Leibeck v Toll Transport Pty Ltd
[2012] NSWADT 19
•10 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Leibeck v Toll Transport Pty Ltd [2012] NSWADT 19 Hearing dates: 14, 15 and 16 December 2011 Decision date: 10 February 2012 Jurisdiction: Equal Opportunity Division Before: G Furness SC, Judicial Member
E Hayes, Non-Judicial Member
J Newman, Non-Judicial MemberDecision: Complaints dismissed
Catchwords: Race discrimination, disability discrimination, victimisation Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
O'Callaghan v Loder and The Commissioner for Main Roads [1983] 3 NSWLR 89
FP and FQ on behalf of FR v Department of Education and Training [2003] NSWADT 68
Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Purvis v State of New South Wales [2003] HCA 62; (2003) 202 ALR 133Category: Principal judgment Parties: Ronnie Leibeck (Applicant)
Toll Transport Pty Limited (Respondent)Representation: Counsel
B Cross (Respondent)
R Leibeck (Applicant in person)
FCB Workplace Law (Respondent)
File Number(s): 111063
REasons for decision
On 21 October 2010, the applicant, Ronnie Leibeck made a complaint to the Anti-Discrimination Board ("the Board") claiming he had been discriminated against on the grounds of race and disability by Toll Transport Pty Ltd ("Toll") during the period 20 May 2010 to 30 June 2010. On 29 October 2010, Mr Leibeck made a further complaint alleging that between 20 May 2010 and 1 November 2010 he had been victimised by Toll. On 30 March 2011 he alleged further victimisation by Toll between 29 October 2010 and 30 March 2011. The complaints were referred by the Board to the Administrative Decisions Tribunal (the Tribunal) on 15 June 2011.
Background
The applicant operated a company which provided a truck and his services as a truck driver. His company, Cheron Transport and Tipper Hire Pty Limited was engaged by the respondent on an ad-hoc basis to take delivery of loads at specified sites and delivering those loads to other sites as directed. At the time of the complaints the applicant was delivering Coca Cola products for the respondent.
The respondent employed drivers to deliver loads and had contractors with whom it had agreements to perform this work. In the event that the work available was greater than could be performed by its employees or contractors, the respondent would engage the applicant and others to perform the work. These latter workers were referred to as the ad-hoc drivers. At the relevant site, the respondent had 12 permanently employed drivers, seven contractors and between 15 and 35 ad-hoc drivers.
The applicant did not have a written agreement with the respondent. The applicant would be contacted the day before and told whether there was any work available for him the following day.
Claims of race and disability discrimination
The applicant's evidence is that on five occasions he was subjected to comments which he claims amount to discrimination against him on the grounds of race and/or disability.
First, the applicant claims that on 20 May 2010, Mark Stoppes, a contract driver with the respondent, was asked by an employee of the respondent to go onto Dock D to load goods. Mr Stoppes replied "which of the fucking three Ds, D for fucking deaf, D for fucking disabled or D for fucking dobber". The applicant was present at this exchange and took offence to the words used as he walked with the aid of a walking stick.
Secondly, the applicant claims that a couple of days later another contract driver with the respondent, Grant Gibbs told Mark Stoppes an "Aborigine joke" on the UHF, the radio used by the respondent and the drivers to communicate. The applicant gave evidence that he recognised their voices on the radio. The applicant claimed that he spoke to Mr Stoppes about the joke and Mr Stoppes said to him "what's it to you" and the applicant replied that he was Aboriginal and took offence. The applicant says that Mr Gibbs later apologised to him for telling the joke and said that he did not know the applicant was an Aborigine.
Thirdly, on 16 June 2010, when on the dock, the applicant claims that Mr Stoppes was talking to another driver on the UHF radio and repeated his comments about the three Ds. Fourthly, and on the same day as the third incident, the applicant claims that Mr Stoppes laughed at him and pointed at his walking stick and asked what it was. The applicant replied it was his walking stick and that he was disabled. Mr Stoppes replied "So what is your fucking problem" and later said "I don't even know you, you black disabled cunt".
Fifthly, on 30 June 2010, while he was working, the applicant heard "people on the UHF radio calling me a black crippled cunt". He asked Brian Heap, a supervisor with Toll if he could hear the comments and he said he could not.
Claims of victimisation
The applicant claims that on 26 May 2010 and again on 2 June 2010, he told staff from the human resources department of Toll in Melbourne "what had been going on". In his complaint to the Board, the applicant said he had spoken to "HR" at Coca Cola. The work the applicant did for Toll was mainly carried out on the Coca Cola site.
The applicant also said he told Jon Burton, Toll's Operations Manager about the comments made about him at about the time he told the human resources department. The applicant said that on 3 June 2010 he received a call from Mr Burton who later met with him and, the applicant claimed, apologised. From that time, on the applicant claimed that he was getting less work and was being sent home early when he did work. He was also given work that was difficult for him to do because of his disability. He claims that being given less work was victimising him because he had made complaints.
In a complaint made to the Board on 30 March 2011, the applicant alleged that in December 2010 Mr Stoppes and Mr Pettit, NSW Business Manager for Toll, sought and were granted interim Apprehended Violence Orders against the applicant. He said those orders were sought in an effort to have him withdraw his complaints and were acts of victimisation.
The hearing
Evidence for the applicant was given by himself, Andrew Tesoriero, an ad-hoc driver, David Kean, a contract driver, Murray Bone, an employed driver and Glen Scherer, also a contract driver. Each worked with or for Toll. Steve Cummins, a union official swore an affidavit which was read.
Evidence for the respondent was given by Toll employees Adam Pettit, NSW Business Manager, Jon Burton, then Acting Operations Manager, Sharon Nugent, then Operations Manager, Bradley McDonough, Operations Supervisor and Bryan Heap, Supervisor and drivers Mark Stoppes, Grant Gibbs and Allan Shute.
It is convenient to deal with their evidence by reference to the specific claims of discrimination.
The evidence concerning the race and disability discrimination complaints
It was accepted by all witnesses that the UHF radio channel by which drivers and Toll communicated was a public channel. Toll operations staff used a small, portable radio hand set to communicate with drivers entering and leaving the loading docks. Views differed as to whether it had a range of several kms or as little as 400 - 500 metres. The range was relevant to whether people on the site where the loading occurred could hear conversations by truck drivers on the road.
The first incident
Mr Stoppes denied making any racist remark.
The second incident
In relation to the second incident (set out above) Mr Gibbs denied telling the joke attributed to him by the applicant and denied ever admitting to the applicant that he had told the joke. He said his wife was a Maori, his children were black and that he was not racist. He told the Tribunal that he rang the applicant and told him he did not tell the joke.
Mr Stoppes denied hearing a racist joke.
The third incident
Mr Heap gave evidence that the applicant told him that someone was calling him "3D" on the radio. He, Mr Heap did not hear those comments being made over the radio.
The fourth incident
Mr Stoppes gave evidence that on 21 June 2010, the applicant had said "I'm a fucking cripple" and then the applicant lifted his cane in a threatening gesture at him. The next day, 22 June Mr Stoppes made a formal complaint to Mr Burton about that incident.
Mr Scherer provided a statement in which he said he saw and heard the applicant raise his walking stick at Mr Stoppes and say "yes it's a fucking walking stick, I'm a cripple, I need it to walk." He said that there was no threat to hit Mr Stoppes.
The fifth incident
In relation to the fifth incident, Mr Gibbs gave evidence that he had heard a voice on the UHF saying that the applicant was a black cunt, however, he did not know who it was who said it.
Mr Stoppes also recalled hearing the words "you black cunt" being spoken over the UHF radio but denied having spoken them or knowing who spoke them or to whom they were directed. He gave evidence that that he and Mr Young heard the words being spoken over the radio while they were talking together and listening to the radio.
Mr Bone gave evidence that he had not heard any discriminatory words used about the applicant. He said "Everyone gets a hard time, everyone gets general rubbish".
Mr McDonough gave evidence that he had not heard the applicant or anyone else being referred to on the UHF in the manner alleged by the applicant.
Mr Shute gave evidence of hearing a comment over the UHF radio that he took to be racist - "you black cunt". He did not recognise the voice and it was not directed to any person. At that same time he heard the comment he saw Mr Stoppes talking to another driver and neither was speaking into the UHF.
The events of 30 June 2010
On 30 June 2010, the applicant and Mr Heap had a heated exchange over the radio, following which the applicant came to the open office window in front of Mr Heap's work area. Mr Heap gave evidence that the applicant swore at him in loud and aggressive tones and put his head and shoulders through the open window and continued to speak in a loud and aggressive tone. Mr Heap gave evidence that he was concerned that the applicant may have intended to hit him.
The applicant said he leaned in the window because his disability prevented him from kneeling.
Mr Tesoriero, an ad-hoc driver for the respondent gave evidence of, on 30 June 2010, seeing the applicant and Mr Heaps arguing and being informed by Mr McDonough that he had to separate Mr Heaps and the applicant as Mr Heap "was going to drag Ronnie through the window and bash him."
Mr McDonough gave evidence of seeing the applicant leaning through the window towards Mr Heap. He stepped in between the men. He denied Mr Tesoriero's account of their conversation. Mr McDonough gave evidence consistent with Mr Heap's account and in answer to a question by the applicant said "I would have felt threatened by you" if he was in Mr Heap's position.
Evidence relevant to the victimisation allegation
The respondent submitted that its human resources department first received a call from the applicant on 18 June and not in May or early June as alleged by the applicant. Mr Burton's affidavit referred to having received a telephone call "in around June" from the applicant complaining of the "Aborigine joke" being told. This was before the call from the applicant on 22 June 2010.
However, Mr Burton gave evidence that he received a telephone call from the applicant on 22 June 2010 complaining that Mr Gibbs and Mr Stoppes were calling him names and making racist jokes over the radio. Mr Burton's notes of that conversation refer to the applicant saying that he, Mr Burton should be receiving a complaint against him, the applicant, by Mr Stoppes concerning the applicant raising his cane at Mr Stoppes. In fact, Mr Burton had received a complaint from Mr Stoppes to that effect the day before. According to Mr Burton's notes which are dated the day of the telephone call, the applicant admitted raising his walking stick to Mr Stoppes and said he did so in response to comments made on the radio.
Mr Burton gave evidence that he investigated the applicant's allegations as well as Mr Stoppes' complaint. He rang Mr Gibbs who said he would talk to the applicant and that he wasn't racist and "it wasn't related to him in anyway, shape or form." Mr Burton also rang Mr Stoppes who denied it was him who had made the comments. Mr Burton said there were no witnesses to the incident complained of by Mr Stoppes.
Two meetings were held between the applicant and the respondent. The first meeting was held on 1 July 2010 and was attended by the applicant, David Kean, a union representative and present to support the applicant and Adam Pettit and Jon Burton. It concerned Mr Stoppes' allegation that the applicant lifted his cane in a threatening manner and the applicant's allegation of racist comments being made on the UHF. Minutes were kept.
Those minutes record Mr Pettit as saying that he could not take either allegation further without more information.
The minutes also record that Mr Pettit said that Toll would hold a tool box meeting highlighting the code of practice with particular reference to workplace harassment. The minutes then record the applicant's body language as very intimidating and that Mr Pettit commented "what are you doing, are you threatening me now?".
Mr Pettit gave evidence to the Tribunal that the applicant was threatening in his body language. Mr Burton, in his evidence, described the applicant as leaning over the table towards Mr Pettit in an aggressive manner.
In evidence before the Tribunal, Mr Kean gave evidence that the applicant did not threaten Mr Pettit, although he initially gave evidence that he had "pounded the table" which he later changed to "leaned".
Mr Pettit gave evidence that, a day or so after the meeting, he directed Mr Burton to stand down the applicant. The reasons he gave for that direction were as follows:
a) the applicant's threatening manner in the meeting;
b) that he had received the allegation by Mr Heap of, on 30 June 2010, feeling threatened by the applicant, and there were a number of witnesses who corroborated Mr Heap's allegation;
c) that he was concerned that there may be an escalation of violence given the complaints that had been made by the applicant, Mr Stoppes and by Mr Heap; and
d) the tension between the drivers.
Mr Pettit gave evidence that the "ban" on the applicant working for Toll extended only to the applicant; his truck, driven by another person, could still work for Toll.
Mr Burton gave evidence that his understanding was that the "suspension" of the applicant was pending the investigation into the complaint by Mr Heap.
There was evidence that, after that meeting, the respondent asked a number of drivers to read and sign an acknowledgement of their rights and responsibilities and of having read the Toll Handbook which covers matters including discrimination. There was also evidence that a tool box meeting was held with available drivers to reinforce the respondent's policy on harassment and discrimination.
A second meeting with the applicant was scheduled for 9 July, however, for reasons of people's availability it did not take place until 3 August 2010.
On 3 August 2010, a second meeting was held with the same participants as at the first meeting on 1 July 2010, with the addition of Steve Cummins, a union official. That meeting was held to discuss the applicant's complaint about comments made on the UHF radio as well as a complaint by Mr Heap that the applicant had threatened him on 30 June 2010. Minutes were kept of the meeting.
The minutes record Mr Kean agreeing that at the previous meeting the applicant stood up and leaned over the table in a threatening manner and that he had stood up in between the applicant and Mr Pettit. In evidence before the Tribunal Mr Kean accepted that the three page minutes were accurate save for that entry. Mr Kean gave evidence that the applicant was not threatening and that he did not stand between them.
Mr Kean has sworn two affidavits about these events, the latter three and half months after the first affidavit. They differ in material respects. One refers to three meetings having occurred, the other two. One refers to the applicant having leant on the table in the first meeting, while the other omits reference to that action. Mr Kean provided no explanation for the differences or for the fact of two affidavits having been sworn. In these circumstances, the Tribunal accepts the contemporaneous record of the minutes as recording the events at the meetings, rather than Mr Kean's recollection or affidavit evidence. Mr Cummins was not called to give evidence before the Tribunal.
During the meeting on 3 August, Mr Pettit told the Tribunal that the applicant mouthed at him "you're dead". No other person saw the applicant do so, however the minutes record Mr Pettit confronting the applicant with having mouthed those words and the applicant's denial. The applicant was then ordered off the site. Mr Pettit reported the incident to the Police. He later applied for an Apprehended Violence Order, after the Police had completed their investigation.
Mr Pettit gave evidence that a couple of days after the 3 August meeting, the decision was made by more senior people that the applicant's truck should also not be permitted to work at Toll. He understood that that decision had been made because of a concern that if his truck was on site, the applicant may also be on site.
However, it appears that the applicant's company did receive some payments for work after that date, although the respondent was unable to explain why that occurred. The applicant believed that they were payments to his step son which were mistakenly paid by Toll to his company.
Mr Stoppes gave evidence that on 2 December 2010, his wife received a threatening phone call from the applicant. He reported the incident to the Police that day and was advised by the Police to seek an Apprehended Violence Order against the applicant, which he did on 7 December 2010. He said that the respondent did not direct or require him to make the application.
Mr Burton gave evidence, supported by business records that the winter months were slower because the product transported was consumed more in the hotter months and that the system of allocating work did not change over the month of June.
In relation to the complaint that the respondent gave the applicant work which was hard to do because of his disability, the respondent submitted that it did not allocate specific work to any driver. There were automatic and manual loading bays and drivers arriving at the site collect their loads depending on their place in the queue and their position relative to the dock.
The relevant provisions
The relevant provisions in relation to the claim of race discrimination are as follows:
s.7 (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person 's race or the race of a relative or associate of the aggrieved person , the perpetrator :
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race , or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race , or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race , or who have such a relative or associate not of that race , comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race , a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race .
s.10 It is unlawful for a principal to discriminate against a contract worker on the ground of race :
(a) in the terms on which the principal allows him or her to work,
(b) by not allowing him or her to work or continue to work,
(c) by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or
(d) by subjecting him or her to any other detriment.
The relevant provisions in relation to the claim of disability discrimination are as follows:
s.49B (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 .
s.49F (1) It is unlawful for a principal to discriminate against a contract worker on the ground of disability :
(a) in the terms on which the principal allows him or her to work, or
(b) by not allowing him or her to work or continue to work, or
(c) by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or
(d) by subjecting him or her to any other detriment.
(2) Nothing in subsection (1) (b) renders unlawful discrimination by a principal against a contract worker on the ground of the contract worker 's disability if taking into account the contract worker 's past training, qualifications and experience relevant to working as a contract worker and, if the person is already working for the principal as a contract worker , the contract worker 's performance as a contract worker , and all other relevant factors that it is reasonable to take into account, the contract worker because of his or her disability :
(a) would be unable to carry out the inherent requirements of a contract worker , 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 principal .
The provisions in relation to race and disability refer to an applicant being subjected to a detriment. The detriment suffered must be " real and not trivial " and " whether something constitutes a detriment must be determined objectively and not subjectively ": Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41] .
A detriment includes being under a substantial disadvantage in comparison with employees of another race and can include being subjected to racist comments: O'Callaghan v Loder and The Commissioner for Main Roads [1983] 3 NSWLR 89 at 105; FP and FQ on behalf of FR v Department of Education and Training [2003] NSWADT 68.
In Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70 , the Appeal Panel said that the test for direct race discrimination requires two elements to be established.
The first is differential treatment, which involves a comparison between the way the person was treated with the way a person not of that race was or would have been treated in circumstances which are the same or not materially different. The second requirement, sometimes referred to as the "causation" element, is that the treatment was "on the ground of race": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5.
In Purvis v State of New South Wales [2003] HCA 62 ; (2003) 202 ALR 133 the High Court examined the elements of direct discrimination in the context of s 5(1) of the Disability Discrimination Act 1992 (Cth) which is in similar terms to section 7 of the AD Act . The majority (Gummow, Hayne and Heydon JJ) held (at [223]) that when making the comparison for the purpose of determining whether there has been differential treatment, the circumstances attending the treatment given (or to be given) to the disabled person must be identified. Those circumstances are " all of the objective features which surround the actual or intended treatment of the disabled person by the alleged discriminator "(at [224]). Even circumstances that are connected to the person's disability, such as a propensity to exhibit violent behaviour, must be included. The comparison is between the person with a disability who exhibits violent behaviour and a person without a disability who exhibits violent behaviour.
Section 53 of the AD Act relevantly provides:
53(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 the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally to that liability.
(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.
Findings concerning discrimination
In relation to the first incident which the applicant alleges occurred on 20 May 2010, the Tribunal is not satisfied that the applicant was the subject of any discriminatory act or conduct by the respondent for the following reasons. First, Mr Stoppes denied making the statement and no person heard it being made thus the only evidence is that of the applicant. The Tribunal is not satisfied on the evidence alone of the applicant that those words were spoken. Secondly, if those words were used, there is no evidence that the language used was directed at the applicant. The circumstances claimed by the applicant are that the words were used by Mr Stoppes in response to a direction by a supervisor. While the applicant was present and gave evidence that he took offence because he walked with the aid of a walking stick, there is no obvious connection with him. There is no evidence that the applicant was deaf or that, at that time, he had "dobbed" on anyone. Further, another claim by the applicant of an exchange with Mr Stoppes which occurred later in time suggests that Mr Stoppes was not aware that the applicant was disabled.
Finally, there is no evidence that, by virtue of these words having been used by a contractor, Toll treated the applicant less favourably than another person without the applicant's disability. No comparator, real or hypothetical has been put forward by the applicant. No real or substantive detriment has been claimed or is evident from the making of these comments.
The Tribunal has reached the same conclusion in relation to the third incident, in which the applicant claimed that Mr Stoppes made comments on 16 June 2010. It is not satisfied that the comments were made by Mr Stoppes, and even if they had been made by him, the Tribunal is not satisfied there were directed to the applicant.
In relation to the fourth incident, the Tribunal is not satisfied on the basis of the applicant's evidence alone that Mr Stoppes called him a "black disabled cunt". There is some corroborative evidence of an exchange of words and the raising of a stick, however, none of those words being used.
In relation to the second incident, that is comments attributed to Grant Gibbs and told to Mr Stoppes, the Tribunal accepts Mr Gibbs evidence. He emphatically rejected the allegation and was an impressive witness.
In relation to the fifth incident, comments made on the UHF radio on 30 June 2010, there is no evidence that they were directed at the applicant and no witness was able to clearly identify the speaker or speakers. One witness speculated that the words may have been used by the applicant. The channel over which the remarks were made is a public channel. In these circumstances, the respondent cannot be found to have discriminated against the applicant by virtue of these comments having been made on a public channel by a person unknown without specific reference to the applicant.
The Tribunal dismisses the applicant's allegations of race and disability discrimination.
Victimisation
The relevant provision is as follows (s.50):
(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.
There are two time periods relevant to the applicant's claims of victimisation. First, the days or weeks after making the complaints and before being suspended from the site soon after 1 July 2010 and, secondly the period after the suspension.
The Tribunal is satisfied that the applicant brought his complaints to the attention of Toll before 22 June 2010, however, whether it was early or mid June is not clear. In any event, the Tribunal accepts the evidence of Toll that it did not offer less work to the applicant prior to suspending him on or about 1 July 2010 because of the complaints of discrimination he had made. The oral evidence of its employers was supported by Toll's contractor payment advices for the applicant's company. They reveal that in March 2010, the applicant worked for the respondent on nine days. In April 2010, he worked for eight days, in May 2010, six days and in June 2010 ten days. When coupled with the evidence, which the Tribunal accepts, that there was less work in the winter months for the delivery of Coca Cola products, the Tribunal is not satisfied that the applicant was offered less work.
In relation to the second period of time, that is after 1 July 2010 or thereabouts, the issue is whether that decision to suspend him was made on the ground of, or because of the allegations of discrimination that the applicant had made.
The Appeal Panel held in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37] that the question to be asked is whether the fact that the applicant had done " one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant."
The Tribunal is satisfied that the real, genuine or true reason for the decision made was because of the applicant's own conduct, initially in his conduct in the meeting on 1 July and then in his dealings with Mr Heap and his conduct in the meeting on 3 August. The Tribunal accepts the evidence of the minutes of each meeting that the applicant was aggressive and that others felt threatened by him. The Tribunal is satisfied that the fact that the applicant had made the complaints was not a real, genuine or true reason for the respondent's action.
The respondent investigated the applicant's complaints about words being spoken on the radio and spoke with those allegedly involved, and could not resolve them. The Tribunal is satisfied that the complaints were taken seriously and resulted in employees and contractors being reminded of their obligations in the workplace.
The applicant further alleged that the applications for Apprehended Violence Orders by Mr Stoppes and Mr Pettit were made to have him withdraw his complaints. Each of Mr Stoppes and Mr Pettit gave credible reasons for their applications. They were fearful based on actions of the applicant. There is no credible evidence that the respondent directed them to make the applications and no evidence that they were motivated by the complaints the applicant had made. It is not necessary to consider whether the making of such Orders constitutes a detriment to the applicant.
There is no evidence other than the assertion by the applicant that the work he was given was difficult to do because of his disability. The respondent denied it. The Tribunal accepts the evidence of the respondent as to the manner in which it allocated work and in the absence of evidence detailing the differences in the work he was given and the effect his disability had on performing that work, the Tribunal is not satisfied that the respondent gave the applicant work to do which was difficult for him to perform because of this disability.
The Tribunal dismisses the applicant's claims of victimisation.
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Decision last updated: 10 February 2012
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