Mansell v Centrelink (No.2)
[2009] FMCA 640
•8 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANSELL v CENTRELINK (No.2) | [2009] FMCA 640 |
| HUMAN RIGHTS – Disability discrimination – hearing disability – alleged less favourable treatment – alleged harassment – playing of radio in the workplace – leave to visit mother – exclusion from workplace activities – speaking across room – performance review – training session. |
| Disability Discrimination Act1992 (Cth), ss.4, 5, 15(2), 35(2) Evidence Act 1995 (Cth), s.140(1) & (2). Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.46PH(1)(i) & 46PO |
| ACCC v Maritime Union of Australia (2001) 114 FCR 472; [2001] FCA 1549 Briginshaw v Briginshaw (1938) 60 CLR 336 Catholic Education Office v Clarke (2004) 138 FCR 121, [2004] FCAFC 197 IW v City of Perth (1997) 191 CLR 1 Macedonian Teachers’ Assn of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 Mansell v Centrelink [2008] FMCA 127 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 Qantas Airways v Gama (2008) 167 FCR 537; [2008] FCAFC 69 Re Dellow’s Will Trusts [1964] 1 WLR 451 Rejfek v McElory (1965) 112 CLR 517 Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378; [2008] FCA 702 SZIRS v Minister for Immigration & Anor [2007] FMCA 214 |
| Australian Concise Oxford Dictionary The Concise Oxford Dictionary of Current English (7th Edn) (Oxford: Oxford University Press, 1982) |
| Applicant: | PAULINE ANNETTE MANSELL |
| Respondent: | CENTRELINK |
| File Number: | PEG 63 of 2007 |
| Judgment of: | Lucev FM |
| Hearing dates: | 13-14 December 2007; 21-22 April 2008 |
| Date of Last Submission: | 9 July 2008 |
| Delivered at: | Perth |
| Delivered on: | 8 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Aldrich and Ms C Samarasinghe, and later Ms CH Thompson |
| Solicitors for the Applicant: | Alison & Associates |
| Counsel for the Respondent: | Ms P Giles and Ms S Oliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 63 of 2007
| PAULINE ANNETTE MANSELL |
Applicant
And
| CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Pauline Annette Mansell,[1] is an employee of the respondent, Centrelink.
[1] “Ms Mansell”.
Ms Mansell, who suffers from a hearing disability, alleges unlawful discrimination and harassment against her by Centrelink in contravention of the Disability Discrimination Act 1992 (Cth).[2]
[2] “DD Act”.
Background facts and matters not in dispute
Centrelink is a Commonwealth Government entity responsible, in broad terms, for the provision of various social security and welfare payments to those entitled to those payments.
Ms Mansell was employed by Centrelink as a Customer Services Officer on 14 February 2000. Following a medical assessment in 2002 and difficulties with conversing with clients in open plan offices where there was significant background noise she was re-appointed to mail room duties from September 2003. From May 2004 until December 2005 Ms Mansell worked in the centralised mail team in the Spearwood and Forrest Place offices of Centrelink. Ms Mansell’s team leader in the mail room from November 2004 to August 2005 was Pauline Dwyer.[3] Essentially the function of the mail room was to receive, open and sort mail for future action by appropriate employees of Centrelink.
[3] “Ms Dwyer”.
The conduct the subject of the discrimination and harassment claims is alleged to have occurred in the Spearwood mail room under Ms Dwyer’s supervision.
There is no dispute that Ms Mansell has a hearing disability. She has otosclerosis and also suffers from tinnitus. There is no dispute that Centrelink were at all relevant times aware of Ms Mansell’s hearing disability.
Ms Mansell’s mother passed away, in England, on 12 February 2005.
The discrimination claim is a claim of direct discrimination, not indirect discrimination.[4]
[4] See Mansell v Centrelink [2008] FMCA 127 (“Mansell (No.1)”).
Points of Claim and Response
An Outline of Revised Points of Claim[5] dated 13 December 2007 sets out Ms Mansell’s claim.
[5] “Revised Points of Claim”. Ms Mansell was granted leave to file the Revised Points of Claim on 21 April 2008. An earlier application to amend points of claim in accordance with a document lodged in the Registry on 5 February 2008 was dismissed: Mansell (No.1).
Ms Mansell says that she has been unlawfully discriminated against contrary to s.5 of the DD Act, asserting that:
a)she suffers from otosclerosis and tinnitus, which are conditions resulting in a partial loss of bodily functions (namely, hearing), and she therefore has a disability;
b)she has been treated less favourably than others; and
c)the less favourable treatment is on the grounds of her disability.
Ms Mansell alleges that Centrelink has discriminated against her in one of the ways specified in s.15(2) of the DD Act by either:
a)denying her access, or limiting her access, to opportunities for promotion, transfer or training, or to any other benefits associated with her employment contrary to s.15(2)(b) of the DD Act; or
b)subjecting her to any other detriment, contrary to s.15(2)(c) of the DD Act.
Ms Mansell alleges instances of less favourable treatment, namely the following:
a)a radio being played loudly in the workplace despite her inability to hear;
b)a negative performance review meeting conducted by Ms Dwyer; and
c)a training session in which her disability was discussed.
Ms Mansell submits that this less favourable treatment is on the grounds of her disability because:
a)In relation to the radio:
i)she informed Ms Dwyer, who was aware of her inability to hear in the presence of loud background noise, to turn the radio down;
ii)while the radio was turned down when Ms Mansell asked, Ms Dwyer did not desist in playing the radio at a volume more suited to other members of the team; and
iii)this was directly discriminatory to Ms Mansell because of Ms Dwyer’s knowledge that Ms Mansell could not hear with the radio turned up.
b)in the performance review meeting Ms Dwyer rated her badly because she did not understand how Ms Mansell’s disability affected her performance; and
c)her disability was the specific target of public discussion, confronting and belittling her, in the training session, which was an inappropriate forum for such a discussion.
Ms Mansell submits that Centrelink’s actions in the performance review meeting limited her access to opportunities for promotion, and caused other detriment in respect to:
a)the playing of the radio loudly; and
b)the training session where she says she was targeted.
Ms Mansell submits that Ms Dwyer is an agent of Centrelink and that Centrelink is vicariously liable for her actions.
Ms Mansell also alleges that she was subjected to harassment contrary to s.35(2) of the DD Act. Ms Mansell alleges that the harassment by Centrelink in respect to her disability was constituted by Ms Dwyer doing the following:
a)excluding Ms Mansell from workplace activities;
b)talking to Ms Mansell from across the office knowing that she could not hear;
c)failing to prevent a radio being played loudly in the workplace;
d)refusing to allow Ms Mansell to visit her mother who was gravely ill;
e)referring to hearsay and unsubstantiated allegations in the performance review meeting; and
f)intimidating, criticising and humiliating her with reference to her disability in the training session.
Centrelink denies that it discriminated against Ms Mansell or harassed her because of her disability.
In relation to the instances of less favourable treatment giving rise to discrimination Centrelink:
a)admits that a loud radio can interfere with a palliative hearing device such as that used by Ms Mansell to assist with her disability but denies her allegation and says that the radio was turned down following her requests to do so;
b)says that the performance review conducted by Ms Dwyer was a normal standard performance review and not a negative one and that it was no different to performance reviews for other employees; and
c)says that the training session discussed Ms Mansell’s disability only because she raised it as a false excuse for leaving the room.
In relation to the allegations of harassment they too are denied by Centrelink, and Centrelink in particular says that:
a)it denies that Ms Mansell was excluded from workplace social activity on the basis of her disability;
b)Ms Mansell was, on occasion, spoken to across the office, but that:
i)Ms Dwyer was unaware that she was having difficulty hearing what was said; and
ii)Ms Dwyer did not always speak to her from across the room;
c)the radio was turned down following Ms Mansell’s request;
d)it denies harassment of Ms Mansell during a performance review meeting, and says that the allegations are not connected in any way with Ms Mansell’s disability;
e)it denies that Ms Mansell was intimidated, criticised or humiliated in front of her colleagues at the team training session which was facilitated by a professional facilitator engaged by Centrelink; and
f)it did not deny Ms Mansell leave to visit her mother,
The Legal Principles
Legislation
The DD Act provides, relevantly, that:
a)it is unlawful for an employer to discriminate against an employee on the grounds of the employee’s disability; and
b)that it is unlawful for an employer to harass an employee in relation to a disability.
The relevant provisions of the DD Act are set out below:
4 disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
…
5 (1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
…
15 (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
…
35 (2) It is unlawful for a person to harass another person who:
(a) is an employee of a person by whom the first-mentioned person is employed; and
(b) has a disability;
in relation to the disability.
Under s.5 of the DD Act, Ms Mansell must show that:
a)she has a disability (which is conceded);
b)because of her disability, Centrelink treated her less favourably than they treated, or would have treated, a person without the disability, in similar circumstances.
Ms Mansell must also show that, in contravention of s.15(2) of the DD Act, Centrelink, or a person acting or purporting to act on behalf of Centrelink (relevantly, Ms Dwyer):
a)denied Ms Mansell access to a benefit associated with her employment;[6] or
b)subjected Ms Mansell to any other detriment.[7]
[6] DD Act, s.15(2)(b)
[7] DD Act, s.15(2)(d)
In respect to a claim under s.35 of the DD Act, an applicant must show:
a)she has a disability;
b)she was harassed;
c)the harassment was in relation to the applicant’s disability; and
d)the harasser and the applicant were both employed by the same employer.
General principles in the application of the DD Act
Consistent with its nature as beneficial and remedial legislation[8] the DD Act is to be given a “fair, large and liberal” interpretation, rather than an interpretation which is “literal or technical”.[9]
[8] Macedonian Teachers’ Assn of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 29 per Weinberg J
[9] IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J
The High Court found that the appropriate comparator for the purposes of the test in s.5(1) of the DD Act is a person without the relevant disability.[10] In considering this matter the court must look to the treatment of other members in Ms Mansell’s workplace who did not have a hearing disability.
[10] Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 (“Purvis”)
The Court must determine whether there has been discrimination in contravention of the DD Act, and particularly whether Ms Mansell’s hearing disability was a reason for the allegedly discriminatory conduct.[11]
[11] Sterling Commerce (Australia) Pty Ltd v Iliff (2008) 173 IR 378 at 393 per Gordon J; [2008] FCA 702 at para.48 per Gordon J
Intent is not a necessary element for Centrelink to be liable for breach of the DD Act. The DD Act may be breached as a consequence of mistakes made in good faith, even if the intentions of the party in breach were to provide an appropriate, caring and skilled response to the needs of a person with a disability.[12]
[12] Catholic Education Office v Clarke (2004) 138 FCR 121 at 136 per Sackville and Stone JJ, [2004] FCAFC 197 at para.67 per Sackville and Stone JJ
Section 15(2) of the DD Act does not define “benefit”. Its general meaning is “favourable or helpful factor or circumstance”.[13] In the case of Ms Mansell’s employment, and consistent with a fair, large and liberal interpretation of the DD Act, Ms Mansell submits that “benefit” arguably includes:
a)leave, including leave at an appropriate time;
b)access to appropriate supervision;
c)access to a reasonably objective performance review; and
d)access to a reasonably happy workplace, free from harassment.
[13] Australian Concise Oxford Dictionary
Similarly, under s.15(2) of the DD Act, “detriment“ is not defined. Its general meaning is “harm, damage” or “something causing this”.[14] In the case of Ms Mansell’s employment, and consistently with a fair, large and liberal interpretation of the DD Act, Ms Mansell submits that “detriment” arguably includes:
a)subjecting her to a harmful environment, that is, one in which the radio was played in the knowledge that it caused particular discomfort to her by reason of her tinnitus and which interfered with the proper working of her hearing aid;
b)requiring her to work in an environment where her supervisor treated her with disdain; and
c)subjecting her to humiliation and ridicule amongst her work colleagues.
[14] Australian Concise Oxford Dictionary
In considering s.35 of the DD Act, “harassment” is not defined in the Act itself. Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter.[15] In the case of Ms Mansell’s employment, and consistent with a fair, large and liberal interpretation of the DD Act, Ms Mansell argues that “harassment” arguably includes some or all of the following:
a)excluding her from the workplace Secret Santa activities;
b)Ms Dwyer persisting in talking to her from across the workplace, despite Ms Dwyer’s knowledge that the applicant suffered from a hearing impairment;
c)persistence in playing a radio in the mail room which interfered with her tinnitus. thereby causing her considerable discomfort;
d)between December 2004 and January 2005, refusing to allow her request for leave; and
e)subjecting her to humiliation and ridicule in front of her colleagues at the training session.
[15] ACCC v Maritime Union of Australia (2001) 114 FCR 472 at 485 per Hill J; [2001] FCA 1549 at para.60 per Hill J
Ms Mansell need not prove that she believes that the behaviour complained of was done as a result of her disability. The test for whether the DD Act is breached is an objective test.[16] Regard therefore can be had to evidence from Ms Mansell as to whether she considers that the conduct complained of was done as a result of her disability.
[16] Purvis
Evidence – onus and standard of proof
Ms Mansell bears the onus to prove her claim.
The applicable standard of proof is on the balance of probabilities,[17] with the Court being obliged to take into account in deciding whether it is satisfied that the case is being proved on the balance of probabilities, the following matters:
a)the nature of the cause of action or defence; and
b)the nature of the subject-matter of the proceedings; and
c)the gravity of the matters alleged.[18]
[17] Evidence Act 1995 (Cth), s.140(1) (“Evidence Act”)
[18] Evidence Act, s.140(2)
In this case the nature of the cause of action is a human rights complaint founded on s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)[19] which comes before the Court following the termination of the complaint by the President of the Human Rights and Equal Opportunity Commission. Given the nature of such complaints it is sometimes the case that they lack substance, but it is also the case that, particularly with acts of discrimination, they can occur without any intention on the part of the person breaching the relevant principles to do so.[20]
[19] “HREOC Act”
[20] Qantas Airways v Gama (2008) 167 FCR 537 at 575 per Branson J; [2008] FCAFC 69 at para 133 per Branson J (“Gama”)
The subject matter of the proceedings is, at set out above, an allegation of discrimination and harassment on the basis of Ms Mansell’s hearing disability.
The gravity of the issue is a circumstance which the Court must take into account when determining whether or not the burden of proof has been discharged, and the more serious the issue of which proof is required the more cogent or clear the evidence needed to establish it.[21] In Gama one qualification appears to have been added, namely that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary not only according to the nature of what is sought to be proved, but also the circumstances in which it is sought to be proved.[22]
[21] Gama FCR at 574 and 576-577 per Branson J; FCAFC at paras.128 and 137-139 per Branson J; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ; Rejfek v McElory (1965) 112 CLR 517 at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 per Dixon J; Re Dellow’s Will Trusts [1964] 1 WLR 451 at 454-455 per Ungoed-Thomas J; SZIRS v Minister for Immigration & Anor [2007] FMCA 214 at para.50 per Lucev FM
[22] Gama FCR at 577 per Branson J; FCAFC at para.139 per Branson J (with whom French and Jacobson JJ generally agreed in this respect: Gama FCR at 571 per French and Jacobson JJ; FCAFC at para.110 per French and Jacobson JJ)
Evidence – witnesses and credibility
Evidence was led on behalf of Ms Mansell from the following persons:
a)Ms Mansell;
b)Dr Andrew Ong, Ms Mansell’s treating general practitioner;
c)Ms Silvane Vogiatzakis, an injury management consultant and senior psychologist involved in the treatment of Ms Mansell (but only from January 2007);
d)Dr Stephen Jay Proud, a consultant psychiatrist and fellow of the Royal Australian and New Zealand College of Psychiatrists, who prepared a psychiatric assessment and report on Ms Mansell dated 10 March 2006;[23]
e)Ms Mansell’s daughter, Louise Marie Bois Mansell;
f)Graham McDonald Taylor, a clinical psychologist, who prepared a series of reports relating to Ms Mansell between June 2006 and October 2007;[24]
g)Leisa Hutchings, a Centrelink employee, a “National Union Official”; and
h)Jarrah Sylvia Janis Lee, the daughter of a friend of Ms Mansell.
[23] The psychiatric assessment and report is Exhibit A3
[24] The reports are Exhibit A5
The Court has disregarded:
a)paragraphs 6-8 and 11 of Ms Mansell’s daughter’s Affidavit as inadmissible hearsay;
b)paragraphs 8-13 of Ms Hutchings’ Affidavit as either inadmissible hearsay or prejudicial unsubstantiated comment; and
c)all of Ms Lee’s Affidavit as irrelevant.
The Court has also placed very limited weight on Exhibit A11, an email from Ms Mansell to Ms Hutchings, dated 28 March 2005, but relating to events on or before 10 February 2005 in relation to
Ms Mansell’s leave and performance review. For reasons set out in more detail below the Court is of the view that the email is likely to be unreliable because of Ms Mansell’s propensity to hypersensitivity, to mis-read situations and to give an exaggerated interpretation of events. The fact that it was written at least six weeks after the relevant events, and after her mother had passed away, is, in the Court’s view, only likely to contribute to that unreliability. Further, it was a document not annexed to any affidavit, nor provided until re-examination of Ms Mansell, which effectively precluded her from being cross-examined on it.Evidence was led for Centrelink from the following:
a)Dean Phillip Ladiges;
b)Pauline Elizabeth Dwyer, Ms Mansell’s team leader/supervisor in the mail room;
c)
Andrea May Craze, a team leader (upper) with Centrelink and
Ms Dwyer’s direct supervisor from June 2005 until approximatelyMarch 2006;
d)Mark Anthony Read, an area business manager with Centrelink; and
e)Rebecca Beatrice Sciascia, a customer service officer with Centrelink, who from June 2005 until 2 April 2007 was a customer service officer in the mail team at Spearwood.
There were minor amendments to the affidavits of Ms Dwyer, Mr Read and Ms Sciascia. Paragraphs 7, 8 and 10 of Ms Sciascia’s Affidavit were struck out, by consent. Annexures PD4 and AC1 to Ms Dwyer’s Affidavit and Ms Craze’s Affidavit respectively were objected to, and whilst the Court has not formally struck them out, it has not relied on those annexures in any way.
[25] There are other conflicts, but of a more minor nature, and they are dealt with in the consideration of the issues below.
The evidence discloses significant conflict between what is said in relation to the alleged conduct by Ms Mansell on the one hand, and
Ms Dwyer on the other.[25] The question arises as to which of Ms Mansell or Ms Dwyer is the more credible witness. To assist in determining this issue the Court has had regard to the evidence of Dr Proud, the consultant psychiatrist, and Mr Taylor, the clinical psychologist, both of whom were cross-examined by Counsel for Centrelink.Ms Mansell submitted that the medical evidence from Dr Proud and
Mr Taylor was irrelevant because there was an admission with respect to her hearing disability. However, the medical experts were called by Ms Mansell, and it was she who put their reports into evidence, and she who subpoenaed them to attend. Their evidence was probably considered relevant to the issue of damages by those initially advising her. In those circumstances, it is perhaps surprising that it was submitted that the evidence from the medical experts was now said to be irrelevant.
In the Court’s view, the evidence of Dr Proud and Mr Taylor was of critical assistance to the Court in assessing Ms Mansell’s credibility and the weight that it ought to attach to her evidence.
In his report Dr Proud under the heading “Summary and Assessment” had this to say about Ms Mansell:
“Ms Mansell is a 55 year old woman who appears to be suffering from an Adjustment Disorder with anxiety and depression and, more recently, panic attacks. The Adjustment Disorder appears to have arisen from a series of conflicts between her and Ms Dwyer at her workplace and Ms Mansell’s personality traits (avoidance of conflict, difficulty showing her true feelings) appear to be exacerbating the situation. I also wonder whether Ms Mansell has truly grieved her mother’s death (she stated she has not) and if this is also contributing to her labile mood.”[26]
[26] Exhibit 3, page 4
A “labile mood” is one which is “unstable”.[27]
[27] The Concise Oxford Dictionary of Current English (7th Edn) (Oxford: Oxford University Press, 1982) at page 558
Dr Proud was cross-examined and in cross-examination said that:
a)Ms Mansell had an avoidance personality trait, characterised by difficulty accepting, feeling, recognising, appreciating and communicating the true emotional response and cognitive response to a situation;
b)the implications of having an avoidance personality trait were an inability to deal with situations as they present there and then, but going away and stewing on the situation and getting quite upset at a later date when things “crack”;
c)a propensity to mis-read situations, be hypersensitive to situations, and experience more distress than a more robust person might, and to over ascribe hurt when none was meant.[28]
[28] Transcript at 75
Dr Proud said that it was possible that a person with Ms Mansell’s personality trait might exaggerate another’s motives or conduct and the duration of another’s motives or conduct.[29]
[29] Transcript at 75-76
Mr Taylor, the clinical psychologist, agreed with Dr Proud’s diagnosis that Ms Mansell suffered from an adjustment disorder as a consequence of her perceptions of a workplace conflict, complicated by her own personality traits.[30] Mr Taylor did not agree that possible unresolved grief over Ms Mansell’s mother’s death might also have made a contribution to the adjustment disorder.[31] Mr Taylor agreed that Ms Mansell had difficulty seeing conflict from anyone else’s perspective but her own at certain times,[32] and agreed that she was very easily emotionally aroused when talking about some work-related matters.
[30] Transcript at 135-136
[31] Transcript at 136
[32] Transcript at 136
In a report prepared in October 2007 Mr Taylor made the following observations concerning Ms Mansell’s reaction to two events which had triggered in her a stress reaction:
“The two events that triggered her stress reaction were relatively benign, and would not normally upset the average person. A colleague was involved in a conversation with another person and did not acknowledge her greeting. She took this to mean that he had been involved by Centrelink in her case. In another event a staff member came to the mail room with a letter to be sent by registered post. It is not her duty to attend to such matters, and the man was frustrated that she would not take his mail. She acknowledged that no abusive words were uttered, and yet she described the incident as “he was attacking me”, “he abused me”. When I gently tried to challenge this exaggerated interpretation of the events then it was me who was “taking their side”.”[33]
[33] Exhibit A5, report of 23 October 2007
The expert psychiatric and psychological evidence is indicative of
Ms Mansell being:
a)hypersensitive and experiencing greater distress than a normal person might by reason of her personality trait;
b)ascribing hurt when none was meant;
c)mis-reading situations; and
d)giving an exaggerated interpretation of events.
The above description of Ms Mansell’s personality and likely reaction to events is consistent with her conduct during incidents which form the basis for her allegations of discrimination and harassment, and especially:
a)the allegation of exclusion from workplace activities;
b)the allegations related to the training session;
c)the allegations related to the performance review; and
d)the allegations concerning leave to visit her mother,
each of which is discussed further below.
The Court has therefore come to the view that with respect to
Ms Mansell’s evidence, unless it is independently corroborated, or the subject of no significant dispute, it must be treated with some caution.
Ms Dwyer, who spent more than a day in the witness box, struck the Court as a no-nonsense person, focused on getting the work done, and with a propensity to be off-hand or abrupt, perhaps lacking sympathy but not callous. She generally spoke plainly without pretension, and said what it was that she did and did not remember or recall. As might be expected in the face of a prolonged examination by competent Counsel in relation to events that occurred two and a half to three years prior to her giving evidence there were minor inconsistencies in her evidence. Overall, however, the Court sees no cause to doubt her evidence.
Therefore, in the event of any conflict between the evidence of
Ms Mansell and Ms Dwyer the Court will generally prefer the evidence of Ms Dwyer as being more accurate.
Consideration of issues
The issues to be considered in this matter are those that were pleaded in the Revised Points of Claim, and no more. The Court makes that point in this case because the content and finalisation of points of claim were contested, and subject to scrutiny and clarification in the proceedings.[34] Those issues are set out below.
[34] Mansell (No. 1); Transcript at 141-142 and 206
Playing of radio in workplace
Ms Mansell says that by reason of a radio being “played loudly”[35] in the workplace she was discriminated against because of her disability and given less favourable treatment.
[35] Revised Points of Claim, para.5(i)
Centrelink admits that a loud radio would interfere with Ms Mansell’s hearing aid. Centrelink says that the radio was turned down whenever Ms Mansell requested that that occur.
It is common ground that the radio was on a filing cabinet near the desk of Ms Dwyer,[36] and that Ms Dwyer knew that Ms Mansell had a hearing impairment.[37]
[36] Transcript at 39 and 250
[37] Transcript at 239 and 247-248
The Court finds that:
a)the radio was on frequently, and probably daily;[38]
[38] Transcript at 54, 250 and 256
b)
the volume of the radio was not a constant problem for
Ms Mansell, but when the volume was too loud she would ask for the volume to be turned down;[39]
c)Ms Mansell first asked that the radio be turned down in December 2004;[40]
d)the radio was played loudly two to three times a week;[41]
e)whenever Ms Mansell asked for the radio to be turned down, it was turned down;[42]
f)Ms Mansell never asked for the radio to be removed;[43] and
g)because other employees said they could not hear the radio when it was turned down, Ms Mansell began to feel uncomfortable asking for it to be turned down, and therefore, seemingly at some stage at about or after mid-2005,[44] Ms Mansell began turning her hearing aid off to avoid the problem, but did so discreetly, and did not inform anyone that she was doing so when she did so (as opposed to after she had done so) or that her doing so was related to the radio volume.[45]
[39] Transcript at 54
[40] Transcript at 48 and 50
[41] Transcript at 54; Ms Sciascia’s Affidavit at para.4
[42] Revised Points of Claim, para.6(i); Transcript at 55 and 256-257; Ms Dwyer’s Affidavit at para.9 and annexure PD1; Ms Sciascia’s Affidavit at paras.4 and 5
[43] Transcript at 63
[44] Ms Sciascia said that Ms Mansell was still “regularly” asking for the radio to be turned down after June 2005 which was when Ms Sciascia arrived at the Spearwood mail room: Ms Sciascia’s Affidavit at para.4
[45] Transcript at 54 and 55-56 and 248; Ms Dwyer’s Affidavit at para.10; Ms Sciascia’s Affidavit at para.6
The evidence was that the radio was played because Ms Dwyer and other employees in the mail room liked to listen to it.[46] That is, those employees listened to the radio whilst carrying out routine clerical and sorting work in the mail room. That much was really not disputed. In the Court’s view, those facts establish the real reason the radio was played in the workplace, namely, because employees, including
Ms Dwyer, wanted to listen to it.
[46] Transcript at 251-252; Ms Sciascia’s Affidavit at para.3
Apart from Ms Mansell asking for the radio to be turned down, a request which Ms Mansell’s fellow workers complied with whenever it was made, Ms Mansell did not otherwise contemporaneously complain about this issue. Ms Mansell was unable to explain why she did not raise it or complain to management or her union or her fellow employees about the issue earlier.[47]
[47] Transcript at 56-58
Ms Mansell must establish that the radio was “played loudly” because of her disability. The evidence does not establish this. There is no evidence sufficient to establish this fact to the required standard of proof. It has not been established that the notional employee without a hearing impairment who might have required the radio not be played loudly (which is the relevant factual position for comparative purposes) would have been treated more favourably than Ms Mansell. Ms Dwyer’s evidence, which the Court accepts, was that had any employee asked for the radio to be turned down she would have done so.[48] Ms Mansell cannot therefore establish discrimination because of her disability by reason of the radio being played loudly in the workplace.
[48] Ms Dwyer’s Affidavit at para.9
It is also alleged that the failure to prevent a radio being played loudly in the workplace constituted harassment in respect to Ms Mansell’s hearing disability.
There is no evidence that warrants the Court concluding that the radio was played loudly to harass Ms Mansell, or that the reason for the radio playing was “in relation to” Ms Mansell’s disability. If anything, the evidence of Ms Mansell’s own actions, at the time, indicate otherwise, in that she did not complain about the radio issue until months later. Centrelink, and more particularly the employees in the mail room, were not, as suggested in Ms Mansell’s submissions, “cavalier” on this issue. If anything, the employees concerned sought not to harass Ms Mansell, and agreed to and did turn the radio down if Ms Mansell complained that the volume was too loud. In any event, the evidence is that the real reason the radio was played was because Ms Dwyer and other mail room employees liked to listen to it, not that it was played to trouble Ms Mansell.
In the circumstances, the Court concludes that Ms Mansell was not subjected to harassment under s.35(2) of the DD Act by reason of the loud playing of the radio in the workplace.
Leave to visit mother
Ms Mansell alleges that she was unlawfully harassed because she says she was refused leave to visit her mother who was gravely ill.
Ms Mansell’s first application for leave was made on 17 December 2004, in which she applied formally for leave via Centrelink’s Infolink on Centrenet to take leave from 2 to 20 May 2005.[49] This leave application was not discussed with Ms Dwyer.[50] Ms Dwyer refused the leave application.[51] She did so because it was made too far in advance of the leave.[52] Although Ms Dwyer had not told Ms Mansell so (she had been Ms Mansell’s supervisor for about a month at this stage) that was her usual practice, unless the person making the leave application spoke to her and raised circumstances which warranted further consideration.[53] Ms Mansell did not do this. Ms Mansell acknowledged that Ms Dwyer told her to apply again closer to the time at which the leave was sought to be taken. Ms Mansell said nothing to Ms Dwyer, even at that stage, about the reason for which the leave was to be taken.
[49] Ms Mansell’s October 2007 Affidavit at para.25 and attachment J; Ms Dwyer’s Affidavit at para.11
[50] Ms Dwyer’s Affidavit at para.13; Transcript at 262
[51] Ms Mansell’s October 2007 Affidavit at para.25 and attachment K; Ms Dwyer’s Affidavit at para.11
[52] Ms Dwyer’s Affidavit at para.14
[53] Ms Dwyer’s Affidavit at para.14; Transcript at 262-263
Ms Mansell said that the reason for the application to take leave from
2 to 20 May 2005 was to attend her mother’s 83rd birthday, which was expected to be her mother’s last birthday.[54] At the time the application was made her mother’s condition was “stable”.[55] Again, none of this was communicated to Ms Dwyer by Ms Mansell.
[54] Ms Mansell’s October 2007 Affidavit at para.25; Transcript at 66
[55] Transcript at 66
In February 2005 Ms Mansell took two days of flex leave (4 and 7 February 2005) to allow her to deal with moving house and unpacking.[56]
[56] Mr Ladiges Affidavit, annexure DL3; Exhibit R2; Transcript
It was not until 10 February 2005 that Ms Mansell requested leave to visit her mother, a request which was granted with the leave due to commence on 21 February 2005. Ms Mansell then:
a)took personal leave on 14 February 2005;
b)worked on 15 and 16 February 2005 and part of 17 February 2005;
c)took personal leave for part of 17 February 2005 and all of 18 February 2005; and
d)took a combination of recreation and flex leave from Monday 21 February 2005 to Friday 18 March 2005.[57]
[57] Exhibit R2
In circumstances where:
a)
the 17 December 2004 application for leave in May 2005 was rejected for purely operational reasons, in accordance with a standard practice adopted by Ms Dwyer, and at a time when
Ms Mansell’s mother’s condition was “stable”;
b)an application for flex leave related to moving house and unpacking was approved in February 2005; and
c)no formal request for leave related to Ms Mansell’s mother’s illness or eventual death was made until at least 10 February 2005 and when made was approved without delay,
the only remaining factual issue related to the leave applications is whether any informal oral request for leave on the basis of her mother’s illness was made by Ms Mansell to Ms Dwyer in the intervening period between 17 December 2004 and 11 February 2005.
Ms Dwyer says that when Ms Mansell first told her that her mother was gravely ill, she encouraged her to visit her mother as soon as she could.[58] Ms Mansell said that Ms Dwyer did not say this, and that the event did not occur.[59] Ms Dwyer was quite emphatic and gave detailed evidence under persistent cross-examination concerning the conversation and events surrounding and following the conversation.[60] In particular Ms Dwyer said that:
a)Ms Mansell raised, at some point, wanting to visit her mother because of her mother’s illness;[61]
b)she knew that Ms Mansell was concerned about her mother’s illness;[62]
c)she had a specific recollection of discussing Ms Mansell’s mother’s illness with her whilst opening the mail one morning;[63]
d)she had a specific recollection of telling Ms Mansell words to the effect that if her mother was sick then Ms Mansell needed to go over to England;[64]
e)she recalled Ms Mansell telling her that she was unable to leave straight away because she had nobody to look after her cats;[65]
f)she specifically recalled Ms Mansell telling her that her daughter was in Melbourne and that she was waiting for her to return so that she could look after the cats;[66]
g)when she had a discussion with Ms Mansell about her mother being really ill, Ms Mansell “wasn’t prepared to go at that stage”;[67]
h)[frankly admitted that] she was concerned about the staffing situation because another employee, Ms Morton, was away, and that there was no-one to replace Ms Mansell if she went on leave, which would have “been difficult, but not impossible” to manage.[68]
[58] Ms Dwyer’s Affidavit at paras.16-18; Transcript at 264
[59] Transcript at 65
[60] Transcript at 262-272
[61] Transcript at 263 and 266
[62] Transcript at 263 and 266
[63] Transcript at 264
[64] Transcript at 264-265
[65] Transcript at 265
[66] Transcript at 265-266 and 269
[67] Transcript at 267
[68] Transcript at 271 and 267-270
The reference to Ms Mansell telling Ms Dwyer that her daughter was in Melbourne is curious. It is apparent from the evidence that
Ms Mansell’s daughter was not in Melbourne at the relevant time.[69] This does not preclude the possibility that Ms Mansell did tell
Ms Dwyer that her daughter was in Melbourne, or that Ms Dwyer had a mistaken but genuine belief that she was told this. Ultimately, the Court does not consider that this issue is so significant as to affect the remainder of Ms Dwyer’s evidence on this issue.
[69] Ms LMB Mansell’s Affidavit at para.5
For reasons set out above, Ms Dwyer’s evidence generally is to be preferred to that of Ms Mansell, but in relation to this issue
Ms Dwyer’s evidence about the nature of the conversation, and her reaction to it (and in particular her telling Ms Mansell that she ought to visit her mother) is both plausible and believable. The Court therefore does believe that Ms Dwyer did tell Ms Mansell that she ought to visit her mother as soon as she could.
Ms Mansell says that as her mother’s condition worsened she sought permission from Ms Dwyer during January 2005 for leave, but her requests were refused. Specifically, Ms Mansell says that:
a)on 17 January 2005 on hearing that her mother had had two or three falls, and possibly another stroke, she told Ms Dwyer that her mother was critically ill and that she would like leave to go and see her, but that Ms Dwyer told her she could not take leave as there was no-one to replace her;[70]
b)on 19 January 2005 on hearing that her mother had had a second stroke, she told Ms Dwyer that her mother had suffered a second stroke, that her health was deteriorating and that she would like leave to go and see her, but that Ms Dwyer again told her she could not take leave as there was no-one to replace her;[71]
c)on 31 January 2005 on hearing that her mother had suffered a heart attack, she told Ms Dwyer that her mother had suffered a heart attack and that she was “extremely worried” about her deteriorating health, but that Ms Dwyer “just shrugged”;[72]
d)on 10 February 2005 on hearing that her mother had developed pneumonia and was not expected to survive, she attempted to tell that to Ms Dwyer who cut her off and told her that the mail was her priority.[73]
[70] Ms Mansell’s October 2007 Affidavit at paras.29-30
[71] Ms Mansell’s October 2007 Affidavit at paras.32-33
[72] Ms Mansell’s October 2007 Affidavit at paras.34-35
[73] Ms Mansell’s October 2007 Affidavit at paras.36-37
The Court notes that it is not asserted by Ms Mansell that in her discussion with Ms Mansell on 31 January 2005 she sought leave.
Ms Mansell was cross-examined about the events of January 2005. Under cross-examination she said that:
a)she was asked to move out of her rented accommodation[74] (and based on other evidence it would appear that this occurred on or about 15 January 2005);[75]
[74] Transcript at 66
[75] See sub-para d) below
b)at the time she was asked to move out of her rented accommodation she:
i)had three cats; and
ii)nowhere to go;[76]
c)she stayed with a friend for a “few weeks while … [she] looked for somewhere to live”;[77]
d)
Ms Mansell confirmed that she moved into a new house on
29 January 2005, and had been living in very unsatisfactory temporary circumstances for two weeks prior to moving;[78]
e)she described her temporary accommodation prior to moving as the “house from hell” because “it was on quite a busy road. With three cats it wasn’t very good.”[79]
[76] Transcript at 66
[77] Transcript at 66
[78] Transcript at 67
[79] Transcript at 67
Significantly, Ms Mansell said that she “was trying to move house as quickly as … [she] could, because of her mother’s health.”[80] When asked how moving house was related to her mother’s health she said:
Because it’s a little bit difficult to fly to the other side of the world when you’ve got your furniture in the middle of the street, when you’re between houses.[81]
[80] Transcript at 69
[81] Transcript at 69
At least in part the above evidence under cross-examination corroborates elements of Ms Dwyer’s evidence, and particularly:
a)that Ms Mansell was concerned about her cats;[82] and
b)that even though Ms Mansell’s mother was really ill, “she wasn’t prepared to go [to England] at that stage.”[83]
[82] Transcript at 265
[83] Transcript at 267
The Court considers that the evidence from Ms Mansell under cross-examination indicates that she was not in a position to take leave prior to moving into her new house on 29 January 2005, and it can be inferred that she would not therefore have requested leave, a position consistent with the evidence of Ms Dwyer. Significantly, Ms Mansell does not say that on 31 January 2005, on being informed that her mother had had a heart attack and being extremely worried about her mother’s deteriorating health, that she sought leave. Again, it can be inferred that Ms Mansell did not seek leave at this time because she still had some moving, or at least unpacking, to do, which she did on at least 4 and 7 February 2005, having been granted leave to do so. It is therefore unlikely that she would have requested leave on or before
8 February 2005when she returned to work after the leave on
4 and 7 February 2005, and the Court finds that she did not do so.
Ms Mansell says that:
a)it was agreed on 11 February 2005 that Ms Mansell could take leave;[84]
b)she did not hear of her mother’s passing until Saturday 12 February 2005. Ms Mansell says that she phoned in on 14 February 2005
to tell Ms Dwyer of her mother’s passing and that she would not
be at work that day, but that she would be there the next day
(15 February 2005);[85]c)she took leave on 17 February 2005 because she was in tears that day;[86]
d)her leave had been approved on 10 February 2005 to commence from 21 February 2005 (the day Ms Morton returned).[87]
[84] Transcript at 92-93
[85] Transcript at 92-93
[86] Transcript at 93-94
[87] Transcript at 93-94. See also transcript at 100
In considering this matter there are a number of other factors which tell against Ms Mansell’s version of events. They include:
a)that the initial December 2004 leave application was refused, but Ms Mansell did not apply for, and the application was not refused on, grounds related to Ms Mansell’s mother, but purely operational grounds, in circumstances where Ms Mansell’s mother’s illness was not an issue at that time;
b)
that Centrelink was prepared to approve flex leave to enable
Ms Mansell to move house, and that approval, in February 2005, makes it very difficult to believe that Ms Mansell would not have been given approval to visit her gravely ill mother;
c)that at no stage did Ms Mansell make a further request for leave before 10 February 2005; and
d)that at no stage prior to 10 February 2005 did Ms Mansell take the issue further, by either making a formal leave application or raising the matter with management or her union, which would have been natural and ordinary steps to take had any request for leave been refused.
In any event, in relation to this issue, it is the Court’s view that
Ms Dwyer’s account is more plausible, and to some degree is supported by Ms Mansell’s evidence under cross-examination, both directly and by way of inferences which can be drawn from that evidence. Further, and in particular, if any request by Ms Mansell for leave was refused it would be quite extraordinary for her not to have taken any further steps to have that decision reviewed, in circumstances where her mother was gravely ill.
The Court therefore finds that at no stage during the period from
17 December 2004until at least 10 February 2005 did Ms Mansell request leave, or make a formal application for leave. Therefore, there was no refusal to grant leave by Centrelink. That conclusion is reinforced in the Court’s view by the fact that when a request for leave was finally made on 10 February 2005, leave was approved that day to commence on 21 February 2005.
In the circumstances, this aspect of the claim fails on the facts.
In any event, the claim does not constitute harassment for the purposes of s.35(2) of the DD Act because, on the facts:
a)there was no harassment as that term has been defined in the cases; and
b)there was no evidence that any of the conduct complained of, even if it had occurred, was “in relation to” Ms Mansell’s hearing disability. Even on Ms Mansell’s evidence any refusal was squarely based on genuine operational factors related particularly to Ms Morton’s absence[88] and the issue of Ms Mansell’s hearing disability simply did not arise in this context. That fact is reinforced by Ms Mansell’s admission to that effect in cross-examination.[89]
[88] Transcript at 100-101
[89] Transcript at 97 and 101, and further at 98-99 where Ms Mansell says that she believed the claim was based on her mother’s disability
This aspect of the claim must fail.
Exclusion from workplace activities
Ms Mansell alleges harassment on the basis that she was excluded from social activities in the workplace. The evidence in relation to this issue was limited. It amounted to this:
a)on a day in December 2004 Ms Mansell took a day’s flex leave;
b)on that day a “Secret Santa” draw was organised;
c)Ms Mansell’s name was not included in the draw;
d)on her return to work, Ms Mansell asked to be put into the draw;
e)Ms Mansell was told that she had been forgotten about when organising the draw on the previous day;
f)Ms Mansell asked to be included in the draw and was told by two fellow employees, but not Ms Dwyer, that she could not now be included because everyone would know who she had “got” (that is, who she had to but a present for); and
g)Ms Mansell bought and wrapped her own present to include in the draw.[90]
[90] Transcript at 101-104
Ms Mansell says that these events made her feel isolated and excluded, and as if her fellow employees did not like her. She said she felt hurt by her exclusion, but conceded that, in her view, her exclusion had nothing to do with her hearing disability.[91]
[91] Transcript at 104
There is no dispute about the facts. And, even if Ms Mansell is correct about her fellow employees not liking her, there is nothing in the evidence in relation to the course of conduct adopted by her fellow employees to indicate that the conduct was, in any way, related to her disability or constituted harassment for the purposes of s.35(2) of the DD Act.
This aspect of the claim must fail.
Speaking to Ms Mansell from across the room
[96] Transcript at 107
Ms Mansell claims that she was harassed by Ms Dwyer because
Ms Dwyer spoke to her from across the room in which they worked, knowing that she could not hear. Ms Mansell claimed that this occurred on numerous occasions.[92] Ms Mansell said she became aware that
Ms Dwyer was speaking to her because others alerted her to that fact.[93] Ms Mansell said that on each occasion when she was spoken to across the room by Ms Dwyer she would complain about it.[94] Ms Dwyer said she was unaware that there was a problem speaking to Ms Mansell in this way.[95] Ms Mansell conceded that she did not believe that
Ms Dwyer spoke to her from her desk because of her hearing disability.[96][92] Revised Points of Claim, Para.12(ii); Ms Mansell’s October 2007 Affidavit at para.43; Transcript at 105
[93] Transcript at 107
[94] Ms Mansell’s October 2007 Affidavit at para.43; Transcript at 106
[95] Transcript at 289-290
Ms Mansell made no written complaint to Centrelink about the alleged conduct prior to lodging her complaint with the Human Rights and Equal Opportunities Commission on 27 March 2006.[97]
[97] Ms Mansell’s April 2007 Affidavit at attachment A
Ms Dwyer said:
a)that she knew of Ms Mansell’s hearing disability;
b)that she did occasionally speak to team members from her desk, but usually only to ask them to come to her desk because it afforded greater privacy;
c)Ms Mansell had not said to her that:
i)she could not hear her; or
ii)she had concerns about being spoken to by Ms Dwyer from Ms Dwyer’s desk;
d)that she observed that when other employees called out “Pauline” from their desks, Ms Mansell would raise her head;
e)that she did not observe Ms Mansell to have any difficulty hearing Ms Dwyer when she spoke to her from her desk, and believed that her hearing aid enabled her to hear sufficiently well when Ms Dwyer spoke to her from her desk; and
f)that she was unaware that speaking to Ms Mansell from her desk caused Ms Mansell any difficulty at all.[98]
[98] Ms Dwyer’s Affidavit at para.37; Transcript at 289-290
Ms Sciascia said that she saw Ms Dwyer:
a)speak, on occasions, to other employees from her desk; and
b)on other occasions, walk to employees’ desks to speak to them.[99]
The fact that Ms Sciascia worked with her back to Ms Mansell does not in the Court’s view preclude her making these observations,[100] particularly when the office was open plan and the distances involved were around 4-6 metres.[101]
[99] Ms Sciascia’s Affidavit at para.9
[100] Transcript at 340-341
[101] Ms Dwyer’s Affidavit at annexure PD1
Given the view that the Court has expressed in general terms about preferring the evidence of Ms Dwyer to that of Ms Mansell, and given that the abovementioned evidence was not challenged, the Court accepts Ms Dwyer’s evidence that she did not consider and was not aware that there was any problem caused to Ms Mansell by her speaking to Ms Mansell from her desk.
It follows that the Court does not consider that Ms Dwyer’s conduct constituted harassment. The Court is fortified in this view by the fact that, on the evidence, this was Ms Dwyer’s ordinary mode of operation: Ms Mansell was not singled out in any way, and she was treated the same as other employees.[102] Indeed, Ms Dwyer said, and there was no evidence to the contrary, that other employees did not always respond to her or hear her when she communicated with them from her desk.[103]
[102] Transcript at 290; Ms Sciascia’s Affidavit at para.9
[103] Transcript at 290
In the circumstances, the Court considers that there was no harassment of Ms Mansell as a consequence of her being spoken to from across the room by Ms Dwyer, and this aspect of the claim must fail.
Performance review
Ms Mansell alleges that she was discriminated against in relation to a performance review, and that the negative performance review conducted by Ms Dwyer constituted less favourable treatment. In particular, Ms Mansell says that she “rated badly” because Ms Dwyer did not understand how her hearing disability affected Ms Mansell’s performance.[104]
[104] Revised Points of Claim, para.6(ii)
The performance review meeting was held on 10 February 2005.
Ms Mansell was seeking an increase from point 2.7 to point 2.9 on the relevant pay scale.[105]
[105] Ms Dwyer’s Affidavit at paras.25-26; Mr Read’s Affidavit at para.15
The evidence indicates that at the performance review meeting:
a)Ms Mansell was upset as a consequence of her mother’s illness;[106]
[106] Ms Dwyer’s Affidavit at para.25
b)
Ms Mansell did not want the performance review meeting postponed, even though Ms Dwyer suggested it, because
Ms Mansell was upset;[107]
c)Ms Dwyer informed Ms Mansell of negative feedback received by Ms Dwyer from other employees about Ms Mansell, and told Ms Mansell that some of the other employees found Ms Mansell difficult to work with;[108]
d)Ms Dwyer discussed with Ms Mansell a perceived over-servicing of clients by Ms Mansell;[109] and
e)
Ms Dwyer refused to take into account documents that
Ms Mansell asked Ms Dwyer to take into account, and Ms Dwyer did so on the basis that they were irrelevant to the activities in the mail room and fell outside the review period and therefore could not be taken into account, and she told Ms Mansell that this was the case.[110]
[107] Ms Dwyer’s Affidavit at paras.25 and 30
[108] Ms Dwyer’s Affidavit at para.27; see also Exhibit R6
[109] Ms Dwyer’s Affidavit at para.28
[110] Ms Dwyer’s Affidavit at para.29
Ms Mansell was rated as a “meets expectations” and advanced to point 2.8 on the pay scale.[111]
[111] Ms Dwyer’s Affidavit at paras.32-33
Ms Mansell asked Ms Dwyer to reconsider the performance review.
Ms Dwyer did so. Ms Dwyer reached the same conclusion as she had on the original consideration of the performance review.[112]
[112] Ms Dwyer’s Affidavit at paras.32-33
Ms Mansell was dissatisfied with the outcome of the performance review. She pursued an internal grievance procedure within Centrelink to have the performance review further reviewed.[113]
[113] Mr Read’s Affidavit at annexure MAR1
Mr Read reviewed the performance review. This was in late 2005.[114] Mr Read concluded that the assessment of Ms Mansell’s performance made by Ms Dwyer was correct.[115] Mr Read gave evidence that:
a)under the Centrelink Development Agreement 2003-2005 an employee must exceed expectations in three of five relevant measures to advance two payment points on the pay scale[116] (for example, from point 2.7 to point 2.9 as sought by Ms Mansell); and
b)Ms Mansell’s own self-assessment rated her as “meets expectations” in three of five relevant measures, and therefore invalidated any possible decision to advance her two points on the pay scale.[117]
[114] Mr Read’s Affidavit at para.14
[115] Mr Read’s Affidavit at para.14
[116] Mr Read’s Affidavit at para.16
[117] Mr Read’s Affidavit at annexure MAR4
There is no, or no sufficient, evidence on which the Court can legitimately base a finding that the outcome of the performance review, and the criteria and methods by which that outcome was determined, were in any way less favourable treatment. There is no evidence that Ms Mansell had been treated any differently to other employees who had their performance reviewed. Further, Ms Mansell was not, as she claims, “rated badly”. Rather, she was rated “meets expectations”, and received a pay rise appropriate to that rating, a rating which accorded with her own self-assessment.
In the circumstances, there was no discrimination against Ms Mansell by way of less favourable treatment in relation to the performance review.
Ms Mansell also alleges harassment in the conduct of the performance review because reference was made to hearsay and unsubstantiated allegations in the performance review.
There is no dispute that Ms Dwyer:
a)gave Ms Mansell feedback received from other staff members, including some who allegedly said that they found Ms Mansell was difficult to work with; and
b)did not name the persons referred to in sub-paragraph a) who made the allegations, saying that it was her standard practice not to do so.
In the Court’s view, there is no evidence that Ms Dwyer conducted anything other than a normal performance review. As a supervisor conducting a performance review she was, in the Court’s view, obliged to raise issues of concern about Ms Mansell’s performance, including her interaction with other staff. There is no evidence that the raising of those issues, or the substance of those issues, related to Ms Mansell’s hearing disability. The conduct of the performance review itself by
Ms Dwyer seems to have been handled with some sensitivity, bearing in mind Ms Mansell’s apparent upset because of her mother’s condition. Otherwise it was a relatively straightforward performance review. In the Court’s view, the performance review did not constitute harassment as defined in the cases. There was therefore no harassment in relation to the performance review.
Once again the Court’s conclusions are fortified by the evidence of
Ms Mansell who conceded that Ms Dwyer’s conduct in relation to the performance review was not related to her hearing disability.[118]
[118] Transcript at 127
This aspect of the case must fail.
Training session
Ms Mansell alleges that she was discriminated against in a training session (which was intended to be a team building session) because she was treated less favourably than other employees because:
a)her hearing disability was discussed;
b)she was the specific target of public discussion in the meeting; and
c)the public discussion belittled her.[119]
[119] Revised Points of Claim, para.6(iii)
Ms Mansell said that she had made a suggestion about rosters in response to a request for suggestions from Ms Dwyer during the training session. Ms Mansell said that Ms Dwyer then spoke over her and made a derogatory comment concerning her suggestion. Following that there was talking and the room became noisy. Ms Mansell says that when the room became quiet, an employee said that she should be allowed to finish, but she felt embarrassed, undermined and humiliated and left indicating she was not going to make any suggestions again.[120]
[120] Ms Mansell’s April 2007 Affidavit, paras.51-52
Ms Mansell says that when the employees reconvened (that is, after she had been out in the car park) she was asked for an explanation of why she had left, at which time she said that she made the excuse that she thought everyone was laughing at her, and that she would like to be able to join in, but could not always hear what was being said. Further, she said that Ms Dwyer had told her to keep reminding the team about her hearing disability so that they would remember. She was in tears providing this explanation.[121] It is not in dispute that Ms Dwyer had told her to remind the employees in the team about her hearing disability so that they would remember that she had the disability.
[121] Ms Mansell’s April 2007 Affidavit, paras.53-56
The Court finds the following facts relating to the incident in the training session:
a)the team members returned to the training room after lunch, and a comment was made by an employee, Mr Cowan, which related to photocopying;
b)everyone laughed at Mr Cowan’s comment (save it appears for Ms Mansell);
c)when everyone laughed, Ms Mansell stood up and rushed out of the room;
d)the team leader, Ms Craze, approached Ms Mansell in a car park, but Ms Mansell, who appeared upset and angry, told Ms Craze to go away;
e)after a period, all employees, including Ms Mansell, returned to the training room;
f)some employees tried to explain to Ms Mansell that they had been laughing at the photocopying comment made by another employee;
g)Ms Mansell was upset and crying and did not either accept or understand that the laughter had not been directed at her;
h)Ms Mansell also said that she had been unable to hear what was said, and thought that people were laughing at her;
i)Ms Dwyer asked Ms Mansell why she had chosen to sit where she had during the training session;
j)Ms Dwyer made no derogatory comments concerning Ms Mansell; and
k)Ms Dwyer did not speak over Ms Mansell.[122]
[122] Ms Craze’s Affidavit at paras.7-12; Transcript at 299, 319 and 322. Ms Sciascia’s Affidavit at paras.11-14. Neither Ms Craze nor Ms Sciascia were challenged as to the substance of the content of their affidavits in relation to the training session.
Essentially, there are two versions of the facts in relation to the training session. The first, which accords with the factual findings of the Court based on the uncontested evidence of Ms Craze and Ms Sciascia, is that:
a)everyone laughed at a comment made by an employee about photocopying; and
b)Ms Mansell got up and rushed out of the room when the laughter erupted.
The second version of events is that of Ms Mansell which is that:
a)Ms Dwyer spoke over her in relation to a roster suggestion; and
b)Ms Mansell was upset by this and rushed out of the room.
On neither account is there any connection with respect to Ms Mansell’s disability. She was not treated less favourably than any other employee as a consequence of her disability in relation to these events. Her disability only became an issue once she returned to the room and raised it herself.
In the circumstances the allegations of less favourable treatment are not made out because:
a)Ms Mansell raised the question of her hearing disability herself, and then only as an excuse for rushing out of the room, in circumstances where that excuse was false, the real reason for her leaving the room being that she was spoken over by Ms Dwyer in relation to the suggestion that she had made; and
b)she was not, on the facts, the specific target of public discussion in the meeting, or belittled in the meeting, in relation to her disability. Her disability was discussed only because she raised it. Had she raised the real reason for her leaving the room, that is, Ms Dwyer’s allegedly speaking over her, it is probable that that matter would have been discussed rather than Ms Mansell’s hearing disability. In the circumstances, the matter discussed was as a consequence of the reason given by Ms Mansell for leaving the room. Had another person, without a disability, left the room, and come back and given a reason for leaving the room, no doubt that reason would have been discussed by the team members. In those circumstances, and bearing in mind that if Ms Mansell had disclosed the real reason for her leaving the room then that reason would most likely have been discussed by the team members, the claim of less favourable treatment is simply not made out.
A claim of harassment is also raised in relation to this issue,
Ms Mansell alleging that there was “intimidation, criticism and humiliation with reference to her disability” in the training session. In the Court’s view, this is a significant exaggeration of what occurred. Ms Dwyer spoke to Ms Mansell on a matter related to rosters, and unrelated to Ms Mansell’s disability. Ms Craze endeavoured to, and was seemingly ultimately successful, in having Ms Mansell return to the room for the training session. Ms Mansell’s disability was then discussed, but only because she raised it, and not, on the evidence, in any intimidating, critical or humiliating way. No matter which version of events is accepted, neither version constituted harassment as that term has been defined in the cases.
Therefore, there was no harassment in relation to the training session.
The discrimination and harassment claims by Ms Mansell cannot be made out even if there was a communication problem within the entire group of mail room employees, which was to be discussed at the training session or which became obvious after the training session, and that part of that problem was or might have been related to
Ms Mansell’s hearing disability.[123] Those facts do not make out the claim of actual discussion, which on the facts found by the Court did not occur.
[123] Transcript at 319
This aspect of the claim must fail.
Summary of conclusions
In summary, none of Ms Mansell’s assertions of discrimination because of her disability by way of less favourable treatment, or harassment in relation to her disability, have been made out. All of her claims have failed, and it follows that her application ought to be dismissed.
Orders
There will be an order that the application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date: 8 July 2009
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