Correy v St Joseph's Hospital Ltd

[2007] NSWADT 104

Set aside by Appeal:

CITATION:	Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Kathryn Correy RESPONDENT St Joseph’s Hospital Ltd
FILE NUMBER:	061003
HEARING DATES:	4-5 September 2006
SUBMISSIONS CLOSED:	16 March 2007
DATE OF DECISION:	10 May 2007
BEFORE:	Britton A - Deputy President; O'Sullivan M - Non Judicial Member;
CATCHWORDS:	Carers' Responsibility Discrimination - in work - Sex Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
CASES CITED:	Bonella v Wollongong City Council [2001] NSWADT 194 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 Illawarra County Council v Federated Municipal Employees’ Union of Australia (1985) 11 IR 18 Jones v Dunkel (1959) 101 CLR 298 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Purvis v New South Wales (2003) 217 CLR 92 Regina v Ronen & Ors [2005] NSWSC 320 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivananthan v Commissioner of Police [2001] NSWADT 44 Thomson v Orica Australia [2002] FCA 939 Weissensteiner v The Queen (1993) 178 CLR 217 Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761
REPRESENTATION:	APPLICANT E Brus, barrister RESPONDENT P Newell, barrister
ORDERS:	1. The complaint of discrimination on the ground of responsibilities as a carer is substantiated; 2. The complaint of discrimination on the ground of sex is dismissed; 3. The complaint of victimisation is substantiated; 4. The Respondent to pay the Applicant the sum of $26,121 within 28 days.

1 Shortly before she was due to return from maternity leave, Enrolled Nurse, Kathryn Correy, discovered that she had not been rostered to work in the Palliative Care Unit of St Joseph’s Hospital, Auburn where she wished to work and had been working for close to a decade. Ms Correy contends that the Hospital’s refusal to return her to palliative care constitutes discrimination on the grounds of gender and carer’s responsibility. She also argues that the subsequent decision to roster her to work in a closed psychiatric ward, which she claimed she could not work for health reasons, amounted to victimisation.

2 The Hospital contends that the complaint is misconceived. It argues that neither Ms Correy nor, indeed, any other member of its nursing staff had a ‘right’ to work in any particular ward. Ms Correy’s position, it argues, was that of ‘enrolled nurse’ not, as she contended, ‘enrolled nurse-palliative care’. It claims that the decision not to roster Ms Correy in palliative care had nothing to with her carer’s responsibilities or gender. The Hospital contends that while staff preferences are taken into account, they could not always be accommodated and ultimately, patient need must prevail.

3 In addition, the Hospital denies that Ms Correy was victimised.

Employment History

4 Since commencing with the Hospital in 1996 as an enrolled nurse (EN) Ms Correy worked night shift and, except on very rare occasions when redeployed due to staff shortages, in the Palliative Care Unit (the PCU). The PCU is one of four wards (or Units) operated by the Hospital, the other three being Aged Care Psychiatry and Neurosciences, Aged Care Assessment and Rehabilitation and Medical Rehabilitation.

5 Before taking maternity leave in 2004, Ms Correy had been working three shifts a week. In 42 of the 52 weeks before taking leave she had been rostered to work Thursday, Friday and Saturday. Of the remainder, all involved some weekend work and at least two consecutive shifts.

6 Ms Correy had taken two periods of maternity leave before taking maternity leave in 2004. The leave the subject of this complaint commenced in May 2004 with a scheduled return date of 2 April 2005. After the first two periods of maternity leave, Ms Correy returned to work in the PCU on the same or similar basis as before her leave.

Return to work in 2005

7 On 28 February 2005, Ms Correy wrote to John Geoghegan, the Hospital’s Director of Nursing, and requested, first, that she be permitted ‘[t]o return to palliative care nightshift on…1 July 2005 [not 2 April 2005]’ and second, that her hours be reduced from 24 to 16 per week. Both requests were approved. Mr Geoghegan wrote ‘[a]s is usual practice your roster will be allocated on the seven day roster to fit in with the staffing requirements of the unit’.

8 In mid-May 2005, Ms Correy enquired about her roster and was told by Night Shift supervisor, Patricia Cosgrove, that on her return she had been rostered to work in the Medical Rehabilitation Unit. Ms Cosgrove noted that conversation in the Hospital Communication book: ‘[Ms Correy] expects to return to PCU, night duty, Friday and Saturday night as apparently set out in recent letter to JG [John Geoghegan]. She will ring K McCarthy [Nurse Manager, Kathleen McCarthy] on Monday’.

9 After that conversation, Ms Correy rang Ms McCarthy and asked why she had been rostered in Medical Rehabilitation. Ms McCarthy said that she advised Ms Correy that all efforts would be made to accommodate her wish to return to palliative care.

10 Unhappy with that advice, Ms Correy arranged to meet with Mr Geoghegan. A meeting was held on 7 June 2005, which Ms McCarthy also attended. At that meeting Ms Correy was told that her position at the PCU had been ‘filled’ by a full-time enrolled nurse. Ms Correy said she questioned that decision and was told by Mr Geoghegan, ‘[y]ou chose to go on ML, if Melissa Palmer [an enrolled nurse who worked in palliative care] had done that she would have been in the same position as you’. Mr Geoghegan denied saying those words.

11 Shortly after that meeting Ms Correy told Ms McCarthy that there was ‘no way’ she could work in ‘Geri. Psych’. [the Aged Care Psychiatry and Neurosciences Unit] because she had experienced domestic violence.

12 On 10 June, Ms Correy and Mr Geoghegan spoke by phone. It is not in issue that in the course of that conversation Ms Correy was told the Hospital could not change its position about returning her to the PCU. Ms Correy was told that she had been rostered on a ‘rotational basis’. In evidence, Mr Geoghegan denied Ms Correy’s claim that he had said that her position was now one of ‘floater’. [‘Floater’ is the term used by Hospital staff to refer to staff not allocated to any particular Unit and who rotate between wards and shifts on an ‘as needs’ basis.] He agreed, however, that he said Ms Correy had, ‘A permanent part-time position at the Hospital which we could accommodate at two nights a week … and at this stage she would need to be rostered where the vacancies were throughout the Hospital’.

13 Following that meeting, Mr Geoghegan recorded in his diary, ‘She will take it further’.

14 By letter dated 16 June 2005, Ms Correy wrote to Mr Geoghegan and restated that she wished to return to the PCU. She explained that she found the options of Aged Care Psychiatry and Medical Rehabilitation unsuitable and pointed to her discomfort with working in the former because of her history of experiencing domestic violence.

15 Apparently that letter crossed in the mail with one from Ms McCarthy to Ms Correy, which bore the same date. It contained Ms Correy’s first roster on her return, 3 July 2005 to 2 August 2005. Of the ten rostered shifts, none were in the PCU. Eight were in Aged Care Rehabilitation and two in Aged Care Psychiatry. The roster provided that Ms Correy would be working Sunday and Monday for the first three weeks and Monday and Tuesday in the final week. It did not, as was standard practice, contain the times Ms Correy would be working.

16 Ms Correy replied that that proposal was unacceptable. She wrote ‘[i]t appears that, unlike any other permanent nursing staff I know at the Hospital, I am no longer attached to any particular ward but am to be moved across all wards to wherever vacancies exist from time to time, much as a casual employee would be’.

17 On or about 23 June, Mr Geoghegan phoned Ms Correy and advised that the Hospital’s position remained unchanged and not only was there no longer a permanent position of two nights per week available to her in the PCU, there was no permanent position available to her in any ward and she would be required to work in whatever ward she was needed on any particular night. Ms Correy claims she was also told that she was no longer guaranteed shifts on set days. That is denied.

18 On 24 June, Mr Geoghegan repeated his earlier advice that there were no part-time positions in the PCU and she would to be placed on a rotating roster. Ms Correy claims he again used the term, ‘floater’. That is denied.

19 On 27 June, Ms Correy wrote again to Mr Geoghegan and reiterated that she found the rotating roster proposal unacceptable.

20 On 29 June, Mr Geoghegan wrote to Ms Correy and repeated his earlier advice that she had been employed to work in ‘[t]he Hospital and not any particular unit’. He wrote, ‘Your preference for a specific unit and shift will be taken into consideration and every effort made to assist your future requests’.

21 On 5 July, Ms Correy’s solicitors wrote to Mr Geoghegan and detailed the discussions between the parties and the voluminous correspondence that had been exchanged. They wrote that Ms Correy considered the floating roster proposal to be unacceptable. They pointed out that due to ‘physical and emotional trauma’ she was unable to work in Aged Care on an ‘ongoing basis’. They explained that, ‘[i]t may cause our client ongoing and unacceptable levels of distress and anxiety if she must work in [that] Unit’. They advised that Ms Correy would be unable to work until she is able to return to her pre-maternity leave role or provided with a suitable alternative role. They alleged that the Hospital’s conduct was discriminatory.

22 In reply, Mr Geoghegan rejected the accusation of discrimination. He wrote, ‘Ms Correy has rarely been asked to work in the ACPNU [Aged Care Psychiatry and Neurosciences Unit]. I will note that, to date, Ms Correy has not submitted a formal request regarding her objection to working in this area.’

23 On 27 July 2005, Mr Geoghegan wrote to Ms Correy and advised that in the roster period, 31 July 2005 to 30 August 2005, she had been rostered to work 10 shifts of which none were in PCU and eight were in Aged Care Psychiatry. The following day he recalled that roster and advised that now all but one shift would be in Aged Care Psychiatry.

24 In cross-examination, Mr Geoghegan said that while Ms Correy had indicated that she found it ‘[u]ntenable to work in that area on a regular basis’, he said that it was his belief that by the time the roster period commenced she probably would have been working in another area.

25 Mr Geoghegan said he would usually try to accommodate a request such as that made by Ms Correy not to work in Aged Care Psychiatry. His evidence was that he had no reason to doubt that Ms Correy felt unable to work in that Unit.

26 Mr Geoghegan claimed that the Hospital’s Executive Director, Jon Anderson, had issued an instruction to stop negotiating with Ms Correy after receipt of the ‘solicitor’s letter’. He said after that, ‘we [nursing services] had nothing to do with it’. It was his belief that the matter was then taken over by Mr Anderson ‘and beyond’.

27 Ms Correy did not return to work at the Hospital after taking maternity leave in 2004/2005.

Complaints of Discrimination

28 Ms Correy asserts that the Hospital’s decisions not to roster her to work in the PCU and offer her regular shifts constitutes unlawful discrimination on the grounds of carer’s responsibilities, (s 49V(2) of the Anti Discrimination Act 1977 (the Act)) and sex, (s 25(2) of the Act).

29 To succeed in her complaints which are cast as allegations of ‘direct discrimination’ (ss 49T(1)(a) and 24(1)(a)), Ms Correy must, on the balance of probabilities, establish, that:

First, that the conduct complained of, fell within one or more of the substantive provisions of the Act, i.e. it represented a change in a term or condition of her employment, denied or limited her access to a benefit or subjected her to a detriment (ss 49V(2) and 25(2)).

Second, that in the same or similar circumstances, the Hospital would have treated a male EN or an EN without family responsibilities more favourably (differential treatment); and

Third, if so, that one of the reasons for any less favourable treatment was ‘because of’ Ms Correy’s gender or her responsibilities as a carer (causation).

30 In determining whether Ms Correy has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. (See the remarks of Dixon J in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361-362. See also Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3.)

Discrimination on the Grounds of Carer’s Responsibilities

Preliminary Issue: Inability to Comply

31 It is convenient to first dispose of an issue raised by the Hospital, namely the relevance of Ms Correy’s ability to meet her carer’s responsibilities had she worked under the rosters offered to her on her return from leave.

32 The Hospital argues that Ms Correy’s complaint is miscast, as her insistence that she work in the PCU was, on her admission, unrelated to her responsibilities to care for her children. It points to Ms Correy’s concession that those responsibilities could have been met regardless of which Unit she was rostered to work. Put simply it contends that under the new roster arrangements she would have been just as able (or unable) to meet her responsibilities to her children than had she been returned to the PCU. It argues that the claim, that Ms Correy’s concern was her carer’s responsibilities, was never her ‘actual concern’ but a construction of her lawyers’.

33 This argument in our view is misconceived. While an inability to comply with the offending requirement or condition imposed by the alleged discriminator is an essential ingredient in a complaint of ‘indirect discrimination’, no corresponding element exists where ‘direct discrimination’ is alleged. Under the latter the complainant must establish differential treatment and causation. They are not also required to establish an inability to comply with the offending requirement. This means it is not necessary for Ms Correy to establish that because of the Hospital’s decision not to return her in the PCU she was unable to meet her responsibilities to care for her children.

Change in terms or conditions of employment?

34 As a starting point, Ms Correy must establish that the offending decision falls within one of the substantive provisions of the Act. She contends that the Hospital contravened s 66 of the Industrial Relations Act 1966 (the IR Act) and, as a consequence, the terms of her employment were varied without her consent. If correct, that conduct would be caught by s 49V(2)(a) of the Act.

35 It is asserted for Ms Correy that the Hospital did not return her to her ‘pre-maternity leave position’ and, in so doing, contravened s 66 of the IR Act. She claims that the position she was offered, namely to work on a ‘rotational basis’ across the four wards of the Hospital, on an as-needs basis, represented a material change to the position she held before she took leave.

36 The Hospital argued that from first to last Ms Correy’s ‘position’ was that of ‘EN’ (enrolled nurse) and not as she asserted, ‘EN – Palliative Care Unit’. It claimed that she had always been employed on a ‘rotational basis’. It argued that it had fully complied with its obligations under s 66 and had offered Ms Correy the right to return to her pre-maternity leave position — that is, as an EN at the Hospital.

37 It contends that whatever Ms Correy may say about her work being in Palliative Care, and whatever may be written on a duty statement, it is apparent that she was not ‘formally appointed’ to a position in the Palliative Care Unit.

38 To put the issue of Ms Correy’s ‘pre-ML position’ in context, it is first necessary to identify the express, and any implied, terms of her contract of employment with the Hospital.

39 In 1996, shortly after graduating as an EN, Ms Correy wrote to the Hospital and applied to work as an EN. She wrote ‘My working preference is with palliative care, working night duty, any night’. On Ms Correy’s account, when Mr Geoghegan informed her that her application had been successful, he said ‘We would like to offer you a position in palliative care. The position requires you to work Monday to Thursday on Night Shift as we have another EN who works the weekends.’ Mr Geoghegan has no recollection of any such discussion.

40 Before commencing in late 1996, Ms Correy was issued with a document headed ‘Statement of Duties’ which described her ‘Title’ as ‘EN’. Under the heading ‘Qualifications/experience’ was written:

The position requires that you:

Hold a current practicing certificate

Have an interest in the following areas of clinical practice:

Palliative care

Mental Health

Aged Care

Medical Rehabilitation.

41 Under the heading, ‘Position summary’, was written: ‘To provide effective and efficient nursing care to individual patients under the directions and guidance of the registered nurse’. It went on to detail the duties in broad and generic terms, for example, ‘Assist in the maintenance of ward stock’. No mention was made of palliative care or any other speciality.

42 In 2002, Ms Correy was issued with an updated Statement of Duties. Next to the word ‘Title’ was written ‘EN - Palliative Care Unit’ and under ‘Award Classification’ was written ‘EN’. Except for the reference to the PCU, there was no material difference with the 1996 duty statement.

43 Ms Correy’s personnel file was tendered in these proceedings. It revealed that the Hospital’s records, many dating back to her commencement, consistently refer to her ‘Department’ or ‘Area’ as the PCU. For example a ‘Public Holiday and Extra Leave election’ form issued on commencement identified Ms Correy’s ‘Department’ as ‘Palliative Care’.

44 Tabled in these proceedings were the PCU rosters covering the period before, during and after Ms Correy’s 2004/2005 maternity leave. Throughout that period Ms Correy’s name appeared on the PCU roster with a notation that she was on leave.

45 Mr Geoghegan’s evidence was to the effect that no member of the Hospital’s nursing staff held a position in any particular Unit. He could not explain how the reference to Ms Correy’s title ‘EN-PCU’ came to appear in her 2002 statement of duties and thought it was probably an ‘administrative oversight’. He asserted that the reference in other documents to Ms Correy’s Department being the PCU was there for administrative convenience.

46 Legislative provisions Part 4 of the IR Act, in which s 66 is to be found, deals with parental leave. It provides that an employee is entitled to a total of 52 weeks unpaid parental leave in connection with the birth or adoption of a child. It also prescribes the circumstances where leave can be cancelled or varied.

47 Section 66 makes it an offence not to return an employee to the position they held before taking parental leave. The word ‘position’ is not defined in Part 4 or the Act itself. For convenience we set out the provision in full:

Return to work after parental leave

(1) An employee returning to work after a period of parental leave is entitled to be employed in:

(a) the position held by the employee immediately before proceeding on that leave, or

(b) if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave — the position held immediately before commencing that part-time work or less regular casual work, or

(c) if the employee was transferred to a safe job under section 70 before proceeding on maternity leave — the position held immediately before the transfer.

(2) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.

(3) This section extends to a female employee returning to work after a period of leave under section 71 (Special maternity leave and sick leave).

(4) An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.

Maximum penalty: 100 penalty units.

(5) In this section, a reference to employment in a position includes, in the case of a casual employee, a reference to work for an employer on a regular and systematic basis.

Note: An employee returning to work after parental leave may also have an entitlement to work part-time under an industrial instrument or a part-time work agreement under Part 5.

48 Section 69 is also relevant:

(1) A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).

(2) Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.

49 Meaning of ‘position’ It is apparent that the word ‘position’ is capable of having more than one meaning. The Macquarie Dictionary, Fourth Edition, defines it to mean ‘a post of employment: a position in a bank’. The Oxford English Dictionary, Second Edition, gives it a similar meaning ‘A post as an employee; a paid office, a job’.

50 The operation of s 66 was considered by the Full Bench of the NSW Industrial Commission in St Vincent's Hospital Sydney Limited v Barbara Isabella Harris [1998] NSWIRComm 235.

51 Ms Harris had been the Director of St Vincent's childcare centre prior to taking maternity leave in 1996. She requested permission to return early from leave. St Vincent’s agreed, on the understanding that for the balance of her leave, Ms Harris would not work as Director as her temporary maternity leave replacement was still engaged, but instead would undertake a review of the Centre’s budgets and policies. Ms Harris agreed that the exact date of her return to the Director’s position would depend upon when that review was completed.

52 Ms Harris became unhappy with that arrangement. While on sick leave she asserted that she had a right to return to the Director’s position. The review at that stage had not been completed.

53 On appeal the Full Bench found there had been no breach of s 66. In reaching that decision the Full Bench had regard to the fact that Ms Harris had agreed to undertake special projects as a condition of early return and that St Vincent’s had agreed to allow Ms Harris to return as Director once the review was completed.

54 It commented:

The entitlement to be employed in the ‘position’ held by the employee immediately before proceeding on leave comprehends the rank and status of the position as well as the tasks performed in the position. What the rank and status of a particular position is, will usually be able to be ascertained from the employee’s contract of employment. In this case the contract indicated that Ms Harris’ rank and status was that of the director of the centre, attracting certain salary and conditions.

55 The Full Bench went on to state:

We accept that in a particular case the conduct of an employer upon an employee’s return from maternity leave may be such that the statutory obligation to return the employee to her former position has not been met, (even though the employee returned to a position with the same title and remuneration as that held prior to dismissal) and that this compelled or unduly influenced a resignation. We also accept that if established, such a situation could be open to attack not only as a breach of the statutory obligation imposed by s 66 of the Act, but also as a dismissal or threatened dismissal under s 84 of the Act. In our view that situation was not established on the evidence in this case.

56 The meaning of the word ‘position’ was considered by the High Court in Qantas Airways Limited v Christie (1998) 193 CLR 280. That case concerned an appeal from a decision of the Full Court of the Industrial Relations Court of Australia that Qantas had unlawfully terminated a pilot on the grounds of age. Section 170DF of the Industrial Relations Act 1988 (Cth) provided:

(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

...

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(2) Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position.

57 Under Qantas’ retirement policy pilots were obliged to retire before they attained the age of 60. That policy had been introduced to comply with the Convention on International Civil Aviation, which provided that parties to the Convention could not permit a pilot who had attained the age of 60 to act as a pilot in command of an international air service. The High Court held that it was an inherent requirement of Mr Christie’s ‘position’ that he be able to fly to any part of the world as rostered and not just on those routes where no age restriction applied.

58 McHugh J (at [71]ff) drew a distinction between ‘a particular job’ and ‘a particular position’. He noted (at [72]) that ‘a person’s job is… primarily concerned with the tasks he or she is required to perform… A person’s position, on the other hand, is primarily concerned with the level or rank from which he or she performs those tasks. Position concerns rank and status.’ While he noted that often there is little practical difference between the requirements of a job and the requirements of a position, sometimes there is. For example, he observed that it is a requirement of the position of President of the United States that the President be native-born, whereas that is not a requirement of the job of President.

59 Gummow J, focussing on the position of the respondent, Captain Christie, said (at [104]) that his position ‘was constituted by the tasks and responsibilities which made up his duties and by the rights conferred upon him under his contract of employment with Qantas’. He dismissed the suggestion that his position had ‘a distinct existence which differs in quality and kind from the bundle of contractual rights and duties, the further continuation of which is brought to an end by the termination on the initiative of the employer’.

60 Taking the analysis further, Gummow J said (at [106]) the content of the phrase ‘particular position’ is to be found by identifying ‘those tasks and responsibilities which make up the contractual duties of the employee, together with the contractual rights of the employee…’

61 In Thomson v Orica Australia [2002] FCA 939, a decision of Allsop J, the court considered a complaint of unlawful discrimination in which the complainant had returned from maternity leave and had been placed, so it was alleged, in an inferior position to that she had previously held. Allsop J (at [134]) cited with approval a decision of the NSW Industrial Relations Commission in Illawarra County Council v Federated Municipal Employees’ Union of Australia (1985) 11 IR 18 and the dicta of Glynn J in that case. Glynn J considered the question of the meaning of ‘former position’ in s 153N of the Industrial Arbitration Act 1940 (NSW). That provision sought to protect women taking maternity leave by giving them a statutory right of return to their ‘former positions’ or, if they did not exist, equivalent positions.

62 His view (outlined at 11 IR 18 [at 20]) was that the legislation provided that the employee returning to work ‘would take up again a discrete set of duties at the same level in the hierarchy of the employer’s organisation and at the same level of salary or wages as she had been so placed and had so received before proceeding on that leave’.

63 Applying that approach, Allsop J considered Ms Thomson’s situation and the proper approach to a policy intended to protect the positions of women returning from maternal leave. He said (at [136]):

[The policy] was intending to convey to someone taking maternity or family leave to which, according to the policy, he or she had a right, that he or she would be coming back to the position previously occupied by him or her, if it were still there, that is he or she would resume the tasks, duties and responsibilities that he or she was previously undertaking and discharging. In Ms Thomson's circumstances, that may not mean dealing with the precisely identical customers, but if, as here, the avowedly temporary employee, Ms Ferro, at the end of the maternity leave of Ms Thomson, was handling substantially the same customers as she had taken over from Ms Thomson (with some additions and subtractions) and doing and undertaking substantially the same tasks, duties and responsibilities in relation to those customers, as was the case, then according to Orica's policy Ms Thomson had a right to have her position (in the sense that I have discussed) back. This is the plain intent of the Family Leave Policy. This approach conforms with the language of the Redundancy Policy and the notion of ‘position’ in the way vacancies were filled. It accords with s 66 of the IR Act. It accords, it seems to me, with a common sense reading of the policy and common sense approach to the social issues to which the policy and s 66 of the IR Act were directed. A difficult factual question might arise in circumstances where Ms Thomson was not allowed to take back from Ms Ferro the tasks, duties and responsibilities that the latter had taken over temporarily, but there was available and being offered a plainly equivalent body of tasks, duties and responsibilities, albeit in respect of different customers. A nice factual question would arise as to whether that was in all the circumstances the same position. However, that is not what occurred.

64 This case seems to raise the very sort of ‘nice question’ about which Allsop J commented. The question raised here is: what were Ms Correy’s terms and conditions of employment? In particular, what tasks and responsibilities did her contract of employment impose upon her and what other contractual rights did she have in relation to where she worked in the Hospital?

65 It would seem to us that it is arguable that Ms Correy did have a ‘position’ in the PCU before taking maternity leave.

66 A number of reasons suggest that this was so. First, while there is evidently some equivalence between the work of all nurses working in any unit of St Joseph’s Hospital, there are also distinctions made by the Hospital. The fact that the Hospital is divided into a number of departments or Units suggests this. Each department has its own specialty: palliative care is not the same as psychiatric care, otherwise there would be no need to distinguish them in any way. Specialists, whether formally trained in the specialty or people who have attained their special skills by experience, are not always interchangeable between specialties except in related and overlapping areas of specialty. It can be inferred from the fact that the Hospital set up different Units that it sought to cater to different needs among different types of patients.

67 Second, if patients in different Units have different needs, it follows that those who seek to meet the most complex or demanding of those needs may require different knowledge, skills, training and experience. It is likely that while there would be common ground among the staff in all departments, the tasks, duties and responsibilities of nurses in all departments are not in all respects the same and that there are likely to be significant differences between them in some respects. It is self-evident from Ms Correy’s complaint that she would not be able to cope in a psychiatric ward due to her experience of domestic violence and that she considered that she lacked a particular capacity for that type of work. She anticipated that it would place different demands upon her from those which palliative care imposed.

68 The Hospital was at pains to point out that the duties ENs were required to perform were common across all Units, citing as examples, administering medication, monitoring patients and assisting them with the activities of daily living. However, this does not mean that the nature or incidence of those duties was identical across all wards. An example given by Ms Correy illustrates this point. Nursing staff in the PCU was regularly called upon to provide emotional support and comfort to patients who were close to death and their families. While nurses working in other Units would also be required to provide support of that nature, it is reasonable to assume as the name palliative care suggests that this situation would be a more regular occurrence in the PCU.

69 This is not to suggest that an EN such as Ms Correy is unqualified or unable to work in any Unit but the PCU or that her skills and experience are not interchangeable but rather to recognise that given the long period she had worked in palliative care it would be expected that she would have developed as she claims, specialised knowledge, skill and experience.

70 Third, while it may be that no particular position was promised to Ms Correy when she was first employed at St Joseph’s, she had been placed in and allowed to work in the PCU for nearly a decade before the rotation about which she complains. The Hospital not only allowed her to gain the experience to become, in effect, a specialist in palliative care, it accepted the immeasurable benefits of her experience in that Unit. It also allowed Ms Correy to build up an expectation that she would not be rotated out of the Unit. Her tasks, duties and responsibilities became (whether formally defined as such or not) those of a specialist palliative care nurse.

71 It follows from these considerations that although the Hospital may not have formally conferred a position upon Ms Correy in the PCU when the employment contract was first formed, it had by its own conduct, effectively created such a position for her over time. In our view, all other things being equal, she was, therefore, entitled to return to it by the operation of s 66.

Section 66 modified by the Award?

72 The Hospital argues that s 66 is to be read in light of the relevant Award under which Ms Correy was employed namely, the Public Hospitals (Nurses) State Award. Clause 30 of that Award restates s 66 but goes on to provide at cl. 30 (xiv) that an employee returning from maternity leave may apply for part-time work and that that application is to be dealt with under the terms of the Department of Health Circular 99/66, Policy Directive, ‘Managing Parental Leave for Employees in the NSW Health System’ issued in January 2005 (‘the Policy’).

73 The Hospital contends that as Ms Correy had sought a reduction in her hours of work, under the Award and the Policy she could legitimately be returned to work in a different position, even if it were thought that she had a ‘position’ in the Palliative Care Unit.

74 In our view the provision in the Award to which we have been referred, has no application to the facts of this case. Headed ‘Return for less than full-time hours’, cl 30 (xiv) provides:

Employees may make application to their employer to return to duty for less than the full time hours they previously worked by taking weekly leave without pay. All such applications are to be considered having regard to the terms of the Department of Health Circular No 99/66 dated 30 July 1999, as amended from time to time.

Salary and other conditions of employment are to be adjusted on a basis proportionate to the employee’s full-time hours of work; i.e. for long service leave the period of service is to be converted to the full-time equivalent, and credited accordingly.

It should be noted that employees who return from maternity leave under this arrangement should remain full-time employees. Therefore the payment of any part-time allowance to such employees does not arise.

75 The term ‘full-time hours’ is not defined by the Award, however, it is apparent that it is used to refer to employees engaged to work ‘ordinary hours’ which, in the case of enrolled nurses, is not to exceed 38 hours per week: cl. 4(ii)(a). Clause 25 defines a ‘permanent part-time’ employee as a person permanently appointed to work a specified number of hours less than those prescribed for a full-time employee.

76 From the above it would seem that the clause relates to full-time employees who apply to work reduced hours on return from maternity leave. This is made clear from the opening words, ‘Employees may make application … to return to duty for less than the full time hours they previously worked...’ The final paragraph, which provides that an employee who elects to work part-time hours on return, nevertheless remains a full-time employee and is not entitled to any part-time allowance, in our view puts beyond doubt that the clause does not extend to part-time employees such as Ms Correy.

77 Even if, is as the Hospital contends, the clause covers part-time employees, it would not operate in our view to free the Hospital from its obligation to return Ms Correy to her pre-maternity leave position. The Policy states that ‘where possible’ the returning employee should be returned to their ‘substantive position’ and that this outcome should be regarded as ‘sound management practice…and a gender equity strategy’. Recognising, that ‘issues may arise about the balance between reduced hours and continuity in management’ the Policy goes on to suggest a number of options, such as job sharing and the rearrangement of work routines, to address these problems. The Policy urges managers to consider all requests on a case-by-case basis and provides that where a request to work reduced hours is rejected the employee be advised of their appeal/review rights.

78 Here there is no evidence that Ms Correy’s request to reduce her hours played any role in the Hospital’s decision not to return her to the PCU. When Mr Geoghegan asked the Nurse Unit manager of the PCU, Ms Barbara Cocks if Ms Correy’s request for reduced hours could be accommodated, no mention was made that this could thwart Ms Correy’s return to the PCU. She was given no indication that that request could result in her not being returned to the PCU. As Ms Cocks conceded, when the request for reduced hours was made she was aware that it might not have been possible to accommodate Ms Correy in any capacity in the PCU as the full complement of staff was then in place. If the Hospital’s interpretation is correct, once a request for reduced hours is made, not only is the employer relieved from any obligation to endeavour to return the employee to their ‘substantive position’ they are under no obligation to inform the employee that this might occur. That interpretation in our view sits at odds with a fair reading of the two documents.

79 For these reasons, we believe the decision not to return Ms Correy to the PCU constituted a breach of s 66 of the IR Act. We are also not satisfied that cl 30 (xiv) of the Public Hospitals (Nurses) State Award or the Policy modifies the operation of s 66 in the way that the Hospital has argued.

Summary

80 If follows that the decision to not return Ms Correy to the PCU constitutes a variation to an implied term of her contract of employment, namely that the Hospital would comply with all relevant industrial laws. For these reasons, in our view, the conduct complained of falls within the scope of s 49V(2)(a) of the Act.

Was Ms Correy subjected to a Detriment?

81 In case we are wrong, we will now consider whether the Hospital’s conduct constitutes a ‘detriment’ within the meaning s 49V(2)(c).

82 In Bonella v Wollongong City Council [2001] NSWADT 194 (at [50]) the Tribunal endorsed the view that the term ‘detriment’ in the context of the sex discrimination equivalent of s 49V(2)(c) ought be given the same meaning as given to the term in the context of section 50 of the Act (see e.g. Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSWADT 44) namely, ‘loss, damage or injury’. Having regard to those cases, the Tribunal in Bonella (at [41]) thought that the detriment suffered by the complainant must ‘be real and not trivial’ and ‘whether something constitutes a detriment must be determined objectively and not subjectively’.

83 Adopting this approach, it is therefore not determinative whether, as the Hospital asserts, it had a ‘right’ to change Ms Correy’s roster arrangements. Rather the questions to be posed are these: did the post-ML roster arrangements subject Ms Correy to a real and not trivial loss, and, if so, would it be characterised as such by a reasonable person?

84 It is not open to serious challenge that the decision not to return Ms Correy to the PCU represented a material change to the arrangements that had been in place for close to a decade. While Mr Geoghegan denies using the term ‘floater’ to describe Ms Correy’s post-ML ‘position’ there can be little doubt that the Hospital intended to roster her at least for the foreseeable future upon her return, on a relief or ‘fill-in’ basis in whichever Unit a vacancy arose. The evidence is less clear about whether Ms Correy would continue to be rostered on set days as she had been before taking leave in 2004.

85 Ms Correy nominated intangible factors such as loss of job satisfaction, lack of collegiality, loss of specialist skills and lack of certainty in rostering arrangements as to why she objected to the Hospital’s decision.

86 While we accept that she believed that the decision to change her rostering arrangements represented a real loss she must also establish that a reasonable person would have shared that view. The evidence reveals that there was little staff movement in or out of the PCU. Of the six nursing staff working in the PCU in mid-2005, all but one, namely the nurse engaged to work in the Unit after Ms Correy went on leave, had worked there for lengthy periods, two for over a decade. It is telling that one of the stated reasons given by the Hospital’s managers for not returning Ms Correy to the PCU is that it would have been ‘unfair’ to existing staff.

87 While the Hospital’s decision did not result in a change in Ms Correy’s rate of pay or other entitlements, it nonetheless constituted a ‘loss’ as measured against the intangibles benefits of employment, such as job satisfaction and certainty in rostering. That loss in our view is real and not trivial. Objectively viewed, we believe that by placing Ms Correy on a rotational roster the Hospital had subjected her a ‘detriment’ within the meaning of s 49V(2)(c).

88 Given this finding, it is unnecessary to determine whether the conduct complained of might also constitute ‘a denial of/limitation of, a benefit associated with employment’ (s 49V(2)(b) of the Act).

Less Favourable Treatment

89 The offending treatment identified by Ms Correy was the decision not to return her to the PCU. Section 49T(1)(a) requires that treatment to be compared with that afforded to an actual or hypothetical EN without ‘responsibilities as a carer ’ who was, or would be, in the same, or not materially different circumstances to Ms Correy. This task requires the identification of the relevant circumstances.

90 The majority in Purvis v New South Wales (2003) 217 CLR 92 at pp 160, 161 described the approach to be taken, in this way:

In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) [ Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

The circumstances referred to in s 5(1) 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 there 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 that person’s disability…

91 In written submissions it was argued for Ms Correy that her treatment should be compared to that afforded to colleagues who had been returned to the PCU after extended periods of leave. These comparators support Ms Correy’s claim that it was common practice for staff to be returned to their ‘old job’ after taking leave. However, none in our view, constitute an appropriate comparator as they do not include ‘all of the objective features’ surrounding the offending treatment. Relevantly, none took the length of leave taken by Ms Correy. The longest period taken was three months. It goes without saying that there is a material difference between three and 12 months leave.

92 The absence of an actual comparator is not fatal to Ms Correy’s claim providing she can establish that it is more probable than not that the treatment she was afforded was less favourable than that that would have been afforded to an appropriate hypothetical comparator.

93 If the hypothetical comparator used was say an EN who had taken 12 months leave to go hiking in the Himalayas or pursue a course of study we suspect the Hospital would have subjected them to the same treatment it afforded Ms Correy. However, that comparator does not in our view, import ‘all of the objective features’ needed to make a proper comparison. Missing is the objective feature of a statutory right to return to the pre-leave position. Examples of people who have a statutory right to return to their ‘pre-leave position’ might include a victim of crime returning after a period of ‘victim’s leave’ (s 72 AF of the IR Act,) or, a person returning to work after serving on a jury (s 69A of the Jury Act 1977). While the length of leave a juror or victim of crime might be required to take would generally be shorter than that taken by Ms Correy, it is not inconceivable that a criminal trial might run for that period especially where multiple defendants are involved. (See for example Regina v Ronen & Ors [2005] NSWSC 320 where the jury sat for about 10 months.)

94 This issue was not addressed in written submissions and we therefore invited comment on our preliminary view that the following might constitute a more appropriate comparator:

A male enrolled nurse/ an enrolled nurse without carer’s responsibilities who, with the Hospital’s consent, took twelve months leave of absence from their employment and wished to return to his/her pre-leave position and had a statutory right to do so.

95 Ms Correy consented to the use of this comparator. The Hospital on the other hand argued that it was flawed. It repeated that Ms Correy’s pre-ML position was not ‘in the PCU’ and therefore no argument could be said to arise about a contravention of s 66. It then went on to reiterate that s 66 had been modified by the operation of the Award. It contended that a more appropriate basis for comparison would be a person with an award entitlement to be provided with work, ‘where possible’. The Hospital proposed the following comparator:

An enrolled nurse who, with the Hospital’s consent, took twelve months leave of absence from their employment and wished to return to their pre-leave position and had a statutory and Award right to be given work, where possible in their pre- leave position .

96 For the reasons as given about the operation of s 66 and its relationship with the Award, we do not agree that the above constitutes a more appropriate comparator.

97 In our view, the hypothetical comparator we have proposed incorporates, as the High Courts reminded us is necessary, all of the relevant objective features surrounding the offending treatment.

98 The issue therefore to be determined is: Would the hypothetical comparator be treated differently to Ms Correy in the same circumstances or circumstances that were not materially different?

99 In the absence of any evidence that the Hospital routinely failed to comply with its legal obligations we think it more probable that not that the comparator would be returned to their pre-leave position.

100 For these reasons we are satisfied that less favourable treatment has been established.

Causation

101 The Hospital claims that Ms Correy’s responsibilities to care for her children played no role in its decision not to return her to the PCU. It claimed that throughout the protracted negotiations concerning her return, she never once raised the issue. It says there is a simple explanation why it acted as it did. That is, at the time of Ms Correy’s scheduled return all shifts in the PCU had been allocated and therefore her shift preferences could not be accommodated, at least for the time being.

102 Ms Correy submits that the Hospital took advantage of her absence to prevent her returning to work in the PCU on a regular or even semi-regular basis. She submits that it is open to the Tribunal to infer on the basis of her evidence about the animosity directed towards her before her last period of maternity leave (Exhibit A1, paragraph 34; Exhibit A2, paragraphs 37 & 38) that this factored into the decision of the Hospital to remove her from her position in the PCU.

103 It is necessary to identify those people involved in making the decision about Ms Correy’s roster.

104 Rostering Decisions The practice within the Hospital was for the Nurse Unit Manager (‘NUM’) allocated to each Unit to prepare a draft roster. That draft was submitted to ‘Nursing Administration’, which in turn, submitted it to Mr Geoghegan for final approval.

105 While Ms Correy was on maternity leave, NUM, Barbara Cocks was responsible for preparing the first draft of the PCU roster. On the two previous occasions Ms Correy had taken ML, her shifts had been ‘covered’ by casual and/or agency staff. This time, Ms Cocks decided to ‘transfer’ a full-time EN who, up to that time had been working day shift, to the PCU to work nights. This meant that all night shifts available to ENs in the PCU were ‘covered’, the other two being ‘filled’ by EN, Melissa Palmer, who had been working in the PCU for a number of years. The five-day EN had not been advised that was she replacing a ‘ML position’.

106 On Ms Cock’s account, sometime after March 2005 she played no further role in placing or attempting to place Ms Correy within the PCU or indeed any other ward as, on her understanding that role had been taken over by Ms McCarthy. She says that she had been aware in broad terms that negotiations were underway between the Hospital and Ms Correy and had been waiting further advice before doing anything about putting Ms Correy back on the roster.

107 Ms Correy claimed that there was considerable animosity directed towards her before her last period of maternity leave and that this factored into the decision not to return her to the PCU. Ms Correy claims that after announcing she was pregnant there was a marked change in the way she was treated by some staff. She cited, as an example, being pressing by Ms Cocks to confirm when she intended to commence leave. She claimed that she had overheard discussions amongst staff about her taking ‘yet another’ period of leave and comments such as, ML being ‘a rort’. She nominated not receiving any acknowledgement on the birth of her child in the form of a best wishes card, or the like, as a further example of the iciness that had crept into her relationship with Ms Cocks and other staff. She claimed it was common practice for staff of the Unit to organise a message of support when a member of staff was sick or had a child.

108 Ms Cocks claims to have no knowledge of the negative comments about which Ms Correy complains and denies making such remarks herself. In addition, she denies pressing Ms Correy for leave dates or referring to her intended leave in derogatory terms. She disputes that anything could be read into the Unit’s failure to send Ms Correy a card which on her account was an oversight.

109 Findings and Conclusions When the decision was made to transfer the five-day EN to the PCU, it was an odds-on certainty that unless another member of the Unit moved on, Ms Correy would not be returning to palliative care . Those odds were further reduced by the Hospital’s failure to take any steps to see if Ms Correy’s request could be accommodated. When Hospital management became aware in March 2005 that there was no ‘spot’ for Ms Correy in the PCU, no steps were taken to see if Ms Correy’s ward preference could be accommodated. Ms Cocks, the frontline person charged with the responsibility for preparing the PCU roster was not consulted about how that might be achieved. Nor were any enquiries made of PCU staff to see if they were prepared to consider a move to other wards or shifts. While the Hospital’s witnesses claimed that it was their intention to look at the roster closer to the day of Ms Correy’s return as ‘anything could happen’, there is no evidence that anyone did so.

110 The evidence indicates that the reason for the post-March 2005 inaction was management’s view that Ms Correy had no moral or legal entitlement to any position within the PCU and that the interests (or presumed interests) of incumbent staff trumped those of a staff member returning from leave.

111 While the Hospital’s witnesses repeatedly declared that no one ‘owned’ any particular shift, the evidence indicates that in most cases, most of the time, rostering arrangements went undisturbed and, as a consequence, nursing staff were guaranteed a degree of certainty in where and when they would be rostered. Ms Correy’s employment history up to that time and the low churn rate among other PCU staff is consistent with assessment.

112 While management inaction accounted in part for the ultimate decision not to return Ms Correy to the PCU, the genesis of the problem lay with Ms Cocks’ decision to appoint an EN to work five nights while Ms Correy was on leave. Ms Correy claims that decision was motivated in part by Ms Cocks’ animosity towards her because of taking ‘yet another’ period of ML. Neither Ms Cocks nor Ms Correy can point to any evidence to support their conflicting account of alleged staff animosity towards Ms Correy. While we accept Ms Correy’s evidence that her announcement was not universally welcomed, we could not be satisfied, to the requisite standard, that Ms Cocks shared that view or, if she did, that it played a role in her decision.

113 Nor, in our view, does the evidence support a finding that any of the decision makers who played a role in the rostering decisions concerning Ms Correy were intent on ‘punishing’ her because she had responsibility to care for her children or thought she was not up to the job because of those responsibilities.

114 Can it therefore be said that one of the reasons the Hospital acted as it did was ‘on the ground of’ Ms Correy having responsibilities as a carer? That reason need not be the dominant or substantial reason (s 4A of the Act).

115 The majority in Purvis said that in a determination of causation the ‘central question will always be’ (at p 163):

[w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.

116 McHugh and Kirby JJ put the question to be asked in this way (at pp 142, 143):

[w]hile it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

117 Their Honours went on (at p 143) to endorse the approach adopted by Lockhart J in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 327 where his Honour said the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground.

118 Applying those principles, it is apparent that the absence of ‘motive or purpose’ on the part of the Hospital’s decision-makers is not fatal to Ms Correy’s complaint. The question that must be answered is simply: was one of the reasons for Ms Correy being treated ‘less favourably’, her responsibilities as a carer?

119 It is instructive at this point to look carefully at the definition of ‘responsibilities as a carer’. Found at s 49S, the definition includes a reference to ‘a person’s responsibilities to care for or support any child of the person who is wholly or substantially dependent on the person or in need of care or support’: s 49S(1) (a). A ‘person’s responsibilities’ is a reference to responsibilities:

(a) that the person has, or

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

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

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

120 It is not in issue that Ms Correy had ‘responsibilities as a carer’ or that the reason she took maternity leave was to care for her infant child. It goes without saying that that child was both substantially dependent on Ms Correy and in need of her care and support.

121 Section 49S in effect acts as a de facto ‘characteristic extension’ and extends the reach of Part 4 B of the Act. It stands in addition to s 49T (2). The taking of carer’s leave was part and parcel of Ms Correy discharging her responsibilities to care for her infant child. The taking of leave and those responsibilities were inextricably linked.

122 Ms Correy’s work history and that of her PCU colleagues makes it clear that as a general rule the Hospital permitted staff to stay in the one ward unless they expressed a preference to move on. Had Ms Correy not been absent throughout 2004 and 2005, the need to fill her ‘roster spot’ and the consequent ‘musical chairs’ scenario that confronted Hospital management in March 2005 would simply not have arisen. It follows, therefore, that there was a causal link between Ms Correy’s responsibilities to care for her infant child and the Hospital’s ultimate decision not to return her to the PCU. That the Hospital’s officers might not have intended that to be the consequence of their actions or have been prejudiced against her because of those responsibilities is, not determinative. Ms Correy’s responsibilities as a carer were nonetheless, in our view, one of the reasons for the decision not to return her to the PCU.

123 For these reasons, we conclude that one of the reasons for Ms Correy’s ‘less favourable’ treatment was her ‘responsibilities as a carer’. Her complaint of discrimination on the ground of her ‘responsibilities as a carer’ is therefore substantiated.

B. Discrimination on the ground of sex

124 Ms Correy also contends that the Hospital discriminated against her on the ground of sex. Applying the reasoning set out above, the conduct complained of is caught by paragraphs (a), (c) and possibly (b), of s 25(2) of the Act.

125 For the purpose of assessing ‘less favourable treatment’ it seems to us that the appropriate comparator would be that adopted by us at paragraph [94] of these reasons and modified by substituting the words ‘an enrolled nurse without carer’s responsibilities’ with ‘a male enrolled nurse’. Applying this comparator, we are satisfied that less favourable treatment is established.

126 However, without recourse to the extension characteristic provided for in the test of sex discrimination (s 24(1A), which was not argued in this case, the evidence does not support a finding that one of the reasons for Ms Correy’s less favourable treatment was her sex.

127 For these reasons the complaint of sex discrimination must be dismissed.

C. Complaint of Victimisation

128 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out what it described as the four-fold elements of a complaint of victimisation.

Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.

129 The Tribunal has consistently followed this approach and we intend to do so in this decision. (See for example Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 at [41]; Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at [45] and Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44.)

130 In short the complainant must show that he or she experienced something detrimental as a consequence of having made a complaint or brought proceedings under the Act; or as a consequence of having given evidence in relation to such proceedings; or as a consequence of having done any other thing in relation to the alleged discriminator or anyone else in relation to the Act. It is not necessary that the complainant also show actual discrimination against him- or herself or anyone else in relation to the relevant proceedings or the complaint.

131 A Detriment? Ms Correy identifies the following as the alleged detriment to which she was subjected:

i. The decision to roster her in ‘Geri. Psych’.

ii. The continuing decision not to place her back in the PCU or in a position (rather than as a ‘floater’) whereby she could reasonably accommodate her carer's responsibilities.

132 Ms Correy’s unchallenged evidence was that she found working in ‘Geri. Psych’, a locked ward, to be emotionally disturbing because she had experienced a history of domestic violence. She claimed that on the rare occasions that she had worked in that ward, she felt ill and became extremely distressed. That claim is consistent with what she had told Ms Cosgrove well before any dispute over her return to work. Objectively assessed, by rostering her to work in ‘Geri. Psych.’, the Hospital had subjected Ms Correy to a detriment.

133 Similarly, for the reasons as given, by refusing to return her to the PCU the Hospital subjected Ms Correy to a detriment.

134 Why was Ms Correy rostered to work in Geri. Psych? To succeed in her complaint of victimisation, Ms Correy must establish that the Hospital rostered her in Aged Care Psychiatry and/or decided not to return her to the PCU ‘on the ground’ that she had done, or intended to do, one of the things set out in paragraphs (a) to (d) of s 50(1), or alternatively, suspected that she might do one of those things.

135 The meaning of the words ‘on the ground of’ in the context of s 50(1) of the Act have previously been the subject of detailed consideration by this Tribunal. (See for example, Sivananthan v Commissioner of Police, New South Wales Police Service at [43] and Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 at [167]) For the purpose of this decision we adopt the test set out in Sivananthan v Commissioner of Police, NSW Police Service (at [43]), ‘it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of … discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred’.

136 A number of people within the Hospital were aware that Ms Correy had strong objections to working in this Unit. Night manager, Patricia Cosgrove, knew of Ms Correy’s concerns, as did Ms McCarthy whom Ms Correy informed on 7 June 2005. Ms McCarthy had briefed Mr Geoghegan. In a letter to Mr Geoghegan dated 16 June 2005, Ms Correy wrote:

I have previously mentioned to Kathy McCarthy of my concerns about working in a locked ward, as a result of a previous domestic violence circumstance that I have been subjected to. On occasions when I have had to work in this Unit for a shift I have found it extremely distressing and on occasions have been physically ill. It would not be tenable for me to have to work in such an environment on a regular basis.

137 On 5 July, Ms Correy’s solicitors wrote to Mr Geoghegan and detailed the discussions between the parties and the voluminous correspondence that had been exchanged. They pointed out that due to ‘physical and emotional trauma’ Ms Correy was unable to work in the Aged Care Psychiatry on an ‘on-going basis’. They wrote:

The Hospital’s attempts to have our client work in the Aged Care Psychiatry and Neurosciences Unit on an ongoing basis despite her informing you that she had previously suffered serious physical and emotional trauma, which may cause further psychological injury, is a concern in relation to the Hospital’s duty to provide our client with a safe environment of work.

138 In reply, Mr Geoghegan rejected the accusation that Ms Correy had been discriminated against. He wrote, ‘Ms Correy has rarely been asked to work in the Aged Care Psychiatry and Neurosciences Unit. I will note that to date Ms Correy has not submitted a formal request regarding her objection to working in this area’.

139 On 27 July 2005, Mr Geoghegan wrote to Ms Correy and provided the August roster. Of the 10 shifts allocated, none were in the PCU and eight were in Aged Care Psychiatry. The following day Mr Geoghegan wrote and advised that that roster contained an error. Under the amended roster all but one shift was in Aged Care Psychiatry.

140 The decision to roster Ms Correy in the Aged Care Psychiatry Unit could not be seen as simply the Hospital refusing to budge from an entrenched position. Even if no vacancy existed in the PCU, it did not follow that the only choice available to the Hospital was the Aged Care Psychiatry Unit as there were two other Units where Ms Correy could have been rostered.

141 To better understand the basis of this decision, it is necessary to identify those involved in preparing the rosters that saw Ms Correy rostered in Aged Care Psychiatry. When they were drawn up, Ms Cocks’ involvement had ended. While Ms McCarthy in her capacity as Acting Director of Nursing signed off on the July roster (Mr Geoghegan was on leave at the time), on her account once lawyers became involved her involvement ceased.

142 Somewhat surprisingly, none of the Hospital’s witnesses could identify who prepared the July and August rosters. Ms Cosgrove and Ms McCarthy denied any involvement, as did Mr Geoghegan. While we accept Mr Geoghegan’s claim that, consistent with his usual role, he had not prepared the August roster, nevertheless on two separate occasions he signed off on a roster, which directed Ms Correy to work in the very ward he knew she believed she could not work in. In cross-examination, Mr Geoghegan conceded that contrary to what was set out in his statement (Exhibit R 1 para. [42]) Ms Correy had requested in writing to be exempted from working in Aged Care Psychiatry. There can be no issue that he knew this when the August roster was distributed: Ms McCarthy had told him so in early June, as did Ms Correy in mid-June and her solicitors some three weeks later. His evidence was that he had no reason to doubt the veracity of Ms Correy’s objection and that he would generally attempt to accommodate requests of this sort.

143 In cross-examination, Mr Geoghegan initially said he ‘could not answer’ why he had signed off on the offending August roster. The following day he said in evidence that the decision had to be seen in context of his letter to Ms Correy, dated 29 June 2005, in which he wrote: ‘Every consideration would be taken in relation to your future requests’. He said it was his belief that closer to the day the roster might have changed and Ms Correy’s request accommodated. He agreed however that Ms Correy had not been told this.

144 Mr Geoghegan proffered as one possible explanation for why he signed off on the August roster Ms Correy’s use of the word ‘regular’ (‘It would not be tenable for me to have to work in such an environment on a regular basis’ [emphasis added]). He went on to concede however that seven out of eight shifts could be seen as ‘regular’.

145 None of the Hospital witnesses in our view have provided a satisfactory explanation for why three rosters were drawn up which saw Ms Correy working in the one ward she had a strong objection to working in. We agree with the argument put for Ms Correy that the Hospital’s argument about her use of the word ‘regular’ is nothing more than an exercise in semantics. Ms Correy and her solicitors had made it abundantly clear on repeated occasions that she had a strong objection to working in a locked psychiatric ward.

146 To succeed in her complaint of victimisation it is not sufficient for Ms Correy to point to the absence of any credible explanation for the decision to roster her in Aged Care Psychiatry. She must also establish that it was because of, or ‘on the ground of’ that she had made and persisted in her allegation of discrimination.

147 The history in this matter makes clear that the Hospital’s managers were aware from early March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. She repeatedly made that accusation throughout the protracted negotiations that ensued. She made it abundantly clear to the Hospital that she would not let the issue rest and consistent with the entry made in his diary in mid June, Mr Geoghegan believed she intended to ‘take the matter further’. No doubt the appearance of Ms Correy’s lawyers on the scene escalated the dispute. It is telling that Mr Geoghegan had been instructed to stop negotiating with Ms Correy not long after correspondence was received from them.

148 There is no direct evidence that any of the Hospital’s decision-makers rostered Ms Correy in ‘Geri. Psych.’ because she made and persisted in her allegations of discrimination. The issue therefore to be determined is: does the evidence taken as a whole support such an inference? Ms Correy’s case against the Hospital is circumstantial. Circumstantial cases are often described as being like cables made of a number of strands. The ultimate question is whether, considering all the evidence that has been presented, do the various strands in Ms Correy’s cable support the inference that it is more likely than not that she was subjected to the detriment she suffered because she had made the allegation of discrimination? In short, does the preponderance of evidence support that hypothesis?

149 One of the more mysterious and, indeed, disturbing features of the case, regarding the Hospital’s role, is that it has proffered no explanation why, after Ms Correy made her complaint, the vast majority of shifts she was offered were in the very ward she found most awkward and distressing to work in. This is particularly disturbing because Ms Correy had made numerous requests to management, that she not be rostered in the particular ward she found difficult; she had provided unambiguous and plausible reasons for those requests, the requests had been received and acknowledged by Management; and specific assurances had been given that her requests would be taken into account.

150 The Hospital has not called any of the witnesses who might reasonably be expected to have the relevant information. An inference that their evidence would not have been of assistance to the Hospital seems irresistible. (See Jones v Dunkel (1959) 101 CLR 298). Of course, an absence of favourable evidence supporting the Hospital does not, of itself prove, and cannot be used as positive evidence to support the applicant’s case. The burden of proof remains upon Ms Correy.

151 In Weissensteiner v The Queen (1993) 178 CLR 217, in a criminal matter, the prosecution alleged that, in a circumstantial case, and in the absence of an innocent explanation from the accused, the jury should draw an adverse inference from all the circumstantial evidence against him. In its comments, the High Court made the point that the failure of the accused to offer such an explanation may permit the jury more comfortably or readily to draw the inference argued for by the prosecution.

152 Weissensteiner has been qualified in criminal cases since 1993, the High Court emphasising in particular the accused’s right to silence, the principle that no adverse inference can be drawn against an accused because of an exercise of the right to silence and the fact that the burden of proof always remains upon the prosecution. However the general principle it expressed – namely that a tribunal of fact may more readily or comfortably draw conclusions against parties who have particular knowledge but who choose not to give evidence of it – seems applicable in a situation such as this. Of course, more than mere suspicion is required. A case of this nature cannot be proven by a conspiracy theory. There must be objective proof capable at law of establishing the suspected or alleged fact.

153 At the very least, the Hospital (if it were the case that it had made efforts to rotate other staff) might have led evidence that it had taken steps that enabled Ms Correy to at least have some time on her preferred ward. As it is the Hospital’s case that staff are rostered at the convenience of the hospital and that nurses are expected to be able to work on all wards and have no special privileges in relation to any particular work positions, there is no particular reason why it could not have sought volunteers to create a space for Ms Correy to work in palliative care or at least to have avoided having her work in the one ward to which she had such strong objections.

154 No such evidence of managing of rosters in that way, seeking ‘win-win’ solutions for the staff, was provided. Nor was there any evidence that others were routinely and regularly rotated through wards they did not want to work so that the ‘pain’ was shared equally by staff. If that had been the policy, evidence could have been provided of it. No evidence was provided of any concrete efforts made in respect of the assurances given to Ms Correy that her requests would be accommodated if possible.

155 In our view, therefore, the combination of Ms Correy’s evidence of regular rostering in the very ward she had specified she did not wish to work; the proof that the regularity of the rostering was maintained and, on one view, increased after she made her complaint of discrimination; and the absence of the sort of evidence that might have been expected from the management to explain why it took the course it did, leaves Ms Correy’s hypothesis that she was victimised virtually unchallenged.

156 Having carefully considered all of the evidence we are comfortably satisfied that Ms Correy was rostered to work in Aged Care Psychiatry because she had made and, importantly, persisted in her allegation that the Hospital by its actions had acted unlawfully and discriminated against her. For these reasons we find the complaint of victimisation substantiated.

Relief

157 Ms Correy seeks the following orders under s 108 of the Act:

Damages for economic loss of $26,121.

General damages of $30,000.

158 Two additional orders were sought in the document headed ‘Statement of loss and damages’ (Exhibit A 8). Neither was mentioned in Ms Correy’s written submissions. We proceed on the basis that Ms Correy no longer seeks to pursue those proposed orders.

159 Principles governing award of compensation under s 108 Until recently it had been widely accepted that an action under the Act was akin to an action in tort, and that the common law rules which govern the award of damages in actions in tort were applicable. (See for example the approach taken by Sully J in Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 (at [35]).) On appeal Spigelman CJ in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at pp 245-246, questioned that approach and said in obiter ‘…I should indicate that I do not share the opinion … that a complaint leading to an order of payment of ‘damages…by way of compensation’ under s 113(1)(b)(i) constitutes a ‘tort’ within the meaning of s 8 of the Law Reform (Vicarious Liability) Act.’

160 That approach was cited with approval by the Appeal Panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 (at [33]):

[W]e believe that the views of Spigelman CJ … should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) [now s 108(2)(a) ] of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent’s conduct, but they are not controlling.

161 Background Ms Correy rang Ms McCarthy on 3 July 2005 to enquire about her roster. She was told she would be working in ‘Aged Care Rehab’. Ms Correy advised that, as she had not been rostered to work in the PCU, she would not be coming in. Later that day Ms McCarthy contacted Ms Correy and, on the advice of Mr Geoghegan, informed her that if she failed to report to work she would be facing disciplinary action. Ms Correy advised that ‘acting under legal advice she would not be commencing work until her pre-maternity position was available’.

162 On 28 July, Ms Correy’s solicitors wrote to the Hospital and asserted that the approach taken by the Hospital amounted to a breach of the relationship of trust and confidence between Ms Correy and the Hospital. They asserted that as a consequence the contract had been repudiated and Ms Correy was effectively placed in a position where she was unable to return to work. They went on to write that Ms Correy ‘[h]opes to be able to resolve these matters through sensible and open discussions’ and that the matter could be resolved promptly between the parties.

163 Hospital Executive Director, Jon Anderson wrote to Ms Correy on 27 July noting that she had not reported to work on any of the five days she had been rostered to work in July. He advised that if she did not return to work on 1 and 2 August then ‘[y]ou will be considered to have abandoned your employment and termination action will proceed’. On 2 August, Mr Anderson wrote again to Ms Correy and advised her that the Hospital considered that she had terminated her employment because of her failure to report to work.

164 Findings and Conclusions The key issue is whether Ms Correy was entitled to elect to treat her contract of employment as ‘terminated’ as a consequence of the conduct of the Hospital.

165 It is argued for Ms Correy that, as a consequence of the decision to roster her in Aged Care Psychiatry, she had no ‘real or effective choice’ other than to refuse to work and to seek further discussions with the Hospital with a view to resolving the problem. It was her refusal to work in that ward that culminated in the Hospital’s decision to deem the employment relationship ‘abandoned’.

166 The Hospital contends that Ms Correy refused to report to work, except on her own terms. It argues that its actions did not amount to a dismissal, express or constructive. It argues that it was Ms Correy’s decision and hers alone to abandon the employment relationship. As a consequence, it argues, it is simply not open to her to now contend that any economic loss she might have suffered was the result of any action taken by the Hospital.

167 Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 described the concept of constructive dismissal in the following way:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.

So explained the concept of constructive dismissal is simply a specific application to contracts of employment of the general principle of contract law that when one party to a contract engages in conduct which involves breach of an essential term, or otherwise repudiates the contract, the innocent party may elect to terminate the contract. An innocent employee who elects to terminate the contract in these circumstances is regarded as having been constructively dismissed when the notion of dismissal is necessary in order to claim the benefit of a statutory scheme that regulates unfair dismissal or otherwise depends upon an employee having been dismissed.

168 The Appeal Panel in Commissioner of Police v Mooney (No.2) [EOD] [2003] NSWADTAP 67 put the test to be applied, in determining whether the conduct of an employer constitutes constructive dismissal, in this way:

The employer must engage in conduct which objectively amounts to breach of an essential term of the contract, or which otherwise, objectively, amounts to a repudiation of the contract before the employee may elect to terminate the contract and thereby regard him/herself as having been constructively dismissed.

169 The Panel went on to consider whether conduct which constituted discrimination could amount to a repudiatory breach of the contract. It noted that,

The decided cases do not explicitly identify how, in terms of the law governing contracts of employment, conduct by an employer which constitutes discrimination on the ground of disability amounts to a repudiatory breach of the contract. But such conduct may be characterised as a breach of the implied term of mutual trust and confidence. As Kirby J pointed out in Concut Pty Ltd v Worrell [2000] HCA 64 at [52]: “The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust”. The implied term of trust and confidence, in so far as it applies to employers, was described by Lord Steyn in Malik v Bank of Credit & Commerce International SA (In liq) [1998] AC 20 at 45 as requiring an employer not to “without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

170 It seems to us that the conduct of the Hospital amounted to a clear breach of an implied term of its contract with Ms Correy that it would comply with all relevant statutory obligations and its own ML policy. This breach was material. Ms Correy was told that she would not be returned to her pre-maternity leave position and given no clear indication or guarantee that this would change in the foreseeable future. Furthermore, over half her allocated shifts in the two months after her return were in the very Unit in which she had notified the Hospital that she felt she was unable to work.

171 In our view, objectively assessed, the Hospital’s conduct amounted to a repudiation of its contract with Ms Correy. As such she was entitled to treat the contract at an end.

172 Accordingly, Ms Correy is entitled to an order under s 108(2)(a) for the economic loss that flowed from the Hospital’s contravention of s 49V(2). We are satisfied that Ms Correy took reasonable steps to mitigate her loss. The Hospital does not challenge Ms Correy’s estimate of loss and damage as set out in Exhibit A 8.

173 For all these reasons we find that the economic loss suffered by Ms Correy to be $26,121.

Non – Economic loss

174 Ms Correy claims an amount of $ 30,000 for general damages on account of injury to feelings, embarrassment and humiliation, stress, loss of confidence and loss of enjoyment of life.

175 No evidence was led to support that claim and without that it would not be appropriate for us to award damages for that alleged loss.

Costs

176 Both parties have sought the opportunity to be heard on the issue of costs.

177 Any party wishing to apply for costs must apply within 14 days of the date of these reasons. Any application made is to be supported by brief written submissions that are to be filed and served with the cost application. Submissions in reply are to be filed and served within 14 days of receipt of the application and submissions in support.

16/05/2007 - Order 3 by deleting ‘dismissed’ and inserting ‘substantiated’. Paragraph [30] by deleting ‘Respondents’ and inserting ‘Respondent’. Paragraph [108] by deleting the words 'She disputes that anything could be read into. On her account, the Unit’s failure to send Ms Correy a card was an oversight.' and inserting, ' She disputes that anything could be read into the Unit’s failure to send Ms Correy a card which on her account was an oversight. ' Paragraph [156] is amended by inserting at the end of that paragraph, 'For these reasons we find the complaint of victimisation substantiated' . Paragraph [170] is amended by deleting the words 'at least for the foreseeable future'. - Paragraph(s) Order 3, Paragraphs 30, 108, 156, 170