Galiatsatos v Earlwood-Bardwell Park RSL Club

[2009] NSWADT 52

CITATION:

Galiatsatos v Earlwood-Bardwell Park RSL Club and anor [2009] NSWADT 52

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
Debbie Galiatsatos

1st RESPONDENT
Earlwood-Bardwell Park RSL Club

2nd RESPONDENT
Patrick Frost

FILE NUMBER:

081081

HEARING DATES:

27 and 28 January 2009

SUBMISSIONS CLOSED:

28 January 2009

 
DATE OF DECISION: 

6 March 2009

BEFORE:

Rice S - Judicial Member; Weule B - Non-Judicial Member; Hayes E - Non-Judicial Member

CATCHWORDS:

Disability discrimination in employment - disability discrimination in provision of services - aid and abet

LEGISLATION CITED:

Anti-Discrimination Act 1977 (NSW)

REPRESENTATION:

APPLICANT
In person

1st RESPONDENT
In person

2nd RESPONDENT
P Sharah

ORDERS:

1. The complaints are dismissed.

Decision

1 For the reasons we give below, the complaints are dismissed. That means that Ms Galiatsatos is unsuccessful in her application to the Tribunal.

Background

2 Ms Debbie Galiatsatos was employed as a casual dishwasher by Mr Patrick Frost. She worked in the kitchen at Earlwood-Bardwell Park RSL Club, where Mr Frost has the catering contract to operate the Ironbark Restaurant and Cafe. On 11 July 2007 Ms Galiatsatos injured her back at work. She went home from work and a fellow employee informed Mr Frost, who was not there at the time.

3 On the morning of the next day, 12 July, Mr Frost telephoned Ms Galiatsatos at home. They now dispute what was said in the phone call: Ms Galiatsatos says that Mr Frost told her to get, as soon as possible, a medical certificate that cleared her to return to work as he needed her there; Mr Frost says that he asked Ms Galiatsatos how she was, and that she said she would be returning to work that day.

4 Later that day Ms Galiatsatos saw a medical practitioner who certified her unfit for work until 16 July. Ms Galiatsatos took the medical certificate to work to show Mr Frost; they had a discussion and they now dispute what was said. Ms Galiatsatos says that Mr Frost told her that her being unfit ‘does not work for him’, and that she should return to the doctor to get a certificate that stated she was fit for work. Mr Frost agrees that Ms Galiatsatos showed him the certificate but says that she said she wanted to return to work immediately, and that he told her she could not return to work until certified fit to do so. In the afternoon of the same day Mr Frost telephoned Ms Galiatsatos at home; he says the call was ‘to see how she was’; she says it was to harass her to return to work.

5 On 13 July Ms Galiatsatos saw a different medical practitioner, Dr Kovach, who certified her fit for light duties. During that consultation Dr Kovach, at Ms Galiatsatos’s insistence, telephoned Mr Frost and told him that Ms Galiatsatos would be certified fit for light duties. Ms Galiatsatos then took the certificate to Mr Frost. They had a conversation in the Club’s kitchen, but they now dispute what was said. Ms Galiatsatos says that Mr Frost required her to ‘sign a piece of paper clearing him of any liability of injury if I were to return to work in case I “hurt my back picking up a tea cup”’. Mr Frost says that he told Ms Galiatsatos that he had no light duties available, upon which Ms Galiatsatos started shouting, accusing him of firing her which he repeatedly denied.

6 The Club’s duty manager at the time, Mr Shane Maxwell, had been standing by because he was concerned that the argument could be heard by patrons in the dining room. Ms Galiatsatos says that on her arrival at the Club she had attempted to greet Mr Maxwell in the reception area, but that ‘he seemed hesitant to do so as he was more interested in the paper I held in my hand’, meaning the medical certificate. Mr Maxwell denies that he met Ms Galiatsatos on her arrival at the Club. There is no other direct or indirect evidence available on this issue, and we are not satisfied that Mr Maxwell did meet Ms Galiatsatos on her arrival at the Club.

7 Mr Maxwell intervened in the discussion between Ms Galiatsatos and Mr Frost to tell Ms Galiatsatos that she had to leave the premises. Mr Maxwell accompanied Ms Galiatsatos towards the reception and she left without argument or incident. Ms Galiatsatos went to see Dr Kovach and then returned home. Mr Frost telephoned her that evening, but they now disagree about what was said. Mr Frost says that he invited Ms Galiatsatos to come and pick up her pay; Ms Galiatsatos agrees he said that, but says that he also told her to return her aprons, which she took as an indication that she was no longer employed.

8 That evening Ms Galiatsatos went to the Club as requested by Mr Frost, but was refused entry by a Club staff member who told her that she was not a member. When she said she had come in to see her employer the same staff member told her ‘that I no longer work at [the Club] and that I was banned for life’. Mr Frost met Ms Galiatsatos in the Club’s reception and gave her her pay. Ms Galiatsatos left the Club and has not returned since.

9 From that day on, Ms Galiatsatos understood that she was no longer employed by Mr Frost. She lodged a workers’ compensation claim. In addition to the background we have set out above, Ms Galiatsatos provided material that relates the detail of her dealings with Mr Frost, the Club and the insurer concerning her workers’ compensation claim and claim for wages, but we have not recounted that material as it is not relevant to her claim of discrimination.

10 While Ms Galiatsatos thought that she was no longer employed by Mr Frost, Mr Frost says that he thought that Ms Galiatsatos would make herself available for work again when she was certified fit. He says that he did not employ anyone to replace her until eight weeks after she returned her aprons and collected her pay. Despite having telephoned Ms Galiatsatos at home three times in the two days after her injury, Mr Frost did not call her again. He says that he understood that dealings with her should be through the workers compensation insurer.

11 Ms Galiatsatos had no contact with the Club or Mr Frost, other than through the workers compensation insurer, until 23 October 2007 when she sent an email to the Club’s CEO, Mr John Fitzgibbon, asking him to tell her why she was banned from the club. In reply he wrote ‘After hearing your atrocious behaviour in the club foyer I personally let staff know you are not welcome back. That is my call and I stick to it’.

12 On 5 February 2008 Ms Galiatsatos sent a further email to Mr Fitzgibbon. She denied that her conduct had been ‘atrocious’, pointed out that the ban would prevent her from returning to work were duties available, noted that she had had no written advice of the ban and had not been given a ‘proper’ reason for it, and asked for the ban to be lifted. On 16 February Ms Galiatsatos sent a further email asking for a response to her request; she has not yet received a reply.

Differently recalled discussions

13 Ms Galiatsatos and Mr Frost agree on the occasions when, on 12 and 13 July, they had conversations on the telephone and in person, but disagree on what was said. Ms Galiatsatos says that Mr Frost was aggressive and demanding, saying that her unavailability did not suit him. Similarly Mr Frost says that Ms Galiatsatos, at least when she attended the workplace, was angry and loud. We accept that the manner of each of them was as the other describes, and we can see that their mutual exasperation was understandable.

14 The difference in the accounts of what was said is one of perception, rather than of conflicting accounts of what was said. Mr Frost wanted to ensure that Ms Galiatsatos did not return to work while injured, and Ms Galiatsatos wanted to ensure that she kept her job but that account was taken of her limited ability due to injury. The calls that Ms Galiatsatos saw as Mr Frost’s harassing her to get medically certified as fit to return to work, Mr Frost intended to be inquiries to ensure that Ms Galiatsatos did not return to work until medically certified as fit. When Mr Frost said that Ms Galiatsatos was to get a certificate clearing her as fit before she returned to work, she understood him to be saying that she had to return work with a certificate that certified her fit to do so. When Mr Frost, aware that Ms Galiatsatos would not be available to work immediately, invited her to collect her pay and asked her to bring her aprons in, she understood him to be saying that she would not work there again.

15 These different perceptions of the conversations do not alter Ms Galiatsatos’s fundamental claim, that Mr Frost discriminated against her by not offering her work because of her disability.

Discrimination complaints

16 On 18 March 2008, soon after Mr Fitzgibbon failed to her answer her emails, Ms Galiatsatos complained to the Anti-Discrimination Board that the Club had discriminated against her on the ground of disability. On 1 April she complained that Mr Frost had similarly discriminated against her, and that the Club and Mr Frost had each aided and abetted the other’s discriminatory conduct.

17 In terms of the Anti-Discrimination Act, Ms Galiatsatos’s complaint is that Mr Frost discriminated against her in determining who should be offered employment (s.49D(1)(b)), the Club discriminated against her by refusing to provide her with services, ie, entry to the Club (s.49M(1)(a)), and each of Mr Frost and the Club caused, instructed, induced, aided or permitted the other to discriminate (s.52).

18 Ms Galiatsatos’s complaint is that she was discriminated against directly, ie, that Mr Frost and the Club treated her less favourably than they would have treated a person without her disability in the same or similar circumstances (s.49B(1)(a)).

19 There was no issue raised about whether Ms Galiatsatos had a disability within the meaning of ss.4 and 49A. In general terms the disability related to the injury she suffered to her back, and to her consequent limited ability to lift and turn.

Discrimination by Mr Frost?

20 Ms Galiatsatos was employed on a casual basis, and had been working for Mr Frost for less than two weeks. Had Ms Galiatsatos been employed on a permanent basis her employment would have continued when she was injured and unable to work, at least for an initial period. But as a casual employee Ms Galiatsatos had no right to expect work from Mr Frost; Mr Frost was free to offer her work, or not, from time to time as he pleased, as long as he acted lawfully otherwise, for example under the Anti-Discrimination Act. Ms Galiatsatos’s complaint is that Mr Frost acted unlawfully because her disability was a reason why he did not offer her any work after 11 July.

21 Ms Galiatsatos is not complaining that Mr Frost did not offer her her usual duties – she acknowledges that she was certified unfit to do them. Had Ms Galiatsatos asked Mr Frost for her usual employment, and had he declined to give it to her because of her disability, Mr Frost would not have discriminated unlawfully, because Ms Galiatsatos was unable to carry out the inherent requirements of her employment (s.49D(4)(a)).

22 Ms Galiatsatos complains that Mr Frost did not offer her ‘light duties’, ie duties that involved – according to the medical certificate – not lifting more than 10kg, and no repetitive lifting. She says that the reason he did not do so was her disability – that he was concerned that she would incur further liability if she incurred a further injury, such as hurting her back ‘picking up a tea cup’.

23 Mr Frost denies this, and says that he did not offer Ms Galiatsatos any work for two reasons. At first, in July 2007, it was because she was medically certified as fit only to carry out light duties and he did not have any such duties available. Later, it was because she did not contact him.

24 Mr Frost was obliged to adjust the workplace or duties to accommodate Ms Galiatsatos’s disability unless to do so would have imposed an unjustifiable hardship on him (s.49D(4)(b)). Mr Frost says that he was a small employer with only a few staff to carry out the heavy work of kitchen. The work involved lifting and repeated bending and turning. Ms Galiatsatos, on the other hand, says that there were other duties in the kitchen or serving in the restaurant that she could have done. Mr Frost answers this by saying that he already had another worker on light duties and had no capacity to offer alternative duties to Ms Galiatsatos. But there is a different answer in the Anti-Discrimination Act, which does not require an employer to provide other duties to a worker with a disability. Rather, it requires an employer to consider whether the particular job the person was doing could be done differently to accommodate the person’s disability (and, if it could be, the Act requires the employer to implement the necessary accommodation unless to do so would cause unjustifiable hardship).

25 We are satisfied on the evidence from Mr Frost and Ms Galiatsatos that Ms Galiatsatos’s duties involved lifting and repeated bending and turning, that Mr Frost had considered whether Ms Galiatsatos’s job could be done differently to accommodate her disability, and that that job could not have been done differently to accommodate her disability. Mr Frost was not obliged by the Anti-Discrimination Act to offer Ms Galiatsatos the duties of another position.

26 In those circumstances Mr Frost did not discriminate unlawfully against Ms Galiatsatos when he did not offer her work because she was fit only for light duties.

27 After that, Ms Galiatsatos did not call Mr Frost, and Mr Frost did not call her. Mr Frost was under no obligation to offer work to Ms Galiatsatos, as she had been employed on a casual basis. Mr Frost was aware from the workers’ compensation proceedings that Ms Galiatsatos continued to be fit only for light duties and so continued to be unable to perform the inherent requirement of the job. There was no change in the manner of operation of Mr Frost’s business, so it continued to be the case that her job could not have been done differently to accommodate her disability. In those circumstances Mr Frost did not discriminate unlawfully against Ms Galiatsatos when he did not contact her to offer her work.

28 We note that Mr Frost had told Ms Galiatsatos of his concern over any liability for injury if she were to return to work and, after having called her three times in two days, he ceased calling her. This suggests to us that his calls to her, if they were, as he says, to ensure she did not return to work until medically certified as fit, were motivated at least as much by his concern for any future liability he might face as by any concern he had for Ms Galiatsatos’s well-being. Ms Galiatsatos was understandably bewildered by Mr Frost’s sudden lack of contact, and had reasonable cause to wonder about the reason for it, including the possibility that the reason was her disability.

Discrimination by the Club?

29 Ms Galiatsatos has never been a member of the Club. She is, however, a local resident and had visited the Club as a guest for many years. Ms Galiatsatos’s complaint is that her disability was a reason why the Club imposed and maintained a ban on her entering the Club. Mr Fitzgibbon says that the ban was imposed because of Ms Galiatsatos’s behaviour, and was maintained because of her failure to show remorse for her conduct.

30 The Club did not formally communicate its ban to Ms Galiatsatos. Only hours after Mr Maxwell had told her to leave the Club, Ms Galiatsatos was told by a staff member that she had been ‘banned for life’. Mr Maxwell had said nothing to Ms Galiatsatos about her being banned, although he says now that when a person is asked to leave, the Club treats that request as, effectively, a ban. He says, and Mr Fitzgibbon agrees, that the club does not impose ‘life bans’, but that a person is banned until re-admitted. That may be so, but all Ms Galiatsatos knew was what she was told: that she was ‘banned for life’. She was given no reason for this. She received nothing in writing. She was not told that ‘banned for life’ did not actually mean banned for life. She was not told whether she had any right to a review of the decision, nor how she might have the ban lifted.

31 Ms Galiatsatos knew only that she had just had an argument with her employer, that she had left peaceably when asked, and that she had had no argument or altercation with any staff member or patron of the Club. Ms Galiatsatos was understandably bewildered by the ‘life ban’, and had reasonable cause to wonder about the reason for it, including the possibility that the reason was her disability.

32 In his email of 23 October Mr Fitzgibbon, replying to Ms Galiatsatos, wrote ‘After hearing your atrocious behaviour I personally let staff know you are not welcome back. That is my call and I stick to it’. This was inaccurate in the following respects.

33 Mr Fitzgibbon purported to have heard Ms Galiatsatos’s ‘atrocious behaviour’. He now agrees that that was incorrect, and that the email should have said he had heard of her behaviour. Mr Fitzgibbon heard of the incident with Ms Galiatsatos from Mr Maxwell. The incident occurred on a Friday and, while it is possible that Mr Fitzgibbon heard about it on the Saturday it seems more likely, based on his evidence and that of Mr Maxwell, that he did not hear about it until at least the Monday. He says that was told about it briefly by Mr Maxwell in a phone conversation, and that he read Mr Maxwell’s diary entry which records that he heard Ms Galiatsatos shouting and ranting ‘very loudly’.

34 The behaviour Mr Fitzgibbon had heard of was described to us by Mr Maxwell in his contemporaneous diary entry and in evidence. It could not reasonably be described as ‘atrocious’. Mr Fitzgibbon now says that, based on what Mr Maxwell told him, he understood there to have been an ‘aggressive situation’. Having regard to the range of behaviours and incidents that the Club deals with from time to time, an open-ended ban that has been maintained for over 18 months, and that limits Ms Galiatsatos’s access to employment, seems a disproportionate response to the incident, even if it could fairly be described as responding to an ‘aggressive situation’.

35 Although Mr Fitzgibbon says that he ‘personally let staff know’ Ms Galiatsatos was banned, and that that was ‘his call’, Mr Fitzgibbon did not impose the ban. Ms Galiatsatos had been told on the Friday that she was banned and only Mr Maxwell could have made that decision. At most, Mr Fitzgibbon could only have ratified the ban at a later date. In his email, however, he took responsibility for her being banned. He later, more plausibly, took responsibility for maintaining the ban when Ms Galiatsatos asked for a reason for it. Mr Fitzgibbon says that the matter of Ms Galiatsatos’s being banned was not raised at a meeting of the Club’s Board.

36 It was not until he gave evidence that Mr Fitzgibbon offered a reason for maintaining the ban. It is the same reason he gives for having ignored Ms Galiatsatos’s emails of 5 and 16 February. He says that he did not reply – and he maintained the ban – because Ms Galiatsatos’s approach was not respectful and showed no remorse. As well, he took exception to her having written in her email of 16 February ‘I want you to know that I always keep records’. Mr Fitzgibbon agrees that the criteria he relied on are not documented, and he has no answer to the suggestion that a banned patron might be unaware of how to go about both getting the ban lifted, and expressing themselves in a way Mr Fitzgibbon would find appropriate.

37 Although it would be at least courteous, if not fair, for the Club to give written notice to a banned patron, and to advise them on how the decision might be reviewed, the Club had no obligation to extend procedural fairness, or even courtesy, to Ms Galiatsatos. In saying this we ascribe the conduct of Mr Maxwell and Mr Fitzgibbon to the Club. Banning her in the circumstances and manner that it did, maintaining the ban as it did, and communicating with her as it did, the Club seems to have caused Ms Galiatsatos, understandably, to be suspicious about why she was banned. Her suspicion is that the Club banned her because of her disability, perhaps with the aid of Mr Frost, and that the Club had itself aided Mr Frost in his not employing her.

38 There is, however, no evidence that Ms Galiatsatos’s disability was a reason for Club’s having banned her. Mr Maxwell, who initially imposed the ban, states in his diary entry that he was aware, from having heard her argument with Mr Frost, that Ms Galiatsatos was injured and unable to do her job. We said above that we are not satisfied that Mr Maxwell met Ms Galiatsatos on her arrival at the Club as Ms Galiatsatos claims. Even if Mr Maxwell did so, that is no basis for us to infer that he knew of her disability and acted on it.

39 Mr Maxwell asked Ms Galiatsatos to leave – with the effect thereby of banning her for an indeterminate period – because of his assessment that the argument was disturbing Club patrons. Ms Galiatsatos’s injury and resulting disability was not a reason at all for his decision. Mr Maxwell then reported to Mr Fitzgibbon and that was the end of his role.

40 After Mr Maxwell saw Ms Galiatsatos out of the Club, responsibility for maintaining the ban seems to have passed to Mr Fitzgibbon; certainly he claims responsibility for it. There is no evidence that Ms Galiatsatos’s disability was a reason Mr Fitzgibbon’s having maintained the ban. There is no logical causal connection between Ms Galiatsatos’s pursuing a workers’ compensation claim and the Club’s maintaining a ban on her for what it said was bad behaviour, and there is no evidence that that any of her workers’ compensation claim, or her injury and disability, was a reason for Mr Fitzgibbon’s ignoring the request to lift the ban.

41 Mr Fitzgibbon’s reason for ignoring the request to lift the ban is not persuasive. If it is the true reason it is arbitrary and unfair. But that does not enable us to say that Ms Galiatsatos’s disability was in fact a reason.

Aiding and abetting?

42 Mr Frost has a contract with the Club to provide it with catering services. His employees have no necessary connection with the Club, even to the extent that – as Mr Frost and Mr Fitzgibbon agree – the Club is able to refuse entry to the Club, for its own reasons, to people who are employed by Mr Frost and need to enter the Club to work for him. Mr Frost accepts that this is the Club’s prerogative, and that he will lose the services of any employee who is not permitted to enter the Club.

43 Ms Galiatsatos’s complaint is that in banning her from entry, the Club aided and abetted Mr Frost’s discriminatory conduct, and that in not offering her employment, Mr Frost aided and abetted the Club’s discriminatory conduct. Effectively, Ms Galiatsatos alleges that Mr Frost and the Club collaborated to exclude Ms Galiatsatos from work and the Club because of her disability.

44 The simple answer to this complaint is a legal one. Section 52 of the Act only operates when there has been a finding of unlawful discrimination: because there was no unlawful discrimination, there can be no aiding and abetting under the Act. As a factual matter, Ms Galiatsatos alleges that the Club and Mr Frost collaborated in treating her as they did: that Mr Frost had a hand in her being banned and that the Club had a hand in her not being offered work. For the reasons we have given above, it is understandable that Ms Galiatsatos would wonder why she was treated as she was, and would surmise reasons for the treatment. The possibility that Mr Frost and the Club conspired against her was reasonable conjecture on her part. It is not, however, something that we can decide once we have made a decision that there was no unlawful discrimination under the Anti-Discrimination Act.

Findings and orders

45 For the reasons we have given above we find that Ms Galiatsatos’s complaints are not substantiated. We therefore order:

1.The complaints are dismissed.