Ace v Director General, Department of Education and Training (EOD)

Case •

[2011] NSWADTAP 23

•

11 May 2011

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: ACE v Director General, Department of Education and Training (EOD) [2011] NSWADTAP 23
Hearing dates:10 December 2010
Decision date: 11 May 2011
Jurisdiction:Appeal Panel - Internal
Before: Magistrate N Hennessy, Deputy President
S Rice, Judicial Member
A Lowe, Non-Judicial Member
Decision:

The appeal is dismissed

Catchwords: APPEAL - discrimination on the ground of responsibilities as a carer - meaning of term 'responsibilities as a carer' - relevant comparator - procedural fairness
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Amery & Ors v State of New South Wales [2004] NSWCA 404
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 152
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Lend Lease Development Pty Limited v Zemlicka (1985) 3 NSWLR 207
Gardiner v New South Wales WorkCover Authority [2003] NSW ADT 183
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Absolon v NSW TAFE [1999] NSWCA 311
Category:Principal judgment
Parties: ACE (Appellant)
Director General, Department of Education and Training (Respondent)
Representation: M Tibbey (Appellant)
K Nomchong (Respondent)
Peter Baker (Appellant)
Crown Solicitors Office (Respondent)
File Number(s):109048
Publication restriction:Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies.
 Decision under appeal 
Citation:
[2010] NSWADT 180
Date of Decision:
2010-07-19 00:00:00
Before:
Equal Opportunity Division
File Number(s):
071120

reasons for decision

Introduction

  1. The Appellant, ACE, has appealed against a decision of the Tribunal dismissing her complaint of discrimination against her former employer. The parties agree the correct Respondent is not the State of New South Wales as shown in the decision at first instance. Rather, the correct respondent is Director General, Department of Education and Training: AD Act , s 4B(1)(a). The Appellant was employed by the TAFE Commission.

  1. The Appellant complained that the Respondent declined her requests for part-time work on the ground of her responsibilities as a carer. That conduct was said to be in contravention of s 49V(2)(a) of the Anti-Discrimination Act 1977 ( AD Act ) which makes discrimination on the ground of having responsibilities as a carer unlawful in relation to the terms and conditions of employment afforded to an employee.

  1. The Tribunal dismissed the complaint because it was not satisfied that the Appellant's parents needed care or support or, if they did, that ACE had a responsibility to provide it. As she did not have 'responsibilities as a carer', the complaint was not substantiated. Notwithstanding that finding, the Tribunal went on to consider the remaining elements of direct and indirect discrimination and found that none had been satisfied.

Approach to the Appeal

  1. The appeal was confined to an appeal on questions of law: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 113(2)(a). The Appellant identified fourteen separate grounds of appeal. Many of those grounds contained more than one question. Rather than respond to the appeal by dealing sequentially with each of the questions identified by the Appellant, we have divided the grounds of appeal into the following subject areas:

(1)   breaches of procedural fairness;

(2)   incorrectly interpreting the term "responsibilities as a carer";

(3)   misinterpreting the differential treatment test;

(4)   making findings of fact without evidence or without probative evidence;

(5)   providing inadequate reasons for the decision; and

(6)   understating the qualifications and experience of an expert witness.

  1. In relation to each of the subject headings, we need to determine whether the Appellant's ground of appeal identifies a question of law and, if so, whether that question has been erroneously answered. We have concluded that in relation to those grounds of appeal which identify a question of law, the Tribunal did not answer those questions erroneously. Consequently, we have dismissed the appeal.

  1. Before addressing the grounds of appeal, we will briefly summarise the legislative scheme and the Tribunal's decision.

Legislative scheme and Tribunal's decision

  1. It is unlawful for an employer to discriminate against an employee on the ground of that employee's responsibilities as a carer in relation to the terms and conditions of employment: AD Act , s 49V(2)(a). The conduct which the Appellant alleged was unlawful was declining her requests for part-time work made on 23 September 2005, 10, 11 and 15 January 2006 25 January 2006 and 13 June 2006 and failing to investigate and assess those requests in accordance with government policy on flexible work practices.

  1. The first issue was whether the Appellant had "responsibilities as a carer" within the meaning of that term in s 49S. The Appellant adduced evidence that her parents, who lived in Queensland, were in need of care and that she had a responsibility to care for them. So far as is relevant, s 49S defines "responsibilities as a carer" as follows:

(1) A reference in this Part to a person's "responsibilities as a carer" is a reference to the person's responsibilities to care for or support:
(c) any immediate family member of the person who is in need of care or support, being one of the following:
(iii) a parent . . . of the person

  1. The Tribunal correctly identified at [12] that it needed to be satisfied:

1) that her parents were, or either of them was, 'in need of care or support': section 49S(1)(c) and
2) that she had a responsibility to provide that care or support: section 49S(1).

  1. The Tribunal found that at no time during the complaint period (1 September 2005 to 23 October 2006) did either of the Appellant's parents need care and, even if they did, that the appellant did not have a responsibility to provide it: at [204](5) and [205]. We refer to this finding as the "ultimate factual finding" because it meant that the complaint failed out the outset. It is the subject of several grounds of appeal.

  1. To be satisfied that the alleged conduct constituted 'direct' discrimination as defined in s 49T(1)(a), the Tribunal (at [208] to [213]) identified the following issues for determination:

1) that the employer declined, or failed properly to investigate and assess, requests for part-time work as alleged; (nature of conduct)
2) that she was denied part-time work 'on the ground of [her] responsibilities as a carer', (causation)
3) that, in being denied part-time work, she was treated less favourably than Ms F, Ms P and D (her daughter) were, or would have been, in like circumstances; (differential treatment) and
4) that those three employees did not have carer's responsibilities in the relevant sense (identification of comparators) .

  1. We have added the words in brackets as short-hand descriptors of each of the matters the Tribunal identified. The Tribunal determined each of these matters against the Appellant so that, even if, contrary to the Tribunal's findings, the Appellant did have "responsibilities as a carer" her complaint of direct discrimination would have failed.

  1. The Appellant also submitted that the alleged conduct constituted "indirect" discrimination as defined in s 49T(1)(b). No ground of appeal relates to the Tribunal's finding that the Appellant's complaint on that basis was not substantiated. However, we note that the Tribunal said (at [226]) that one of the matters for determination was whether any relevant requirement was imposed "on the ground" that she had responsibilities as a carer. This is not an element of the test for indirect discrimination. The Court of Appeal has held that the inclusion of the words "on the ground of" in the definition of indirect discrimination is a "drafting error": Amery & Ors v State of New South Wales [2004] NSWCA 404. In that case, the Court said that the words "on the ground of the aggrieved person's sex" in s 24(1) are "mere surplusage in relation to indirect discrimination and should be ignored." The same reasoning applies to each of the other provisions which define indirect discrimination including s 49T, responsibilities as a carer.

Procedural fairness

  1. The Appellant submitted that the Tribunal denied her procedural fairness by making two material findings of fact on which the ultimate factual finding was based without giving her an opportunity to adduce evidence or rebut the potential adverse factual findings. Those two findings were that the Appellant was incapacitated for work throughout the period of the complaint and that her motivation to keep her job was so that she could continue to receive sickness benefits.

  1. The Tribunal's ultimate finding of fact (that at no time during the complaint period did either of the Appellant's parents need care nor did she have a responsibility to provide it) was based on several material findings. In turn, those material findings were based on what we will refer to as 'secondary findings' of fact or findings of credibility. The material findings (some of which were inferences) and the secondary findings which support them, can be summarised as follows:

1.The Appellant did not provide care to her parents in Queensland during the period that she had been granted leave to do so: at [204](6) (material finding - failure to provide care).

The Appellant's visits to Queensland during the complaint period were irregular and uncommon, and did not reflect the pattern of every second weekend which she told her employer was necessary to meet her responsibilities to care for her parents: at [204] ( secondary finding of fact ).

2.Throughout the complaint period, the Appellant was unfit for work, either on a full-time basis, or on a part-time basis for three days per week, by reason of a psychiatric disorder which was not disclosed to her employer: at [204] (material finding - incapacity for work).

At the time (January 2006) ACE was telling Centrelink that she was incapable of more than seven hours work per week, and receiving sickness benefits on that basis, she was telling her employer that she was capable of working three days per week. The Tribunal finds that the latter was an untruth. In the Tribunal's view, it adversely affects her credit: at [72] ( secondary finding on credibility ).

3.In mid 2006 the Appellant was doing everything in her power to maintain her employment contract with TAFE by seeking a transfer to a part-time position outside Recruitment, so as to delay any requirement that she return to work, and continue to qualify for sickness benefits: at [103] (material finding - motivation for applying for part-time work and transfer).

a. Throughout the complaint period, she needed to keep her job at TAFE to maintain her eligibility for sickness benefits ( secondary finding - undisputed ).

b. As her leave entitlements had been exhausted, disclosure of her true condition to TAFE presented a risk of retrenchment, and of becoming ineligible for the sickness benefit as a result. Rather than disclose her condition and run this risk, she sought full-time leave without pay, justifying this from 31 May 2005 by an alleged need to care for her parents ( secondary finding - reason for non-disclosure).

  1. We have added the words in brackets as short-hand descriptors of each of the material findings and the secondary findings. It is the material findings relating to her incapacity for work and her motivation for applying for part-time work to which the Appellant has objected in this appeal. She submits that those findings were made in a procedurally unfair manner. Both these findings supported, to varying degrees, the Tribunal's ultimate factual finding.

  1. The Appellant submitted that she was not given a reasonable opportunity to adduce evidence in relation to her motivation for keeping her job. If she had been given that opportunity she says she would have adduced evidence that she would still have been eligible for welfare payments such as a disability support pension or unemployment benefits if she did not have a job.

  1. The Tribunal has a statutory duty to ensure that every party is given a reasonable opportunity to present his or her case and to make submissions in relation to the issues in the proceedings: ADT Act , s 70. While not bound by the rules of evidence, the Tribunal is bound by the rules of procedural fairness: ADT Act , s 73(4). In particular:

(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

  1. These principles are, to a large extent, restatements of the common law rules of procedural fairness. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 152 at 162 at [32], the High Court approved of the following statements made by the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (Emphasis added.)

  1. The Federal Court went on to explain that ascertaining the relevant issues includes identifying "to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made." According to the Federal Court:

The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
...

  1. The Appellant did not suggest that there was any adverse material that had not been put to her. Rather, the gist of her submission was that she was not on notice that the relevant issues included whether she was capable of working part-time and her motivation for applying for carer's leave. If she had been aware that those questions were in issue, she would have adduced evidence and made submissions in relation to them.

  1. In order to afford procedural fairness to the Appellant in this case, the Tribunal was obliged to ensure that she understood the issue (i.e. whether she had responsibilities as a carer) and on what basis it was asserted that she did not have such responsibilities. If those bases were not "obviously open on the known material" then the Tribunal will have breached procedural fairness.

  1. The Appellant was legally represented throughout the proceedings. The proceedings were conducted in an adversarial style by the filing and service of Points of Claim, Points of Defence and evidence and by the examination and cross-examination of witnesses at an oral hearing. There is nothing in the Points of Defence or the Respondent's affidavit evidence that would have put the Appellant on notice that the Respondent's case was she was incapacitated for work during the entire period or that her motivation in applying for leave and later for a transfer was to continue to be eligible for sickness benefits (rather than to care for her parents).

  1. However, Ms Nomchong, representing the Respondent, submitted that it was obviously open on the known material that these matters were asserted. In response to a Summons to Produce, the Appellant produced her applications to Centrelink for sickness benefits, supporting medical certificates and correspondence. The Centrelink applications formed part of the bundle of documents tendered by the Respondent. The Centrelink applications expressly stipulated that the Sickness Benefits for which the Appellant applied were only available to persons who remained employed but were unable to work by reason of illness. Those forms also contained statements about the Appellant's inability to work for more than 7 hours a week.

  1. When cross-examining the Appellant on the first day of the hearing the Respondent put to her the inconsistency between what she was telling her employer (that she needed leave to care for her parents) and what she was telling Centrelink (that she was unable to work for more than 7 hours a week). On the first day of the hearing the Appellant gave evidence that from September or October 2005 she was well enough to return to work full-time but could not do so because of her responsibilities as a carer. (Transcript, 17 August 2009, page 46-48).

  1. At the Tribunal hearing, Ms Tibbey, representing the Appellant, objected to the relevance of the Centrelink material. On 19 August 2009, (Transcript 19 August 2009, page 49, lines 1-14) in the absence of the Appellant, but in the presence of Ms Tibbey, Ms Nomchong made the following submissions as to the relevance of the Centrelink applications:

NOMCHONG: What this witness was telling the Australian government in Centrelink was that she was incapacitated for work and that was the reason that she was receiving sickness benefits. So what she had never told TAFE during this entire period was that she was incapacitated by reason of depression, anxiety, panic attacks. These forms are replete with questions being ticked about poor memory, concentration, an inability to return to work within the next six to 12 months. They are attaching medical certificates from doctors, who say that she was unfit for work. So when we come to the crux question of has TAFE acted inappropriately in not granting the request for part-time leave without pay, and we will certainly be denying that on all grounds, we say that, even we had, she never would have been able to take it up because she was incapacitated for work. The real reason that she wasn't returning to work was that she was incapacitated to do so.

  1. This submission put the Appellant on notice of two allegations. The first was that her motivation in applying for part-time work could not have been to look after her parents because she was not able to work in any case. The second was that the Appellant was not being honest when she told the Respondent that she had the capacity to work part-time (and later full-time) had it not been for her responsibilities as a carer. According to the Respondent, the fact was that the Appellant was not able to work more than 7 hours a week.

  1. Under cross-examination on 19 August 2009 (Transcript p 51, lines 11-32) the Appellant agreed that she understood that in order to be eligible for sickness benefits she needed to have a job to go back to.

  1. In final written submissions to the Tribunal filed on 21 December 2009, two days before the final day of hearing, Ms Nomchong wrote the following:

It is a reasonable inference (available on the evidence) that the Applicant did not want to tell her employer about her ongoing medical incapacity for work because if she did so, she thought she may have been dismissed on the basis that she could not fulfil her duties. Ms F gave evidence that long term absence by reason of illness could lead to an evaluation about the employee's employment. Perhaps the applicant had thought that if she lost her job, she would not have been able to continue receiving sickness benefits. (Emphasis added.)

  1. This was the first time that the Respondent had expressly suggested that one of the Appellant's motivations for continuing to apply for carer's leave was so that she could continue to receive sickness benefits. Ms Tibbey received those submissions on 22 December, the day before the final day of hearing (Transcript 23 December 2009, p 1, lines 22-25). Ms Nomchong made the point again in her oral submissions (Transcript 23 December 2009, p 34, line 41-50.) Ms Tibbey did not respond to that submission in her oral submissions in reply.

  1. We find that the Appellant was on notice that it was being alleged that one issue was whether she had responsibilities as a carer. We also find that it was 'obviously open on the known material' that the Respondent asserted that she was incapacitated for work during the relevant period and that for that reason, she could not return to work. That proposition was put to her in cross-examination and raised squarely during the hearing. There has been no breach of procedural fairness in relation to that finding.

  1. The second finding, about the Appellant's motivation for applying for leave or for a transfer, was a material finding of fact which supported the Tribunal's ultimate factual finding. It was an inference based on other factual findings. It was not put directly to the Appellant. Nevertheless, it was 'obviously open on the known material.' Ms Nomchong suggested that the Tribunal could draw that inference in her final written submissions. In submissions in reply Mr Tibbey did not deny that that inference was open. The Tribunal made the inference on the basis of other findings, namely that the Appellant:

1. was not caring for her parents while on leave;

2. needed to keep her job to maintain her eligibility for sickness benefits; and

3. would not have been able to return to work even if she was offered part-time work.

  1. The Appellant submitted that the finding that she was not genuinely seeking part-time employment, but was motivated to continue applying so that she could receive sickness benefits, was an inference that was not open on the evidence. In response, the Respondent submitted that the finding was a "reasonable and definitive inference" rather than conjecture, speculation or guesswork. Kirby J explained the difficulty in distinguishing between these two extremes in Lend Lease Development Pty Limited v Zemlicka (1985) 3 NSWLR 207 at 211:

In order to draw inferences, it is often necessary to speculate. Whether the product of the speculation is a mere conjecture, guess or surmise or a "definitive inference" depends on processes of evaluation and judgment that are not always susceptible to strict logical analysis.

  1. In our view the inference was not merely conjecture or guesswork. It was based on evidence. Having found that the Appellant was not providing care for her parents during the relevant period, that she was incapacitated for work and that she needed to continue to be employed in order to be eligible for sickness benefits, the inference was open that her motivation in continuing to apply for leave was to be eligible to receive those benefits. No error of law is disclosed in relation to this ground of appeal.

Meaning of "responsibilities as a carer"

Identification of relevant grounds of appeal

  1. Several grounds of appeal were said to relate to the Tribunal's interpretation of the definition of "responsibilities as a carer" in s 49S. Those grounds were that:

1. the Tribunal erred by requiring medical evidence of the illnesses and/or disabilities of her parents when such evidence is not required by the definition of carer's responsibilities;

2. the Tribunal did not consider whether the Appellant's parents needed 'support' rather than 'care';

3. the Tribunal erred by interpreting the term "responsibilities as a carer" as requiring that those responsibilities be full time responsibilities; and

4. the Tribunal asked itself the wrong question or applied the wrong test when it required her to prove that her parents were in need of care during the complaint period when the Respondent had not denied that they were in need of care at the time.

  1. The first two questions -- requiring medical evidence and the need for support rather than care - are questions of law because they relate to the question of the onus and standard of proof. The question of law in relation to the third ground - full time responsibilities - is whether the Tribunal misinterpreted the definition of responsibilities as a carer in s 49S to mean that those responsibilities had to be fulfilled on a full-time basis. The final question - asking the wrong question or applying the wrong test - is also a question of law.

'Requiring' medical evidence

  1. The Tribunal made numerous references to the lack of medical evidence to support the Appellant's contention that her parents were in need of care: at [52], [53], [80], [89], [106], [148], [149] and [150]. The Appellant submitted that the Tribunal erred by 'requiring' medical evidence in order to be satisfied that her parents were in need of care or support. It was said that the Tribunal should have been satisfied by her evidence and the evidence of her daughter, D.

  1. The standard of proof is the degree or level to which the party with the burden of proof must satisfy the decision maker if a fact is to be found in their favour. In discrimination cases, as in most civil cases, that standard is "the balance of probabilities." Although not bound by the rules of evidence, the Tribunal is guided by those principles, including the principles relating to the standard of proof which are set out in s 140 of the Evidence Act 1995.

  1. The Tribunal needed to determine whether the Appellant's parents were, or either of them was, "in need of care or support". In her Amended Points of Claim she relied on an assertion that they were in need of "care". The evidence she adduced went to that question. She claimed in the Amended Points of Claim that her "care needs" were that her parents were in poor health, that her father had dementia, depression and shortness of breath and that her mother "formerly suffered from a badly ulcerated leg and that she now suffers from a heat (sic) condition, poor circulation of the blood, high blood pressure and gout."

  1. In an e-mail to the Respondent dated 23 September 2005 (Exhibit 11, page 50 and 54) the Appellant referred to her father's ill-health and offered to provide doctors' reports to substantiate that assertion. The only medical evidence she provided in support of her parents' circumstances, which relate to the period of the complaint, was that her mother had been seen at a medical practice on various dates. (Exhibit B, Attachment F dated 13 June 2006.)

  1. The Tribunal's references to the lack of medical evidence were prompted by the fact that the Respondent did not admit that the Appellant's parents were in need of care. The Tribunal did not ' require' the Appellant to adduce medical evidence. Rather, given the way in which the Appellant pleaded her case, the Tribunal's adverse findings in relation to the Appellant's credibility and the evidence adduced, the Tribunal was not satisfied that either of her parents was "in need of care" or that she had a responsibility to provide that care. Those findings do not disclose an error of law.

Need for care or support

  1. The definition of responsibilities as a carer refers to a person's responsibilities to "care for or support" certain people who are "in need of care or support": ADT Act , s 49S. The Appellant said that the way in which the Tribunal interpreted the phrase "in need of care or support" in s 49S(c) was unduly narrow. Even if there was no medical evidence that her parents needed 'care', the Tribunal should have been satisfied that 'support' was required.

  1. By framing her case by reference to her parents' ill-health, the Appellant was relying on an assertion that her parents' needs were for 'care', not just 'support'. It was not the Tribunal's interpretation, but the way in which the Appellant presented her case which led the Tribunal to make the finding that her parents were not in need of care. There was no need for the Tribunal to address the alternative question of whether they were in need of support, because that was not how the Appellant put her case.

Full-time responsibilities

  1. The Appellant submitted that the Tribunal erred by interpreting the definition of carer's responsibilities in s 49S as meaning that those responsibilities must be full-time responsibilities. The Appellant's argument was that just because she was not visiting her parents every second weekend, as she had said she wanted to, does not mean that she did not have responsibilities as a carer. Her responsibilities, she said, could be part-time responsibilities. There was no agreement with the Respondent as to the frequency or regularity that she should be visiting her parents in order to justify full-time leave without pay.

  1. The Tribunal recognised at [132] that carer's responsibilities could be required on a part-time basis. After noting that others were caring for the Appellant's parents, the Tribunal acknowledged that, "that alone would not preclude the possibility that the appellant had a responsibility to relieve her sisters from time to time but, for reasons already given, the Tribunal is not satisfied on the evidence that that was so."

  1. It is apparent from this passage, and from the reasons as a whole, that the Tribunal understood that a person's responsibilities as a carer do not have to be full-time responsibilities. The phrase, "person's responsibilities as a carer" " . . . is a general one and should be given a broad interpretation in keeping with the human rights purpose of the provision." Gardiner v New South Wales WorkCover Authority [2003] NSW ADT 183 at [39].

  1. At [93] the Tribunal found that the Appellant was living in Sydney "while taking the benefit of full-time leave to care for her parents" who lived in Queensland. The Tribunal made an adverse finding as to the Appellant's credibility on the basis that she did not look after her parents full-time despite the fact that that was the purported basis for the leave application. The Tribunal did not believe the Appellant when she said that she had responsibilities to care for her parents and was applying for leave for that purpose. The steps in the Tribunal's reasoning process are set out at [204] of the Tribunal's reasons.

  1. We do not accept the Appellant's submission that the Tribunal erred by interpreting the phrase "responsibilities as a carer" as requiring that those responsibilities be full time. The Tribunal was well aware that carer's responsibilities did not have to be performed on a full time basis. The references to the fact that the Appellant was not engaged full-time in caring for her parents were for the purpose of making findings about her credibility. The Tribunal did not believe the Appellant when she said that she had applied for leave to fulfil her responsibilities as a carer. That conclusion does not involve any misunderstanding of the phrase "responsibilities as a carer" in s 49S.

Wrong question?

  1. The Appellant submitted that the Tribunal erred by requiring her to retrospectively prove that her parents were in need of care by providing evidence which the Respondent had not required at the relevant time. According to the Appellant, the Tribunal should have accepted that her parents were in need of care because the Respondent did not dispute her assertion to that effect when she applied for leave and to be transferred.

  1. Again, this ground misapprehends the Tribunal's role. The Tribunal had to determine whether either or both of the Appellant's parents were 'in need of care or support' and whether she had a responsibility to provide that care or support at the relevant time. Even if the Respondent accepted that that was the case at the time, that acceptance does not mean that the question must be decided in the Appellant's favour. The Respondent was entitled to put that question in issue at the hearing even if they had not put it in issue at the relevant time.

  1. The Tribunal did no err by requiring the Appellant to prove that, during the period of the complaint, either or both her parents were 'in need of care or support' and that she had a responsibility to provide that care or support.

Misinterpretation of differential treatment test

With whom should the comparison be made?

  1. The test for direct discrimination is set out in s 49T(1)(a):

A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:
(a ) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities (our emphasis)

  1. It has been accepted that there are two components to this test - the differential treatment component and the causation component: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45]. The differential treatment component of direct discrimination requires the Tribunal to compare the way the Respondent treated a person who has responsibilities as a carer with the way it treats or would have treated a person who does not have "those responsibilities" in the same or similar circumstances. The Appellant nominated three people who she said were relevant comparators: Ms F, Ms P and her daughter, D.

  1. The Tribunal found at [213] that the appropriate comparison was between a person who had responsibilities as a carer and a person who did not have those responsibilities. The Tribunal said that the appropriate comparison was not between people with one kind of carer's responsibilities (such as responsibilities to care for a parent) and people with another kind of carer's responsibilities (such as responsibilities to care for a child). The Tribunal reasoned at [213] that if that were the case:

. . . the groups of comparators would be infinitely divisible, so that one could compare, for instance, persons with responsibility for aged parents suffering from dementia, with persons having responsibility for aged parents suffering from leg ulcers. Alternatively, one could compare persons with responsibility to care for male children with persons with responsibility to care for female children. Neither the terms of the legislation, nor its objects, provide justification for such an interpretation. The comparison envisaged by the legislation is between those with carer's responsibilities, and those without.

  1. Consequently it found that because Ms F and Ms P had responsibilities as carers, they were not appropriate comparators. Similarly, D was not an appropriate comparator because when she resigned from her position with the Respondent in January 2005 she did so in order to fulfil her responsibilities to look after her mother (the Appellant). The Appellant submitted that those findings misinterpreted the words "those responsibilities" in s 49T(1)(a). It would, the Appellant says, have been permissible for the Tribunal to compare the way people who had responsibilities to look after parents had been treated with the way people who had responsibilities to look after children had been treated.

Conclusion

  1. Where there is an actual as opposed to a hypothetical comparator, and putting to one side the requirement that the circumstances be the same or not materially different, the differential treatment test in s 49T requires an applicant who has responsibilities as a carer to establish that:

The Respondent treated her less favourably than it treats a person who does not have those responsibilities.

  1. When read in context, the phrase "a person who does not have those responsibilities" refers to a person who does not have "responsibilities as a carer". It does not refer to a person who has responsibilities as a carer which are different from the applicant's responsibilities. It follows that we agree with the Tribunal's interpretation of the phrase and no error is disclosed. However, even if we are wrong, the Tribunal's interpretation made no difference to its ultimate decision. The Appellant's complaint failed at the threshold because of the ultimate factual finding that she did not have responsibilities as a carer.

Was D an appropriate comparator?

  1. The Appellant submitted that, even if the Tribunal was correct in its interpretation, the Tribunal made an error of law in finding at [215] that D was not an appropriate comparator. The Tribunal considered only the fact that D resigned in January 2005 to look after her mother. The Tribunal found that she was not an appropriate comparator because she had carer responsibilities at that time. However during the whole time that she was employed by the Respondent, up until January 2005, the Respondent permitted her to work part time even though she did not have carer responsibilities. The Appellant submitted that in those circumstances she was an appropriate comparator and the Tribunal erred by finding otherwise.

Conclusion

  1. We agree that the Tribunal did not consider whether D was an appropriate comparator prior to January 2005 when she resigned to look after her mother. There was evidence to support the Appellant's assertion that her daughter worked part-time for the Respondent prior to that time and that she did not have carer's responsibilities. However, even if the Tribunal's failure to consider whether she was an appropriate comparator during that period amounts to an error of law, that error made no difference to the Tribunal's decision. The Appellant's complaint failed at the threshold because of the ultimate factual finding that she did not have responsibilities as a carer.

Identification and relevance of circumstances

Background

  1. Notwithstanding the finding that there was no relevant comparator, the Tribunal went on to identify the circumstances in which the Appellant's requests for part-time work were declined. It was necessary to identify those circumstances in order to compare them with the circumstances in which the alleged comparators were treated so that a determination could be made as to whether those circumstances were 'the same' or 'not materially different'. Having identified 10 relevant circumstances (at [217]) the Tribunal concluded that none of those circumstances applied to Ms F or Ms P when they were granted part time leave to care for their children. The Tribunal also distinguished the circumstances in which D had applied for part-time work early in 2005.

  1. The Appellant submitted that the Tribunal made various errors when identifying and making findings about the relevant circumstances. Each of the circumstances with which the Appellant took issue will be considered in turn.

"The Applicant had no carer's responsibilities during the complaint period"

  1. The Appellant submitted that this 'circumstance', which was also the Tribunal's ultimate finding of fact, was made in error. The error was said to be that it was contrary to the evidence that was before the Respondent when the decision was made. The Appellant said that the Respondent was not entitled to deny that she had responsibilities as a carer because it did not ask sufficient questions to determine the issue nor did it request medical reports when the applications for leave were made. The Appellant said that the Tribunal was not entitled to make a retrospective assessment which was contrary to the assessment that the Respondent made at the time.

  1. Again, this submission misconceives the Tribunal's role. The Tribunal must consider all the evidence and make findings to the requisite standard on each issue. On the issue of whether the Appellant had responsibilities as a carer, the Tribunal is not bound by the Respondent's view at the time, nor is it restricted to the information that was before the Respondent when it formed a view on that issue. The Tribunal's finding was made on the basis of probative evidence, even if all that evidence was not before the Respondent at the time it made its decision. No error of law is disclosed.

"By reason of a serious psychiatric illness, the Applicant was incapacitated for the very part-time work which she sought . . ."

  1. The Appellant maintained that her evidence was that she felt well enough to work three days a week. That was contrary to the evidence she was providing to Centrelink. There was probative evidence for the Tribunal's finding that the Appellant was incapacitated for work and no error of law is disclosed.

"She produced to the employer no evidence to corroborate a need for care on the part of her parents, or of her responsibility to provide it, or any evidence that the leave sought was commensurate with the nature of her alleged responsibilities as a carer"

  1. The Appellant submitted that since the Respondent had not required such evidence at the time, the Tribunal should not draw an adverse inference from her failure to provide it. We have dealt with this ground above at [50] and [63].

"Her alleged responsibility to travel to Queensland every second weekend bore no obvious relationship to, nor on its face did it justify, the kind of leave requested - namely, two days leave per week"; and

"The Applicant did not identify the days of the week on which she sought leave."

  1. The Appellant said that these matters should not have been regarded as relevant when comparing the way she was treated with the way a person without her responsibilities as a carer were treated.

  1. In Purvis v New South Wales [2003] HCA 62; 217 CLR 92; the majority (Gummow, Hayne and Heydon JJ) found at [224] that the relevant circumstances "are all of the objective features which surround the actual or intended treatment of the . . . person by the person referred to in the provision as the "discriminator". The matters listed above were objective features which surrounded the treatment. The Tribunal has not erred by identifying those circumstances as relevant.

"To the employer's knowledge, ACE had been in Sydney for six weeks prior to her request of 23 September 2005, not providing the very care for which she had been granted leave previously, but enjoying leave granted for that sole purpose."

  1. This finding was said not to be relevant because the Respondent did not put to her at the time that she was not spending her time caring for her parents. We have dealt with this ground of appeal at [50] and [63].

"Despite her familiarity with the formal processes of TAFE, derived from her experience as a Recruitment Officer, she made no formal written application for part-time work until 13 June 2006, by which time she was requesting a transfer."

  1. The Appellant said that although she did not lodge a form seeking part-time work, those on leave to care for children did not lodge forms either. She was treated differently from those seeking carer's leave to care for children. We have decided that the Tribunal correctly decided that those with responsibilities to care for children were not appropriate comparators. The Tribunal did not determine whether the Appellant was treated less favourably than the alleged comparators because it did not accept that the comparators were appropriate or that the circumstances in which decisions were made about them were the same or not materially different: (at [221]).

Further challenges to factual findings

Findings without probative evidence

  1. As well as the findings that the Tribunal said constituted the circumstances that were relevant when determining whether there had been differential treatment, the Appellant challenged several other factual findings.

  1. Even a perverse finding of fact does not give rise to an error of law, but a decision maker who acts without any evidence or without probative evidence makes an error of law: Ormwave Pty Ltd v Smith [2007] NSWCA 210; 5 DDCR 180 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed. We will examine each of the challenged factual findings to determine whether those findings were made without evidence or without probative evidence.

  1. The Appellant contended that the Tribunal erred when it inferred at [156] that Ms F "was not convinced that ACE had been caring for her parents at all, that her parents had a genuine need for care, or that ACE had any real responsibility to provide care." The Tribunal went on to say that Ms F "did not have sufficient information to know the precise nature of those needs, or to know what responsibilities ACE had in respect of those needs, or whether a three-day working week was appropriate to meet those needs, if any. She had attempted to obtain that information from ACE without success." At [157] the Tribunal made the following findings:

On the basis of the information before her, Ms F considered that there was not a sufficient basis to grant the request, and declined it by email on 20 October. She did not decline it for the reason that ACE had carer's responsibilities. On the contrary, the evidence suggests that she was not satisfied that ACE had any such responsibilities, and could not be satisfied that, even if she did, they were such as to justify the extent of leave sought.

  1. According to the Appellant, by making these findings, the Tribunal attempted to 'retrospectively clothe' the Respondent with a reason for refusing the Appellant's request. The inference, it was submitted, was not available on the evidence of what Ms F said when assessing the applications. At the time, Ms F did not ask the Appellant for medical reports or for further information as to the nature or extent of her carer's responsibilities. Furthermore, it was submitted that there was no evidence, or no sufficient evidence, for the finding that Ms F was not satisfied that the Appellant had such responsibilities or that, even if she did, those responsibilities justified the extent of leave sought: at [210] of the decision.

  1. The finding in [157] relates only to the events of 23 September 2005. The Tribunal does not make an error merely because it makes a finding of fact on the basis of affidavit and oral evidence given at the time of the hearing as to what was in Ms F's mind at the relevant time. The basis on which the Tribunal made those findings was the evidence of Ms F in her affidavit at paragraph 54:

Before replying to her e-mail I again tried to telephone ACE but there was no response. Accordingly, on the information that was available to me, taking into account the nature of ACE 's request and the workload needs and staffing of the section, I determined that I could not approve any further leave without pay -- either on a full-time or part-time basis. This was predominantly because things were very busy and we needed ACE to come back to her position. ACE 's position had been left open for nine months at this stage. I was mindful that ACE had only completed about four months of her probationary period. I was also concerned that ACE had been granted her most recent period of leave to care for her parents but had been working in Sydney during that time and would not respond to my calls to discuss the matter. I simply did not have a sufficient basis to approve her request. I sent an e-mail to ACE on 20 October 2005 denying her request.

  1. In addition, Ms F gave oral evidence which underpinned the Tribunal's finding. The evidence was that between the date on which the Appellant made her request (23 September 2005) and the date on which Ms F made her decision to refuse the Appellant's request (20 October 2005) the Appellant had not answered any telephone calls and had not provided further information about her parents' care needs or her responsibilities to provide for those needs. Accordingly the Tribunal's finding that Ms F "was not convinced that ACE had been caring her parents at all, that her parents had a genuine need for care or that ACE had any real responsibility to provide care" was open and reasonably available. No error of law is disclosed.

  1. Similarly, there was evidence that the finding at [210] that Ms F did not decline ACE 's request for part-time work 'on the ground of [her] responsibilities as a carer'. That evidence included the affidavit and oral evidence of Ms F.

  1. According to the Appellant, the Tribunal made the following finding of fact (at [133]) with no evidence or with no probative evidence to support it:

the severity of the Appellant's psychiatric injury probably meant that she was unable to care for her parents

  1. At [133] the Tribunal found that:

In any event, ACE sought and was granted full-time leave without pay in January 2006, to provide care in place of her sister Rose. In the absence of any evidence from her sister Rose or Mrs Caruana, and having regard to the unreliability of her own evidence, the Tribunal is not satisfied that either of her parents needed care at that time, or that ACE had any responsibility to provide it. The severity of her continuing psychiatric condition suggests that she was, in any event, probably unable to do so . (Emphasis added.)

  1. The Appellant submitted that there was no medical evidence which would justify a finding that a person with the same mental illness as she has would be incapable of performing such duties. In addition, it was never put to her that she was incapable of providing the services she claimed to provide and it was procedurally unfair to make a finding to that effect.

  1. The Respondent submitted the Tribunal did not make a finding on this issue, rather it merely made a comment that, 'in any event', the Appellant was 'probably' unable to provide care to her parents at that time.

  1. The Tribunal is bound in its reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based": ADT Act , s 89(5)(a). The observation that 'in any event' the Appellant was 'probably' unable to provide care to her parents was not expressed as a material finding of fact. In circumstances where there is insufficient probative evidence to make a finding as to the Appellant's capacity to care for her parents the Tribunal should not have made that observation. However, in doing so, it did not make an error of law. To find otherwise would be to risk breaching the well-known principle that reasons are "not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

Drawing inferences which were not available on the evidence

  1. The most prominent example of the Tribunal drawing an inference that was not available on the evidence was said to be its finding at [178] that the Appellant was "incapable of managing" her affairs:

By 7 September 2006, she had received no response. On that date, she again requested a completed leave form, as no leave had been authorised from 22 June. She had waited over six weeks. Her patience on this occasion, as on others before it, does not suggest an acrimonious relationship. On the contrary, it suggests that Ms F did everything her power to accommodate ACE's continued need for full-time leave without pay, despite ACE's dilatory attitude to making written request and providing the necessary details. That attitude was consistent with a person who, by reason of serious illness, was incapable of managing their own affairs. No response was received by Ms F. (Emphasis added.)

  1. The Appellant objected to the italicised sentence saying that being incapable of managing your affairs has a specific legal meaning that requires a much greater degree of incapacity than that experienced by the Appellant.

  1. The Respondent interprets this finding as being consistent with the evidence that the Appellant was not able to comply with even simple administrative tasks associated with her application for part time work and a transfer. It was also said to be consistent with the representations the Appellant's doctors were making to Centrelink at the time. For example, in the Centrelink application relating to this period, Dr Paul certified that the Appellant was suffering from depression and that as a result she had "reduced ability to cope with people and stress, poor memory and concentration."

  1. Whether the Appellant was capable of managing her affairs was not a question which was in issue in these proceedings. Consequently, there was no need for the Tribunal to make that finding. Making a finding that there was no need to make does not constitute an error in circumstances where that finding is not relied on to support an ultimate finding.

Inadequate reasons

  1. The Appellant submitted that the Tribunal did not provide adequate reasons for its ultimate finding that neither of her parents was 'in need of care' and that, even if they were, she did not have a responsibility to provide that care. The Appellant did not elaborate on this ground. The Appellant also submitted that the Tribunal had failed to give adequate reasons for rejecting the opinion of an expert witness.

  1. The Tribunal is bound in its reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based", the Tribunal's understanding of the applicable law, and the reasoning processes that lead the Tribunal to the conclusions it made: ADT Act , s 89(5). Furthermore, at common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66].

  1. The Tribunal gave the following reasons for finding that the Appellant did not have any responsibilities as a carer during the complaint period:

1. As at 25 September 2005, the Appellant's mother was neither ill, injured, nor in need of care, and was in a position to provide care to her husband, to the extent if any that he needed it: at [42];

2. The parents' primary carer was one of the Appellant's sisters. Another sister also helped in the care of the parents. The Tribunal rejected the Appellant's assertion that she had responsibilities to care for her parents when her sister separated from her husband. Neither the mother nor the sisters was called to give evidence. No doctor was called to give evidence as to the parents' needs. The Tribunal drew a Jones v Dunkel inference: at [79] to [80].

3. Throughout the complaint period, the Appellant was suffering from a psychiatric disorder which she did not disclose to her employer and which meant that she was unfit for work. Rather than disclose her condition she sought full-time leave without pay, justifying this from 31 May 2005 by an alleged need to care for her parents: at [204].

4. Even if either of the Appellant's parents needed care, that care was being provided in the father's case by the mother and in the mother's case by her other two daughters: at [132].

5. The Appellant did not have a responsibility to relieve her sisters from time to time: at [132].

6. The Appellant's visits to Queensland during the complaint period were irregular and uncommon and did not reflect the pattern of every second weekend which she told her employer was necessary to meet her responsibilities to care for her parents: [204](7).

  1. It is apparent from these findings and from the Tribunal's decision as a whole that it made relevant findings of fact, understood the applicable law and set out the reasoning process that lead it to the conclusions it made: ADT Act , s 89(5). There was no breach of s 89(5), nor were its reasons inadequate by any other common law standard. No error of law is disclosed in relation to this ground of appeal.

  1. The Appellant also submitted that the Tribunal gave inadequate reasons for rejecting the evidence of an expert witness, Ms Bourke. Ms Bourke expressed the view, in relation to the Appellant's allegations of 'indirect' discrimination under s 49T(1)(b), that it was "not reasonable for the employer to insist on full-time work in relation to ACE's position."

  1. The reasons that the Tribunal was not persuaded by Ms Bourke's opinion are set out at [232] to [234]. That part of the Tribunal's reasoning complies with s 89 of the ADT Act and cannot be said to be 'inadequate'.

Understating the qualifications and experience of Ms Bourke

  1. The Tribunal referred to Ms Bourke, an expert witness called by the Appellant, as a 'barrister' when she is not.

  1. We agree with the Respondent's submission that it is not necessarily an error of law to understate the qualification and experience of an expert. In this case, the Tribunal's misunderstanding did not lead it to place less weight on her evidence.

  1. A second ground of appeal in relation to Ms Bourke's evidence was that the Tribunal erroneously rejected her opinion that it was not reasonable for the Respondent to insist on full-time work in relation to the Appellant's position. Since the Tribunal found at [223] that the Respondent did not require the Appellant to work full-time, Ms Bourke's opinion that it would have been unreasonable to impose such a requirement, was irrelevant. Nevertheless, the Tribunal gave reasons at [232] for deciding that any such requirement would have been reasonable. No error of law is disclosed.

Costs

  1. Any application for costs should be made within 21 days of receipt of these reasons and any submissions in reply within a further 21 days. If an application is made it will be determined 'on the papers' pursuant to s 76 of the ADT Act unless either party submits that an oral hearing is necessary.

Orders

The appeal is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

Decision last updated: 06 June 2011

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16