Farage v Sydney West Area Health Service

[2009] NSWADT 53

CITATION:	Farage v Sydney West Area Health Service [2009] NSWADT 53
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Tony Farage RESPONDENT Sydney West Area Health Service
FILE NUMBER:	081124
HEARING DATES:	13 January 2009
SUBMISSIONS CLOSED:	13 January 2009
DATE OF DECISION:	9 March 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Leave application, no reasonable prospects of success
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 X v Commonwealth (1999) 200 CLR 177 Cosma v Qantas Airways Ltd [2002] FCA 640
REPRESENTATION:	APPLICANT M Rollinson, barrister RESPONDENT V Morales, agent
ORDERS:	Leave is refused.

Introduction

1 Mr Farage was employed by the Sydney West Area Health Service (SWAHS) as a Hospital Assistant Grade 2 from 2000 until his employment was terminated on 13 December 2007. His duties were cleaning the general wards and the office areas of the Nepean Hospital. On 6 March 2008 Mr Farage lodged a complaint of race and disability discrimination against SWAHS with the Anti-Discrimination Board (ADB). Mr Farage is from a Lebanese background and says he suffers from muscular dystrophy. His complaint related both to the termination of his employment and to alleged unfavourable treatment during the course of his employment. The President of the ADB declined his complaint as lacking in substance. Mr Farage has requested that his complaint be referred to the Tribunal. The complaint cannot go ahead unless the Tribunal gives permission (or leave) for it to proceed: Anti-Discrimination Act 1977 (AD Act), section 96.

Background to the complaint

2 In his complaint to the ADB, Mr Farage made nine separate allegations of discrimination. Mr Rollinson, representing Mr Farage, said that while his client was relying on each of those allegations six of the nine were the most important. In my view, the other three allegations do not require any detailed consideration as they have no reasonable prospects of success and leave should be refused. The remaining six allegations, together with SWAHS’s response in italics, are set out below:

(a) that he was ordered to perform inappropriate and unreasonable tasks and bullied when he was unable to perform those tasks, in particular that he was ordered to push a large garbage trolley on 13 December 2007; ( SWAHS investigated the claim and the supervisor concerned denies directing Mr Farage to perform any tasks which presented a risk of injury )

(b) that Hospital staff failed to promote equal employment opportunity in the workplace by failing to provide a work plan which included reasonable adjustments tailored to Mr Farage's disability; ( SWAHS said that Mr Farage did not provide any detail of injury or changes in his disability which required adjustment to the workplace or his duties. No injuries or medical conditions were declared on his declaration at the time of employment nor is there any record of Mr Farage requesting that his duties be adjusted due to his disabili ty)

(c) that he was bullied for taking breaks whilst on duty which he said he needed because he got tired; (SWAHS says that on several occasions Mr Farage was observed smoking on Hospital grounds which is against New South Wales health policy. After several warnings and continued breaches these incidents were investigated in late 2007)

(d) that the Hospital did not provide a disabled parking space to Mr Farage and that he felt threatened and isolated returning to his car late at night because of his disability; ( SWAHS provides disabled parking for staff, visitors and patients and offers more disabled parking spots than required by law Mr Farage was booked for parking illegally in a contractor’s space on 13 April and 23 April 2007. SWAHS has no record of a complaint in relation to this claim. Security services at the Hospital provide a security escort service for staff returning to their vehicle at night. Security Department has no record of Mr Farage seeking such an escort.)

(e) that the Hospital changed his work roster removing him from weekend work; and

(f) that the Hospital terminated him because of his race and disability. (SWAHS’s response to the last two allegations is set out below.)

3 The incidents that led to Mr Farage being removed from the weekend roster and ultimately to his termination are described by his supervisor, Ms Ninic, in the following terms:

At 1:30 p.m. on 8 August 07 Cowin Watts approached me in my office informing me that he had completed a report stating that Tony Farage had once again been witnessed smoking on Hospital grounds and neglecting to answer his pager.

I informed Cowin that we would have a meeting between Tony, Cowin and myself on Wednesday afternoon to address the issues surrounding Tony's performance.

At approximately 4 p.m. I was taking my afternoon break at Barbara Avenue. Present with me at this time were Cowin Watts, Cheryl Goodwin and Donna Moffit. At approximately 4.05 p.m. I witnessed Tony Farage smoking a cigarette at North Block fire stairs exit. I did not approached Tony at this time. I returned to my office with Cowin and paged Tony on our arrival.

Tony did answer the page immediately and I instructed Tony to report to my office. Tony arrived within approximately 3 minutes. I asked Tony to take a seat but he refused stating that he would prefer to stand. I reminded Tony that at our last meeting held on 28 June 07 we had discussed the Hospital's smoking policy and that he has assured me during this meeting that he would no longer smoke on Hospital grounds. Tony responded to this very aggressively and although he did not deny smoking he pointed out that I should have confronted him when I saw him smoking in order for me to take action. In response to Tony's answer to me Cowin pointed out that he had also witnessed Tony smoking at the same place on the previous day. Cowin also did not approach Tony at this time but did complete a report regarding the incident.

Following this Tony became increasingly aggressive and advised me to "do whatever you want, take me off the weekends". I informed Tony that it was my intention to remove Tony from the weekends as it has become obvious that he requires close supervision. I also informed Tony formally that I was providing him with the required two weeks’ notice and that the commencement of his change of roster is 22 August 07. At this point I advised Tony that the meeting was over. I asked Cowin to get a change of roster application and Cowin left my office.

Tony became even more aggressive and frustrated when he realised that the decision to change his roster was finalised. Even though I had advised Tony that our meeting was completed he refused to leave my office. Following my second attempt to inform Tony that our meeting was over, Tony turned towards me and very aggressively said "how can you sleep with yourself at night, I have now lost my weekends. I need money, I have a mortgage". He repeated this twice before leaving my office.

Approximately 10 minutes later, Tony returned to my office, placed his pager on my desk and advised me that he was stressed, had a migraine and that he was going home. At this time he leaned over my desk and said “why are you doing this to me”. I responded to Tony that I had received numerous complaints and reports relating to his misconduct and that I have no choice other than to act in a manner that I have. The report written by Cowin in relation to Tony not answering his pager to children's ward was on my desk at the time and Tony was able to read this report. Tony's response to reading the report in question was "it's Cowin, it's Cowin" and forcefully grabbed my right arm attempting to take me to the children's ward. I refused to go with Tony which resulted in Tony to increase the pressure on my arm. Following 3 attempts I finally managed to free my arm from Tony's grasp. At this point I noticed Cheryl Goodwin standing outside my office door, witnessing what had just occurred. Once I was freed Tony left my office without any further comments. . . .

At approximately 9:30 p.m. I received a phone call from Cowin informing me that Olivera Calic had received a text message from Tony stating “hi girl, they picked on the wrong fxxx man this time, my brothers are coming to get him.” At this point I became concerned over my own safety as I realised the potential magnitude of the situation.

4 Ms Goodwin’s statement said, in part:

On Wednesday 8/8/07 I was in Gail Clarey’s office talking to Mirjana Ninic when Tony Farage came in. Tony said “Mirjana, I want to talk to you." As Tony seemed angry I stayed in Gail’s office area near Mirjana’s door which was left open after Tony and Mirjana’s meeting and could see both Mirjana and Tony.

He started shouting at Mirjana to go with him he wanted to show her something. When Mirjana said “no" I saw Tony grab her arm and start shaking it. Tony was standing so close to Mirjana she had to sit down.

5 Olivera Calic provided a statement saying:

On the 08/08/07 at 16.50 I saw Tony Farage in front of the newsagency/gift shop. He was talking on his mobile phone and told me to wait for him to finish because he had something to tell me. He was talking in a different language and then just hung up the phone. Then he told me about his shift, after couple of minutes he got another phone call and it was his brother.

He was telling his brother that he lost his weekend shift, all the penalties and that he was coming home. Then he said he was going downstairs to f*** Cowin. When he finished with his brother I just told him to calm down because it's not worth causing trouble. He said you don't know what this man has done to me. He was just carrying on about the weekend shift and penalties. I went to my area about 17:10. At 20:40 I received a message from Tony saying how's things girl, I replied “OK, what about you, how are you feeling?” He sent me another message saying “I’m pissed off he got to go, that final, I'll sort him out tonight.” I replied with “What are you going to do? Don't be silly, don't put yourself in sh**.” He replied with another message. “He fu**** with the wrong man, he crossed over the line.”

6 In Mr Farage’s response to these statements he admitted that he had smoked on Hospital grounds on one occasion. He denied that he had acted in an aggressive manner in the meeting with Ms Ninic. He said he was upset, as anyone would be. In response to Ms Goodwin’s statement that she saw Mr Farage grab Ms Ninic’s arm, Mr Farage said “Why would I shake her arm?” In relation to the text messages, Mr Farage said “. . . I had a stressful family-related issue to deal with consecutively, and in the heat of the moment I wrote back a message which reflected my emotions as the time, but expressed no intentions.” He added that, “Although I had a conflict of opinions with Cowin and I was upset over the situations arising at work, the messages were in no way expressing that I would cause any threat or harm to Cowin. I would not even think to cause harm to any other persons, whether it be at work or personal life. It was Olivera’s assumption that the messages were aimed at Cowin, whereas they were written in an emotional moment and were not aimed at any persons.”

7 Mr Matthew Noone, General Services Manager at Nepean Hospital, investigated the allegations of misconduct. In his report dated 3 October 2007 he found the following allegations substantiated:

(a) physically and verbally aggressive behaviour towards Mirjana Ninic;

(b) threatening harm towards Cowin Watts;

(c) repeatedly smoking on Nepean Hospital grounds, after being told not to smoke on the grounds; and

(d) taking unauthorised breaks whilst on duty.

8 In relation to the final matter a mitigating factor was found to be that Mr Farage suffers from a number of health problems including migraines and that he occasionally takes a short break outside designated break times, without notifying his supervisor. Mr Noone concluded that the most serious allegation was that of physical and verbal aggression towards Ms Ninic and the threats he made towards Cowin Watts. Mr Noone's recommendation was that Mr Farage’s employment contract be terminated. That recommendation was implemented on 13 December 2007.

Principles for granting leave

9 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]:

The legislature has not given the Tribunal the task of conducting a merits review of the President’s decision. Consequently, it is not the Tribunal’s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President’s decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President’s decision that it lacks substance.

18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President’s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination.

10 In a summary, the relevant principles are:

(a) if the complaint has been declined as lacking in substance the Tribunal may consider all relevant material and ask whether

(i) there is a serious question of fact to be determined

(ii) there is a serious question of credit involved; and/or

(iii) there is a factual issue that is likely to be affected by evidence in the respondent’s possession;

(b) on the material available, the claim lacks merit so that it is not in the public interest to permit it to proceed

(c) the applicant is able to show a substantial reason for leave being granted which generally includes that the applicant has reasonable prospects of success.

Reason for requesting leave

11 Mr Rollinson, representing Mr Farage, said that the reason leave should be granted is that there are issues of credit involved in ascertaining whether Mr Farage actually engaged in the alleged misconduct which preceded his dismissal. Mr Farage denies “grabbing” Ms Ninic on 8 August 2007, agreeing only that he spoke to her heatedly. Because he was dismissed partly on the basis that he had “assaulted” Ms Ninic, Mr Rollinson says the factual issues should be determined by the Tribunal. He submitted that a second factual dispute concerns the interpretation of the two SMS messages Mr Farage sent to Ms Calic. While he admits sending those messages he said that he had no intention of harming anyone. According to Mr Farage these incidents were a pretext for dismissing him on the ground of his race and/or disability.

12 Mr Farage submitted that there is a culture of race discrimination at the Nepean Hospital especially in relation to Arabic men. He said that SWAHS’s decision to terminate him on the basis of the conversation he had with Ms Ninic and the two SMS messages, demonstrates that his supervisors assumed that he acted or would react violently because he is an Arabic man. Mr Farage also gave as an example of the racist culture, an allegation that in mid 2007 a fellow employee, Helen O’Shea, said to him, “I don't like working with Arab men.” Mr Farage said he reported this incident to two other people but nothing happened.

13 In relation to the complaint of disability discrimination, Mr Farage says that he was employed through an employment agency called Active Employment which only recruits and employs disabled people. He says that SWAHS must have been fully aware of his disability. He said he signed a release of all his medical files held by Active Employment to the SWAHS which included his medical history of muscular dystrophy. As well he says that his disability is obvious because he has a “profound limp” and the physical attributes of a person with muscular dystrophy. If new managers were not aware of his disability it was SWAHS’s responsibility, he said, to inform managers that he had a disability so that he could be provided with a safe working environment. In particular, he asserted that on his last day of employment he was required to push large commercial rubbish bins which was unreasonable in light of his disability and was a requirement with which he could not comply.

14 Mr Rollinson summarised Mr Farage’s complaints as follows:

Racial: staff members who arrived in early 2007 disliked working with Mr Farage, an Arab (Lebanese) man. The dislike was expressed. It underlay complaints against him ostensibly on other grounds.

Disability: Mr Farage had obtained the job in 1999 (temporarily) and 2000 (permanently) through Active Employment, a job placement agency for disabled persons. Mr Farage has had muscular dystrophy since childhood. During 2007 he was called on to perform heavier duties e.g. pushing large rubbish trolleys that were beyond his capacity. At the same time he was reprimanded for smoking on Hospital grounds, which was actually a complaint that he was taking too many breaks from work (other staff smoke on the grounds during breaks and are not reprimanded). He was removed from weekend shifts on this ground. There was also no disabled parking spot available within easy walking distance, which led to his being reprimanded for parking in contractors' spots. In effect Mr Farage’s duties were changed so that, being disabled, he could no longer cope and his attempts to cope or to complain became the pretext for his dismissal. On Mr Farage’s last day of work, 13 December 2007, he was called on to push heavy trolleys; at the end of the day he was dismissed without notice . . .

The President states that Mr Farage did not request his employer to accommodate his disability. He says that he complained at the heavy duties. As his disability was noted when he was first employed, it was in any case up to his employer not to make changes to his situation that prevented him from continuing.

Race discrimination

15 In order to substantiate his complaint of race discrimination, Mr Farage would have to prove that SWAHS discriminated against him either in the terms or conditions of employment and/or by dismissing him or subjecting him to any other detriment: AD Act, section 8. For the purposes of these proceedings I have assumed that the allegations relate either to the terms and conditions of his employment or that they constitute a dismissal or other detriment.

16 Discrimination is defined in section 7 in the following terms:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’ s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of sub-section (1)(a) and (b), something is done on the ground of a person’ s race if it is done on the ground of the person’ s race, a characteristic that appertains generally

17 I have also assumed, for the purposes of these proceedings, that Mr Farage is alleging direct discrimination as defined in section 7(1)(a), rather than indirect discrimination as defined in section 7(1)(b). Race is defined in section 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin". I accept for the purposes of these proceedings, that Mr Farage’s national origin is Lebanese.

Disability discrimination

18 In order substantiate his complaint, Mr Farage would have to prove that SWAHS discriminated against him either in the terms or conditions of employment and/or by dismissing him or subjecting him to any other detriment: AD Act, section 49D(2). Again, for the purposes of these proceedings, I have assumed that the allegations relate either to the terms and conditions of his employment or that they constitute a dismissal or other detriment.

19 So far as is relevant to these proceedings, disability discrimination is defined in section 49B as follows:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’ s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

20 I have also assumed that Mr Farage is alleging a breach of section 49D(2)(c) and (d) and that he is alleging direct disability discrimination in relation to each allegation and indirect discrimination in relation to the allegation that SWAHS failed to provide a work plan which included reasonable adjustments for his disability. Disability is defined in section 4 of the AD Act. I have assumed for the purposes of these proceedings that muscular dystrophy comes within the definition of disability in the AD Act.

21 SWAHS will have an “unjustifiable hardship” defence to any complaint of disability discrimination based on a hiring or firing decision if it can prove that its conduct comes within the provisions of section 49D(4):

(4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment, or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

I note that this exception only applies to decisions about who should be offered employment and whether an employee should be dismissed. It does not apply to decisions about the terms and conditions of employment or other detriments.

Proving direct discrimination

22 In order to determine whether any of SWAHS’s conduct constitutes direct discrimination on the ground of race or disability the Tribunal must ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of race: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the manner in which SWAHS treated Mr Farage with the way he would have treated another person of a different race or who did not have Mr Farage’s disability, in the same or similar circumstances. Neither the SWAHS nor Mr Farage identified a person in a similar situation and compared how he or she had been treated with the manner in which Mr Farage had been treated. As there was no actual comparator, the comparison must be made with a hypothetical person: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. If the comparison produces the conclusion that Mr Farage was treated objectively less favourably than a person of another race or who does not have Mr Farage’s disability, it is then necessary to consider the reasons for that treatment, that is, causation.

23 Differential treatment. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231]. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133). Consequently, we are unable to determine how a hypothetical comparator would have been treated without first deciding the causation question.

24 Causation. In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that:

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

25 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. Each of the allegations Mr Farage has made against SWAHS is considered below in light of these principles.

Ordered to perform inappropriate and unreasonable tasks

26 The only example Mr Farage gave of an inappropriate or unreasonable task was that he was ordered to push a large garbage trolley on 13 December 2007 when he had not previously been asked to perform those duties in his previous nine years of employment.

27 Assuming that being ordered to perform this duty constitutes a “detriment” within the meaning of that term in section 49D(2), does it constitute direct discrimination on the ground of disability? There was no evidence that Mr Farage had been treated less favourably than any other employee. In relation to the causation element, Mr Farage would have to prove that at least one of the reasons he was directed to perform those duties was his disability. It is highly unlikely that he would be able to prove that assertion given that Mr Noone denies that he was aware that Mr Farage had muscular dystrophy and Mr Farage was not able to identify any occasion on which he explicitly made his employer aware of that fact. In a questionnaire completed by Mr Farage at the time he was employed, he answered “no” to the question, whether he was aware of any circumstances regarding his health which may interfere with the performance of his job. Mr Farage did not suggest that pushing garbage trolleys was not within his job description, merely that he was too disabled to perform that activity. Even if Ms Ninic knew he had muscular dystrophy, the AD Act does not require an employer to change the nature of a person’s job in order to accommodate the person’s disability: X v Commonwealth (1999) 200 CLR 177 at [102]; Cosma v Qantas Airways Ltd [2002] FCA 640 at [67].

28 It also appears that Mr Farage was alleging, in the alternative that the requirement to push a large garbage trolley constituted indirect discrimination contrary to section 49B(1)(b). This submission was not mentioned in the course of the hearing and it is difficult to envisage how it would apply to these circumstances. If SWAHS imposed a requirement on employees to push “a large” garbage trolley, and Mr Farage could not comply with that requirement, it would remain for him to prove that the requirement was unreasonable in all the circumstances and that a substantially higher proportion of people without his disability could comply. It appears that Mr Farage did comply with the requirement, albeit with some difficulty. There was no evidence about the weight of the trolley, whether it was on wheels, how far it had to be pushed or whether other options were available. In my view the likelihood of Mr Farage proving that the SWAHS had directly or indirectly discriminated against him in relation to the decision to direct him to push a large garbage trolley is negligible.

Failed to promote equal opportunity in the workplace – no work plan

29 Not implementing a particular policy or failing to provide a work plan, without more, does not constitute a breach of the disability discrimination provisions of the AD Act. Neither the differential treatment nor the causation element of direct discrimination is satisfied, nor did Mr Farage’s representative articulate how these allegations could constitute a breach of the indirect discrimination provisions.

Bullied for taking breaks while on duty

30 Mr Farage did not provide any detail about the nature of the bullying (other than the disciplinary action taken against him) nor did he mention any occasion on which he had alerted his employer to the fact that he needed breaks while on duty because he got tired. Mr Farage was reprimanded for smoking on Hospital grounds and for more frequent or longer breaks than he was entitled to. He admits that on one occasion he smoked on Hospital grounds despite eyewitnesses asserting that he did so on several occasions. The likelihood of Mr Farage proving that any disciplinary action in relation to the length or nature of his breaks being based on his disability or his race is negligible.

Failure to provide disabled parking

31 Failure to provide sufficient disabled parking spots, by itself, does not constitute a breach of the disability discrimination provisions of the AD Act. There is no duty on an employer to positively accommodate an employee with a disability by guaranteeing that employee a disabled parking space.

Removal from weekend work and termination

32 SWAHS says that Mr Farage was removed from weekend work because he needed close supervision given the incidents relating to smoking at work, taking breaks and not responding to his pager. The decision to change his roster was not so unreasonable that it would be likely to give rise to an inference that one of the reasons for that decision was his disability or his race. In relation to the termination, the only factual dispute is whether or not Mr Farage grabbed Ms Ninic’s arm in the course of a heated conversation he had with her. Both Ms Ninic and Ms Goodwin, an eyewitness, say that he did grab her arm. Mr Farage denies that he did so. There is no dispute that he was the author of the SMS messages. What he intended by those messages is not of any great significance because the termination was on the basis of the content of the messages and the effect those messages had on other employees, not on any assumption that he would carry out the threats.

33 Even accepting Mr Farage’s evidence at its highest, the decision to terminate him on the basis of a heated argument with his supervisor and the threatening SMS messages is not a decision which is so unreasonable that it would give rise to an inference that it was in fact a pretext for terminating him on the ground of his race or disability. Furthermore, apart from a single remark by a fellow employee 12 months before the termination, Mr Farage cannot point to any direct evidence of a negative attitude of employees about his race. The prospects of Mr Farage substantiating any aspect of his complaint on the ground of race or disability discrimination is so slight that leave should be refused.

Order

Leave is refused.