Ace v State of NSW (TAFE Commission and Det)

[2010] NSWADT 180

CITATION:	ACE v State of NSW (TAFE Commission and DET) [2010] NSWADT 180 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT ACE ACE RESPONDENT State of New South Wales (TAFE Commission and the Department of Education and Training)
FILE NUMBER:	071120
HEARING DATES:	17 August 2009, 19 August 2009, 20 August 2009, 23, 24 November 2009, 26 November 2009, 23 December 2009
DATE OF DECISION:	19 July 2010
BEFORE:	Perrignon R - Judicial Member; Schneeweiss J - Non-Judicial Member ; Weule B - Non-Judicial Member
CATCHWORDS:	Discrimination on the ground of carer’s responsibilities – employer’s refusal to agree to part-time work - whether direct discrimination – identification of comparators - whether Applicant treated less favourably than comparators - whether reasonable in the circumstancesDiscrimination on the ground of carer’s responsiblities– employer’s refusal to agree to part-time work – whether indirect discrimination – whether Applicant required to work full-time – whether requirement reasonable in the circumstances - identification of base group and pools for comparison – use of common knowledge in determining compliance rates
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Australian Iron & Steel v Banovic (1987) 168 CLR 165 Bonella v Wollongong City Council [2001] NSWADT 194 Commonwealth Bank v Human Rights and Equal Opportunity Commission (Finance Sector Union Case) (1997) 150 ALR 1 Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT Fluor Australia Pty Limited v Tanevski (EOD) [2009] NSWADTAP 39 Gardiner v WorkCover Authority of NSW [2005] NSWADTAP 1 Jones v Dunkel [1959] 101 CLR 298145 Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 Purvis v State of NSW (2003) 202 ALR 133 Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT M Tibbey, barrister RESPONDENT K Nomchong, barrister
ORDERS:	Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint is dismissed

REASONS FOR DECISION

1 For some years, the Applicant Ms ACE worked full-time for TAFE as a Recruitment Officer at its offices at Ultimo in Sydney. On 19 January 2006, she complained to the Anti-Discrimination Board that, by declining her request for part-time work, her employer had discriminated against her on the ground of her responsibilities to care for her elderly parents, by declining to provide her with part-time work on request, on and from October 2005.

Jurisdiction

2 The complaint has been referred to the Tribunal pursuant to section 93C of the Anti-Discrimination Act 1977 (‘the Act”). The Tribunal may dismiss the claim in whole or in part, or find it substantiated in whole or in part: section 108(1).

3 The Tribunal’s power to make a determination is limited to the terms of the referred complaint. In this case, the events giving rise to the alleged acts of discrimination began in September 2005 and continued up to 19 January 2006, when the complaint was lodged. However, evidence was adduced of events up to 23 October 2006, when Ms ACE was offered part-time work in the Recruitment Unit. During this period the Applicant says that the discrimination continued.

4 The Tribunal has power under section 103 of the Act to amend the complaint of its own motion: Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145. As the Respondent had an opportunity to cross-examine the Applicant and her witnesses, and to bring contrary evidence, there is no unfairness in amending the complaint to cover the events in the period from 1 September 2005 to 23 October 2006, and the Tribunal considered it appropriate to do so. The complaint was not amended so as to include alleged acts of discrimination of a kind which were not the subject of complaint, including any alleged failure to grant a request for transfer.

Applicant’s case – direct discrimination

5 Ms ACE argued that her employer discriminated against her directly on the grounds of her responsibilities to care for her parents, in contravention of section 49V(2)(a), (b) and (c) of the Act.

6 It did so, she said, by 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 them in accordance with government policy on flexible work practices. In these ways, she said, she was treated less favourably than other employees without carer’s responsibilities, or with different kinds of carer’s responsibilities, who were permitted to work part-time. In submissions after the cases of both parties had closed, Applicant’s counsel sought to add as evidence of discriminatory conduct the Respondent’s requirement for Ms ACE to document her applications in writing, and its failure to grant full-time leave for periods of a year or more at a time. Neither of those matters appeared in the Amended Points of Claim. Leave to amend was neither sought nor granted. Had it been sought, it is unlikely to have been granted, as the Respondent had brought its case on the basis of the Amended Points of Claim, as it was entitled to do. For those reasons, it is unnecessary to consider those allegations, though for the reasons which follow, they would have made no difference to the outcome.

7 In the Applicant’s submission, the employees who were treated more favourably were:

1) Ms Frangeskou and Ms Pryde, who worked in the Recruitment Unit with Ms ACE, and were allowed to work part-time in order to care for their children, and

2) Ms ACE’s daughter, Chinta, who worked in another area of TAFE, and was permitted part-time work on request, though she had no carer’s responsibilities.

8 Section 49V(2) of the Act provided as follows.

‘(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:


(a) in the terms or conditions of employment that the employer affords the employee, or

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.’

9 As Ms ACE was not dismissed, the Tribunal interprets her reference to paragraph (c) of section 49T(2) as a reference to ‘subjecting the employee to any other detriment’ in terms of paragraph (d).

10 The phrase ‘responsibilities as a carer’ was defined in section 49S, which provided:

‘(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 ….

(2) A reference in this Part to a person’s responsibilities is a reference to responsibilities:


(a) that the person has, or

(b) that the person is thought to have (whether or not the person in fact has the responsibilities), or

(c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or

(d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities).’

11 Section 49T relevantly provided:

‘(1) 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, or

….

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer.’

12 To attract the operation of section 49T, Ms ACE must first demonstrate that she had carer’s responsibilities as defined in section 49S. To do so in the circumstances of this case, she must show:

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).

13 To satisfy the requirements of sections 49V(2) and 49T, Ms ACE must show:

1) that the employer declined, or failed properly to investigate and assess, requests for part-time work as alleged;

2) that she was denied part-time work ‘on the ground of [her] responsibilities as a carer’,

3) that, in being denied part-time work, she was treated less favourably than Ms Frangeskou, Ms Pryde and D were, or would have been, in like circumstances; and

4) that those three employees did not have carer’s responsibilities in the relevant sense.

Applicant’s case – indirect discrimination

14 In the alternative, Ms ACE argued that, by denying her part-time employment, TAFE was effectively requiring her to work full-time. In doing so, it discriminated against her indirectly, in contravention of section 49T(1)(b), because that was a requirement with which a substantially higher proportion of persons without carer’s responsibilities were able to comply.

15 . Section 49T(1)(b) provided as follows:

‘(1) 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) …

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.’

16 To succeed on this ground, the Applicant must show:

1) that the employer required her to work full-time;

2) that this requirement was imposed ‘on the ground of [her] having responsibilities as a carer’,

3) that she was unable to work full-time,

4) that the requirement was unreasonable in the circumstances, and

5) that the requirement was one with which a ‘substantially higher proportion of people who do not have [carer’s] responsibilities’ were able to comply.

17 In summary, the Respondent argued that it had not discriminated directly against Ms ACE, for the following reasons:

1) The Applicant bore the onus of establishing her case.

2) The Tribunal would not be satisfied that either of her parents was in need of care during the complaint period.

3) Even if it was so satisfied, Ms ACE had not demonstrated that she had any responsibility to provide such care.

4) Though Ms ACE’s request for part-time work of 23 September 2005 was declined on 20 October 2005, no other request for part-time work had been declined, because on 25 January 2006 she withdrew all such requests, and substituted them with a request for full-time leave, which was granted and continued to be granted throughout the complaint period.

5) From 13 June 2006 to the end of the complaint period, Ms ACE requested part-time work only if transferred to another position outside the Recruitment Unit. The Tribunal’s power is confined to the terms of the complaint referred by the Anti-Discrimination Board. The complaint did not include the failure to grant an application for transfer. Thus the Tribunal lacks power to consider whether the failure to provide a transfer, on a part-time basis or otherwise, constituted actionable discrimination.

6) Ms Frangeskou and Ms Pryde were not appropriate comparators for determining whether Ms ACE had been treated less favourably, because they were persons with responsibilities to provide care. The appropriate comparators were persons with no responsibilities for care, rather than persons with carer’s responsibilities of a different kind from those of the Applicant.

7) The circumstances in which part-time work was denied to Ms ACE were materially different from the circumstances in which it was granted to Ms Frangeskou and Ms Pryde.

8) Even if D was an appropriate comparator, the Tribunal would not be satisfied that the circumstances in which part-time work was provided to her were the same as, or not materially different from, those in which it was denied to the Applicant.

10) Further and in the alternative, Ms ACE is estopped from maintaining these proceedings, at least in respect of events up to 4 April 2006, by the parties’ agreement of 25 January 2006 to settle the dispute between them by granting Ms ACE’s request for full-time leave without pay to 4 April 2006.

18 The Respondent also submitted that it had not discriminated against the Applicant indirectly, for the following reasons.

1) The employer did not require her to work full-time. On the contrary, throughout the entire complaint period, it granted her requests for full-time leave without pay.

2) The employer’s decision on 29 October 2005 to decline an application for part-time work was not made on the ground of Ms ACE’s responsibilities as a carer, but on other grounds, including the workload of the Recruitment Unit, its need for Ms ACE as an experienced staff member, the fact that she had already taken nine months’ full-time leave, and that she was on probationary employment.

3) If, contrary to the Respondent’s submissions, the Tribunal is satisfied that a requirement to work full-time was imposed, that requirement was reasonable in all the circumstances of the case.

4) On the evidence, the Tribunal would not be satisfied that it was a requirement with which a substantially higher proportion of persons without carer’s responsibilities were able to comply.

19 Whether TAFE discriminated against the Applicant directly depends on the following issues:

1) Whether her parents were, or either of them was, ‘in need of care or support’ within the meaning of section 49S(1)(c).

2) Whether Ms ACE had a responsibility to provide that care or support during the complaint period.

3) Whether there was a denial of, or failure properly to investigate and assess, Ms ACE’s requests for part-time work as alleged, and if so, on what occasions.

4) If so, whether the denial of, or failure to investigate and assess, requests for part-time work was done ‘on the ground of [her] responsibilities as a carer’.

5) Whether the Tribunal has power to determine whether the failure to satisfy Ms ACE’s application for transfer to a different position on a part-time basis constituted actionable discrimination.

6) Whether Ms Frangeskou, Ms Pryde or D were appropriate comparators – that is, whether each of them was ‘a person who does not have those responsibilities’ as required by section 49T(10(a).

7) If Ms ACE was denied part-time work, what were the circumstances.

8) Whether those circumstances were ‘the same … or … not materially different’ from the circumstances in which her alleged comparators were granted part-time work, or had their requests assessed, as required by section 49T(1)(a).

9) If so, whether the employer treated Ms ACE ‘less favourably’ than Ms Frangeskou, Ms Pryde or D in respect of any of the matters listed in section 49V(2), either by declining Ms ACE’s requests for part-time work, or by failing properly to investigate and assess them.

10) Whether any estoppel operates against the Applicant by reason of the events of 25 January 2006, as submitted by the Respondent.

20 Whether TAFE discriminated against the Applicant indirectly depends on the determination of the following issues:

1) Whether TAFE required her to work full-time.

2) If so, whether this requirement was imposed ‘on the ground of [her] having responsibilities as a carer’.

3) Whether she was unable to work full-time.

4) What were the circumstances in which she was required to work full-time.

5) Whether, in those circumstances, the requirement was unreasonable.

6) Whether the requirement was one with which a substantially higher proportion of people without carer’s responsibilities were able to comply.

Applicant’s evidence

21 In support of her claim, Ms ACE said that she had worked for TAFE as a full-time Recruitment Officer Grade 3/4 from 19 February 2003, at first on a temporary basis, and later as a permanent employee from 8 September 2004. She denied a suggestion by TAFE that she had been placed on twelve months probation from the latter date, in accordance with the usual practice. The letter offering her permanent employment was in evidence. Having regard to its terms, the Tribunal is not satisfied that her employment was subject to probation, even if she was aware of the usual practice.

22 Initially, she had been one of three Recruitment Officers of the same Grade, with equal responsibility for recruitment of personnel to TAFE’s Sydney Institute. In August or September of each year, TAFE would commence a recruitment campaign for part-time casual teaching staff.

23 In about June 2004, the Sydney Institute merged with the St George and Sutherland TAFE Institutes, and Ms ACE’s recruitment role was commensurately enlarged. This was exacerbated by the transfer of her two fellow Recruitment Officers to other duties during the recruitment campaign, which began in about September of 2004.

24 Though she managed the extra workload, Ms ACE found that her health suffered. She experienced migraines, sleeplessness, weight loss, nervousness and anxiety. In October 2004, she told her manager, Maria Frangeskou, that her health was deteriorating. On Christmas Eve 2004, she took holiday leave till 17 January 2005.

25 Just before returning to work, she experienced sleeplessness and agitation. On returning to work on 17 January, she suffered heart palpitations, loss of concentration, shortness of breath and sweating. She also suffered ‘great fear as I did not know what was happening to me’. Nevertheless, Ms ACE completed her shift. She was informed that her two colleagues were doing higher duties.

26 On returning home, she became tearful, could not eat or sleep, and was ‘overwhelmed by fear’. She tried to return to work the next day. Outside the TAFE building, she ‘again felt overwhelmed with fear and all of the symptoms from the previous day returned, but to a greater degree’. She could not bring herself to enter the building. She reported off sick, and attended her GP, Dr Li. She was diagnosed with panic attacks, anxiety, stress and depression.

27 In her oral evidence, Ms ACE accepted that she never returned to work for TAFE after 20 January 2005. The Tribunal infers that this was the date on which she suffered the first of the two panic attacks described above.

28 She was referred to psychiatrist, Dr Napier, who issued a medical certificate. She took sick leave till 1 March 2005, when her sick leave entitlements were exhausted. She then took recreation leave until 5 April 2005, when that leave entitlement was also exhausted. At her request, she was granted leave without pay till 30 September 2005.

29 On 1 April 2005, she submitted to Centrelink a medical certificate from her treating psychiatrist, Dr Napper, in support of an application for sickness benefits. He certified that she suffered from a Panic Disorder, with panic attacks occurring frequently from 20 January 2005. He said that she was unfit to carry out her usual work for eight hours or more work per week. Ms ACE indicated to Centrelink that her illness often, among other things, made it difficult for her to remember things.

30 On 20 April 2005, she submitted another application for sickness benefits to Centrelink. This time, Dr Napper certified that she suffered from Major Depression, and would be unfit for work till 20 July 2005. She was being treated with antidepressant medication, and psychotherapy.

31 While on leave, she told the Tribunal that she would go to Queensland from time to time to visit her parents, Mr and Mrs P, who lived there together. She said that her father suffered from dementia, and could not drive. She recalled visiting her parents for Mother’s Day in May 2005, and for a week ‘at most’ in July 2005. Her bank records indicate that she made a purchase in Queensland on 29 June. The Tribunal infers that this was probably the early part of the week she spent there in July.

32 In July 2005, Ms ACE submitted to Centrelink a medical certificate by Dr Li dated 14 July 2005, in support of her eligibility for sickness benefits. Dr Li certified that Ms ACE suffered from Major Depression, and would be unable to work, even for eight hours per week, for the next three months.

33 On 21 August, Ms ACE sent an email to Ms Frangeskou which included the following:

‘I have had to unfortunately spend the last six weeks in Sydney as I needed to do some work at the Rocks Market as I needed some cash. When your [sic] not working full time the money you do have runs out.

I need to go up to Queensland within the next week as my sister has been covering for me and she does need some assistance in caring for my parents.’

34 This message confirms that Ms ACE had been living in Sydney from at least mid July to late August, and that she had not been caring for her parents during that time. It also demonstrates that her sister was the primary carer, and that Ms ACE saw her responsibility as being, at most, a responsibility to give her sister assistance or respite from time to time.

35 In one of her affidavits, Ms ACE alleged that ‘between June and August [2005] I spent most of my time in Queensland caring for my parents’. In her oral evidence, she said that, in her email message of 21 August, she did not mean that she had been in Sydney continually for six weeks from 10 July to 20 August. During that time, she had gone to Queensland from time to time to care for her parents – she said, ‘possibly every second weekend’.

36 However, the terms of her email message were unequivocal. They indicated that she had spent ‘the last six weeks in Sydney’. In the absence of any evidence corroborating Ms ACE’s assertion that she was in Queensland for part of that time, the Tribunal cannot be satisfied of her assertion, and finds that she probably spent the entire six weeks in Sydney. It follows that her evidence to the contrary is either mistaken, or untrue. That, in turn, raises doubt as to the accuracy of her statement that she spent most of her time between June and August 2005 in Queensland caring for her parents. In the absence of corroboration, the Tribunal cannot be satisfied of the truth of her assertion.

37 In this instance, as in a number of others, the Tribunal found Ms ACE to be an unreliable witness. That finding has affected adversely the degree to which the Tribunal considers it ought rely on her evidence as a whole, unless independently corroborated, particularly where it conflicts with the evidence of other witnesses.

38 Ms ACE said that in September 2005, her mother was hospitalised for treatment of an ulcerated leg. At that point, she said, her parents ‘had become increasingly unwell and I needed to travel to Queensland to care for them’.

39 She initially said that she had been in Queensland for four or five weeks from September to October 2005. However, she thought she had returned from this sojourn in order to attend a meeting with Mr Carnegie. As will be seen, she did not meet with him until October 2006. She was probably confusing that meeting with a meeting on 25 January 2006 between herself, Mr Miller and Ms Frangeskou, described below. She later said that she ‘may have been for a shorter visit’ in September, of a week’s duration. On that basis, her recollection of a 5-week sojourn in September and October 2005 is unlikely to be accurate. On this occasion also, the Tribunal found her to be an unreliable witness.

40 The documentary evidence establishes that Ms ACE flew to Queensland on about 27 September 2005, and returned on 3 October. The Tribunal infers that this was the ‘shorter visit’ of about a week which Ms ACE remembered in September. The Tribunal is not satisfied that she otherwise visited Queensland in September 2005.

41 On 23 September 2005, Ms ACE made the following request by email to her manager, Ms Frangeskou:

‘… I’m not sure what date you would like me to return to work, except that it will be in January, as Kate will be needing time off for her baby’s birth. Very exciting.

Maria, I would like to discuss with you if it is at all possible to return to work for three days a week as I still am needing to assist up in Queensland. I would like to be able to go up every second weekend to help my family who are caring for my Dad. I know that this is a huge request, however, at this time my Dad is only getting worse and help is needed.

…

Maria, I am going up to Queensland again this coming Tuesday the 27th September and I will be there for about a month.

I have access to a computer up there so I will keep checking my mail and then call you.’

42 The text of the message demonstrates that it was written in Sydney. No mention was made of any medical condition of the mother, or that she needed care. The Tribunal infers that, as at 25 September 2005, Mrs P 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.

43 On 20 October 2005, Ms Frangeskou replied by email in the following terms:

‘… As advised in my previous E-Mail things are very busy here and will continue to be so, and as well with Kate going on leave for 12 months I am not in a position to grant you further Leave without Pay or Part Time Leave Without pay.

I have been happy to support you [sic] leave for this year so that you can attend to family concerns, but as indicated above I cannot approve further leave without pay or part time leave without pay for 2006.’

44 ‘Kate’ was one of the three full-time Recruitment Officers grade 3/4. She was going on maternity leave.

45 In cross-examination, Ms ACE admitted that she would have been in Sydney on 20 October, and would have been checking her email. She said she could have opened the message the next day or a week later. She said that she could not access her emails in Queensland, because though she had access to her sister’s computer, she did not know how to ‘get into my mail through her computer’.

46 On 10 October 2005, Dr Li signed another certificate for Centrelink, saying that Ms ACE continued to suffer from Major Depression, and would be unable to work until 15 January 2006. She said that Ms ACE was being treated with antidepressant medication and psychotherapy.

47 In oral evidence, Ms ACE said that she ‘started to feel much better’ in ‘probably September/October’ 2005, and could have returned to work but for the needs of her parents. That evidence is not consistent with the medical certificates of Dr Li produced to Centrelink in July and October 2005. Ms ACE admitted in cross-examination that she has been taking anti-depressant medication from 1998 to the present. She also admitted that, in order to qualify for benefits, she had to demonstrate to Centrelink that she had a job to return to. Having regard to the former admission, to the long-term nature of her Major Depressive illness as evidenced by the Centrelink documents, and the absence of any medical evidence to show that it resolved temporarily in late 2005, the Tribunal is unable to accept her evidence of improvement in September and October 2005. It finds that she continued to suffer from serious illness in that period, which incapacitated her for work.

48 Flight records establish that Ms ACE flew to Queensland again on 24 October and returned to Sydney on 27 October 2005. There is no documentary evidence to suggest that she was in Queensland between 27 October and the end of November 2005. She admitted that she was not in Queensland at all in December 2005.

49 The Tribunal is satisfied that Ms ACE was in Queensland for Mother’s Day in May, for a week from June to July, for another week from September to October, and again from 24 to 27 October 2005. It is not otherwise satisfied that she was in Queensland in 2005.

50 On 10 November 2005, Ms ACE completed a further application for sickness benefits from Centrelink, on the basis that she suffered from Major Depression, adversely affecting her ability to concentrate, and giving rise to panic attacks and anxiety. She produced a medical certificate from her GP, Dr Li, dated 11 November 2005, which diagnosed Major Depression with poor sleep, low energy levels, low moods and anxious feeling. Ms ACE continued to be treated with antidepressant medication and psychotherapy. Dr Li considered that Ms ACE would not be able to resume her usual occupation for at least six months.

51 The Applicant alleged that her mother was in need of care, at least from October 2005 when she underwent an operation for an ulcerated leg. There was in evidence a medical certificate of Dr Mahfouz of Carrara, Queensland, dated 15 April 2006. It indicated that the Applicant:

‘is under my care and she has been coming and carring [sic] for her mothere [sic] since her mother has [sic] the Right ankle ulcer on 25/09/05 untill [sic] 15/04/06. Ms ACE had to stay with her mothere [sic] and helping [sic] her all of this time and therefore, she could not resume her regular work during that time.’

52 The doctor did not say that he treated the Applicant’s mother. Nor did he indicate the source of his knowledge of her medical condition or date of onset. His source may have been the Applicant herself.

53 The Applicant said in evidence that she had taken her mother to Dr Mahfouz after the Gold Coast Hospital had failed to cure her leg condition, and that he had successfully treated her with antibiotics. However, no report to that effect was provided by him. He was not called to give evidence, by telephone or otherwise. Nor were any records produced from the hospital.

54 She also referred to her mother’s heart condition, the possibility of renal failure, high blood pressure and her psychological reaction to her husband’s dementia. No medical evidence was adduced from Dr Mahfouz or any other clinician to substantiate any of these.

55 Dr Mahfouz’ report of 15 April 2006 proves that the Applicant was herself in need of medical attention while in Queensland. That is consistent with the medical reports provided by her to Centrelink, particularly the report of November 2005. However, the probative value of Dr Mahfouz’ report otherwise depends on whether he did treat Mrs P, and therefore on the credit of the Applicant. It does not assist the Tribunal in determining the existence of Mrs P’s medical condition, its date of onset, its nature, severity or duration, as he does not state the source of his knowledge. There was in evidence a report of Dr Mahfouz dated 30 January 2008, but it made no reference to the complaint period. More importantly, there is in evidence a letter dated 13 June 2006 from the ‘practice manager’ of the practice at which Dr Mahfouz worked. It stated that Mrs P was treated there on various occasions between 3 March 2006 and 15 May 2006. It makes no mention of any consultation prior to 3 March 2006, nor does it identify the doctor who treated her, the diagnosis or diagnoses made, or the nature or severity of any condition she may have had. In the absence of any reason why it should not do so, the Tribunal draws the inference that Mrs P did not attend the practice before that date.

56 The absence of a report from Dr Mahouz or any other doctor in that practice is remarkable and unexplained. The Tribunal considers it appropriate to infer that such evidence would not have assisted the Applicant: Jones v Dunkel [1959] 101 CLR 298. Even more remarkable is the absence of any evidence, written or oral, from Mrs P herself. The Applicant said that Mrs P had a poor command of English. That would not preclude the assistance of an interpreter. The Tribunal infers that Mrs P’s evidence similarly would not have assisted the Applicant. The Tribunal is not obliged to draw such an inference, but wherever in these reasons such an inference is referred to as having been drawn, the Tribunal has considered the inference appropriate in the circumstances.

57 Ms ACE’s bank statements from June to December 2005 showed numerous transactions in Sydney, but none in Queensland. Mr ACE explained that ninety percent of the time she would leave her credit card with her daughter in Sydney to pay bills, and take cash only to Queensland.

58 She was questioned on the absence of any evidence of flights to Queensland in that period, except for evidence that she flew there on 24 October and returned on 27 October 2005. She responded that she would be driven there by her niece or nephew. No evidence was called from either of them to corroborate this assertion, or establish any dates of travel. The Tribunal infers that their evidence would not have assisted Ms ACE. Ms ACE also suggested that she flew there more than once during the period, but no documentary evidence of that was forthcoming, apart from the one flight mentioned.

59 On 14 December 2005, Ms Frangeskou sent an email to Ms ACE, confirming that she would be returning to work on 3 January 2006. On the medical evidence, Ms ACE was incapable of working. Ms ACE was in a difficult position indeed. To qualify for sickness benefits, she needed to continue in employment. However, she had exhausted all entitlements to leave, and had now been on extended leave without pay for six months.

60 Ms ACE said that she went to Queensland after Christmas and stayed there for ‘probably five weeks’.

61 On 2 January 2006, Ms ACE rang her workplace, and was told that Ms Frangeskou would return to work on 10 January. She spoke instead to Mr Carnegie, TAFE’s Acting Regional Manager of Human Resources. She said she asked him for part-time work in order to care for her parents. He said he did not think it would be a problem, and asked her to consult Ms Frangeskou when she returned to work.

62 Mr Carnegie’s memory of that conversation differed. He said that she asked him for continued leave until 10 January, when she would have an opportunity to speak to Ms Frangeskou. For the reasons given below when discussing his evidence, the Tribunal has preferred the evidence of Mr Carnegie.

63 On 4 January 2006, Ms ACE was reviewed by Dr Matthew Paul, in the context of her continuing receipt of sickness benefits from Centrelink. He diagnosed depression, with onset three years previously. This suggests that her psychiatric infirmity had predated her employment with TAFE in February 2003. Ms ACE told him that her condition had been at its worst a year ago, when she obtained treatment. That is consistent with her suffering panic attacks in January 2005. She was still taking antidepressant medication, and seeing a counsellor and psychiatrist. She felt improved sometimes, but had a reduced ability to cope with people and stress, and experienced poor memory and concentration. Her condition was improving. She was thought capable of working as a glassblower for up to 7 hours per week, and would be capable of 30 hours or more within six months. Dr Paul’s notes indicate that Ms ACE expressed an intention to return to work as a glassblower within 6 months, and would like access to training in computer skills and small business skills. In her oral evidence, Ms ACE said that she had managed her own glassblowing business, trading as XY Glass, from 1982 to 1992.

64 There was no mention of any intention to return to work at TAFE. Its absence is remarkable and, in the Tribunal’s view, telling. It seems likely that Ms ACE was either intending not to resume her employment with TAFE, or convinced that she would not be capable of it, even within six months.

65 On 10 January, Ms ACE spoke with Ms Frangeskou by phone. At first, Ms ACE said this conversation occurred on 11 January. She later accepted that she ‘may well have been in error’ as to the date, and that it may have occurred on 10 January, in accordance with Ms Frangeskou’s recollection. Her error as to the dates is consistent with the view that the Tribunal has formed as to her unreliability as to dates generally.

66 There was conflicting evidence also as to the terms of that conversation. According to Ms ACE, she asked for part-time work from 16 January, on the basis that her father had dementia, and her mother had leg problems, and she needed to care for them both. She sought three days work per week. Ms Frangeskou explained it was not possible, because another member of staff was going on maternity leave, and the person who was acting in Ms ACE’s position was leaving. Ms ACE indicated that she had no option but to resign. Ms Frangeskou invited her to ring the next day and announce her decision.

67 Ms ACE became anxious, because she considered that, if she returned to work, there would be only two Recruitment Officers including herself, whereas there had been three while she was on leave. The evidence establishes that a replacement had been employed for two months at a time during Ms ACE’s absence.

68 The next day, there a further telephone conversation between the two women. According to Ms ACE, she asked Ms Frangeskou to reconsider, and Ms Frangeskou refused. Ms ACE indicated that she had no alternative ‘but to meet with you on 16 January to sign my resignation papers’.

69 Ms ACE said she made these two phone calls from Queensland.

70 On 13 January 2006, Ms ACE returned to Sydney, and made a complaint of discrimination to the Anti-Discrimination Board, first by telephone, and then in writing. She said she told Ms Frangeskou by email that she had contacted the Board, and would not meet with her until she had heard from the Board. No documentary evidence of such an email was produced. Ms Frangeskou denied having received any such message. Given the adverse view the Tribunal has formed of Ms ACE’s reliability as a witness, and the contrary view it has formed of Ms Frangeskou (see below), the Tribunal is not satisfied that Ms ACE informed Ms Frangeskou of the complaint, by email or otherwise, at this time. Her complaint was formally lodged on 19 January 2006.

71 On 15 January, Ms ACE wrote a further email message to Ms Frangeskou in the following terms.

‘… Maria, as I have explained, my parents are both not in the best of health and my request for part-time work is because at this present time I am a part time carer for my parents. My Father has dementure [sic] and Doctors’ reports state that my Mother was bitten by a spider on her lower right leg, causing her great pain and a very slow recovery. Only two weeks ago, Doctor’s [sic] were going to amputate her lower leg. Thankfully, over the last two weeks, there has been an improvement, which Doctor’s [sic] have said is a miracle. Maria, I have Doctor’s reports to substantiate my writings.

I believe that under the Industrial Relations Act 1996, No 17 that [sic] flexible work arrangements are to be encouraged, which I am sure TAFE is agreeable to. I am asking for part-time work on the grounds of carers responsibilities for my parents.

I also understand that Kate is presently on Maternity leave and that this is not the best time to request part-time work, however, the situation I find myself in at this present time is out of my direct control.

Maria, I would ask that my request be given some extra thought before I am asked to come into the office to hand in my resignation. …’

72 This message was an attempt to re-agitate her request of 10 January for three days work per week. At the time Ms 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.

73 On 19 January 2006, Ms Frangeskou replied by email in the following terms:

‘I have discussed your request with Gary Miller, the Regional Manager Human Resources and he has advised me that he would like to meet with you & me.

Can you let me know when you are available to come in and I will check Gary’s availability….’

74 From that response, the Tribunal infers that as at 19 January 2006 TAFE was willing to consider Ms ACE’s application for part-time work, and wished to elicit more details – including the grounds for the application – in conference with her. It was not a flat refusal to consider the request.

75 On 20 January, Ms ACE told her GP, Dr Li, that she felt able to work part-time, but that her manager had advised she sign resignation papers. This was inconsistent with her evidence to the Tribunal that it was she who mentioned she had no option but to sign such papers, and also inconsistent with Ms Frangeskou’s message of 19 January. The Tribunal does not accept as true Ms ACE’s advice to her GP of 20 January. In the absence of any medical evidence of a rapid improvement in her condition since 4 January, her suggestion that she felt able to work part-time is unlikely to have been true. By that stage, Ms ACE was involved in proceedings before the Anti-Discrimination Board. There is a real possibility that she was giving instructions to her doctor designed to support her in her complaint, or in any proceedings which might arise from it. It is appropriate to approach those instructions with caution.

76 On 25 January, Ms ACE met with Mr Miller and Ms Frangeskou. Ms ACE told the Tribunal she complained that she had been upset by the refusal of her request for part time work. In her affidavit, she said that she asked for further leave without pay to return to Queensland to care for her parents. This was granted to 3 April 2006. In cross-examination, she confirmed that she had applied at that meeting for further leave without pay to look after her parents.

77 In re-examination, she said that she was asked, ‘What do you need at this particular time? At this particular moment what do you need?’ She said that she replied, ‘right now that I was having – my sister was having problems in Queensland and the situation had changed a little bit and I needed to get back up there to sort a few things out, but I still needed part-time work’.

78 That response is inconsistent with her evidence in chief that she had asked for full-time leave. It is inconsistent with the evidence of Ms Frangeskou and Mr Miller to the same effect, extracted below. For the reasons given when discussing their evidence (infra), the Tribunal has found both those witnesses to be reliable. It has taken the opposite view of Ms ACE. Her response was, in all likelihood, a fabrication designed to support her allegation that she was discriminated against on 25 January.

79 Ms ACE told the Tribunal that her parents’ primary carer was her sister, Rose, who lived in Queensland. Another sister, Carmen, also helped in the care of the parents. On about 6 January 2006, according to Ms ACE, Rose and her husband temporarily separated. The situation later resolved. In the interim, Ms ACE said, Rose was unable to continue her role as primary carer, and responsibility for that role fell to Ms ACE.

80 Rose, like her mother, was not called to give evidence. No explanation for the failure to call her was offered. The Tribunal infers that her evidence would not have assisted the Applicant. No medical evidence was called from the treating doctors of either parent to demonstrate their need for care in January 2006. The Tribunal infers that such evidence would not have assisted the Applicant. For the same reason, it infers that the evidence of Mrs P would not have assisted the Applicant. It cannot be satisfied that either parent was in need of care in January 2006, or at all.

81 Ms ACE was in Sydney on 13 January 2006, and on 25 January 2006. In all likelihood, her evidence that she went to Queensland after Christmas and stayed there for five weeks is, once more, inaccurate. Even if she left on Boxing Day, she had returned by 13 January. That was a sojourn of, at most, just under three weeks.

82 On 8 March 2006, she sent an email to Ms Frangeskou in the following terms.

‘Maria, I received a call from my Father last night asking if I could please come to Queensland as my Mother is not doing to [sic] well again. (I was there only a few weeks ago and Mum was improving greatly) It appears that the problem with her leg seems to have reoccurred in the last week. Dad said that it is by no means as bad, however, we are concerned that it has reappeared.

I will be leaving for Queensland later tonight as I have a few things I need to sort out before leaving. …

Maria, at this stage I would like to request extra leave until the 5th of June 2006. I feel that my Mum at this stage in her life is sadly on borrowed time and I want to be able to spend as much time as I can with her. I am sorry for the inconvenience that I know I am causing Recruitment but I need to attend to my parents [sic] needs.’

83 There was no evidence before the Tribunal that Mrs P was ever dying, even though Ms ACE alleged that, at its worst, amputation was considered a possibility. Ms ACE made it plain in her message that the problem was ‘by no means as bad’ as it had been previously. Even if Mrs P had a leg ulcer, the reference to her being ‘sadly on borrowed time’ was an exaggeration designed to obtain a benefit - namely, further leave without pay and the continuation of her employment, despite not having worked for almost fifteen months. This exaggeration adversely affects Ms ACE’s credit.

84 The message demonstrates that Ms ACE had not been in Queensland since mid-February, though she had continued to take the benefit of full-time leave without pay to care for her parents. The Tribunal infers that, even if her parents had been in need of care from early January, and Ms ACE had had a responsibility to provide it – as to which, the Tribunal is not satisfied – then from mid-February Ms ACE had ceased to be their carer, and that this role was being undertaken by the two sisters, or so far as Mr P was concerned, by Mrs P, with or without the help of one or more of the sisters.

85 On 14 March, Ms Frangeskou replied by email, saying:

‘I am very sorry to hear that your mum is not doing well. Give me a call when you have a chance to discuss what further leave you require.’

86 On 21 March, having received no response, she sent a leave application form by email, and asked if Ms ACE could ‘give me a call regarding this’.

87 Ms ACE did not sign the leave form until 28 May. It was received by TAFE on 1 June. By that stage, she had been on unauthorised leave for a period of about two months since 3 April 2006. In it, she requested leave to 6 June. She did not say whether she wanted full-time or part-time leave, and if part-time, on which days she wished to work. In any event, when read with her email of 8 March, it was plain that she sought full-time leave to 5 June. This leave was granted.

88 Ms ACE initially told the Tribunal that, between 4 April and 6 June 2006, she was in Queensland ‘on and off a fair few times’, but not for long periods. She thought she was there for ‘maybe two or three days at a time’, ‘maybe three or four times’. She later contradicted that evidence, saying that in that time she spent four or five weeks in Queensland. She later increased this estimate to six weeks. The Tribunal finds her evidence on this aspect also to be unreliable.

89 During the period 4 April to 6 June, she said that her mother was having serious problems with her leg, and that she was taking her to the doctor for daily injections. No medical evidence was provided from the treating clinician, and no explanation given for its absence. In the circumstances, the Tribunal infers that such evidence would not have assisted the Applicant.

90 The documentary evidence suggests that Ms ACE flew to Queensland shortly after 8 March, and made purchases there on 22 and 29 March. She made a purchase in Queensland on 10 April. There was a return flight from the Gold Coast to Sydney on 16 April. By 26 April, Ms ACE was back in Sydney. The Tribunal accepts that she was in Queensland in March and April, for periods of two or three days at a time, around 8, 22 and 29 March, and from 10 to 16 April. Though it is satisfied that she was visiting her family on each occasion, it cannot be satisfied that she was there for the purpose of providing care to either of her parents.

91 On 22 April 2006, Ms ACE told her GP, Dr Li, that she had ‘terminated working at TAFE’, and that she preferred glass-blowing in her own business. This demonstrates that, by 22 April, she had ceased to have any intention of returning to work at TAFE. She also told the doctor that she had been nursing her mother recently in Queensland, and that her mother had had an ulcerated leg. The absence of any mention of this to the GP on 20 January 2006 suggests that, if the ulcer occurred at all, it had not occurred by 20 January, and that she had provided no care in respect of it by that date. Similarly, the absence of any mention on 22 April of care provided to her father suggests that none was provided.

92 Precisely what, if any, nursing care Ms ACE had provided to her mother by 22 April does not appear in the doctor’s notes. The mention of it, coupled with the fact that Mrs P consulted someone at Dr Mahfouz’ medical practice on a number of occasions between 3 March and 15 May 2006, is capable of giving rise to a suspicion that she may have provided some care to her mother during one or more of the periods she was in Queensland in March and April 2006. However, the fact that Mrs P consulted her doctor does not prove that she was in need of care, or that it was provided by Ms ACE. By April 2006, the potential value of statements to Dr Li, consistent with Ms ACE’s complaint of discrimination, was obvious. Having regard to that, and to the fact that she had probably already framed her instructions to her doctor on 20 January to support her complaint or proceedings arising from it, her instructions of 22 April should be approached with caution, and their probative value is reduced. Having regard also to the adverse inferences the Tribunal has drawn as to the reliability of Ms ACE as a witness, as to her credit, and as to the unexplained absence of corroboration from Mrs P, her other daughters, and her treating clinician, the Tribunal cannot be satisfied that Ms ACE did in fact nurse her mother prior to 22 April as she alleged.

93 Ms ACE was shown her bank statements for May. She admitted that she was making banking transactions in Sydney from 4 to 19 May. The appropriate inference is that she was living in Sydney, while taking the benefit of full-time leave to care for her parents. The Tribunal is not satisfied that she was in Queensland at all in May 2006.

94 Ms ACE did not return to work on 5 or 6 June. On 13 June, she sent a further email to Ms Frangeskou, applying for part-time work three days per week, on the grounds that her parents ‘still need assistance with care’. The Tribunal is not satisfied as to the truth of those grounds. It is more likely that she was motivated to seek leave in order to continue her employment, to preserve her entitlement to the sickness benefit, and to avoid having to undertake work which she knew she was medically incapable of performing.

95 In her email, she explained that the refusal to grant her prior request for part-time work had caused her to contact the Anti-Discrimination Board, and observed:

‘These actions have effected [sic] an otherwise amicable work situation, and now I find it to [sic] difficult to return to Recruitment. I feel that an amicable work relationship has been put in jeopardy; therefore, I am also requesting that I be transferred to another work area.’

96 In her evidence, Ms ACE explained:

‘I just lost basically total respect for a person who was supposed to be my manager. I also felt that if I were to go back there that I could be victimised. A lot of things went through my head but I also had problems in recruitment prior to this, through just an excessive workload. So just the thought of going back there as well was just – I just couldn’t cope with going back there.’

97 On 21 June, Ms Frangeskou replied by email, attaching a form seeking part-time leave without pay. She asked Ms ACE to complete it, and indicate which days of the week she wanted to work on. She also attached a transfer request form for completion, observing that she would have no problem with Ms ACE returning to work in Recruitment if she wished.

98 Ms ACE did not fill in the application for part-time leave. She did, however, complete the transfer application, requesting a transfer to ‘HR/Industrial Relations’, working Monday to Wednesday. She forwarded a physical copy to her employer on 23 June. It seems it was not received, as she was later asked for another copy, which she sent by email on 20 July. Her failure to fill out the application for part-time leave, and her diligence in filling out the transfer application, applying for part-time leave on transfer, is evidence that she had no intention of returning to work in Recruitment, and that she was requesting part-time work only in a position other than her previous unit.

99 From June to July Ms ACE thought she was in Queensland for about three weeks, helping out because her father ‘went into a depression’. There is no evidence that a diagnosis of psychiatric pathology was ever made in respect of Mr P. The word ‘depression’ may be no more than a label describing the Applicant’s opinion of his condition. There is no medical evidence to corroborate her opinion. No convincing explanation for its absence has been forthcoming. The Tribunal infers that it would not have assisted the Applicant. The Tribunal is not satisfied that Mr P suffered from any pathology of the mind in that period, that he was in need of care, or that the Applicant had any responsibility to provide it.

100 All her other sojourns, Ms ACE thought, were of only two or three days duration, at least twice a month. However, there is no documentary evidence to corroborate her assertion that she was in Queensland at all in June or July. In its absence, the Tribunal cannot be satisfied that she was there in that period.

101 On 21 July, Ms Frangeskou acknowledged receipt by email of the completed application for transfer, and informed Ms ACE that her application would be considered when a suitable permanent position became available. Ms ACE admitted that permanent part-time positions at TAFE were very rare, and that Ms Frangeskou’s response was a reasonable one. From her knowledge that such positions were rare, and her expressed intention on 22 April not to return to work at TAFE at all, the Tribunal infers that her motivation for seeking transfer was not a genuine desire to work at TAFE outside the Recruitment Unit, but rather a desire to extend the length of her employment in order to qualify for sickness benefits, knowing that her application for transfer would make it even more difficult for the employer to satisfy her request for part-time work, and increasing the chance that her employer would continue to agree to full-time leave without pay.

102 Ms Frangeskou also acknowledged receipt of a leave application (dated 23 June) seeking leave only to 22 June. Ms ACE had not returned to work on 22 June or at all. Ms Frangeskou attached a further leave form, and asked that Ms ACE fill it out to cover her current absence, and indicate any future leave requirements.

103 On 24 July 2006, while on full-time leave to care for her parents, Ms ACE obtained an ABN in order to secure work as a driver for children with Life Without Barriers. She was offered the position, but did not take it up. From that evidence, and from the continuing severity of her medical condition as evidenced by the Centrelink documents, the Tribunal infers that her decision not to return to work at TAFE, first communicated to her doctor on 22 April 2006, had continued to July 2006. Despite that decision, she was doing everything within 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.

104 The documentary evidence establishes that Ms ACE flew to Queensland on 1 September 2006. The Tribunal is not satisfied that she was otherwise in Queensland from May to August inclusive. It is not satisfied that she flew to Queensland for the purpose of providing care.

105 In re-examination, Ms ACE said that she cared for her parents when in Queensland by cooking, cleaning, driving them to medical appointments, doing the shopping, taking them out for lunch, giving them medication, gardening, washing and ironing, ensuring that her father showered and ate, and engaging him in stimulating conversation. In evidence on 20 August 2009, she said:

‘Up until two months ago I was there nearly – most of the year.’

106 Given the adverse view the Tribunal has taken of Ms ACE’s reliability as a witness, especially as to the unreliability of her memory, the adverse view it has taken of her credit, and the inferences that it has drawn from the failure to adduce any evidence from Mrs P, or relevant reports from the clinician of either parent, the Tribunal cannot be satisfied on the balance of probabilities that she did these things at all. Even if she did, there seems a real possibility that she did so in the years following the complaint period when, on her evidence, she was in Queensland for substantial periods of time.

107 On 22 September 2006, she provided a completed request for part-time work through her solicitors. In early October, there were communications between Ms ACE and her employer about a possible transfer to Customer Service within TAFE, where a position had become vacant.

108 A conciliation conference was convened by the Anti-Discrimination Board on 14 September 2006. On 23 October 2006, Mr Carnegie met with Ms ACE, and offered her part-time employment in the Recruitment Section. She did not take up the offer. In one of her affidavits, she explained:

‘57. … It was, in my view, impossible for me to take up that position due to my past dealings with Ms Frangeskou. A relationship of trust and collegiality had, in my view, broken down and it would not be desirable for me to return to that, with Ms Frangeskou as my supervisor.

…

61. … I would have been content with any other section apart from recruitment as in any other department I would have had less daily contact with Ms Frangeskou.’

109 That response is consistent with the view that the Tribunal has taken, that Ms ACE had no intention or desire to return to that unit from the time she made her request for transfer on 13 June 2006. From April 2006, it is likely that she had no intention of returning to work at TAFE at all, and was keeping her position open by continued requests for leave, while seeking work elsewhere.

110 If she genuinely sought part-time work in the Recruitment Unit to look after her parents, as she told Mr Carnegie on 23 October, she would in all likelihood have accepted the offer. The Tribunal infers that her request was not genuine. It was probably designed to secure the continuation of her employment in order to qualify for sickness benefits, as before. By making such a request, she ran the risk that TAFE might oblige her, as it did. Her failure to accept the offer was the only response which she could make, in view of her continued incapacity for work.

111 In November 2006, Ms ACE submitted another application to Centrelink in support of her continuing eligibility for benefits. She said she continued to suffer from Major Depression and Anxiety, and that it affected adversely her ability to concentrate and to study for three days a week. She considered the condition was improving, and observed, ‘I take time of [sic] when I’m not feeling well.’ She had been on full-time leave since January 2005. The appropriate inference is that, for the entire time that she had taken leave during the complaint period, she did not feel well. She said she was not well enough to undertake work or study immediately, but would be well enough within six months.

112 Not for publication

113 In May 2007, Ms ACE submitted to Centrelink a further medical certificate of Dr Li in support of her continuing eligibility for benefits. Dr Li indicated that she continued to suffer from Major Depression and Anxiety, and would be unfit for work or study until 18 August 2007, affecting her ability to concentrate. By that time, she felt she might be able to return to work or study despite the condition.

Evidence of D

114 The Applicant’s daughter, Chinta, also gave evidence orally and by affidavit. From June 2003, she had been employed by the Sydney Institute of TAFE on a temporary basis, both in the Recruitment Unit and elsewhere. In 2004, she was appointed Executive Assistant to the Director of Human Resources.

115 After the restructure of 2004, the Recruitment Unit consisted of six full-time staff and two part-time staff, one casual staff member (Recruitment Support Officer grade 1/2) and an Administrative Support Officer grade 3/4. The full-time staff consisted of a Workforce Planning Manager, two Workforce Planning Officers Grade 5/6, and three Recruitment Officers. The latter were the Applicant, Kate Pickett and Matthew Hardy. The two part-time staff were Ms Frangeskou (Recruitment Manager grade 7/8) and a Workforce Planning Officer grade 5/6, Jacinta Pryde.

116 D lived with her mother. Though she worked in a different area, D had an opportunity to observe her mother at home. She observed her mother’s health deteriorate with the increase in workload during the recruitment campaign of 2004, when the other two Recruitment Officers were transferred to other duties.

117 On 17 January 2005, she walked to work with her mother. Outside her place of work, her mother said, “My heart is pounding. I can’t breathe. I’m sweating. I’m really scared.”

118 That night, her mother burst into tears, explaining that her two colleagues were still on higher duties. The next morning, she said she had been unable to eat or sleep. The two walked to work together. The Applicant said, “I feel really strange. My heart’s beating fast.” Chinta observed that her mother’s face had turned white. Her mother said she would go to the doctor, and asked Chinta to tell Ms Frangeskou.

119 At about this time, D was reporting to Mr Carnegie, the Acting Manager of Human Resources. As her appointment was coming to an end, she told him that she would seek work elsewhere. He indicated that the Institute did not wish to lose her as an employee, and asked on what terms she would agree to stay. She said she wanted three days work per week, and that those days must be flexible. Her demand was met, and she commenced working three days per week in February 2005.

120 Due to her mother’s ill health, however, D decided to resign at the end of February 2005 in order to care for her mother. She had observed her mother’s health deteriorate, beginning with the campaign of September 2004. After her mother took leave from 24 December, D observed her to be still unwell while on holidays. Having regard to the long-term nature of the Applicant’s psychiatric illness which commenced in 2003, to the adverse effect upon her health of the campaign in September 2004, to her continuing ill health while on holidays, and to her manifest distress on having to return to work in January 2005, it is likely that, even before D sought part-time work, her mother was in need of care, and that D had a responsibility to provide it as they lived together. It seems likely that D’s insistence on a flexible, part-time position was driven, at least in part, by her awareness of that responsibility, and desire to fulfil it.

121 Later that year, she set up a glass-blowing business. For six weeks ending in late August 2005, she rented a stall at The Rocks for the sale of her glassware. The venture lost money. On about four weekends, her mother assisted her in the stall on an unpaid basis, for about five hours per day. She observed:

‘… it was good for her just to get out, I think, too and just socialise with people, so that’s why.’

122 And later:

‘I think more so I wanted her there just for the social aspect, so that she could get out and socialise with people and have some time.’

123 It seems D was concerned that, over this six week period, her mother was not enjoying social interaction, and needed to get out of the house. This supports the view the Tribunal has taken that, from mid July to the end of August 2005, Ms ACE was staying at her home in Sydney, while enjoying the benefit of full-time leave to care for her parents.

124 She said that in 2005 and 2006, her mother would receive telephone calls from her family in Queensland, and go there from time to time to provide ‘extra assistance’. She said:

‘She would go up, like, a couple of days and then come back and then stay here a couple of days or a couple of weeks and then go back.’

125 She could not recall any of the dates on which her mother visited Queensland. The longest period which she could recall that her mother stayed in Queensland was a couple of days.

126 When she did go to Queensland, D said her mother would leave her bank card with Chinta, who would use it to pay bills and groceries. However, the banking records show that a number of the transactions which occurred while her mother was allegedly in Queensland were not payments of bills or for groceries, but rather purchases at restaurants, Myer and K-Mart.

127 In response to questioning from the Tribunal on other issues, D volunteered that she had not employed her mother at the glass stall at the Rocks. She had not been asked that question. Her observation suggested a prior knowledge that the receipt by her mother of moneys from that venture was an issue in the proceedings. That, in turn, raised a distinct possibility that she had discussed with her mother the evidence she was to give, despite having assured the Tribunal of the contrary. These matters, coupled with the fact that the two lived together, suggest that the evidence of D should be approached with caution. For the reasons given, the Tribunal had formed a view that the Applicant was an unreliable witness, and that her evidence, where contested, ought not be accepted without independent corroboration. The Tribunal was unable to be satisfied that, as a witness, D was truly independent of her mother.

128 D said that she travelled to Queensland with her mother only on one occasion. She recalled that her mother would sometimes fly, and sometimes travel there by car with other family members. None of the other family members alleged to have transported Ms ACE to Queensland were called to give evidence. No explanation was given. The Tribunal infers that their evidence would not have assisted the Applicant.

129 D said that her mother would tell her what she did in Queensland, and explained:

‘Both my grandparents have to take medication and, because my grandfather has dementia, normally if my grandmother is healthy she would always allocate the tablets for my grandfather to take, help him, when he wakes up in the morning, to get changed and shower him and so forth. When she got sick she couldn’t do that. So mum would be responsible for helping them take both their medication. She would do a lot of the cooking and the cleaning as well and she would also take my grandparents, or my grandmother, to the doctors to get her dressing changed.’

130 As to who bore the responsibility for care, D observed:

‘They were sharing responsibilities. So my aunty [Rose] would help my grandmother when my mum was in Sydney and I have another aunty [Carmen] as well who would come over [and] help, but she doesn’t drive. So she would just, like, clean the house and so forth. …. She doesn’t drive, so my uncle would just drive her to my grandparents’ house and she would just help with the cleaning and so forth, but a lot of the responsibility was with my Aunty Rose and then my mum and her would swap that around a bit when mum was up there be[cause] she couldn’t [do] it all on her own. She had a husband.’

131 She did not say that she observed any of this to be true herself. On the contrary, she said she was told this by her mother. To that extent, its persuasive value depends on the credit of the Applicant.

132 Even if accepted, the evidence suggests that, if Mr P needed care – as to which the Tribunal is not satisfied – the responsibility for providing it was undertaken by his wife, rather than by the Applicant. Even if Mrs P herself had need of care at some stage – as to which the Tribunal is not satisfied – this evidence suggests that her needs were met by her daughter Rose, with the assistance of her other daughter, Carmen. That alone would not preclude the possibility that Ms ACE 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.

133 In any event, Ms 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 P, 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 Ms 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.

134 Even if, contrary to the view the Tribunal has taken, she had a responsibility to provide respite for her sister from early January 2006, that responsibility ceased in mid February, when Ms ACE returned to live in Sydney. There, she kept her job open while enjoying the benefit of full-time leave without pay, without the burden of providing care for either of her parents in Queensland.

135 From March to April, she probably visited Queensland on the five occasions specified above. She was not there from May to August 2006 inclusive. The only other occasion on which the Tribunal is satisfied that she was in Queensland at all during 2006 was on 1 September. Though it is satisfied that she attended for a family visit or visits on each of these occasions, it is not satisfied that she was there for the purpose of providing care at any time in 2006.

Evidence of Ms Bourke

136 Oral and affidavit evidence was adduced from a barrister, Ms Bourke, who had experience in government policy-making. Numerous government policy documents were tendered. They tended to show that, since the 1990’s, it has been the policy of the NSW State Government to encourage flexible work practices in each of its departments, which included TAFE. Those work practices included the provision of part-time work where appropriate, and discussions between employees and their management as to the availability or implementation of flexible work options.

137 That evidence may readily be accepted as true.

138 Ms Bourke also expressed the view that it was not reasonable for the employer to insist on full-time work in relation to Ms ACE’s position. For the reasons given below, the Tribunal has not been persuaded by this opinion.

Evidence of Ms Frangeskou

139 Ms Frangeskou gave evidence orally and by affidavit. From November 2004 to December 2006, she was the Acting Manager of Workforce Planning in the Workforce Planning and Recruitment Unit at Ultimo. That unit was responsible for recruiting for all positions at the six colleges of the Sydney Institute of TAFE. She agreed that the period from September to December 2004 had been a very busy one for the unit, and formed the view at that time that Ms ACE was a good worker. She recalled being told by Ms ACE at some stage that she was upset about being stalked by a ‘guy that I knew’, but denied receiving any complaints from her about workload.

140 At the end of January 2005, Ms Frangeskou returned from leave. She was informed that Ms ACE had left work around 20 January, and had not returned. She rang the mobile phone number given by Ms ACE, but there was no answer. She made inquiries of D, and was told that her mother was not well. She asked Chinta to ask her mother to call her, and let her know how long she would be off work.

141 On 10 March 2005, a leave application was received from the Applicant, seeking leave from 20 January to 14 March, for an unspecified ‘medical condition’. Ms Frangeskou rang Ms ACE and obtained permission to utilise her recreation leave, as her sick leave entitlements were exhausted. She did not enquire what the medical condition was, or probe Ms ACE in respect of it. Permission was granted by Ms ACE.

142 Ms ACE submitted a medical certificate from her GP, Dr Li, covering the period 20 to 28 January, for an unspecified ‘medical condition’. She also submitted certificates of Dr Napper covering the period 14 February to 14 March 2005 for ‘panic attacks’.

143 Ms Frangeskou approved leave without pay to 1 June 2005, because she thought Ms ACE had a medical condition which prevented her from returning to work. In the Tribunal’s view, she was correct.

144 In mid May, the two had a telephone conversation. Ms ACE indicated she needed her leave extended, because she was unwell. The Tribunal is satisfied that she was unwell and, indeed, totally incapable of work by reason of her psychiatric condition.

145 However, on 31 May, Ms ACE signed an application for leave without pay to 31 August. It was received on 6 June. The reason given on this form for the leave was not her own ill health, but ‘taking care of parents’. Ms Frangeskou rang Ms ACE, and asked about this. Ms ACE said:

“Yes my parents are in Queensland and I need to look after them. It’s my dad, he has early dementia’.

146 She provided further details about her father’s health. The leave was approved. Ms Frangeskou kept the Applicant’s position open, using agency staff to fill it from time to time, because she thought the leave was only temporary, and that Ms ACE would return when she had fulfilled her responsibility to care for her father.

147 At this stage, Ms ACE knew that she was incapable of work by reason of her condition. She had submitted medical assessments to Centrelink in April, confirming her incapacity for work, in order to qualify for sickness benefits. Dr Napper had certified her unfit for work until July 2005.

148 There was no medical evidence that Mr P had dementia in June 2005, or that he was in need of care. There were in evidence, however, progress notes of Mr P’s treating doctor, Dr Kaminski, dated 17 November 2008. These described his various medical conditions as at that date. They demonstrated that, by November 2008, he required care and assistance in his daily activities. They were silent as to the situation during the complaint period.

149 These notes do not assist the Tribunal to determine whether the Applicant’s father was in need of care in 2005 or 2006. Dr Kaminski was not called to give evidence. No report was provided by him. No satisfactory explanation has been given for the absence of a report. The Tribunal is left to infer that Dr Kaminski’s evidence would hot have assisted the Applicant.

150 In the circumstances, the Tribunal is not satisfied that Mr P was in need of care, or that Ms ACE had any responsibility to provide it, as at 31 May 2005. Nor, in the absence of any medical evidence to that effect, is it satisfied that Mrs P was in need of care at that stage. It finds that the reason advanced on 31 May for the grant of leave was not genuine. It was probably designed to secure leave in circumstances where all rights to leave had been exhausted, disclosure of a continuing and chronic incapacity to work presented a risk of retrenchment, and continued employment was necessary for Ms ACE to continue to qualify for the sickness benefit.

151 In August, an employee from another section told Ms Frangeskou that she had seen Ms ACE working at the Rocks selling glass ornaments, and looking well.

152 On 21 August, Ms Frangeskou received Ms ACE’s email of that date, extracted above. She was understandably concerned that Ms ACE had been staying in Sydney for the last six weeks, during a period in which she had been granted leave to look after her parents. She was also concerned that Ms ACE was engaging in what appeared to be other paid employment during a period of leave. She rang Ms ACE a number of times, and left messages. There was no response.

153 On 23 September, Ms Frangeskou received the email message from Ms ACE extracted above, applying to work three days per week in order to care for her parents every second weekend. Ms Frangeskou could not understand why Ms ACE needed to work three days per week in order to care for her parents every second weekend. She was advised by her own Human Resources Section that she should give proper consideration to the request, taking into account the information provided by Ms ACE and the workloads and operational needs of her Unit.

154 She gave it consideration. She needed more information from Ms ACE. She needed to know the days of the week Ms ACE needed to work, and how a need to attend her parents every second weekend required a three-day working week. She made a number of attempts to ring Ms ACE’s mobile phone. There was no answer. She found herself in a position of having to consider and determine the matter without the benefit of further information from Ms ACE.

155 She had regard to the workload of the unit, which was then very busy. One of the two remaining Recruitment Officers was about to take 12 months maternity leave. Ms ACE was needed at work. Her position by then had been left open for nine months. The reason for the grant of leave to date had been to care for parents, but it had become clear that Ms ACE had not been caring for them for at least the last six weeks.

156 The Tribunal infers that Ms Frangeskou was not convinced that Ms ACE had been caring for her parents at all, her parents had a genuine need for care, or that Ms ACE had any real responsibility to provide care. She did not have sufficient information to know the precise nature of those needs, or to know what responsibilities Ms 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 Ms ACE without success.

157 On the basis of the information before her, Ms Frangeskou 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 Ms ACE had carer’s responsibilities. On the contrary, the evidence suggests that she was not satisfied that Ms 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.

158 On 10 January, Ms Frangeskou returned from the Christmas break, to be informed that Ms ACE had been granted extra leave by Mr Carnegie till that date. This is consistent with Mr Carnegie’s evidence (considered below) that he granted Ms ACE an extension of her leave to 10 January. Ms Frangeskou received a call from Ms ACE. Ms Frangeskou agreed that Ms ACE sought part-time work, but her recollection of the conversation otherwise differed from that of Ms ACE. According to Ms Frangeskou, she explained she could not approve any more leave on the basis of the information supplied to date, but asked Ms ACE, ‘Could you come in and discuss this with me? I want to understand your view.’

159 On Ms Frangeskou’s version, this amounted to an indication of willingness to consider the matter further with the benefit of more information, rather than a flat refusal as suggested by Ms ACE. It is consistent with the attitude demonstrated by her in her email message of 15 January, extracted above.

160 According to Ms Frangeskou, Ms ACE asked if she was being asked to resign, to which the reply was:

‘No, of course not. ACE, your position in Recruitment is here for you. I just want you [to] come in and talk to me about this.’

9) Ms ACE’s request for ongoing full-time leave continued to be met for the rest of the complaint period.

10) From 13 June 2006, she sought part-time work only if transferred to another position. She did not seek part-time work in Recruitment. She indicated an unwillingness to return there.

11) In any event, by 22 April 2006, she had formed an intention not to return to work at TAFE. That intention continued for the remainder of the complaint period.

Consideration - direct discrimination

205 The first issues for determination are whether Ms ACE’s parents were in need of care during the complaint period, and whether Ms ACE had a responsibility to provide that care. For the reasons given, the Tribunal is not satisfied that at any time during the complaint period, either of her parents had a need for care, or that the Applicant had a responsibility to provide it. Issues (1) and (2) are therefore determined in favour of the Respondent.

206 The provisions of section 49V(2) are only enlivened where the alleged victim has responsibilities as a carer, as defined in section 49S. It follows that there is no basis for a finding of direct discrimination.

207 Though it is strictly unnecessary to determine the remaining issues, it is appropriate to do so.

208 The next issue is whether there was a denial, or failure properly to investigat and assess, Ms ACE’s requests for part-time work as alleged, and if so, on what occasions. On 20 October 2005, TAFE declined her application to work part-time from 3 January 2006, when she was due to return to work. In the events which occurred, that action on TAFE’s part was to have no practical effect, because on that date, she requested and was granted further full-time leave by Mr Carnegie till 10 January. On that date, she called Ms Frangeskou from Queensland and requested part-time leave. Her request was further discussed by phone the next day, and repeated in writing on 15 January. A decision on the request was referred by Ms Frangeskou to Mr Miller, who met with the two women on 25 January. On that date, Ms ACE withdrew her request, and substituted it with an application for full-time leave, indicating that she might in the future require part-time leave. Her request was granted on the spot. It was renewed from time to time for the rest of the complaint period, and continued to be granted. In the final analysis, TAFE withdrew its original requirement of 20 October 2005 that the Applicant work full-time from 3 January 2006. It follows that, when the events are considered as a whole, TAFE did not require the Applicant to work full-time, or at all, during the complaint period.

209 It would be artificial to have regard to the communication of 20 October 2005 without considering the events which followed and deprived it of practical effect. Even if the Tribunal were to do so, the only occasion on which a request for part-time leave was declined was 20 October 2005. For the reasons given above in the analysis of Ms Frangeskou’s evidence, the Tribunal is not satisfied that there was a failure to investigate and assess Ms ACE’s requests from time to time. Rather, TAFE made attempts to contact Ms ACE for that purpose, and she did not return calls or email messages. A similar pattern emerged when Mr Carnegie attempted to contact her after the meeting of 23 October 2006.

210 The fourth issue is whether Ms ACE’s request for part-time work was declined ‘on the ground of [her] responsibilities as a carer’. The evidence establishes that it was not declined by Ms Frangeskou on any such ground. She declined it because, inter alia, she was not satisfied that Ms ACE had any such responsibilities, there was evidence that Ms ACE had been in Sydney enjoying full-time leave when that leave had been granted for the purpose of providing care to her parents in Queensland, Ms ACE had already taken full-time leave for some nine months – not for reasons connected with any responsibility to give care, but rather for reasons of serious ill-health - the Recruitment Unit was about to lose one of it Recruitment Officers to maternity leave, and the unit was particularly busy by reason of a Review, and of the demands of a novel form of recruitment for the next semester.

211 From about 6 June 2005, leave had been granted to care for her parents. However, by 20 October 2005, Ms Frangeskou was no longer satisfied that the leave had been honestly requested or used for that purpose, because Ms ACE had been in Sydney for at least six weeks from July to August 2005. None of the grounds on which the decision of 20 October 2005 was made constituted a ground that Ms ACE had responsibilities as a carer. The fourth issue is determined in favour of the Respondent. For that reason also, the claim for direct discrimination fails.

212 The fifth issue is whether the Tribunal has power to determine whether the failure to satisfy Ms ACE’s application for transfer to a different position on a part-time basis constituted direct discrimination. That application was first made by email on 13 June 2006, and renewed from time to time in writing. The Tribunal’s power to determine a complaint is limited to the terms of the complaint as referred by the Anti-Discrimination Board. The Tribunal has amended the complaint so as to widen the period during which the events the subject of complaint occurred. It has declined to amend it so as to include activities of a kind not complained of, such as applications for transfer. In those circumstances, the Tribunal lacks power to determine whether or not the failure to grant the requested transfer constituted actionable discrimination, whether that application for transfer was for full-time or part-time work. The fifth issue is determined in the negative.

213 The sixth issue is whether each of Ms Frangeskou, Ms Pryde or D was ‘a person who does not have those responsibilities’ within the meaning of section 49T(10(a). The purpose of section 49T is to protect employees against discrimination on the grounds of their responsibilities as a carer. To achieve this, it compares the treatment of persons with such responsibilities with persons without carer’s responsibilities. It does not compare the treatment of persons with one kind of carer’s responsibilities with the treatment of persons with another kind of carer’s responsibilities. In other words, it does not imply a discrimen based on the nature or identity of the persons in need of care, or on the nature of their needs for care. If it did, 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.

214 It follows that neither Ms Frangeskou nor Ms Pryde, being persons with responsibility to care for children, were appropriate comparators. Even if Ms ACE succeeded in demonstrating that, in the same circumstances, she was treated differently from either of them, it would not amount to discrimination on a prohibited ground under section 49T.

215 D is in a different category. She did not have childcare responsibilities. If, as the Applicant submitted, she was a person without any carer’s responsibilities, she would be an appropriate comparator. However, D said that she did have responsibilities as a carer – namely, the responsibility to care for her mother, whose health had deteriorated in January 2005. She resigned from her position, she said, in order to fulfil those responsibilities. That evidence was unchallenged, and is accepted by the Tribunal. It follows that she was a person who had responsibilities to care for a parent, within the meaning of section 49S, and that she is not an appropriate comparator.

216 In respect of each of the three comparators relied on by the Applicant, the sixth issue is determined in the negative. For that reason also, the claim for direct discrimination fails.

217 The seventh issue for determination is what were the circumstances in which Ms ACE’s request for part-time work was declined, or in which the employer allegedly failed properly to investigate and assess it. It is appropriate to consider the circumstances of Ms Frangeskou’s decision of 20 October 2005, assuming for the sake of argument that it had the effect of declining the request of 23 September. Those circumstances have to be considered as a whole: Purvis v State of NSW (2003) 202 ALR 133. They included the following.

1) The Applicant had no carer’s responsibilities during the complaint period.

2) By reason of a serious psychiatric illness, the Applicant was incapacitated for the very part-time work which she sought, and concealed her incapacity for work from her employer in order to maintain her employment and qualify for sickness benefits.

3) 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.

4) 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.

5) To the employer’s knowledge, Ms 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.

6) The employer, with justification, was not convinced as to the genuineness of her assertion that she had a responsibility to care for her parents. Nor was it convinced that the leave granted to date had been genuinely requested or used for that purpose.

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

8) 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.

9) She sought leave in circumstances where the Recruitment Unit in which she employed was unusually busy with a Review in addition to its usual recruitment campaign, and with novel duties of recruitment identified by Mr Carnegie, and one of the other two Recruitment Officers had already been granted maternity leave.

10) She sought part-time leave in circumstances where she had already enjoyed nine months full-time leave or more.

218 The eighth and final issue is whether those circumstances were ‘the same [as] … or … not materially different’ from the circumstances in which Ms Frangeskou, Ms Pryde and D were granted part-time work, or had their requests for it assessed. There is no evidence that any of these circumstances applied to Ms Pryde or Ms Frangeskou when they were granted part-time leave to care for their children. On the contrary, there is evidence that they did not. Each, unlike Ms ACE, had responsibilities to provide care. Each, unlike Ms ACE, was capable of working for the period for which part-time work was granted. The employer was satisfied that each had responsibilities as a carer, and that those responsibilities required the kind of part-time leave requested. Unlike Ms ACE’s case, there was no evidence before the employer to suggest that either had failed to care for their children in a previous period of leave which had been granted for the purpose of providing care. According to Ms Frangeskou, both workers made formal application in the usual way, identifying with precision the kind of leave sought. Ms Frangeskou had been granted part-time leave from 1997, after returning from maternity leave, returning to full-time duties in 2005. Ms Pryde was granted permission to work 3 days per week, and later four days per week, to look after her children. There is no evidence that, at the time each applied for part-time work, the Recruitment Unit was as busy as it was in September 2005, when Ms ACE applied for part-time work.

219 Similarly, the circumstances in which D was granted part-time work early in 2005 were distinct from those of her mother in October 2005. D was not employed in the Recruitment Unit. She was employed as Executive Assistant to the Director of Human Resources. There is no evidence that the Directorate had the same increased work demands as Recruitment, or that a colleague with whom she shared responsibility was about to take long leave. D herself had not recently taken nine months leave. She had not taken leave to care for parents in circumstances where her employer was no longer satisfied that her reason for obtaining leave had been genuine. She did not apply for part-time work on the ground of carer’s responsibilities which the employer was not satisfied was a genuine ground. She did not apply for part-time work of a kind which the employer was not satisfied was adapted to its alleged purpose. She was in fact capable of working part-time.

220 For those reasons, the eighth issue is also determined in the negative, and the claim for direct discrimination fails. That would be so, even if the Tribunal:

1) were satisfied that Ms ACE had the carer’s responsibilities which she alleged, and

2) were to accept and take into account the allegation that Ms Frangeskou treated some or all of the comparators differently, by granting them leave for periods of a year or more, and not insisting on written applications for leave from time to time.

221 As the Tribunal has found that the circumstances in which the requests of each comparator for part-time work were materially different from those of Ms ACE during the complaint period, it is unnecessary to consider whether Ms ACE was treated ‘less favourably’ than any of them in respect of any of the matters listed in section 49V(2).

Indirect discrimination

222 To determine whether TAFE discriminated against Ms ACE indirectly, it is first necessary to determine whether it imposed the requirement alleged – namely, that she work full-time. The identification of a condition or requirement in a claim of indirect discrimination is a question of fact: Waters v Public Transport Corporation (1991) 173 CLR 349. It must be identified with precision: Australian Iron & Steel v Banovic (1987) 168 CLR 165. Ms ACE argued that TAFE discriminated against her indirectly by requiring her to perform full-time work, and failing to agree to her request for part-time work. The latter was the converse of the alleged requirement for full-time work.

223 The only time during the complaint period when TAFE arguably required the Applicant to work full-time was on 20 October 2005, by declining her request for part-time work. On one view, this amounted to a requirement to work full-time from 3 January, when her leave was to expire. For the reasons stated, the requirement was ultimately withdrawn, and never insisted on. In a practical sense, viewing the events as a whole, the employer did not require Ms ACE to work full-time.

224 It follows that, throughout the complaint period, TAFE did not require Ms ACE to work full-time. From February 2005 through to October 2006, she was on full-time leave, repeatedly extended by her employer at her request.

225 The first issue is determined in the negative. For that reason, the claim for indirect discrimination fails. Though it is strictly unnecessary to do so, it is appropriate to determine the remaining issues.

226 The second issue is whether the requirement to work full-time, if it was imposed, was imposed ‘on the ground of [Ms ACE] having responsibilities as a carer’. The Tribunal has found that her request of 23 September 2005 was not declined on any such ground. The reasons are set forth in the discussion of direct discrimination above. For the same reasons, it finds that the alleged requirement to work full-time was not imposed ‘on the ground of’ Ms ACE’s responsibilities as a carer. That issue is also determined in the negative. For that reason also, the claim for indirect discrimination fails.

227 The third issue is whether, if Ms ACE was required to work full-time, she was capable of doing so. The medical evidence establishes that she was not, by reason of her psychiatric condition. The evidence does not establish that she was incapable of work by reason of carer’s responsibilities.

228 The fourth issue is what were the circumstances in which the requirement to work full-time was imposed, if at all. The relevant circumstances are those in which the request for part-time work was declined on 20 October 2005. They are listed in the discussion of direct discrimination above.

229 The fifth issue is whether, in those circumstances, the requirement to work full-time, if it was imposed, was unreasonable. That is not a question of whether the decision to impose the requirement was correct, or whether a better or more informed decision could have been made. The Tribunal looks to see if there was a ‘logical or understandable basis’ for imposing it, though such a basis does not necessarily prove that the decision was reasonable: Commonwealth Bank v Human Rights and Equal Opportunity Commission(Finance Sector Union Case) (1997) 150 ALR 1 at 66.

230 In Gardiner v WorkCover Authority of NSW [2005] NSWADTAP 1 [at 27], the Appeal Panel of this Tribunal quoted with approval the following test for reasonableness, formulated at first instance by Deputy President Hennessy:

‘The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against:


The reasons for the requirement including any commercial considerations;

Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and

Whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory.’

231 This formulation represented a distillation of the salient principles in Styles v Secretary Department of Foreign Affairs and Trade (1988) 84 ALR 408; (1988) EOC 92-239 and Waters & Ors v Public Transport Corporation (1991) 173 CLR 349: Gardiner at [36].

232 Having regard to the circumstances enumerated above, the Tribunal is satisfied that there was a ‘logical and understandable basis’ for the decision of 20 October 2005 – namely, that the employer was not satisfied that the Applicant’s parents were in need of care, was not satisfied that the Applicant had a responsibility to provide care, and was not satisfied that, even if she did, the leave requested was necessary or appropriate to meet that responsibility. The commercial considerations included the increased workload of the Recruitment Unit and a commensurate need for the assistance of an experienced officer, in circumstances where Ms ACE had not been at work for nine months or more.

233 The Applicant argues that there was a ‘less discriminatory option’ available to Ms Frangeskou – namely, to ‘backfill’ Ms ACE’s position by offering her three days work per week, and utilising the remainder of the budget for her salary to employ agency staff, temporary staff, or permanent staff undertaking higher duties. There was evidence from Ms Frangeskou suggesting that one or more of these options was available. The Applicant also points to other possibilities, such as permitting the Applicant to work from home, splitting the position into two part-time positions, Ms ACE increasing her hours of work on the three days that she was at work, or working four days per week. However, the Tribunal is not satisfied that any of these possibilities, except so far as they amount to ‘backfilling’ the position with another worker two days per week, was reasonably available to the employer. Even if it were so satisfied, the mere availability of options which might accommodate the needs of an applicant does not necessarily render unreasonable a decision not to adopt them: Finance Section Union Case.

234 Weighing all these possibilities, together with the nature and extent of the requirement to work full-time from 3 January 2006 – and the fact that, ultimately, it was not insisted upon – the Tribunal cannot be satisfied that the requirement to work full-time from 3 January 2006 was not reasonable in the circumstances. It could not be so satisfied, even if Ms ACE did have the carer’s responsibilities which she alleged, and even if it were satisfied that all the options referred to in the preceding paragraph were available. The fifth issue is determined in the negative. For that reason also, the claim for indirect discrimination fails.

235 The sixth and final issue is whether the requirement to work full-time, if it was imposed, was one with which a substantially higher proportion of people without carer’s responsibilities were able to comply. To determine this issue, it is first necessary to identify a ‘base group’ from which the two ‘pools’ of comparators are to be derived: Bonella v Wollongong City Council [2001] NSWADT 194 (upheld on appeal: [2002] NSWADTAP 26). The decision to select a particular base group is a question of mixed law and fact. In a case of this nature, it is calculated so as to reveal the significance of carer’s responsibilities, if any, to compliance with a requirement for full-time work: Finance Section Union Case [at 120].

236 The Applicant did not, in terms, identify the ‘base group’ to whom the requirement for full-time work was directed. However, from her written submissions the Tribunal infers that she contended that it included, not only full-time workers in the Recruitment Unit, but also full-time workers in Mr Carnegie’s unit. Of the latter, there is evidence of only two employees: Mr Carnegie himself and D, who left her employment in February 2005. There were eight employees in the Recruitment Unit.

237 The Respondent submitted that the appropriate pools were, on the one hand, Ms ACE and other employees with the same kind of aged care responsibilities, and on the other, all other employees in the Unit who did not have responsibility for aged care. That approach identifies a responsibility for aged care, rather than one for care generally, as the appropriate discrimen. For the reasons given in the discussion of direct discrimination above, the Tribunal does not accept that submission. The characteristic which informs the selection of comparators for indirect discrimination is the same as that which informs their selection for direct discrimination – that is, a responsibility for care of any kind. The appropriate pools are those who have carer’s responsibilities, and those who have none.

238 The only members of the Recruitment Unit with carer’s responsibilities of which there was evidence were Ms Frangeskou, Ms Pryde and Ms Pickett. Each had childcare responsibilities. The latter two, it seems, were unable to work full-time. Ms Pryde worked part-time and Ms Pickett took maternity leave. Ms Frangeskou, however, was able to work full-time, and did so from 2005. If the Applicant also had responsibilities as a carer, the compliance rate among that pool would be 25%.

239 It seems the remaining five workers in the Recruitment Unit were capable of working full-time, and did so. If they had no carer’s responsibilities, they would be appropriate comparators, with a compliance rate of 100%.

240 Mr Carnegie said that all staff in his section worked full-time. He also said that none of them had carer’s responsibilities, so far as he knew. The appropriate inference is that he did not know whether they did or not. On that basis, the only two members of his section about whom sufficient is known were himself and D. Mr Carnegie did not have carer’s responsibilities. D did. No more is known about Mr Miller’s staff. The Tribunal was told that, at trial, Mr Miller had carer’s responsibilities of a most serious kind. It is not known when they commenced. If D is included in the pool of persons with carer’s responsibilities, the compliance rate would drop to 20%. If either or both of Mr Carnegie and Mr Miller (assuming, in the Applicant’s favour, that he did not have carer’s responsibilities at the relevant time) is included in the other pool, its compliance rate remains 100%.

241 The differential of 75% or 80% would amount to a substantially higher compliance rate for persons without carer’s responsibilities, if the Tribunal were satisfied that the other five workers in Recruitment had no carer’s responsibilities. The onus of establishing that lies with the Applicant. On the evidence, the Tribunal is not satisfied that they had no such responsibilities. For that reason, with the exception of Mr Carnegie, it is not possible to identify with confidence the pool of comparators with which to compare the employees who were known to have had carer’s responsibilities. If only he and Mr Miller comprised the pool, it would be too small for any meaningful comparison.

242 In the absence of appropriate statistical proof, the Applicant submits that the Tribunal should find as a matter of common knowledge that a greater proportion of persons in the community (presumably, the residents of New South Wales) without carer’s responsibilities are capable of full-time work than those who have carer’s responsibilities. The community generally is not the appropriate base group, because it is considerably wider than the group to which the alleged requirement for full-time work was directed. Even if it was an appropriate base group, the percentage of persons with carer’s responsibilities capable of full-time work would depend on the nature and extent of those responsibilities, as to which there is no evidence. It is not a matter in which the Tribunal would be inclined to apply the ‘common knowledge’ principle referred to by the Appeal Panel in Fluor Australia Pty Limited v Tanevski (EOD) [2009] NSWADTAP 39. The sixth issue is determined in favour of the Respondent.

243 For the reasons given, the claim for indirect discrimination fails. It is unnecessary to consider the Respondent’s claim of estoppel.

Order

244 Pursuant to section 108 of the Anti-Discrimination Act 1977, the complaint is dismissed.

13/04/2011	-	Order made on 13/4/2011 under s75 of the Administrative Decisions Tribunal to substitute the applicant name with 'ACE', to substitute the daughter's name with 'D', the applicant's parents name with Mr P or Mrs P, and in paragraph 63 the applicant's business to be substituted by 'XY Glass'. - Paragraph(s) Throughout decision
13/04/2011	-	s75 order made - Paragraph(s) -