Dubow v Attorney-General's Department

[2005] NSWADT 231

CITATION:	Dubow -v- Attorney-General’s Department [2005] NSWADT 231
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Yolande Victoria Dubow RESPONDENT Attorney-General’s Department
FILE NUMBER:	041041; 041116
HEARING DATES:	06/12/04-08/12/04
SUBMISSIONS CLOSED:	02/16/2005
DATE OF DECISION:	10/13/2005
BEFORE:	Grotte E - Judicial Member; Gill M - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION:	Disability Discrimination - In work - Carers' Responsibility Discrimination - in work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Anor (2004) NSWCA 291 IW v City of Perth (1997) 191 CLR 1 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Pignat v Richmond Valley Council (2005) NSWADT 162 Purvis v NSW (2003) 202 ALR 133 Re Refugee Review Tribunal; Ex Parte H (2001) HCA 28 Reddy v International Cargo Express (2004) NSWADT 218 Sivananthan v Commissioner of Police, NSW Police Service (2001) NSWADT 44 Waters v Pubic Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT In person RESPONDENT S Benson, barrister
ORDERS:	(i) The Complaints are dismissed; (ii) No Order as to Costs

1 The Applicant in these proceedings, Ms Yolande Dubow, claims both direct and indirect discrimination in employment on the grounds of disability and carer’s responsibilities. She also claims victimisation as a result of making a complaint to the Anti-Discrimination Board (ADB).

2 On 1 August 2003 the Applicant lodged a complaint with the ADB alleging discrimination in employment on the grounds of actual or perceived homosexuality and actual or perceived disability. The ground of actual or perceived homosexuality was later abandoned.

3 On 4 March 2004 and on 16 March 2004 Ms Dubow lodged complaints alleging victimisation. Concurrently she filed a threatened dismissal claim in the Industrial Relations Commission. On 20 May 2004 Ms Dubow lodged a further complaint with the ADB alleging disability and carer’s responsibility discrimination in employment as well as victimisation.

4 These complaints were referred to this Tribunal pursuant to section 94(1) of the Anti-Discrimination Act 1977 (ADA).

Applicant’s Complaints and Evidence

5 Ms Dubow claimed that her substantive position since June 1998 was Legal Research Officer to the President of the Supreme Court of New South Wales. She claimed that she commenced as a Grade 3 Legal Officer and remained so as the hours and work conditions suited her preferred lifestyle. Ms Dubow claimed that in March 2003 she developed respiratory problems/asthma, which were made worse by her work environment. She claimed that she had developed a respiratory tract infection, which turned into regular bouts of asthma in the Book Room of the Supreme Court. She claimed that she completed an Occupational Health and Safety notification and provided a Workcover certificate to her employer stating that she had developed occupational asthma and a dust allergy.

6 Ms Dubow claimed that she spoke with the Acting Chief Executive Officer, Megan Greenwood, who offered to her to come down to Level 5 of the Supreme Court, the Registry. Ms Dubow claimed that she understood by this that she would be trained in Registry work but she claimed that neither what was entailed nor the conditions of work were discussed with her. Ms Dubow claimed that given her breathing difficulties, which had continued throughout March and April she agreed to the move “in principle”. She was subsequently offered a position in the Supreme Court Registry. Ms Dubow claimed that she believed that she would be working from the fifth floor of the Supreme Court building where the Registry was located. Ms Dubow claimed that she was allocated work in the Probate Registry despite having never practised in that jurisdiction and only having some cursory training.

7 Ms Dubow claimed that her substantive position as Legal Researcher to the President of the Court of Appeal was flexible and child-friendly. She claimed that she had seen a general direction from the Premier’s Department and the then Chief Executive Officer, Nerida Johnstone, that employees should work from home for the Olympic period. Her home computer was configured for access to the Attorney-General’s Department and she claimed that as it was a more powerful system with scanner and printer attached, it was more efficient for her to work from home. Ms Dubow claimed that there was a general agreement between herself and the President that she could work up to 2 days a week from home.

8 Ms Dubow claimed that she was transferred without due consultation to the Probate Registry where she claimed she was subjected to constant harassment on time supervision and dress code and that the majority of her work there was abhorrent or process work. She claimed that the alteration to her flextime arrangements and the imposition of time regimes was a detriment to her in her personal circumstances as an asthma sufferer and a sole caregiver.

9 Ms Dubow claimed that she was rostered to work in the Probate Registry with exposure to dust, construction work and mouldy paper work. She claimed that the Probate Registry was located in an old building in King Street, which was undergoing renovations as it had been for many years. She asserted that the workmen were seen to wear dust masks and the paint smell and dust caused her difficulty upon entry to the building and when she climbed the steps to the Probate Registry. She claimed that the Probate files were old and caused her to develop allergy rashes on her wrists and hands. She claimed that after a month in these conditions a workplace assessment was carried out but the assessor was forbidden from attending the previous worksite on level 12 of the Supreme Court Building.

10 Ms Dubow claimed that the Probate Registrar, Mr Finlay, was judgmental and negative and that the conditions of employment within the Probate Registry were at his whim. Ms Dubow asserted that the Probate Registrar belittled the female probate registrars, commenting on their sex lives and making unnecessary comments on her clothing and shopping purchased during lunchtime. Ms Dubow asserted that the Probate Registrar made constant comments to her on the need to attend to his time frames. She claimed that on the last occasion that she was in the Probate Registry on 27 May 2003 she was having breathing difficulties and needed to seek permission to return to her office in the main building to obtain her inhaler, he remarked, “Do you have asthma, do you?”

11 Ms Dubow claimed that in May 2003 she requested a return to her substantive position but was advised that this was not possible due to an “irreconcilable breakdown” in her relationship with the President of the Court of Appeal. She claimed that she made a formal oral complaint regarding the conditions of work in the Probate Registry but no action was taken. Ms Dubow considered that the Respondent’s failure to confirm her complaints showed a belittling and trivialisation of the serious management issues she had realised.

12 Ms Dubow claimed that on 23 May 2003 she had her Mill key reconfigured by the Sheriff’s office in the King Street complex. She then attended the Probate Registry and claimed that she was berated by the Probate Registrar for being late. She claimed that she was told that she had to commence her duties by 9:30am and that if she was five minutes late that he would ‘doc her a rec day’.

13 Ms Dubow claimed that she refused to attend the Probate Registry because of the dust and construction. The Prothonotary, Jerry Riznyczok, implemented training in probate in the main building but the Probate Registrar refused to comply with this and no further training was conducted. Ms Dubow claimed that probate files allocated to her were not allowed to be removed from the view of the Probate Registrar although other Registrars regularly removed probate files from the probate building to the duty room or to the main building chambers.

14 Ms Dubow also claimed that having been transferred to the position of Deputy Registrar, she was not paid a sitting allowance, which was ordinarily paid to Registrars in recognition of after hours Injunction duty. She claimed that in the initial stages she was regularly rostered for Injunction and Registrar duty, which did not accord with her flexible working arrangements.

15 Ms Dubow claimed that on 3 September 2003 Ms Greenwood, the Chief Executive Officer, advised that she had asked for Ms Dubow’s “removal from the workplace”. Ms Dubow claimed that she was told to wait for a telephone call from the Deputy Director-General in the following 24 hours. Ms Dubow claimed that at the expiry of the 24 hours she advised the Prothonotary that she would wait another 24 hours at home. She claimed that she was advised that if another day’s leave was to be taken then a medical certificate was to be provided. Ms Dubow claimed that she provided a medical certificate but that she was then required to disclose the medical condition and provide authentication of the doctor’s credentials.

16 Ms Dubow claimed that the telephone call did not eventuate but that she eventually met with the Deputy Director-General. She took extended leave to allow the Department to find her a suitable placement. She claimed that during this period her son’s tonsils were removed and she requested approval to take 10 days leave for her son’s recovery as sick leave. Approval was not given.

17 Ms Dubow claimed that in January 2004 she was not feeling well and required a blood test. The blood test revealed a condition, which required further regular testing. On 13 February 2004 she attended for another blood test and obtained a medical certificate, a copy of which she provided to the Prothonotary. Ms Dubow claimed that the application for sick leave was cancelled on 1 March 2004 as no medical certificate had been provided and there had been more than five absences without medical certificates in 12 months.

18 After Ms Dubow lodged a complaint to the ADB in March 2004 she notified the Prothonotary that she had complained to the ADB. Ms Dubow claimed that she returned to her office letting a stranger into the Executive Area of the Supreme Court. Ms Dubow claimed that a Registrar informed her that two Registrars were told that it would be better if management did not see anyone talking to her. She claimed that on the following day, being 5 March 2004, she was called in for a meeting with the Acting Chief Executive Officer and that she would need a support person. She organised for her solicitor, Brian Gillard, to attend as her support person. Ms Dubow claimed that she was informed at that meeting that her substantive position was to be deleted and she would be displaced and not deemed suitable for “workforce management”. Ms Dubow claimed that in a letter dated 6 September 2004 her displaced person status was backdated to 13 July 2004 and that this constituted an act of victimisation.

19 Ms Dubow claimed that in May 2004 she and her son developed an upper respiratory tract infection and required more sick leave. She claimed that for the week between 10 and 15 May 2004 she had more than five medical certificates covering herself and her son. She claimed that nevertheless the Prothonotary insisted on medical certificates in spite of the obvious circumstances surrounding her leave. She claimed that she advised the Prothonotary that she was available to work from home but this request was denied.

20 Ms Dubow claimed that there were continuing acts of discrimination such as daily viewing of her flexitime sheets by her supervisor to ensure that she had logged on and recorded her start and finish times. She claimed that she was also constantly rostered for training in Probate matters but the Probate Registrar refused to allow her to be trained in Probate files out of his proximity. Ms Dubow claimed that there were constant Registrar lunches and gatherings to which she was not invited. She claimed that on 29 August 2003 the CEO held drinks in her office, which commenced while Ms Dubow was rostered on duty. She claimed that although the Prothonotary invited her to attend she was not welcome. She claimed that despite the CEO indicating that she would ensure that the Probate Registrar would comply with the Occupational Health and Safety risk management plan for her asthma this did not occur.

21 At the hearing Ms Dubow confirmed her claims. She agreed that she had a conversation with Ms Greenwood but stated that her recollection differed from Ms Greenwood’s. She stated that although she agreed to work on Level 5 she did not agree to work as an Acting Deputy Registrar nor as a Probate Registrar. She said that she agreed to physically move and functionally do work for the Supreme Court.

22 Ms Dubow said that she objected to working at the Probate Registry for health reasons amongst other reasons. She said that the Department had a flexible working hours agreement but denied that it was applied in the Probate Registry. She had to be in by 9:00am and had to obtain permission to go to the toilet. She agreed that in her email of 30 May 2005 to Jerry Riznyczok she said that she “does not require special consideration outside core hours”. She agreed that she could meet the core periods unless something unforeseen happened.

23 Ms Dubow stated in oral evidence that she was critical of the Court’s role in default judgments on the foreclosure of mortgages on people’s homes. She agreed that she was filmed stamping documents by Channel 7 for Today/Tonight. She said that she was not aware that she was required to obtain approval with respect to being filmed as a duty registrar. She said that she gave authorisation on her own initiative. She told the Tribunal that neither Mr Riznyczok nor Ms Greenwood questioned her regarding the authorisation of the filming.

Evidence of Brian Gillard

24 Brian Gillard provided a statement and also gave oral evidence to the Tribunal on behalf of Ms Dubow.

25 He stated that he is a solicitor and has known Ms Dubow for about 24 years. He stated that he attended as Ms Dubow’s support person at the meeting with the Assistant Deputy Director-General, Tim McGrath, on 11 September 2003. He stated that at that meeting Mr McGrath told Ms Dubow that she was not allowed to have legal representation at the meeting nor to take notes.

26 Mr Gillard stated that Mr McGrath told Ms Dubow words to the effect of “If you organise a placement with Legal Aid, I will see that Megan funds it from the Supreme Court budget” referring to the Chief Executive Officer, Megan Greenwood.

27 Mr Gillard stated that on 5 March 2004 Ms Dubow requested that he be her support person for another meeting with Megan Greenwood and the Acting Prothonotary, Jerry Riznyczok. He stated that at the meeting, Ms Greenwood handed a copy of an email from Paul Cutbush which referred to a conversation between him and Ms Dubow. Ms Greenwood told Ms Dubow that she was recommending disciplinary action and that the conversation as recorded was very inappropriate.

28 Mr Gillard stated that Ms Greenwood also told Ms Dubow that she had recommended that all research positions change status to Ministerial staff given their close association with the Judges and that this would mean that Ms Dubow would be displaced as she held the position of a Legal Research Officer. Mr Gillard stated that Ms Dubow’s position was the only position involved and that she would not be entitled to workforce management because Ms Greenwood would have to certify that there were no performance problems. Mr Gillard also stated that Ms Greenwood told Ms Dubow that the project work she was carrying out would run out and that there is a great deal of probate work to be done. Mr Gillard stated that both he and Ms Dubow considered that what was said amounted to a threat of dismissal.

29 In oral evidence Mr Gillard confirmed his statement evidence and said that he concluded that the meeting with Ms Greenwood on 5 March 2004 was in the nature of disciplinary proceedings and that effectively Ms Dubow’s position was to be made redundant.

Evidence of Suzin Yoo

30 Ms Yoo gave oral evidence to the Tribunal. There was no statement and a belated application had been made to suppress her evidence. Unfortunately her evidence in chief had already been discussed with the Respondent. The Tribunal does not intend to summarise her evidence but will refer to it where necessary.

Evidence of Megan Greenwood

31 Megan Greenwood, the Chief Executive Officer of the Supreme Court of NSW stated that her main responsibilities are to manage the non-judicial functions of the Court, support the judges in their roles through the development of policies and strategies and to work with the legal profession and users to improve Court systems and procedures.

32 Ms Greenwood stated that shortly after she took up her duties in the Supreme Court in March 2003 it was reported to her that Ms Dubow had asked the Department’s IT Help Desk to do some work on her home computer because she worked at home on a regular basis. Ms Greenwood consulted the President of the Court of Appeal to ascertain the situation with respect to approval for working from home. Ms Greenwood noted that although she was responsible for administrative employment arrangements for all staff including Ms Dubow, Judges directed the day-to-day activities of their staff.

33 Ms Greenwood stated that on 14 April 2003 she met with Ms Dubow and asked her whether she worked from home on a regular basis. She stated that Ms Dubow told her that she had approval, which had been given when the Olympic arrangements were made. Ms Greenwood stated that the Olympic part-time and working from home arrangements applied for the Olympic and Paralympic Games which was a six week period in 2000. Ms Greenwood stated that she informed Ms Dubow that she did not have approval and that she should desist from the practice. Ms Greenwood stated that she and Ms Dubow also had a discussion about her position and career objectives. Ms Greenwood stated that Ms Dubow told her that she was unhappy in her present role and wanted to do some real work and that her ideal job was to work as a solicitor at the Legal Aid Commission. Ms Greenwood stated that she suggested that Ms Dubow gain some practical experience and work in a Deputy Registrar role in the Registry. She stated that Ms Dubow agreed and they settled on a start date.

34 Ms Greenwood stated that Ms Dubow mentioned some health problems during this conversation but at the time she was not aware of any occupational health and safety notification. Ms Greenwood stated that the conditions of employment for a public servant in the Attorney-General’s Department were no different from other public service positions and that Ms Dubow would have been well aware of the requirements. She agreed that there would have been less flexibility than in Ms Dubow’s previous position but she would have been subject to the same flextime arrangements.

35 Ms Greenwood stated that on 23 June 2004 Ms Dubow lodged a formal complaint on a range of matters involving Mr Finlay, the Probate Registrar and others. Ms Greenwood said that she investigated each complaint and addressed each one on its merits. She formed the view that some of the complaints were justified and took those matters up with the managers concerned. However she considered that some of the other complaints lacked substance and advised Ms Dubow accordingly. She denied trivialising the complaints.

36 Ms Greenwood stated that in late May 2003 Ms Dubow asked her whether it would be possible to return to the Research Officer role with the President. She stated that she informed Ms Dubow that she would need to consult with the President. She did so subsequently and as a result, formed the view that such a return was not feasible as there had been an irretrievable breakdown in the relationship.

37 Ms Greenwood stated that shortly after Ms Dubow’s transfer, Mr Riznyczok told her that Ms Dubow had left a sequined pink dress in his office with a note attached that said words to the effect of “Would this be a sufficient upgrade in Duty Registrar’s clothing”. A meeting was arranged with Ms Dubow and Mr Riznyczok. Ms Dubow said that the dress was meant to be a joke to highlight what she considered to be a ridiculous criticism of her wearing leopard print pants by Mr Riznyczok. Ms Greenwood stated that she told Ms Dubow that although there was nothing wrong with wearing leopard print trousers, that they were not however suitable for work, given her senior position. Mr Riznyczok said that he had been embarrassed by the incident as his staff had asked him when would he be putting on the dress.

38 Ms Greenwood stated that on 2 September 2003 she and Jerry Riznyczok met with Ms Dubow to question her about issues of concern arising out of the Today/Tonight programme aired the previous evening. She said that she was particularly concerned to investigate whether Ms Dubow had misused confidential information and approved filming on Court premises in contravention of Court policy. Ms Greenwood stated that she was satisfied that Ms Dubow had not breached confidentiality but she considered Ms Dubow’s “denial of any knowledge of being filmed within the precincts of the Court was stretching credulity”. Ms Greenwood subsequently learned that the issue was of serious concern to the Chief Justice and that there had been correspondence concerning this issue between the Chief Justice and Channel 7 executives. Ms Greenwood stated that she was disappointed to learn that the producer of the programme, Mr Frank Pangallo, claimed that he had sought permission from Ms Dubow to film footage of her in the Court registry as this had been in direct conflict with her denial.

39 Ms Greenwood stated that a meeting was arranged with Ms Dubow on 3 September 2003 to discuss aspects of her appearance on the television programme her behaviour, which she regarded as unacceptable. Ms Greenwood stated that at that meeting Ms Dubow made it clear that she was unhappy and wished to be moved elsewhere in the Supreme Court and that she would seriously consider a voluntary redundancy. Ms Greenwood stated that she considered that Ms Dubow’s appearance and comments on the Today/Tonight programme made it untenable for her to continue to work at a senior level within the Court as she could no longer be trusted to address issues of concern in an appropriate way. Despite Ms Dubow’s apparent deceit, Ms Greenwood considered that it would be better to explore placement options outside the Supreme Court but she understood that business centres were disinclined to accept her given her inappropriate behaviour in making the television appearance.

40 Ms Greenwood denied encouraging any ostracism or any conduct which could be regarded as ostracism of Ms Dubow.

41 Ms Greenwood stated that she convened a meeting on 5 March 2004 to counsel Ms Dubow about inappropriate comments made by her to Paul Cutbush, the Director of Reporting Services Branch. During that meeting Ms Greenwood informed Ms Dubow of proposals under consideration for the restructuring of researcher positions within the Supreme Court. If Ms Dubow’s substantive position was abolished this would give rise to the possibility of a voluntary redundancy and she believed that this would appeal to Ms Dubow.

42 On 5 March 2004 Ms Greenwood wrote to Julie Cook, the Director of Corporate Human Resources, regarding an application by Ms Dubow for the additional conversion of sick leave to FACS leave. Ms Greenwood stated that she did not support the request given that Ms Dubow had more than five instances of unsubstantiated sick leave in the previous 12 months.

43 On 11 March 2004 Ms Greenwood referred an allegation of misconduct to Julie Cook under the Procedural Guidelines for dealing with Misconduct regarding Ms Dubow.

44 In oral evidence to the Tribunal Ms Greenwood confirmed her statement of evidence. She added that the agreement between the President and Ms Dubow regarding approval for working from home had not been properly documented and she could not identify what approval had been actually given. Ms Greenwood said that she spoke with the President and he had said that he had asked Ms Dubow to not work from home but she had refused.

45 Ms Greenwood told the Tribunal that she assumed that Ms Dubow understood that coming down to Level 5 meant working as a Registrar, which included being a Duty Registrar.

46 Ms Greenwood said that she believed that Ms Dubow had lied about the filming for the Today/Tonight programme.

47 Ms Greenwood said that she did not give any direction to staff to ostracise Ms Dubow and she denied saying “that Jew bitch better not ask me for a reference”.

48 Ms Greenwood said that the incident with respect to the comment made by Ms Dubow to Paul Cutbush was the last in a series of incidents that made her concerned about Ms Dubow’s professionalism in the workplace.

49 Ms Greenwood said that she had a conversation with Tim McGrath with respect to a position in Legal Aid for Ms Dubow. She asked him if he could turn it into a permanent position and he said no, so she refused to fund it because otherwise the Supreme Court would have to be pay indefinitely. In the restructure Ms Greenwood said that six positions were affected and these were temporary appointees. Ms Dubow’s position was the only permanent appointee position.

Evidence of Jonathon Finlay

50 Mr Finlay was the Probate Registrar of the Supreme Court of New South Wales at the relevant time. He stated that the building in which the Probate Registry was housed was in the process of renovation, the relevant work being done on Courts 2 and 3. He stated that the entrances to the areas were sealed with plastic sheeting and the doors were kept shut. Access to the Registry was via a lift or stairs.

51 Mr Finlay stated that the Probate files were kept in plastic folders with documentation prepared recently for the specific application and that the application dealt with by Ms Dubow would have been prepared no more than a month or so before. He stated that, from his experience, few wills would have been made more than 25 years before.

52 Mr Finlay stated that Ms Dubow attended work within the Probate Registry for a total of 9 and a half full or part days and that during her time there she did not complain to him of allergy rashes on her hands or wrists.

53 Mr Finlay stated that the conditions of employment in the Probate Registry are the same as they are for all officers within the Attorney-General’s Department. He stated that he was surprised when Ms Dubow told him that she would not be available on Thursdays as he had not been informed by the Executive Office of any unavailability, particularly as the Probate Registry is a high volume work area.

54 Mr Finlay denied any discriminatory comments or allocations of work. He stated that the Deputy Registrars are allocated into the Probate Registry according to a roster prepared by the Prothonotary and that such a roster is on a half day basis and is frequently revised due to changed circumstances such as sickness or absence. He stated that all staff are treated equally but that female staff are routinely urged not to leave handbags unattended and in open view as it is a public office with large numbers of people coming and going.

55 Mr Finlay stated that Ms Dubow submitted leave forms recording an illness which was different from that stated by her doctor in the medical certificate and there was an inconsistency with respect to the date. He said that he could not approve the sick leave when there were such obvious inconsistencies but that he would approve it once she corrected it.

56 Mr Finlay stated that he did not become aware that Ms Dubow suffered from asthma until some time after she stopped working in the Probate Registry.

57 Mr Finlay stated that on 27 May 2003 he counselled Ms Dubow for arriving late. He stated that at about 9:45am he informed her of the Department’s requirement that as an acting Registrar she had to report for duty and be ready for work by 9:30am. He stated that he stressed the requirement for punctuality. He stated that he did this because she had been late for duty on 4 previous occasions. Mr Finlay stated that he recalled that Ms Dubow responded to his comments by smirking, pulling faces and making dismissive remarks. He told her that he did not regard her reaction as professional. He denied saying that she would be docked one “rec day” for being late but he stated that Departmental policy was to lose a quarter day rec leave for a late arrival. Mr Finlay agreed that there was no suggestion however that Ms Dubow did not complete her work and he agreed that her office was located in a different building.

58 In oral evidence Mr Finlay stated that he has an asthma condition and that the refurbishment did not affect his ability to work in the Probate Registry.

59 Mr Finlay gave evidence that she did not raise any carer’s responsibilities with him.

60 Once Ms Dubow complained that she was allergic to the building she did not come back to the Registry and he received a direction from the Prothonotary that he should facilitate training for Ms Dubow on Level 5. He said that given staff availability and work availability it was too difficult to transfer sufficient files between buildings so he decided that it was more satisfactory to train her in accounts as this required only one or two files.

Evidence of Jerry Riznyczok

61 Mr Riznyczok stated that in about mid April 2003 Megan Greenwood asked him to find work for Ms Dubow as an Acting Deputy Registrar and that a Deputy Registrar was to be seconded to the President’s Research position to replace Ms Dubow.

62 Mr Riznyczok asked Ms Leonie Walton to undertake the research position and he agreed that Ms Dubow could work as a Probate Registrar and a Deputy Registrar interviewing the public initially. He stated that there was no requirement for Ms Dubow to have prior probate, wills or succession experience as this could be learnt on the job. Mr Riznyczok stated that he asked Ms Walton to speak to Ms Dubow about the changeover.

63 Mr Riznyczok stated that it was his expectation that Ms Dubow would become proficient in probate duties and Duty Registrar duties first and then progress to court work at a later date.

64 He stated that in about April 2003 he told Ms Dubow that once she was trained in court work she would be paid a sitting allowance but that she would not be entitled to a sitting allowance until she commenced duties in court. He stated that Ms Dubow did not express any dissatisfaction with the plan nor did she inform him that health issues had been a factor in relation to her prior position or that they were an issue, which required management in respect of her employment at that time.

65 Mr Riznyczok stated that the Attorney General’s Department has a grievance process in place in which an officer may complain to her supervisor, cost centre manager, Director of Corporate Human Resources or Director-General. He stated that there are detailed guidelines for the investigation of such complaints to ensure procedural fairness and confidentiality to the parties concerned.

66 Mr Riznyczok stated that on 28 May 2003 Ms Dubow emailed him that she was drafting an application to the Anti-Discrimination Board as to harassment and discrimination complaints as evidenced during her two weeks in the Probate Registry, which the other female Registrars will be invited to join as a class action. Mr Riznyczok stated that he replied on 30 May 2003 stating that he could not comment on the allegations raised and would wait until Ms Dubow commenced whatever process she wished to follow. He stated that he responded in this way because she had provided no details that would allow him to investigate her claims.

67 Mr Riznyczok stated that on 23 May 2003 Ms Dubow had emailed Mr Whitehead who was acting in his position in his absence. Ms Dubow stated in that email that “as a single mother of a ‘delicate school age child’ it is not usually possible for me to be at the Supreme Court building before 9:00am…It is also a ‘stress’ to do it continually throughout the week…especially so, on days when I am volunteered for Injunction duty which may keep me away from my family responsibilities for an indeterminable time”. She also stated in her email that “I am happy to do Injunction duty and work to the extended core time of 6 or 7 pm normally on Wednesday and Friday…These days suit me best for Injunction duty or Duty Registrar p/m rostered duties, mainly ‘cause they are the access ordered days for the child to be collected by its father…(which still requires that he keep himself occupied for three hours after school)…

68 Ms Dubow also stated in that email “Similarly, I cannot be exposed to the dust, construction work of the probate office for complete days due to my asthmatic condition, caused by interalia an allergy to dust mite…the reason for my move from the 12th floor…Although my breathing is somewhat controlled by preventers and steroid treatment…the allergy is now evidencing itself by rashes on exposed areas of skin…As caring concerned supervisors under the O H &S Act I know you will be gratified to know that three days away from the probate registry has seen these commence to clear but they are in danger of infection by continual exposure to the allergens…It is still not clear to me why Probate files need to remain within the old King Street court precincts, when it is convenient to deal with them in the current pristine and healthier environment which is now my office…”

69 Mr Riznyczok stated that it was not practical to transport 50 or 60 files to Ms Dubow from the Probate Registry to Level 5 and back again each day. He stated that he asked for a workplace assessment to be carried out with respect to the health issues raised by Ms Dubow to ensure that the workplace was safe. The assessment had nothing to do with Level 12, which was not a work area under his control. When he received the report he was comfortable with Ms Dubow remaining on Level 5 as arranged and he advised her that he would not be sending her back to the Probate Registry until the building work ceased.

70 Mr Riznyczok stated that he asked the Probate Registrar to arrange for a Probate Registrar to work with Ms Dubow on Level 5 to continue training her in Probate files. He stated that with respect to Ms Dubow’s family circumstances he told her that he would roster her for duty in the afternoon only on Wednesdays and Fridays but that this would mean he would have to roster her for Duty in the morning on Mondays and Tuesdays.

71 Mr Riznyczok stated that on 2 September 2003 Ms Greenwood and he spoke with Ms Dubow about her appearance on the Today/Tonight show. She denied that she had filmed the sequence shown on the programme inside the Duty Registrar’s Office on Level 5 and when she was asked whether she knew that Channel 7 was filming, she replied that it must have been with a hidden camera. She was asked whether she had invited Channel 7 to come in and she replied that Channel 7 just came in.

72 Mr Riznyczok stated that the first notification given by Ms Dubow alleging that she had asthma was sent to Mr Whitehead on 23 May 2003. At the relevant time the Department had a new flextime arrangement in place that allowed up to 2 flex days every 4 weeks. Start and finish times were to be negotiated between manager and employee and were subject to office convenience as well as the personal needs of an employee. He stated that the Supreme Court provides a service between 9:00am and 5:00pm every weekday and Registrars and staff are rostered to meet those demands.

73 Mr Riznyczok’s oral evidence confirmed his statement of evidence. Mr Riznyczok stated that with the benefit of hindsight, had he known of her health issue, he would not have sent her to King Street.

74 He said that between September 2003 and 2004 Ms Dubow was rostered to do project work for him but after the incident with Today/Tonight she was not rostered to do any more Probate work.

75 Mr Riznyczok stated that in about June 2003 he spoke to Ms Dubow about the standard of her dress at work. At the time he stated that she was wearing a leopard print leotard. He asked her whether she would wear this in court as he explained that at the end of her training she would be expected to sit in court and that she should dress appropriately. He stated that Ms Dubow responded by saying that she knew how to dress appropriately. On the following Monday 23 June 2003 Mr Riznyczok found a short sequined pink dress hanging in his office with a note stuck to it which said “Would this be a sufficient upgrade in Duty Registrar clothing?” He stated that he was stunned and appalled and that the dress was clearly visible by passers by. He considered the attempt at humour to be in poor taste and he felt that it was an attempt to undermine his authority. He had a meeting with Ms Dubow and Ms Greenwood regarding the matter of the dress.

76 Mr Riznyczok stated that following the airing of the Today/Tonight show on 1 September 2003 he had a meeting with Ms Dubow and Ms Greenwood. During the meeting Ms Greenwood queried Ms Dubow about how the film footage was taken of Ms Dubow in the duty room. Ms Dubow denied any knowledge of how that might have occurred. He was sceptical about her response.

77 Another meeting took place on 3 September 2003 between Ms Dubow, Ms Greenwood and himself. At that meeting he reported that Ms Greenwood told Ms Dubow that she had found Ms Dubow’s conduct in recent days unacceptable and that she had asked for Ms Dubow to be removed from the workplace and that Ms Dubow was facing potential discipline action. Ms Greenwood told Ms Dubow that Tim McGrath would contact her within 24 hours to direct her with respect to alternate employment. Ms Greenwood told Ms Dubow that she considered Ms Dubow had breached the Code of Conduct by appearing on the Today/Tonight show. He reported that Ms Dubow disagreed saying that there was nothing in the Code of Conduct preventing her from speaking to the media in a private capacity.

78 Following this meeting Mr Riznyczok stated that Ms Dubow said that she would be on leave for the next two days. He directed her to report for work unless she was ill because she did not have the approved leave. Ms Dubow emailed Mr Riznyczok stating that it was her understanding that she was no longer employed. It was his view that she was still employed until Mr McGrath said otherwise.

79 Ms Dubow returned to work on 8 September 2003 and was placed on project work. Ms Dubow went on extended leave from 1 October 2003 to 29 October 2003 and again upon her return, she was placed on project work.

80 Mr Riznyczok stated that on 1 March 2004 he cancelled an application for sick leave by Ms Dubow after having carried out an on-line search of Ms Dubow’s sick leave history. This search revealed that she had made six applications for paid sick leave in the previous 12 months, which had not been supported by medical certificates. He believed that she had more than 5 absences in the previous 12 months without a medical certificate. He stated that he emailed Ms Dubow his decision requiring a medical certificate. Ms Dubow responded by questioning his authority to cancel her sick leave application and indicated that she would be alerting the ADB of another instance of victimisation. Mr Riznyczok stated that he reread the policy and came to the view that she was entitled to paid sick leave even though she had not provided a medical certificate. He instigated a meeting with Ms Dubow on 5 March 2004 and apologised to her advising her that she should reapply for the sick leave.

81 Mr Riznyczok stated that during this meeting they spoke about her sick leave history and problems she had been having with her son. He said that he encouraged her to write to the Director-General for the additional grant of FACS leave in respect of her son by converting sick leave to FACS leave as her entitlement had otherwise been exhausted.

82 Mr Riznyczok attended a meeting on 5 March 2004 at which the exchange between Ms Dubow and Mr Cutbush was discussed.

Evidence of Paul Cutbush

83 No statement was filed with the Tribunal but Mr Cutbush gave oral evidence. He told the Tribunal that he was the Director of the Reporting Services Branch of the Respondent.

84 Mr Cutbush gave evidence concerning a conversation between himself and Ms Dubow on 4 March 2004. He reported the conversation in an email to Ms Greenwood in which he stated that he and another staff member (later identified as Ms Dubow) entered the Executive Area of the Supreme Court and after he asked to see Ms Greenwood, the person later identified as Ms Dubow said “Have you got a gun?” He replied “No – Why would I?” to which Ms Dubow said “Well you can always pray for the day… that someone…(other inaudible comments as she proceeded quickly into her office).

85 He said that he reported this exchange to Ms Greenwood and she asked him to put in an email/file note.

86 He said that he did not think that he was mistaken and that he saw it as a threat. He said that he was concerned for Ms Greenwood’s safety.

Other Evidence

87 There is other evidence before the Tribunal, which was tendered in the Tribunal proceedings including a video of the Today/Tonight segment and emails, file notes and correspondence between the relevant parties over the relevant period.

REASONS FOR DECISION

88 In summary, Ms Dubow claims as follows:

(i) The initial transfer of position from the Book Room on Level 12 to a “construction zone” amounted to direct discrimination on the ground of disability;

(ii) Alternatively, it amounted to indirect discrimination given her notification of her asthma;

(iii) The alteration to her conditions of employment deprived her of the opportunity to work from home and as an asthma sufferer and sole carer of her child this amounted to direct discrimination on the ground of disability;

(iv) The requirement to provide medical certificates was unreasonable and amounted to victimisation for making a complaint of disability discrimination;

(v) The ostracism and harassment she was subjected to by management in the performance of her job, which eventually led to the deletion of her position amounted to victimisation.

The Transfer from the Book Room to Level 5

89 The test for the direct discrimination on the ground of disability is set out in section 49B(1)(a) of the Anti-Discrimination Act 1977 (ADA). That section provides that “a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the person’s disability … the perpetrator 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…”

90 Relevantly, “disability” is defined in the ADA to mean “inter alia” the “presence in a person’s body of organisms causing or capable of causing disease or illness”. The Tribunal notes that Dr Gregory Kaufman in his report dated 11 August 2004 stated that Ms Dubow’s respiratory illness beginning in March [2003] was most likely a respiratory infection and that the onset of her symptoms preceded the activities on Level 12 that were thought to have generated an excess of dust”. Dr Kaufman stated that “the respiratory infection having produced an inflammatory response in the airways rendered the airways more sensitive to irritants and possibly allergens…Therefore exposure to paint fumes would have triggered her symptoms in a temporary fashion”. In his opinion “this increased sensitivity to irritants can persist for prolonged periods particularly in patients who have asthma. This may explain why Ms Dubow continues to be troubled with cough at the probate office in the King Street complex where, as I understand, dust is being generated”. In Dr Kaufman’s opinion Ms Dubow’s condition was not due to her employment but that the work environment may have exacerbated the underlying bronchial irritability.

91 The Tribunal is satisfied therefore, that Ms Dubow had, at the relevant time, a disability within the meaning of the legislation, being her asthma which was triggered/exacerbated by an upper respiratory tract infection.

92 The Tribunal is satisfied that Ms Dubow notified the President of the Court of Appeal, her supervisor, in writing as well as the Occupational Health and Safety Committee of the Respondent in or about 7 April 2003 that she was having breathing difficulties while working in the Book Room. In the notification Ms Dubow stated that that she had been referred to an allergist and expected that her past “allergy to dust mite and mould is being triggered by the current work environment”. She requested that the “attention of the cleaners to vacuuming and dusting the Book Room more regularly would be appreciated”. Ms Dubow did not at this stage provide any medical support for this notification.

93 Section 49D(2)(d) makes it “unlawful for an employer to discriminate against a person on the ground of disability… by subjecting the employee to any other detriment”. The word “detriment” should be given its ordinary meaning of “loss, damage or injury” (the Macquarie Dictionary, 3rd Edition, the Macquarie Library). The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively” (Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]).

94 Ms Dubow claims that the initial transfer to the Probate Registry amounted to direct discrimination because it was a “ construction zone”. The Tribunal notes that the evidence of Dr Kaufman, Dr Guirgis, Dr Ginn and the Workplace Assessment carried out by IRS Total Injury Management of the Probate Registry confirms that, on a balance of probabilities, Ms Dubow’s condition was exacerbated by the conditions in the Probate Registry caused by the renovations. Accordingly, the Tribunal is satisfied that the transfer to the Probate Registry amounted to a detriment within the meaning of section 49D(2)(d) of the ADA.

95 The next question the Tribunal has to ask is whether Ms Dubow was treated less favourably than a person without her particular disability. Section 49B(1)(a) of the ADA requires that the conduct towards Ms Dubow by the Respondent with respect to the transfer be compared with conduct towards an actual or hypothetical person “who does not have that disability”. The comparison involves a consideration of how the alleged discriminator treats or would treat a person who does not have the particular disability or a disability that is substantially the same (IW v City of Perth (1997) 191 CLR 1).

96 It is common ground that a conversation took place between Megan Greenwood and Ms Dubow in April 2003. Although there is some conflict as to what was precisely canvassed in that conversation it was agreed by both Ms Dubow and Ms Greenwood that Ms Dubow had agreed to work on Level 5 of the Supreme Court. No specific reference was made to the Probate Registry. The evidence of Ms Greenwood was that she understood that Ms Dubow was unhappy in her role as legal researcher to the President and wanted to do some “real work”. This was in the context of Ms Dubow having, on 7 August 2002, applied for a lateral transfer from her position as Research Assistant to the President citing career development and compassionate/health as the reasons for the application. In that application Ms Dubow stated that “currently being treated for severe depression, job has no legal requirements or use of legal skills… career severely limited in position and need to develop legal skills”. Ms Dubow’s evidence was that while she had readily agreed to work on Level 5 because of her occupational asthma, she had not agreed to work as an Acting Deputy Registrar nor had she agreed to work in the Probate Registry.

97 Ms Dubow submitted that the Respondent knew of her asthma and health issue because of the notification and accordingly should not have transferred her to the Probate Registry, which was at that time a “construction zone”.

98 Although the characterisation of the Probate Registry as a “construction zone” has been refuted by the Respondent, the Tribunal is satisfied that, at the relevant time, it was being renovated and the potential to exacerbate Ms Dubow’s condition existed. It is noted that the IRS Total Injury Management assessment conducted in July 2003 recommended that Ms Dubow’s work environment be reviewed by an Occupational Hygienist to asses the dust levels and that she be placed in an alternate position at the Supreme Court until her post inflammatory cough had settled. Following this report Mr Riznyczok advised Ms Dubow that he would not be sending her back to the Probate Registry.

99 Having regard to the totality of the evidence however, the Tribunal is not satisfied that the Respondent would have treated a person without Ms Dubow’s particular disability differently or more favourably. Although a notification of breathing difficulties was made by Ms Dubow, it was limited to the conditions on Level 12 and to a request that the cleaners pay more attention to the dust on Level 12 and it was sent specifically to the President and the OH&S Committee in this context. Even though Ms Dubow’s health was raised during the conversation with Ms Greenwood in April 2003, the Tribunal is not satisfied that her disability played any part in Ms Greenwood’s decision to transfer Ms Dubow to Level 5.

100 The comparator in the Tribunal’s view would be a legal researcher with legal qualifications looking for a lateral transfer for career development to utilise legal skills who does not have the particular disability. The evidence shows that Ms Dubow was transferred to a Deputy Registrar position and given the same range of duties and placed on the same rosters as other Deputy Registrars and she was expected to spend the same amount of time as the other Deputy Registrars in the Probate Registry. The Tribunal accepts Ms Greenwood’s evidence that she believed that she was facilitating a transfer to a substantive role as a Deputy Registrar where Ms Dubow could perform a range of important legal duties. The Tribunal is satisfied that Ms Dubow’s asthma condition was not a factor in her decision to transfer Ms Dubow from the Book Room to Level 5.

101 It is the Tribunal’s view that Ms Dubow was unhappy that she had been transferred to the Probate Registry, an area in which she had no interest or background. She quickly discovered that she disliked Mr Finlay, the Probate Registry as she found him to be rigid and unimaginative. She also discovered that she had less flexible work conditions in the Probate Registry. However, although Ms Dubow saw her transfer as punitive, there is no evidence before the Tribunal that she was treated less favourably than a person without her disability would have been treated in the same circumstances or in circumstances which are not materially different.

102 The Tribunal finds therefore that the transfer to Level 5 did not amount to “less favourable treatment” within the meaning of section 49B(1)(a) of the ADA and accordingly, this complaint is not substantiated.

Alteration to Conditions of Employment – Depriving of Opportunity to Work from Home as an Asthma Sufferer

103 Ms Dubow claimed that, as a result of the transfer, the conditions of her employment had been altered to her detriment because the opportunity to work from home was lost. The evidence shows that the opportunity to work from home arose in the context of the Olympics in 2000. Ms Dubow’s own evidence was that she had seen a general direction from the Premier’s Department that employees should work from home for the Olympic period. Ms Greenwood’s evidence was that she discovered that Ms Dubow had continued to work from home beyond the six week period well into 2003. She was concerned that Ms Dubow did not have the proper approval. Ms Greenwood’s evidence, which was uncontested, was that although the conditions in the Registry were not as flexible as Ms Dubow’s previous position she would still be able to avail herself of the flextime arrangements and family leave as well as sick leave, all of which were available to all employees of the Respondent. The evidence supports Ms Greenwood’s evidence that flextime, family leave and sick leave were available to Ms Dubow in the Probate Registry.

104 There is no evidence before the Tribunal that Ms Dubow’s working from home between 2000 and 2003 was because she was an asthma sufferer and was due to her disability.

105 The Tribunal finds that the transfer and the alteration to work conditions did amount to a detriment to Ms Dubow because her conditions of employment were not as flexible as before. However the Tribunal is not satisfied that another legal researcher employed by the Respondent without Ms Dubow’s disability was treated or would have been treated differently. According to the uncontested evidence of Ms Greenwood, which the Tribunal accepts, the same regularising of work conditions would have been afforded to a legal officer without Ms Dubow’s disability if he or she had been working from home without approval.

106 Accordingly, the Tribunal finds that this claim has not been substantiated.

Claim of Indirect Discrimination on the Ground of Disability

107 Section 49B(1)(b) sets out the test for indirect discrimination on the ground of disability. That section provides that a “person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the person’s disability…the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability… comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply”.

108 To prove indirect discrimination Ms Dubow needs to establish that she has been required to comply with a requirement or condition with which a substantially higher proportion of persons, who do not have her disability are able to comply, with which she cannot comply and which is not reasonable in the circumstances of the case. Each of these elements must be present in order to make out a case of indirect discrimination.

109 The onus is on Ms Dubow is to establish indirect discrimination.

110 What constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349) and must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165).

111 Ms Dubow identified the following conditions or requirements:

(i) Time requirements were imposed that could not always be complied with such as when experiencing cold mornings asthma attacks made arrival prior to 9:00am for Duty work difficult.

(ii) The requirement to work in a construction zone after she had given a notification of exacerbation of asthma in the workplace.

(iii) Requirement to qualify for a sitting allowance as a Deputy Registrar.

(iv) The condition of being subject to excessive supervision and micro-management.

112 The Tribunal shall deal with each of these conditions/requirements in turn.

(i) Time Requirements Imposed in Transferred Position

113 Ms Dubow asserted that she could not always comply with the time requirements imposed in the Probate Registry because of cold mornings inducing asthma attacks thereby delaying her.

114 As the Administrative Decisions Tribunal stated in Reddy v International Cargo Express (2004) NSWADT 218 “the ability to comply in the context of indirect discrimination is to be assessed in a practical not a theoretical sense”.

115 In an email from Mr Riznyczok to Ms Dubow on 30 May 2003, Mr Riznyczok set out the required starting times and hours to be worked in the Probate Registry. In that email he stated that “under the Flexible Working Hours agreement, starting times, finishing times and times of absence from the office are worked out by agreement between your manager and yourself…Coretime is 9:30 am to 3:30 pm unless varied by the Cost Centre Manager. You must arrive at work before 9:30am…I have indicated to you when you are rostered for Duty in the morning or for Return of Subpoena, I require you to be at work prior to 9:00am… This arrangement applies to all registrars rostered for Duty or Court in the morning… If you wish to apply for a variation to this arrangement, you should apply in writing to myself or Megan proposing an alternative arrangement”.

116 In oral evidence to the Tribunal Ms Dubow agreed that the Department had a flexible hours agreement but she said that it was not applied in the Probate Registry. She said that it was only available if not on rostered Duty in which case a person had to arrive before 9:00am.

117 The Tribunal finds that there was a requirement imposed with respect to starting times in particular in the position to which Ms Dubow was transferred and that when rostered on Duty the requirement was to arrive at work prior to core hours at 9:00am.

118 The Tribunal however is not satisfied that Ms Dubow did not comply or was not able to comply because of her disability. On 23 May 2003 Ms Dubow wrote to Mr Riznyczok setting out her personal circumstances and reasons why it was not possible for her to be at work before 9:00am every day of the week. Ms Dubow stated that she was a “single mother of a delicate school age child”. Although she mentioned in that email that she “cannot be exposed to the dust, construction work of the probate office for complete days due to my asthmatic condition” she did not state that her asthmatic condition prevented her from being able to comply with the time requirements. The Tribunal is of the view that if this had been a problem it would have been mentioned in this email as Ms Dubow raised issues of concern to her with the Respondent in this email. Indeed, Ms Dubow raised in this same email that she had difficulties arriving before 9:00am on certain days for reasons of her sole carer status.

119 Furthermore, Ms Dubow stated in that email that “I do not require special consideration outside core hours as I am available at work well before 9:30 on each work day I attend, unless some unforeseen circumstance occurs.” This was confirmed in oral evidence to the Tribunal.

120 No evidence was placed before the Tribunal of the pool of people, being other asthma sufferers who could not comply with the time requirements or the pool of people who could comply.

121 The Tribunal is not satisfied that Ms Dubow could not comply with the time requirements because of her disability.

122 Accordingly the Tribunal finds that this complaint is not substantiated.

(ii) Requirement to Work in a Construction Zone

123 The evidence shows that the Probate Registry was undergoing renovations at the time of Ms Dubow’s transfer. As stated earlier in this decision the Tribunal is not satisfied that Ms Greenwood knew of the notification at the time the transfer was arranged nor is it satisfied that the Respondent perceived that the Probate Registry would cause problems for Ms Dubow.

124 At the time of the transfer at the end of April 2003 there was no suggestion that Ms Dubow would not be able to comply with attending the Probate Registry. It was not until 23 May 2003 that Ms Dubow wrote to Michael Whitehead and Jerry Riznyczok explaining that the exposure to the dust and construction work in the Probate offices was detrimental to her health because of her asthmatic condition. In that email Ms Dubow also stated that “It is still not clear to me why Probate files need to remain within the old King Street court precincts, when it is convenient to deal with them in the current pristine and healthier environment which is now my office…”.

125 Mr Riznyczok responded by email on 30 May 2003 in which he indicated that he had requested that a workplace assessment be carried out and that in the interim he had arranged that a Probate Registrar work with Ms Dubow on Level 5 to continue her training. The workplace assessment conducted recommended that her work environment be reviewed by an Occupational Hygienist to assess dust levels and also recommended that she not return to Level 12 until the dust levels there had been assessed.

126 The Tribunal finds that once it was discovered that working in the Probate Registry was potentially detrimental to Ms Dubow’s health, alternative arrangements were made and she was no longer required to work in the Probate Registry location in the King Street Court complex.

127 Accordingly, the Tribunal finds that there was no requirement to work in a “construction zone” and finds that this complaint of indirect discrimination has not been substantiated.

(iii) Requirement to Qualify for a Sitting Allowance as a Deputy Registrar

128 Mr Riznyczok gave evidence that to qualify for a sitting allowance as a Deputy Registrar, the Deputy Registrar had to be sitting in court carrying out court work. His evidence was that he anticipated that once Ms Dubow was trained in court work she would be paid a sitting allowance.

129 Ms Yoo’s evidence to the Tribunal confirmed that eligibility for the sitting allowance depended on management signing off on whether the Deputy Registrar regularly exercised the powers of the court. She stated however that she only learnt about the sitting allowance about one year after her appointment.

130 The Tribunal is satisfied that there was a requirement imposed by the Respondent that to qualify for a sitting allowance Ms Dubow would have to be trained in court work and would have to be regularly exercising the powers of a court.

131 There is no evidence before the Tribunal that Ms Dubow could not comply with this requirement because of her disability nor is there any evidence that a substantially higher proportion of Deputy Registrars who do not have Ms Dubow’s disability were able to comply with this requirement. Indeed the contrary is suggested by Ms Dubow’s own evidence that she was carrying out the requisite duties and should entitled to the sitting allowance. In her email to Michael Whitehead of 23 May 2003 Ms Dubow stated “There is also the outstanding possibility that there is some added remuneration available to deputy registrars who are available to sit in court…’the sitting fee’… Given my lack of lunchtime…I seem to spend and lot if time sitting…any chance the extra $$ cane be persued (sic)?”

132 The Tribunal is not satisfied that Ms Dubow was unable to comply with this requirement and is not satisfied that Ms Dubow’s disability played any part with respect to this issue in any event.

(iv) Requirement of Micro Management

133 Ms Dubow asserted that she became “subject to excessive supervision/micromanagement and that “the combined effect of illness, when placed in an unsuitable environment and unsatisfactory defined duties, meant that supervisors would be given additional likelihood for referring matters for disciplinary proceedings”. Ms Dubow asserted that unreasonable expectations were imposed with respect to medical certificates and that she was subjected to ostracism.

134 The evidence before the Tribunal shows that the working conditions in the Probate Registry were less flexible than Ms Dubow’s previous position, although the Department’s flextime policy was still available to her. The Tribunal accepts that Mr Finlay and Mr Riznyczok imposed requirements on Ms Dubow with respect to flextime, core hours, 9:00am commencement time when rostered for Duty, the provision of medical certificates for absences and the wearing of what was considered appropriate attire for court work.

135 There is no evidence before the Tribunal that Ms Dubow’s disability prevented her from complying with the requirements of flextime, the provision of medical certificate for her absences, core hours and wearing appropriate attire.

136 With respect to the disciplinary matters the Tribunal is satisfied that there was a multitude of other reasons that management referred matters for discipline in particular the Channel 7 filming for the Today/Tonight programme and the exchange between Paul Cutbush and Ms Dubow. There is ample evidence before the Tribunal that management was seriously concerned about Ms Dubow’s attempt to deceive management with respect to her role in authorising the filming by Channel 7 within the court precincts. In oral evidence to the Tribunal Ms Dubow said that she was critical of the court’s role in the foreclosure of mortgages of people’s homes. She stated that she was not aware that she was required to seek approval with respect to being filmed as a Duty Registrar and she, on her own initiative, gave authorisation for the filming. At the Tribunal hearing Ms Dubow said that she was not questioned by either Ms Greenwood or by Mr Riznyczok as the authorisation of the filming. This evidence is inconsistent with the evidence Ms Dubow gave to the Industrial Relations Commission where she stated in a statement filed on 11 June 2004 “The Acting chief Executive Officer then asked me: “How did they get the secret video footage of you in the duty room?” To which I answered “If I knew they wouldn’t be secret. There were certainly no camera crews or lighting people in attendance to my knowledge”.

137 The Tribunal accepts Ms Greenwood’s evidence that, in her judgment, Ms Dubow’s appearance as a court officer on television and her conversation with Paul Cutbush made it untenable for her to continue to work at a senior level within the court as she could not be trusted to address issues of concern in an appropriate way.

138 The Tribunal notes that section 4A of the ADA provides that if an act is done for 2 or more reasons and one of the reasons consists of unlawful discrimination, whether or not it is the dominant reason, then the act is taken to be done for that reason. The Tribunal is satisfied that Ms Dubow’s disability did not form even one of the reasons for the disciplinary proceedings or the micro management.

Claim of Direct Discrimination on the Ground of Responsibilities as a Carer

139 The test of discrimination for the purposes of section 49V(2) on the ground of a person’s responsibilities as a carer is set out in section 49T(1) of the ADA. Section 49T(1)(a) of the ADA provides that “a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities…”

140 The Applicant bears the onus of proof to the Briginshaw standard (Dutt vCentral Coast Area Health Service EOD (2003) NSWADTAP).

141 There is no dispute that at the relevant time Ms Dubow had a son aged about 11 who was in her care and that she was his primary caregiver although she did share his care with the child’s father. There is no dispute that Ms Dubow’s son was at the relevant time in need of care or support and that she had responsibilities as a carer as defined in section 49S(1) of the ADA.

142 Ms Dubow asserted that the transfer to the position of Deputy Registrar was unsuitable to her because of her responsibilities as a carer. She asserted that a previous attempt to act as a Deputy Registrar had been rejected as unsuitable and that of the Deputy Registrars only two had children and both of those had carers at home permanently to attend to their children’s needs and pre and post school requirements. She also asserted that the transfer meant she could no longer work at home but was required to comply with core hours as well as starting times of 9:00am when rostered to carry out Injunction duty.

143 The Respondent’s conduct towards Ms Dubow in this regard must be compared with the way that it treated or would have treated a person who did not have carer responsibilities in circumstances which are the same or are not materially different.

144 The evidence shows that that the work conditions in the Probate Registry were the same for all Deputy Registrars. The evidence of Ms Yoo supports the evidence of the Respondent in this regard. The Tribunal infers from this that all Deputy Registrars were subjected to the same conditions whether they had carer responsibilities or not. Similarly, working from home was a benefit extended to all employees of the Respondent during the Olympics in 2000 for a six week period only. Although Ms Dubow had an arrangement with the President that she could work up to 2 days a week from home, this had not been properly authorised by the Respondent. There is no evidence before the Tribunal that the Respondent would have treated employees without responsibilities as carers any differently. Ms Greenwood sought to regularise Ms Dubow’s work conditions in accordance with Departmental policy. The flextime arrangements are designed to afford some flexibility with respect to hours of work to accommodate people with responsibilities as carers. Although Ms Dubow could no longer work from home she could still avail herself of the flextime arrangements. Ms Dubow’s own evidence was that she had no difficulty meeting the core periods unless something unforeseen happened and she did not require special consideration outside core hours as she was available for work.

145 The Tribunal notes however that Ms Dubow raised a difficulty with respect to the requirement to attend the Probate Registry before 9:00am when rostered on Duty. In her email to Michael Whitehead and Jerry Riznyczok on 23 May 2003 Ms Dubow stated:

“As a single mother of a ’delicate school age child’ it is usually not possible for me to be at the Supreme Court building before 9:00am…It is also ‘stress’ to do it continually throughout the week… especially so, on days when I am volunteered for Injunction duty which may keep me away from my family responsibilities for indeterminable time.

I am happy to do Injunction duty and work to the extended core time of 6 or 7 p.m normally on Wednesday and Friday…These days suit me best for Injunction duty or Duty Registrar p/m rostered duties, mainly ‘cause they are the access ordered days for the child to be collected by its father …(which still requires that he keep himself occupied for three hours after school).”

146 Mr Riznyczok replied to this email stating that when Ms Dubow is rostered for Duty or Return of Subpoena she must be at work prior to 9:00am but that in response to her family circumstances he would roster her for Duty in the afternoon only on Wednesdays and Fridays and that this would mean that he may need to roster her for Duty in the morning on Mondays and Tuesdays.

147 In her email dated 30 May 2003 in response Ms Dubow stated that “I am available to work till 5:00pm (at least) every day so any day afternoon duty work is suitable. It is only the issue of Injunctions when Wednesday and Friday are my preferred days”. The Tribunal is of the view that as there were no more emails regarding this issue that it was no longer an issue for Ms Dubow. The Tribunal is fortified in this view by the fact that when Ms Dubow lodged her first complaint with the ADB, the complaint in August 2003 concerned actual or perceived homosexuality and actual or perceived disability and there was no mention of responsibilities as a carer discrimination. The Tribunal is of the view that if this had remained an issue it would have been alleged at that time. It was not until May 2004 that the complaint alleging discrimination on the ground of carer’s responsibilities was made.

148 The Tribunal is satisfied that Ms Dubow was not treated less favourably because of her carer responsibilities but that in any event when alerted to her difficulties, the Respondent tried to accommodate her needs.

149 This complaint is not substantiated.

Claim of Indirect Discrimination on the Ground of Responsibilities as a Carer

150 The test for indirect discrimination on the ground of carer’s responsibilities is set out in section 49T(1)(b). That section provides that “A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s responsibilities as a carer, if on the ground of the aggrieved person having responsibilities as a carer, the perpetrator….requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply”.

151 As stated earlier in this decision to succeed in a claim of indirect discrimination Ms Dubow must establish all the elements set out in section 49T(1)(b).

152 The Tribunal is satisfied that a requirement was imposed by the Respondent that Ms Dubow be at the Probate Registry prior to 9:00am on days when she was rostered on Duty. Within a few weeks of commencing at the Probate Registry Ms Dubow informed the Respondent that she would have difficulties with complying with this requirement because of her carer responsibilities. Mr Riznyczok endeavoured to accommodate her needs by shifting the rosters. In her email dated 30 May 2003 to Mr Riznyczok, Ms Dubow indicated that her only difficulties related to Injunction Duty and that she had preferred days and Mr Riznyczok indicated that he would accommodate this preference.

153 The Tribunal notes that an application to management to vary this requirement was also available to Ms Dubow had she not been satisfied with the action taken by Mr Riznyczok. She did not seek such a variation.

154 The Tribunal notes in passing that rigid adherence to time requirements outside core hours might result in indirect discrimination for persons with carer responsibilities if they are unable to comply with the requirement. However this was not the case in the particular circumstances of this case as the Respondent endeavoured to accommodate Ms Dubow’s responsibilities as a carer.

155 The Tribunal is satisfied that the evidence shows that Ms Dubow was able to comply once her needs were made known and accommodated by the Respondent. Accordingly, there is no need for the Tribunal to consider the other aspects of indirect discrimination.

156 This complaint of indirect discrimination on the ground of responsibilities as a carer is not substantiated.

Victimisation

157 Ms Dubow claimed that she was threatened with dismissal and disciplinary proceedings, her position was deleted, she took a voluntary redundancy as she received no suitable work for 18 months, she suffered daily harassment and ostracism and was constantly defending herself following her complaint to the ADB.

158 Under section 50 of the ADA the Respondent will have victimised Ms Dubow if it subjected her to a “detriment” because she alleged that the Respondent had contravened the ADA. The relevant parts of section 50 are as follows:

50(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

…

(c) alleged that the discriminator or any other person has committed an act which whether or not the allegation so states, would amount to a contravention of this Act.

159 Ms Dubow lodged a complaint with the ADB on 1 August 2003 (received by the ADB on 7 August 2003). This initial complaint alleged discrimination on the grounds of actual or perceived homosexuality and actual or perceived disability. The complaint with respect to actual or perceived homosexuality was later abandoned although Ms Dubow told the Tribunal that the President had some concerns regarding her participation in the Gay Games. The Tribunal is of the view that, given this evidence, Ms Dubow intended to lodge a complaint of actual or perceived homosexuality although she later abandoned it.

160 Ms Dubow lodged two complaints of victimisation in March 2004 and May 2004 and a further complaint alleging disability and carer’s responsibility discrimination in May 2004.

161 The Tribunal has carefully considered all the evidence before it. The Tribunal is of the view that there is no evidence to support the assertions made by Ms Dubow with respect to victimisation.

162 Even prior to the first complaint to the ADB Ms Dubow had been counselled regarding the sequined pink dress and her inappropriate behaviour as Mr Riznyczok considered that the incident was an attempt to undermine his authority. Following the complaint in August 2003 Ms Dubow appeared on the Today/Tonight Programme and she was questioned by Ms Greenwood and Mr Riznyczok. Both Mr Riznyczok and Ms Greenwood were sceptical of her denials regarding the authorisation of the filming and although the matter was considered to be most serious and that Ms Dubow had been deceitful, Ms Greenwood considered that it would be best to try to find Ms Dubow another placement outside the Supreme Court as she found Ms Dubow’s behaviour in the workplace to be unacceptable and had formed the view that it was untenable for her to continue as a Deputy Registrar.

163 Following this incident Ms Dubow was placed on project work and then took extended leave. The next incident concerned the sick leave application in March 2004, which was cancelled by Mr Riznyczok because he understood that she had more than five absences in the previous 12 months without a medical certificate. Ms Dubow challenged this and he reversed his decision once he re-examined the policy. Shortly thereafter in March 2004 the incident of the exchange between Ms Dubow and Paul Cutbush occurred. The conversation was reported to Ms Greenwood by Mr Cutbush as he was on his way to see her when the incident took place. This incident led to another counselling session and Ms Greenwood’s evidence which the Tribunal accepts was that she was concerned about Ms Dubow’s professionalism in the workplace.

164 The Tribunal accepts that Ms Dubow had been unhappy in her work in the Supreme Court and even in her work as legal researcher and that she had wanted a lateral transfer. She was unhappy with the transfer to the Probate Registry and frustrated in her attempts to change what she perceived as a rigid and inflexible the culture and she believed that her attempts to be transferred back to her former position were being thwarted. In her frustration she behaved in a way that was considered unprofessional by management and inappropriate and unacceptable given her senior position.

165 The Tribunal is satisfied that the deletion of Ms Dubow’s position was not an act of victimisation. Not only was Ms Dubow’s position affected as suggested by Mr Gillard. There were six positions affected in all, although hers was the only permanent appointee position. It is the Tribunal’s view that, despite her apparent deceit over the Channel 7 filming and the other inappropriate conduct, the Respondent acted in good faith towards Ms Dubow in its attempts to find her a placement elsewhere, which she admitted in oral evidence she white-anted.

166 Apart from Ms Dubow’s assertion that she was ostracised there is no other evidence of any ostracism. Ms Greenwood denied encouraging and directing any conduct that could be perceived as ostracism. Indeed Ms Greenwood’s evidence was that she invited Ms Dubow to drinks and Ms Dubow agreed with this evidence that she had been invited but she stated that she did not feel welcome. The Tribunal is not satisfied that Ms Dubow has established that there was any ostracism of her in the workplace that was encouraged by the Respondent.

167 Ms Dubow also complained of harassment in that she was required to provide medical certificates for absences. According to the evidence the issue arose in March 2004 because Ms Dubow had more than five absences of unsubstantiated leave in the previous 12 months. The Tribunal accepts that management was applying the Department’s policy. It is noted however that once Mr Riznyczok realised that he had misunderstood the policy, he reversed the decision. This does not appear to the Tribunal to amount to victimisation.

168 The claim that Ms Dubow was not provided with any suitable work for 18 months is also, in the Tribunal’s view, unsustainable. Following Ms Dubow’s complaint of dust allergy, she was no longer required to attend the Probate Registry but she continued to work on Level 5. Mr Riznyczok arranged for training to continue and the evidence shows that a Probate Registrar attended Level 5 to train Ms Dubow in Probate Accounts. This did not continue because the Probate Registrar found Ms Dubow to be uninterested in the work. Following the incident involving the filming by Channel 7 she was given project work by Mr Riznyczok and management was trying to find her a placement elsewhere. She also took extended leave. It is the Tribunal’s view that the Respondent was dealing with the situation of a very unhappy employee who was resentful and uncooperative in the best way that it could. There is no evidence of victimisation.

169 This complaint of victimisation is not substantiated.

Apprehended Bias

170 Ms Dubow submitted that she has brought a complaint as to the administration of the Attorney General’s Department, the Respondent in these proceedings. She submitted that the Respondent is in a position of control and influence over the Administrative Decisions Tribunal panel and therefore there is a reasonable apprehension of bias in the Tribunal dealing with the matters raised in these proceedings.

171 The development of the rule with respect to apprehended bias is based on the need to maintain confidence in the judicial process. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide (Re Refugee Review Tribunal; Ex Parte H (2001) HCA 28; Livesey v New South Wales Bar Association (1983) 151 CLR 288 and Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Anor (2004) NSWCA 291).

172 It is true that Tribunal Members are appointed to the Tribunal for a fixed term and that they may desire reappointment. There may therefore exist an apprehension that Tribunal Members may seek to please those who are responsible for their reappointment. However Tribunal Members are charged with a duty to perform functions of the Tribunal pursuant to the relevant legislation and they are required to conduct proceedings in accordance with the rules of natural justice and procedural fairness. They take an oath to do so. They are required to bring an impartial and unprejudiced mind to the resolution of issues before them and to determine each case on its merits and particular circumstances. As Ipp J stated in the Commissioner of Corrective Services case:

These problems with the very nature of the system underline the care which tribunal members should take to do nothing that gives further cause for apprehension of bias.

173 The Tribunal has carefully considered all the evidence before it and has made its decision regarding the complaints on the basis of their merits.

Orders

The Complaints are dismissed.

No Order as to Costs.