ADAMS v Gateway Community Health

[2015] FCCA 1587

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMS v GATEWAY COMMUNITY HEALTH [2015] FCCA 1587

Catchwords:
HUMAN RIGHTS – Complaint of disability discrimination – applicant conceded to have disability in the form of mental ill health – applicant obtaining six months’ work experience position with respondent – applicant complaining of not being properly provided with desk, pass and other matters – applicant complaining of being subject to humiliating treatment by co-workers – applicant’s complaint to management allegedly not properly responded to – whether applicant should have received interview for further job application – respondent’s witnesses all truthful – respondent’s conduct not in any way actuated by discriminatory thinking – applicant failing to prove case – application dismissed. 

Legislation:  
Disability Discrimination Act 1992, ss.15(1), 15(2)

Qantas Airways Ltd v Gama (2008) 167 FCR 537

Applicant: ALAN ADAMS

Respondent: GATEWAY COMMUNITY HEALTH (ACN 136 395 894)

File Number: MLG 1909 of 2013

Judgment of: Judge Burchardt

Hearing date: 8 & 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Melbourne

Delivered on: 17 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Shaw

Solicitors for the Applicant: Gray & Gray Barristers & Solicitors

Counsel for the Respondent: Mr Tracey

Solicitors for the Respondent: TressCox Lawyers

ORDERS

1. The Application is dismissed. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1909 of 2013

ALAN ADAMS

Applicant

And

GATEWAY COMMUNITY HEALTH (A.C.N. 136 395 894)

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks remedies for alleged discrimination in employment on the grounds of disability.  He was employed by the respondent from 13 February 2012 until 9 August 2012.  An earlier articulated claim relating to disability on the grounds of age was specifically abandoned by counsel at trial.  

2. For the reasons that follow, I have concluded that the factual assertions made by the applicant are in part not made out, and that the facts as found do not support the proposition that he was subject to discrimination on the basis of his admitted disability. 

Background

1. The applicant, who was previously a lawyer by profession, has a long history of mental illness, namely type 1 bipolar mood disorder, which is completely responsive to medication.  The illness led or at the very least contributed to a number of misfortunes, including a criminal conviction and a gaol sentence for incest with his stepdaughter.  It seems to be further common cause that the applicant has taken his necessary medication for some 14 years and has lived a life free of difficulties arising from his mental illness throughout that time.  

2. The applicant started work in February 2012 on a part-time basis:  eight paid hours and two unpaid hours each week for six months.  Ultimately, that employment came to an end at the end of that fixed term.  An application he made for a further position with the respondent, towards the end of that employment, was unsuccessful.

3. The applicant conceded through counsel in final addresses that, given the applicant’s fixed-term employment, lost earnings were not a compensable claim.  The claim as pressed is for compensation for the humiliation suffered by the applicant as a result of the respondent’s conduct.

4. At this stage it is appropriate to turn to the affidavit material tendered on behalf of the parties.  

The Affidavit of the Applicant (Exhibit A1)

1. The applicant deposed to moving to Wodonga in 1998 and a major psychological breakdown in 1999.  Among other things, he attended the Albury Wodonga Mental Health and Anxiety Disorders Support Group, during which he met a number of persons he later came across at the respondent.  

2. He deposed that his employment after his breakdown had been very limited. 

3. The applicant deposed that a Mr John Walker, whom he had met through the Albury Wodonga Mental Health and Anxiety Disorder Support Group, arranged an interview for him with Leonard Peady, the Chief Executive Officer of the respondent, in December 2011.  The applicant signed an employment contract with the respondent, dated 20 January 2012, but his wages were actually paid for by a Government subsidy arranged through the applicant’s employment agency, Worktrainers.  

4. He commenced work in February 2012 on a part-time basis, of which eight hours was paid and two hours unpaid, for a period of six-months.  As the applicant put it, the purpose of the exercise was both to utilise his experience in mental health and to add to his curriculum vitae, to assist him in gaining other employment.  The affidavit asserted, at paragraph 3:

   “It was mentioned to me by the CEO, who was very sympathetic, that Gateway was seeking to add workers, like me, with life experience, to the mental health team.  He also hinted, but without any commitment, that if a full time position came up at Gateway during my stay then I should feel free to apply for that position.  At the very least he concluded that a six month stint with ‘a reputable employer’ would be beneficial for my resume and improve my prospects of obtaining employment in the future.  It seemed the perfect fit for me, given that I had now been involved, in one way or another, in the mental health industry for 21 years.”

5. Following some delays, owing to police check, the applicant actually started work on 10 February 2012.  The applicant complained that contrary to his excited anticipation, he was made to feel like an outsider from his first day at the respondent.  He was not allocated a desk and computer and, indeed, was never allocated such basic items during his employment.  He asserted that even students who came to the respondent who had shorter tenure were allocated desks and computers.  He complained that he was not given an induction and that “No one even sat down with me and explained the do’s and don’ts (sic) at Gateway.  So when I ran into matters of which I had not been forewarned, and could not get a definitive answer from the more senior staff, I was left in a position where I felt it appropriate to use my age and my life experience to apply what I saw as common sense.”

6. The applicant complained that he was not given a security pass for six weeks, which created obvious practical difficulties, and that he was not included in the staff group email list, which likewise led to difficulties, because he was not informed about late changes in day-to-day work activities. 

7. The applicant asserted that soon after he started work, Loretta Foster, Manager of the Mental Health Team, told him that she wished to meet one-on-one every three to four weeks for a progress talk.  Such meetings did occur and Ms Foster took copious notes.  The applicant then went on to a detail a number of specific issues that had caused him concern.

8. First, he complained that he was treated repeatedly in a humiliating way by a senior member of the team, Ros Thomas.  This culminated in a written complaint, dated 17 July 2012, a copy of which was exhibited to the affidavit as exhibit A1. 

9. The applicant complained that after he had taken a client, Rod Powell, with the permission of his Team Leader, out for a pub meal with his girlfriend, he was reprimanded by Ms Foster at the next meeting. 

   
   

   Ms Foster said that what he had done was not policy but did not tell him what the policy was.  

10. Mr Powell asked the applicant, about a week or so later, to accompany him to a police interview later that day.  The applicant said he decided to seek permission, but Ms Foster was not in and his Team Leader, Karen Murison, was not in the office, so he spoke to Lany Pond, who told him to do what he thought was best.  He went and assisted the client by attending the police interview as an employee of the respondent and a friend.  He complained that he was taken into

    
    

    Ms Foster’s office by Karen Murison and scolded.  Ms Murison gave the applicant a handbook titled “How to be a Mental Health Worker” and told him to read it over the weekend.  He said he did so, but never understood what he had done wrong in supporting a Gateway client, who was isolated and in dire straits.  

11. The applicant asserted that at about his third meeting with Ms Foster, on 17 May 2012, she told him that the work experience “was not working”.  Ms Foster said words to the effect that the applicant was not there often enough to be fully appraised of the Gateway culture and that was why problems were occurring.  Ms Foster opined that the applicant would be better off going into full-time preaching, an activity he was undertaking at his local church at the time.  The applicant immediately offered to come in on a voluntary basis for as many hours as Ms Foster wanted, but Ms Foster declined this, as she preferred to place monetary value on her workers.  Ms Foster did not offer the applicant extra work as he sought.  

12. As a result of not being allocated such extra work, the applicant spoke to Mr Peady on 25 May 2012.  Mr Peady told him that he knew nothing about his progress in work experience, but if he wanted more hours, it was up to Ms Foster to decide. 

13. The applicant next asserted that he became aware that Ms Murison was keeping tabs on him.  Despite his suspicions of Ms Murison’s conduct, he conceded that Ms Murison did say to him on more than one occasion that he had a lot to offer the respondent.  

14. What the applicant described as “the most humiliating incident” was what everybody seems to call the “baby incident”.  This involved an occasion where a staff member on maternity leave attended work and brought in her new baby.  The applicant and his colleagues were sitting together, but unlike others, the applicant did not get a cuddle with the baby, because Ms Thomas bypassed him.

15. The applicant next referred to an incident on 12 July 2012, when he attended a training day facilitated by Peter Bullimore from England.  The applicant complained that every time Mr Bullimore sought to involve him in the presentation, Ms Thomas would sigh audibly.  He also asserted that there were handouts, but Ms Thomas made a point of giving everybody the material except himself. 

16. The applicant went on to refer to the details by which the respondent replied to his complaint about Ms Thomas earlier referred to.  He said that Ms Foster, with whom he first discussed it, responded in a negative way.  Nonetheless, Ms Foster told the applicant that she was going on leave and would pass the matter on to Bobbi Richardson in Human Resources.  It was the applicant’s understanding that his complaint was not investigated seriously.  Ms Thomas denied everything and the complaint was taken no further.  The applicant exhibited as Exhibit Note A3 a letter from Ms Richardson, dated 29 August 2012, which is consistent with the applicant’s account.

17. The affidavit in part is otherwise a matter of surmise and comment by the applicant which is probably inadmissible.  The relevant part concerns the applicant’s application for a position with the respondent on 25 July 2012.  Another employee of the team left and his position was vacant.  By letter dated 10 October 2012, the applicant was informed that he had not achieved the position because he had not adequately addressed the key selection criteria.  The applicant’s affidavit expresses his rejection of the reasons given.  The affidavit goes on to assert that the real reasons for his not being appointed were discriminatory and he expands upon his own life history.  It is clear that he has had considerable difficulties arising out of his ill-health.

The Affidavit of John Walker (Exhibit A2)

1. Mr Walker has known the applicant for 14 years and is a friend.  In his affidavit, he gives an account of the applicant’s engagement by the respondent consistent with that of the applicant.  Most of the affidavit is inadmissible hearsay.  Mr Walker was not required for cross-examination.

The Affidavit of Blaise Fisher (Exhibit A3)

1. Ms Fisher, likewise, was not required for cross-examination.  She is an employment consultant with Worktrainers.  She appends the case notes for the applicant made by Worktrainers.

The Affidavit of Roslyn Maree Thomas (Exhibit R1)

1. Ms Thomas commenced work for the respondent in 2002 and worked as a Community Support Worker for the Psychosocial Rehabilitation and Recovery Day Program until January 2013 when she retired. 

2. She met the applicant in 2012 during his work experience placement with the respondent, but asserted that such involvement was relatively limited as he was attending the Adult Day Program and her position was in the Young People’s Program.

3. Ms Thomas deposed that in around August 2012, she was approached by Ms Richardson who explained that the applicant had expressed concerns about her behaviour towards him.  Ms Thomas deposed that Ms Richardson explained that the applicant had complained that, “I had not treated him in a respectful manner.  I was extremely surprised and shocked to hear this, as I had had only minimal contact with the Applicant in his time working with the Respondent.”

4. Ms Thomas denied speaking negatively to Peter Bullimore about the applicant.  She had no memory of the applicant taking offence at the so-called “baby incident”.  She said she had not passed the applicant the baby because the mother was not known to the applicant and she had not done so with any intent to exclude him.

5. Ms Thomas expressed to Ms Richardson her disappointment that the applicant had perceived her behaviour as disrespectful and was particularly disappointed he had not directly approached her to seek clarification.  She deposed that she told Ms Richardson that her personal approach to dealing with others in the workplace is one of do no harm.

6. She denied the applicant’s assertions that she had mistreated him in any way.

The Affidavit of Bobbi Lisa Richardson (Exhibit R2)

1. Ms Richardson has worked for the respondent since May 2000.  She has been Manager of Human Resources since October 2011.  She had limited contact with the applicant when he was working at the respondent.

2. Ms Richardson deposed that she became aware in July 2012 that there was a vacancy for a Community Support Worker in the Mental Health Team as a result of the resignation of a Mr Harsant.  She deposed to the respondent’s practices as to filling such vacancies. 

3. She deposed that there were two applications for the position and produced as exhibit BR-2 a copy of the applicant’s application. 

4. Ms Richardson deposed that the applications were reviewed on or around 7 August 2012 by a selection committee comprised of herself and Ms Murison who was the relevant Team Leader.  During the review process, Ms Richardson concluded that the applicant had not adequately addressed the key selection criteria and there was an overall lack of detail in addressing the criteria and that the applicant had only included only limited information and examples to demonstrate his experience and understanding.

5. By way of contrast, the successful applicant had addressed these matters in a more satisfactory way.  She produced as exhibit BR-3 a redacted copy of the successful applicant’s application.  Inter alia, the successful candidate demonstrated nine years experience working for the respondent in various roles and had been employed by the respondent from 2004 onwards in various positions relevant to the duties. 

6. In due course, the successful candidate was interviewed and was offered the position.

7. Ms Richardson went on to address the applicant’s complaint against Ms Thomas.  On 19 July 2012, Ms Foster advised her that earlier that day, the applicant had made a complaint in relation to his treatment by a fellow employee.  The matter was passed to Ms Richardson as

   
   

   Ms Foster was about to commence a period of leave.  The applicant was on sick leave for his rostered days of work on 26-27 July 2012 and 2-3 August 2012.  On 9 August 2012, shortly after the applicant’s work experience placement finished, she conducted an exit interview with him.  It is the respondent’s practice to perform such interviews. 

8. Ms Richardson discussed the applicant’s complaint against Ms Thomas at this time.  He gave several examples of the behaviour of which he complained.  Ms Richardson queried as to why he has not addressed his concerns directly with the staff member or reported them to his supervisor at the time.  Ms Richardson deposed at paragraph 17:

   “The Applicant suggested that Ms Thomas may be aware of his criminal history, and may have knowledge of him through other mental health clients or participants, and that she may therefore be treating him unfairly because of this.”

9. Ms Richardson undertook to investigate the matter.  She interviewed Ms Thomas around 29 August 2012 and Ms Thomas said she knew nothing about the applicant and his past.  Ms Thomas asked

   
   

   Ms Richardson to assure the applicant that she was sad and disappointed to hear the complaint and hoped the reassurance would alleviate stress for him.  As a result of that discussion, Ms Richardson was satisfied that no further action was required at wrote to him informing of this.

10. Ms Richardson went on to detail the process whereby she informed the applicant he had been an unsuccessful applicant for the position already mentioned.  She exhibited correspondence between them as to this matter.

11. The affidavit otherwise goes on to respond directly to the applicant’s affidavit and consists essentially of denials.

The Affidavit of Leonard Alan Peady (Exhibit R3)

1. Mr Peady deposed he started work for the respondent in 2007 as Chief Executive Officer.  In October 2011, he was approached by John Walker who gave a brief history of the applicant and indicated that the applicant had been unable to obtain employment or volunteer work on account of his previous criminal convictions.  Mr Walker requested that the applicant be assisted by undertaking work experience with the respondent.

2. On 13 October 2011, Mr Peady met the applicant and Mr Walker for an informal discussion during which the applicant discussed his past and circumstances leading up to his conviction.  Mr Peady was understanding of the applicant’s circumstances and undertook to speak to Ms Foster as to whether the applicant could be accommodated.  Thereafter, Mr Peady did discuss the matter with Ms Foster who agreed that her team would be wiling to accommodate the applicant for a fixed term period of six months to allow him to obtain work experience under the position title Trainee Recovery Mental/Group Facilitator.

3. The rest of the affidavit responds directly to the applicant’s affidavit and consists essentially of denials. 

The Affidavit of Loretta Jane Foster (Exhibit R4)

1. Ms Foster is the Mental Health Program Manager of the respondent.  She started work with the respondent in 1999 and has held her current position since July 2014.  Her role makes her responsible for managing the Mental Health Program which involves overseeing the work of a team of mental workers in various programs.

2. Ms Foster knew of the applicant prior to his work with the respondent through a former client of the respondent’s who was a close friend of the applicant’s.  She had met him incidentally in the mid 1990s.

3. Ms Foster confirmed that in late 2011, Mr Peady approached her about employing the applicant and explained that the applicant had difficulty finding employment or voluntary work due to his criminal history and mental illness and that he had an interest in working in the mental health field.  Ms Foster told Mr Peady she was pleased about this possibility as the Mental Health Team had recently been considering different ways to provide people with mental illness work experience in the field.  The respondent agreed that the applicant would be placed in the team and would undertake supervised work experience for approximately eight hours per week.

4. Because the applicant, who started work in February 2012, was in her team, Ms Foster arranged to catch up with him at regular intervals to supervise and assist him in his placement.  Ms Foster said there were several incidents of inappropriate behaviour on the part of the applicant.  These included him taking a client out for a meal and attending a police interview with the client without authorisation.  As Ms Foster put it, these actions breached the boundaries of how mental health workers should interact with their clients:

   “8.    …I endeavoured to deal with those issues as amicably as possible during several Supervision Meetings by counselling the Applicant to ensure he understood that his actions had been inappropriate, and to ensure that the Placement was a positive and productive learning experience for him.  This included discussing, during several Supervision Meetings, the importance of maintaining boundaries with clients and professional behaviour in the workplace.”

1. According to Ms Foster, the applicant acknowledged these issues and had made changes to his approach, trying to listen more and take a step back, and thinking before he acted.  Ms Foster annexed as exhibit

   
   

   L-F1, a copy of the handwritten notes she took during the Supervision Meetings.

2. Ms Foster then turned to the applicant’s complaint about Ms Thomas.  They met on 19 July 2012 to discuss the applicant’s written statement.  Having paraphrased the complaint about Ms Thomas, Ms Foster deposed at paragraph 12:

   “I counselled the Applicant against jumping to conclusions regarding the alleged behaviour in question.  By that, I meant that he should not conclude that the behaviour was either intentional or discriminatory.  I advised the Applicant that I was maintaining his confidentiality and had not disclosed his criminal record to any staff members of the Respondent, but also reminded him to bear in mind that this was on the public record and could, therefore be accessed by anyone.  I assured him that his complaint would be taken seriously and would be investigated by the Respondent.”

3. Ms Foster deposed that because she was about to begin annual leave, she referred the matter onto Ms Richardson.  She did so.  She went on to say that she was not involved in the recruitment process for the position for which the applicant applied unsuccessfully. 

4. The rest of the affidavit responds to the affidavit of the applicant, insofar as it deals with her and consists essentially of denials.

5. The above paraphrases of the affidavit material do not purport to be exhaustive, but are designed to give sufficient flavour of the evidence-in-chief of the various witnesses.

The Evidence Given at Court – the Applicant

1. The applicant adopted his affidavit as true and correct.

2. In cross-examination, the applicant confirmed his commencement of work in February 2012 and his hours of work.  He confirmed it was a six month fixed term position.  He said he was aware that there was an opportunity of working full-time if such position became available.  He said the respondent was taking on people with “lived experience”, in other words, people who had suffered themselves with mental health problems.  The respondent has a mental health division, which he joined, of which Karen Murison was the Team Leader.  Ms Foster was the Manager.  He had monthly meetings with her, which involved an assessment of his work and supervision.

3. Mr Walker has a long-standing relationship with the respondent and the applicant was struggling to get a job.  Through the good offices of

   
   

   Mr Walker, he was able to meet Mr Peady, who was sympathetic. 

   
   

   Mr Peady referred the matter to Ms Foster.  She was the applicant’s direct manager.

4. The applicant said there was one other person with lived experience at the respondent while he was there. 

5. It was put to the applicant by counsel for the respondent that

   
   

   Ms Thomas had a lot of experience with people who had lived experience and he responded this was not in her affidavit. 

   
   

   He conceded that Ms Thomas worked in a separate area, namely, youth, but they met every Thursday at meetings.

6. The applicant conceded that Ms Foster had discussed with him on

   
   

   19 April 2012 the incident where he took a client to the hotel.  This had happened the previous day.  The applicant said that Ms Foster was “all over me about this”.  He conceded that the discussion with Ms Foster included discussion about boundaries with clients.

7. The applicant said that there were no notes of a meeting which took place on 18 May 2012, which is where he had asked for more hours.  He said he had told Ms Foster that he was not doing it for the money and would come in as many voluntary hours as Ms Foster wanted. 

   
   

   He also discussed the second incident when he went to the police station with a client.  This had been discussed at supervision meetings.  He said Ms Foster said to him that mental health is very hard and he might be better off preaching and doing that full-time.

8. Counsel traversed the complaint against Ms Thomas and the way in which it was dealt with.  The applicant said Ms Foster had told him she would refer the matter to Bobbi Richardson, whom he met on his last day at the respondent.  The applicant said that Ms Richardson dismissed his complaint “as an aside” on 9 August 2012.

9. The applicant said that Mr Harsant had told him he was leaving and had told him to apply for his job.  The applicant said he would not have complained if the job had not been mentioned.  Ms Richardson said she would investigate and wrote to him, and he wrote back a note saying exactly what he had experienced.

10. The applicant applied for the forthcoming position and was told on

    
    

    14 August 2012 by Mr Richardson he would not get the job.  He was told that he did not adequately meet the selection criteria and had not provided sufficient details.  He asked for reasons and got a response on 10 October 2012.

11. The applicant said that Ms Thomas had introduced herself to him on the first day he was at the respondent and had met her intermittently at Thursday meetings.  When taken to the baby incident, the applicant said that he knew the mother of the child until she took maternity leave, a woman called Nicole.  He said it was impossible that

    
    

    Ms Thomas was innocent and that she had ignored him.

12. A number of the applicant’s answers under cross-examination were combative and not responsive to the questions put.  His assertion that it was impossible that Ms Thomas might have acted innocently was, in my view, bombastic and over blown.

13. A few days after the baby incident, the applicant came upon

    
    

    Ms Thomas, who was smoking.  He said “Hello” and she did not even respond.  He was not able to say what Ms Thomas’ motive was.

14. The applicant said that he was not given a desk or computer and felt like an outsider.  He said he was not in the office often and would go out to other sites.  He was in the office about 25 per cent of the time and could not use anyone else’s desk.  It was only when he saw students with desks and computers that he arked up.

15. In re-examination, the applicant said at the meeting on 18 May 2012, Ms Foster said “This is not working”.  He said he had suggested that he would come in as many hours as necessary to make it work. 

    
    

    The second topic discussed that day was the visit to the police station with the client.  He said this then turned to the discussion about mental health being too hard and that he should be preaching full-time. 

    
    

    He still sees some clients, about 20 per cent of them, which include the individual with whom he had been to the hotel and the police station. 

16. The affidavits of Mr Walker and Ms Fisher were tendered without their being required for cross-examination.

The Evidence Given at Court – Ms Thomas

1. Ms Thomas is now retired and does volunteer work.  She adopted her affidavit as true and correct.

2. Under cross-examination by counsel for the applicant, Ms Thomas confirmed that she worked in the Young People’s Program and met the applicant at staff meetings and “around the place”.  The applicant was introduced to the team as a whole when he commenced work.  She did not recall giving the applicant a document to read, but probably would have.  She said it was a very busy time in the Young People’s Program and she was very focussed on that.  She had not intended in any way to ignore the applicant.  She said she could not recall deliberately ignoring anyone, but was just fully focussed on what she was doing.

3. She recalled the presentation by Peter Bullimore.  During this presentation, she heard lots of horror stories and may have reacted to what Mr Bullimore said.  She empathised with people who had been through the mental health system.  She did not know the applicant’s history.  She understood him to be on volunteer placement, but that he had experiences with the Mental Health Program.

4. The applicant said it was a good thing at Gateway that they did not discuss other people and she could not recall discussing the applicant.

5. Ms Thomas was cross-examined about the baby incident.  She said she understood it had been a very difficult birth.  They were at a coffee shop with Nicole and her baby.  The whole team had had very good relationships with one another and her.  The applicant was present too.  She bypassed the applicant and passed the child to Geoff Parsons. 

   
   

   She said this was a matter of motherly instinct.  It was a tiny baby and she did not want to hand it to someone Nicole did not know.  She was unaware that the applicant had worked with Nicole previously. 

6. She said “Who would like the baby now?”.  She had no intent to humiliate the applicant and he did not display any distress at the time.  When it was put to her that the applicant spoke to her the next day

   
   

   (the smoking incident) she said she did not remember.  She did not deliberately ignore anyone and she said she knew she was very busy at the time.  When interviewed by Ms Richardson following the applicant’s complaint, she told Ms Richardson the applicant should have raised his problems with her.  She had never had a complaint like this before and took it very seriously.  It was against all her principles.

The Evidence Given at Court – Bobbi Richardson

1. Ms Richardson gave evidence, without objection, by telephone. 

   
   

   She adopted her affidavit as true and correct.

2. Ms Richardson was cross-examined about the selection process for the position the applicant did not obtain.  She confirmed that when there is a vacancy it is advertised internally first.  External applicants are only appointed if there is not an appropriate internal one.  The applicant, like all staff, was advised of the vacancy through his email address.  She said she would expect most applicants to meet criterion 7 and most to meet criterion 6 also.  She did not agree that the successful applicant’s responses were brief.  She maintained that he met the key selection criteria.  She had read the applicant’s Curriculum Vitae and had been told that he had lived experience.

3. She said “We normally look for some demonstration of capacity, rather than one line responses, such as those of the applicant”.  She did not agree that the applicant should have been appointed and did not agree that she should have interviewed him.

4. Ms Richardson confirmed that the complaint by the applicant against Ms Thomas was referred to her by Ms Foster.  She met with Ms Thomas who gave her account of the events complained of.  She discussed this with the applicant at his exit interview.  She had met with Ms Thomas thereafter but did not show her the applicant’s statement.  She did not speak to other people about the applicant’s complaint and did not conduct an investigation into it.

5. When she first received the statement from the applicant Ms Foster asked her to follow up.  She had not understood it to be a complaint.  She said she did not do complaints which were conducted

   
   

   by somebody else.  She decided merely to follow up the matter at the exit interview.  Complaints were handled by Trisha Forbes who is the Quality and Safety Manager.

6. Ms Richardson said she interviewed the successful applicant to follow process.  She did not recall how long the interview was.  It might have been half an hour to three quarters of an hour.  She had not done this with the applicant.

7. In re-examination, Ms Richardson reconfirmed that she believed the applicant’s answers in respect of the key selection criteria were inadequate. 

The Evidence Given in Court – Ms Foster

1. Ms Foster adopted her affidavit as true and correct.

2. In cross-examination, Ms Foster was asked whether Mr Peady had told her about the applicant’s criminal history and mental health difficulties.  She replied that she did not recall being told these.  She said the criminal history emerged through the police check, but she kept it confidential.  The applicant told Ms Foster his mental health history himself.

3. Ms Foster confirmed that the respondent does recruit people with lived experience and agreed that the applicant worked eight hours per week which was based on the amount of the subsidy provided for him. 

   
   

   The applicant offered to come in for two hours on Thursday to attend staff meetings additionally.  Once a month there was a team meeting.  On other weeks there were peer-support meetings.

4. She had met the applicant before he started work and then met him again soon after he started.  There was no Team Leader to start off with, but then Karen Murison was appointed.

5. Ms Foster met the applicant every three to four weeks, as she does all staff.  These meetings lasted about one hour to discuss their work. 

   
   

   It was her usual practice to take notes while talking.

6. It was put to Ms Foster that the applicant had asked Ms Murison before taking a client out to the pub for a meal.  She said that she checked with Ms Murison who denied having given permission.  She did not recall how she found out about the meal.

7. The applicant’s version of the police interview was also put to her.  This was that because Ms Foster and Ms Murison were away he asked Lany Pond who said, “Do what you think right.”  Ms Foster had no idea about this but thought that she had not spoken to Ms Pond. 

   
   

   She said the policy is explained when people start.  The applicant was a trainee on work placement and it was normal, in Ms Foster’s view, for someone in that situation not to go to the police and act independently.  The trainee would not be able to offer adequate support in a police interview.  Such behaviour would be permissible for a full-time employee.

8. Ms Foster did not know why she had no notes of a meeting with the applicant in May 2012, but she had not taken any.  She said the applicant did not understand the respondent’s policies and she did talk to him about him not being there for enough time.

9. She conceded that the applicant had offered to work for free and said that she responded by saying that she preferred people to be paid. 

   
   

   It is difficult work and they deserve to be paid.  It was not appropriate to have people volunteering in that type of work.  When it was put to her that the applicant had not been inducted, she conceded that the applicant had not been inducted as well as he could have been. 

   
   

   She said that there were probably some practices that could have been described to him in more detail.

10. When questioned about the applicant’s complaint arising from the baby incident, she said that she was going on leave either the day that the applicant came to see her or the following day.  She recalled the event of the visit by the mother and child, but not the alleged incident. 

    
    

    There were about 10 people there, staff and one student.  She did not herself want to nurse the baby because she did not love other people’s babies. 

11. When asked if the applicant had complained about discrimination because of his background at the meeting he had with Ms Foster, she replied yes.  She told him that she had kept her confidentiality about his background and she stood by the terms of her affidavit.  She had referred the matter to Ms Richardson for follow up, but could not exactly recall what she did.  She said an investigation would involve speaking to the person complained of, possibly to the complainant if required, and to others present as well.  She did not recall what happened as she went on leave for three to four weeks.

12. She was not aware if Ms Thomas had been counselled arising from the applicant’s complaint.

13. She did recall the discussion about the applicant’s preaching but did not recall telling him to do this because mental health was really hard.  She did not recall the conversation on 16 May 2012 to the effect that things had not worked out as had been hoped.  She said there had been some problems with the applicant in respect of lack of boundaries including the incident with the police.  She said that if the applicant applied for a reference she would give him a truthful one.

14. Mr Peady was not required for cross-examination. 

The Submissions of Counsel – The Respondent

1. Counsel for the respondent pointed out that only direct discrimination was alleged and took the court to the terms of s.15(1) and (2) of the Disability Discrimination Act 1992 (“the DD Act”). The applicant, it was submitted, had been offered a six-month work experience placement and was not offered less favourable terms than any other person. He submitted there was no denial to access promotion, transfer or training or benefits of employment. It was submitted that the applicant relied upon humiliating conduct by Ms Thomas, most particularly the baby incident and the cold shoulder, and the failure to give him handouts from Mr Bullimore’s presentation.

2. Counsel also pointed to the applicant’s complaints that Ms Richardson decided not to interview him for the full-time position and, possibly, also did not conduct a proper investigation.

3. Counsel referred the Court to Qantas Airways Ltd v Gama (2008) 167 FCR 537. He submitted that the applicant bears the onus of proof (see Gama at [65] and [132]) and the matter is to be decided on the balance of probabilities (Gama at [139]).

4. Counsel submitted that the applicant’s case was that Ms Thomas and Ms Richardson decided to humiliate and discriminate against him because of his bipolar disorder.  It was submitted that these are serious allegations given that both those persons have a long history of dealing with people with lived experience.  Ms Thomas denied the conduct alleged and was mortified that someone could see her behaviour in this way.  It was against her values and had contributed to her retirement.  Counsel submitted that it was not put to Ms Thomas that her conduct arose because of the applicant’s disability.  It was submitted that the baby incident merely arose because of an aversion on the part of Ms Thomas to giving the child to a person that she understood to be a stranger to the mother.  Ms Thomas only knew the applicant had lived experience.

5. It was submitted that Ms Richardson had looked at the relevant criteria in respect of the applicant’s job application and the other applicant was better.  This was the only reason the applicant was not offered a job interview.  Counsel submitted that it was not put to Ms Richardson that she had acted in this way because of the applicant’s disability.  It was further submitted that the nature of the investigation into the applicant’s complaint was not put to arise from discrimination. 

   
   

   The applicant never said that Ms Thomas had discriminated against him.  He said that he did not know what her motive was.  It was submitted that the court should accept the respondent’s witnesses over the applicant.

Submissions of Counsel – The Applicant

1. Counsel submitted that there were two clear issues showing detriment to the applicant.  First, not offering him the job interview and, second, the failure properly to investigate the complaint made against Ms Thomas.

2. It was submitted that Ms Richardson conceded there was no investigation.  She had not understood that she was required to conduct one and had a cursory discussion only. 

3. It was submitted the lack of job interview was a detriment.  Ms Richardson said that the process took only about an hour and there would have been no difficulty in conducting an interview with the applicant. 

4. It was submitted that the other acts of humiliation alleged against

   
   

   Ms Thomas were not countered by her and it was surprising that the key elements of what the applicant asserted were not recalled by her. 

   
   

   It was submitted that the court should accept the applicant’s evidence.

5. Counsel confirmed, as I have indicated earlier, that the question was what the remedy could be.  Counsel conceded that he could not see a claim for lost earnings in view of the fixed-term nature of the employment and the fact that there had never been any guarantee of future employment.  As indicated, he sought compensation for humiliation.

Some Observations about the Witnesses

1. I have already commented on the fact that the demeanour of the applicant was not always convincing.  Some of his answers, as earlier indicated, were not responsive to the questions put and were excessively combative and, in respect of his utter incapacity to accept that Ms Thomas’ conduct might be innocent, reflected a complete lack of insight. 

1. Ms Thomas herself was a convincing witness.  Her suggestion that the time of the applicant’s employment was a very busy one in the Young People’s Program and that she was focused on that was given with conviction and I entirely accept it.  I accept that she never purposely ignored the applicant.  She is a person whose background and work history strongly suggests a marked empathy with people with mental health problems.  I entirely accept that she was unaware, save in the most general terms, that the applicant had lived experience and that she did not know of his criminal history.  She had no earthly reason to dislike the applicant and did not do so.  Although she plainly indicated that there were some matters she did not remember such as the incident when she was alleged to have ignored him whilst smoking, I find this wholly unsurprising.  To her it was an unremarkable incident whereas to the applicant it achieved an overblown significance.

2. Ms Richardson was likewise a good witness.  Her answers were fair and composed.  It is not necessary to say more than that.

3. Much of the focus of the applicant’s complaints centred upon

   
   

   Ms Foster (in addition, of course, to Ms Thomas).  Like Ms Thomas, she was a good witness who responded directly to questions to her.  Her account of her discussions with the applicant about his offer to do extra work and her declining it because she wanted workers to be paid was given with evident care and in my view complete fairness.  I note the very fair concession she made that the applicant’s induction might not have been handled as well as it could have. 

4. Put overall, it is perhaps sufficient if I say that all the people who gave evidence on behalf of the respondent impressed me as being people with a strong long term commitment to the respondent’s activities.  They are all people with a genuine commitment to assisting those with mental health problems which is what the respondent’s activities essentially are concerned with.  Far from being unpleasant and concerned to humiliate, denigrate or otherwise demean the applicant, they are the sort of people most unlikely to do so.  In my opinion they did not. 

Specific Findings about the Matters Alleged

1. So far as the applicant asserts in a general way that he was humiliated, ostracised and left out and the like, I am comfortably satisfied that this is not established.  While the applicant clearly honestly felt that this was the case, the fact is that he was overly sensitive.  I will deal with the more specific matters raised in a moment but to the extent that a generalised claim is made it is not made out. 

2. This is all the more so since the person said to have most misconducted themselves, Ms Thomas, was clearly unaware of the applicant’s criminal history and had no understanding of his mental health difficulties beyond a generalised appreciation that he had what is described as lived experience.

3. So far as the applicant may not have been given a desk and computer and so on it needs to be borne in mind that the applicant’s own evidence was that he was only in the office about 20 per cent of the time.  In a busy organisation there is nothing inherently sinister in the fact that the provision of office support, so to speak, was not extended to him.

4. The applicant’s major incidents with Ms Thomas are reflected in the baby incident and the smoking incident.  I accept Ms Thomas’ explanation that she did not give the baby to the applicant because she thought (erroneously, as it transpired) that the applicant did not know the mother.  She did not do so because of any discriminatory intention. 

5. Furthermore, Ms Thomas did not wilfully ignore the applicant at the smoking incident, she simply was not thinking of him at the time. 

   
   

   It certainly did not reflect any discriminatory intention on her part.

6. The applicant applied for the position vacated by Mr Harsant.  Having seen his application and that of the successful applicant, in my opinion it is quite clear that Ms Richardson was truthful in her account.  She compared the two applications and thought that that of the successful applicant was superior.  For what it is worth, I would myself have formed that conclusion from the applications.  What is clear and more to the point, however, is that in evaluating the applicant’s application Ms Richardson was not in any way actuated by any discriminatory cause. 

7. The final matter complained of is the failure of the respondent to launch an inquiry into the applicant’s complaint.  The applicant’s complaint was forwarded to Ms Foster who happened to be going on leave.  She passed it to Ms Richardson who, as events transpired, did not get to speak to the applicant until he was effectively leaving, because he had been absent on sick leave.  I accept Ms Richardson’s evidence that she did not consider the matter to be a formal complaint, a matter which would have been dealt with by another officer.  She spoke to Ms Thomas who gave to Ms Richardson what Ms Richardson (and subsequently to me) were convincing denials.  She reported this matter to the applicant at his exit interview.  The failure to conduct

   
   

   a formal investigation was not actuated by any discriminatory cause.

Conclusion 

1. I have not dealt in terms with the legislation and the case law to which I have been referred.  It is not necessary in the circumstances to do so.  The fact is that the respondent, from its Chief Executive Officer down, was an organisation inherently sympathetic to the applicant and in particular to his ill health. 

2. Having seen all the relevant witnesses give their evidence in court,

   
   

   I have no doubt that the applicant believes now and believed during his employment that he was suffering the indignities of which he complained.  Nonetheless, I am equally satisfied that the respondent’s witnesses are truthful.  Nothing any of them did to the applicant was, in the smallest way, because of the applicant’s criminal history and/or mental health difficulties.  It, therefore, follows that the applicant has not, as he is required to, discharged his obligation to prove his case.  The application will be dismissed.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  17 June 2015