ask you to give me 2 days off per week. As you have promised me giving my agreed salary, which not happening, you have told me you provide adequate staff to the restaurant, that is not happened yet. I was told by the manager Shoji that I can’t take any leave for next one year even if I am sick, Can you explain me why?. It is cool to say these things. I am fearful of my wellbeing as your husband intimidate me by threatening that he will go to immigration and cancel my visa. I came to Australia with great hope and enthusiasm and to be a great worker for your restaurant. He has mentioned to me and other team members such as Shoji the manager, head chef Majesh that any faulty items in the kitchen needs to be repaired by us, with our salary (which is not even paid on time). My entitled salary has paid late on many occasions, can you explain me why?. I understand you are the owner and your husband running at Binnys Cahitto. I feel like he is controlling my life. I would like to see you to discuss these critical matters ASAP. Looking forward to hear from you.
kind regards
Ninumol Abraham
[9] Annexure B to Ms Abraham’s statement
39.According to Ms Abraham, she met with the respondent, Mr Babu and Ms Shojin Thomas at about 8:00pm that same evening. The meeting was held in the toilet at the restaurant. According to the applicant she was told that Mr Babu would sack her and send her to India if she made any further allegations.
40.According to Ms Shojin Thomas, she attended that meeting during which Mr Babu acknowledged that the content of the email was correct but that for his own sake he would reply to the email by saying that the allegations were false.
41.According to the respondent and Mr Babu, Ms Abraham apologised to them during the course of the meeting and explained that she understood the email was untrue and it had been written by Ms Abraham’s husband as he was angry that her salary had been delayed.
42.According to the respondent, she explained to Ms Abraham that the reason for the delay in her salary was that business had been poor in the previous three weeks and there were insufficient funds to make ends meet.
43.According to the respondent, the balance of the meeting was spent in discussion about Ms Abraham’s job and asking her to try and learn to cook certain types of food.
44.The following day, at about 2:48pm (12 November 2018), the respondent and Mr Babu wrote to Ms Abraham, in the following terms:[10]
Dear Ninumol,
As discussed in our meeting yesterday along with my Husband, Binny and Manager Shoji as a witness, we would like inform you the below email contain are false allegation against us and whatever is written is inappropriate. If you have any further concerns, we are happy to meet and discuss this matter.
Best regards,
Rose & Binny
[10] Annexure C to Ms Abraham’s statement
45.According to Mr Babu, he and the respondent provided several training sessions and held:[11]
a fair number of meetings with Ms Ninumol in relation to her unsatisfactory performance and attitude. On each occasion, she agreed to improve. But soon after each, her attitude would show that she did not have any interest in the workplace. It appeared to me and my wife that Ms Ninumol was not dedicated to her role and she was just using this role to obtain her permanent residency.
[11] Statement of Mr Babu paragraph 20
46.According to Mr Babu, in around December 2018, he had thoughts of terminating the applicant’s employment, but that he was persuaded by his wife not to do so because Ms Abraham would likely have her visa cancelled as with the rest of her family.
47.The respondent was also not keen to return to the restaurant immediately as she had only recently given birth to a child.
48.On 19 December 2018, Ms Abraham applied for six days annual leave, commencing on 15 January 2019.[12] The leave application was declined that same day by Mr Babu. The leave was denied because the restaurant was short-staffed. Mr Babu’s evidence is that as a compromise Ms Abraham was offered the opportunity to have 15 and 16 January 2019 as leave. According to Mr Babu, Ms Abraham did not reply to this offer.
[12] Annexure E to Mr Babu’s statement
49.According to Mr Babu, on or about 10 January 2019, he had a discussion with Ms Shojin Thomas, during which she advised him that Ms Abraham planned to take sick leave so that she could go to her relatives’ function. Mr Babu did not take her seriously.
50.According to Mr Babu, on or around 12 January 2019, he received a phone call from Ms Abraham’s husband. This call related to the leave application made by Ms Abraham on 19 December 2018.
51.Mr Babu also received a text message from Ms Abraham’s brother-in-law Jomon Ninumol, which read:
Hi Binny
Hope you had great Christmas and happy new year. We had good one. A kind request we have new girl celebrating her baptism in Melbourne. Ninumol and her husband is the godmother and godfather. Would it be possible for 2 day of Tuesday and Wednesday to attend the ceremony. This would means a lot, we are happy to cover any associated cost, god bless you and your family, have a blessed night.
Jomon[13]
[13] Statement of Mr Babu annex F
52.According to Ms Abraham, on 14 January 2019, she became very ill and went to see her doctor, Dr Mohan Thampi. According to her she “was suffering from stress and anxiety due to work and the long hours of work and had a very painful leg.”[14]
[14] Statement of Ms Abraham paragraph 12
53.Dr Thampi saw Ms Abraham at about 12:38pm on Monday, 14 January 2019. He issued a medical certificate which confirmed that Ms Abraham “has a medical condition and will be unfit for work from 15/01/2019 to 18/01/2019 inclusive.”[15]
[15] Exhibit A7
54.The consultation notes relating to that consultation were also made available.[16] According to the notes, the applicant “came in for cough and mild fever and no red flags now and given as well”.
[16] Exhibit A8
55.According to the notes the reason for the visit was given as:
URTI, viral
Cough
leg pain – left leg, long standing with job
Patient education
56.The “Actions” taken by the doctor were:
Prescription printed: Amoxil 500 mg Capsule 1 Three times a day after meals As directed
Prescription printed: Voltaren 5050 mg Enteric coated tablet 1 Twice a day after meals As directed
Medical Certificate given from 15/01/2019 until 20/01/2019
Letter printed
Letter written re. MC.
57.The doctor’s notes do not include any reference to the applicant suffering from stress and anxiety. The primary complaint seems to be that Ms Abraham “came in for cough and mild fever”. The doctor was not called as a witness to explain the meaning of his consultation notes or to explain why it was that he gave Ms Abraham a medical certificate for the period 15–20 January 2019.
58.At about 3:25pm on 14 January 2019, Ms Abraham sent a text message to the restaurant manager Shojin Thomas, which read:
Hi Shoji how are you, I am Ninumol Abraham, just being to GP now with very bad leg pain, got advanced to stay off work for the next four. day’s. so I am calling sick, sorry for the inconvenience caused
Thank you
Ninumol Abraham
59.At about 5:29 pm on Monday, 14 January 2019, Ms Abraham sent an email to the respondent, in relation to her illness. The email stated:
Hi Rose
Good day I would like to inform you that I have been to GP this afternoon and got advanced to take time off from work for 4 days due very bad leg pain, I have already informed manager Shoji via text and attempt ed call twice, but didn’t get a response. I am calling sick, will update you this Friday whether I need further days off if my leg pain not improved, I am sure you are well aware of 70 hours of my work every week, I kindly ask again to address the issues I have raised in previous email, sorry for the inconvenience caused by calling sick, as I am struggling with my leg
Kind regards
Ninumol Abraham[17]
[17] Statement by Ms Abraham annexure D
60.On receiving the email, the respondent and Mr Babu, were upset. From their perspective it appeared that Ms Abraham was feigning an illness so that she could attend the family event in Melbourne, for which annual leave had been declined. To use the vernacular, they thought she was throwing a sickie.
61.They thought this behaviour to be dishonest.
62.According to Mr Babu he wrote to Ms Abraham and terminated her contract of employment. The letter of termination stated:
Dear Ninumol,
In spite of our several meetings, indicating and warning about your poor performance, we still find your performances are not up to the business standard level. Moreover, we also find that you are physically unfit for this position.
Hence the management has decided to terminate your contract effective from today 14 January 2019.
Best regards,
Rose Mary Thomas[18]
[18] Statement of Ms Abraham annexure F
63.Mr Babu gave evidence to the effect that the letter was written in anger and the reference to the applicant being physically unfit was meant as a riposte to what he perceived to be the applicant’s feigned leg pain referred to in her email.
64.I accept that proposition, particularly as the applicant had no history of significant illness, whilst working at the restaurant. In fact, the respondent provided sick leave notes relating to the applicant for just two days.
65.Ms Abraham did not receive any form of severance pay.
66.On 13 February 2019, Ms Abraham made a complaint to the ACT Human Rights Commission, alleging that she had been treated unfavourably by the respondent because of her disability and immigration status.
67.In accordance with section 53A of the Human Rights Commission Act 2005, Ms Abraham asked the ACT Human Rights Commission to refer her complaint to the ACT Civil and Administrative Tribunal.
68.The Discrimination Commissioner referred the matter to ACAT by letter dated 18 July 2019.
The unfavourable treatment
69.The applicant alleges she was unfavourably treated in three ways:
(a)that she was discriminated against on the grounds of disability when her employment was terminated on 14 January 2019; and,
(b)that she was discriminated against on the grounds of the immigration status when she was required to do more hours than contractually obliged to undertake without compensation; and,
(c)that she was discriminated against on the grounds of her immigration status when she was required to participate in a ‘cash back’ scheme which saw her paying the respondent $511.40 per fortnight “for tax.”
The law
70.The applicant brought these proceedings based on allegations of direct discrimination.
71.The statutory starting point is the Discrimination Act 1991 (DA). Section 8(2) of the Act gives the meaning of direct discrimination. It states that a person is directly discriminated against if he or she has been unfavourably treated because the person has one or more protected attributes. Section 8 provides:
8 Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, 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.
72.Sections 7 (e) and (i) set out the protected attributes relevant to this case: disability and immigration status. Section 7 provides:
7 Protected attributes
(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):
(e) disability
…
(i) immigration status;
73.Consideration also has to be given to the Human Rights Commission Act 2005 (the HRCA). Section 53A of the Act gives the Human Rights Commission power to refer proceedings to ACAT.
74.Section 53CA of the HRCA provides a person in the position of the applicant with a rebuttable presumption that acts in her favour. The presumption is that discrimination is deemed to have occurred if the applicant establishes that the act terminating the applicant’s employment, or the act of requiring the applicant to work without compensation or the act of requiring the applicant to pay the respondent $511.40 per fortnight was unfavourable and she presents evidence that would enable ACAT to decide, in the absence of any other explanation, that the act of unfavourable treatment was because of her disability or immigration status. Section 53CA states:
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
…
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
…
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
…
(3) The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person;
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s70).
75.It follows, that in order to succeed in his claim under section 8 of the DA, the applicant must prove:
(a)that she has one or more of the protected attributes provided for in section 7 of the DA; and,
(b)that she was treated unfavourably by the respondent; and,
(c)the unfavourable treatment occurred because of her disability or immigration status.
76.The applicant may also be assisted by the rebuttable presumption contained in section 53CA(2) of the HRCA.
Discrimination on the basis of disability
77.Disability is defined within section 5AA of the DA. The applicant relies upon the meaning of disability found within section 5AA (1) (e), namely;
the malfunction, malformation or disfigurement of a part of the body
78.Disability also includes protected attributes associated with that term. Section 7(2)(f) of the DA provides that a protected attribute includes – “the attribute that a person is thought to have had in the past, whether or not the person has had the attribute in the past”.
Did the applicant have a disability?
79.Section 5AA (1)(e) of the DA requires proof that the applicant had the malfunction, malformation or disfigurement of a part of her body.
80.Unusually, given that disability is one of the applicant’s two grounds of her complaint, the applicant did not call any medical evidence to support her claim that she had a disability.
81.Instead, she provided a medical certificate and doctor’s notes from her appointment with Dr Thani on 14 January 2019, which I have set out above, and which seem to suggest the principal reason the applicant attended at the doctor’s surgery was that she “came in for cough and mild fever”.
82.I highlighted the paucity of the medical evidence with the applicant’s solicitor during the course of the hearing, whilst discussing the contents of Dr Thani’s medical notes related the appointment on 14 January 2019:[19]
MEMBER MULLIGAN: Yes, but you need some sort of cogent medical evidence to support that. I mean, ‘Leg pain, left leg. Long standing with job’. Does that mean long standing during the day? Does it mean that it was of a long duration? This is essentially your case, and it’s passing reference and it’s entirely equivocal as to what it’s saying. I mean, I would have expected to be hearing from a doctor or to have an expert’s report which expressly told me what the problem was. I mean, people - I mean, I stand during the day and as a barrister I stand during the day. I’m often uncomfortable at the end of the day. Does that make me disabled or do I get a - am I entitled to call that a disability under the act?
MS CRESSHULL: The act, this of course will be in our closing submissions.
And:[20]
MEMBER MULLIGAN: But you have to prove the disability. Simply complaining that you have a sore leg, I’m asking you, is that enough, and if you don’t have any medical evidence, how are you going to lay a proper foundation for it?
MS CRESSHULL: Well, she has medical evidence is, she went to the doctor, was unfit for work and it was due to a problem with her leg.
MEMBER MULLIGAN: Well, the reason for the visit was she had a UTI infection. She had a cough, she had a pain in her leg. So how do I know which one of those or whether it was a combination of those that led to the doctor saying she was unfit for work?
[19] Transcript of proceedings page 66, line 34
[20] Transcript of proceedings page 67, line 11
83.Moreover, when pressed as to what disability was being relied upon, the advice I received was to the effect that the disability related to problems with the applicant’s knees:[21]
MEMBER MULLIGAN: Part of the claim is a disability, isn’t there? What’s the disability that you’re relying upon?
MS CRESSHULL: The disability is the problems with her knees.
MEMBER MULLIGAN: All right. Where’s the proof in relation to that?
MS CRESSHULL: I suppose it’s evidence from Ms Abraham, but also the doctor’s certificates and we do have the consultation notes. We’re happy to provide those now.
[21] Transcript of proceedings page 64, line 27
84.Neither before nor after the exchange with counsel did the applicant give any evidence related to any problems with her knees.
85.I note that the applicant did not complain of a sore leg or knees in her email of 11 November 2019, when she enumerated her complaints to the respondent, and there appears to be no other medical record which speaks to other incidents in which the applicant complained of a sore leg or knees.
86.The evidence from Dr Thani’s consultation notes of 14 January 2019, relates to pain in the applicant’s left leg. There is no record of any complaint relating to Ms Abraham’s knees in those notes.
87.The applicant in her email to the respondent ofn14 January 2019, complained of a sore leg. No mention was made of her knees.
88.On the basis of the evidence I am not even sure what the alleged disability is; something to do with the applicant’s knees or her left leg?
89.The applicant must prove the existence of “the malfunction, malformation or disfigurement of a part of the body”.
90.The applicant has provided no evidence that would allow me to conclude, on the balance of probabilities, that either her knees or the left leg had malfunctioned, was malformed or was disfigured.
91.Remembering the onus and standard of proof, I am not satisfied that the applicant has shown that she was suffering a disability at the time her contract was terminated, or before, while she was working at the restaurant.
92.For that reason, the application under section 8(2) of the Discrimination Act 1991, relating to discrimination on the basis of disability is dismissed.
Discrimination because of immigration status
93.The applicant alleges discrimination against her based on her immigration status. She alleges that she received unfavourable treatment because of her immigration status. That unfavourable treatment was being threatened by the respondent that her 457 visa sponsorship would be withdrawn, and she would have to leave Australia if she:
(a)did not work more hours than she was being paid to work; and
(b)did not participate in a ‘cash back’ scheme initiated by the respondent.
94.The respondent’s position is set out her submissions dated 24 January 2020, in which she denied the applicant had been treated unfavourably or that the applicant had been discriminated against because of her immigration status. Her position is succinctly captured in paragraph 14 of her submissions:
We felt exhausted in training a person who showed no interest in working and improving. On different occasions we wanted to terminate Applicant’s employment but we considered allowing Applicant more time to improve; moreover we had concerns that her visa would be cancelled if her employment was terminated and our decision would also affect Applicants whole family.
95.The respondent, in her submissions of 24 January 2020, listed the reasons behind the decision to terminate the applicant’s contract:
(a) [22]Applicant made exaggerating statements about her skills and competency;
(b) Applicant’s constant underperformance, failure to improve and persistent poor attitude for not being dedicated to work;
(c) The telephone call from the Applicant’s brother in law, threated to “spoil the restaurant by putting bad news” if we dismissed the Applicant;
(d) Applicant was being dishonest and taking sick leave for the same period as the period applied for in the rejected annual leave application;
(e) in the termination letter (I Binny) wrote, “Moreover, we also find that you are physically unfit for this position”. I wrote that in a moment of anger when I heard the concocting story about her sickness. I wanted to make a mockery back to her by corresponding with her own assertion that she was “sick”. I wanted to show her that this was your consequence by fabricating your medical condition
(f) The employment contract signed by the Applicants states in section 13 (d) (ii) in the opinion of the Employer, wilfully failing or wilfully neglecting to form or carry out the Employees personal functions or duties in the agreed manner.
[22] Paragraphs (a) –(f) are part of the respondent’s submissions. They were marked differently in the submissions. Originally, they were marked as paragraphs 13–17 but for clarity have been changed to (a)–(f) in this decision.
96.There may be some truth to the matters raised by the respondent, particularly in terms of paragraphs (a) and (b). I also accept that those matters may have been part of the reason why the applicant was terminated.
97.It should however be remembered that the applicant’s case in relation to discrimination based on immigration status, relates to her mistreatment during the course of her employment, in that she worked more hours than she was paid for and that she was required to pay the respondent $511.40 per fortnight to cover the tax the respondent had paid the ATO.
98.I am satisfied on the evidence that the applicant was required to work more hours than she was paid for and that she was required to give Mr Babu $511.40 per fortnight in a cash back scheme.
99.I am also satisfied that these behaviours amounted to unfavourable treatment within the meaning of section 8 of the DA.
100.On these matters, I found the applicant to be honest, reliable and consistent. These were matters that the applicant complained of during the course of her employment and were directly referenced in her email of 11 November 2018, to the respondent.
101.These matters were also corroborated by Ms Shojin Thomas during the course of her evidence.
102.I was not favourably impressed with the evidence given by the respondent and Mr Babu, relating to these issues.
103.Whilst I have found that the unfavourable treatment occurred, that is not the end of the matter. There needs to be a causal nexus between the unfavourable treatment and the applicant’s immigration status for the applicant to be successful in her claim under the DA.
104.The respondent was not legally represented during the course of the hearing. However, she was represented in November 2019, when a solicitor acting on her behalf, from the firm of Meyer Vandenberg Lawyers, filed an outline of submissions. Those submissions, in part, addressed the issue of discrimination based on immigration status.
105.The respondent’s solicitor made two submissions as to why the cash back arrangement and the threat of deportation did not amount to discrimination based on immigration status:
(a) The applicant’s reliance on the respondent’s ongoing sponsorship to remain in Australia did not make it “more difficult for her to raise issues of concerns (sic) and enforce workplace rights and/or rights against discrimination.” The sponsorship was not for the purpose of the applicant remaining in Australia. It was for the purpose of the applicant working in Australia. For that purpose, the applicant was required to diligently provide her skills and ability to prepare South Indian cuisine for the respondent’s business. To that end, the respondent also relied upon the applicant’s skills and ability to contribute to the operation of his business. The dependence is mutual. Moreover, the visa requires the applicant to take initiative to duly perform the conditions under her temporary visa in order to get a permanent visa at the next stage. It was for the applicant to diligently perform her duties required for her role in satisfactions of her visa conditions. By making allegation 2 (the allegation relating to discrimination on the basis of immigration status), the applicant wrongfully assumed the purpose of the visa was for her to stay in Australia. Because of the wrongful assumption, she assumed herself as being in an inferior position arising from a relationship of dependence. Her understanding was that once she obtained a 457 visa, she did not need to (do) anything further to satisfy the conditions of the visa and in this respect, she was completely in the respondent’s hand. In this regard, the applicant assumed that it is “more difficult for her to raise issues of concerns (sic) and enforce workplace rights and/or rights against discrimination” based on her wrongful understanding of the employment relationship in the context of immigration status under a 457 visa; and
(b) The applicant has further erred in stating that the applicant’s difficulty in exercising workplace rights or rights against discrimination was an unfavourable treatment by the applicant in the terms and conditions the respondent afforded to the applicant. The respondent imposed no terms and conditions to make it difficult for the applicant to exercise those rights. Even if the respondent accepts the applicant’s proposition in 4(a)(iii) stated in the applicant’s letter dated 22 October 2019, the applicant seemed to alleged (sic) that the difficulty was inherent in the employment relationship in the context of sponsorship visa. A mere existence of (a) relationship does not create discrimination. It is the imposition of terms and conditions upon an employee by an employer does (sic). The respondent had never put any hurdle to the applicant, in the terms and conditions of her employment, to prevent her from exercising those rights. Those rights were always available to her.
106.With respect, I think those submissions miss the point in relation to what the applicant has to prove pursuant to section 8 of the DA. The applicant must prove that there has been unfavourable treatment and that there is causal nexus between that treatment and the applicant’s immigration status.
107.Previous decisions of the Tribunal have provided guidance as to how to approach the issue of causation. The most helpful case is Kovac v The Australian Croatian Club Ltd [2014] ACAT 41, in which Presidential Member Spender found:[23]
The Tribunal agrees with the applicant’s submission that the question for the Tribunal is whether the applicant’s political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls[24] test that was relied upon by the parties in submissions. The Tribunal notes that Purvis[25] provides an overarching question of whether the aggrieved person was treated less favourably ‘because of’ the person’s attribute. So in determining whether the respondent has treated the Applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant’s political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.
[23] At paragraph 90
[24] Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [19]–[28]
[25] Purvis v New South Wales (2003) 217 CLR 92 at 102
108.Adopting Presidential Member Spender’s approach, the applicant needs to establish that her immigration status, either alone or in combination with other reasons, was a real, genuine and not insubstantial reason for the unfavourable treatment.
109.I am satisfied that the applicant’s immigration status was a genuine and not insubstantial reason for why the applicant worked longer hours than contractually obliged to without compensation and why she paid the respondent $511.40 per fortnight.
110.I am satisfied that on a number of occasions Mr Babu did threaten the applicant, that unless she complied with his demands, she would be sacked with the consequence that her 457 visa would be cancelled.
111.I accept that the applicant was scared that if she did not comply with those demands she would be fired, and the respondent or Mr Babu would take steps to have her 457 visa cancelled by the immigration authorities.
112.From the applicant’s perspective, if the applicant didn’t do the extra work or pay the respondent the $511.40 per fortnight, she could be fired and her privilege of living in Australia could be cancelled.
113.This is not type of threat that could successfully be held over an Australian citizen or a person with the rights of a permanent resident.
114.Plainly, the fact that the applicant was a 457 visa holder was the primary reason why the unfavourable behaviour could occur.
115.Having found that unfavourable treatment occurred, the applicant is also entitled to the rebuttable presumption under section 53CA HRCA that the unfavourable treatment is deemed to have occurred because of discrimination.
116.In making that finding I am satisfied that the applicant presented evidence that would enable me to decide, in the absence of any other explanation, that the unfavourable treatment occurred because of the applicant’s immigration status.
117.I am also satisfied that the evidence presented by the respondent did not individually or collectively rebut the presumption.
118.Consequently, I find pursuant to section 8(2) of the Discrimination Act 1991, that the respondent directly discriminated against the applicant by treating the applicant unfavourably, namely requiring the applicant to work hours beyond that contracted without compensation and by requiring the applicant to participate in a cash back scheme, because of a protected attribute, namely her immigration status.
What orders can ACAT make in the proceeding under the Discrimination Act?
119.ACAT’s jurisdictional limit for civil disputes is capped at $25,000[26] although with the agreement of the parties that cap can be increased.[27]
[26] Section 18 of the ACT Civil and Administrative Tribunal Act 2008
[27] Section 21 of the ACT Civil and Administrative Tribunal Act 2008
120.The $25,000 jurisdictional limit does not apply to proceedings under the Discrimination Act. Instead, the Human Rights Commission Act gives the Tribunal power to impose penalties for unlawful acts under the Discrimination Act 1991.
121.Section 53E of the Human Rights Commission Act 2005 does not impose a jurisdictional limit and I can, if appropriate, award compensation or damages in excess of $25,000.
122.Section 53E of the HRCA sets out that orders that the Tribunal may make if it is satisfied that the respondent engaged in an unlawful act, and the factors to be considered in making any orders. It provides:
Kinds of orders—unlawful acts under the Discrimination Act
(1) This section applies if—
(a)the commission refers a complaint to the ACAT under this division; and
(b)the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a)that the person complained about not repeat or continue the unlawful act;
(b)that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider:
(a)the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right; and
(b)the inherent dignity of all people and the impact of the discrimination on the person’s dignity; and
(c)the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights; and
(d)the nature of the discrimination; and
(e)any mitigating factors.
Orders sought
123.The applicant sought five orders:[28]
[28]Applicant’s submissions in closing paragraph 52
(a)Compensation for loss of wages from 14 January 2019–4 April 2019 ($13,759.03).
(b)An order that the respondent make a public apology to the applicant.
(c)Damages for embarrassment, humiliation and stress ($20,000).
(d)An order that the respondent will not repeat such conduct in relation to any future employees.
(e)Any other order the Tribunal deems necessary.
(a) Compensation for loss of wages from 14 January 2019 – 4 April 2019 ($13,759.03)
124. Section 53 (2)(c) HRCA provides that I can order the respondent to pay the applicant a stated amount by way of compensation for any loss or damage suffered by her because of the unlawful act.
125.It seems clear that under section 53 (2)(c) HRCA the applicant is entitled to claim for lost wages under her contract.
126.I do not understand why the applicant is seeking compensation for loss of wages between 14 January 2019 – 4 April 2019 in the sum of $13,759.03, or how that figure was calculated. The applicant’s submissions do not canvass these issues. There is simply a claim for $13,759.03 that is said to cover that period.
127.Under the contract the applicant was entitled to four weeks’ notice, unless terminated for cause.
128.Whilst I am somewhat cynical about the applicant’s claim that she was ill on 14 January 2019, given the coincidence of her falling ill during the period for which her application for leave had been declined, I am not prepared to conclude that her behaviour was dishonest.
129.I accept Dr Thampi examined her and concluded there was a basis for her claim that she was unwell and consequently conclude that the termination could not be for cause. She is therefore entitled to receive four weeks’ pay in lieu of notice under the contract.
130.The applicant’s annual pay was $55,000 per year and she was entitled to superannuation at the rate of 9.5% per annum which gave her a total remuneration of $60,225 per year, which equates to $1,155.06 per week ($60,225 divided by 52.14) or $30.42 per hour (1,155.06 divided by 38).
131.As a consequence, the applicant is entitled to receive $4,620.24 ($1,155.06 multiplied by four).
(b) Public apology
132.Pursuant to section 53 (2)(b) HRCA, ACAT can order that a person in the position of the respondent perform a stated reasonable act to redress any loss or damage suffered by a person in the applicant’s position, because of the unlawful act.
133.In the circumstances, having regard to 53(2)(b) HRCA I could order the respondent to make a public apology.
134.The respondent has closed her restaurant, has been ordered not to repeat the unfavourable treatment in relation to any new employees and is facing a large award of damages against her. I think those penalties are sufficient.
135.In those circumstances I do not agree with the applicant’s submission that it would be appropriate for the respondent to make a public apology for the unfavourable treatment the applicant suffered, and consequently I make no order pursuant to section 53E(2)(b) of the HRCA to that effect.
(c)Damages for embarrassment, humiliation and stress ($20,000)
136. As noted above section 53(2)(c) of the HRCA provides that I can order the respondent, to pay the applicant a stated amount by way of compensation for any loss or damage suffered by her, because of the unlawful act.
137.I believe that that embarrassment, humiliation and stress are types of loss or damage that are compensable under section 53(2)(c) of the HRCA.
138.The applicant, in her unsigned and undated closing submissions, seeks $20,000 in compensation for embarrassment, humiliation and stress.
139.The applicant’s submissions do not provide any basis as to how she arrived at the figure of $20,000 in damages.
140.Nevertheless, it appears clear to me that the applicant suffered embarrassment, humiliation and stress as a consequence of being required to work without pay and for having to pay the respondent $511.40 per fortnight for tax she did not owe and I think it appropriate that the applicant, be compensated in the form of damages for that harm.
141.It appears reasonable to me that the applicant receives by way of compensation the equivalent of the amount she lost as a consequence of working more hours than she was paid for and for the occasions she paid the respondent $511.40 for a tax liability that was not hers.
142.I think the applicant is entitled to recover compensation for the extra hours of work she undertook without pay whilst employed by the respondent.
143.In her evidence she says that she “regularly worked 60 to 70 hours a week.”[29]
[29] Statement of Ms Abraham paragraph 3
144.I need to approach that claim with a degree of caution as the applicant did not provide a log or record of the actual hours she was obliged to work without compensation.
145.The applicant worked for the respondent between 25 May 2018 on 14 January 2019, a total of 234 days, or a little over 33 weeks (33.42).
146.In the circumstances I am prepared to award the applicant an extra five hours’ pay per week, which equates to an extra $152.10 (5 x $30.42) per week or a total of $4,626.88 for the period the applicant was employed by the respondent ($182.52 multiplied by 33.42 weeks).
147.The applicant is also entitled to recover the sums paid by her to the respondent by way of the fortnightly cash back payment. This equates to $8,693.80 ($511.40 x 17 fortnights).
148.As a consequence, I order the respondent to pay the applicant $13,320.68 in damages for embarrassment, humiliation and stress consequent 53(2)(c) of the HRCA.
(d) An order that the respondent will not repeat such conduct in relation to any future employees
149.Pursuant to section 53(2)(b) HRCA, ACAT can order that a person in the position of the respondent perform a stated reasonable act to redress any loss or damage suffered by a person in the applicant’s position, because of the unlawful act.
150.In the circumstances, having regard to section 53(2)(b) of the HRCA I have the power to order the respondent not to repeat such conduct in relation to any future employees.
151.I agree with the applicant’s submission that it would be appropriate for me to make an order that the respondent will not repeat the unfavourable conduct in relation to any future employees, and I make an order pursuant to section 53E(2)(b) of the HRCA to that effect.
(e) Any other order the tribunal deems necessary
152.I do not propose to make any orders under this aspect of the applicant’s claim.
Summary
153.The application under section 8(2) of the Discrimination Act 1991, relating to discrimination on the basis of disability is dismissed.
154.I find pursuant to section 8(2) of the Discrimination Act 1991, the respondent directly discriminated against the applicant by treating the applicant unfavourably, namely requiring the applicant to work hours beyond that contracted without compensation and by requiring the applicant to participate in a cash back scheme, because of a protected attribute, namely her immigration status.
155.I make an order to the respondent, pursuant to section 53E(2)(b) of the HRCA, that she will not repeat the unfavourable treatment, referred to in paragraph 151 in relation to any future employees.
156.Pursuant to section 53E(2)(c) of the HRCA I order the respondent to pay the applicant the sum of $17,940.92, which is made up as follows:
(i)$4,620.24–Four weeks income in lieu of notice.
(ii)$13,320.68–damages for embarrassment, humiliation and stress.
(iii)$17,940.92
………………………………..
Senior Member D Mulligan
HEARING DETAILS
FILE NUMBER:
DT 13/2019
PARTIES, APPLICANT:
Ninumol Abraham
PARTIES, RESPONDENT:
Rose Mary Thomas
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
United Voice
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member D Mulligan
DATES OF HEARING:
15 May 2020
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