Maylor (No 1) v Mid North Coast Area Health Service

[2001] NSWADT 117

CITATION:	Maylor (No. 1) -v- Mid North Coast Area Health Service [2001] NSWADT 117
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Lesley Maylor RESPONDENT Mid North Coast Area Health Service
FILE NUMBER:	001044
HEARING DATES:	18/04/2001, 19/04/2001
SUBMISSIONS CLOSED:	05/25/2001
DATE OF DECISION:	07/16/2001
BEFORE:	Britton A - Judicial Member; McDonald O - Member; Nemeth de Bikal L - Member
APPLICATION:	Disability Discrimination - In work - Marital Status Discrimination - In work - Victimisation
MATTER FOR DECISION:	Application under s 111
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Racial Discrimination Act 1976 (Cth)
CASES CITED:	General Steel Industries v Commissioner for Railways (NSW)(1964) 112 CLR 125 Webster v Lampard (1993) 177 CLR 598 Assal v Department of Health and Housing (1992) EOC 92-409 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT73 Finney v The Hills Grammar School [1999] HREOCA 14 (20 July 1999) Beck v University of Winconsin Board of Regents 75 F 3d. 1130 (7th Circuit, 1996) Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	Orders made on 19 April 2001: 1. Complaints of discrimination on the grounds of disability are dismissed; 2. Complaints of victimisation are dismissed; 3. Complaints of discrimination on the ground of marital status are dismissed.

1 This extempore decision concerns an application by the respondent, Mid North Coast Area Health Service to have three complaints made by the complainant, Mr Leslie Maylor, dismissed under s 111 of the Anti-Discrimination Act 1977 (NSW)(the Act).

2 Section 111(1) of the Act provides:

“where, at any stage of an inquiry, the Tribunal is satisfied the complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint.”

3 A similar but narrower provision is to be found in the Administrative Decisions Tribunal Act , 1997 (NSW)(the Tribunal Act). Section 73(5)(h) of that Act provides that the Tribunal “may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.”

4 This dismissal application is considered under the provisions of s111(1) of the Act.

5 In these proceedings the complainant was represented in person and the respondent represented by Ms Eastman of counsel.


Background
6 Pursuant to s 94(1) of the Act, the President of the Anti-Discrimination Board ( respectively the President and the Board) referred three complaints made by Mr Maylor in respect of the respondent. The first two complaints, lodged on 30 April 1996 and 14 January 1997 respectively are characterised by the President as complaints relating to disability discrimination and victimisation. The third complaint lodged with the Board on 23 October 1998 alleges unlawful discrimination on the basis of marital status.

7 We take the opportunity to briefly outline the background to these three complaints.

8 The following facts are not in issue: Mr Maylor has been employed by the Mid North Coast Area Health Service as a permanent part-time counsellor in the methadone unit of the Coffs Harbour Base Hospital since 31 May 1992. He worked on Saturday and Sunday and then one weekday per month when he relieved for a full-time staff member who took a rostered day off. Mr Maylor also had a special arrangement where he was paid for an additional two hours per month to attend staff meetings held during the week.

9 The methadone unit is part of the Praxis Centre, which is the Hospital's drug and alcohol counselling unit. The methadone unit is responsible for administering methadone to registered participants in the methadone scheme. Methadone is a schedule 8 drug and subject to strict regulatory controls with respect to its handling within the hospital and administration to clients.

10 The complainant’s wife Mrs Patricia Maylor was also employed by the respondent. She was the team leader of the methadone unit when the complainant was first employed and remained the team leader until mid-1995 when she requested and was offered a twelve month temporary position out of the Praxis Centre with responsibilities for primary health. From mid-1995 to May 1996 Mrs Susanne Baker was the team leader. From 2 May 1996 Mr Greg Booth was the acting team leader. In late 1996 Mrs Maylor returned to her position as team leader for a short period of time. During this period of time the team leader was the direct line supervisor of the complainant.

11 The methadone unit has a small staff; two permanent full time members with two part time staff and a casual member from time to time. That is read from the document provided by the respondent and it is the Tribunal's view that those issues are not in dispute and provide some useful background.

12 Mr Maylor filed voluminous and detailed documentation in support of his three complaints. He provided the Tribunal with a document headed “Detailed chronology of events”(the Chronology). The Chronology broadly relates to his three complaints and spans the period 1991-1998. Most of the material contained in the Chronology was also supplied by Mr Maylor to the Board and is contained in the President’s Report. In addition Mr Maylor relies on witness statements of Patricia Maylor and colleague, Lesley Knight, and an undated document entitled “Statement to the Tribunal” filed on 14 March 2001. This morning we have had the benefit of a demonstration given by Mr Maylor relating to various dosing techniques.

13 At the commencement of these proceedings Ms Eastman for the respondent submitted that the Tribunal should determine the respondent’s s 111(1) application on the basis of the written evidence filed by the complainant, without recourse to any oral evidence. The Tribunal sought the views of Mr Maylor and was advised that he consented to this proposal. He made clear to us it was his intention in presenting his case to rely exclusively on the documentation filed with the Tribunal and oral evidence would not add to his case.

14 In determining whether to proceed on the basis of documentary evidence alone the Tribunal was mindful that the complainant was self-represented. This is a jurisdiction where parties often appear in person. It is our experience that in some cases a complainant who is without the benefit of legal representation, would be placed at a significant disadvantage if forced to rely on their written evidence alone. The documentary evidence provided by some self-represented parties is often inadequate and does not do justice to their case.

15 The Tribunal Act gives the Tribunal the power to govern its own procedure: s 73(1); it has broad powers to conduct matters in whatever manner it thinks fit: s73(2); it has a duty to act with as little formality as the circumstances permit and according to equity, good conscience and the substantial merits of the case without regard to the technicalities or legal form : s 73(3). The Tribunal may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument: s73(5)(c).

16 In exercising our discretion to determine a matter based on written evidence alone we must be guided by our overriding duty to afford the parties procedural fairness. Section 70 (1) of the Tribunal Act directs the Tribunal to ensure that every party to proceedings is given a reasonable opportunity to present their case. Importantly, s 73(5) (b) imposes on us a statutory duty to ensure that all relevant material is before us.

17 It is our view that in some cases to require an unrepresented complainant faced with a dismissal application to rely exclusively on his/her documentary evidence may effectively deny him/her a reasonable opportunity to present his/her case. This will depend on all the circumstances. In determining whether to allow a matter to proceed on the basis of written evidence alone the Tribunal must exercise caution and be reasonably satisfied that no further relevant evidence is likely to become available through oral evidence.

18 In assessing whether this application should be determined on the complainant’s documentary evidence alone we have taken into account: the nature of the complaints; the quality of the complainant’s documentary evidence; and, critically, Mr Maylor’s firm view that no further evidence would become available if he and his witnesses gave oral evidence.

19 Accordingly, with the exception of the demonstration referred to previously, we decided that this application should be determined on the basis of documentary evidence alone. In reaching our decision we have taken into account the President’s Report, documentary evidence presented by the complainant, the demonstration conducted by the complainant and written and oral submissions made by both parties.


The complaints
20 At a case conference on 21 November 2000, the complainant was directed to file and serve points of claim. Mr Maylor was then legally represented. This direction was not complied with and Mr Maylor subsequently advised the Tribunal that he had difficulties complying with that direction, as he was no longer legally represented.

21 Mr Maylor was later requested by the Tribunal to file a summary or outline of the particulars of his complaint/s and subsequently a document named, “Statement to the Tribunal”, referred to previously by us, was produced by Mr Maylor. This statement outlined in broad terms the particulars of Mr Maylor's complaint under the headings “Disability Discrimination”, “Victimisation" and “Marital Status Discrimination”. This document also included a description of Mr Maylor's disability.

22 We are advised that the respondent’s written submissions in support of its s 111(1) application were prepared on the basis that Mr Maylor’s document "Statement to the Tribunal" in effect represented the complainant's points of claim. Ms Eastman submitted that the matters to be considered by the Tribunal should be confined to the issues raised in that statement.

23 At the commencement of these proceedings the Tribunal asked Mr Maylor whether the document, Statement to the Tribunal, in fact represented the entirety of the matters, the subject of his complaint/s. The Tribunal granted a short adjournment to allow Mr Maylor the opportunity to consider whether there were any additional matters not referred to in this statement, but contained in the President's Report, that he wished us to take into account. After the adjournment Mr Maylor advised that his complaint/s was restricted to the issues set out in the Statement to the Tribunal. This hearing proceeded on that basis.

24 We turn now to briefly outline the approach we intend to take in dealing with the application before us. The authorities make clear that in exercising power to order summary judgment a court or tribunal must exercise exceptional caution. (See General Steel Industries v Commissioner for Railways (NSW)(1964) 112 CLR 125 at p129.) Webster v Lampard (1993) 177 CLR 598 is authority for the proposition that the issue on an application for summary judgement is not whether the plaintiff would succeed in their action but whether the material before the primary judge was such that the “action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail.”

25 While the authorities make clear that in exercising the power to award summary judgement extraordinary care should be exercised, we also note that where the requirements of s111(1) have been met we are obliged not to shy from an exercise of this power. We note the comments of Sir Ronald Wilson in Assal v Department of Health and Housing (1992) EOC 92-409:

“I find it consistent with the pastorally sensitive and conciliatory purpose of the Act, to interpret the power of summary dismissal conferred by s 25X [ Racial Discrimination Act 1975(Cth)]as reflecting the intention of the legislature that it is in the public interest as well as in the interest of both parties that the hearing of complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly it is no kindness to a complainant to shrink from the exercise of the power conferred by s 25X of the Act in circumstances where that exercise is clearly warranted.”
26 In these proceedings we have had regard to the Tribunal’s decision in Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 which similarly concerned an application brought under s111(1) of the Act. There, the test to be employed in determining whether an exercise of the Tribunal’s powers to dismiss a complaint because it is “misconceived” or “lacking in substance” was warranted was discussed. The Tribunal said [at 35 ]:
“in undertaking this examination we believe that the appropriate way forward is to take the complainant's evidence at its highest point or, in other words and for the purpose of this exercise, to accept that everything which the complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence and in the circumstances of this case the Tribunal should evaluate the evidence as if a "no case" submission had been made at the conclusion of the complainant's evidence. If, at the end of this exercise the Tribunal concludes the complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the complainant has misunderstood legal principles or has been advancing an untenable proposition of law or fact.”
27 Further [at 38] the Tribunal set out two questions it considered should be posed in determining whether to dismiss a matter pursuant to s111(1):
“(1) is there any evidence to suggest that the complainant has suffered any of the consequences set out in any of the areas of activity governed by the Act by reason of any action of the respondent; and
(2) if yes to question 1 is there any evidence to suggest the complainant suffered the consequence or consequences by reason of action taken by the respondent on the ground of the complainant's race.”
28 We intend to apply these tests in relation to the application before us.

Disability Discrimination
The disability
29 We deal first with the threshold issue, namely, whether Mr Maylor suffered from a disability, as defined in s4 of the Act, throughout the relevant period. Section 4 of the Act defines “disability” to mean:
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

30 Mr Maylor in his Statement to the Tribunal describes his disability as follows:
(1) a chronic viral illness which has affected my auto-immune system, the nature of this being on-going problems with fibro-myalgia and arthralgia of my skeletal muscles and joints; muscle spasm, pain and fatigue; difficulty with intellectual activities such as memory and concentration; mobility limited by pain and fatigue.
(2) structural damage to the spine by way of prolapsed discs at C3 to 4 and L5 to S1 which protrude onto my spinal column at L5 to S1 and onto the efferent nerve in my upper torso at C3 to 4; pain and fatigue; mobility limited by pain and fatigue."
31 As pointed out by Ms Eastman there is no medical evidence before us to support Mr Maylor’s contention that he suffers from a disability. We note the respondent does not seek to argue that Mr Maylor does not suffer from a disability rather that no independent medical evidence has been produced.

32 Notwithstanding the absence of medical evidence there is in our view some evidence, which if accepted, is capable of supporting Mr Maylor’s claim that he suffers from a disability within the meaning of s 4 of the Act. In reaching this conclusion we have taken into account: Mr Maylor's own detailed evidence of his condition. In our view in determining whether an individual suffers from a disability considerable weight should be given to that individual's assessment of their physical and/or mental state; and second, the steps taken by the respondent to accommodate Mr Maylor’s alleged disability such as the modification to the methadone dosing device.

33 We turn now to discuss the complaints of disability discrimination. Mr Maylor claims that various acts of the respondent constitute unlawful discrimination contrary to the provisions of s 49D(2) of the Act. The first complaint relates to the introduction of changes to the method of dosing methadone introduced towards the end of 1994; and the second, to the respondent's direction that he undergo, what Mr Maylor describes as, a “full workplace assessment”.

34 Section 49D(2) of the Act provides:

(2) It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
35 The test of discrimination is set out in s 49B(1) of the Act and provides:
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
Method of dosing methadone
36 A summary of this allegation is contained in the President's Report which we set out in full: “Mr Maylor alleges that on 3 November 1995 he became aware that there was to be a trial of a new method of administering the methadone in the Centre. He alleges that the new method was to involve the use of an ora-dose syringe and that the trial was apparently to occur for a short period. Mr Maylor alleges that because of his disability he was unable to use the ora-dose syringe effectively but that, despite his raising this as an issue with the Centre and within the administration of the hospital, the ora-dose syringe was adopted as the method for dosing patients. Mr Maylor alleges that he had to spend considerable time negotiating and chasing up an alternative dosing method which he was able to use. He alleges that this caused him considerable stress and anxiety and that it also created an environment within the workplace which led to him being victimised by the staff.”

37 The first issue then for us to determine is whether there is any evidence to suggest that the complainant has suffered any of the consequences set out in s49D(2) of the Act by reason of any act or acts of the respondent. To succeed Mr Maylor needs to demonstrate that his complaint/s falls within the provisions s49D(2)(d) of the Act that is, he has “been subjected to any other detriment.”

38 Mr Maylor’s evidence is that on 3 November 1995 the respondent announced that it proposed to introduce a new system for administering methadone for clients attending the Praxis Clinic. On 30 November Mr Maylor raised concerns that because of his disability he would be unable to use the device. In early 1996 he was referred, by the respondent, to Mr Wales, the respondent’s occupational health and safety officer, to determine whether an appropriate device could be designed to allow him to accommodate the new dosing system. Mr Maylor’s evidence was that there were delays in developing and introducing the new device (the gismo).

39 Mr Maylor’s evidence was that two registered nurses were rostered on duty whenever the Praxis Clinic was open. One nurse was responsible for measuring the prescribed dosage of methadone for each attending client and dispensing it to them (dosing duties); the other, in a register kept by the respondent, , entered details about individual clients who attended the clinic on that day and the dosage given to them ( registering duties). Mr Maylor’s evidence is that, at his suggestion, during the period the gismo was being developed, he confined himself to registering duties and was not involved with the dosing of clients.

40 Taken at its highest we are not satisfied that Mr Maylor's evidence supports his contention that, as a result of the introduction of a new method for dosing methadone, he was subjected to a detriment within the meaning of s 49D(2)(d) of the Act. In reaching this conclusion we note, amongst other things, that throughout the period of the gismo’s development his formal job status remain unchanged; he suffered no loss of pay or loss of work; the respondent took steps to accommodate Mr Maylor’s concerns by developing and making available the gismo for Mr Maylor to use; the objective of the respondent in introducing this change was to enhance the accuracy in the dosing procedure employed by the clinic and there is no direct or inferential evidence to suggest otherwise.

41 The evidence makes clear that Mr Maylor was troubled by the introduction of the new dosing procedures. In his view not only would he have difficulties working with the new dosing procedures, the system itself was flawed. However this subjective assessment, of itself, is not enough to bring the complaint within the provisions of s 49D(2)(d) of the Act. It is not sufficient that the complainant holds the belief, however genuine, that he/she has been subjected to a detriment, the evidence must objectively support this belief.

42 We are of the view that the evidence relating to this complaint, taken at its highest, does not fall within the provisions of s49D(2) of the Act and accordingly it is dismissed.

43 Mr Maylor asserts that the respondent subjected him to a detriment pursuant to s 49D(2)(d) of the Act by requesting that he undergo what he termed a “full workplace assessment”. Mr Maylor's evidence as set out in the President's Report, Tab 1, page 45 is that on 22 March 1996 he was advised by Mr Cameron, the respondent’s personnel officer that he would have to be assessed by a qualified therapist as to “what I could or could not do as part of my role.” He states that he was suspicious of that proposal and that he was advised by Mr Cameron that Miss Stanton, an officer of his union, the New South Wales Nurses Association, also had some reservations.

44 There is further reference to this so-called workplace assessment in the Summary of the Complaint, provided to the Board under cover of letter dated 30 April 1996. At page 20 of that document Mr Maylor stated that Mr Cameron advised him that the use of a bottle tipping mechanism [the gismo] was “off the agenda” until a suitable expert could verify that this device did not present an occupational health and safety risk.

45 Mr Maylor's evidence is that that he refused to undertake the assessment because he was suspicious of the respondent’s motives. The evidence reveals that in late May 1996 Mr Maylor was advised by the respondent that it no longer intended to press its request that he undertake the assessment and Mr Maylor has not undertaken the test.

46 Mr Maylor submits that his employer’s request that he undergo a workplace assessment was nothing more than a subterfuge, which, had he consented, would have been used to justify his dismissal.

47 We acknowledge there may be situations where singling out an employee for a workplace assessment constitutes a detriment within the meaning of the s 49D(2) (d) of the Act. However, in this case, we see no evidence to support a finding that the request that the complainant attend a workplace assessment constitutes a detriment. There is no direct evidence that the request was tied, as asserted by Mr Maylor, to a management plan to dismiss or somehow discredit him, nor, in our view, is there any evidence from which it would be open to us to draw that inference.

48 The evidence before us is this: a new device was introduced by the respondent which its required its employees to use when administering methadone to clients. Mr Maylor advised the respondent that because of his disability, he had problems using this device. Steps were taken to modify the new device to address Mr Maylor’s concerns; Mr Maylor was requested that he undertake a workplace assessment prior to the introduction of the new device; he refused; the request was withdrawn.

49 We note that Mr Maylor holds the strong, and no doubt, sincere view, that the motives of the respondent were questionable and that he suffered a detriment as a result of the respondent’s request that he attend a workplace assessment. However, taken at its highest, the evidence simply does not support this contention.

50 For completeness we note that Ms Eastman has referred the Tribunal to a number of cases which lend support to the proposition that in some circumstances it may be discriminatory for an employer not to conduct an assessment of the needs of a person who suffers from a disability. See Finney v The Hills Grammar School [1999] HREOCA 14 (20 July 1999) and Beck v University of WinconsinBoard of Regents 75 F 3d. 1130 (7th Circuit, 1996).

51 In summary it is our view that there is no evidence before us capable of supporting Mr Maylor’s contention that the respondent’ s request that he undertake a workplace assessment constitutes a detriment pursuant to s49D (2)(d) of the Act. Accordingly this complaint is dismissed.

52 The complainant alleges that he was victimised by the respondent and or its employees contrary to the provisions of s50 of the Act.

53 Section 50 of the Act provides:

50. Victimis
(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimisedd" 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.
54 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out at p 78,986, what it described as the four-fold elements of victimisation.
“Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.”
55 The Tribunal has consistently followed this approach. (See for example Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 at 41; Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 at 45 and Sivananthan v Commissioner of Police, New South Police Service [2001] NSWADT 44) Likewise we intend to adopt this approach in this decision.

56 The alleged incidents of victimisation are as follows: Incident 1: the complainant was labelled as trouble maker; Incident 2: the respondent failed to notify the complainant of staff meetings: Incident 3: the complainant was criticised for his failure to attend staff meetings; Incident 4: the complainant was not given information relevant to performance of his duties; Incident 5: the complainant was excluded from staff functions; Incident 6: the complainant was accused of not keeping records about the administration of methadone; Incident 7: the complainant was not given the opportunity to work additional hours; Incident 8: the allocation of tasks was arranged to the complainant’s disadvantage; Incident 9: the complainant’s co- workers lodged a grievance against him; Incident 10: the communications workshop /conflict resolution incident; Incident 11: the respondent’s failed to address the complainant’s grievance about the oradose syringe in a timely fashion; Incident 12: the respondent failed to properly investigate his complaint about the new dosing method.

57 Ms Eastman submits that in relation to some of the alleged incidents there is no evidence that the alleged discriminator knew that Mr Maylor had made, or intended to make, a complaint or alleged discrimination. We accept her submission that it would be impossible for us to make a finding of victimisation unless it is first established that the discriminator knew that the complainant had made a complaint or alleged discrimination.

58 There was considerable delay in the President referring Mr Maylor’s complaints to the respondent. The respondent first received formal notice of the complaint on 23 February 1998, long after the last act of alleged victimisation occurred. However to fall within the provisions of s 50(1) of the Act it is not necessary to show that the person victimised has done any of the things referred to in par 50(1)(a), par 50(1)(b), par 50(1)(c) or par 50(1)(d). It is enough 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 .

59 Ms Eastman helpfully referred the Tribunal to the following: first, an incident on 12 March 1996 where Mr Maylor advised Mr Wilson that he had been harassed by Ms Baker who was also employed at the Praxis Unit; second, a further incident again involving Mr Wilson, where Mr Maylor made a general complaint of harassment on 18 March 1996; and third, a letter dated 22 May 1996 from Mr Maylor to Mr Harper, where Mr Maylor makes reference to his contact with the Board.

60 In the course of these proceedings Mr Maylor has referred the Tribunal to some evidence which he contends supports the proposition that various employees of the respondent knew of his complaint prior to the first date identified by the respondent, namely 12 March 1996. Mr Maylor has referred the Tribunal to some evidence that he submits supports the contention that he raised his allegation in relation to Mrs Booth through his wife, as early as December 1995. While it is clear from the material that has been referred to us by Mr Maylor that through his wife he raised with Mrs Booth his problem using the syringe, we see no evidence to support the proposition that at that time he made known of his intention, either formally or informally, to raise a complaint alleging discrimination.

61 There is no direct evidence that any of the respondent’s employees involved in the alleged incidents of victimisation knew of the fact that Mr Maylor had made or intended to make a complaint. However, in respect of some of the incidents identified, there is some evidence from which it would be open to us to draw that inference.

62 We turn now to consider whether there is any evidence before us which is capable of supporting a finding that Mr Maylor suffered a detriment within the meaning of s50(1) of the Act as a result of any of the alleged incidents of victimisation. Given the lateness of the hour we do not propose to go through each incident in detail.

63 In relation to Incidents 1,2,4, 10,11 and 12 we are not satisfied that the evidence before us would support a finding that these alleged incidents, even if proven, would constitute a “detriment”. But in any event, as conceded by the complainant, there is no evidence before us in relation to Incidents 1,2,4, 10,11 and 12 and the remaining incidents which is capable of supporting a finding that Mr Maylor was subjected to a detriment because he made (or intended to make) a complaint.

64 The Tribunal is well aware that there is seldom any direct evidence available to a complainant who seeks to establish that they have been victimised on the ground that they alleged discrimination or did one of the other things referred to in paragraphs 50(1) (a) –(d) of the Act. We therefore have carefully examined the evidence to determine whether there is any evidence capable of supporting that inference but conclude that the evidence is incapable of supporting such inference.

65 Accordingly the complaints of victimisation are dismissed on the ground that they lack substance.

66 Mr Maylor makes two complaints of marital status discrimination. First, he alleges he was denied access to additional work because of a policy banning married persons working together at the Praxis Centre; and second, that he was not given additional work because his wife had made a complaint to the respondent in respect of his treatment.

67 Headed “Discrimination against applicants and employees” s 40(2) of the Act provides:

(2) It is unlawful for an employer to discriminate against an employee on the ground of marital status:
(a) in the terms or conditions of employment which the employer affords the employee,
(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 subjecting the employee to any other detriment.
68 We turn first to Mr Maylor’s allegation that he was subjected to unlawful discrimination on the grounds of his marital status because his wife made a complaint. This complaint relates to a letter from Mrs Maylor to Mr Harper dated 18 June 1996. Mr Maylor contends that the respondent denied him work in addition to his usual rostered hours because his wife had made a complaint about his treatment at the hands of the respondent. It is our view that this part of the claim is misconceived. The provisions of the Act do not extend to situations where a person is treated less favourably because of the actions taken by their spouse.

69 In relation to the complaint that Mr Maylor was denied additional work because this would involve him working with his wife, Mr Maylor contends that throughout the period of his employment at the Praxis clinic the respondent had in place a policy which barred married couple working together on the same shift. According to him,this policy meant he was denied work in addition to his regular roster as to take on these additional shifts would put him at odds with the respondent’s policy in relation to married persons.

70 Mr Maylor has presented some evidence, which if accepted, supports his claim that throughout the relevant period, a ban or prohibition, was in place that resulted in him being denied additional work opportunities. We note that the respondent submits that Mrs Maylor was responsible for drawing up the rosters and distributing additional work when it became available to employees of the Praxis centre. Further we have been advised that the respondent has put on evidence which contradicts Mr Maylor’s claim that a policy existed banning married persons working together.

71 However, for the purpose of determining whether a complaint should be dismissed pursuant to s 111(1) we are obliged to take the complainant’s evidence at its highest, not to make any assessment of competing evidence.

72 We understand Mr Maylor to argue that because of the respondent’s alleged policy he was denied additional work. Mr Maylor’s evidence is that at his election, he worked on the weekend, and his wife worked throughout the week. His complaint relates to relief work that became available as a result of staff absences. Mr Maylor contends that because of the respondent’s alleged policy he was unable to replace his wife's co-worker when he or she was absent, as this would cause him to work side by side with his wife. He could only make himself available for additional shifts when his wife was rostered off duty.

73 Ms Eastman on behalf of the respondent contends that there is no evidence before the Tribunal that Mr Maylor has in fact been denied additional work. While this part of the claim lacks particularity there is in our view some broad evidence which, if accepted, is capable of supporting Mr Maylor’s claim that he suffered a detriment.

74 In summary we dismiss Mr Maylor’s complaint that he has been subject to unlawful discrimination pursuant to s40(2) of the Act on the grounds that his wife had made a complaint on his behalf. We decline to dismiss the complaint relating to the respondent’s alleged policy preventing persons married to each other working on the same shift.


Orders
75 We make the following orders:
(1) The complaints of discrimination on the grounds of disability are dismissed.
(2) The complaints of victimisation are dismissed.
(3) The complaint of discrimination, (relating to the complaint made by Mrs Maylor) on the ground of marital status dismissed.
(4) Remaining complaint of marital status discrimination not dismissed.
[Immediately after the Tribunal handed down its extempore decision Mr Maylor made application to discontinue the remaining complaint not struck out by the Tribunal’s decision in relation to the respondent’s s111(1) application. Following this application, the Tribunal dismissed the outstanding complaint (relating to marital status discrimination) “ for any other reasons,” pursuant to 111(1) of the Act. Accordingly final order 3 was made:
(3) The complaints of discrimination on the ground of marital status are dismissed.]