Hamed v Director General, NSW Department of Education and Training
[2012] NSWADT 50
•22 March 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hamed v Director General, NSW Department of Education and Training [2012] NSWADT 50 Hearing dates: 24 February 2012 Decision date: 22 March 2012 Before: Judicial Member C Huntsman Decision: The Tribunal decided to dismiss the application in part - the tribunal decided to dismiss the victimisation application. The tribunal refused to dismiss the application of disability discrimination in employment.
Catchwords: Application for dismissal; whether case should be dismissed on basis is frivolous, vexatious, misconceived or lacking in substance; whether the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the regulations; whether to dismiss case in whole or in part. Disability discrimination in employment and victimisation. Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271; Dr Hamed v Director General, Department of Education And Training [2007] NSW ADT 43;Dutt v Central Coast Area Health Service [2002] NSWADT 133;Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44; Smith v Director General, Department of Education And Training [2010] NSW ADT 282 Category: Interlocutory applications Parties: Mohamed Hamed (Applicant)
NSW Department of Education and Training (Respondent)Representation: Counsel
Mr Griffin (Respondent)
Applicant in Person
Moray & Agnew, Lawyers (Respondent)
File Number(s): 111050
Judgment
Background
This was an application by the Respondent to dismiss the applicant's application pursuant to the Anti-Discrimination Act 1977. The applicant, Dr Hamed, is a teacher in the employ of the respondent, the Department of Education and Training. Dr Hamed sustained a back injury in 2003 as a result of fall at Northlakes High School. The applicant had been on restricted duties as part of a return to work program. The applicant, at the time of the complaint, was located at Whitebridge High School.
The applicant's application is a complaint of disability discrimination and victimisation in employment referred to the Tribunal by the Anti- Discrimination Board (the Board). The applicant lodged a complaint with the Board on 2 September 2010 alleging discrimination by the respondent, on the grounds of disability, in employment. The applicant states his disability is related to his back injury. He states in his complaint to the Board, that the Principal of Whitebridge High School discriminated against him, on the basis of disability, by failing to give him a full teaching load, although he has been certified as fit for a full classroom load with the proviso that he undertake no playground or sport duties. The applicant further alleged in his material to the Board that when the Principal of Whitebridge High School made a referral for a health assessment, on 19 August 2010, the Principal indicated that the applicant was not teaching, although he was involved in teaching; and the Principal indicated that the applicant had issues with classroom management, and that this may relate to his disability; and that the principal determined that the applicant not be alone in the classroom although the applicant states he is fit for the activity; and that the principal expected the applicant to do sport and playground duty even though he is not fit to do so. The applicant alleges that when he attended the school on 1 September 2010, to discuss the content of the health assessment, he was so distressed that he collapsed. The applicant further stated to the Board that he had previously worked at Newcastle High School for two years with the restrictions specified by his treating doctors and was treated fairly.
The applicant maintained that the Principal treated him less favourably, due to his disability, by denying him teaching duties and by not following the recommendations of his injury management assessment.
The applicant claims he was victimised by the respondent, when an employee of the applicant, Ms Karen Andrews, made a telephone call to Dr Ali (the applicant's general practitioner) on about 31 January 2011, to allegedly persuade Dr Ali to change the medical certificate or to force the applicant to medically retire. It was common ground at the hearing that at a case conference at the tribunal it was confirmed that this was the act of victimisation alleged by the applicant.
On 20 May 2011 the Board referred the complaint to the tribunal.
The respondent subsequently made an application, pursuant to section 102 of the Anti-Discrimination Act 1977 (the Act), that the application be dismissed. Written submissions have been filed in relation to this application by the respondent and the applicant. At the hearing of the application for dismissal, both the applicant and the respondent made oral submissions in addition to the written material filed.
A history of return to work progress/prior teaching positions is contained in Appendix 4 to the applicant's written material filed with the tribunal on 31 October 2011 (a report of Mr Frager of 14 September 2010) and it is useful to summarise the background. The appointment at Whitebridge High School commenced on 21 July 2008 as a supported return to work program with restrictions stated as: no lifting, no sport, no playground duty, no more than 20 minutes driving. His return to work at Whitebridge High School was monitored by Access Injury Management. Prior to this employment, from the time of the injury in 2003, there had been a rehabilitation programme, temporary placements, part-time placements. The applicant returned to work three days per week up until 21 April 2005. He was then certified unfit for work as a result of work-related anxiety and back pain. He commenced seeing a Consultant Psychiatrist, Dr Kevin Helme. A further return to work program commenced from 15 June 2005 at Newcastle High School working three days per week. The applicant continued to achieve upgrades and reached full hours from 12 December 2005.
The applicant remained certified fit for suitable duties by his treating Doctor, Dr Ali, with restrictions in relation to playground or sports duty, lifting up to 5 kg, and driving up to 20 minutes per day. He maintained that level of fitness throughout 2006, working full hours and undertaking teaching duties at Newcastle High School. In October 2007 the applicant was notified that he was appointed to a substantive full time teaching position at another campus. It was a full-time position as a science teacher, and was located within the 20 minute driving restriction imposed by the treating doctor. However, the applicant subsequently suffered an exacerbation of his depressive illness and was certified unfit to return to work from 29 January 2008 to 28 February 2008 due to major depression. He was cleared as fit for suitable duties from late February 2008 but only to work two days. He was upgraded to 3 days per week from 12 March 2008 however it is stated that no suitable duties were able to be offered at that time. He was cleared for return to full-time work from 28 May 2008 however the substantive position was no longer available. The respondent is said to have attempted to locate in a further substantive appointment or a temporary/mobile appointment. An appointment as a mobile (or above establishment teacher) to Whitebridge High School was made to commence on 21 July 2008.
In a written statement by the applicant, dated 17 September 2010, a slightly different version of the history is presented. The applicant states that he was able to undertake teaching duties, as part of a return to work programme at Kotara High School, with the assistance of an assistant teacher, and by the end of that year he was doing full-time work with the help of the assistant teacher. He states that Principal of the school did not like him for some reason and required him to do an improvement programme (the tribunal notes that this dispute about the improvement programme was subject of previous proceedings at the tribunal between the parties: Dr Hamed v Director General, Department of Education And Training [2007] NSW ADT 43.) The applicant states as that as a result of the action of the Principal he started to develop anxiety and depression, for which was treated by Dr Helme. He commenced antidepressant medication. He then commenced at Newcastle High School in June 2005 as a mobile teacher, (above establishment) working there until January 2008. His anxiety and depression improved and he ceased medication and treatment. The respondent then wished to transfer him to another High School, and he was not prepared to move, as he was happy at Newcastle and felt he was being treated fairly there. He returned to his treating psychiatrist, Dr Helme, and asked the doctor's opinion about the proposed transfer. The applicant states that the doctor supported him in remaining at Newcastle High School. The applicant states that the doctor wrote to the respondent and stated that it was not appropriate for the applicant to be transferred and may impact on his condition. The applicant states he was told by the respondent to remain at home until further notice and he remained at home, on full pay, for six months. He said he then sought to obtain teaching work. He said after several complaints to the respondent he was given an above establishment position at Whitebridge High School.
The applicant states that he was placed on a return to work programme on a full-time basis, with the same restrictions he had at Newcastle High School. When he commenced at Whitebridge High School he was taking an antidepressant medication prescribed by his treating psychiatrist as he was distressed due to the respondent's actions in not allowing him to return to work. He states that on commencement at Whitebridge High School, in an above establishment position, according to his return to work programme, his duties were clearly outlined in a letter from Access Injury Management. They included face-to-face teaching of individual students in small groups, lesson preparation, special projects and participation at staff meetings. The applicant states that from his commencement in the position the Principal, Dr Wilson, did not allow him to teach any students. Since he commenced work at the school he has been performing non-teaching duties such as project work, biodiversity investigation in the school grounds, work on the school magazine. He says he attempted to discuss his concern about not being given teaching duties with the Principal on many occasions.
The applicant states that in August 2010 he heard there would be a vacant position at Whitebridge High School, science faculty, and it was his expectation that he would be appointed as a permanent teacher to fill the vacancy. The applicant says that around this time there was a meeting, and a discussion about the need for medical assessment so he could be appointed to a substantive position. He was confident he would pass the medical assessment and obtain the substantive position. After the meeting he read the letter which he had been given during the meeting, being a letter of the Principal, Dr Wilson, and he found the contents of the letter to be, in his view, inaccurate and he became very distressed.
The legislation
Section 102 of the Act provides:
102 Tribunal may dismiss complaint
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
Section 92 (1) (a) (i) and (ii) and (b) provide:
92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint:
(a) the President is satisfied that:
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
...
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
The respondent's application
The respondent's application is that the tribunal dismiss the application in whole or in part. In summary the respondent states that the tribunal would be satisfied that the applicant's case is misconceived and lacking in substance, and would not disclose a contravention of the Act or regulations. In relation to the applicant's victimisation claim further specific submissions are made by the respondent that this part of the applicant's claim should be dismissed.
The respondent conceded in written and oral submissions that in considering the application for dismissal the tribunal must view the applicant's case at its highest. The respondent noted that the tribunal should not dismiss an application unless the applicant's claim is obviously so untenable that it cannot succeed.
The evidence
The applicant provided written material including the applicant's points of claim, material lodged with the Board, and written material filed in relation to the primary application (dated 31 October 2010); and material filed by the applicant in relation to the s102 application - the applicant's letters of 6 February 2012, and 14 February 2012 . The tribunal will not summarise all of that material in these Reasons for Decision but has carefully considered all the material presented. The applicant also made oral submissions at the hearing.
It is not in dispute in this matter that the applicant has a disability, relating to a back injury sustained in 2003. The applicant's case is that the evidence supports a conclusion that he is well qualified, academically, and in terms of work experience, to be a high school science teacher. He states that at the time of commencing at Whitebridge High School he was on a return to work program. The applicant states that prior to his transfer to Whitebridge High School, whilst an "above establishment teacher" at Newcastle high school, he was able to work full-time with the same restrictions on participation in sport and playground duty, lifting heavy objects and driving for more than 20 min. The applicant's case is that he was discriminated against by the Principal of Whitebridge High School in not being allowed to undertake teaching duties despite his fitness for this role with restrictions. He states he was further discriminated against by the Principal in being given duties which were not part of his normal job description, such as taking photographs, and he states that he suffered detriment through use of the photography equipment which he states exacerbated his injury. He further states that the letter written by the Principal for use in the health assessment in August 2010 was discrimination on the grounds of disability.
The applicant states that it can be concluded that the reason for his differential treatment, in not being offered teaching duties, and being offered non teaching duties, was his disability. He submits this can be concluded from a reading of Dr Wilson's letter and from the fact that he was not offered teaching duties by Dr Wilson. He says that there is an available comparator, to assess whether there was differential treatment, and the comparator is another above establishment teacher at the school who were given teaching duties. He says the relevant comparator is an above establishment teacher, without a disability, who was given teaching duties.
The applicant stated that there were health assessments conducted in 2003 and 2005, but no health assessment since that time. He states that at all times everything has been the same - his fitness for work, and the restrictions which were medically indicated by his injury were the same also. Previously he was allocated teaching duties but at Whitebridge High School he was not. The applicant states that Dr Wilson made an assumption that because of his disability he could not teach.
The respondent states that at the relevant time the applicant was employed as an "above establishment teacher". This means he was not employed for particular classes but was employed in addition to core teachers. For an "above establishment teacher" it is up to the Principal to decide where to place the teacher, this is the policy of the respondent. The respondent further states that every time the applicant disagrees with a decision made about him he asserts discrimination on the basis of his disability. In this context the tribunal was referred to prior proceedings between the parties: Dr Hamed v Director General, Department of Education And Training [2007] NSW ADT 43.
The respondent submitted that the applicant has provided no evidence that deals with the issue of a comparator. The respondent states there has been no evidence provided which allows the tribunal to decide if the applicant was being treated differently on the basis of his disability.
The respondent submits that the applicant has provided no evidence from any witnesses, despite the fact that the applicant's points of claim filed in the proceedings rely on what others say. Instead, the applicant asserts that people have said things, and seeks to rely on such statements, but no witness testimony is provided. In relation to the primary application the respondent states that the Principal, Dr Wilson, was simply fulfilling his obligations as school principal. In relation to workers compensation the respondent has certain obligations when there is a workers compensation claim made. The Principal is required to provide a report for a health assessment which would then be carried out by an independent assessor. Provision of the report is part of the statutory obligation of an employer, as part of the workers compensation process, in the respondent's submission. It is submitted that the tribunal should not without compelling evidence take a document prepared for workers compensation proceedings and characterise it as discrimination. In relation to the workers compensation legal framework the respondent referred to a tribunal decision of Smith v Director General, Department of Education And Training [2010] NSW ADT 282.
The respondent submitted that even taking the applicant's case at its highest there was no evidence to show that the applicant was treated less favourably on the grounds of his disability.
The respondent submitted that the applicant was subject to a health assessment in 2003 and came to the school as an above establishment teacher. Access Injury management manage the return to work process. There was an agreement between the parties that an updated health assessment, should be undertaken. Dr Wilson, the Principal, provided a report as part of this health assessment process and the provision of that report, and the contents of that report, were not made on the basis of the applicant disability, but in the respondent's submission, were made as part of the respondent's obligations under workers compensation.
The applicant states in response that at his previous school, before Whitebridge high school, he was also an above establishment teacher but was given teaching duties on the same restricted duties. The applicant states that the restrictions have been the same from 2003 until the present time. The return to work process which was in place included teaching duties and it was anticipated there would be a return to full-time teaching. There was a meeting with all parties in 2008 including Access Injury Management. However, the applicant states that the Principal of White Bridge high school required him to do duties that were below his training, in particular photography. The applicant told the tribunal that the comparator was an above establishment teacher who did not have a disability. The applicant states that there were such teachers at Whitebridge high school who received teaching duties. He also states that at his previous school he was an above establishment teacher but was given teaching duties. He states that he is able to do substantive science teaching, was qualified for such work, but was not given such work by the Principal and the reason for this was discrimination on the grounds of his disability.
In relation to victimisation the applicant states that this occurred when Karen Andrews, on behalf of the respondent, contacted his treating doctor, Dr Ali. The applicant relies on evidence, being Attachment 7 to his written material dated 31 October 2010, which is a record/minutes of a meeting. He also relies on statements he said Dr Ali made to him. There is no witness statement provided by the applicant from Dr Ali and the applicant says such evidence is unavailable to him, given the death of Dr Ali.
The "Minutes of the Meeting" state
" Karen Andrews (KA) informed Dr Hamed that she rang Dr Ali who said he wasn't prepared to alter the WorkCover restrictions because they were based on Dr Gabriel's recommendations. KA indicated she would write to both doctors seeking clarification on what duties could be fulfilled. KA indicated that in the interim, BC would negotiate altered duties Dr Mohammed could perform in lieu of sport and playground duty. KA gave copies of both letters addressed to both doctors to him to consider....... KA explained to Dr H that she had contacted Dr Ali to seek clarification of the work limitations and the purpose of today's meeting was to make sure that Dr Ali had enough information about the accommodations the school would make for Dr H...."
In relation to his victimisation claim, the tribunal asked Dr Ahmed what detriment had been caused to him, by the respondent, by the alleged phone call by Ms Andrews to Dr Ali.
Dr Ali was not able to point to any detriment, and he indicated that no change to the medical certificates/reports had been made by Dr Ali, subsequent to the alleged phone call by Ms Andrews, nor had he been medically retired because of such alleged phone call.
The respondent states that there is no evidence to support the application of victimisation and submits that the tribunal should dismiss this part of the applicant's case.
Discussion and findings - Disability Discrimination in employment
The Act provides, at section 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, 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.
(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:
(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
Discrimination in employment is made unlawful pursuant to 49D of the Act:
(1) It is unlawful for an employer to discriminate against a person on the ground of disability:
(a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or
(b) in determining who should be offered employment, or
(c) in the terms on which the employer offers employment.
(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
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
(3) Subsections (1) and (2) do not apply to employment:
(a) for the purposes of a private household, or
(b) where the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5, or
(c) by a private educational authority.
(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.
For the respondent to succeed in the application for dismissal the tribunal must be satisfied, considering the law and the evidence, taking the applicant's case at its highest, that the application should be dismissed for one of the specified grounds in s102 of the Act (set out above).
The applicant's case, in summary, is:
(1) He was denied teaching duties even though he was fit with some restrictions, and the reason for this was his disability. The applicant submits that this is discrimination for reason of his disability in the terms and conditions of his employment; and it may also represent in the tribunal's view a limitation of the applicant's access to opportunities for promotion, transfer or training or other benefits associated with employment;
(2) The respondent gave him inappropriate duties instead (taking photos) and these duties exacerbated his injuries (thereby subjecting him to a detriment and/or discriminating against him in the terms and conditions of employment);
(3) That the referral for the health assessment represents discrimination by the Principal, and the applicant submits that this is indicated by what is written in the letter of Dr Wilson.
The applicant is required to establish on the evidence that he was treated differently, and that a reason for the differential treatment was his disability (being his back injury). The applicant suggests that he should be compared to other teachers in his employment situation, such as other above establishment teachers, who do not have his disability. He states that such teachers received teaching duties.
The respondent states that as an "above establishment teacher" the applicant was not guaranteed teaching duties, and the reason that he was not offered such duties did not include his disability.
The applicant's case is that the Principal's references in his letter for the health assessment, to the applicant's disability, and the tenor of the Principal's comments about the applicant's teaching abilities, indicates that the Principal sought to deny him teaching duties, regardless of his fitness to teach and regardless of the fact that the restrictions could be accommodated. The applicant maintains that the Principal's refusal to allocate teaching duties and the comments in his letter for the health assessment constitute discrimination on the grounds of disability. He submits that the reason for his differential treatment was his disability. In relation to the Principal's letter the applicant maintains that the decision of the Workers Compensation Commission, including observations/comments made about Dr Wilson's letter (annexure 8 to the Applicant's written material dated 31 October 2011) are supportive of drawing this inference.
In relation to all the matters claimed by the applicant, the applicant has no direct evidence that a reason for his differential treatment, if such is established, is his disability. In particular, the applicant has evidence that he was not given teaching duties by the Principal at Whitebridge High School, and he relies also on statements made by the Principal in his letter for the health assessment. The applicant asserts that the reason for the alleged differential treatment was his disability. He states that he was fit for teaching duties and this is evidenced by the fact that in his prior school position he was given teaching duties despite his back injury and restrictions. The applicant asks the tribunal to draw an inference that one of the real or genuine reasons that he was not given teaching duties was his disability. The applicant submits that such an inference may also be drawn having regard to the evidence overall and the contents of Dr Wilson's letter. If the applicant is able to establish that a real reason that he was not given teaching duties was his disability, then the applicant may be able to establish disability discrimination, that the applicant was treated less favourably, than a teacher without a disability, in the terms and conditions of his employment.
In the decision of the Tribunal in Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 the following was noted in relation to the drawing of inferences:
85 The exercise of drawing inferences has been discussed the Tribunal in numerous decisions: for example, Hafez v Warilla Women's Refuge Ltd &Ors [1997] NSWEOT (at page 5 of 35); A v B [1997] NSWEOT (at page 17 of 19); Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences of discrimination:
(a) a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;
(b) an inference must be reasonably drawn on the basis of the primary facts;
(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";
(e) the inference must be a logical one, and not supposition;
(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.
The Tribunal finds in these preliminary proceedings under section 102 of the Act, that the tribunal cannot make findings on the available evidence about inferences which should be drawn and that this is properly a matter for a tribunal to decide at a full hearing. The questions of whether the inference is logical rather than supposition, or whether there is a more probable and innocent explanation available on the evidence, will be matters to be considered on a full hearing of the evidence. Without hearing from witnesses it is not appropriate for the tribunal, in a section 102 application, on the available evidence in this matter, to weigh the evidence (which is predominantly in written form) and decide whether an inference should be drawn from the evidence.
For the reasons discussed above the tribunal finds that the applicant has presented some evidence which raise issues for determination, including issues to be determined as to whether there was differential treatment, and causation. Accordingly the tribunal is not satisfied that the applicant's application of disability discrimination in employment should be dismissed, and declines to so order.
The respondent has also submitted that the application of victimisation should be dismissed.
Discussion and findings - Victimisation
Section 50 of the Act provides:
(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.
In interpreting the requirements of s50 of the Act, the Tribunal agrees with the statement of the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at 235 -
The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1)?
In the case of Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 the Tribunal stated:
The elements of victimisation can be described as a four-fold requirement. Firstly, the Respondent must have caused the complainant to undergo or experience something. Secondly, the complainant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the complainant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the Respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith. That defence is not relied on in this case. It has been suggested that there is an additional requirement of intention implicit in the word "subject" (see Bhattacharya v Department of Public Works (1984) EOC 92-117; Bogie v The University of Western Sydney (1990) EOC 92-313). However, in the light of later decisions (particularly Australian Iron Steel Pty Ltd v Banovic[1989] HCA 56; (1989) 168 CLR 165 at 176 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, at EOC pp 78,674 and 78,687; CLR pp 359 and 382) in our view this requirement means no more than that the conduct of the Respondent was done on one of the grounds referred to and adds nothing of substance to the other stated requirements. The phrase "in any circumstances" which does not appear in Federal legislation in our view emphasises that the word "detriment" is to be given a broad interpretation. As to the meaning of the word "detriment" we do not consider it helpful to refer to the relative concept more applicable to discrimination provisions namely "to suffer a material difference in treatment" but prefer the Macquarie Dictionary meaning of "loss damage or injury" (cfBodart-Bailey v Australian National University, (1995) EOC 92-744 at p 78,553.
The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the Respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.
To succeed in a victimisation claim the applicant must establish on the evidence that the respondent subjected him to a detriment. The evidence must indicate that the respondent did something which caused a detriment to the applicant. In the tribunal's view no detriment is established. The tribunal specifically asked the applicant to address this issue during the hearing. The applicant did not identify a detriment to which he was subjected by the respondent. The applicant's victimisation case is that Ms Andrews contacted his doctor and requested a change to the medical report. In the tribunal's view, it is not clear that Ms Andrews specifically asked Dr Ali to alter his report on the evidence presented. The minutes of the meeting (set out above in these Reasons for Decision) are not clear and comprehensive. The minutes of the meeting indicate that Ms Andrews was querying the medical opinions as to the duties which could be undertaken in the context of identifying suitable duties for the applicant. Even if the tribunal was to accept that Ms Andrews did ask Dr Ali to alter his report, the evidence of the applicant is that the report was not altered by Dr Ali, nor did any other consequence flow from Ms Andrews' alleged telephone call. The applicant was not medically retired, the report was not altered, and the applicant suffered no change in circumstances and no identifiable detriment consequent upon the alleged phone call by Ms Andrews. As such, even considering the applicant's case at its highest, the tribunal is not satisfied that the evidence discloses that the respondent subjected the applicant to a detriment. Accordingly, the tribunal finds that the applicant's claim for victimisation has no tennable basis in law, and therefore that part of the applicant's claim, that he suffered victimisation, is to be dismissed. The tribunal is not satisfied that the victimisation claim discloses a breach of the Act or regulation (Section 92(a)(ii)). Further, as the applicant has no evidence that he was subjected to a detriment, the claim is lacking in substance and should be dismissed (section 92(a)(ii)).
The tribunal also notes that the applicant has no direct witness evidence to support this claim - he relies on a conversation he says he had with his GP, as well as the minutes of the meeting of Wednesday 9 March 2011 (Annexure 7 to the applicant's material filed with the Tribunal dated 31 October 2011). At the hearing the tribunal was told that the applicant was unable to obtain a statement from Dr Ali about this phone call as he is now deceased. The applicant is therefore unable to obtain that direct evidence.
In any event, even if the applicant was able to prove what was said in the phone call, the tribunal finds, as detailed above, that he has not established that the respondent subjected him to a detriment. On the evidence no medical certificate/report was changed by his general practitioner at the request of the respondent and no medical retirement occurred at the instigation of the respondent through the alleged phone call to Dr Ali. The tribunal is not satisfied that the applicant has given evidence of a detriment which the respondent has subjected him to, through the phone call allegedly made by Ms Andrews, and accordingly the tribunal finds that the victimisation claim is lacking in substance and should be dismissed.
The tribunal therefore makes an order that the applicant's case be dismissed in part - the applicant's application that he was victimised by the respondent is dismissed.
The tribunal determines not to make any order dismissing the applicant's application that he was discriminated against, by the respondent, in his employment, on the grounds of disability.
The matter is listed for case conference on 18 April 2012 at 2.30pm.
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Decision last updated: 22 March 2012
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