Harms v Sydney South West Area Health Service

[2010] NSWADT 183

CITATION:	Harms v Sydney South West Area Health Service [2010] NSWADT 183
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Allan Frederick Harms RESPONDENT Sydney South West Area Health Service
FILE NUMBER:	091096, 091023
HEARING DATES:	15 June 2010
SUBMISSIONS CLOSED:	15 June 2010
DATE OF DECISION:	21 July 2010
BEFORE:	Patten D - Deputy President; Monaghan-Nagle L - Non-Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Alleged Victimisation, Discrimination – Insufficient Evidence to Establish
LEGISLATION CITED:	Anti Discrimination Act (NSW) 1977
REPRESENTATION:	APPLICANT Self Represented RESPONDENT S Price, solicitor
ORDERS:	1. All complaints are dismissed 2. No order as to costs.

REASONS FOR DECISION

1 The applicant Mr. Allan Harms in effect contends that the respondent:

i) Unlawfully discriminated against him as his wife’s carer contrary to S49T of the Anti-Discrimination Act (the Act),

ii) Victimised him contrary to S49U of the Act following his complaint to the Anti-Discrimination Board.

2 At the hearing before the Tribunal Mr Harms appeared for himself. Ms. S. Price solicitor appeared for the respondent.

3 Substantially Mr. Harms relied upon his statement of facts dated 3 February 2010 upon which he was cross-examined by Ms. Price. Generally in our opinion he was a witness who did his best to tell the truth and assist the Tribunal. Nonetheless for reasons which follow neither of his complaints was established.

4 It appears that the applicant commenced employment with the respondent as a casual security guard on 16 January 2006. He became a full time employee on or about 15 January 2007. He performed his duties in shifts according to rosters, a subject to which we will need to return.

5 According to his testimony about January 2008 his wife Christine was diagnosed with cancer. At the time they were living apart, albeit under the same roof, and had been doing so for several years. Nonetheless he said that he regarded it as his obligation to assist his wife, take her to medical appointments etc. For this purpose it was desirable that his rosters were flexible.

6 Initially he said that in effect, as we understand his evidence, he was able to choose his own rosters with the assistance of his then manager Mr. Peter Kuselyck. He chose rosters which left him free on Mondays and Tuesdays to devote to his wife. Subsequently Mr Kuselyck accommodated a change in his circumstances and permitted him to use hospital accommodation for sleeping between shifts and also to work on allotted days off so that such days might be “banked” for the future.

7 About the middle of 2008 Mr. Kuselyck was replaced by Mr. Chris Thomas who in conjunction with his superior Ms Leisa Rathborne made significant alterations to the roster system. There were also restrictions placed upon the applicant’s use of hospital sleeping accommodation. His right to accumulate rostered days off was terminated.

8 Although Mr. Harms pressed Ms. Rathborne to restore the rosters he had previously enjoyed she declined to do so, pointing out that his continuous rosters were too extensive. She did however permit him to use hospital sleeping accommodation in some circumstances between shifts. At the time the applicant was living on the Central Coast whereas the hospital was located at Bankstown. By about September 2008 what had previously been a “self roster” was replaced by a “rotational roster” imposed by management, a requirement which we add applied to all security staff not only to the applicant. As a consequence of the new arrangements the applicant said that he suffered the detriment of no longer being able to have Mondays and Tuesdays off, although he was required to work the same hours as before.

9 The applicant stated that about September 2008 he obtained a certificate from Dr. Rosha Hourari certifying that he was suffering from stress and requesting that he be given a roster consisting of only night shifts and weekends. This would have permitted him once again to have Mondays and Tuesdays off. He presented this certificate to Mr. Thomas and was called to attend a meeting with Ms. Rathborne and Ms. Helen Goulden the Human Relations Officer. The roster suggested by Dr. Hourari was declined and it was suggested to him that the proposal had nothing to do with his family situation but was designed purely to gain him additional income. Following this meeting he made a complaint to the Anti-Discrimination Board asserting in effect that the hospital’s refusal to accommodate him in his choice of rosters amounted to unlawful discrimination against him as his wife’s carer.

10 Ultimately this complaint was referred by the President of the Board to this Tribunal. It has become subsumed in a second complaint referred to hereafter.

11 In the meantime however, at the beginning of 2009, there was a significant change in the applicant’s circumstances in that according to his oral evidence he formed a relationship with another woman and moved out of the matrimonial home. As we understand the effect of this evidence, he was no longer involved in caring for his wife. Although he gave frank evidence about this, curiously his statement is completely silent about the matter even though it is to be inferred from the statement that during 2009 his roster continued to be inconvenient because of his obligations as carer for his wife.

12 He does however complain that after his complaint to the Anti-Discrimination Board he was treated differently at work in that “Ms Rathborne is often sharp and short when speaking with me, reasonable requests that I have made in relation to my working conditions have been denied for no good reason and I am generally treated as an outsider.” None of these generalised allegations were particularised.

13 In June 2009 the applicant made a further complaint to the Anti-Discrimination Board. In this complaint he alleges that he still helps and supports his wife although he does not indicate in what manner and this evidence seems to be inconsistent with his oral evidence before us.

14 In the June 2009 complaint he concedes that he no longer needs the rosters he previously requested but claims that he was being “harassed in the workplace in many ways. These include refusals to change my roster being glared at and snubbed by management refusals to wear my uniform when I was being presented with a bravery award being hassled over minor issues which they could not go on with as my answers put an end to their complaints and other issues.” Again no particulars were given. The June 2009 complaint is also before this Tribunal as indicated earlier.

15 The applicant’s statement also deals with matters which arose after the June 2009 complaint. Ms. Price objected to us dealing with them and we feel bound to uphold that objection. In any event the matters raised do not seem to involve allegations of unlawful conduct under the Anti-Discrimination Act.

16 In support of his case the applicant relied on several statements which were admitted subject to proof of relevance. The statements of his fellow workers Mr. Brad Hogan, Mr Kenneth Pope and Mr Z. Elnajjar, support the applicants proposition that there was general discontent about the rosters introduced by Mr Thomas but we agree that this is not a relevant matter to be considered in this case where the issue is whether there has been unlawful conduct under the Act. Similarly, statements that other workers would have had no objection to the applicant receiving the rosters he sought are of no relevance. Nor is there any relevance in a medical certificate signed by Dr. Hourari wherein she requests that the applicant be granted “permanent afternoon shifts at work for his own protection and mental health.”

17 In its case the respondent relied on statements of Ms. Rathborne and Mr. Thomas both of whom gave oral evidence and the statement of Ms. Felicity Howell.

18 Ms. Rathborne, at relevant times Director of Corporate Services at the hospital, was responsible for all non-clinical services including security.

19 She identified the Award relevant to the applicant’s employment which contained clauses providing for breaks, allocated days off, and for a minimum break of eight hours between ordinary rostered shifts.

20 Ms. Rathborne said that the hospital required 24 hour security and operated it in 3 separate shifts of 8 hours each viz day shift 7am to 3 pm, afternoon shift 3 pm to 11pm and night shift 11pm to 7am. From 2007 to 2008 staff were entitled to nominate the shifts they wanted to work but pursuant to written direction she gave on 29 January 2007, each officer was required to work, in each 28 day period, at least 3 morning shifts when the manager is on duty, at least 3 afternoon shifts and at least 3 evening shifts.

21 On 12 August 2008 Ms. Rathborne issued a further written directive pointing out that the directive of 29 January 2007 was not being adhered to and that in rosters, commencing 22 September 2008, her previous directive would be enforced. This directive was designed to ensure that the award was complied with, that management time was reduced and that the distribution of work was equitable given that some shifts attracted penalty rates.

22 She had become aware that the rostering system was not working satisfactorily in the period up to July 2008 when Mr. Kuselyck resigned. She then managed the rosters herself until Mr Thomas was appointed security manager on 19 August 2008. Following her discussions with Mr. Thomas a draft roster was posted and staff meetings were held to discuss it. Some changes were made to accommodate staff comments, the comments of the relevant trade union and of the hospital’s Human Relations Officer. After this the roster was implemented from 20 October 2008. It contained some flexibility in that staff could still request changes by giving due notice and an effort was made to accommodate their requests. The roster although normally for 4 weeks was “rolled out” for 12 months so that staff could have some certainty about their shifts.

23 Ms. Rathborne became aware of the applicant’s wife’s illness about February 2007. Despite being short staffed she granted him leave of one month from a date in December 2007 to a date in January 2008.

24 In June, July and August 2008 she said that the applicant did not work any day shifts contrary to the requirements of her directive of January 2007. In permitting this arrangement she said that Mr. Kuselyck acted outside his authority and without her knowledge.

25 In the meantime in August 2008, she received a letter from the applicant concerning his roster and seeking a variation to accommodate his need to care for his wife and also his daughter who was ill. On receipt of the letter she reviewed the situation and found that the applicant had worked overtime shifts in July and August 2008 and that during those months he had worked 11 and 10 days straight including on 2 days working double shifts. She concluded that those shifts had not in reality provided the applicant with time to care for his wife.

26 There was a meeting with the applicant on 20 August 2008 when Ms. Rathborne questioned whether the applicant’s shifts had benefited his wife and drew his attention to occupational health and safety rules against working “so many shifts without days off including double shifts.” She informed the applicant that his roster would be adjusted to ensure that he did not work day shifts the days he had to take his wife to chemotherapy but that he would have to comply with the requirement that he work 3 day shifts over a 28 day roster in common with other security officers.

27 On 8 September 2008 Ms. Rathborne received an email from the applicant:

“This is to advise you that due to the lack of support shown to me and the arrogance the department as a whole is experiencing from management re-rostering, I have sought the help of outside bodies as the stress on me now is becoming overwhelming. My treating Doctor has offered her support and I have spoken to the people at the Anti-Discrimination Board and they have indicated I have a strong case to be resolved. I have also been advised to talk to Workcover as well as some others which I will do. I am sorry it has come to this as I would normally not entertain such actions. I have not asked for anything that would have interfered with the running of the hospital, or added to the cost of it. The shifts that I asked to be allowed to work, which you removed from me, were mainly those that do not suit most other guards and now the renting of the room over childcare has been removed from me even though I was paying three times what other staff are charged. Again I reiterate that the stress caused to me by recent decisions both you and the new security manager have made has seriously affected my health.”

28 It is noteworthy that the email at least in terms does not purport to base itself upon the applicant’s responsibilities as a carer. Very soon afterward however he made his first complaint to the Anti-Discrimination Board.

29 Ms. Rathborne had a further meeting with the applicant on 10 September 2008 in company with Ms. Goulden during which according to Ms. Rathborne’s evidence his major complaint concerned the restrictions she had placed upon his use of hospital sleeping accommodation. During the course of the meeting however Mr Harms did mention his desire to work afternoon, evening and weekend shifts in order to receive penalty rates of payment. She denied that in her presence Ms. Goulden made the comment “you are only using this roster to gain the few extra dollars in penalties it would give you. This has nothing to do with your family situation.”

30 Ms. Rathborne also denied any suggestion that Mr. Harms was treated differently to any other employee. “Mr. Harms has made multiple requests to change his roster and those that could be accommodated were.”

31 Although the applicant was given the opportunity to cross-examine Ms. Rathborne, he made no attempt to challenge the substance of her evidence which to a considerable extent was supported by contemporary records. The Tribunal has no reason to reject any of Ms. Rathborne’s evidence and it does not do so.

32 There was moreover other unchallenged evidence in the respondent’s case namely that of Mr. Thomas, who supported Ms. Rathborne’s testimony. He denied that he said as alleged by the applicant at meetings to discuss the new roster “you can put in your opinion but that will not change anything.”

33 It may well be that the applicant was unhappy with the new rosters which came into force in September or October 2008 and that he was unhappy that some of his requests for changes were not met. However to succeed in his claim for unlawful discrimination contrary to s49V of the Act, the applicant must show affirmatively that because of his responsibilities as a carer he was treated less favourably by the hospital than in the same or similar circumstances it would have treated a person who did not have those responsibilities. There is simply no evidence in this case to support such a finding. Indeed all the evidence tends to suggest that the hospital went to all reasonable lengths to accommodate the applicant’s requests. It is not without significance that other workers were also unhappy with the new roster arrangements.

34 Alternatively, it was claimed within s49T(1) (b) of the Act that the hospital required the applicant to comply with a requirement which a substantially higher proportion of persons who do not have carer responsibilities are able to comply being a requirement that is not reasonable having regard to the circumstances of the case and with which the applicant is unable to comply.

35 In the opinion of the Tribunal the subsection has no application for two reasons. First because we are of the opinion that the rosters were reasonable in the circumstances especially in order to do equity between all employees and to satisfy occupational health and safety requirements, and secondly because there is no evidence that Mr. Harms was unable to comply with the roster having regard to Ms. Rathborne’s evidence that he would have been given days off to accompany his wife to chemotherapy treatment.

36 The claims for unlawful discrimination have not been proved.

37 As for the claim for victimisation contrary to s50 of the Act it would be necessary to prove that as a consequence of his complaint to the Anti-Discrimination Board on 30 September 2008 Mr. Harms was subjected to a detriment. There is no evidence that this occurred by 30 September 2008 when the new rosters were in place. There is no evidence that thereafter the applicant suffered any detriment which by inference could be causally related to his complaint. The complaint of victimisation therefore also fails.

38 The Tribunal makes the following orders:

1) All complaints are dismissed.

2) No order as to costs.