Madukolu v Care Metaz Global Pty Ltd

[2025] NSWCATAD 58

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Madukolu v Care Metaz Global Pty Ltd [2025] NSWCATAD 58

Hearing dates:

3 February 2025

Date of orders:

10 March 2025

Decision date:

10 March 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Seymour, Principal Member
Dr M Murray, General Member

Decision:

The application is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of pregnancy – on the ground of race – employment – direct discrimination – victimisation

Legislation Cited:

Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013

Cases Cited:

FP and FQ on behalf of FR v Department of Education and Training [2003] NSWADT 68

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

O’Callaghan v Loder and the Commissioner for Main Roads [1983] 3 NSWLR 89

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Tobechukwu Madukolu (Applicant)
Care Metaz Global Pty Ltd (Respondent)

Representation:

R Gu (Agent - A Whole New Approach) (Applicant)

Solicitors:
Khan Legal (Respondent)

File Number(s):

2024/00238287

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. Tobechukwu Madukolu (the Applicant) is of Nigerian background. She was employed on a casual basis by Care Metaz Global Pty Ltd (the Respondent). The Respondent provides care services in Group Homes to persons with disability, referred to by the Respondent as ‘participants’. The Applicant was employed on a casual basis by the Respondent as a Disability Support Worker in one of the Group Homes from January 2022 to January 2023 (the Employment). From on or around October 2022, the Applicant was pregnant with her third child and gave birth to that child in May 2023.

2. The Applicant claims she was subjected to unlawful discrimination contrary to the Anti-Discrimination Act 1977 (the AD Act) by actions of employees of the Respondent, on two grounds:

1. her race, including her skin colour – she identified her race as African and/or Nigerian; and

2. her sex arising from her pregnancy.

The Applicant further claims she was subjected to unlawful victimisation because she made complaints about unlawful discrimination.

3. The Applicant made a complaint to the Anti-Discrimination Board (the ADB) on 4 January 2024. 

4. Pursuant to section 89B of the AD Act, the President accepted for investigation complaints of race discrimination, sex (pregnancy) discrimination, and victimisation against the Respondent entity, in respect of the parts of the complaint during the period 1 October 2022 to 4 January 2024 (the Complaint Period). Pursuant to section 89B(2)(a) the President also declined separate complaints against five named individuals who were employed by the Respondent.

5. Following correspondence by the ADB with the Respondent and Applicant, attempts to resolve the complaint by shuttle negotiation were unsuccessful. The President referred the matter to the Tribunal on 27 June 2024, at the request of the Applicant.

6. While the complaints against the named individual respondents were declined, it was uncontroversial that if unlawful discrimination or victimisation was established, the Respondent was vicariously liable for the conduct of its employees pursuant to s 53 of the AD Act.

Material before the Tribunal

7. The parties were directed by the Tribunal to file Points of Claim and Points of Defence. The President’s Summary of Complaint was before the Tribunal, comprised of the following documents:

1. Applicant’s original ADB complaint form and attached Statement of Complaint, both dated 4 January 2024;

2. Applicant’s response to Request for Further Information by the ADB dated 1 March 2024;

3. Respondent’s Submissions to the ADB dated 15 May 2024; and

4. Applicant’s Response to Respondent’s Submissions to the ADB (undated), with attachments.

8. The Applicant relied upon her Statement of Complaint to the ADB and exhibits and the Points of Claim, which were referred to as ‘Applicant’s Particulars of Claim’.

9. The Respondent filed written Submissions, and relied on the filed statements of three witnesses:

1. Mr Rameshwar (Omi) Roy;

2. Ms Chidinma Olisakwe; and

3. Ms Miriam Morris.

10. The Applicant was represented from the commencement of the proceedings by a workplace representative who was granted leave to appear. The Respondent was represented by a solicitor. All witnesses were cross-examined at length. Written closing submissions were filed by the parties after the conclusion of the hearing.

Race discrimination

Complaints involving Ms Fernandez – alleged racial comments

11. The Applicant’s Statement of Complaint to the ADB tendered in the proceedings before the Tribunal made allegations against a colleague, Ms Fernandez. The allegations relate to Ms Fernandez engaging in workplace bullying and making comments that constituted discrimination against the Applicant on the ground of her race (the Fernandez Allegations).

12. The Fernandez Allegations were particularised in the Applicant’s Statement of Complaint as occurring in the period from the commencement of the Applicant’s employment in January 2022 until the Applicant says she first raised a complaint about Ms Fernandez with her site supervisor Ms Kechiri Makki in August 2022. The Fernandez Allegations are outside the Complaint Period.

13. In its Submissions filed with the Tribunal on 29 October 2024, the Respondent noted the Complaint Period and that it had prepared its case accordingly, addressing matters from 1 October 2022 with no evidence or submissions on earlier matters.

14. At the commencement of the hearing, the Applicant’s representative sought leave to adduce evidence from a witness said to be relevant to the Fernandez Allegations. No statement of evidence of this witness had been filed and served by the Applicant in accordance with the Tribunal’s directions, and no other notification was given or application made until the morning of the hearing. The Applicant applied for the witness to provide evidence to the Tribunal by telephone. Upon questioning by the Tribunal, the Applicant’s representative acknowledged that he did not know what the nature of the evidence the witness would be and clarified it was sought to be adduced by way of ‘background’ to the part of the complaints that had been accepted.

15. The Respondent objected to leave being granted on two bases. First, the evidence was not directly relevant to a fact in issue in the proceedings, being by way of background only. Secondly, it would be procedurally unfair and highly prejudicial as the Respondent did not know what the nature of the evidence would be and had not filed any evidence in reply.

16. The Tribunal declined to grant leave to the Applicant to adduce the new evidence as the probative value was significantly outweighed by the serious prejudice potentially caused to the Respondent if they did not have an opportunity to consider and respond to it. The Tribunal noted that the Applicant had ample opportunity to consider and address the issue of the evidence prior to the hearing given the timetable had concluded over three months previously. Further, in the circumstances admission of the evidence would not facilitate the just, quick and cheap resolution of the real issues in the proceedings , pursuant to section 36(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

Complaint involving Mr Omi Roy – alleged inaction and threats to employment

17. The Applicant made allegations of race discrimination by Mr Rameshwar (Omi) Roy, who was a service manager of the Respondent during the Complaint Period. She alleges that she made a complaint about the conduct of Ms Fernandez to Mr Roy in November 2022, however Mr Roy did nothing to address her complaint and she was faced with ‘inaction and belittlement’ from Mr Roy. The Applicant alleges that when she raised the complaint with him, Mr Roy told her nothing would be done about Ms Fernandez, that the she should forget about Ms Ferandez’s conduct if she wanted to keep working in that Group Home, and if she didn’t like it to go back where she came from. There are other allegations involving the conduct of Mr Roy relating to sex (pregnancy) discrimination and victimisation. These are considered separately.

18. Section 7 of the AD Act provides:

7 What constitutes discrimination on the ground of race

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator—

(a)   on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

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

19. It appears the Applicant’s case is that Mr Roy’s alleged conduct constitutes direct discrimination within the meaning of s7(1)(a) of the AD Act. No evidence was lead or submissions made that the alleged conduct constituted indirect discrimination, including in respect of any requirement or condition of the Respondent in respect of receiving and responding to complaints, compliance with such requirement or condition, or its reasonableness.

20. In order to establish direct race discrimination, the Applicant has the onus of proving that she was treated less favourably by Mr Roy, compared with the way Mr Roy treated or would treat another employee not of her African or Nigerian race, in circumstances which are the same or not materially different; that the conduct alleged was on the ground of her African or Nigerian race; and that in doing so Mr Roy subjected her to detriment.

21. The Applicant alleged that Mr Roy told her that nothing would be done about her complaint about Ms Fernandez’s workplace bullying and racial comments, and he subsequently did not do anything to address her complaint. The detriment was described as Mr Roy’s ‘inaction’, ‘threat to [the Applicant’s] employment’ and ‘racial discrimination’. Accordingly, the Applicant appears to identify the detriment suffered by her as arising under section 8(2)(c) of the AD Act, namely ‘any other detriment’.

22. It is not in dispute that the Applicant is of African/Nigerian descent and this constitutes race for the purpose of s 4 of the AD Act, and that the Respondent was the Applicant’s employer. A refusal or failure to address a complaint made by an employee could conceivably constitute a detriment within s 8(2)(c) of the AD Act. However, to establish direct race discrimination, that failure or inaction must be proven to be for a reason that includes the complainant’s race.

23. The Applicant did not lead any evidence as to a how a person who was not of African/Nigerian descent who had made a complaint against another employee would have been treated by Mr Roy. Simply asserting that you have been ‘discriminated against’, in the broad sense of perceived unfair or deficient treatment, is insufficient to discharge the onus. An applicant must satisfy the Tribunal that the discrimination on the basis of race in fact occurred.

24. The Applicant’s allegations against Mr Roy rest upon a factual finding that she made the complaint about Ms Fernandez’s conduct to Mr Roy in November 2022. Her Statement of Complaint does not particularise how she ‘attempted to reach out to Mr Roy’ in November 2022 regarding her complaint about Ms Fernandez. Under cross-examination, the Applicant stated that she had notified Mr Roy of her pregnancy at the end of October/beginning of November 2022, by phone and via the Respondent’s What’s App group, for the purpose of seeking travel concessions related to her pregnancy. However, she did not state, in her Statement of Complaint or in her oral evidence, that in these alleged communications with Mr Roy she also specifically raised with him the bullying and race discrimination she was allegedly experiencing from Ms Fernandez.

25. Mr Roy denied he received a complaint from the Applicant about Ms Fernandez engaging in bullying or discriminatory conduct, in November 2022 or at any other time, either in writing or verbally. His evidence was that if he had known about it, he had scope to initiate an investigation straightaway and would have done so. He reiterated in his oral evidence that he never received any complaint about bullying or race discrimination from the Applicant, whether by telephone or through the What’s App group that was used by the Respondent during the Applicant’s employment for rostering purposes. He recalled that while the Applicant had communicated with him directly through the What’s App group once or twice, this was solely regarding rostering, and he directed her back to her team leader as the appropriate person to deal with this.

26. Under cross-examination Mr Roy denied he had received any complaint from the Applicant about the alleged conduct of Ms Fernandez. His clear and consistent evidence was that he was never made aware of any issues of bullying or discrimination by Ms Fernandez, either directly by the Applicant or indirectly by Human Resources. Mr Roy was an impressive witness. He is no longer employed by the Respondent and has no stake in the outcome of these proceedings.

27. The Tribunal prefers the evidence of Mr Roy and finds that the Applicant did not raise with him any complaint about race discrimination or other workplace conduct of Ms Fernandez, in November 2022 or thereafter during her employment.

28. As the Tribunal finds that no complaint against Ms Fernandez was received by Mr Roy from the Applicant, there is no direct evidence or basis on which to draw any inference that Mr Roy engaged in ‘inaction’ or other ‘threat to her employment’, because of the Applicant’s race or for any other reason. This complaint of race discrimination is dismissed.

Complaint involving alleged comments in January 2023

29. The Applicant’s Statement of Complaint alleged that ‘around the 5^th of January 2023, I began receiving more comments about my skin colour and race and was told ‘you could definitely come take a walk with us to stop being a fat fuck’”. Apart from the date, the alleged racial comments were not further particularised, including who is alleged to have made them.

30. It was common ground between the parties that an incident occurred in which the Applicant attended the workplace despite not being rostered to work that day and used a work laptop to send an email using a general work email address (‘the Laptop Incident’). The circumstances in which the Applicant left the workplace and the actions of various persons on the day are in dispute and are considered separately in relation to the claims of sex (pregnancy) discrimination and victimisation.

31. The date of the Laptop Incident was also not agreed. The Applicant initially stated that the Laptop Incident occurred on 22 December 2022, whereas the Respondent submitted it occurred on 5 January 2023.

32. The email from the work email address (‘[email protected]’) was sent by the Applicant at 3.41pm on 5 January 2023. In the email the Applicant states that on that day she ‘went to the roster pasted on the wall and realised I had mixed up my shift’. Further, on 5 January 2023, the Applicant’s access to the Respondent’s What’s App group chat for the Applicant’s Group Home (Kensington House) was removed by the Respondent. On 6 January 2023, the Respondent through its HR Co-ordinator responded to the email sent by the Applicant on 5 January 2023, stating that there were concerns about the Applicant’s conduct on 5 January 2023 and that they would ‘investigate this from all parties involved and get back to you’. The 6 January email advised the Applicant that her shift that day, 6 January 2023, was cancelled on full pay and she would receive a letter to respond to.

33. It is clear from the email evidence that the Laptop Incident occurred on 5 January 2023 not on 22 December 2022 or in ‘late December 2022’ as recalled by the Applicant. The Applicant was not rostered on 5 January 2023. On 6 January 2023, the day after the Laptop Incident, the Applicant’s shift was cancelled (with pay). Mr Roy confirmed in cross-examination that the Applicant’s shifts were cancelled after 5 January 2023 because she was suspended during the investigation of the Laptop Incident by HR. The Applicant’s last pay slip was for the period ending 8 January 2023. Accordingly, on the evidence before the Tribunal, the last day the Applicant could have been rostered to work and did work was before 5 January 2023 (the day of the Laptop Incident).

34. Accordingly, the Applicant’s claim that ‘around the 5^th of January 2023’ she began receiving ‘more comments’ from unnamed employees of the Respondent about her race or weight, is unsustainable.

35. This complaint of race discrimination is dismissed.

Sex discrimination (pregnancy)

Relevant legislation

36. The relevant provisions of the Act relied upon by the Applicant are as follows:

24   What constitutes discrimination on the ground of sex

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

(a)   on the ground of the aggrieved person’s sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, 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.

(1A)   For the purposes of subsection (1) (a), something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

(1B)   For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.

…

(2)   For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs–

(a)   are a woman who is pregnant and a man, or

(b)   are not of the same marital or domestic status, or

…

Complaint involving Ms Morris – alleged comments about weight

37. The Applicant alleged that ‘throughout her employment’ another Disability Support Worker, her colleague Ms Miriam Morris who worked in the same Group Home, engaged in the following conduct:

1. frequently referred to the Applicant as ‘that fat one’, and would often talk to clients about the Applicant behind her back;

2. once told the Applicant she ‘look[ed] like a donut’ while eating lunch; and

3. the bullying and jokes about her weight (apparently by Ms Morris) ‘became worse after she became pregnant’.

38. The Applicant alleges these comments constitute direct discrimination on the ground of her sex. In order to establish direct sex (pregnancy) discrimination, the Applicant has the onus of proving she was treated less favourably by Ms Morris, compared with the way Ms Morris treated or would treat another employee who was not pregnant, in circumstances which are the same or not materially different; that the conduct alleged was on the ground of her pregnancy; and that in doing so Ms Morris subjected her to detriment. The Applicant appears to identify the detriment caused by the comments as arising under section 25(2)(c) of the AD Act, namely ‘any other detriment’.

39. It was not controversial that being pregnant is a characteristic that appertains generally to women. There were however two matters that were in dispute, one legal and one factual. As a legal matter, the Respondent submitted that even if the comments about weight were made (which was denied), they do not constitute sex discrimination, as being entirely unrelated to the Applicant’s sex or pregnancy. In any event, as a factual matter, the Respondent disputed that any of the comments were made by Ms Morris.

40. A person’s physical appearance including their weight is not a protected attribute under the AD Act. The Applicant referred to the alleged comments as ‘body shaming’ and no particulars were provided of how the comments about her weight allegedly worsened after she became pregnant. Comments about a person’s weight that are unconnected with pregnancy (and thus their female sex) are not actionable per se as unlawful conduct under the AD Act. The Applicant must therefore establish a connection between the alleged comments by Ms Morris and the Applicant’s pregnancy to establish unlawful discrimination.

41. The Applicant’s oral evidence was that she told colleagues about her pregnancy in the What’s App Group, and Ms Morris would therefore have been aware of her pregnancy.

42. Ms Morris denied that she ever referred to the Applicant as ‘that fat one’. She gave evidence that at the time the Applicant was employed she (Ms Morris herself) was of larger size, and larger than the Applicant. She knew how hurtful such comments could be and would never make such comment. She did not understand the meaning of the reference to ‘looking like a donut’ and denied ever making the comment.

43. Ms Morris also denied that she knew that the Applicant was pregnant. As she did not know about the Applicant’s pregnancy, she says she could not have made comments about the Applicant’s weight that related to the Applicant’s pregnancy.

44. Ms Morris stated she and the Applicant were work colleagues who had worked together on shift no more than 10 times. She was not ‘friends’ with the Applicant and there was “no circumstance [the Applicant] would tell [Ms Morris] ‘I’m pregnant’”. Under cross-examination, Ms Morris was clear and consistent that she did not become aware of the Applicant’s pregnancy until she was notified by the Respondent of the complaint to the ADB. She was not told by the Applicant verbally, she did not see any notification by the Applicant on the What’s App Group, and did not observe that the Applicant was visibly pregnant. Her evidence was not shaken under vigorous cross-examination by the Applicant’s representative.

45. The Tribunal has also taken into consideration the consistent evidence given by Ms Olisakwe, Ms Morris and Mr Roy that the What’s App group was used only to communicate about rostering, not broader matters relating to the workplace or personal matters. This supports the unlikelihood of the Applicant sending a What’s App group message advising of her pregnancy.

46. The Tribunal finds on the balance of probabilities that Ms Morris did not make comments about the Applicant’s weight, and specifically did not make such comments after the Applicant became pregnant because she was not aware that the Applicant was pregnant.

47. This complaint of sex (pregnancy) discrimination is dismissed.

Complaint involving Mr Roy – inaction and comment

48. The Applicant alleges sex (pregnancy) discrimination involving Mr Roy as follows:

When I contacted Mr Roy …and informed him of my pregnancy I was often dismissed and belittled, and no reasonable adjustment was made for my pregnancy. He merely stated that he ‘didn’t care about’ my pregnancy.

It was apparent from the Applicant’s oral evidence that this alleged contact with Mr Roy is separate and additional to the alleged contact by the Applicant to complain to him about the Fernandez Allegations (discussed above), and the alleged ‘body shaming’ by Ms Morris.

49. It appears the Applicant’s case is that Mr Roy’s alleged conduct, of failing to make reasonable adjustments and stating he ‘did not care’ about her pregnancy when she informed him of it, constitutes direct discrimination within the meaning of s24(1)(a) of the AD Act. No evidence was led or submissions made that the alleged conduct constituted indirect discrimination.

50. To establish unlawful discrimination, the detriment in employment 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 who do not have the relevant characteristic and can include being subjected to adverse 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.

The Applicant would need to adduce evidence that Mr Roy not making positive ‘reasonable adjustments’ for a pregnancy, or making a comment indicating no more than disinterest in her pregnancy, could constitute a relevant ‘detriment’ within the meaning of section 25(2)(c) of the AD Act. However, given the factual findings made by the Tribunal that follow, it is unnecessary to determine this issue.

51. The Applicant has the onus of proving that she was treated less favourably by Mr Roy, compared with the way Mr Roy treated or would treat another employee, in circumstances which are the same or not materially different; that the conduct alleged was on the ground of her pregnancy; and that in doing so Mr Roy subjected her to detriment.

52. The Applicant’s allegation against Mr Roy rests upon a factual finding that she contacted Mr Roy and told him about her pregnancy. The Applicant’s evidence on this point was not persuasive. Under cross-examination, the Applicant stated she had notified Mr Roy of her pregnancy at the end of October/beginning of November 2022. She stated she had done this by phone and via a direct message to Mr Roy on the What’s App group, and that she had also posted a general message on the What’s App group that ‘everyone would have seen’. Her evidence on this point was vague and evasive.

53. The alleged notification to Mr Roy would have been approximately 6 – 7 weeks into the Applicant’s pregnancy. The Applicant said she told Mr Roy at such an early stage in her pregnancy for the purpose of seeking ‘travel concessions’ given her lengthy public transport commute to work. However, the Applicant had not mentioned the request for ‘travel concessions’ in her Statement of Complaint and under cross-examination she accepted that the only time she had ever actually asked for a travel ‘concession’, though not expressed in those terms, was the request to ‘rest’ at the office during the Laptop Incident on 5 January 2023 (discussed further in these reasons).

54. Mr Roy emphatically denied he had been notified of the pregnancy by the Applicant, in October/November 2022 or at all. His evidence was that the first time he became aware that the Applicant was pregnant was when the Respondent’s solicitor contacted him to advise him of the ADB Complaint, which would have been after June 2024. Mr Roy reiterated in his oral evidence that he was not notified of the pregnancy by the Applicant by telephone or through the What’s App group. As noted above in these reasons, the Tribunal has found that the nature and purpose of the What’s App group was limited to rostering. Mr Roy’s evidence was compelling, noting that he is no longer employed by the Respondent and his present employment is not impacted by the outcome of these proceedings. The evidence of Ms Olisakwe and Ms Morris was also consistent in that they had never seen a general What’s App group message from the Applicant about her pregnancy, and both denied they had been aware of her pregnancy.

55. The Tribunal prefers the evidence of Mr Roy and finds that the Applicant did not notify him of her pregnancy in October/November 2022 or at any time thereafter during her employment. As Mr Roy was not aware of the pregnancy, there is no direct evidence or basis on which to draw any inference that Mr Roy failed to make ‘reasonable adjustments’ because of the Applicant’s pregnancy, or that he made the comment as alleged that he did not care about her pregnancy.

56. This complaint of sex (pregnancy) discrimination is dismissed.

Complaint involving the Laptop Incident

57. The Applicant further claims that Mr Roy discriminated against her on the ground of her pregnancy, arising from his actions during the Laptop Incident. The Laptop Incident involved the Applicant attending the workplace on 5 January 2023, despite not being rostered to work that day, and using a work laptop. It culminated in the Applicant sending an email at 3.41pm on 5 January 2023 from the work laptop and the Applicant subsequently leaving the office.

58. The Applicant has the onus of proving that she was treated less favourably by Mr Roy, compared with the way Mr Roy treated or would treat another employee, in circumstances which are the same or not materially different; that the conduct alleged was on the ground of her pregnancy; and that in doing so Mr Roy subjected her to detriment.

59. It appears that the alleged less favourable treatment of the Applicant by Mr Roy on the ground of her pregnancy during the Laptop Incident was asking her to leave the office and saying to her “I don’t fucking care if you’re pregnant, get out”.

60. It was not in dispute that an incident occurred in which the Applicant attended the workplace despite not being rostered to work that day. The Applicant stated she had travelled to work on public transport that day in error. As set out above, the incident involved the Applicant then accessing a work laptop computer, sending an email from the Respondent’s official email address for that particular workplace, ‘[email protected]’ from that laptop, then being asked to leave the workplace. What she did during the time she was in the office, the circumstances in which she left the workplace and the actions of the Applicant, Mr Roy and Ms Olisakwe are in dispute.

61. The Applicant’s Statement of Complaint stated that the date of the Laptop Incident was ‘late December 2022’. However, the email sent by the Applicant from the laptop during the Laptop Incident was dated 5 January 2023 and the Tribunal has found, as noted previously, that the incident occurred on this date.

62. It was agreed that the Applicant attended the workplace, she was not rostered to work that day, however the Applicant then remained at the workplace for a period of time, during which she used a work laptop in the office at the Group Home and sent an email using that work laptop (the ‘5 January 2023 Email’). There is a factual dispute as to the nature of the conduct of the Applicant, Ms Olisakwe, and Mr Roy during the Laptop Incident summarised as follows:

1. The Applicant says she needed to rest after commuting to the workplace due to her pregnancy, and she was concerned about staffing issues at the workplace she observed that day namely there was one not two staff on the shift, and she sent an email to management about this concern using the work laptop and official work email address. While doing so, she was subjected to verbal aggression by Mr Roy (who was on phone loudspeaker) who said, ‘I don’t fucking care if you’re pregnant, get out’, and she was physically touched and pushed out of the office by Ms Olisakwe (who was physically present) at Mr Roy’s instruction.

2. However, Mr Roy and Ms Olisakwe (and Ms Morris who was also present) gave consistent evidence as follows:

1. the Applicant should not have been in the office or using the work laptop as she was not rostered to work that day;

2. the Applicant did not say that she needed to rest due to her pregnancy or otherwise;

3. when she was using the work laptop she was asked to stop what she was doing and leave which she declined to do, however she was not subjected to any verbal aggression or hostility by Mr Roy, or physically touched or pushed by Ms Olisakwe;

4. the Police were called because the Applicant continued to refuse to leave despite not being rostered on, and the accepted practice was that only rostered employees should ever be on the premises; and

5. the Applicant eventually left the office of her own accord after she had sent the 5 January 2023 Email.

63. The Tribunal is satisfied that the Laptop Incident occurred in the circumstances described by Mr Roy, Ms Olisakwe and Ms Morris, whose accounts in their statements were consistent and remained so under cross-examination. The Tribunal therefore finds that Mr Roy did not make the comment about the Applicant’s pregnancy as alleged, based on these accepted accounts and the previous finding that he was not aware of the Applicant’s pregnancy.

64. This claim of pregnancy (sex) discrimination is dismissed.

Victimisation

Relevant legislation

65. The Applicant alleges that the Respondent victimised her for making complaints of discrimination, pursuant to section 50(1)(c) of the AD Act:

50 Victimisation

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

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

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

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

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

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

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

66. It appears the relevant detriments alleged are as follows:

1. removal of the Applicant from the What’s App Group on 5 January 2023; and

2. ceasing providing shifts to the Applicant from 5 January 2023 and ongoing.

67. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37], the Tribunal Appeal Panel held that the relevant question to be asked is whether:

…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.

68. Accordingly, section 50 of the AD Act requires that making a complaint or complaints about unlawful discrimination is one of the reasons for the treatment, for the treatment to be found to be victimisation.

Cessation of casual shifts and removal from What’s App Group

69. The Tribunal’s findings about the Applicant’s conduct on 5 January 2023 in the Laptop Incident are relevant to a determination of the true reasons for the actions taken by the Respondent. Mr Roy’s evidence was that the only reason for cancelling the Applicant’s shift on 6 January 2023 and removing her from the What’s App Group on 5 January 2023 was the Applicant’s behaviour on 5 January 2023. He stated that these actions were unconnected with the Applicant’s pregnancy (of which Mr Roy was unaware), or complaints about discrimination (which he did not receive).

70. Mr Roy’s evidence is corroborated by the email response from the HR Co-ordinator to the Applicant on 6 January 2023, which noted ‘concerns regarding…your arrival on shift and staying for a longer period despite the knowledge you were not rostered’, and the subsequent cancellation of the shift of 6 January 2023 (on pay) while those concerns were investigated.

71. There was some evidence that the Respondent’s witnesses believed the Applicant was at the workplace on 5 January 2023 to gather information from the laptop about some allegations that had been raised with another employee on 4 January 2023. They also believed that the other employee was the biological sister of the Applicant. The Applicant consistently denied that the other employee was her biological sister, which is accepted by the Tribunal.

72. The Respondent’s witnesses’ belief about the precise nature of the relationship between the Applicant and the other employee was incorrect. However, it was one reason the Respondent’s employees held concerns about the Applicant’s activity on the laptop and the subsequent request to leave the office, namely, a belief that the Applicant was gathering information to assist the other employee. Another stated reason for concern about the Applicant’s conduct included the Respondent’s policy that a staff member not rostered to work is not to enter the Group Home.

73. These reasons (erroneous or not) are not because the Applicant was pregnant or had made complaints about race or pregnancy discrimination. All three witnesses consistently denied being aware that the Applicant was pregnant whether by her verbally informing them, via the What’s App group, or observing her being visibly pregnant.

74. Mr Roy confirmed that the Applicant accessing the laptop without sufficient reason and refusing to leave the office was a serious matter. This was supported by the calling of the Police that day. The Applicant’s access to the What’s App Group of the Group Home was removed on 5 January 2023. Mr Roy’s evidence was that this was because of the Applicant’s conduct on 5 January 2023 and consequent ‘suspension’ while HR carried out an investigation of the conduct. In the sequence of events on 5 and 6 January 2023, as evidenced by the documentary material and witness accounts, this explanation is accepted. There is no contrary evidence from which an inference can be drawn that the removal of the Applicant’s access was because she had made a complaint about unlawful race or pregnancy discrimination.

75. There was a great deal of evidence adduced by the Respondent, disputed by the Applicant, about the actions of the Applicant on 24/25 December 2022 regarding a hamper or platter provided by a relative of a participant at the Group Home. The Respondent submitted this evidence was relevant to demonstrate a pattern of the Applicant failing to follow instructions given to her by the Respondent, similar to her conduct during the Laptop Incident of refusing to leave the workplace.

69. This evidence is not directly relevant to a fact in issue. The Tribunal has accepted the evidence of the Respondent’s witnesses, that the conduct of the Applicant on 5 January 2023 was the real or genuine reason the Respondent took the actions the Applicant alleges constitute victimisation. It is therefore unnecessary to prove the Applicant engaged in incidents of other allegedly similar conduct prior to 5 January 2023.

70. For completeness, the Tribunal finds that the 5 January 2023 Email did not itself constitute a complaint by the Applicant of unlawful race or pregnancy discrimination. This is evident from a plain reading of the email itself. There is no reference in the 5 January 2023 Email to complaints about unlawful discrimination on these or any other bases, to the fact that the Applicant was pregnant, or that she needed to rest in the office because she was pregnant.

71. The Tribunal finds that the Applicant was not victimised because she had made alleged complaints about unlawful discrimination of race or pregnancy discrimination under the AD Act:

1. as at 5 January 2023 Mr Roy, who took the relevant actions, had not received any complaint from the Applicant that would disclose a contravention of the AD Act, on the ground of race or pregnancy; and

2. the Tribunal is satisfied that the true, real or genuine reason for the Respondent’s actions, in removing the Applicant from the What’s App group, and in undertaking an investigation and suspending the 6 January 2023 shift, was the Applicant’s behaviour at the workplace on 5 January 2023.

79. The complaints of victimisation are dismissed.

Conclusion

80. The Applicant bears the onus of proof, on the balance of probabilities. It is evident from the Tribunal’s findings that where there were relevant disputed facts, the Tribunal largely did not accept the Applicant’s account. Her oral evidence was in some respects inconsistent with her written statement. The timeline of events on which parts of her case relied was unsupportable on the documentary evidence. Under cross-examination, her evidence was at times evasive or contradictory and her explanations in respect of some matters, such as the disclosure of her pregnancy to obtain ‘transport concessions’, were not credible.

81. In contrast, the Respondent’s witnesses were clear and consistent in their recollections of relevant events. They maintained the accounts in their written Statements under vigorous cross-examination by the Applicant’s representative. Mr Roy emphatically denied he had received any complaint from the Applicant about the conduct of Ms Fernandez or Ms Morris, or that the Applicant had ever notified him she was pregnant. He denied making the alleged comments about the Applicant’s pregnancy, as he was not aware of it. His recollection of events on 5 January 2023 was clear and credible. Mr Roy is no longer employed by the Respondent and has no stake in the outcome of these proceedings.

82. Ms Morris and Ms Olisakwe also impressed the Tribunal as reliable witnesses. They were consistent and clear in their denials that they were ever made aware that the Applicant was pregnant via the What’s App group or other means. Ms Morris emphatically denied she had made the comments attributed to her regarding the Applicant’s weight. Both witnesses corroborated the key elements of Mr Roy’s account of the Laptop Incident. While they were reluctant to opine that the Applicant had fabricated evidence, they remained steadfast in the truthfulness of their own evidence.

83. Having found that the complaints do not establish any contraventions of the AD Act, the correct and preferable decision is for the Tribunal to dismiss the Applicant’s complaints pursuant to s 108 of the AD Act.

Order

1. The application is dismissed.

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

Registrar

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

Registrar

Decision last updated: 10 March 2025