Firth v Coles Supermarkets Australia Pty Ltd

[2022] NSWCATAD 156

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Firth v Coles Supermarkets Australia Pty Ltd [2022] NSWCATAD 156

Hearing dates:

21-24 February and 5 April 2022

Date of orders:

18 May 2022

Decision date:

18 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

H J Dixon SC, Senior Member
Prof J Goodman-Delahunty, General Member

Decision:

Application dismissed

Catchwords:

ANTI-DISCRIMINATION – disability discrimination - s 49B(1)(a), 49D(2)(d) direct and indirect – victimisation – s 50 of the Anti-Discrimination Act 1977 (NSW)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62

Texts Cited:

None

Category:

Principal judgment

Parties:

Alster Firth (Applicant)
Coles Supermarkets Australia Pty Ltd (Respondent)

Representation:

Counsel:
J Widjaja (Applicant)
A Gandar (Respondent)

File Number(s):

2020/00253308

Publication restriction:

Nil

Reasons for decision

1. Mr Alster Firth (the Applicant), commenced employment with Coles Supermarkets Australia Pty Ltd (the Respondent) on or about 25 October 2013 as an Online Delivery Driver, also known as a Customer Service Agent or CSA, and continues to remain in that employment.

2. The Applicant sustained a workplace injury on 20 May 2015. The injury was to the Applicant’s back, a disc desiccation with mild disc bulge.

3. It is accepted by the parties in these proceedings that the workplace injury so sustained is a disability within the meaning of s 4 of the Anti-Discrimination Act 1977 (NSW) (the Act).

4. On 14 December 2019 the Applicant made a complaint to the Anti-Discrimination Board of NSW concerning certain incidents that occurred at his workplace and various complaints about the handling of those complaints by the Respondent.

5. Following the unsuccessful resolution of that complaint, and by leave of the Tribunal, the Applicant was permitted to amend the complaint referred by the President of the Anti-Discrimination Board to the Tribunal on 31 August 2020 so as to incorporate additional complaints against the Respondent in respect of incidents during the period 1 August 2017 to 14 July 2020 which were then relied upon by the Applicant in points of claim filed by him dated 3 May 2021.

6. Counsel for the parties have, by agreement, and in a most helpful manner, dissected those complaints to particularise what may be described as “sub-claims” in relation to each of the points of claim as follows:

Sub-claim	Points of Claim paras	Alleged conduct	Alleged basis of claim
1.	3 – 7	Alleged repeated unreasonable behaviour by a colleague, Ms Carol Simon, between August 2017 and 22 November 2017.	Direct discrimination: ss 49B(1)(a) and 49D(2)(d)
2.	11 – 14	Alleged conduct by Ms Simon between 23 November 2017 and 14 December 2018 following a complaint of discrimination to Coles management on 22 and 23 November 2017	Direct discrimination: ss 49B(1)(a) and 49D(2)(d). Victimisation: s 50.
3.	15 – 23	Alleged conduct by Ms Donna Heaton, Coles Store Manager, being alleged threats of performance management or forced movement to a different role on 15 June 2018 and 22 March 2019.	Indirect discrimination: ss 49B(1)(b); 49D(2)(a), (d). Victimisation: s 50.
4.	24 – 28	Alleged conduct by Ms Heaton in requiring Mr Firth to do a workplace behaviour course on 16 August 2018.	Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50.
5.	29 – 35	Alleged conduct by Ms Leasa Bayley, a Coles Online Manager, being an alleged requirement on Mr Firth to lift crates outside his alleged medical restrictions on 26 October 2018.	Indirect discrimination: ss 49B(1)(b) and 49D(2)(d). Victimisation: s 50.
6.	36 – 39	Alleged conduct by Ms Bayley in allegedly directing Mr Firth not to talk to work colleagues on 2 January 2019.	Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50.
7.	40 – 43	Alleged conduct by Ms Heaton in allegedly placing limitations on Mr Firth’s ability to take toilet breaks on 29 March 2019.	Direct discrimination: ss 49B(1)(a); 49D(2)(d). Victimisation: s 50.
8.	44 – 47	Alleged conduct by Ms Heaton in allegedly directing Mr Firth not to take an EFTPOS carry bag or spare battery on his delivery runs on 29 March 2019.	Direct discrimination: ss 49B(1)(a); 49D(2)(a), (d). Victimisation: s 50.
9.	48 – 53	Alleged conduct by Mr Anthony Dalgleish, a former Coles Regional Manager, in creating allegedly fraudulent emails.	Direct discrimination: ss 49B(1)(a); 49D(2)(d). Victimisation: s 50.

7. The parties produced, by agreement, a chronology of key events alleged in the points of claim as set out below:

Chronology of Key Events Alleged in Points of Claim

1.   25 October 2013 – Mr Firth commenced employment with Coles at the Casula store.

2.   20 May 2015 – Mr Firth suffered an injury to his back.

3.   August 2017 to November 2017 – Mr Firth alleged Ms Simon repeatedly questioned him about his medical restrictions and asked him to carry weight over and above his restrictions and dealt with him in an unsafe, rude, aggressive or demeaning manner: refer sub-claim 1; Points of Claim [4]-[5].

4.   October or November 2017 – Mr Firth and Ms Simon, amongst others, transferred from the Casula store to the Willowdale or Denham Court store.

5.   22 November 2017 – Mr Firth made a complaint to Mr May, the Store Manager of the Willowdale store.

6.   23 November 2017 to 25 July 2018 – Mr Firth alleged Ms Simon failed to assist him load his delivery truck: refer sub-claim 2; Points of Claim [11(a)].

7.   15 June 2018 – Mr Firth had a meeting with Ms Heaton in which he alleged that he was threatened with performance management or forced movement to a different role: refer sub-claim 3; Points of Claim [17].

8.   25 July 2018 – Ms Simon swore at Mr Firth after helping him load his delivery truck: refer sub-claim 2; Points of Claim [11(b)].

9.   15 August 2018 – Mr Firth alleged Ms Heaton told him he provoked Ms Simon and required him to do a workplace behavioural course within 2 days; refer sub-claim 4; Points of Claim [24].

10.   24 August 2018 – Mr Firth alleged that Ms Simon attempted to “shoulder nudge” him: refer sub-claim 2; Points of Claim [11(c)].

11.   11 October 2018 – Mr Firth alleged that Ms Simon accused him of blocking the loading dock and swore at him: refer sub-claim 2; Points of Claim [11(d)].

12.   26 October 2018 – Mr Firth alleged that Ms Bayley directed him to lift crates over 15kilogram limit: refer sub-claim 5; Points of Claim [31].

13.   31 October 2018 – Mr Firth alleged that Ms Simon accused him of stacking crates near the roller door: refer sub-claim 2; Points of Claim [11(e)].

14.   14 December 2018 – Mr Firth alleged that that Ms Simon accused him of bringing his truck in too early and delaying another employee: refer sub-claim 2; Points of Claim [11(f), (g)].

15.   2 January 2019 – Mr Firth alleged that Ms Bayley interrupted him in a conversation with another employee in regard to a workplace matter and directed him not to talk with work colleagues: refer sub-claim 6; Points of Claim [36].

16.   22 March 2019 – Mr Firth alleged that Ms Heaton said words to the effect “I expect you to make your deliveries within the expected time frames”: refer sub-claim 3; Points of Claim [18].

17.   29 March 2019 – Mr Firth alleged that Ms Heaton and Ms Bayley placed limitations on toilet breaks and directed him not to take an EFTPOS carry bag or a spare battery with him on truck deliveries: refer sub-claims 7 and 8; Points of Claim [40], [44].

18.   14 July 2020 – Mr Firth alleged that Mr Dalgleish fraudulently created emails in regard to the purported investigation which sought to show that the Applicant had not been discriminated against or bullied because of the disability and that the Applicant was satisfied with the investigation conducted: refer sub-claim 9; Points of Claim [50].

8. The relevant sections of the Act relied upon by the Applicant in his points of claim and in support of the sub-claims are as follows:

4A   Act done because of unlawful discrimination and for other reasons

If –

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

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

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

49B   What constitutes discrimination on the ground of disability

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator –

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 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.

49D   Discrimination against applicant and employees

(2)   It is unlawful for an employer to discriminate against an employee on the ground of disability –

(a)   in the terms or conditions of employment which the employer affords the employee, or

…

(d)   by subjecting the employee to any other detriment.

50   Victimisation

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

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

(b)   given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

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

(d)   otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2)   Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

53   Liability of principals and employers

(1)   An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

…

(3)   Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

Background

Workplace

9. During the relevant periods the Applicant was employed at two separate online supermarkets operated by the Respondent. Initially he was employed at an online supermarket store at Casula and from about October or November 2017 he was employed at the Willowdale or Denham Court store.

10. An online supermarket involved a group of approximately 50 to 60 employees in each store responsible for fulfilling online customers’ orders, “picking” the orders from various shelves and storage facilities within the online facility, packing those products into crates, placing the crates on trolleys described as “dollies”, moving the dollies to a loading bay where small trucks or vehicles lined up for collection of the customers’ orders before setting off at particular scheduled times to deliver customers’ orders.

11. The employees responsible for fulfilling the orders are described as “pickers” and those responsible for delivering the customer orders in the small trucks are Customer Service Agents (CSAs).

12. The inherent requirements of the role of a CSA are described in a Task Analysis document used by the Respondent in the context of the return-to-work of injured employees to assess whether or not they are able to perform their roles based on information about their injury and limitations provided by the employee’s treating medical practitioner. The Task Analysis describes different aspects of the CSA role as follows. The key tasks are:

(i)   pre-shift truck inspection;

(ii)   push orders on dollies to docking area and load customer orders onto the truck with assistance, i.e., team lift;

(iii)   drive the truck to customer premises, unload crates, using a carton/hand trolley to deliver the customer goods;

(iv)   return empty crates to the truck, flat packed;

(v)   cleaning of trucks as required.

13. As will appear later in these reasons, changes were later made, particularly in respect of item (ii) above.

14. Typically there would be between 10 or 11 customer orders per delivery to be undertaken by a single CSA in accordance with a detailed schedule prepared by the Respondent for each of the CSAs. In broad terms, the schedule gets transferred into a run sheet which describes the time for inspecting the vehicle pre-departure, the time at which the CSA driver is to leave the premises, the route to be followed, the order in which the deliveries should take place for each customer, being the time slot or window which had been nominated by the customer for receipt of the delivery, the times for taking breaks and the expected time for returning the delivery vehicle to the store.

15. Typically, there are two shifts that operate the deliveries. There is a morning shift for CSAs of about five and a half hours and an afternoon shift of the same length.

16. The daily scheduling for online deliveries is managed centrally by the Respondent and not at the online stores. There were eight to ten trucks available for deliveries, although not all of them were always in use.

17. If CSAs were held up, delayed or needed assistance on the road, they were expected to contact a customer service team and also to call the Online Manager or Duty Manager. CSAs completed run sheets during the day and were trained to communicate verbally to the Online Manager or Duty Manager any issues or concerns arising during the shift when handing in run sheets at the end of the shift.

18. Each driver’s delivery schedule and route are programmed into handheld mobile navigation devices known as MDTs. The MDTs contain mapping information and a GPS navigation system and are pre-programmed with the delivery schedules and routes for each CSA for each shift. The CSAs take the MDTs with them on their delivery runs. The programmed delivery runs map out the routes and expected run times. It is expected that occasionally CSAs will be delayed on their delivery runs by issues such as traffic congestion, or hard-to-find addresses. However, most CSAs return to the store within 30 minutes of the expected run time. At the end of the shift, the CSA returns their equipment and unloads any damaged or undelivered stock.

19. On the evidence we are satisfied that the operations require a degree of efficiency, and for the Respondent time is a very important element in ensuring that the customers are serviced by a delivery within their nominated time frames, and that vehicles used by morning shift CSAs return to the online store in the time frames specified on the run sheet and are available for CSAs working the next shift.

20. A delay in departure by a particular CSA from the online store has the following potential effects:

1. it may impact delivery to the customer so that the delivery cannot be made in the nominated time;

2. it may delay the time that the CSA can return to the online store with the vehicle.

21. A delay by the CSA in returning to the online store has the following potential effects:

1. the same vehicle, if required for the incoming CSA, may not be able to depart on time;

2. the incoming CSA for the next shift, even having clocked on, may, depending on the availability of any spare vehicle, have to wait for the return vehicle before that CSA can carry out pre-departure tasks and leave on time;

3. delaying departure and impacting customer delivery time slots.

22. The delivery schedule prepared and given to each CSA in a run sheet is based on calculations and estimates by the Respondent as to the likely travel time between customers, the amount of time a particular delivery will take at a customer’s premises, possible traffic delays, times for breaks and expected return time to the store. These calculations are made in part from the tracking of vehicles and are updated by data acquired from previous deliveries to the same customer’s premises.

23. The evidence of Ms Heaton, which we accept, is that CSAs were instructed to ensure that in the event that a particular delivery took longer than the amount of time allocated in the run sheet they were to report this. For example, because a customer had not indicated in the online order particular features of the premises which result in additional time being taken, such as additional flights of stairs to deliver to the customer’s actual premises, the CSA was to notify the Respondent’s customer support service team to allow modifications to the CSAs run sheet and to schedule additional time. By this means the expected return time to the store by the CSA was extended. Such information was also valuable to input into the system operated centrally by the Respondent so that for the next delivery to the same customer adequate time would be allowed for the particular circumstances as advised by the CSA.

24. It is clear on the evidence that it was very important for the efficiency of the overall operations and timely delivery to multiple customers that CSAs departed the store at their nominated times and returned to the store as close to the nominated return time as possible.

25. It is also clear, and we find, that on a number of occasions when the issues of late departure and late return to the store were raised by the Respondent with the Applicant he had been repeatedly late in departing the online store for deliveries and also late in returning to the online store with his vehicle.

26. These delays were not insignificant in that on a number of occasions, and we find, the delays were for an hour or more and up to more than three hours after the nominated time on his run sheet. We are satisfied that such delays had an adverse impact on the efficiency of the Respondent’s operations for the reasons we have outlined above, or had the real potential for doing so.

27. We are also satisfied that as a result of these delays the Applicant’s managers, on a number of occasions, met with him to discuss the reasons for his lateness, both late departures and late returns, and also offered to him suggestions to enable him to improve on his performance in this regard. We deal with these matters in greater detail below.

28. We are also satisfied, and we find, that the Applicant’s managers sought to assist the Applicant to meet his time requirements by allocating to him, where possible, delivery runs which involved fewer customer deliveries per run, or fewer bulk items although that could not always be achieved.

Legal Issues Principles

29. The parties made detailed submissions as to the legal principles to apply to the claims made by the Applicant. The Applicant submitted that:

Direct Discrimination

(a) Pursuant to s.49B(1)(a) of the Act, there are two elements to establishing ‘direct discrimination’. The first being differential treatment and the second being causation (Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [45]).

(b)   In the current case, to determine whether Mr Firth suffered differential treatment, (there being no actual comparator by which to assess the differential treatment) a hypothetical comparator should be used (Purvis v New South Wales (Department of Education and Training) [2003] HCA 62). This requires the Tribunal to compare the treatment “that would be given in the same circumstances” to a person without Mr Firth’s disability (Purvis, [11]).

(c) In relation to causation, it is the reasons for the respondent’s actions which are relevant, not their intention (Purvis, [236]). The reasons must be the ‘real, ‘genuine’ or ‘true’ basis for the treatment (Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63 at [17]). The central question is “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?” (Purvis, [236]). Where no direct evidence of causation exists, a causal link between the applicant’s disability and his treatment may be inferred from the primary facts (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

Indirect Discrimination

(d)   Pursuant to s. 49B(1)(b) of the Act, a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have 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.

(e)   There are four elements to a claim of indirect discrimination:

(1)   the respondent requires the applicant to comply with a requirement or condition;

(2)   a substantially higher proportion of persons without that disability are able to comply;

(3)   the requirement or condition is not reasonable having regard to the circumstances; and

(4)   the applicant does not comply or is not able to comply with the requirement or condition.

(f)   Firstly, what constitutes the condition or requirement in a claim of indirect discrimination is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349).

(g)   Secondly, to assess whether a substantially higher proportion of employees without a disability were able to comply with the requirement, the applicant is required to:

(1)   identify the base group;

(2)   identify members within the group who do not have a disability;

(3)   identify members who do have a disability and can comply;

(4)   compare the proportion of employees who do not have a disability and can comply with the proportion of employees who do have a disability and can comply.

(h)   Thirdly, in assessing the reasonableness of the requirement, the Tribunal is to balance the nature and extent of the discriminatory effect of the requirement against:

(1)   the reasons for the requirement (including commercial considerations);

(2)   whether the requirement is appropriate and adapted to its purpose and has a logical basis; and

(3)   whether there is a less discriminatory option to accommodate the aggrieved person.

(i)   Lastly, the inability of the applicant to comply is to be assessed in a practical (not theoretical) sense (Reddy v International Cargo Express [2004] NSWADT 218 at [59]).

Grounds of Discrimination

(j)   The applicant relies on s.49D(2)(a) and (d) (as will be relevantly stated) in establishing his claim of discrimination.

(k) In respect of s.49D(2)(d), in relation to what is meant by ‘detriment’, “all that is required… is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter” (Bogie v The University of Western Sydney (1990) EOC 92-313; Burns v Sunol [2014] NSWCATAD 62 at [34]).

(l)   Additionally, the unlawful discrimination need only be one of the reasons the act was done (s.4A of the Act).

Victimisation

(m) Pursuant to s. 50(1)(c) of the Act, it is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so stated, would amount to a contravention of the Act.

30. The Applicant further contends that characteristics that generally pertain to a person with his disability include an incapacity to lift heavy weight, and move with agility and speed. The Respondent accepts that an incapacity to lift heavy weight is a characteristic pertaining to persons with a back injury.

31. In respect of agility and speed, the Applicant submits that the Tribunal can draw an inference from the medical evidence relating to the Applicant. Further, it was submitted it is a matter of which, being ‘open and notorious’ the Tribunal may take on judicial notice relying on the decision in Araya v Owners Corporation SP 65717 [2021] NSWCATAD 5, [67].

32. The Respondent takes issue with the contention that the characteristic of incapacity to lift heavy weight includes an inability to generally move with agility and speed. The Respondent also challenges the reliance on the doctrine of judicial notice contended for. The Respondent submits this alleged characteristic does not arise out of the medical evidence, which in any event only relates to the Applicant personally, and the Tribunal should exercise caution before accepting that it is open and notorious or indisputable. In any event, the alleged characteristic is vague and unhelpful in resolving the issues in dispute.

33. We are cognisant of the need for caution in respect of the contention by the Applicant, particularly in light of the various decisions of the Tribunal referred to in Araya at [68] to [70]. We are of the view that this was a matter which, if relied upon, should have been the subject of evidence.

34. On the evidence which was led, the Tribunal is not in a position to make any meaningful findings as to whether the Applicant’s disability in fact included an inability to move with agility and speed or, if there exists such an inability, the extent or degree to which this aspect of the disability pertains in the case of the Applicant. Moreover, there does not appear to be probative evidence that this characteristic was a material factor in the Applicant’s performance of his work after he returned to work from sick leave. When considering the individual sub-claims upon which the Applicant founds his case, the evidence does not support a conclusion that the Applicant was unable to perform his duties timeously because of the absence of agility or speed caused by his disability.

35. The Respondent submitted that:

(a) The form of discrimination alleged in in Complaints 1, 2, 4 and 6 - 9 is direct discrimination in the sense described in s 49B(1)(a) of the Act. The Applicant is required to establish ‘differential treatment’ by comparing how he was treated with how a hypothetical comparator without his disability would be treated in the same circumstances (Purvis v New South Wales (Department of Education and Training) [2013] HCA 62; (2013) 217 CLR 92; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46]; Stefanac v Secretary, Dept of Family and Community Services [2018] NSWCATAD 106). He must also establish causation in the sense that his disability must be one of the “real”, “genuine” or “true” reasons for him being subjected to a detriment (Burns v Sunol [2014] NSWCATAD 62 at [34]). If the aggrieved person was treated less favourably, was it ‘because of’, ‘by reason of’, that person’s disability? (Purvis v New South Wales (Department of Education and Training [2013] HCA 62; (2013) 217 CLR 92 at [236] (Gummow, Hayne and Heydon JJ)).

(b) In the context of direct discrimination, something is done on the ground of a person’s disability for the purposes of s 49B(1)(a) includes if it is done on the ground of a characteristic that “appertains generally” to persons who have that disability or a characteristic that is “generally imputed” to persons who have that disability. These characteristics must be of a general or broad nature and not just ones which can be attributed to the complainant personally (Walker v State of New South Wales [2003] NSWADT 13 at [45]-[46]). In anti-discrimination proceedings, caution should be exercised in finding a fact by taking judicial notice (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [175]; State of New South Wales (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [67]-[74]; Walker v State of New South Wales [2003] NSWADT 13 at [45]-[46]; Araya v Owners Corporation SP65717 [2021] NSWCATAD 5 at [68]). Further, the characteristic extension applies only to the causation element of direct discrimination and not to the element of “less favourable treatment” (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [162]).

(c)   Complaints 3 and 5 are allegations of indirect discrimination, in the sense described in s 49B(1)(b) of the Act. These claims require the Applicant to establish that the Applicant was:

(1)   required to comply with a requirement or condition with which he does not or is not able to comply;

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

(3)   a substantially higher proportion of persons who do not have the disability comply or are able to comply with the requirement or condition.

(d)   The onus of proving that a requirement or condition was not reasonable lays on the complainant (Waters v Public Transport Corporation (1991) 173 CLR 349 at 411 (McHugh J)). The relevant requirement or condition must be identified with some precision (Australian Iron and Steel Pty Ltd v Banovic (1987) 168 CLR 165 at 185 (Dawson J); Waters v Public Transport Corporation at 406 (McHugh J)). The relevant question is whether the respondent has required the applicant “to comply with a requirement or condition” (Lipman v Commissioner of Police [2015] NSWCATAD 250 at [242]).

(e) In each case, the discrimination is said to have been unlawful because the Applicant was subject to “any other detriment”: s 49D(2)(d). In this context, there are no particular limits on the meaning given to the word “detriment” other than the requirement that there be a nexus between the identified detriment and the employment of the complainant (Watts v Australia Post (2014) 222 FCR 220 at [68]). However, there must be a harm or an act that leads to harm that can be objectively assessed (Georgiou v Spencer Holdings (No 2) [2011] FCA 22) in the sense that the loss, damage or injury suffered must be something which a reasonable person would consider to be a detriment (Wright v Commissioner of Police [2014] NSWCATAD 16 at [108]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]; Lipman v Commissioner of Police [2015] NSWCATAD 250 at [255]) and the detriment must be a matter of substance and not trivial (O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023; Mitchell v Clayton Utz [2009] NSWADT 266 at [21]).

36. In respect of the victimisation complaint the Respondent submitted that:

(a) Under s 50 of the Act, it is relevantly unlawful to subject another person to any detriment on the ground that the person victimised has brought proceedings or made allegations against the discriminator or any other such person under the Act. To prove victimisation, the Applicant must establish that:

(i) he did one of the things in s 50(1)(a)-(d), relevantly including bringing proceedings or making allegations against Coles or other employees of Coles under the Act;

(ii)   he suffered a detriment; and

(iii) the detriment occurred on one of the grounds in s 50(1)(a)-(d).

(b)   The test for causation in victimisation is relevantly the same as the test in respect of disability discrimination causation in the sense that the fact of the complaints must be one of the “real”, “genuine” or “true” reasons for the complainant being subjected to a detriment (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20; Lipman v Commissioner of Police [2015] NSWCATAD 250 at [308]; Burns v Sunol [2014] NSWCATAD 2).

Sub-claim 1

37. The Applicant supported this claim by reference to the following evidence:

(a)   Once the medical restrictions were made, he was repeatedly questioned about medical restrictions and requested to carry more crates by Ms Simon, another CSA.

(b)   Ms Simon would say words to the effect “why cannot you carry three crates? You should be able to carry more” and that “you are delaying everyone.”

(c)   Ms Simon would question him about the medical restrictions and request that he carry more crates every time he worked with her.

(d)   Sometimes when he worked with Ms Simon, she would tell him to ‘step back’ while she pulled the six crates down on to the vehicle floor single-handedly. This means that instead of moving the crates together, which is what is supposed to happen, Ms Simon would slide the entire stack of crates (usually 6 crates) onto the floor from the dolly without his assistance.

38. As is readily apparent this evidence lacks particularity. The Tribunal is not in a position to make necessary findings as to precisely when these events occurred, the context in which they occurred, the response, if any, by the Applicant to what is said to have been stated by Ms Simon, or precisely the reason she was making the enquiry as to why the Applicant could not carry three crates or more.

39. The evidence about the Applicant being told to step back is said to have occurred “sometimes”. The same difficulty as outlined above applies. It is also not clear whether these occasions were separate from the occasions when the enquiries referred to were made.

40. If the events occurred at the same time it is, for example, possible that Ms Simon saying to the Applicant to step back and then moving up to 6 crates together was assisting the Applicant. In closing submissions Counsel for the Applicant was not able to exclude as an interpretation of the evidence that Ms Simon’s conduct was to the benefit of the Applicant, although we recognise that the Applicant may have felt that he was not able to do his job when these exchanges took place.

41. Contrary to the Applicant’s submissions, we cannot on the evidence set out conclude that the Applicant was discriminated against by Ms Simon on the ground of his disability or subjected to a detriment in the course of his employment.

42. The Applicant further submitted that the Tribunal should have regard for the absence of evidence about disputation between the Applicant and Ms Simon prior to his injury, a period when those two employees appear to have enjoyed a friendly working relationship. We have had regard to that evidence to assess whether by reference it is sufficient to establish as a reason the disability of the Applicant in the exchanges complained of. It is a challenging task for the Applicant to persuade us of that outcome on the limited evidence referred to.

43. There is also evidence concerning another event, and the views of the Applicant and Ms Simon as to the underlying tension in their relationship which may well have influenced their working relationship.

44. Ms Heaton stated in her evidence, and notwithstanding an attempt by the Applicant to challenge this evidence, we accept that during a conversation with the Applicant some time in July 2018 the Applicant made a complaint that his manager, Ms Bayley, did not support him and that she was involved in his “original incident” at the Casula store and was partially responsible for his injury and “ongoing state of mind”. The Applicant went on to say words to the effect that Ms Simon was also involved in the incident and did not tell the truth. We accept this evidence in light of the near contemporaneous notes prepared by Ms Heaton and kept in her record of events.

45. According to Ms Heaton, in a follow up discussion with Ms Simon in July 2018 after her meeting with the Applicant, Ms Simon informed Ms Heaton of her belief that the tension between Ms Simon and the Applicant was due to a version of events in a previous incident to which she was a witness not matching that of the Applicant and therefore the Applicant had not forgotten. Her view about that incident was that the Applicant was in the wrong.

46. The Tribunal is not in a position to know the precise details of what did, or did not, occur in the previous unspecified original incident. However, Ms Simon did not appear to have had any concern about the Applicant’s disability or inability to perform his duties but was of a different state of mind.

47. We refer to this evidence here to indicate that we are not prepared to infer from the absence of previous issues between these employees prior to the Applicant’s injury that later tension and disagreement between them was on the grounds of the Applicant’s disability. The absence of such issues, therefore, is in the circumstances outlined above insufficient to allow us to infer that the Applicant’s disability was the real or genuine reason for Ms Simon’s actions (Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Mercieca v IHG Hotels Management Group (Australia) Pty Ltd and Salter Brothers (Coogee Beach) Pty Ltd [2022] NSWCATAD 63 at [17]; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

48. The Applicant then contends that on 22 November 2017 Ms Simon’s treatment of him came to a head when there was an incident involving the Applicant and Ms Simon, together with another employee named Petrina, another CSA.

49. There was no suggestion that Petrina had any issue with the Applicant’s work restrictions or with his disability.

50. The incident concerned a confrontation between Ms Simon and Petrina, on the one hand, and the Applicant, on the other, over whether the boom gate had been locked by the Applicant, as they contended he should have done but did not.

51. The incident on 22 November 2017 was as follows. Ms Simon together with another CSA, Petrina approached his delivery truck from the back. There is a dispute in the evidence as to who said the following words, namely, whether it was Ms Simon or Petrina, but we accept that one of them said to the Applicant that he had not locked the boom gate and that he shouldn’t be in the job. Locking the boom gate was, on the Applicant’s evidence, important because it could prevent someone from falling off the loading dock.

52. There was then an exchange between the Applicant and these two employees resulting in Petrina shutting the driver’s door quite fast and Ms Simon allegedly then swearing at the Applicant.

53. The Applicant said that as far as he remembered he did lock the boom gate. At the time he said that he did but the other employees claimed that he had not done so. He said that Petrina shut the vehicle door and he responded that she should not slam the door to which she responded words to the effect that she will. The Applicant was upset that she had slammed the door.

54. In our view this incident, properly viewed in the context in which it occurred, namely, a dispute over whether the Applicant had, or had not, locked the boom gate, which was a necessary step to take, could not reasonably be held to have occurred as a result of any disability on the part of the Applicant. In our view there was a disagreement about the Applicant following a step unrelated to his disability which was the operative cause of this exchange.

38. We do not accept the Applicant’s contention that this incident gives rise to a breach of s 49B(1)(a) or 49D(2)(d) by reason of the Applicant’s disability. There is, in our view, no reason to attribute to Petrina’s conduct any relationship with the Applicant’s disability. She and Ms Simon were together concerned about the boom gate. We do not in the circumstances accept that Ms Simon was responding as she did for a different reason and we do not accept that the Applicant’s disability was the real, genuine or true basis for the conduct complained of.

Sub-claim 2

56. The first element of this claim is that after the Applicant reported the incident between him, Ms Simon and Petrina to the Respondent’s store manager Mr May on 22 November 2017 Ms Simon did not talk to him or help him until 25 July 2018.

57. The Applicant in his evidence seeks to attribute that situation to what he was informed by a work colleague, whose identity he would not disclose on the assertion that that person may face retribution from the Respondent for giving evidence against management. There is no evidence before us that this was a legitimate basis for withholding his identity. It was said that Ms Simon approached the other employee and said that the Applicant had reported her to the store manager.

58. There is no evidence before the Tribunal as to when the conversation between Ms Simon and the work colleague occurred, or in what context. There is no evidence as to when precisely the Applicant was informed by the work colleague about the conversation.

59. The Applicant further pointed to Ms Simon going out to smoke during her unscheduled breaks leaving him to load his delivery truck. It is not clear when this occurred.

60. The Applicant sent an email to his manager on 29 November 2017 which requested that she should please get help to load his van since “all the vans have left”. From this we infer that the Applicant was not being assisted by any of the other CSAs operating all the vans.

61. On 7 August 2018 the Applicant made what is described as a confidential disclosure report on “STOPline” in respect of this concern. The report produced as a result recorded that the complainant, the Applicant, alleged that other team members refused to recognise that he has physical limitations as a result of a work-related injury and that they will mostly not help him. The complaint further recorded that recent issues “with the respondent” resulted in the Applicant complaining to management, after which the respondent did help him on a single occasion, on 25 July 2018, following which she then swore at him. From the evidence before us it is obvious that the person referred to as “the respondent” is Ms Simon. Once again, the complaint of not being assisted was not confined to Ms Simon but related to other team members who would mostly not help him.

62. Ms Simon is no longer employed by the Respondent. She was not called to give evidence.

63. In circumstances where these complaints relate to other employees as well, it is difficult to conclude with any confidence that Ms Simon was not assisting the Applicant because of an awareness of a complaint having been made about the incident involving her and Petrina. The evidence points the other way, and without knowing the precise circumstances in which the absence of help occurred, the Applicant’s evidence does not reach a level at which the Tribunal finds that the absence of assistance was on the ground or the reason that a complaint was made about Ms Simon. The absence of particularised evidence concerning the conversation between the unidentified work colleague and Ms Simon and with the Applicant reinforces the difficulty of making such a finding.

64. Further, on the evidence, Ms Simon assisted the Applicant with his loading on 25 July 2018. If she was refusing to assist the Applicant because he complained about her there was no readily identifiable reason for her apparent change of approach.

65. The Applicant linked the events of 25 July 2018 to his second complaint. The Applicant submits that on that day Ms Simon assisted the Applicant to load his truck. After loading Ms Simon approached the Applicant and said that he should have said thank you, to which the Applicant responded that it is part of the team work to help each other. He did not thank Ms Simon. After his response Ms Simon said to the Applicant “f… you”.

66. In an interview with Ms Heaton about this incident the Applicant defended his response by saying that he did not need to smile or thank Ms Simon, it was her job.

67. The exchange which we set out above does not, in our view, justify a conclusion that Ms Simon responded as she did on the ground of the Applicant’s disability, or because the Applicant had previously complained about her. We find that it is more probable that the true reason why Ms Simon responded as she did was because of the Applicant’s response, namely, that he simply said it is part of the team work, and expecting a “thank you” she appeared to have been offended by the response.

68. This was an unfortunate exchange between two employees who were clearly not getting on, but the conduct in our view was not unlawful.

69. Next, the Applicant sought to rely on an incident which was said to have occurred on 24 August 2018 and was claimed to involve Ms Simon attempting to ‘shoulder nudge’ the Applicant.

70. This incident was not regarded by the Applicant as worthy of reporting or investigation at the time as was apparent from the email of 23 October 2018 sent to Ms Kornak, one of the Respondent’s managers, now elevated in these proceedings as unlawful conduct on the part of Ms Simon and the Respondent.

71. In evidence the Applicant said this incident occurred when he had finished his shift and when he was passing Ms Simon in the online room and she “tried” to give him a shoulder nudge which he avoided by moving his shoulder away. We note that in his email of 23 October 2018 the Applicant simply stated that Ms Simon came very close to giving him a shoulder nudge.

72. There was an absence of any context or detail of what in fact occurred. The Applicant was said to be passing Ms Simon in the online room. No detail was provided as to whether he was keeping his distance, or what space was available for passing.

73. The evidence about this incident falls far short of a standard at which the Tribunal can find that the conduct was discriminatory or victimisation and we conclude to the contrary.

74. Next the Applicant relied on an incident in which Ms Simon was said to have accused him of blocking the loading dock on 11 October 2018.

75. The Applicant’s evidence was to the following effect:

On 11 October 2018 during the morning, Ms Simon accused me of blocking the loading dock and swore at me, when I did not block the loading dock.

Ms Simon then came to me and started telling me that I should be mindful and that more than one out is loading in a very angry way.

I asked what happened from Ms Simon, as I wasn’t sure what’s is all about.

Ms Simon then said “You know what happened, Bull shit, F***”.

…

On 31 October 2018 – after I have finished my morning shift around midday Ms Simon accused me of putting some crates near the roller door when I did not. Ms Simon asked me words to effect, “Did you put this load of crates here”. I responded to words to effect “No, I did not leave those crates there”. Then Ms Simon said to me words to effect, ‘They (crates) have to go (moved)’.

76. Ms Heaton prepared a written account of the 11 October incident available to her and recorded reports from the 2 employees concerned. It reads as follows:

To whom it may concern. This is my statement of events on 11/10/18. Carrol had an issue with Alster. She said to me that I need to tell people to stop putting their dollies, loads in the way to make room for other people loading. Next thing I hear is Alster saying to Carrol “what happened, what happened” and Carrol muttering (not understanding what she said. I went out and said let’s get loaded guys. Alster, you load your van. Carrol, you load yours. Afterwards Alster approaches me and said what happened – I say Carrol said she had dollies and load in her way when loading. Alster said how can I be in her way when I’m the 1st van. I said it happens in the afternoon as well. There is not much room for each van at loading time. Alster then says, - What happen I need to know. I repeated what I said. Alster then says your not listening to me. I said yes I am. I answered your question. He then says you are not listening to me again. I said Alster I am listening. He then says you are not letting me explain and then says don’t worry I’m going to the store manager and walks off. When Carrol was getting her freezer she was saying why is he asking me what’s wrong. Why does he keep saying it. I said let it go Carrol. You need to stop. This is not necessary.

77. The Respondent submits that the Applicant’s evidence was that he did not block the loading dock but Ms Simon came to him and started telling him in a very angry way that he should be mindful and that more than “one out is loading” (an apparent reference to more than one truck requiring to be loaded). He says that when he replied that he was not sure what she was talking about, she swore at him. The Applicant also said that there was a further incident on 31 October 2018 when Ms Simon accused him of putting some crates near the roller door when he had not. Mr Mankodi has no recollection of the issue ever being raised with him and denied it ever was. The Applicant only said that Ms Simon asked him whether he put the load of crates by the door and said it needed to get moved. On its face, this was nothing more, the Respondent argued, than an innocent question and the Applicant’s characterisation of it as an “accusation” was a self-serving flourish.

78. The Respondent further submits that even on the Applicant’s version of these events, neither of the incidents in October 2018 appears to have any direct relationship with the Applicant’s disability or the fact that he had made complaints about Ms Simon in the past and there was no evidence establishing the requisite causal connection. It is far from clear that Ms Simon would have treated any hypothetical other worker in a more favourable way. The real, genuine or true reasons why she acted in the way she did seemed to be because she perceived that the Applicant had blocked the loading dock or placed crates near the roller door. It is also entirely unclear what the detriment is said to be or how it could be anything of substance and not trivial.

79. We accept the Respondent’s position and find that these events did not constitute a breach of the provisions of the Act relied upon. In our view the evidence demonstrated disagreement about a practical issue, namely, ready access to loading of vehicles unrelated to the Applicant’s disability or complaint against Ms Simon.

80. We note in particular that Ms Simon’s account, as recorded by Ms Heaton, was directed at “people” and not directly only at the Applicant. Ms Heaton’s response to the Applicant that it happened in the afternoon as well, and that there was not much room for each van when loading, suggested to us that the issue was of a more general nature and not confined to the Applicant or his disability. His disability was not the real or genuine reason for the conduct.

81. Lastly, in respect of this sub-claim the Applicant relies on an incident when on 14 December 2018 the Applicant brought his vehicle into the loading bay ahead of another CSA, named Tim, and contrary to the schedule set for loading in turn.

82. When Ms Simon and another CSA named Mark became aware of what the Applicant had done they confronted the Applicant. The Applicant’s evidence was to the following effect:

14 December 2018 around 6:00am Ms Simon accused me in the online room for bringing my delivery truck too early, when there was no impact to Ms Simon’s work.

Tim (unsure of his surname) was in the online room and Mark (unsure of his surname) may have been in the loading dock when this incident took place.

When I walked into online room Friday 14 December 2018 at 6:00am, I grabbed the truck keys and did a vehicle check.

Then I noticed one loading dock was available, which I thought was my turn to park and load (Mark & Ms Simon had their vehicles already on the loading dock).

We have three or four loading docks for the online department.

Then when I entered the online room after bringing my delivery truck into the loading dock, I noticed Tim was consolidating his run. Previously, Tim may have been in the cool room and that may have been the reason I missed seen him. I then approached Tim and apologised to him and I said to Tim, I did not realise that you were before me and as a courtesy, I asked Tim if I can move my vehicle out for him.

Tim politely replied, No, do not worry because Mark will be leaving the store in 5 minutes and Tim was happy with it and he was not upset at all. (The correct procedure is to do the vehicle check, bring the vehicle to the loading dock, and then consolidate the cool items)

Shortly afterwards, Ms Simon approach me and argued as to why I had to park my truck before Tim, I should not have done that, I am delaying Tim.

I then said to Ms Simon, I did not realise Tim was next because there was a loading dock available and that I have spoken with Tim about it and he was happy with the arrangements we made.

Then Mark who is a good mate of Ms Simon heard this argument and straight away Mark approached me with the same questions as Ms Simon and asked me why I parked before Tim and that I should not have done this. I provided the same answer to Mark which I provided to Ms Simon.

On this day I did not take Ms Simon’s or Mark’s loading docks and I did not cause them any delays. After this incident I did not feel very well, as this caused me to be very anxious. I sent an email to the store manager on 27 December 2018 at 5:11pm in relation to this incident.

83. The incident was reported to the Respondent. Mark gave a signed statement to Ms Heaton to the following effect:

On the day of the incident there was Carroll, Tim, Alster and myself in the room. Neither Leasa nor Kinc had started yet to run the room. I was on the dock loading a van when Carroll came to help, and she told me she just had a run-in with Alster because Alster had backed onto the dock before Tim; Tim was listed to be before Alster.

I went to check the list and in-fact it had Tim as 3^rd out, and Alster as 4^th out.

I approached Alster and told him it isn’t right that he should sneak on before another driver, and Alster said that Tim hadn’t done his vehicle check yet and was consolidating first, so Alster took the opportunity to move on to an empty space.

I said that we all have to stick to a schedule and he shouldn’t have backed on. Alster then said that he spoke with Tim and that Tim had okayed Alster to move on. I asked Tim about this and he confirmed Alster’s story. I then approached Alster to apologise to him. We shook hands and I asked him if we were “good” and he said we were “good”.

84. Ms Simon provided a signed statement concerning the incident to the following effect:

To whom it may concern

Mark Myself and tim where in the room, Mark and myself got our keys and got our trucks on the dock. Tim was consolidating his run then alasta came in the room checked his run out and was talking to tim. Then I noticed alasta was putting his truck on the dock. I just said to alasta that Tim needs to load before you and he said I talked to tim about it I then said something to Mark about it and Mark said it’s not right as tim does need to get on and Mark said something about it to alasta and then Mark was talking to tim and then went back to alasta.

It no time was I rude to alasta. Just pointing out that tim was before him. So know one would be late.

85. The Applicant’s account was also given in an email to Ms Heaton on 17 December 2018. The Applicant says that he pulled into the loading dock thinking it was his turn to park and only later noticed that Tim was consolidating his run and was supposed to be before the Applicant. The Applicant said he spoke with Tim about it at that stage. He described speaking with Ms Simon and Mark but omitted important context and other evidence. The Applicant gave no account of Mark’s apology which he accepted under cross-examination did happen.

86. In our view, and we find, this incident arose from the Applicant’s initial steps to bring his vehicle to the loading bay out of turn.

87. That was the reason for the exchange which then took place between the team members. There was a concern that the step taken by the Applicant could impact on Tim, and that concern was also raised so that no one would be late.

88. Ms Heaton having investigated this incident stated, and we accept, that she was satisfied that it was just a misunderstanding on everyone’s part and that there was no need to caution anybody or take further action.

89. We are satisfied, and we find, that there was no unlawful discriminatory conduct or victimisation of the Applicant concerning this incident. This was clearly an incident where there was a misunderstanding between employees unrelated to the Applicant’s disability and no material detriment to anyone.

90. We are also not satisfied that taken together the six incidents relied upon by the Applicant as part of his second complaint lead to a conclusion of unlawful discrimination or victimisation of the Applicant. Contrary to the Applicant’s submissions we do not identify a pattern of behaviour on the part of Ms Simon such as to conclude that the Applicant’s disability was the reason for her conduct complained of. There was no differential treatment or victimisation of the Applicant on the basis of his disability or because of complaints made against Ms Simon by him. The Applicant’s evidence falls far short of enabling the Tribunal to reach a contrary conclusion.

Sub-claim 3

91. The Applicant bases this claim on alleged threats by his managers of performance management or movement to a different role in discussions on 15 June 2018 and 23 March 2019.

92. By way of introduction to this complaint the Applicant contends that on Ms Heaton’s evidence, shortly after starting as store manager of the Willowdale store in May 2018:

1. Ms Bellamy told her that there was “one team member in particular” (being, the Applicant) constantly returning late to the store at the end of his runs;

2. that she observed the Applicant regularly returning late to the store, between 30 minutes to 1.5 hours;

3. she was informed by Ms Kornak of the Applicant’s back injury, and further, that the Applicant told her he had a back injury;

4. he would tell Ms Bayley “on many occasions” that he was unable to perform certain tasks due to his medical restrictions.

93. There is no dispute that on 15 June 2018, Ms Heaton (along with Ms Bellamy) called the Applicant to a meeting at the completion of his shift to discuss the Applicant returning late to the store after completing his runs.

94. This complaint must be viewed in the context that the Applicant did not then, and does not now, deny that on a number of occasions he was late to return to the store from the deliveries required to be made by him to customers and he did not meet the delivery schedules programmed into a device, namely the MDT, within the usual tolerances from the expected run times. There is also no real dispute between the parties that the Applicant was late more often than other CSAs and, sometimes, substantially late.

95. Also, the Applicant accepted that by June 2018 he was late on his deliveries on almost every shift.

96. The claim is of indirect discrimination. In essence, the Applicant argues that he was required to comply with the same delivery schedules as every other CSA and that this was unlawful discrimination because he was not able to comply with the timeframes for making deliveries whereas a substantial proportion of other delivery drivers were able to comply, and that the requirement was unreasonable having regard to his disability.

232. At the 24 June 2020 meeting, Mr Dalgleish initially denied fabricating the emails but towards the end of the meeting, he admitted to fabricating one of the emails (the one purporting to have been sent to the Applicant on 8 February 2019). He said he did so because he was so busy and he had forgotten to reach out to the Applicant and close off the complaint and he did not want to let the business down.

233. At the end of the meeting on 24 June 2020, Mr Dalgleish provided written notice of his resignation. Mr Smith and Ms Tacey had decided to terminate his employment but having regard to certain medical issues and his otherwise exemplary performance record, they decided to accept his resignation. His employment terminated immediately.

234. The Respondent then took steps to report the matter to NSW Police but were told that a complaint had already been made by the Applicant and the Police were treating it as a civil matter and not pursuing a criminal investigation.

235. On the evidence the Tribunal would not conclude that a true, genuine or real reason for Mr Dalgleish’s conduct towards the Applicant was that he has a disability. Mr Dalgleish’s conduct appears to have been motivated out of a concern that he had failed to respond to the Applicant as he had promised to do. His conduct is better seen as a misguided attempt to cover for his own personal failings. In the discussion on 24 June 2020 with managers Mr Dalgleish spoke of feeling under pressure to do the right thing and said that he panicked when he realised he had not closed out an issue (meaning responded to the Applicant’s complaint). Although he also sought to shift some of the blame to the Respondent by asserting that the Applicant was seen within the Respondent as a team member who continues to escalate concerns without substance or was someone to be avoided, Ms Tacey denies this and she was not seriously challenged on this issue. We accept the contention by the Respondent that no weight should be given to Mr Dalgleish’s comments in this regard and they only illustrate that the reasons for his actions were that he could not take responsibility for having failed in some aspect of his job. We find that the true reasons for Mr Dalgleish’s conduct had nothing to do with the Applicant’s disability allegation in any other legal proceedings that he had failed to investigate a complaint escalated to him by an employee, he likely would have acted in the same way.

236. In respect of the victimisation claim, the necessary detriment alleged by the Applicant is not established on the evidence. The only steps the Applicant was required to take to have the Respondent investigate the conduct was to send the Respondent a letter, which itself is not a detriment of a material kind in the context of the proceedings before the Anti-Discrimination Board. Following receipt of the letter, the Respondent took the matter extremely seriously and acted entirely appropriately in promptly and thoroughly investigating the complaint, taking appropriate action in relation to Mr Dalgleish’s employment and by taking steps to report the matter to the police and no reliance was placed on any of the emails in question.

237. The Applicant argues that the detriment to the Applicant included the emotional difficulties involved in writing a letter pointing out that being told, by means of the “email” provided to him during the Board investigation that his complaint, which related to Ms Simon, had been resolved when, as far as he knew, it had not.

238. In our view this claimed detriment in the context of an investigation of his complaint by the Board where claims and responses often conflict is not such that it amounts to a breach of the Act.

The s 53 Issue

242. Having concluded against the Applicant that there has been no unlawful discrimination or victimisation by employees of the Respondent no liability should be attached to the Respondent by operation of s 53 of the Act in respect of the incidents and conduct raised by the Applicant.

Conclusion

243. We recognise that the disability arising from the Applicant’s back injury and adherence by him to the restrictions on some of his physical activities was of significant concern to him. However, we are not satisfied that any of the grounds relating to the claims and sub-claims have been made out.

244. Accordingly, for all the reasons set out above the Application is dismissed.

Orders

1. The Application is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 May 2022