Baker v D & D Traffic Management Pty Ltd - [2013] NSWADT 175

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Baker v D & D Traffic Management Pty Ltd [2013] NSWADT 175
Hearing dates: 24, 25 June 2013
Decision date: 05 August 2013
Jurisdiction: Equal Opportunity Division
Before: R J Wright SC, Judicial Member
N Hiffernan, Non-Judicial Member
M Nasir, Non-Judicial Member
Decision:
The Tribunal orders that:
1) the complaint be dismissed in whole.
2) the Respondent's application for costs be dismissed.

Catchwords: Disability Discrimination - Employment - Direct Discrimination
Legislation Cited: Anti Discrimination Act 1977 (NSW)
Cases Cited: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221
Purvis v State of New South Wales (2003) 217 CLR 92
Boehringer Ingelheim Pty Ltd v Reddrop [1984] NSWLR 13
Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club [2000] FCA 1619
Haines v Leves (1987) 8 NSWLR 442
KT v Sydney Local Health Network (No.2) [2011] NSWADTAP 8
AT v Commissioner of Police [2010] NSWCA 131
Category: Principal judgment
Parties: Raymond Baker (Applicant)
D & D Traffic Management Pty Ltd (Respondent)
Representation: Counsel
A Miller (Applicant)
Ghobrial Legal (Applicant)
G Hogbin (Agent for the Respondent)

File Number(s): 121089

reasons for decision

EQUAL OPPORTUNITY DIVISION (R J Wright SC - Judicial Member, N Hiffernan - Non-Judicial Member, M Nasir - Non-Judicial Member,): In this matter, the Applicant, Mr Baker, alleges that he was unlawfully discriminated against on the ground of disability in relation to employment with the Respondent, D & D Traffic Management Pty Ltd, under s 49D of the Anti-Discrimination Act 1977 (NSW) (the ADA).

Mr Baker's complaint was that he was unlawfully discriminated against on the ground of disability because he was not re-employed by the Respondent after he had been terminated on 24 March 2011 for not having the required ticket or certificate from the Roads and Traffic Authority, when the four other employees who were terminated for the same reason at the same time were subsequently re-instated or re-employed by the Respondent shortly after. The discrimination was alleged to have occurred because Mr Baker had previously suffered an ankle injury while at work and had consequently been on light duties for a considerable time after the injury.

On the bases set out below, the Tribunal finds that the complaint has not been substantiated.

The Complaint

The matter comes before the Tribunal as a result of a complaint lodged by Mr Baker with the President of the Anti Discrimination Board of New South Wales (the ADB) on 8 March 2012 which raised the claim of discrimination referred to above.

After obtaining information from Mr Baker and the Respondent and considering various submissions, the ADB held a conciliation conference in the matter but it was unsuccessful. Thereupon, Mr Baker requested that the complaint be referred to the Tribunal. The President of the ADB accordingly referred the matter and the President's Summary of Complaint was filed in the Tribunal on 10 July 2012. The period of the complaint was 24 March 2011 to 8 March 2012.

Points of Claim and Points of Defence were filed by the parties in accordance with the Tribunal's directions. The claim referred to above was set out in the Points of Claim.

The Hearing and Evidence

The matter was heard on 24 and 25 June 2013. At that hearing, the President's Summary of Complaint was admitted into evidence. In addition, Mr Baker gave evidence in the form of a statement, including a number of attached documents, supplemented by oral evidence. In support of the claim made in his complaint Mr Baker also called evidence from Mr Marsonet and Mr Martin, two of his former co-workers at the Respondent. They also provided written statements and gave additional oral evidence. All three were cross examined.

The Respondent called evidence by way of written statements and oral evidence from Mr Diaz, a manager and director of the Respondent, Dr Charawanamuttu, a treating doctor seen by Mr Baker, Mr Kellen, the former Occupational Health and Safety manager of the Respondent, Mr Hanbridge, the General Manager of Able Roadwork Traffic Analysis, and Mr Hogbin, the Industrial Relations manager of the Respondent. A number of documents attached to the written statements were also admitted into evidence. All of the witnesses were cross examined.

Mr Baker did not impress the Tribunal as a careful or frank witness and, as a result of observing him giving evidence and considering his answers and the manner in which he gave them, the Tribunal formed the view that it could not rely on his evidence unless it was independently confirmed by evidence from another witness or from contemporaneous documents.

As to the other witnesses, Mr Martin, Mr Marsonet, Dr Charawanamuttu, Mr Kellen, Mr Diaz, Mr Hanbridge and Mr Hogbin, the Tribunal formed the view that these were generally reliable witnesses attempting to give evidence of what occurred as they now recollected it. There was, however, one significant area where the evidence of Mr Martin and Mr Marsonet was in direct conflict with the evidence of Mr Hogbin and Mr Diaz and this concerned what was said at a meeting involving those 4 persons on 28 March 2011. The Tribunal will deal with this conflicting evidence and how the question is to be resolved below. Where it has been possible to do so, the Tribunal has also paid particular attention to contemporaneous documents as providing perhaps the most reliable guidance as to what occurred.

It is appropriate at this point to explain the basis for our conclusion about Mr Baker's evidence. The Tribunal formed its view not only as a result of observing Mr Baker giving evidence and the inherent probability or improbability of what he said but also as a result of a number of occasions when Mr Baker's own evidence was internally inconsistent without any satisfactory explanation.

As one example it can be noted that, in his written evidence, Mr Baker stated as follows:

On 11 October 2009 I suffered a work place injury which caused a partial tear to the lateral ligament of my left ankle.

The injury caused me severe pain and trauma and I was on leave from duties for some time, however, I did resume 'light duties' in the office assisted by a wheelchair as directed by my Employer.

I remained on 'light duties' until 24 March 2011.

(underlining added)

24 March 2011 was the date on which his employment was terminated.

This evidence that he remained on 'light duties' until his employment was terminated was not correct. His treating doctor certified that he was fit for pre-injury duties from 17 January 2011 and other witnesses all agreed that Mr Baker had carried out his pre-injury duties, not 'light duties' from that date. Mr Martin, his supervisor, said that Mr Baker worked as a traffic controller during this period from 17 January 2011 to 24 March 2011 which is not consistent with Mr Baker being on 'light duties' in the office. Similarly, Mr Marsonet another employee of the Respondent gave evidence that Mr Baker had been on "field duties" prior to his termination. This was also confirmed by the evidence of Mr Kellen, the Operations, Health, Safety and Environment Manager of the Respondent.

Furthermore, even Mr Baker himself described in oral evidence in chief going "back on pre-injury duties with strong medication" prior to his termination on 24 March 2011. He also was asked "How long after you went back on to full duties were you terminated?" and he replied "Approximately - roughly probably about four weeks, five weeks roughly."

It was therefore surprising to the Tribunal that, when cross examined about his written statement that he was on 'light duties' until 24 March 2011, Mr Baker stated and repeatedly maintained that it was a correct statement. This inconsistency between his own oral evidence in chief and his written evidence gave the Tribunal serious cause for concern about the reliability of Mr Baker's evidence.

Later in cross examination, Mr Baker appeared to be trying to make the point that he disputed his treating doctor's assessment that he was fit for pre-injury duties after 17 January 2011. Nonetheless, he did concede at one point in cross examination that "Well I tried to go back to work [under the pre-injury duties] under a strong medication, yes".

Mr Baker gave the distinct impression in cross examination that he either did not understand what was being put to him or he did not wish to concede that he had returned to his pre-injury duties for about two months before he was terminated. The Tribunal formed the distinct view that Mr Baker was more concerned with not giving evidence that he believed might damage his case rather than with listening to the question and trying to answer it as truthfully as he could. As a result, the Tribunal concluded that Mr Baker was not careful with his evidence but rather he was prepared to maintain a position, even if wrong, because he thought it assisted his case.

A similar lack of care and attention to accurately recalling what occurred was demonstrated by Mr Baker's evidence concerning the contact he had with the Respondent in the week following his termination on 24 March 2011, which is dealt with below.

Yet another example of material which supported the Tribunal's adverse view of Mr Baker's willingness to tell the truth when doing so might adversely affect his position occurred in cross examination concerning the application form he signed when applying for work with the Respondent in 2007. He acknowledged that he filled in an application form for employment with the Respondent and, on being shown the document, acknowledged his signature on it. That document contained a number of pages some of which included questions to which the applicant was required to respond by circling "Yes" or "No" as the answer. In relation to the question "Have you made any previous Workers Compensation Claims" on the fourth and last page of the form (under the headings "SECTION 8" and "ii) WORKERS COMPENSATION)") the answer circled was "No". Evidence from the Respondent established that this answer was not correct and that Mr Baker had, as at the relevant time in 2007, made a number of previous Workers Compensation claims. Mr Baker agreed that it would have been wrong to have circled "No".

At first in cross examination, Mr Baker said that "No" was not the response that he circled. He stated that he circled a different answer, presumably "Yes", although if this had been the case, further information was required to be provided and it had not been provided on the form. There was then a passage where Mr Baker was asked a series of questions by the Tribunal:

Q. Who was doing the circling, was it yourself or the [questioner]?

A. The [questioner] and I signed and I filled this in and I signed it.

...

Q. So you did the circling?

A. Yes.

Q. And you're claiming that the circle that you put no is incorrect?

A. Correct.

Q. In other words you made an error in circling the wrong - putting no instead of yes?

A. No I don't think I made an error sir. I think I did circle yes.

An inspection of the original of the form did not indicate that "Yes" had ever been circled in response to that question on the form.

In answer to further questions from the Tribunal Mr Baker indicated that he filled in the first page of the form, apart from Mr Egan's name or signature, and the second page of the form but not the third page of the form. As to the third page, Mr Baker says he saw Mr Egan fill in this page. As to the fourth and last page, Mr Baker's evidence was that he filled in the words "Traffic Controller" and signed and dated it but he did not otherwise complete that page which contained questions requiring "Yes" or "No" to be circled. At this point, the evidence was as follows:

Q. Mr Baker you told me earlier that you circled yes in that document in question number 8 the second paragraph?

A. Have you made a previous worker's compensation claim.

Q. Yes and you told me that you circled yes instead of no?

A. Yes.

Q. Now you are saying that you did not complete that page?

A. I didn't.

Q. I am a bit confused there?...

A. I didn't complete all this page sir.

...

Q. So Mr Baker you signed an incomplete document?

A. That's right yes.

...

Q. Sorry, who filled the bits in section 8?

A. Mr Egan.

Q. And you saw him do it?

A. On the opposite side of the table yes.

Q. And he filled it in before you signed it?

A. Yes. Well yeah.

Q. And when you signed the document you understood you were certifying that the answers, information and statements made in the registration form were correct and to the best of your knowledge?

A. Yes.

Q. Did you?

A. Yes.

As best the Tribunal understands it, Mr Baker changed his evidence from saying that he circled "Yes" rather than "No" in answer to the question about Workers Compensation claims to saying that Mr Egan circled "No" in his presence. The Tribunal should note that Mr Egan is only mentioned on the form on the first page under the heading "SECTION 3: Employment History" where the following is recorded:

Date from: DEC 2005 To: May 07 Company Name: CIVIL PACIFIC

Sup/Mgr: Shane Egan Phone: ********** Position Held: GANGER

It does appear that the words "Shane Egan" and the telephone number were written in by someone other than the person who completed the rest of that page. Those words, however, do not appear to the Tribunal to be a signature by Mr Egan or to give any basis for concluding that Mr Egan was present when the form was completed. Indeed, if Mr Egan was Mr Baker's supervisor/manager at Civil Pacific until May 2007, and Mr Baker filled out the application form on the day it was dated, 17 May 2005, it is most unlikely that Mr Egan was employed by the Respondent at this stage and was interviewing Mr Baker for a position with the Respondent, as Mr Baker appeared to suggest in some of his evidence.

Mr Baker's evidence changed from an assertion that he circled "Yes" to an assertion that he signed the form when this page was incomplete to an assertion that he saw Mr Egan complete this page and then Mr Baker signed the form. These statements are just inconsistent with one another. No satisfactory explanation for this inconsistency was offered.

Finally, it appears to the Tribunal that whoever circled "No" on the form, it is likely Mr Baker signed the form, knowing what it contained and knowing that he was certifying that the answers, information and statements were correct to the best of his knowledge. At the same time, Mr Baker knew that it was not correct to say that he had not made any previous workers compensation claims. This provides even further confirmation that the Tribunal should not accept Mr Baker's evidence.

In all the circumstances, the Tribunal does not believe it should rely on Mr Baker's evidence without independent confirmation.

Background

Although the complaint focuses upon Mr Baker's termination on 24 March 2011 and the Respondent's failure to re-employ him in the weeks following his termination, it is useful to review briefly the background of this matter.

Mr Baker commenced work with the Respondent in about mid-2007 as a traffic controller and after about a year he became a night shift supervisor. As a night shift supervisor, Mr Baker worked on his own at the Respondent's depot from approximately 5.30 pm to 6 am. His duties included loading vehicles with signs and other equipment and assisting to ensure that the trucks and workers left on time for the job sites.

On the evening between 11 and 12 October 2009, Mr Baker apparently suffered an injury to his left ankle while at work when his foot went into a pothole. According to the Workcover NSW Medical Certificate provided by Dr Allen dated 12 October 2009, his diagnosis was "sprain left ankle" and his management plan was specified as "Physiotherapy. RICE. Nurofen regularly". He was certified as "fit for suitable duties from 13/10/2009 to 14/10/2009" with the following capabilities "1-2 hrs/day usual days/week" and "May work from home or do sedentary tasks only". He was to be reviewed 2 days later on 14 October 2009.

The progress of this injury was recorded in a Workcover NSW Medical Certificate from Dr Charawanamuttu (who was referred to in the certificate as Dr Chara and who indicated to the Tribunal that he was happy to be referred to by this shortened form of his name) dated 3 November 2009. That certificate recorded a diagnosis of left ankle sprain and a management plan of "Physiotherapy, restricted duties, ultrasound [left] ankle". Mr Baker was certified fit for suitable duties from 3 to 12 November 2009 "seated duties only".

A further medical certificate of Dr Chara dated 17 November 2009 was also before the Tribunal. The diagnosis in this certificate was "Partial tear to lateral ligament of left ankle joint" and his management plan was "Referred to orthopaedic surgeon, physiotherapy, restricted duties". He was certified fit for suitable duties from 17 November to 8 December 2009 and it was noted that these were "usual hrs/day usual days/week" but "Strictly seated duties only. No driving manual car Minimise need to walk." The progress medical certificate of Dr Chara dated 27 January 2010 was to substantially the same effect as the 17 November 2009 certificate except that it included the comments that the tear to the ligament "will take months to heal" and "may need surgery".

Mr Baker did return to performing suitable duties with the Respondent although it involved him being in a wheel chair for a period. He also started to use crutches to get about. On 25 March 2010 Mr Baker while using his crutches at home lost his balance and aggravated a previous injury to his back. This back injury had occurred in about the mid-1990s but had resolved and had not interfered with his working for some considerable time prior to March 2010. From March 2010 to January 2011, Mr Baker remained performing suitable duties in the Respondent's office.

On 17 January 2011, Mr Baker saw Dr Chara who provided him with a Workcover NSW Medical Certificate stating that Mr Baker was fit for pre-injury duties, with a management plan of "Trial of pre-injury duties, hydrotherapy", from 17 January 2011. Mr Baker said that he was able to carry out these duties with the assistance of medication which he identified as Endone and Panadeine Forte. Mr Baker described what he did after 17 January as being "back on the road' which is distinct from working in the office. Mr Martin, his supervisor, and another fellow worker Mr Marsonet also observed Mr Baker working as a traffic controller in the field during this period.

It was not in dispute that if Mr Baker was to work "on the road", he was required to have, and under the applicable AWU Collective Agreement 2008- 2011 he was responsible for obtaining and maintaining, a certificate from the New South Wales Department of Transport, Roads and Maritime Services, previously the Roads and Traffic Authority, indicating that he had completed a training course described as "Apply Traffic Control Plans". This was apparently known as a "Yellow Ticket". At some time in early 2011, Mr Baker's Yellow Ticket had expired and he had not renewed it.

On 28 February 2011, Dr Chara provided a Workcover NSW Medical Certificate marked as "Final" in which the diagnosis was "Partial tear to lateral ligament of left ankle joint; lower back strain following fall whilst on crutches." The Management Plan was stated to be "Has ongoing pain with left ankle and back and I would expect these to get exacerbated from time to time, Analgesia". He was certified fit for pre-injury duties. His treatment review date was said to be "If required" and it was stated that his fitness for work would be reviewed on "If required".

In or about March 2011, an incident occurred which gave rise to a disciplinary issue for Mr Baker. He provided to Mr Martin, his supervisor, his security card which allowed the holder to gain access to the Respondent's office. The circumstances surrounding this conduct were not fully explored in evidence before the Tribunal. Mr Baker said that he did this because Mr Martin had lost his security card. Mr Martin, who also gave evidence, said that Mr Baker gave the card to him "under my orders". As to how long Mr Martin used Mr Baker's card and whether another card was issued to him, Mr Martin's evidence was very imprecise. Nonetheless, letting another employee, even a supervisor, use a security card which had been issued to one employee was apparently in breach of the Respondent's policy.

As a consequence, on 23 March 2011, Mr Baker received from the Respondent what can be called a disciplinary letter in the following terms:

This letter is being issued in line with company disciplinary policy as a "Please Explain" correspondence.

On the afternoon of 22 March 2011 you contacted me with regard to issuing you with a replacement Security Card (ASIC) so that you could access parts of the depot latter that evening. The card was issued to enable that work function to proceed & you signed for a new card. (Please note this card has now been made inactive.)

Your explanation as to why this card was required was that you had given your previous card to another employee. You also revealed that you had not had that card for some time but were only now advising us of that situation.

What we require is that you show cause as to why in line with policy & conditions of issue of the ASIC card, you should not be dismissed as indicated in the issue conditions. Further, given you role with the company, the position of trust & knowledge held, your actions are most disappointing & a matter that cannot be ignored.

We have decided that given you are a weekly employee we will continue to make work available to you, but not in any position of authority. You will only be engaged as a Traffic Controller & not designated to work as a Team Leader or Driver.

This may however have an impact on the continuity of work that can be provided. We request in line with policy, you provide a formal response to this matter within seven (7) working days so that a follow up meeting can be arranged.

You are reminded that you may bring a representative of your choice to that meeting if required. If you have any issues that may require further explanation in relation to this matter please contact me on the above number. An extract from the disciplinary policy regarding the Please Explain process is attached.

Mr Baker's Termination

The following day, 24 March 2011, the Respondent also took action in relation to a number of employees who did not have the requisite Yellow Ticket and another ticket referred to as a "Blue Ticket". Five employees were issued with termination letters dated 24 March 2011, including Mr Baker. The other four employees were Wassim Abdullah, Martin Garvey, Shane Khouiss and Shariff Chalgin. Each of the letters was in the same form. Mr Baker's termination letter stated as follows:

Please be advised that as a result of your failure to maintain the minimum employment standards of current Blue & Yellow RTA Tickets, the company cannot continue to allocate work to you.

Therefore, as a result of your own actions you have broken your contract of employment & I need to advise that your services have been terminated effective today.

As a weekly employee, you are required in line with the AWU "Collective Agreement 2008-2011" Clause 30 "Training/Inductions" Item i.) All Employees "..... be responsible for obtaining Level 1 (Entry Level) skills, qualifications & inductions before commencement and for maintaining these in their own time and at the own cost."

Unfortunately your lack of attention to this requirement could have placed yourself & the company in a very serious position regarding compliance with safety & regulatory requirements. This is a matter we cannot condone in any fashion.

If you have any questions in regard to this matter please do not hesitate to contact me on the above number.

If you understand this information is not correct, you need to contact me immediately & supply evidence of current RTA tickets.

Given these circumstances you will need to return company property issued to you including but not limited to our security card, RTA authorized Traffic Controller Vest(s) & and other D&D logoed clothing.

This action will prevent any delay of any outstanding monies being paid into your nominated account.

There was no dispute at the hearing that Mr Baker was required to have a Yellow Ticket and that he did not have it. Nor, as the Tribunal understands it, was there any dispute before the Tribunal that the Respondent was entitled to terminate the employment of the five employees, as it did, as a consequence of their not having the Yellow Ticket. The significance of the Blue Ticket was not made clear in the evidence and neither party submitted that anything turned upon it. Accordingly, the Tribunal has proceeded on the basis that whether or not Mr Baker had a Blue as well as a Yellow Ticket does not affect the Tribunal's decision in any way.

The events which followed Mr Baker's receiving the letter of termination of 24 March 2011 are the subject of some dispute.

24 March 2011 to 31 March 2011

Mr Baker's Contact with the Respondent

There is a dispute between the parties whether Mr Baker contacted any representatives of the Respondent in the week following his termination on 24 March 2011 and what was said during any conversation.

At one point in cross examination Mr Baker said that, after receiving the letter of termination on 24 March 2011, he tried to contact Mr Hogbin and Mr Diaz apparently by telephone but was unsuccessful because "no one wanted to talk". The evidence was as follows:

Q. After you received the letter of termination did you contact anybody in D & D?

A. After I - yes, I tried to.

Q. You tried to but you were unsuccessful?

A. Yes.

Q. No one answered the phone?

A. No one wanted to talk. Mr Fabian Diaz and Mr Geoffrey Hogbin. Mr Diaz even left the country when I was terminated.

Q. You believe he left the country--

A. Well I don't know when he left but he just didn't want to talk to me, so.

...

Q. You understand Mr Diaz was out of the country?

A. Yes, I was told, yes.

...

This was then qualified by the question and answer which followed immediately:

Q. So you talked to no one from D & D after the termination?

A. The only reason - the time, the only time I talked to you is, Mr Hogbin, is when I went and got my yellow ticket and come to your office and produced that to you. Anytime after that no one's ever spoke to me until you got me to just sign some paperwork.

As Mr Baker obtained his Yellow Ticket on 31 March 2011, his evidence at this point was that he only spoke to Mr Hogbin on or after that date, that is, a week or more after his termination on 24 March 2011.

Notwithstanding that, the cross examination continued as follows:

Q. After you received your letter on 24 March 2011 did you ring me [Mr Hogbin] the following day?

A. I think I did ring you just to tell you that I've booked myself in to go and get my yellow ticket, yes.

Q. Did you also ask me what you needed to do to gain reemployment?

A. No, no, no, didn't ask you at all. I didn't think I had to. I didn't think I had to.

If this evidence is correct, Mr Baker's earlier evidence about trying to telephone Mr Hogbin and Mr Diaz and no one from the Respondent being willing to speak to him must be incorrect.

Furthermore, in re-examination Mr Baker gave evidence that after receiving the termination letter, he had a conversation on 24 March 2011, not the following day, with Mr Hogbin in which Mr Baker enquired about re-employment. During that conversation, according to Mr Baker, he asked whether the security card disciplinary matter would need to be pursued if he sought re-employment.

Taken as a whole Mr Baker's evidence as to what conversations and contact he had with the Respondent in the week following his termination was so confused that the Tribunal would not be willing to accept it without independent support. The Tribunal was reinforced in this view by the adverse impression formed of Mr Baker as being an unreliable witness for the reasons already given above.

There were no documentary records which supported Mr Baker's versions of his communications with the Respondent immediately after he received his letter of termination on 24 March 2011. The only other participant in these conversations was Mr Hogbin, the Respondent's Manager, Industrial Relations. He gave evidence as to what occurred during this period which was coherent and presented as having a degree of inherent probability. It is also consistent with Mr Baker's and Mr Hobgin's subsequent conduct. The Tribunal accepts his evidence in this regard.

Thus the Tribunal finds that the day after Mr Baker received his termination letter, that is on 25 March 2011, Mr Baker telephoned Mr Hogbin to ask, if he renewed his qualifications, what was required in respect of seeking further employment. Mr Hogbin told him that if he obtained the required current qualification he would need to reapply for employment in the normal manner, that is by application and interview. Mr Baker than asked, if he was employed, what would happen regarding the disciplinary action that had been initiated prior to his termination. Mr Hogbin replied that if he was re-employed, the disciplinary matter would need to be progressed. Mr Hogbin explained that it was a serious issue not advising the loss of his security card and allowing another employee to use the card without reporting. Mr Hogbin also told Mr Baker that it would be alleged that, upon investigation into the usage of the cards, false claims for time worked had been uncovered.

The Tribunal finds that Mr Baker never made or sought to make an application to be re-employed by the Respondent after his telephone conversation with Mr Hogbin on 25 March 2011 referred to in the preceding paragraph. In reaching this conclusion, the Tribunal has relied not only on the evidence of Mr Hogbin as to his conversations and contact with Mr Baker in the week following his termination but also on what occurred subsequently, which is dealt with below.

The Tribunal also finds that from about 25 March 2011 it is likely that Mr Baker formed the view that he should attempt to seek employment with another traffic management company and, if he was to do this, he would need to obtain his Yellow Ticket. This is supported, albeit to only a limited extent, by Mr Martin's evidence that at some time between 28 March and 7 April 2011 he spoke to Mr Baker and formed the view that "all he [Mr Baker] was worried about it was like finding another job".

The Meeting Between Mr Hogbin, Mr Diaz, Mr Martin and Mr Marsonet on 28 March 2011

Some days later, Mr Hogbin and Mr Diaz, a director of the Respondent and its Manager Traffic, had a meeting with Mr Martin and Mr Marsonet, work colleagues of Mr Baker. Although there was some initial lack of clarity as to the date of this meeting, the Tribunal is satisfied that it took place, as Mr Hogbin recalled, on 28 March 2011. Messrs Martin and Marsonet did not in their written evidence mention Mr Diaz being present but Mr Martin conceded in cross examination that Mr Diaz may have been there and Mr Marsonet thought that Mr Diaz may have been present at a later meeting or conversation.

The principal question that arises for the Tribunal concerning this meeting was whether Mr Hogbin said that Mr Baker "was 'unemployable' because of his ongoing injuries that occurred whilst at work with D& D Traffic Management" (according to Mr Martin) or "cannot be re-employed due to his ongoing injuries" (according to Mr Marsonet). Mr Hogbin denied that he used the term "unemployable" in relation to Mr Baker in this conversation saying that he would never use this term in any circumstances as it would be totally inappropriate for someone with his responsibilities and training. He also noted that it would have been incorrect to suggest that Mr Baker could not be employed as he was fully employed at the time of his termination and would have continued in his employment if he had maintained the necessary qualifications. Mr Diaz gave the most comprehensive account of what occurred at that meeting. In order to resolve this issue, it is necessary to have regard to each witness's account of the meeting.

According to Mr Martin in his written evidence, Mr Hogbin said to Mr Marsonet and him at the meeting:

"I know that Ray [Mr Baker] is a friend to both of you, but it is in your best interests not to get involved." Geoff [Mr Hogbin] then went on to explain why Ray had been terminated and said it was because he did not have all his tickets, and that five other employees had also been terminated for the same reason, but had later been re-employed after they had obtained their tickets. Geoff then went on to tell both Ben [Mr Marsonet] and myself that Ray was 'unemployable' because of his ongoing injuries that occurred whilst at work with D&D Traffic Management.

Geoff then asked Ben and myself whether Ray would be interested in signing a letter of resignation saying words to the effect "it would be better if he did because it would be better for him to get future work".

It was not clear from this account whether the conversation in the second paragraph quoted above took place at the same time as or after the conversation in the first paragraph but from the evidence of other witnesses and from what Mr Martin said in cross examination, the Tribunal concludes that the conversation concerning a letter of resignation occurred some time after the conversation on 28 March 2011.

There are a number of problems with the version of the meeting given in the first paragraph. First, the conversation could not have occurred in this way. As at 28 March 2011 the other employees who had been terminated at the same time and for the same reason as Mr Baker had not "been re-employed after they had obtained their tickets". One was reinstated because he did in fact have his ticket and the others were re-employed on new contracts later in April and May. Thus Mr Hogbin could not have explained to Mr Martin and Mr Marsonet that those employees had been re-employed at this meeting. The fact that there were 4 not 5 other relevant employees does not appear to the Tribunal to be significant.

Secondly, Mr Martin in cross examination maintained that this meeting with Mr Hogbin, Mr Marsonet and possibly Mr Diaz was only to do with Mr Baker and not the other employees. Discussion concerning the other employees occurred at a later meeting at which Mr Marsonet and Mr Diaz may not have been present. This appears to be inconsistent with what is recorded in the first paragraph of his statement set out above. This confusion does not give the Tribunal confidence that Mr Martin's recollection of events is entirely reliable.

In addition, there is also a difficulty accepting that Mr Hogbin said that Mr Baker "was 'unemployable' because of his ongoing injuries that occurred whilst at work with D&D Traffic Management". Mr Baker had been working on pre-injury duties from 17 January to 24 March 2011 and there was no evidence that Mr Baker had been noticed to have been suffering any distress or difficulties doing so. Both Mr Martin and Mr Marsonet were aware of Mr Baker working in the field as a traffic controller during that period. Mr Martin said in cross examination he believed that if Mr Baker had had a current Yellow Ticket at 24 March 2011 he would have continued in employment with the Respondent. Mr Martin also said that he believed Mr Baker was employable at about the time of his termination. Similarly, Mr Marsonet expressly said that he believed Mr Baker was fit for duties at this time. In addition, during cross examination Mr Marsonet conceded that if Mr Baker's Yellow Ticket had been current, Mr Baker would have continued to be allocated work and that, if Mr Baker had applied for work with the Respondent after 24 March 2011, there was no reason that Mr Marsonet could think of why he would not have continued his employment. Thus, if Mr Hogbin had said what Mr Martin alleges, the parties to the conversation would have known it was wrong and conversations about Mr Baker's obtaining other employment, which did take place, would have been unlikely. This all suggests that it is unlikely Mr Hogbin said what Mr Martin has put in his statement.

This conclusion is reinforced by evidence given by Mr Martin in cross examination. When asked if he recalled the exact words said, Mr Martin replied: "I do, along the lines of you've got to understand it from our point of view that we agree after Ray being terminated if he just came in off the street on his own bat we wouldn't employ him, he's unemployable." While this is not entirely clear, this version appears to indicate that what Mr Hogbin was trying to communicate was not that Mr Baker was "unemployable" but rather that if Mr Baker had not been already employed by the Respondent, the Respondent would not have employed him if he had come off the street seeking work. This attitude is not specifically linked to "ongoing injuries that occurred whilst at work with D&D Traffic Management" but rather might reflect many different aspects of Mr Baker's work history and other circumstances known to the Respondent. Further, the Tribunal is not satisfied that the words "he's unemployable" were said in addition. They appear to be inconsistent with the point Mr Hogbin appeared to be making according to Mr Martin. In addition, it should be noted that on this version, Mr Baker's employment difficulties, whatever their extent, were not linked to his injuries.

In considering Mr Martin's evidence, the Tribunal also takes into account that he is a friend of Mr Baker; he was involved in Mr Baker's disciplinary incident concerning the security card; and he now works for a competitor of the Respondent. All of these factors could have influenced, most probably subconsciously, his recollection in favour of Mr Baker's case.

On the other hand, Mr Hogbin denied saying that Mr Baker was "unemployable" and all the witnesses agreed that in fact Mr Baker was employable and did not suggest his termination or chances of re-employment with the Respondent were affected by "ongoing injuries". Thus, it is difficult to understand why any representative of the Respondent would have said what Mr Martin alleges because it was known to at least Mr Martin and Mr Marsonet to be incorrect.

In all the circumstances, the Tribunal is satisfied on the balance of probabilities that it should not accept Mr Martin's evidence in this regard.

Mr Marsonet's version of this meeting in his written evidence was as follows:

After Raymond Baker ... was terminated, Graham Martin and I were called into the office by Mr Geoff Hogbin.... Geoff explained that Ray had been terminated due to the fact that his Traffic Control ticket had expired. Geoff advised that he had spoken to myself and Graham about terminating Ray due to the long working relationship we had with Ray.

...

Geoff said words to the effect: "Ray cannot be re-employed due to his ongoing injuries".

Once again, the Tribunal has difficulty accepting that the words "Ray cannot be re-employed due to his ongoing injuries" were said by Mr Hogbin. By reference to the evidence already mentioned above, it does not appear to the Tribunal that there was any basis for concluding that Mr Baker's was unable to work on normal duties as a traffic controller or in some other capacity in the field because of any injuries, let alone "ongoing injuries" at the relevant time. As at 24 March 2011 he had been back at work on pre-injury duties for more than 9 weeks. Mr Marsonet believed Mr Baker was fit for duties at this time. In addition, if Mr Baker had maintained the currency of his Yellow Ticket, Mr Marsonet thought that Mr Baker would have continued to be allocated work and Mr Marsonet could not think of any reason why he would not have continued his employment if he had sought re-employment with the Respondent.

For reasons which largely correspond with those given in relation to Mr Martin's version of this conversation, the Tribunal does not accept Mr Marsonet's evidence concerning the conversation on 28 March 2011.

Mr Hogbin's evidence concerning this meeting was as follows:

10On 28 March 2011, I held a meeting with Mr Fabian Diaz, Mr Ben Marsonet & Mr Graeme Martin at our depot at Girraween, regarding the recent separation of employment of five (5) employees including Mr Baker.

11The purpose of the meeting was to inform all staff about the current circumstance & advice on the processes to follow, regarding ongoing communication with these employees.

12This was I had hoped, to be of particular assistance to Mr Marsonet & Mr Martin as they had close working relations with all the employees in question.

13With specific claim to Mr Baker at that meeting, I would never use the term "unemployable" in any circumstances, as this would be totally inappropriate for someone with my responsibilities & training to convey to other employees. In fact to do so or even imply Mr Baker could not be employed would have been totally incorrect, as Mr Baker was fully employed at the time of separation & would have continued as such had his qualifications been maintained.

14In fact Mr Baker would have been fully employable if he had applied, given his status at that time & once he had renewed his qualifications.

This version is not without its difficulties as well. If the meeting was to inform all staff of current circumstances, it is surprising that only two members of staff, Mr Marsonet and Mr Martin, were called to the meeting. In addition, it fails to give any specific information as to what occurred. The Tribunal does not find it of great assistance.

Mr Diaz's version of the meeting is the fullest account and the Tribunal does not believe there is any basis for not accepting Mr Diaz's evidence in this regard, except as to the date of the meeting.

Accordingly, in addition to the findings already made concerning this meeting, the Tribunal finds that there was a meeting on 28 March 2011 in the Respondent's training room at its Girraween depot. The meeting was attended by Mr Diaz, Mr Hogbin, Mr Martin and Mr Marsonet. Mr Hogbin provided an update on employment matters including details of a number of employees who had been dismissed one of whom was Mr Baker. Mr Hogbin advised that Mr Baker's employment had been severed because he failed to maintain minimum employment standards. This was a reference to Mr Baker's failure to maintain the currency of this Yellow Ticket. Mr Hogbin explained that Mr Baker might wish to seek further employment as might some of the other employees who had also been dismissed. He also explained that if that was the case all employees would need to make new applications for employment and undertake induction procedures including a medical examination.

In relation to Mr Baker, Mr Hogbin advised that due to multiple industrial issues regarding him any enquiry and any communication should be referred to him. Specifically, Mr Hogbin stated that Mr Baker would need to continue with medical assessment due to his Workers Compensation claim and that there was another disciplinary matter which was also under investigation and that both of these matters were understood by Mr Baker.

The Tribunal was not informed of the exact status of any claim for Workers Compensation arising out of his 2009 injury as at March 2011 but Mr Kellen's written evidence suggested that as at April 2013 Mr Baker still had an ongoing Workers Compensation claim against the Respondent dating back to 2009. If it is correct that Mr Baker did have a claim which had not been finalised as at March 2011, it would not have been unreasonable to state that continuing medical assessment would be required. Notwithstanding this, however, it would not follow from the existence of an unfinalised claim and the need for continuing medical assessment, that Mr Baker was unemployable because of his "ongoing injuries". Nonetheless, it is perhaps this comment by Mr Hogbin which was the genesis of Mr Martin and Mr Marsonet's evidence concerning this meeting discussed above. It can be noted that the disciplinary matter was also mentioned in this context, as well as multiple industrial issues concerning Mr Baker.

At this meeting, Mr Hogbin also mentioned that as Mr Baker had been an employee for some time and had developed a close working and social relationship with Mr Martin and Mr Marsonet, this might present some difficult circumstances that they might not wish to be involved in and if so, they should advise Mr Hogbin of any concern. It was also mentioned that if they felt there was something they could be able to assist with, then they should also let Mr Hogbin know.

Conversation Concerning The Potential For Mr Baker To Resign

It appears from the evidence of Mr Martin, Mr Marsonet and Mr Hogbin that subsequent to the meeting on 28 March 2011, a suggestion was made, in a discussion between those three persons, that Mr Baker might wish to resign, effective from before his termination on 24 March 2011. As the Tribunal understands it, this was intended to achieve the outcome that Mr Baker could, if he were seeking employment with another employer, say that he had resigned rather than having to say that the reason for his leaving the Respondent was that he was terminated for failure to maintain his Yellow Ticket or for some other reason. Given the circumstances of his termination, the outstanding disciplinary matter and possibly other industrial issues, it is perhaps understandable why such a course might be raised, in the interests of both Mr Baker and the Respondent.

Mr Baker's Yellow Ticket

Some time after receiving the termination letter on 24 March 2011, Mr Baker booked himself into a course and on 31 March 2011 obtained his Yellow Ticket. Mr Khouiss apparently attended the same course and obtained his Yellow Ticket as well. It is not clear whether this was before or after Mr Baker's telephone conversation with Mr Martin in which his resignation was discussed (which conversation is referred to below).

Mr Baker gave evidence that after obtaining his Yellow Ticker, on the same day 31 March 2011, he took the ticket and went straight to the Respondent's office and showed it to Mr Hogbin. According to Mr Baker, there was no one else present and he had a conversation with Mr Hogbin:

Baker:There's a copy of my yellow ticket that I've just renewed. How do I go on for work now?

Hogbin:I'm not employing due to your long ongoing injuries.

Mr Baker said nothing in reply and just went home without speaking to anyone else.

Mr Hogbin denies that such a conversation took place and specifically says that there was no conversation between Mr Baker and him after the telephone conversation on 25 March 2011 referred to above and the meeting on 7 April 2011, referred to below, at which the two documents prepared by Mr Hogbin in relation to Mr Baker's resignation were signed. For the reasons given above in relation to Mr Baker's evidence generally and in the light of what occurred at about this time according to the other witnesses, the Tribunal rejects Mr Baker's evidence concerning a conversation on 31 March 2011 and accepts Mr Hogbin's evidence that no such conversation took place.

The Tribunal also notes that, while Mr Baker did indeed obtain his Yellow Ticket on 31 March 2011, this is consistent with Mr Baker's having decided by that time to seek employment with another traffic control company rather than seek re-employment with the Respondent.

Arrangements Made for Mr Baker's Resignation

At some stage between 28 March and about 2 April 2011, Mr Martin telephoned Mr Baker to enquire whether he would be interested in resigning instead of being terminated. Mr Martin's assessment of Mr Baker's response was that "He wasn't really happy about it but I believe that all he was worried about it was like finding another job." Accordingly, it appears that by this time at the latest Mr Baker had decided not to seek re-employment with the Respondent but to look for another job.

Mr Martin reported on his conversation with Mr Baker to Mr Hogbin. Mr Hogbin gave evidence as to what was said by Mr Martin. Mr Martin was cross examined about what he said to Mr Hogbin in this regard and he stated that although he could not recall what was being put to him he did not deny it.

Accordingly, the Tribunal finds that Mr Martin told Mr Hogbin that Mr Baker would prefer to resign because it would be advantageous when seeking employment with another traffic control company. Mr Martin also gave evidence that, at about this time, he was trying to organise for Mr Baker to get a job with another traffic management company, Able Traffic.

Mr Martin also told Mr Hogbin that Mr Baker wanted a statement that his employment record with the Respondent was satisfactory and he wanted to be paid for the period between his termination, on 24 March 2011, and the date of resignation.

In addition to it being advantageous for Mr Baker, the Respondent perceived that there were industrial relations advantages for it in having Mr Baker resign. As a result the Respondent decided to go ahead with allowing Mr Baker to resign and Mr Hogbin prepared two documents. One was a notice of resignation to be signed by Mr Baker dated 23 March 2011, the day immediately before his termination for not having a current Yellow Ticker, and the other was headed "Deed of Agreement" and was between Mr Baker and the Respondent. The terms of the draft Deed of Agreement included an agreement to pay Mr Baker the equivalent of 2 weeks' wages, less tax, and an acknowledgement of his diligent contribution to the Respondent's business in the performance of his role and duties.

On about 2 April 2011, Mr Baker received a telephone call from Mr Martin in which Mr Martin said, at least: "We would like to come out to your home and see you regarding signing some paperwork". Arrangements were put in place for this to be done on 7 April 2011.

The Meeting on 7 April 2011

On 7 April 2011, Mr Martin and Mr Hogbin went to see Mr Baker at about 11.30 am. There was no significant dispute as to what occurred. Mr Baker's recollection of the meeting was scant and apart from signing the documents he could not recall any conversation with either Mr Martin or Mr Hogbin before or after he signed. He was given a copy of the documentation after signing. He did say that he felt stressed and intimidated by people coming to his house in this way. His evidence was also that he had also taken Endone early in the morning and 2 Panadeine forte at about 10 am which made him feel drowsy.

The meeting took place at Mr Baker's partner's house. Mr Martin arrived first. Mr Hogbin arrived somewhat later because he went first to Mr Baker's house before discovering that the meeting was at Mr Baker's partner's house. After Mr Hogbin arrived, Mr Baker, Mr Martin and Mr Hogbin sat down in the dining room or kitchen and went through the documentation. There was some discussion of the terms and Mr Baker signed the documentation. After signing, all 3 went out onto the balcony. Mr Baker agreed with the description of the meeting as "rather cordial". Mr Hogbin then left the meeting followed, after some time, by Mr Martin. Mr Hogbin was at the meeting for about half an hour or more. The Tribunal accepts Mr Hogbin's evidence that during the meeting Mr Baker did not show any signs of distress or impairment and behaved normally. The Tribunal is not satisfied that Mr Baker was so heavily medicated that he did not know what he was doing or was not responsible for his actions when he signed the two documents, a notice of resignation and a Deed of Agreement.

The notice of resignation signed by Mr Baker was as follows:

To: D&D Traffic Management

Subject: Resignation

I Raymond Baker of *************, do hereby resign from my position as Traffic Controller with D&D Traffic Management as of this date, for personal reasons.

Raymond Baker

23 March 2011

[Mr Baker's signature]

The Deed of Agreement was signed by both Mr Hogbin and Mr Baker and was in the following terms:

DEED OF AGREEMENT

PARTIES: Shall be, Raymond Baker of ************** & D&D Traffic Management of ****************

AGREEMENT: Upon acceptance of Raymond Baker's resignation dated 23 March 2011, either [sic] party shall in any way or form be critical of or comment to the detriment of the other party.

Both parties shall keep confidential the content of this deed of agreement dated 7 April 2011.

Raymond Baker shall return all D& D property in his possession, including but not limited to, any keys, security cards, D&D branded uniform or PPE, books, paper work (including policies & procedures) & Team Leader Kit .

Ray Baker shall not use any information gained whilst employed with D&D, intellectual property of D&D or documents relating to D&D, in any future employment, contract or self-employed position he may occupy.

D&D shall pay Ray Baker the equivalent of two weeks pay less tax, at Raymond Baker's substantive appointment with the company, without allowances.

D&D acknowledges Raymond Baker's diligent contribution to the business in the performance of his role & duties.

AUTHORITY: the signatures below make this agreement in full knowledge of their rights & obligations. Both parties do so without influence or duress & have been afforded opportunity to seek advice on the content contained, if desired.

SIGNED:

[Mr Hogbin's signature][Mr Baker's signature]

..............................................

GEOFF HOGBIN (on behalf of D&D)Raymond Baker

DATED:DATED:

Mr Baker was paid the amount referred to in the Deed of Agreement.

Subsequent Events

Mr Baker had no further contact with the Respondent, except for a claim for unfair dismissal dated 20 January 2012 brought before Fair Work Australia which was eventually not proceeded with and the present complaint.

There was also evidence concerning Mr Baker's seeking work with Able Roadwork Traffic Analysis and a conversation between Mr Diaz and the NSW General Manager of Able Roadwork, Mr Hanbridge. The timing of when Mr Baker contacted Able Roadwork seeking employment was very unclear and the Tribunal is not able to identify a specific date when this occurred. Nonetheless, the Tribunal is satisfied that it occurred in 2011 at or about the time of Mr Baker's departure from the Respondent. Mr Martin contacted the Operations Manager of Able Roadwork, Mr Warren Griffin, to enquire whether they were hiring employees. Mr Baker attended Able Roadwork's offices and spoke to Mr Griffin and Mr Hanbridge.

During Mr Hanbridge's talk with Mr Baker, Mr Baker mentioned his Workers Compensation claim as well as what Mr Hanbridge described as "personal problems". Mr Baker told Mr Hanbridge that "he was looking to get out".

At about this time, Mr Hanbridge also happened to meet Mr Diaz and they discussed Mr Baker. It appears that Mr Baker's return to work following his injury was mentioned as well as his failure to maintain his Yellow Ticket.

Eventually, some one to two weeks after Mr Baker's initial conversations with Mr Griffin and Mr Hanbridge, Mr Griffin contacted Mr Baker to find out what was happening. As Mr Hanbridge understood it, Mr Baker said that he did not want to proceed with his application for employment with Able Roadwork because he had to continue to look after his sick wife. The application for employment apparently went no further.

The Four Other Employees

As to the 4 other employees who were also terminated on 24 March 2011 for failure to have a current Yellow Ticket, what occurred was as follows. On 24 March 2011, they, as well as Mr Baker, were paid all of their wages and other entitlements as at that date. Wassim Abdullah and Martin Garvey were both permanent employees like Mr Baker.

Mr Abdullah obtained his relevant ticket on 25 March 2011 and applied for re-employment. On 31 March 2011, he attended an induction session and underwent a medical assessment and was offered a weekly position with the Respondent as a Level 3 Traffic Controller by letter dated 1 April 2011 which he accepted on that day by signing an employment agreement one of whose terms was that his position was subject to a six month probationary period.

Mr Garvey obtained his ticket on 19 April 2011 and after completing the assessment process for employment with the Respondent was offered a casual role as a Level 3 Traffic Controller by letter dated 21 April 2011. He attended a pre-employment medical assessment on 28 April 2011. On 2 May 2011, Mr Garvey accepted the offer by signing the letter of offer. His employment also involved a six month probationary period.

Mr Khouiss obtained his ticket on 31 March 2011, completed the assessment process and was offered a casual role with the Respondent as a Level 1 Traffic Controller by letter dated 2 May 2011. He attended a pre-employment medical assessment on 4 May 2011. On 10 May 2011, Mr Khouiss accepted the offer by signing the letter of offer. His employment also involved a six month probationary period.

Mr Chalgin informed the Respondent that, prior to 24 March 2011, his Yellow Ticket had been renewed but he had forgotten to tell the Respondent. As a result, his letter of termination was withdrawn and he continued to be employed on a casual basis as before.

Mr Baker's Claim of Discrimination

Mr Baker's claim for unlawful discrimination was essentially put on the basis that after the 5 employees were terminated for not having their Yellow Ticket, Mr Baker was the only one who was not re-employed or re-instated. This was said to amount to direct discrimination on the ground of disability. It was submitted that the fact that the others were allowed to reapply for and were offered employment but Mr Baker was not amounted to differential treatment. Further, Mr Baker was the only one who had a disability, namely his ankle and back injuries. The causal link between the differential treatment and his disability was sought to be established from evidence such as Mr Hogbin's comments that Mr Baker was "unemployable" because of his "ongoing injuries". Mr Baker claimed that this amounted to unlawful disability discrimination in contravention of s 49D(1) of the ADA.

No claim was made that Mr Baker's termination of employment was discriminatory and it was accepted that Mr Baker was not an employee of the Respondent at the time of the alleged discriminatory conduct. Consequently, it is not necessary to address the operation of s 49D(2).

In the circumstances of the present case and the submissions made, the Tribunal will consider whether the Respondent discriminated against Mr Baker on the ground of disability:

(1) in the arrangements it made for the purpose of determining who should be offered employment within s 49D(1)(a); or

(2) in determining who should be offered employment within s 49D(1)(b).

Relevant Legislation

Section 49D relevantly provides:

(1)It is unlawful for an employer to discriminate against a person on the ground of disability:

(a)in the arrangements the employer makes for the purpose of determining who should be offered employment, or

(b)in determining who should be offered employment, or

(c)in the terms on which the employer offers employment.

"Employment" is not defined in the ADA except to the extent that s 4(1) provides that "employment" includes "work under a contract for services".

"Disability" is defined in s 4(1) of the ADA to mean:

(a)total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b)the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c)the malfunction, malformation or disfigurement of a part of a person's body, or

(d)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

The concept of disability is expanded in s 49A of the ADA as follows:

A reference in this Part to a person's disability is a reference to a disability:

(a)that a person has, or

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

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

(d)that a 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 disability).

What constitutes direct discrimination on the ground of disability for the purposes of s 49D is set out in s 49B(1)(a) of the ADA. The relevant provisions of that section include:

(1)A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 that disability or who does not have such a relative or associate who has that disability, or

(b)....

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

Accordingly, the following issues arise for determination in the present case:

1) Did Mr Baker have a disability within the meaning of that term in the ADA?

2) Was the Respondent an employer within the meaning of the ADA?

3) Did the Respondent discriminate against Mr Baker on the ground of disability within the meaning of s 49B(1)(a)?

4) Did the Respondent so discriminate against Mr Baker in the arrangements it made for the purpose of determining who should be offered employment within s 49D(1)(a) or in determining who should be offered employment within s 49D(1)(b)?

Each of these issues will be dealt with in turn.

Disability

In the Respondent's points of defence it is contended that Mr Baker was certified fit for pre-injury duties by his treating Dr Chara and was carrying out those duties during the relevant times. To the extent that the Respondent submitted that Mr Baker did not have a disability, the Tribunal rejects that submission.

The evidence of Dr Chara was that when he certified Mr Baker fit for pre-injury duties and issued a "final" medical certificate on 28 February 2011 he was indicating that in his view Mr Baker had reached "maximum medical improvement" with respect to his ankle and back conditions not that all effects of the injuries had ceased. The doctor further said that Mr Baker's ankle and back pain never really completely went away and it required him to take medication during the period under consideration. In the doctor's opinion, Mr Baker would continue to have symptoms but they would be variable.

Given the wide definition of "disability" in s 4(1) and especially paragraphs (a) and (c) and the expansion of the meaning of that term in s 49A, the Tribunal is satisfied that Mr Baker's ankle and back injuries and their ongoing symptoms together with the possibility of exacerbation amounted to a disability for the purposes of the ADA.

Employer

As the Tribunal understood it, there was no dispute that the Respondent had been Mr Baker's "employer", within the meaning of that term in the ADA, prior to his termination. Nor was there any doubt that in determining whether to offer employment to the 4 other persons who were terminated at the same time as Mr Baker, the Respondent was relevantly an "employer" for the purposes of s 49D(1).

Discrimination on the Ground of Disability

In order to establish direct discrimination falling with s 49B(1)(a) of the ADA in the present case, it must be established that:

1) the Respondent treated Mr Baker less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondent treated or would have treated a person who did not have Mr Baker's disability - the differential treatment issue; and

2) that differential treatment was on the ground of his disability - the causation issue.

Where there exists an actual person whose treatment can be compared with that of the complainant, these questions can be and should be dealt with sequentially - Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. Where, however, there is no actual comparator, there is a problem because it is difficult, if not impossible in some cases, to determine how another, hypothetical employee would have been treated without first determining why the complainant was treated as he or she was. Thus, where the comparator is hypothetical, the two questions as to 'less favourable treatment' and 'on the ground of disability can be addressed as part of the same reasoning exercise - see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59] to [65] and Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 at [78].

Differential Treatment

In order to determine the differential treatment issue, it is necessary that a comparison be made between the way in which Mr Baker was treated and the way in which someone who did not have "that disability" would have been treated in the same or not materially different circumstances. Consequently, there are three elements to are required to be considered. First, what was the relevant disability from which Mr Baker suffered. Secondly, Mr Baker's circumstances must be identified and then it must be determined which of those circumstances have to be taken into account in determining how another employee without Mr Baker's disability would have been treated. And, thirdly, it is necessary to address what treatment Mr Baker received and what treatment the comparator would have received.

In the present case, "that disability" refers to Mr Baker's ankle and back injuries and what followed from them.

As to the circumstances that must be taken into account, the High Court's decision in Purvis v State of New South Wales (2003) 217 CLR 92 gives some assistance as the language of the Federal statute applicable in that case was not different in presently material respects from the language of the ADA. In that case, Gummow, Hayne and Heydon JJ held at [224]:

The circumstances referred to in s 5(1) [relevantly equivalent to s 49B(1)(a) of the ADA] are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.

Further at [229], those Justices also held that the section equivalent to s 49B(1)(a) "requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person".

As the High Court's decision in Purvis made clear at [230], the circumstances that must be taken into account in determining how a person without Mr Baker's disability would have been treated do not exclude all of the circumstances that arise out of, or are the effect or consequence of, Mr Baker's having a disability. At [230] the High Court held that the construction adopted by the Court: "embraces the importance of indentifying (as part of the relevant circumstances) all the effects and consequences of the disability that are manifested to the alleged discriminator. What then is asked is: how would that person treat another in those same circumstances?"

Applying these principles to the present case, the objective features that surrounded Mr Baker's treatment by the Respondent can be summarised as including at least being a former employee of the Respondent who:

1) had been terminated on 24 March 2011 for not having a current Yellow Ticket;

2) did not have Mr Baker's ankle and back injuries and their sequelae;

3) had an unresolved disciplinary matter of the same nature as Mr Baker's;

4) enquired whether the disciplinary matter would need to be addressed if re-employed.

From this identification of the relevant circumstances, it can be seen that none of the other employees whose employment was terminated on 24 March 2011 shared those circumstances with Mr Baker because none of them had an outstanding disciplinary matter which might need to be addressed. Accordingly, they cannot be used as direct or actual comparators. That is not to say, however, that how they were treated should be taken as totally irrelevant. How they were treated may inform to a limited extent how a hypothetical comparator would have been treated. In the present case, the hypothetical comparator will be a former employee of the Respondent with the characteristics identified in the preceding paragraph.

As to the question of whether Mr Baker was treated "less favourably", this merely requires a comparison of Mr Baker's treatment with how the comparator would have been treated in the circumstances and a determination of whether Mr Baker's treatment was less beneficial or advantageous than that which the comparator would have received - Boehringer Ingelheim Pty Limited v Reddrop [1984] 2 NSWLR 13 at 19 and Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619 at [36].

As Kirby P held in Haines v Leves (1987) 8 NSWLR 442 at 471:

The motive, reasons or suggested justifications of the detriment are irrelevant, if it can be shown that there is differentiation of treatment, which results in detriment to the person affected: see Clay Cross (Quarry Services) Ltd v Fletcher [1978] 1 WLR 1429; ; [1979] 1 All ER 474 (Eng CA) .

In Mr Baker's case, he approached Mr Hogbin and enquired whether, if he were re-employed, the disciplinary matter would have to be dealt with. Mr Hogbin indicated that if he was re-employed, the disciplinary matter would need to be progressed and there may be further allegations of misconduct revealed as a result of the investigation. The Tribunal has already found that following that conversation Mr Baker did not then apply for re-employment with the Respondent, no offer of re-employment was ever made to Mr Baker and the Respondent and Mr Baker reached agreement on his resignation and related matters.

The Tribunal is satisfied that if another former employee who had been terminated on 24 March 2011 for the same reason as Mr Baker, who did not have Mr Baker's disability (whether or not that employee had some other disability) but who was subject to the same disciplinary complaint as Mr Baker would have received the same treatment as Mr Baker. If that former employee had asked Mr Hogbin whether the disciplinary matter would need to be progressed in the case of re-employment, Mr Hogbin's answer would have been the same. Further, if that former employee did not re-apply for employment with the Respondent and go through the application and assessment process, as the 3 other employees who had been terminated did, the Tribunal is satisfied that no offer of re-employment would have been made by the Respondent. Finally, the Tribunal finds that the manner in which the Respondent treated Mr Baker after 25 March 2011, including the offer of accepting an earlier resignation, is the same as the manner in which the Respondent would have treated a former employee in the same or not materially different circumstances from Mr Baker but without Mr Baker's disability.

In other words, the Tribunal finds that there was no differential treatment of Mr Baker. Having reached this conclusion, it may not be strictly necessary for the Tribunal to consider the remaining issues. Nonetheless, in case we are wrong, we shall address these remaining issues briefly.

On the Ground of Disability

The question of whether differential or less favourable treatment was "on the ground of" disability requires the characterisation of the conduct in terms of its causation - Haines v Leves (1987) 8 NSWLR 442 at 471.

In this context it can be noted that s 4A of the ADA provides:

If:

(a)an act is done for 2 or more reasons, and

(b)one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

Notwithstanding the terms of s 4A, the comments of Kirby P in Haines v Leves (1987) 8 NSWLR 442 at 471 sound a useful reminder of the difficulty involved in this area of the law:

Most activities of life have multiple causes. The assignment of the ìgroundî of the less favourable treatment requires of the Tribunal the characterisation of the relevant causative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the ìgroundsî is a difficult one which calls for judgment and discernment. Thus in Boehringer, a married female complained F that she had been discriminated against on the ground of marital status. The employer contended that the decision not to employ her was based on the ground of the possibility that she might disclose (whether by inadvertance or otherwise) confidential information to her husband who was employed by a competitor. The tribunal upheld the complaint. This Court (Moffitt P, Mahoney and Priestley JJA) unanimously allowed the appeal and dismissed the complaint.

In the light of all the evidence and the conclusions we have reached above, including our finding that Mr Hogbin did not say that Mr Baker was "unemployable because of his ongoing injuries", we are satisfied that Mr Baker's treatment, even if it were found to be less favourable than that which would have been given to a person in Mr Baker's circumstances but without his disability, was not because of or on the ground of his disability. He was treated as he was because of the outstanding disciplinary issues, because of the Respondent's concern to have those issues properly dealt with if he was re-employed and also because of his failure to apply for re-employment and go through the application and assessment process. After his conversation with Mr Hogbin, Mr Baker chose not to apply for re-employment and reached an agreement on how his separation from the Respondent was to be implemented. His disability was not a real or genuine cause of the treatment he received.

The Respondent did not discriminate against him within the meaning of s 49B(1)(a).

Conduct Falling Within Section 49D

In case we are wrong in the conclusion that there was no discrimination, the Tribunal will also consider whether there was any conduct by the Respondent falling within s 49D(1)(a) or (b). Mr Baker's complaint is that the Respondent discriminated against him:

1) in the arrangements it made for the purpose of determining who should be offered employment - s 49D(1)(a); or

2) in determining who should be offered employment - s 49D(1)(b).

The arrangement the Respondent made for the purposes of employing persons generally or re-employing the employees terminated on 24 March 2011 because they did not have their Yellow Ticket, did not involve any less favourable treatment of, or discrimination against, Mr Baker. Those arrangements, as far as it was disclosed in the evidence, involved an application for employment, an interview and assessment process as well as a medical assessment including a drug test. In Mr Baker's case, he was not denied access to the application process nor was it suggested that it was useless for him to embark upon it because re-employment would not have been offered to him in any event. The Tribunal is satisfied that there was nothing stopping Mr Baker from applying for re-employment with the Respondent and its processes were not discriminatory. And, if Mr Baker had applied, his application would have been dealt with on the merits, even though, if he were offered re-employment, the disciplinary matter would still have had to be addressed. Accordingly, the Tribunal finds that there was no conduct falling within s 49D(1)(a).

Further, in determining who should be re-employed in the present case, the Respondent could not make such a determination in Mr Baker's case as he did not apply for re-employment. As a result, the Respondent did not discriminate and could not have discriminated against Mr Baker in determining who should be offered employment. Thus, there was no contravention of s 49D(1)(b).

On this basis, the Tribunal concludes that, even if discrimination on the ground of disability were established within s 49B(1)(a), no conduct falling within any relevant paragraph of s 49D(1)(a) or (b) has been established.

Conclusion on Discrimination

Accordingly, for the reasons set out above Mr Baker's claim of discrimination should be dismissed.

Costs

In the Respondent's points of defence, a claim for costs was made and this was pressed during oral submissions. The claim was put essentially on the basis that Mr Baker's complaint lacked substance and was frivolous which we take to be a submission that it had no tenable basis in law or fact. In the points of defence it was also submitted that Mr Baker had "failed to respond on time to orders issued".

Relevant Statutory Provisions

In relation to costs, s 88 of the ADT Act provides:

88Costs

(1)Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A)Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a)whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i)failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii)failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii)asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv)causing an adjournment, or

(v)attempting to deceive another party or the Tribunal, or

(vi)vexatiously conducting the proceedings,

(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)the nature and complexity of the proceedings,

(e)any other matter that the Tribunal considers relevant.

(2)The Tribunal may:

(a)determine by whom and to what extent costs are to be paid, and

(b)order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act2004 or on any other basis.

(3)However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4)In this section, "costs" includes:

(a)costs of or incidental to proceedings in the Tribunal, and

(b)the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

In respect of s 88(3) of the ADT Act, s110 of the ADA provides:

110Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act1997 in respect of proceedings before the Tribunal in relation to a complaint.

Accordingly, the Tribunal has power to award costs in the present matter, involving as it does a complaint under the ADA. Nonetheless, s 88(1) establishes that ordinarily each party should pay its own costs but s 88(1A) permits a costs order to be made if the Tribunal is satisfied that it is fair to do having regard to certain matters. Thus, the Tribunal must consider whether it is fair to depart from the ordinary rule in the present case.

Is it "Fair" to Depart from the Ordinary Rule?

Section 88(1) of the ADT Act establishes what has been called the "ordinary rule" (KT v Sydney Local Health Network (No. 2) [2011] NSWADTAP 8 at [26]) or the "general principle" (AT v Commissioner of Police [2010] NSWCA 131 at [33]) that each party should be bear its own costs in respect of proceedings in the Tribunal.

Nonetheless, under s 88(1A), the Tribunal does have power to award costs "but only if it is satisfied that it is fair to do so having regard to" what is in effect, given the terms of s 88(1A)(e), a non-exhaustive list of relevant factors. In relation to the application of this section, the Court of Appeal has held in AT v Commissioner of Police [2010] NSWCA 131 at [33]:

That approach does not diminish the force of the general principle that each party should bear its own costs in the Tribunal, a principle applicable at both first instance and before the Appeal Panel. Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.

The terms of subs 88(1A) have been set out above. Section 3(b) to (g) of the ADA provide:

3Objects of Act

The objects of this Act are as follows:

...

(b)to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c)to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,

(d)to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal,

(e)to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request,

(f)to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g)to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

Of those objects, the Tribunal considers that, in matters arising under the ADA, the most significant are (b) and (c). In particular, it is essential that the Tribunal be accessible to persons who wish to raise a complaint of unlawful discrimination. The Tribunal should bear in mind that if it became a general practice to award costs against unsuccessful applicants in ADA matters, this might well inhibit potential complainants from seeking to invoke the Tribunal's jurisdiction under the ADA and constitute at least a partial barrier to access.

In addition, the costs orders of the Tribunal should also seek to promote and ensure the efficient, effective, fair, informal and expeditious conduct of matters by the parties and their representatives. This is primarily achieved by awarding costs against a party whose conduct is not conducive to that end.

Mr Baker was unsuccessful in establishing any contravention of s 49D(1) of the ADA. This by itself would not, however, normally be sufficient to entitle it to a costs order given the terms of s 88(1) of the ADT Act. In the circumstances, the Tribunal understands that the Respondent's submission was in effect that it would be fair to order costs in its favour having regard to s 88(1A)(a) and (c).

As to whether Mr Baker's "failed to respond on time to orders issued" this was not really dealt with in evidence or submission. In this regard the Tribunal notes that it did take just less than a year from the filing of the President's Report to the final hearing of the matter but at least part of this was caused by the unfortunate unavailability of Mr Hogbin for the first case conference on 8 August 2012. The Tribunal cannot be satisfied in the present case that Mr Baker has conducted the proceedings in a way that unnecessarily disadvantaged the Respondent by failing to comply with an order or direction of the Tribunal without reasonable excuse.

As to whether Mr Baker's claim was untenable in law or fact, the Tribunal finds that if the evidence of Mr Baker, Mr Martin and Mr Marsonet had been accepted, there may have been grounds for finding that the Respondent had unlawfully discriminated against Mr Baker. To that extent, it would not be correct to conclude that Mr Baker's complaint was always bound to fail and that it was untenable in the relevant sense.

There do not appear to the Tribunal to be any other grounds upon which it should conclude that it was fair to depart from the ordinary rule that each party bear his or its own costs.

For these reasons and in all the circumstances, the Tribunal is not satisfied under s 88(1A) of the ADT Act that it would be fair to award costs in favour of the Respondent in respect of this proceeding.

Conclusion and Orders

On the bases set out above, the Tribunal finds that the complaint should be dismissed as should the Respondent's application for costs.

Accordingly, the Tribunal orders that:

1) the complaint be dismissed in whole.

2) the Respondent's application for costs be dismissed.

**********

Decision last updated: 05 August 2013

Medium Neutral Citation:	Baker v D & D Traffic Management Pty Ltd [2013] NSWADT 175
Hearing dates:	24, 25 June 2013
Decision date:	05 August 2013
Jurisdiction:	Equal Opportunity Division
Before:	R J Wright SC, Judicial Member N Hiffernan, Non-Judicial Member M Nasir, Non-Judicial Member
Decision:	The Tribunal orders that: 1) the complaint be dismissed in whole. 2) the Respondent's application for costs be dismissed.
Catchwords:	Disability Discrimination - Employment - Direct Discrimination
Legislation Cited:	Anti Discrimination Act 1977 (NSW)
Cases Cited:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Abdulrahman v Toll Pty Ltd t/as Toll Express [2006] NSWADT 221 Purvis v State of New South Wales (2003) 217 CLR 92 Boehringer Ingelheim Pty Ltd v Reddrop [1984] NSWLR 13 Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club [2000] FCA 1619 Haines v Leves (1987) 8 NSWLR 442 KT v Sydney Local Health Network (No.2) [2011] NSWADTAP 8 AT v Commissioner of Police [2010] NSWCA 131
Category:	Principal judgment
Parties:	Raymond Baker (Applicant) D & D Traffic Management Pty Ltd (Respondent)
Representation:	Counsel A Miller (Applicant) Ghobrial Legal (Applicant) G Hogbin (Agent for the Respondent)
File Number(s):	121089