Edoo v Minister for Health

[2010] WASAT 74

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   EDOO and MINISTER FOR HEALTH [2010] WASAT 74

MEMBER:   JUDGE J PRITCHARD (DEPUTY PRESIDENT)

MR P McNAB (MEMBER)

HEARD:   19 NOVEMBER 2009

SUBMISSIONS FILED 27 NOVEMBER 2009 AND 8 DECEMBER 2009

DELIVERED          :   24 MAY 2010

FILE NO/S:   EOA 10 of 2009

BETWEEN:   MOHAMED ISLAM EDOO

Applicant

AND

MINISTER FOR HEALTH
Respondent

Catchwords:

Unlawful discrimination on grounds of impairment - Discrimination in employment - Section 66A Equal Opportunity Act 1984 (WA) - Impairment - Illness or condition

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 5, s 66A, S 66A(1), s 66A(3), s 66B, s 66B(1), s 66B(1)(b), s 66B(2), s 66B(2)(b), s 66B(2)(c), s 66Q(2), s 89, s 90(2), s 161
Hospitals and Health Services Act 1927 (WA), s 7
Privacy Act 1988 (Cth)
Public Sector Management Act 1994 (WA), s 102
State Administrative Tribunal Act 2004 (WA), s 32, s 32(2), s 32(2)(b), s 32(4), s 32(6), s 47, s 48

Result:

The application is dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr A Shuy and Ms S Teoh

Solicitors:

Applicant:     Self-represented

Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165

Biundo and Cocks Macnish [2005] WASAT 300

Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1894) 6 R 67

Bukilic and Lifenet (WA) Financial Advice Pty Ltd [2008] WASAT 213

Dare v Hurley [2005] FMCA 844; (2005) EOC 93­405

Ghockson v Commissioner of Police (1996) EOC 92­798

Grover v Commissioner of Police [2005] WASC 263

Haines v Leves (1987) 8 NSLWR 442

Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107

Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92

Re Prezzie and Discrimination Commissioner and Quest Group Pty Ltd (1996) 39 ALD 729

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No. 9) [2008] WASC 239

Waters v Public Transport Corporation (1991) 173 CLR 349

Williams and Commissioner of Police [2005] WASAT 349

Zangari and St John Ambulance Service [2010] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The complainant, Mr Edoo, complained that he had been unlawfully discriminated against on the ground of impairment in the area of employment while employed by the respondent as a mental health nurse at Fremantle Hospital. 

2. The Tribunal discerned that Mr Edoo alleged that employees of the respondent committed six acts of unlawful discrimination against him in the context of his employment, contrary to s 66A and s 66B of the Equal Opportunity Act 1984 (WA). Mr Edoo alleged five acts of direct discrimination and one act of indirect discrimination by the respondent's employees. The respondent denied that his employees had engaged in any discriminatory conduct on the ground of impairment in the context of Mr Edoo's employment. In the alternative, the respondent submitted that even if the conduct of his employees in imposing a condition on Mr Edoo's return to work arose because of an impairment suffered by Mr Edoo, such conduct was not unlawful discrimination because it fell within the exception in s 66Q(2) of the Act.

3. The Tribunal found that Mr Edoo failed to establish his claims of direct discrimination contrary to s 66A(1), because it considered that Mr Edoo failed to establish that he suffered from an impairment as defined in the Equal Opportunity Act 1984 (WA), failed to establish that one of the reasons why he was subjected to the alleged discriminatory conduct was because of an impairment, and failed to establish that he received less favourable treatment than the respondent would have treated a person without the impairment in the same circumstances, or circumstances which were not materially different.

4. The Tribunal found that Mr Edoo failed to establish his claim of indirect discrimination contrary to s 66A(3), because Mr Edoo failed to establish that he suffered from an impairment as defined in the EqualOpportunity Act 1984 (WA), failed to establish that the imposition of a condition on Mr Edoo's employment was unreasonable having regard to the circumstances of the case, and because Mr Edoo failed to establish that he could not comply with the condition.

5. In light of its findings in relation to s 66A(1) and s 66A(3), it was unnecessary for the Tribunal to consider whether other aspects of Mr Edoo's complaint were established, including whether the alleged acts of discrimination were committed in the circumstances set out in s 66B of the Act. It was also not necessary for the Tribunal to consider the respondent’s alternative submission in relation to s 66Q(2) of the Act, nor for it to consider arguments concerning the availability of the relief sought by Mr Edoo.

6. Having determined that Mr Edoo had failed to establish that he was unlawfully discriminated against by the respondent, contrary to the Equal Opportunity Act 1984 (WA), the Tribunal dismissed Mr Edoo's complaint.

Overview of Mr Edoo's complaint and the factual context

1. Mr Edoo is a mental health nurse who was employed at Fremantle Hospital (the hospital) during early 2008. The respondent Minister was Mr Edoo's employer at the time, in his incorporated capacity as the Board of the hospitals formerly comprising the Metropolitan Health Services Board under s 7 of the Hospitals and Health Services Act 1927 (WA).

2. Mr Edoo alleges that a number of acts of unlawful discrimination were committed by employees of the respondent between March and June 2008.  Although Mr Edoo did not expressly frame his case as one which alleged vicarious liability we understand his case to be that the respondent is vicariously liable for the conduct of its employees at the hospital.  The respondent approached Mr Edoo's complaint on that basis.  References to the respondent in these reasons for decision encompass both the Minister in his corporate capacity as the employer, and reflect the fact that Mr Edoo's complaint is that the Minister is vicariously liable for the acts of his employees which are said to constitute unlawful discrimination under the Equal Opportunity Act 1984 (WA) (EO Act).

3. Mr Edoo alleges discrimination by the respondent on the ground of an impairment from which he claims to suffer, contrary to s 66A(1) of the EO Act. We discuss the nature of that alleged impairment below. Mr Edoo claims that that discrimination took place in the course of his employment, contrary to s 66B of the EO Act.

4. Mr Edoo's complaint was referred to the Tribunal by the Acting Commissioner for Equal Opportunity, pursuant to s 90(2) of the EO Act. The Commissioner for Equal Opportunity dismissed Mr Edoo's complaint pursuant to s 89 of the EO Act, on the ground that the complaint was misconceived.

5. The factual context for the allegations made by Mr Edoo is, in broad outline, as follows.  On 19 March 2008 Mr Edoo was directed to escort a patient from an open ward to a locked ward in the hospital.  As part of the hand over of the patient to staff of the locked ward, Mr Edoo claims that the Acting Ward Manager directed him to conduct a search of the patient.  Mr Edoo refused to do so.  We will refer to this incident as the 19 March incident. 

6. Mr Edoo claims that after the 19 March incident, he was informed by Ms Maureen Wiltshire, the Acting Nursing Director, that he would no longer be permitted to act in a more senior nursing position for which he had been previously selected.  In addition, Mr Edoo claims that Ms Wiltshire informed him that he would be required to undergo performance management by working under the supervision of his Senior Nurse Manager, Mr Larry Ayoub, and for that purpose, to work on morning shifts from Monday to Friday (the performance management condition).  Mr Edoo says that as a result of that decision he was unable to earn overtime, weekend or penalty shift rates. 

7. Mr Edoo claims that Ms Wiltshire informed him of these new conditions at a meeting on 17 April 2008 which was attended by Ms Wiltshire, and the Operational Manager, Mr Zenith Zeeman, to discuss the 19 March incident.  However he also claims that he was advised of these conditions at a meeting on 10 June 2008 which was attended by Ms Wiltshire and Ms Freda Bajrovic, an Employee Relations Officer at the hospital.

8. In May 2008 Mr Edoo was directed to see a psychiatrist for an assessment.  Mr Edoo says that he was informed that the reason for this assessment was that in a phone call he made to Ms Whitworth, an Acting Human Resource Nurse Consultant at the hospital, he had mentioned that he felt suicidal.  Mr Edoo says that this was a misunderstanding, and that this was later clarified by Ms Whitworth.  Mr Edoo also says that he was informed that the reason for the psychiatric assessment was the fact that he had disclosed that he was on medication at the time of the 19 March incident.  Mr Edoo saw Dr Kate Lindsay on 12 May 2008 for the purposes of that psychiatric assessment. 

9. Mr Edoo claims that at his meeting with Ms Wiltshire and Ms Bajrovic on 10 June 2008 he denied all of the allegations against him, and requested a formal investigation into the 19 March incident.  He says that he also requested that he be permitted to return to work on his previous conditions of work while that investigation was proceeding, but that this request was denied. 

10. Mr Edoo says that he then requested leave without pay for a period of three to six months.  He says that this leave was approved but with a restriction that he was unable to work within the Western Australian public health system while he was on unpaid leave.  Mr Edoo claims that as a result of this decision, he had no choice but to resign under duress so that he could seek other work to support himself and his family.  He resigned on 23 June 2008.

11. Mr Edoo alleges that as a result of what he claims was the alleged unlawful discrimination against him, culminating in his resignation, he suffered loss of earnings, loss of his entitlements (such as leave, long service leave, professional development, superannuation and eligibility for salary sacrificing benefits), loss of permanent employment, poor psychological health, stress, damage to his reputation and loss of confidence.  Mr Edoo seeks damages by way of compensation, and an order by the Tribunal that he be reinstated to his former position, 'on conditions to be discussed'.

12. These reasons for decision deal with the following matters:

    1.The documents filed by the parties;

    2.The alleged acts of discrimination and the respondent's case;

    3.Matters to be established to prove the alleged discrimination;

    4.The procedural background and Mr Edoo's approach to the hearing;

    5.Consequences of Mr Edoo's approach to the hearing;

    6.Summary of the Tribunal's conclusions;

    7.Failure to establish the alleged direct discrimination:

    (a)Failure to establish an impairment;

    (b)Failure to establish a causal connection between the alleged acts of discrimination and the alleged impairment;

    (c)Failure to establish less favourable treatment ­ absence of comparator evidence.

    8.Failure to establish the alleged indirect discrimination:

    (a)Failure to establish an impairment;

    (b)Failure to establish that the imposition of the performance management condition was unreasonable having regard to the circumstances of the case;

    (c)Failure to establish that the performance management condition was one with which Mr Edoo was not able to comply.

    9.Conclusion and orders.

1. The documents filed by the parties

1. Mr Edoo filed a number of documents in the Tribunal:

   •a Statement of Issues, Facts and Contentions dated 16 June 2009 (exhibit 1);

   •Mr Edoo's response, dated 24 July 2009, to the respondent's Statement of Issues Facts and Contentions dated 17 July 2009 (exhibit 3);

   •a second Statement of Issues and Facts dated 4 November 2009 (exhibit 4);

   •a submission dated 11 November 2009 (exhibit 5);

   •a submission dated 12 November 2009 (exhibit 6);

   •a submission dated 18 November 2009 (exhibit 7).

2. Mr Edoo also filed a bundle of the documents on which he relied in the proceedings (exhibit 2). 

3. Following the hearing of his complaint on 19 November 2009, and pursuant to leave granted by the Tribunal, Mr Edoo filed a submission dated 8 December 2009.

4. The respondent filed a Statement of Issues, Facts and Contentions dated 17 July 2009 (exhibit 8).  The respondent also filed a bundle of documents (exhibit 9) and a supplementary bundle of documents (exhibit 10).  The respondent filed witness statements from the following witnesses:  Mr Zenith Edward Zeeman (exhibit 11), Ms Maureen Dawn Wiltshire (exhibit 12), Mr Larry Edward Ayoub (exhibit 13), Ms Peta Catherine Gough (exhibit 14), Ms Lynette Margaret Whitworth (exhibit 15) and Ms Freda Ema Bajrovic (exhibit 16).  The respondent also filed a written submission in relation to the question of the relief claimed (exhibit 19) and a book of the authorities referred to by the respondent in counsel's oral submissions at the hearing (exhibit 18).

5. Following the hearing, and pursuant to leave granted by the Tribunal, the respondent filed submissions in relation to the application of s 66Q(2) of the EO Act.

6. In addition to these documents, we also had before us a copy of the referral to the Tribunal dated 27 March 2008, by the Acting Commissioner for Equal Opportunity, of Mr Edoo's complaint (exhibit 17).

1. The alleged acts of discrimination and the respondent's case

1. The documents filed by Mr Edoo reveal, to varying extents, aspects of Mr Edoo's complaint that employees of the respondent unlawfully discriminated against him, contrary to the EO Act.  However, neither individually nor collectively do any of the documents filed by Mr Edoo clearly particularise his complaint. 

2. Doing the best that we can to discern Mr Edoo's complaint from the documents he filed, we understand that Mr Edoo alleges that employees of the respondent at the hospital engaged in up to six acts of discrimination against him, in the context of his employment.  We have discerned 'up to' six acts of discrimination because it was not entirely clear from the documents filed by Mr Edoo whether particular matters about which he appeared to complain were intended to constitute separate allegations of acts of discrimination, or whether they simply formed part of the factual background to some of the other alleged acts of discrimination. 

3. The alleged acts of discrimination appear to be:

   (i)requiring Mr Edoo to conduct a search of a patient being admitted to a locked ward;

   (ii)requiring Mr Edoo to undergo performance management, by working under the supervision of his Senior Nurse Manager, Mr Ayoub, for 6 to 12 weeks and for that purpose, to work on day shifts from Monday to Friday, with the result that he would not earn overtime, weekend or penalty shift rates (the performance management condition);

   (iii)denying Mr Edoo the opportunity to act in a more senior nursing position;

   (iv)requiring Mr Edoo to undergo a psychiatric assessment;

   (v)granting Mr Edoo a period of leave without pay but on the condition that he not engage in other work within the Western Australian public health system during that period of leave; and

   (vi)leaving Mr Edoo 'with no alternative' but to resign from his employment (the alleged dismissal).

4. We note for completeness that the documents filed by Mr Edoo also contain a number of other allegations of inappropriate or unsatisfactory conduct by employees of the respondent, including allegations of an inadequate, biased investigation by the hospital into the 19 March incident, a denial of natural justice, violations of Mr Edoo's human rights, an alleged breach of the PrivacyAct1988 (Cth), alleged breaches of his employer's duty of care to him and unfair dismissal contrary to industrial relations legislation. Allegations of this nature do not fall within the jurisdiction of the Tribunal under the EO Act, and accordingly we do not address those matters in these reasons.

5. The respondent did not dispute that Mr Edoo was employed by him at the time of the alleged acts of discrimination, or that the persons said to have engaged in the alleged acts of discrimination were employees of the respondent at the relevant time. Accordingly, if Mr Edoo is able to establish that the acts done by the employees of the respondent were unlawful acts of discrimination under the EO Act, the respondent would be vicariously liable for those acts pursuant to s 161 of the EO Act.

6. Instead, the position of the respondent was to deny that his employees had engaged in any conduct which constituted discrimination on the ground of an impairment in the context of Mr Edoo's employment. Numerous grounds were relied on by the respondent for that contention. These included that Mr Edoo was not suffering from an impairment, that the conduct of the respondent's employees was not related to any impairment from which Mr Edoo was alleged to be suffering, that the conduct of the respondent's employees did not subject Mr Edoo to any detriment in his employment, that Mr Edoo was not treated less favourably than the respondent treated or would have treated any other employee in the same, or not materially different, circumstances, and that the requirement to comply with the performance management condition was entirely reasonable in the circumstances. In addition, the respondent submitted, in the alternative, that if the conduct of his employees in imposing conditions on Mr Edoo's return to work arose because of an impairment suffered by Mr Edoo, then that conduct fell within the exception in s 66Q(2) of the EO Act and was therefore not unlawful discrimination for the purposes of the EO Act.

1. Matters to be proved to establish the alleged discrimination

1. Broadly speaking, in relation to each of the alleged acts of discrimination, Mr Edoo would need to establish that the respondent subjected him to discrimination within the definition of discrimination in s 66A of the EO Act, that the discrimination occurred in the circumstances referred to in s 66B of the EO Act, so that it was therefore unlawful discrimination, and that the respondent was vicariously liable for the discriminatory conduct of his employees.

2. Having regard to the nature of most of the alleged acts of discrimination we have identified above, it appears that, generally speaking, Mr Edoo alleges direct discrimination by employees of the respondent, contrary to s 66A(1). Subsection 66A(1) of the EO Act provides:

   For the purposes of this Act, … the 'discriminator'.. [ie the respondent] discriminates against … the 'aggrieved person' … [ie Mr Edoo] on the ground of impairment if, on the ground of ­

   (a)the impairment of the aggrieved person;

   (b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person;

   (c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person;

   ...

   the discriminator treats the aggrieved person less favourably than in the same circumstances, or circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

3. It appears from exhibit 7 that Mr Edoo alleges that the imposition of the performance management condition constituted an act of indirect discrimination, contrary to s 66A(3) of the EO Act. Subsection 66A(3) of the EO Act provides:

   For the purposes of this Act, … 'the discriminator' … [ie the respondent] discriminates against … the 'aggrieved person' … [ie Mr Edoo] on the ground of impairment if the discriminator requires the aggrieved person to comply with a requirement or condition –

   (a)with which a substantially higher proportion of persons who do not have the same impairment as the aggrieved person comply or are able to comply;

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

1. It appears that the respondent's counsel did not appreciate that Mr Edoo's complaint comprised an allegation of indirect discrimination because he treated all of the allegations made by Mr Edoo as allegations of direct discrimination. Such an oversight may be seen as understandable, given the difficulties that we had in distilling Mr Edoo's allegations from the materials he filed. More is said on this topic below. In so far as the respondent sought to rely on s 66Q(2) of the EO Act with respect to the alleged discrimination arising from the performance management condition, it is clear from the respondent's submissions that that allegation was understood to be an allegation of direct discrimination. Having regard to the approach we took to the evidence, the conclusions we reached on other grounds, and the totality of the matters traversed in the respondent's submission including the reasonableness of the performance management condition, this misunderstanding did not adversely impact on the respondent's opportunity to answer Mr Edoo's complaint, and it was unnecessary for us to reconvene in relation to this issue.

2. The EO Act does not prohibit discrimination on the ground of an impairment in all circumstances. However, discrimination on the ground of an impairment is unlawful if it occurs in certain circumstances within the context of a person's employment. Subsection 66B(1) of the EO Act makes it unlawful for an employer to discriminate in various ways against a person on the ground of their impairment in relation to matters prior to the person being employed by the employer, while s 66B(2) of the EO Act makes it unlawful for an employer to discriminate in various ways against an employee on the ground of the employee's impairment.

3. Mr Edoo alleged (in exhibit 3) that the denial of the opportunity to act in a more senior position constituted a breach of s 66B(1)(b) and s 66B(2)(b) of the EO Act. The alleged dismissal was referred to in Mr Edoo's submission of 8 December 2009 as a breach of s 66B(2)(c) of the EO Act. However, in relation to the remaining alleged acts of discrimination Mr Edoo did not particularise the breach of any particular subsection within s 66B of the EO Act.

4. The outcome of this case resulted, to a very substantial degree, from the manner in which Mr Edoo ran his case.  For that reason, it is necessary to say something about the procedural background and the approach Mr Edoo took to putting his case before the Tribunal.

1. Procedural background and Mr Edoo's approach to the hearing

1. Mr Edoo did not attend before the Tribunal for any substantial part of the hearing of his complaint on 19 November 2009.  He appeared briefly by telephone but then declined to participate further in the hearing, and indicated that he wished to rely on his written submissions dated 18 November 2009 (exhibit 7) (T: 12, 19.11.09). 

2. In a number of directions hearings prior to the substantive hearing of his complaint, the Tribunal had drawn to Mr Edoo's attention the need for him to put evidence before the Tribunal in support of his complaint. 

3. By way of example, in the course of an interim hearing on 20 October 2009, Mr Edoo advised the Tribunal that up until that point he had not intended to call any witnesses in the trial of his complaint. However, he indicated that he would reconsider that course in view of the witness statements filed by the respondent (T: 8 ­ 9, 20.10.09). On that occasion, the Tribunal urged Mr Edoo to carefully consider the requirements in s 66A for a claim of discrimination on the ground of impairment, to think about what material he would put before the Tribunal to establish each of those matters, and that if he wished to call witnesses, to discuss their evidence with them first, to determine how their evidence would assist his case (see T: 23, 26 ­ 27, 20.10.09).

4. The Tribunal held a directions hearing on 17 November 2009, two days prior to the commencement of the substantive hearing.  That hearing was precipitated by the Tribunal's receipt of a letter from Mr Edoo which indicated that he did not want to attend the hearing in person, and requested that the Tribunal excuse him from attendance at the hearing altogether.  In the course of the directions hearing, Mr Edoo advised the Tribunal that he did not wish to appear before the Tribunal, or to give evidence, because doing so would place him under greater stress, and that that would have adverse consequences for his health.  He did not provide any medical evidence in support of this submission, and he expressly declined to make an application for an adjournment of the trial.  Mr Edoo indicated that he wished the Tribunal to proceed with the hearing, that the Tribunal should rely on the documents he had filed as the material on which his complaint was based and that he did not require the respondent's witnesses to attend for cross examination (T: 17, 17.11.09).

5. Mr Edoo's submissions at the directions hearing suggested that he was under the misapprehension that the Tribunal would be able to piece together the essence of his case on his behalf. In view of Mr Edoo's submissions, the Tribunal again sought to remind Mr Edoo that as the applicant it was necessary for him to put material before the Tribunal to establish his claim of discrimination contrary to s 66A and s 66B of the EO Act. The Tribunal also drew to Mr Edoo's attention the potential perils for his case if he failed to attend, to adduce evidence or to cross examine the respondent's witnesses. Mr Edoo's attention was specifically drawn to the prospect that if he failed to give evidence, the respondent could make an application to strike out his complaint. He was also alerted to the possibility that if he failed to submit to cross­examination, the respondent may make a submission that his evidence should not be accepted, or should be given little weight, to the extent that it was inconsistent with evidence of the respondent's witnesses. The Tribunal also drew to Mr Edoo's attention that if, as he had foreshadowed, he intended to make a written submission that the respondent's witnesses were dishonest, or that his own evidence should be preferred to that of the respondent's witnesses, the Tribunal would be likely to have difficulty in accepting that submission if Mr Edoo had not put those matters to the respondent's witnesses in cross examination (T: 3 ­ 7, 10 ­ 11, 14, 17.11.09).

6. As we have noted, Mr Edoo appeared briefly, by telephone, at the substantive hearing of the complaint on 19 November 2009.  Initially he indicated that he would listen to the proceedings without making any contribution.  At that stage, we drew to his attention that it was a matter for him to determine how he ought to run his case, but we reminded him of the difficulties that might befall his case if he did not participate in or advocate his own case (T: 8 ­ 9, 19.11.09).  Shortly thereafter, Mr Edoo indicated that he did not wish to participate in the hearing any more and would simply rely on his written submissions.  At that point, we ordered that Mr Edoo be provided with a transcript of the hearing, and that he have seven days following the receipt of the transcript in which to file any submissions in reply.

7. The position, therefore, was that Mr Edoo did not file a witness statement setting out his own evidence.  He relied simply on the factual material in the documents he filed.  In addition, Mr Edoo was unwilling to submit to cross examination about those factual matters.  Mr Edoo also did not seek to adduce evidence from any other witnesses in support of his complaint, but again simply relied on the documents he filed.

8. The respondent's counsel expressly declined to make an application to strike out Mr Edoo's complaint, on the ground that it was without substance, pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and counsel did not at any stage invite the Tribunal to dismiss the proceeding on the ground that Mr Edoo's conduct of the proceeding ­ such as his failure to attend and participate in the substantive hearing ­ was unnecessarily disadvantaging the respondent (cf s 48 of the SAT Act).

9. Instead, in response to the factual material in the documents filed by Mr Edoo, the respondent relied on the evidence set out in the witness statements of Mr Zeeman, Ms Wiltshire, Mr Ayoub, Ms Whitworth and Ms Bajrovic.  As Mr Edoo had confirmed that he did not wish to cross examine any of these witnesses, and as the Tribunal did not require these witnesses to clarify any issues in their witness statements, the witnesses were not called to give evidence.

10. In response to some submissions made by Mr Edoo in exhibit 7, however, the respondent called Ms Peta Gough to give evidence, and was given leave to supplement the evidence in chief set out in her witness statement in order to respond to the submissions made by Mr Edoo.

11. The respondent's counsel made submissions in relation to the evidence, and in relation to the application of the EO Act. Counsel for the respondent requested, and was granted, leave to file a written submission concerning the possible application of s 66Q(2) of the EO Act, following the hearing.

1. Consequences of Mr Edoo's approach to the hearing

1. Acting for oneself in legal proceedings can be a difficult and stressful exercise, particularly for persons who have no legal training. Complaints of direct and indirect discrimination under the EO Act can involve complex legal issues, and often involve conflicting evidence, which can add to the difficulty for self-represented litigants. Although the Tribunal endeavours to ensure that all litigants understand the procedures in the Tribunal, it is not appropriate for the Tribunal to provide a litigant with specific advice about the manner in which his or her case should be run. Subject to the need for the Tribunal to ensure fairness to an opposing party (which is reflected in provisions such as s 32 and s 48 of the SAT Act) it is ultimately for a litigant to determine how to present their case to the Tribunal, and what evidence should be placed before the Tribunal in support of that case.

2. The Tribunal endeavoured to ensure that Mr Edoo was aware of the procedure adopted by the Tribunal in dealing with cases under the EO Act, that he was aware that he was entitled to call evidence in support of his case, that he was aware of the possible consequences of his intention not to submit to cross­examination, and that he was aware of the possible consequences of his decision not to cross examine any of the respondent's witnesses: cf s 32(6) of the SAT Act.

3. Although the rules of evidence do not apply in the Tribunal (see s 32(2) of the SAT Act), it remains incumbent upon the Tribunal to act fairly to all parties to the proceedings before it (cf s 32(2)(b) of the SAT Act). We determined that in order to ensure fairness to both parties, we should take the following approach.

4. First, we determined that we would regard the factual material set out in the various documents filed by Mr Edoo as constituting his evidence in chief (cf s 32(2) and s 32(4) of the SAT Act). That approach is occasionally adopted in proceedings in the Tribunal, particularly where parties are self represented.

5. Secondly, although in proceedings in the Tribunal questions of who bears the onus of proof arise infrequently, it clearly is the case that in relation to a complaint of discrimination under the EO Act, an applicant bears the onus of proof of his or her complaint.  The standard of proof is the balance of probabilities, but having regard to the serious nature and consequences of allegations of discrimination under the EO Act, it is well accepted that the approach discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 ­ 362 (Dixon J) applies. Consequently, although the civil standard of proof on the balance of probabilities applies, we must feel an 'actual persuasion' that the facts alleged in this case actually occurred and that we are reasonably satisfied that the allegations of discrimination have been proved, before we may make such a finding.

6. Accordingly, in determining whether a complaint of discrimination is established, the Tribunal must base its findings on material which is probative of the matters to be proved:  Grover v Commissioner of Police [2005] WASC 263 at [26]. Mr Edoo did not call any other witnesses (whether as to factual matters, or witnesses to provide opinion evidence, for example, medical practitioners) in support of aspects of his claim. As we explain below, we therefore concluded that Mr Edoo's complaint must fail because he failed to put before us probative material in relation to some aspects of his complaint.

7. Thirdly, at least in so far as there was nothing on the face of the factual material put before us by Mr Edoo to suggest that he disputed the evidence of the respondent's witnesses, his failure to cross examine those witnesses suggested that Mr Edoo did not challenge their evidence.  We therefore accepted the evidence of the respondent's witnesses to the extent that that evidence appeared to be unchallenged.

8. Fourthly, Mr Edoo's failure to submit to cross examination meant that the respondent was denied the opportunity to test his evidence, and to put the respondent's version of events to him.  In addition, Mr Edoo's decision not to cross examine any of the respondent's witnesses meant that Mr Edoo did not give those witnesses the opportunity to answer the criticisms of their evidence which he made in his submissions, or to clarify or respond to any inconsistency between Mr Edoo's evidence and their own evidence. 

9. In proceedings where the rules of evidence apply, difficulties of the latter kind are ordinarily avoided by the application of the rule in Brownev Dunn (1894) 6 R 67 (for a recent discussion of the principle see The Bell Group Ltd (in liq) v Westpac Banking Corporation (No. 9) [2008] WASC 239 at [1023] ­ [1041]) and by the sanctions for a breach of that rule: see Cross on Evidence at [17460]. Although the rules of evidence do not apply in the Tribunal, in view of the Tribunal's obligation to ensure fairness to the parties, we determined that in those instances where Mr Edoo's evidence was inconsistent with the evidence given by the respondent's witnesses, Mr Edoo's evidence should be given little weight, and that we should prefer the evidence of the respondent's witnesses (cf the commentary in Cross on Evidence at [17460] and in particular the discussion of Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 (The Allied Pastoral Case) at 22 and 26 (Hunt J)).

10. Finally, as we have noted, we ordered that Mr Edoo be provided with a copy of the transcript of the hearing, and gave him leave to file submissions in reply.  However, the submissions which were filed by Mr Edoo on 8 December 2009 included new factual material, which clearly sought to remedy the deficiencies in his case which had been identified by the respondent's counsel in his closing submissions.  We determined to give this new factual material little weight because we had not given leave to Mr Edoo to file further factual material, because there was no apparent reason why Mr Edoo had not included the material in the documents he filed prior to the hearing as part of his case, and because the respondent had closed its case and delivered its closing submissions. 

1. Summary of the Tribunal's conclusions

1. In order to establish that the respondent subjected him to discrimination as defined in s 66A(1) in relation to each of the alleged acts of direct discrimination on which he relies, Mr Edoo needed to establish that:

   (a)He suffered from an impairment as defined in the EO Act;

   (b)He was subjected to the alleged discriminatory conduct on the ground of his impairment; and

   (c)The treatment constituted less favourable treatment than in the same or not materially different circumstances, the respondent would have treated a person without that impairment.

2. In summary, we have concluded that Mr Edoo failed to establish his claims of direct discrimination because in relation to each alleged act of direct discrimination he failed to establish certain essential elements, namely that:

   (a)he suffered from an impairment as defined in the EO Act; and

   (b)he was subjected to the alleged discrimination on the ground of his impairment; and

   (c)his treatment constituted treatment which was less favourable than in the same or not materially different circumstances, the respondent would have treated a person without that impairment.

3. In order to establish that the respondent subjected him to discrimination (under s 66A(3)) in relation to the alleged act of indirect discrimination, Mr Edoo needed to establish that:

   (a)He suffered from an impairment as defined in the EO Act;

   (b)The respondent required him to comply with a requirement or condition, which:

   (i)was one with which a substantially higher proportion of persons who do not have the same impairment comply or are able to comply;

   (ii)was not reasonable having regard to the circumstances of the case; and

   (iii)with which he did not comply, or was not able to comply.

4. In summary, we have concluded that Mr Edoo failed to establish his claim of indirect discrimination, because he failed to establish certain essential elements, namely that:

   (a)he suffers from an impairment as defined in the EO Act; and

   (b)the imposition of the performance management condition was not reasonable having regard to the circumstances of the case; and

   (c)the condition was one with which Mr Edoo was not able to comply.

5. The conclusions we have reached in relation to the allegations of direct and indirect discrimination mean that it is unnecessary for us to consider whether other aspects of Mr Edoo's complaint were established, including whether the alleged acts of discrimination occurred in the circumstances referred to in s 66B(1) or (2) of the EO Act.

1. Failure to establish the alleged direct discrimination

(a)                 Failure to establish an impairment

1. An 'impairment' is defined in s 4 of the EO Act to mean 'one or more of the following conditions –

   (a)any defect or disturbance in the normal structure or functioning of a person's body;

   (b)any defect or disturbance in the normal structure or functioning of a person's brain; or

   (c)any illness or condition which impairs a person's thought processes, perception of reality, emotions or judgments or which results in disturbed behaviour,

   whether arising from a condition subsisting at birth or from an illness or injury and includes an impairment –

   (d)which presently exists or existed in the past but has now ceased to exist; or

   (e)which is imputed to the person.

2. In exhibit 7, Mr Edoo purported to rely on paragraphs (a) to (c) and (d) of the definition of 'impairment'.  It appeared that Mr Edoo alleged that the impairment was one which was temporary in nature, in that it existed at the time of the alleged discrimination, but otherwise the nature of the impairment from which Mr Edoo claimed to have suffered was far from clear from the documentation he filed in the Tribunal. 

3. In exhibit 1, Mr Edoo indicated that 'on 19^th March 2008 I was physically unwell (temporary impairment) with work and personal stresses.  I was taking prescribed medication.'  Mr Edoo stated that later on the same day, he was 'unwell and felt that it could be due to side effects from the medication I was taking'. 

4. In exhibit 3, Mr Edoo appears to suggest that the nature of his impairment was sleep deprivation due to stress.  He stated that he had seen a medical practitioner and had been 'prescribed medication to aid sleep.  The sleep deprivation was due to stress in the applicant's life'.  Mr Edoo submitted that 'the [EO] Act doesn't specify for the aggrieved person to overtly describe[d] that he has been or was suffering from temporary impairment.  The symptoms described by the applicant should suffice.'  In the same document, he expressly disavowed any implication that his impairment was psychiatric in nature, or related to his personality traits, and stated again that his case was that his 'impairment was about his stress and sleeping problems'.

1. In exhibit 4, Mr Edoo referred to his impairment slightly differently.  He claimed that 'prior to 19 March 2008, the applicant had discussions with his Line manager (Mr Ayoub) to discuss his physical and personal problems.  He had spoken about suffering from gout, stress and inability to start work early'. 

2. The consistent theme in this material is that Mr Edoo claims that at the time of the alleged discrimination he was suffering from stress, which around the time of the 19 March incident was manifested in poor sleep, gout, and unusual behaviour.  We surmise, therefore, that Mr Edoo's claim is that he suffered an impairment within the definition in paragraph (a), or alternatively within the definition in paragraph (c) because his stress was a condition which impaired his thought processes, perception of reality, emotions or judgments or which resulted in disturbed behaviour. 

3. The term 'condition' is not defined in the EO Act.  According to the Shorter Oxford English Dictionary one of the primary meanings of the word 'condition' refers to a state or mode of being, and specifically 'a state resulting from a physical or mental illness; sickness, a malady'.  The word 'condition' in the phrase 'illness or condition' in the context of equal opportunity legislation has been interpreted to denote something that might be characterised as a pathological condition (that is, a physical or mental disease) or a personality disorder:  Re Prezzie and Discrimination Commissioner and Quest Group Pty Ltd (1996) 39 ALD 729 (Re Prezzie) at 742.

4. Further, having regard to the definition of 'impairment' as a whole, and to the list of matters set out following the reference to an 'illness or condition', the word 'condition' appears to denote an underlying cause and not merely symptoms:  Re Prezzie at 742.

5. The factual material relied on by Mr Edoo did not establish that he suffered from an 'impairment'.  Mr Edoo did not adduce evidence from any witnesses with qualifications in medicine to confirm that his stress was a 'condition' which manifested itself as a defect or disturbance in the normal structure or functioning of his body, or that it was a disease which impaired his thought processes, perception of reality, emotions or judgments or resulted in disturbed behaviour.  Although Mr Edoo is a nurse, he did not purport to have qualifications entitling him to provide opinion evidence as to his medical condition.  In the absence of any such expert evidence, we are unable to give Mr Edoo's evidence as to his own 'condition' any weight above that of mere assertion.  From that perspective, Mr Edoo's 'evidence' of the impairment from which was suffering did not have probative force, and was not capable, of itself, of establishing that he was suffering from an impairment as defined in the EO Act.  In addition, there was no expert evidence on which we might base the conclusion that stress was in fact a 'condition' rather than merely a symptom of some other underlying condition or circumstance. 

6. There was some expert evidence before us in relation to Mr Edoo's health.  In May 2008, Dr Kate Lindsay, a psychiatrist, reviewed Mr Edoo at the hospital's request.  A copy of Dr Lindsay's report, dated 23 May 2008, was among the documents produced to the Tribunal by the respondent (exhibit 9, p 27 ­ 42).  Dr Lindsay concluded that at the time of her review:

   … Mr Edoo displayed evidence of paranoid personality traits.  Given the limited assessment period … I was not able to make a diagnosis of a personality disorder, though there were suggestions that a paranoid personality may be present.  These traits may have been exacerbated during periods of acute stress… (Exhibit 9, p 37).

7. Dr Lindsay went on to note that Mr Edoo 'does not display evidence of an Axis 1 Disorder however, he may have had a stress-related condition at the time of the incident on 19 March 2008, though I am unable to confirm this' (exhibit 9, p 38). 

8. Dr Lindsay's report suggests that stress may have exacerbated an underlying condition from which Mr Edoo may have been suffering, but she was unable to confirm this.  Dr Lindsay's therefore report does not provide a basis for concluding that Mr Edoo was suffering from stress, and that stress, in these circumstances, constitutes a 'condition' and therefore an impairment, under the EO Act. 

9. Importantly, Mr Edoo disputed, and did not place any reliance on, the suggestion in Dr Lindsay's report that he may have been suffering from a personality disorder. 

10. Accordingly, Mr Edoo has not put before us any probative evidence which supports the conclusion that he was suffering from an impairment, as defined in the EO Act.

(b)                 Failure to establish causal connection between the alleged acts of discrimination and the alleged impairment

1. It is well established that for a finding of unlawful discrimination to be made out it is necessary to establish a causal connection between the act complained of and the less favourable treatment but it is not necessary to establish an intention to harm nor to discriminate:  Ghockson v Commissioner of Police (1996) EOC 92­798 (Ghockson); Waters v Public Transport Corporation (1991) 173 CLR 349; Australian Iron &Steel Pty Ltd v Banovic (1989) 168 CLR 165.

2. Nevertheless, the alleged act said to constitute discrimination must be advertent and done with the knowledge of the impairment:  see Williams and Commissioner of Police [2005] WASAT 349 at [35] ­ [38] and the cases cited therein.

3. It is not necessary for the applicant's impairment to be the only or even the dominant or substantial ground for the relevant act for the unlawful discrimination to be proved – it is enough if it is one of the grounds: s 5 of the EO Act; Ghockson.

4. The evidence before us in relation to each act of alleged direct discrimination did not establish that one of the grounds for that act was an impairment suffered by Mr Edoo.

(i)                  Requirement that Mr Edoo conduct a search of a patient being admitted to a locked ward

1. The factual allegation made by Mr Edoo was in essence that on 19 March 2008 he was directed to escort a patient from an open ward to a locked ward in the hospital.  As part of the hand over of the patient to staff of the locked ward, Mr Edoo claims that the Acting Ward Manager directed him to conduct a search of the patient.  Mr Edoo refused to do so.  He claims he had previously been threatened with physical aggression by the patient, and that he felt fearful for his safety.  He claims that he was not confident and competent to perform the search in the circumstances, and that he requested that another member of staff perform the search. 

2. Ms Gough's evidence was that on 19 March 2008 she was a clinical nurse on ward 4.1 at the hospital.  Ward 4.1 is a locked ward, which is also known as a high dependency or acute ward, from which patients are not allowed to leave voluntarily.  She was notified that a patient was to be transferred from ward 5.1 (on which Mr Edoo worked) to ward 4.1 because the patient had become highly aroused, aggressive and paranoid. 

3. Ms Gough's evidence was that the normal procedure is that a patient admitted to ward 4.1 is first taken to a side room where they are checked for any dangerous objects.  Ms Gough said that the procedure was standard ward policy on a locked ward.  Ms Gough's evidence was that normally the process involves patting down the patient to see that they are not bringing any dangerous objects into the ward (T: 22, 19.11.09).  If necessary a patient may need to be restrained to permit this to occur.  She said that before the check is carried out, the patient is given an explanation of the procedure and why it is done. 

4. Ms Gough's evidence was that when the patient arrived he was accompanied by Mr Edoo, two security officers, and other staff.  Ms Gough's evidence was that she requested Mr Edoo to check the patient for any dangerous objects before he was admitted to ward 5.1, but that Mr Edoo refused to do so and left the side room without any discussion, explanation or hand over of information in relation to the patient. 

5. Ms Gough stated that Mr Edoo's refusal to check the patient was contrary to the procedure for admission to ward 4.1.  She stated that it was Mr Edoo's responsibility to carry out the check as the patient was still his responsibility prior to admission to ward 4.1.  In addition, at that time, Mr Edoo had not provided a hand over of information about the patient, such as his behaviour prior to transfer and whether he had had any medication prior to transfer.  As a result of Mr Edoo's refusal to check the patient, she had to check him herself, but without the benefit of knowing the hand over information.

6. Ms Gough stated that after checking the patient she met Mr Edoo and he then provided the hand over information but did not provide any notes about the patient's history, and did not bring his medication chart from ward 5.1.  Ms Gough stated that when she asked Mr Edoo why he left the side room, he became angry and aggressive with her.  She said that Mr Edoo told her that she was bullying him and that the patient had attempted to assault him earlier on ward 5.1.  Ms Gough had not previously been advised of that information.

7. Clearly, then, part of Mr Edoo's evidence was consistent with evidence given by Ms Peta Gough.  There was no dispute that Mr Edoo was asked to conduct a search of the patient, and that he refused to do so.  We accept that evidence.

8. However, other aspects of Mr Edoo's evidence were inconsistent with the evidence given by Ms Gough.  Ms Gough's evidence touched on matters which were not dealt with in the material filed by Mr Edoo.  For the reasons outlined in part 5 above, we accept the evidence of Mr Edoo where it is consistent with the evidence of Ms Gough.  To the extent that Ms Gough's evidence dealt with matters not addressed by Mr Edoo in the documents he filed, we accept her evidence.  Where there are inconsistencies between the version of events of the 19 March incident given by Mr Edoo and by Ms Gough, we prefer the evidence of Ms Gough.

9. In exhibit 7 Mr Edoo submitted that the practice of checking patients was an unfair one which was not within the policy of the hospital, which breached patients' rights and which was a breach of other policies of the hospital (which he did not specify).  He did not put these claims to Ms Gough in cross examination, but she responded to his written submissions in her oral evidence.  Ms Gough confirmed that the procedure was standard ward policy and was covered in orientation for new staff members coming to work on ward 4.1.  For the reasons set out in part 5 above, we accept her evidence on this issue.

10. There was no evidence whatsoever that Mr Edoo was required to undertake a safety check of the patient because of his impairment or for any reason connected with his impairment.  We accept the evidence of Ms Gough that the procedure was a standard procedure for all patients admitted to ward 4.1.  We find that Ms Gough asked Mr Edoo to conduct the check of the patient as the patient had been in his care immediately prior to the decision to transfer him to ward 4.1, and was still his responsibility prior to his admission to ward 4.1, and because Mr Edoo had the knowledge of his history, prior behaviour and whether he had had medication prior to the transfer, all of which may have impacted on decisions which might be required as to how to deal with the patient during the safety check and his admission to ward 4.1.

11. In addition, there was no evidence whatsoever to suggest that Ms Gough was aware that Mr Edoo was suffering from the alleged impairment, or any impairment.  Mr Edoo claimed that earlier in the day on 19 March 2008 he was feeling physically unwell as a result of work and personal stress, and as a result of medication that he had been taking.  However, there was no evidence that he told anyone about this on 19 March 2008.

12. Mr Edoo says that prior to 19 March 2008 he had discussed feeling unwell with his supervisor, Mr Ayoub, a Senior Nurse Manager.  That discussion took place in the context of a discussion about the shift work that Mr Edoo preferred to undertake.  Mr Edoo says that he had 'spoken about suffering from gout, stress and an inability to start work early'. 

13. Mr Ayoub's evidence was that that conversation took place 'towards the time of the 19 March incident'.  Mr Edoo told Mr Ayoub that he had been sleeping in in the mornings as he was taking antidepressant medication, and Mr Ayoub suggested that perhaps Mr Edoo should take the medication a bit earlier to counter the problem.  Mr Edoo also told Mr Ayoub that he was suffering from gout, and they discussed herbal remedies which might assist.  Having received this information from Mr Edoo, Mr Ayoub did not consider that he was unfit for work, a danger to clients or staff, or that he required any formal intervention.

14. We accept that prior to 19 March 2008 Mr Edoo raised with Mr Ayoub his sleeping problems and gout.  However, there was nothing to suggest that Mr Ayoub had advised Ms Gough of these matters, or that he should have done so prior to the transfer of the patient to ward 4.1. 

15. For completeness, we also note that Mr Edoo stated (in exhibit 1) that he was fearful for his safety as a result of being threatened by the patient earlier in the day.  He stated that he explained that he was not confident and competent enough to perform the duty (of conducting the safety check on the patient).  Ms Gough's evidence was clear:  Mr Edoo simply refused to conduct the check and left without any discussion or explanation.  For the reasons set out in part 5 above, we prefer Ms Gough's evidence to Mr Edoo's evidence in this respect.  However, even had we accepted Mr Edoo's evidence, that would not have assisted him in establishing that Ms Gough had asked Mr Edoo to conduct the safety check for any reason connected with Mr Edoo's alleged impairment.

16. Accordingly, Mr Edoo did not establish that one of the reasons he was asked by Ms Gough to undertake the safety check of the patient was because of his alleged impairment.

(ii)                 Alleged denial of opportunity for Mr Edoo to act in a more senior nursing position

1. Mr Edoo stated (in exhibit 4) that in March 2008 he applied to act in a more senior nursing position, and was offered an opportunity to act in a more senior position for six weeks (acting position).  Among the documents in the respondent's book of documents (exhibit 9, p 1) was a copy of the advertisement calling for expressions of interest to relieve in the acting position, which was the role of emergency psychiatric liaison nurse.  The duration of the opportunity to act in this position was specified to be three months, with the possibility of an extension, from 10 March 2008 to 8 June 2008, plus two weeks of training if required. 

2. Also included in the respondent's book of documents (exhibit 9, p 4) was a letter dated 10 March 2008 from Ms Karen Curtis, the Acting Nurse Manager Staffing at the hospital to Mr Edoo.  Ms Curtis advised Mr Edoo that his 'expression of interest in the emergency psychiatric liaison position was successful for future leave relief'.  The arrangement for the acting position, at least initially, appears to have been that Mr Edoo was required to complete a two week refresher training course, commencing on 31 March 2008, followed by five weeks of leave relief.  The letter also refers to the possibility that Mr Edoo might be called upon for future relief periods after this date, when they became available. 

3. Mr Edoo claimed that he was subsequently refused the opportunity to take up this acting position.  He claimed that this refusal occurred in the course of a meeting on 17 April 2008.  However, Mr Edoo also claimed that the refusal occurred in the course of a meeting on 10 June 2008.

4. The respondent's submission was that Mr Edoo was not denied the opportunity to undertake the acting position, but that he never undertook that position because he did not return to work after the 19 March incident.

5. For the reasons set out below, we have concluded that Mr Edoo was not refused the opportunity to take up the acting position, either in the meeting on 17 April 2008 or in the meeting on 10 June 2008.  The evidence supported the conclusion that Mr Edoo was not denied the opportunity to take up the acting position at all, although he was told that he would need to undertake a period of supervision before doing so. 

•         The meeting on 17 April 2008

1. After the 19 March incident, Ms Gough made a complaint to Mr Ayoub about Mr Edoo's conduct during the transfer of the patient to ward 4.1.  Mr Edoo was asked to attend a meeting to discuss the incident later that afternoon.  Mr Edoo refused to stay and participate, saying that he felt unwell, and was given permission to go home early.  After that, Mr Edoo commenced a period of pre-arranged leave. 

2. On 17 April 2008, before his return from annual leave, Mr Edoo attended a meeting with the Nursing Director, Ms Maureen Wiltshire.  The Operational Manager, Mr Zenith Zeeman, was also present at that meeting.  Mr Edoo claims that he was informed that an allegation had been made against him that he had refused to follow a direction from a senior member of staff.  (That allegation concerned the 19 March incident.)  Mr Edoo stated (in exhibit 1) that he explained to Ms Wiltshire and Mr Zeeman that on 19 March 2008 he had been 'physically and emotionally unwell due to the work, personal stresses and the possible side effects from my prescribed medication'.  Mr Edoo stated that at that meeting he was advised by Ms Wiltshire that she had decided that he would no longer act in a more senior nursing position (for which he had previously been approved) and that he would be required to comply with the performance management condition.  Mr Edoo said that as a result of the imposition of this condition he would not earn overtime, weekend or penalty shift rates. 

3. Mr Edoo's account of the meeting on 17 April 2008 was inconsistent with the evidence set out in the witness statements of Ms Wiltshire and Mr Zeeman. 

4. In her witness statement (exhibit 12) Ms Wiltshire stated that the meeting was organised because Mr Edoo had requested an urgent meeting.  Ms Wiltshire stated that she told Mr Edoo:

   We would need to investigate what had occurred in relation to the 19 March incident when the Applicant and his line manager [Mr Ayoub] became available.  Depending on the Applicant's explanation, there were a number of possible outcomes.  I suggested it could be the fact that there would be no case to answer, or if his behaviour was deemed unsuitable, it could be a performance management issue.  … I did not give much detail, more an outline.

   As soon as I mentioned the words 'performance management', the Applicant became very verbally antagonistic and quite irate towards me and his voice rose.  I cannot now recall what he said but he became fixated on performance management.  To calm the situation down, Mr Zeeman took over.

   Mr Zeeman said that an investigation would need to take place.  It would have to be a fair process and explained the situation to him.  At that point the Applicant said he had been unwell at the time of the 19 March incident and on anti-depressants but had now ceased the medication.  We were very supportive of the Applicant.

5. According to Mr Zeeman's witness statement (exhibit 11) the meeting on 17 April was initiated by Mr Edoo.  Mr Zeeman understood that the purpose of the meeting was to meet with Mr Edoo, to acknowledge the 19 March incident and to determine a way forward.  Mr Zeeman stated that 'there was however an intention that when the Applicant did return to work, the incident would be investigated with his input.' 

6. Mr Zeeman set out his recollection of what was discussed at the meeting:

   Ms Wiltshire gave an outline of the complaints and allegations from the 19 March incident and then went on to speak about performance management with the Applicant.  Ms Wiltshire used words to the effect that on the Applicant's return to work he 'may have to work day shift and be supervised'.  Performance management in this context is used to describe a process by which under performance or poor performance is managed for a predetermined period of time with the intent to establish whether the employee is able to perform the full range of duties required to fulfill their contractual obligations of employment.  Performance management is not exclusive and includes performance development, wherein employees are supported with mentoring, supervision and training to up­skill to the level of knowledge, skill and expertise required to perform the full range of duties required for their employment.

   I observed that the applicant was very upset to start with and I could see that his level of agitation and arousal was increasing with the talk of performance management as a potential outcome.  I interjected because I was concerned that there was a potential of the meeting going badly.  My understanding from Ms Wiltshire was that no decision had been made to performance manage the Applicant at that stage, but because of Mr Wiltshire's earlier comments, I think he formed the view that the decision had been made.

   I attempted to defuse the situation and explained to the Applicant that no outcome had been decided, we were only at the very early stages of the investigation, the purpose of the meeting was to explain that there were allegations and complaints about his behaviour and to let him know that there would be an investigation which would be led by his line manager, Mr Ayoub, with Ms Wiltshire overseeing the process.

   …

   We did not advise the Applicant that he would have to work on the ward for three months on early shift with no overtime, no weekend and no penalty shift.

1. Mr Zeeman stated that in the course of the meeting, Mr Edoo advised that he wanted to work night shifts on his return to work.  Mr Zeeman stated:

   Both Ms Wiltshire and I said what shifts he would be working depended upon Mr Ayoub who runs the roster.  It is a very busy ward and he would have to fit in with the roster by negotiation with Mr Ayoub on his return to work.  It was my understanding that the Applicant would return to work as per the Applicant's usual roster and that it would be up to him to put in his request to Mr Ayoub for any roster changes or shift preferences.

2. Mr Zeeman stated that prior to the meeting he 'was not aware that the Applicant may have been suffering an impairment and at no stage was this discussed or considered with Ms Wiltshire prior to the meeting with the Applicant'.  Towards the latter part of the meeting, Mr Edoo said that he had not been well and that he had been on medication and alluded to having a sleep disturbance.  Mr Zeeman urged him to tell Mr Ayoub, so that he could take this into consideration in relation to the outcome of the 19 March incident.  Mr Zeeman also stated that after the meeting, Mr Edoo telephoned him to advise that he had thought about the matter and that 'he was on medication for stress and that there were personal issues that were affecting him which may have contributed to the 19 March incident'.

3. For the reasons we have already given in part 5 above, and because their statements contain consistent versions of what was discussed at the meeting, we prefer the evidence of Ms Wiltshire and Mr Zeeman to that of Mr Edoo in relation to what was discussed, and determined, at the meeting on 17 April 2008. 

4. In their statements, neither Ms Wiltshire nor Mr Zeeman made reference to whether a decision was made during the meeting that Mr Edoo would not be permitted to act in the more senior nursing position for which he had previously been approved.  However, we do not accept Mr Edoo's evidence that this was in fact determined at the meeting of 17 April 2008, for two reasons.  First, it is apparent from the witness statements of Ms Wiltshire and Mr Zeeman that those statements are intended to be comprehensive accounts of what was discussed at the meeting on 17 April 2008.  Had the question of the acting position been discussed, it seems very likely that that would have been mentioned in one of the statements.  Secondly, it is also clear from the witness statements of Ms Wiltshire and Mr Zeeman that at the meeting on 17 April 2008, no decision was made in relation to any matter at all.  Instead, there was a discussion about the need for an investigation of the 19 March incident, and of the possible outcomes of that investigation, and there was some discussion, but no decision, about other matters, including Mr Edoo's preferred shifts. 

5. We turn then to the evidence concerning the meeting of 10 June 2008. 

•         The meeting of 10 June 2008

1. Mr Edoo stated (in exhibit 1) that on 10 June 2008, he attended a meeting with Ms Wiltshire and Ms Freda Bajrovic, an Employee Relations Officer at the hospital.  The meeting was also attended by a representative of the Australian Nursing Federation, Mr Clancy.  This meeting followed the receipt by the hospital of the report dated 23 May 2008 from Dr Kate Lindsay, who conducted an assessment of Mr Edoo at the hospital's request.  We discuss below the circumstances leading to the preparation of that report. 

2. Dr Lindsay found no evidence that Mr Edoo was suffering from a psychiatric disorder, and concluded that there was no mental health reason why he was unable to return to practice as a mental health nurse.  However, she made some recommendations regarding his return to work (exhibit 9, p 40).  These recommendations formed the basis for the performance management condition which both Ms Wiltshire and Ms Bajrovic decided should be imposed on Mr Edoo's return to work.  The performance management condition (and the allegation of discrimination made in relation to that condition) is discussed below.

3. In their witness statements (exhibits 12 and 16) Ms Wiltshire and Ms Bajrovic stated that in the course of the meeting on 10 June 2008, they informed Mr Edoo that upon his return to work he would be required to undergo performance management for six weeks to three months, under the supervision of Mr Ayoub, and that Mr Edoo would be required to work on day shifts from Monday to Friday to permit that to occur.  Ms Bajrovic prepared a file note of that discussion, a copy of which was included in the documents put before the Tribunal by the respondent (exhibit 9, p 44), which was consistent with the evidence in her witness statement, and the witness statement of Ms Wiltshire.

4. Neither the witness statement of Ms Wiltshire nor that of Ms Bajrovic indicates that at the meeting of 10 June 2008 Mr Edoo was told that he would not be permitted to act in the more senior nursing position for which he had earlier been selected. 

5. The detailed note made by Ms Bajrovic after the meeting of 10 June 2008 does not refer to any discussion of the acting position.  That note otherwise appears to constitute a detailed record of the matters discussed in that conversation.  In her witness statement (exhibit 12) Ms Wiltshire confirmed that Ms Bajrovic's note reflected her own recollection of what was discussed at the meeting.  Accordingly, for the reasons that we outlined in part 5 above, we do not accept Mr Edoo's evidence that at the meeting of 10 June 2008 he was advised that he would not be permitted to act in the more senior nursing position.  We find that no such decision was made, nor advised to Mr Edoo, at the meeting of 10 June 2008. 

•         Other evidence in relation to the acting position

1. Another of the respondent's witnesses did deal with the question whether Mr Edoo would be permitted to undertake the acting position.  In his witness statement (exhibit 13) Mr Ayoub stated that he spoke with Mr Edoo by telephone on 29 April 2008.  Mr Ayoub stated that Mr Edoo requested that on his return to work he be permitted to work on night shifts.  Mr Ayoub stated that he told Mr Edoo that in view of his behaviour, he needed a full supervision period with Mr Ayoub first.  Mr Ayoub stated that he told Mr Edoo that:

   this [ie the period of supervision] should occur before he started in the acting position … which is a very senior position and you work on your own.  I told him that the other successful applicant could do the first six weeks of acting and if all went well with the supervision, he could do the second six weeks of acting.

2. For the reasons that we have already given in part 5 above, we prefer the evidence of Mr Ayoub to that of Mr Edoo.  We therefore find that there was no evidence that following the 19 March incident Mr Edoo was told that he could not undertake the acting position.  On the contrary, Mr Edoo was told that he could undertake the acting position if he first completed a period of supervision under Mr Ayoub.

3. Accordingly, the evidence does not support the conclusion that Mr Edoo was denied the opportunity to act in the more senior position at all, much less that he was denied that acting opportunity as a result of his impairment.

(iii)                Requiring Mr Edoo to undergo a psychiatric assessment

1. Mr Edoo stated (in exhibit 1) that in May 2008 he was directed to see a psychiatrist for an assessment.  Mr Edoo says that he was informed that the reason for this was that in a phone call he made to Ms Lynette Whitworth, an Acting Human Resource Nurse Consultant at the hospital, he had mentioned that he felt suicidal.  Mr Edoo says that this was a misunderstanding, and that this was clarified by Ms Whitworth.  Mr Edoo also says that he was informed that the reason for the psychiatric assessment was the fact that he had disclosed that he was on medication at the time of the incident on 19 March 2008.  Mr Edoo saw Dr Kate Lindsay on 12 May 2008 for the purposes of that psychiatric assessment. 

2. In order to assess whether the requirement that Mr Edoo undergo a psychiatric assessment resulted from his alleged impairment, it is necessary to briefly traverse the evidence concerning the events leading up to the decision to direct Mr Edoo to attend that assessment.

3. Following his meeting with Ms Wiltshire and Mr Zeeman on 17 April 2008, Mr Edoo applied for a further two weeks of annual leave.  However, on 29 April 2008, he telephoned Ms Wiltshire and requested a meeting because he wanted to come back to work early.  On the same day, Mr Edoo also telephoned Mr Ayoub to discuss his early return to work.  We have noted above that according to Mr Ayoub, in that telephone call Mr Edoo requested that he be permitted to go on night shift upon his return to work.

4. On 30 April 2008, Mr Edoo telephoned the Nursing Human Resources department.  He spoke with Ms Lynette Whitworth.  In her witness statement (exhibit 15) Ms Whitworth stated:

   At the time I did not know the Applicant and was not aware that he was involved in performance management issues in his area of employment. 

   The Applicant seemed very distressed and was speaking very quickly when he spoke to me.  He wanted to bring forward the date of a meeting that had been organised between his manager, Larry Ayoub, and Maureen Wiltshire, the Acting Nursing Director, Mental Health, and himself.

   During the telephone conversation, the Applicant said words to the effect that he was meant to have a meeting next week with them but wanted it this week, as it couldn't wait.  He stated that he was on stress leave but using his own annual leave to cover it.  He stated that he was having serious financial problems and was worried about his children.  He stated that he was being bullied and harassed at work and needed to know how he could sue the hospital and the managers for putting him under this stress.  He then stated he felt suicidal.

   As soon as he said the word 'suicide' I felt he wanted to retract it.

   I did not get the impression that the Applicant was suicidal, although he seemed distressed.  …

   Following my telephone conversation with the Applicant, I tried to contact Ms Wiltshire but was unable to do so, so I spoke to her secretary … who arranged a meeting for 1 May 2008.

   I contacted the Applicant … to inform him of the arrangements. …

   At 11.10 I spoke to Freda Bajrovic, the Industrial Relations Consultant.  She advised cancelling the meeting with the applicant until he had a medical certificate from his general practitioner stating he was fit to work, especially given his reference to stress leave.

   I spoke to Ms Wiltshire at 4.25pm.  …  I told her about the conversation and that he had mentioned the word suicide.  She said she would take over and contact him to advise him the meeting had been cancelled.

5. In her witness statement (exhibit 16) Ms Bajrovic stated that she spoke with Ms Whitworth on 30 April 2008.  Her evidence as to what was said in that conversation is consistent with Ms Whitworth's recollection of the conversation.

6. In her witness statement (exhibit 12), Ms Wiltshire stated that on 1 May 2008, she received a call from Mr Edoo to say that he had a fitness to resume work medical certificate.  Ms Wiltshire attended a meeting later that day with other staff, including Mr Ayoub, Ms Bajrovic and Ms Whitworth.  Her evidence was that

   We were all concerned about the rationality of the Applicant's behaviour especially the phone call to Ms Whitworth where he raised suicidal thoughts. 

   It was decided that we could not look at the 19 March incident until we decided if he was safe and able to make rational decisions. 

   The priority was that we would make sure that the Applicant was safe but we could not know that until he was assessed.

   Ms Bajrovic felt more information should be sought from the Applicant's General Practitioner because that is where he obtained his anti-depressants from.

   We also discussed the possibility of obtaining a psychiatric assessment.

   …[I]t was decided we would pay the Applicant day rate until the assessment took place and that we would also pay for the assessment.  This is standard practice.  This was a necessary interim measure because the Applicant did not have any leave and may not have been fit to return to work.

7. In her witness statement (exhibit 16) Ms Bajrovic also referred to the meeting with Ms Wiltshire and others on 1 May 2008.  Her evidence as to what was discussed in that meeting is consistent with Ms Wiltshire's evidence of that meeting.

8. In her witness statement (exhibit 15) Ms Whitworth stated that she prepared a file note following her attendance at this meeting.  A copy of that file note was included in the respondent's book of documents (exhibit 9, p 21).  Ms Whitworth's notes of what was discussed at the meeting are consistent with Ms Wiltshire's evidence in relation to the meeting.

9. In his witness statement (exhibit 13) Mr Ayoub dealt with the meeting of 1 May 2008.  He stated that this was the first occasion on which he became aware that Mr Edoo had mentioned suicidal thoughts in his telephone call to Ms Whitworth.  He said he was

   concerned for the Applicant's wellbeing as well as the wellbeing for other staff and other members of the community.

   I was in general agreement that it would be appropriate to obtain a mental state assessment from an independent psychiatrist.

10. Ms Wiltshire also stated that she attended a meeting with Mr Edoo and others on 5 May 2008 where he was advised that he needed to provide a medical clearance before he returned to work.  The medical certificate Mr Edoo had earlier produced from his general practitioner was not considered adequate because that practitioner was not the one who had prescribed Mr Edoo's medication.  Ms Wiltshire stated that at that meeting 'the Applicant denied that he stated that he was suicidal and [alleged] that Ms Whitworth was being untruthful'.

11. Ms Wiltshire stated that on 5 May 2008 she discussed with Ms Bajrovic whether they should obtain a psychiatric assessment report in relation to Mr Edoo.  Ms Wiltshire stated:

    If anyone states that they are suicidal and there is a pattern of concerning events leading up to that statement, it would not be unusual to obtain a medical assessment.  In this case the Applicant's General Practitioner did not have a history of involvement with the Applicant.

12. In her witness statement, Ms Bajrovic also referred the meeting on 5 May 2008.  Ms Bajrovic stated that she made a file note of the discussion at that meeting and a copy of that file note (dated 6 May 2008) was part of the respondent's bundle of documents (exhibit 9, p 23).  The content of that file note is entirely consistent with Ms Wiltshire's evidence of what was discussed at the meeting.

13. Ms Bajrovic also stated that it was agreed that she would speak with Mr Edoo's doctors and if they were not able to provide a mental health assessment, he would be required to undergo an assessment by a doctor of the hospital's choice.  An appointment was subsequently made for Mr Edoo to attend Dr Kate Lindsay for a review. 

14. For the reasons that we have already given in part 5 above, we prefer the evidence of Ms Whitworth to that of Mr Edoo in relation to their telephone conversation on 30 April 2008.  For the reasons we have already given in part 5 above, and having regard to the consistency of the evidence of Ms Wiltshire, Ms Whitworth, Mr Ayoub and Ms Bajrovic as to the basis for the decision to require Mr Edoo to undergo a psychiatric assessment, we accept their evidence. 

15. We find that Mr Edoo was required to undergo a psychiatric assessment with Dr Lindsay because Ms Wiltshire and Ms Bajrovic, together with Ms Whitworth and Mr Ayoub, were concerned about his mental health in view of his statement to Ms Whitworth that he had had suicidal thoughts in the context of events leading up to that statement.  The purpose of the psychiatric assessment was to ensure Mr Edoo's safety and well being, to confirm whether Mr Edoo was fit to work, and thereby to protect the safety and wellbeing of patients and other staff.

16. Nothing in the evidence provided support for the conclusion that one of the reasons for the decision to require Mr Edoo to see Dr Lindsay was because of his alleged impairment.

(iv)                Imposition of condition on grant of leave without pay

1. Mr Edoo stated (in exhibit 4) that following the meeting of 10 June 2008 he requested a formal investigation into the 19 March incident.  He says that he asked to be allowed to return to work under normal conditions while that investigation was proceeding, but that this request was denied by the respondent.  Mr Edoo stated that on 16 June 2008 he requested leave without pay for a period of three to six months while the 19 March incident was investigated.  Mr Edoo stated that his request for leave without pay was approved, but a condition of that leave was that he not work in any Western Australian Health Service during the period of leave (the leave without pay condition).

2. While he was employed by the respondent at the hospital, Mr Edoo was prohibited from engaging in any paid employment outside the hospital, other than with the approval of his employing authority: s 102 of the Public Sector Management Act1994 (WA). In order to be able to work elsewhere while on leave without pay from the hospital, it was therefore necessary for Mr Edoo to obtain the respondent's permission.

3. In order to determine whether the leave without pay condition was attributable to Mr Edoo's alleged impairment, it is necessary to have regard to the circumstances in which the condition was imposed, and to the precise nature of the leave without pay condition. 

4. The background to the imposition of the leave without pay condition was as follows.  In her witness statement (exhibit 16) Ms Bajrovic stated that in the course of the meeting on 10 June 2008 she and Ms Wiltshire had advised Mr Edoo that the 19 March incident could be dealt with informally, but he insisted that it be dealt with formally, and that he be given allegations to which he could formally respond.  Ms Bajrovic stated that Mr Edoo contacted her by email on 12 June 2008 to request leave while the investigation was being conducted.  By a letter dated 16 June 2008 (exhibit 9, p 57) Mr Edoo wrote to Ms Bajrovic to express the view that the performance management condition was 'unreasonable, punitive, unfair and discriminative', and he requested leave without pay for a period of three to six months. 

5. By email and letter dated 19 June 2008 (exhibit 9, p 65 ­ 66), Ms Bajrovic wrote to Mr Edoo and advised him that his request for leave without pay was approved, with effect from 23 June 2008, subject to conditions, including that 'for the duration of the leave without pay you will not be allowed to work either directly or indirectly through an agency for any health service which is part of the Metropolitan Health Services'.

6. By email dated 20 June 2008 (exhibit 9, p 72) Mr Edoo responded to Ms Bajrovic's letter and expressed the view that the leave without pay condition was very harsh.  He requested that the condition be reconsidered. 

7. By email dated 20 June 2008 (exhibit 9, p 72) Ms Bajrovic advised Mr Edoo that:

   The Health Service is not preventing you from working.  Our position remains that if you are able to and seeking to work as a registered nurse, then as your employer we require you to work for us.  I await your response in respect of your intentions with your request for leave without pay.

8. In her witness statement (exhibit 12) Ms Wiltshire also discussed Mr Edoo's request for leave without pay.  Ms Wiltshire's evidence was that:

   I recall that the Applicant had made a request for leave without pay.  Our concern was that he was requesting leave without pay so that he could work elsewhere.  Ms Bajrovic proposed to put restrictions on him working elsewhere as we had not finished the investigation and therefore did not feel that it was safe for him to work.  I did not have any objections to Ms Bajrovic's proposal.

1. The evidence before us did not establish that the respondent imposed the leave without pay condition for any reason connected with Mr Edoo's alleged impairment.  Nothing in Mr Edoo's evidence provided any basis for that conclusion.  The tenor of Mr Edoo's complaint appears to be that the leave without pay condition was unreasonable, or unfair.  That is not a matter for us to decide under the EO Act. 

2. The evidence suggested that the respondent imposed the leave without pay condition for two reasons.  First, to the extent that Mr Edoo was able to work, the respondent considered that he should work for the hospital, in accordance with the performance management condition.  Secondly, because the respondent had concluded, on the basis of Dr Lindsay's report, that Mr Edoo should be subjected to performance management during his work, it was considered that it would be unsafe to permit him to work elsewhere in the Western Australian public sector health system, without restrictions.  For the reasons that we have already given in part 5 above, we accept the evidence of Ms Bajrovic and Ms Wiltshire, together with documents filed by the respondent to which we have referred above. 

3. Accordingly, the evidence does not support the conclusion that Mr Edoo's alleged impairment was one of the reasons for the decision to impose the leave without pay condition.

(v)                 Alleged unfair dismissal

1. Mr Edoo stated (in exhibit 4) that in view of the respondent's decision to impose the leave without pay condition, and the respondent's refusal to permit him to return to work under 'normal conditions' (that is, on the shift roster under which he had been previously working, rather than under conditions involving performance management) he had no other alternative but to resign under duress. 

2. By a letter dated 23 June 2008 addressed to Ms Wiltshire (exhibit 9, p 86) Mr Edoo resigned from his employment.  The reasons he gave for his resignation were that he was

   unable to comply with the conditions you have added to the leave without pay that I requested from you.  The conditions would restrict my ability to support my family during this period.

   …

   Due to your failure to comply with the public sector standards with regard to affording me a fair and impartial hearing and your insistence for me to return to work under the conditions imposed following your decision with regard to the alleged incident.  You have therefore left me with no alternative but to resign from my current position.

3. Ms Bajrovic stated (in exhibit 16) that following the receipt of Mr Edoo's letter of resignation, she spoke with Mr Clancy, from the Australian Nursing Federation, about the resignation and advised that the resignation would not be processed for a few days in order to give Mr Edoo the opportunity to rethink his decision.  Ms Bajrovic confirmed this by an email to Mr Edoo and Mr Clancy dated 24 June 2008 (exhibit 9, p 89).  As Mr Edoo did not withdraw his resignation, his resignation was processed on 27 June 2008. 

4. It is clear from the evidence that Mr Edoo resigned from his employment at the hospital. Mr Edoo's complaint that he was 'dismissed' thus appears to be based on the view that the word 'dismissal' in s 66B(2)(c) of the EO Act includes a constructive dismissal. The respondent conceded that that was so. There have been cases in which the Tribunal has approached the question of 'dismissal' as encompassing conduct amounting to constructive dismissal: Biundo and Cocks Macnish [2005] WASAT 300 at [110] ­ [112]; Bukilic and Lifenet (WA) Financial Advice Pty Ltd [2008] WASAT 213 at [83] (and see the cases cited therein).

5. Assuming for the moment that 'dismissal' in s 66B(2)(c) of the EO Act includes constructive dismissal, and assuming that the conduct of the respondent which precipitated Mr Edoo's resignation was such as to amount to his 'constructive dismissal' (a matter which is far from apparent on the evidence), we have concluded that the evidence did not establish that that 'dismissal' was for any reason connected with Mr Edoo's alleged impairment, so as to establish a causal link between the respondent's conduct and Mr Edoo's alleged impairment.

6. In his letter of resignation dated 23 June 2008 Mr Edoo gave three reasons for his resignation:  the imposition of the leave without pay condition, the requirement that his return to work at the hospital would be subject to performance management, and the alleged failure by the hospital to comply with public sector standards and to provide him with a fair and impartial hearing into the 19 March incident. 

7. For the reasons that we have already given in part 7(a) above, the evidence does not support the conclusion that Mr Edoo's alleged impairment was a reason for the imposition of the leave without pay condition. 

8. As we explain in part 8 below, the evidence does not support the conclusion that a reason for the imposition of the performance management conditions was Mr Edoo's alleged impairment.  Our conclusion in that respect is that the performance management condition was imposed solely in response to the recommendations made by Dr Lindsay in her report dated 23 May 2008, based on her findings that although Mr Edoo was not suffering from a psychiatric disorder, and was fit to return to work, he would benefit from supervision, to provide him with support, to ensure that he was not overloaded with responsibility beyond his capabilities, and that he should work in a regular position without frequent changes of environment.  Dr Lindsay's recommendations did not proceed from a conclusion that Mr Edoo was suffering from any condition which reflects the alleged impairment. 

9. Finally, there was little evidence before us in relation to the alleged failure by the hospital to comply with public sector standards and to provide Mr Edoo with a fair hearing into the 19 March incident.  There are vague references by Mr Edoo (in exhibit 1) to allegations that the hospital did not comply with grievance resolution procedures, and to the absence of a fair investigation, but nothing in that material provides any basis for linking the 'constructive dismissal' with Mr Edoo's alleged impairment. 

10. In addition, within the Supplementary Bundle of Documents filed by the respondent (exhibit 10, p 155 ­ 156) was a letter from Dr Ruth Shean, the Commissioner for Public Sector Standards, to Mr Edoo.  That letter appears to constitute Dr Shean's response to a complaint by Mr Edoo concerning an alleged failure by the hospital to comply with a public sector standard relating to discipline.  (The letter is dated 2 February 2008, but that appears to be an error, as the letter refers to the 19 March incident, and to earlier correspondence dated 21 July 2008.)  Dr Shean concluded that there was no evidence that the Department of Health (that is, the hospital) had not complied with the discipline standard with respect to the actions taken to initiate an inquiry into the 19 March incident.  Accordingly, nothing in the material before us provides a basis for concluding that there was any link between the alleged (and ultimately unproven) failure of the respondent to comply with public sector standards and Mr Edoo's alleged impairment.

11. Accordingly, the evidence does not support the conclusion that one of the reasons for any of the matters which Mr Edoo claimed led to his 'constructive dismissal' was his alleged impairment. 

(c)                  Failure to establish less favourable treatment – absence of evidence of a comparator

1. Mr Edoo must prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances:  Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 (Purvis) at [234] ­ [236] (Gummow, Hayne and Heydon JJ). The expression 'less favourably' in s 36 of the EO Act bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case: Ghockson; Haines v Leves (1987) 8 NSLWR 442 at 471 (Kirby P). 

2. To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated:  Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 (Mahoney JA).

3. It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated.  It may be that the comparator is hypothetical:  see, for example, Dare v Hurley [2005] FMCA 844; (2005) EOC 93­405; Mooney v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 107 at [59] ­ [68]. Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.

4. It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison: Zangari and St John Ambulance Service [2010] WASAT 6 (Zangari) at [38]. In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable: Purvis at [224] (Gummow, Hayne and Heydon JJ).

5. Prior to the hearing, Mr Edoo did not put before us any evidence of individuals who could be viewed as comparators.  In his submissions in reply dated 8 December 2009, Mr Edoo referred to two persons whom he submitted could be viewed as comparators.  We note that Mr Edoo sought to introduce that material in order to indicate how employees at the hospital, who did not have an impairment, were treated when they engaged in acts of misconduct.  For the reasons that we have set out in part 5 above, we do not give that evidence any weight. 

6. Quite apart from that, however, the material set out in Mr Edoo's submission of 8 December 2009 did not provide sufficient information for us to conclude that either or both of the two people to whom Mr Edoo referred were in the same circumstances as, or not materially different circumstances from, Mr Edoo so that they might be considered as comparators. Mr Edoo was clearly conscious of the limited information that he was able to provide about those two people. He submitted that the Tribunal should order the respondent to provide details of the cases to which he referred. It is not the Tribunal's role to seek to locate evidence in support of a party's case, and Mr Edoo did not establish any, or any adequate, basis upon which the Tribunal could conclude that it should pursue this line of inquiry further (cf s 32(4) of the SAT Act).

7. Finally, the material filed by Mr Edoo, both prior to the hearing and in his submissions in reply, did not provide sufficient material for us to consider the position of a hypothetical comparator either.  Nothing in the factual material before us, including the evidence provided by the respondent's witnesses and the documents filed by the respondent, suggested that a hypothetical comparator in the same or not materially different circumstances would have been treated in any way different from the way in which Mr Edoo was treated.

1. Failure to establish the alleged indirect discrimination

(a)                 Failure to establish an impairment

1. For the reasons that we have outlined in part 7(a) above, Mr Edoo did not produce probative evidence to establish that he was suffering from an impairment within the meaning of that term in the EO Act.

(b)                 Failure to establish that the imposition of the performance management condition was unreasonable having regard to the circumstances of the case

1. Mr Edoo complains that after the 19 March incident, and following his period of leave immediately thereafter, he was advised that (amongst other things) his return to work would be subject to the performance management condition.  That is, he would be required to work under the supervision of Mr Ayoub for six to twelve weeks, and for that purpose he would need to work on morning shifts from Monday to Friday.  Mr Edoo says that as a result of that decision he was unable to earn overtime, weekend or penalty shift rates.

2. Mr Edoo claimed that he was first advised of the imposition of the performance management condition at the meeting he attended on 17 April 2008 with Ms Wiltshire and with Mr Zeeman.  We have discussed other aspects of that meeting earlier in these reasons. 

3. We prefer the evidence of Ms Wiltshire and Mr Zeeman to that of Mr Edoo in relation to what was discussed, and determined, at the meeting on 17 April 2008, both for the reasons set out in part 5 above, and because the witness statements of Ms Wiltshire and Mr Zeeman contain consistent versions of what was discussed at that meeting.  We find that in the course of that meeting, Ms Wiltshire did not make any decision to impose the performance management condition.   

4. Mr Edoo stated (in exhibit 1) that on 10 June 2008, he attended a meeting with Ms Wiltshire, Ms Bajrovic, and Mr Clancy.  We discussed the circumstances leading to this meeting earlier in these reasons.  Mr Edoo stated that in the course of the meeting he was informed that Dr Lindsay had recommended that he return to work under supervision, and that as a result he would be required to work for six to twelve weeks on early shifts.  Mr Edoo says that as a result of that decision he was unable to earn overtime, weekend or penalty shift rates.

5. In her report (exhibit 9, p 27 ­ 42) Dr Lindsay stated that on her review, she found no evidence that Mr Edoo was suffering from a psychiatric disorder, and concluded that there was no mental health reason why he was unable to return to practice as a mental health nurse.  However, Dr Lindsay made some recommendations regarding Mr Edoo's return to work (exhibit 9, p 40), namely:

   …I would recommend regular supervision to assist Mr Edoo assess his own strengths and weaknesses.  This will also hopefully assist him in feeling more comfortable in seeking appropriate support and advice without feeling discriminated against.  I would also recommend ensuring that Mr Edoo is not overloaded with responsibility beyond his capabilities, to minimise any escalation of stress for him.  This would, in my opinion, give him the best possible chance of a successful reintegration into the workplace.  Furthermore, I would recommend a regular position without frequent changes of environment.

6. In her witness statement (exhibit 12) Ms Wiltshire stated that she and Ms Bajrovic had reviewed Dr Lindsay's report and accepted her recommendations.  She stated that they

   decided that in relation to the Applicant's return to work, for a period of six weeks to three months he should work Monday to Friday on day shifts under the supervision of Mr Ayoub.  The aim was to allow the Applicant to return to work in a supported environment as recommended by the Psychiatrist's report. 

7. In her witness statement (exhibit 16), Ms Bajrovic stated that at the meeting on 10 June 2008, she advised Mr Edoo that 'having regard to the recommendations made by Dr Lindsay, he would be performance managed by his supervisor, Mr Ayoub, for a period of six weeks to three months, and that as a result he would be placed on day shift Monday to Friday for this period'.  Ms Bajrovic prepared a file note of the discussion at that meeting (exhibit 9, p 44) which sets out what was discussed, and is consistent with the evidence in Ms Bajrovic's witness statement. 

8. In her witness statement (exhibit 12) Ms Wiltshire confirmed that Ms Bajrovic advised Mr Edoo that his return to work would be subject to the performance management condition.  Ms Wiltshire also confirmed the accuracy of the notes of the meeting which were prepared by Ms Bajrovic. 

9. Mr Edoo's key complaint in relation to the performance management condition appears to be that by virtue of the fact that he was to be required to work day shifts on Monday to Friday, he would not be eligible to earn penalty rates for overtime, weekend or late shift work.

10. The respondent did not deny that as a result of the performance management condition Mr Edoo would have been required to work day shifts on Monday to Friday, and that this was despite the fact that Mr Edoo had expressed a strong desire to work on night shift.  However, the respondent submitted that the performance management condition was reasonable.  We accept that submission. 

11. Mr Edoo has not established that the imposition of the performance management condition was unreasonable, having regard to all of the circumstances.  We have reached that conclusion for the following reasons. 

12. First, the performance management condition was imposed in light of, and to meet, the recommendations made by Dr Lindsay in her report of 23 May 2008.  The performance management condition appropriately reflected those recommendations, particularly the recommendations that Mr Edoo be supervised, and that he work in a regular position without frequent changes of environment so as to minimise the risk of stress and to allow him to function most effectively. 

13. Secondly, the requirement that Mr Edoo work day shifts on Mondays to Fridays was necessary to enable him to be supervised by his line manager, Mr Ayoub, who worked day shifts on those days. 

14. Thirdly, the performance management condition was not intended to be permanent.  Subject to Mr Edoo's performance, it was intended to operate only for six to twelve weeks. 

15. Fourthly, in his witness statement (exhibit 13) Mr Ayoub stated that in 2006, Mr Edoo reduced his hours to 0.6.  According to Dr Lindsay's report (exhibit 9, p 30) this had allowed Mr Edoo the flexibility of doing overtime.  It therefore appears that even while required to comply with the performance management condition, there may have existed the option for Mr Edoo to do some overtime. 

16. Fifthly, in his witness statement (exhibit 13) Mr Ayoub stated that on 29 April 2008, Mr Edoo had requested that he work permanently on night shift.  Mr Ayoub advised him that he did not have a vacancy on the ward on night shift.  In addition, Mr Ayoub had previously advised Mr Edoo that he could not have someone on permanent afternoon or night shift.  Accordingly, despite Mr Edoo's preference to work on night shifts, the evidence suggested that at that time, and quite apart from the performance management condition, he would not have been able to work on night shift in any event. 

17. Finally, having regard to Dr Lindsay's recommendations, the imposition of the performance management condition appears to have been necessary to meet the respondent's duty of care, both to Mr Edoo himself, and to other employees and patients at the hospital.

(c)                  Failure to establish that the performance management condition was one with which Mr Edoo was not able to comply

1. The material produced by Mr Edoo did not support the conclusion that he was unable to comply with the performance management condition.  As we have noted above, Mr Edoo's primary complaint in relation to the performance management condition appeared to be that by working day shifts on Monday to Friday, he would not be able to earn penalty rates for weekend or night shifts, or overtime.  That suggests that Mr Edoo would have preferred to work different shifts (because by doing so, he could have earned more money for the same number of hours of work) rather than that he was unable to comply with the performance management condition. 

2. In exhibit 7, Mr Edoo suggested that a further reason why he would have been unable to comply with the performance management requirement was that he 'he had a problem with early shift due to his prescribed medication and sleep disturbances'.  We do not accept that this constituted an inability to comply with the performance management condition.  We note that according to the witness statement of Mr Ayoub, he had spoken to Mr Edoo about his lateness for work in the mornings, prior to the 19 March incident.  Mr Edoo told Mr Ayoub that his lateness was due to the fact that 'he was sleeping in as he was taking antidepressant medication'.  At that point, Mr Ayoub suggested that Mr Edoo take his medication a little earlier.  Mr Ayoub also agreed that Mr Edoo could commence work at 7.30 am, rather than the regular time of 7.00 am on day shift, but once that change occurred, Mr Edoo started coming in at 8.00 am.  In view of this evidence, we are not persuaded that it can be said that Mr Edoo would have been unable to work day shifts during the period of his performance management.

1. There was also evidence which tended to suggest that Mr Edoo would have been able to comply with the performance management condition.  In his witness statement (exhibit 13) Mr Ayoub indicated that Mr Edoo had undertaken a three month period of performance management in 2006.  Mr Ayoub stated that Mr Edoo was required to work on day shifts on Monday to Friday under Mr Ayoub's supervision for that period.  During that period Mr Edoo converted from a full time employee to a part time employee working 0.6 of a full time equivalent position.  Mr Ayoub stated that 'at the completion of the performance management period, the Applicant stated to me that he had learnt a lot and that I was there and supervising him'.  It thus appears that the previous period of performance management was on similar terms to the performance management condition, and that Mr Edoo had been able to comply with that period of performance management. 

2. In our view, Mr Edoo has not established that the performance management condition was one with which he was unable to comply.

1. Conclusion and orders

1. In view of the conclusions set out above, it is unnecessary for us to consider the respondent's alternative submission that even if there was any act of discrimination against Mr Edoo, that discrimination would not be unlawful by virtue of s 66Q(2) of the EO Act.

2. It is also unnecessary for us to consider arguments concerning the relief sought by Mr Edoo, including whether reinstatement is available in the event that an allegation of unlawful discrimination by virtue of dismissal from employment on the ground of an impairment, is made out.

3. Mr Edoo has failed to establish that he was unlawfully discriminated against by the respondent on the ground of an impairment.  His complaint should therefore be dismissed.  We make the following order:

   1.The applicant's complaint of discrimination contrary to the Equal Opportunity Act 1984 (WA) is dismissed.

I certify that this and the preceding [191] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J PRITCHARD, DEPUTY PRESIDENT