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McMAHON and NANNUP TIMBER PROCESSING PTY LTD [2015] WASAT 125

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2015] WASAT 125
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:19/2014	Heard:	28, 29 AND 30 JULY 2015
Coram:	MR P McNAB (SENIOR MEMBER)	Delivered:	6/11/15
No of pages:	29	Judgment Part:	1 of 1
Result:	Complaints dismissed
Category:	A
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Parties:	DAMIEN McMAHON NANNUP TIMBER PROCESSING PTY LTD
Catchwords:	Discrimination Equal Opportunity Direct discrimination Impairment Accommodation Victimisation Complainant residing in employer's accommodation close to timber mill Complainant injured at work Back injury Rent subsidised by respondent who was both lessor and employer Rent and other charges increased by lessor Company policy of phasing out subsidies to lessees Complainant the first lessee to suffer significant increase in rent Complainant threatened with eviction Other incidents between tenant and lessor including attempts to restrict water supply Alleged detriment suffered by complainant Whether lessor's conduct in relation to accommodation charges and associated acts done 'on the ground of' impairment Whether causative link established Intention and extent of knowledge of injury by respondent Burden of proof Circumstantial evidence Complainant alleging that differential treatment followed medical events related to his injury Whether correlation sufficient to prove cause Complainant alleging that there was 'no other reason' for differential treatment of him Complaints dismissed Applicant failed to prove relevant acts were discrimination against him on the ground of his impairment Observations on whether poor management practices prove discrimination Victimisation complaint dismissed for lack of proof and as lacking in substance
Legislation:	Equal Opportunity Act 1984 (WA), s 4, s 62(C), s 66(A)(1), s 66A(1)(a), s 67, s 89, s 90, s 93(1)
Case References:	Acklin v Anti Discrimination Commissioner and Batchelor Institute of Indigenous Tertiary Education [2008] NTMC 30 Clayton and Australia Post [1998] VADT 23 Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 Gounder v Allmand [2007] VCAT 1898; (2007) EOC ¶93-480 IW v City of Perth (1997) 191 CLR 1 Kovac and Australian Croatian Club Ltd [2014] ACAT 41 Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 McMah v Simon Blackwood (Workers' Compensation Regulator) and BHP Billiton Coal Pty Ltd [2015] ICQ 9 Monash University v Kapoor [1999] VSC 463 Sanzana and Director General, Disability Services Commission [2011] WASAT 208 Sellen and TNT Australia Pty Ltd [2015] SAEOT 6 Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 Summerville and Department of Education [2006] WASAT 368 University of Ballarat v Bridges [1995] 2 VR 418 Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA) 1
Orders	The applications in proceedings SAT 19/2014 McMahon and Nannup Timber Processing Pty Ltd and SAT 20/2014 McMahon and Nannup Timber Processing Pty Ltd are dismissed.
Summary	Mr Damien McMahon worked for Nannup Timber Processing Pty Ltd (NTP). He worked at NTP's timber mill in Nannup. NTP owns accommodation in Nannup which it leases to employees and nonemployees. Mr McMahon lived in Nannup in a cottage owned by NTP. Initially, the rental for that cottage paid by Mr McMahon was below comparative market rentals for Nannup. ,Mr McMahon suffered a back injury at work. Because of that injury, Mr McMahon was eventually dismissed from his employment with NTP because of a lack of suitable duties for a person with this type of injury. However, he continued to reside in the cottage with his partner. Prior to his dismissal, but after his back injury, NTP increased Mr McMahon's rent and then subsequently sought to recover the costs of the supply of water to the cottage by imposing, for the first time, charges for water use. ,NTP claimed that it was pursuing a policy of 'normalisation' of rents, that is bringing the rental and other charges up to market rates. In other words, NTP was, over time, phasing out its subsidies for the cottages. There was evidence that such phasing out of subsidies had, over time, affected other tenants in the cottages besides Mr McMahon. However, Mr McMahon appeared to be, in the relevant period, the first tenant caught by the implementation of NTP's policy. Mr McMahon experienced an apparently disproportionate (compared to other tenants) impact on his circumstances. ,The increased rent and then the imposition of water charges led to various incidents and friction between Mr McMahon and NTP (including attempts by NTP to evict Mr McMahon). There were unannounced visits to the cottage by NTP and there was also an attempt by NTP to restrict Mr McMahon's water supply, events that were possibly in breach of Mr McMahon's lease. After a commercial property manager took over the administration of NTP's leases, matters between the parties settled down. ,A complaint was lodged by Mr McMahon with the Equal Opportunity Commission (EOC) alleging that NTP had unlawfully discriminated against him on the ground of his impairment (that is, his injured back) in the area of accommodation. A further complaint was filed by Mr McMahon alleging that certain other conduct of NTP, which had occurred after Mr McMahon had lodged his complaint, was victimisation. The EOC had dismissed that complaint as it 'lacked substance'.,NTP's general manger (Mr Vince Corlett) gave evidence in the hearing that none of the rent increases or related incidents were in any way connected with Mr McMahon's back injury. Rather, so far as any of the incidents between the parties were concerned, they eventuated because Mr McMahon was alleged, amongst other things, to be a 'troublesome' tenant. Mr Corlett did admit, however, that his attitude towards Mr McMahon was somewhat 'irrational'.,Until he lost his employment with NTP, Mr McMahon was being administered under NTP's workers compensation arrangements. Such matters, including his eventual dismissal from NTP, were, it seems, mainly handled from the Perth office of NTP or by NTP's insurers. ,Mr McMahon attempted to show a link between the various events concerning (from his point of view) his deteriorating tenancy arrangements with events and incidents related to his medical diagnosis or treatment. Essentially, in the absence of any direct proof of discrimination, Mr McMahon contended that correlation showed cause and that there was no other explanation for what had happened to him, other than it related to his back injury.,The Tribunal discussed the various authorities that considered evidential matters associated with proving discrimination. Suitable proof was needed, given the nature of the allegations made, to show that conduct was unlawful discrimination. Although proof of actual intention to cause discrimination was not required, an allegation of discrimination was nevertheless a serious matter that required satisfactory proof that the acts complained of were done 'on the ground of' the complainant having an impairment. The burden of proving that causative link lay with the applicant, although circumstantial evidence and inference may be relied upon (if based upon objectively proved facts).,The Tribunal held that poor management decisions or other unsatisfactory conduct directed to a tenant with an injured back (if that is what had occurred) were not proof of causation for discrimination purposes. It was not the Tribunal's task to judge the particular conduct or morality of the respondent or its agents. Conduct that was irrational did not make it, by itself and without more, discriminatory. Here, the Tribunal was not satisfied that a causal link had been established by the applicant. Moreover, there was evidence that a normalisation of rents process was affecting other tenants and that was a probable or at least a partial explanation for the alleged discriminatory treatment of the complainant. But, even if Mr McMahon had been singled out for adverse treatment in the area of accommodation, such conduct did not, without more, show relevant causation linked to his injured back. ,The complainant did not, amongst other things, provide any evidence of intentional acts of victimisation and the incidents complained of did not, in any case, meet the requirement that the alleged disadvantage be 'substantial and not trivial'. ,The complaints were dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : McMAHON and NANNUP TIMBER PROCESSING PTY LTD [2015] WASAT 125 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 28, 29 AND 30 JULY 2015 DELIVERED : 6 NOVEMBER 2015 FILE NO/S : EOA 19 of 2014

EOA 20 of 2014

BETWEEN : DAMIEN McMAHON

Applicant

AND

NANNUP TIMBER PROCESSING PTY LTD

Respondent

Catchwords:

Discrimination - Equal Opportunity - Direct discrimination - Impairment - Accommodation - Victimisation - Complainant residing in employer's accommodation close to timber mill - Complainant injured at work - Back injury - Rent subsidised by respondent who was both lessor and employer - Rent and other charges increased by lessor - Company policy of phasing out subsidies to lessees - Complainant the first lessee to suffer significant increase in rent - Complainant threatened with eviction - Other incidents between tenant and lessor including attempts to restrict water supply - Alleged detriment suffered by complainant - Whether lessor's conduct in relation to accommodation charges and associated acts done 'on the ground of' impairment - Whether causative link established - Intention and extent of knowledge of injury by respondent - Burden of proof - Circumstantial evidence - Complainant alleging that differential treatment followed medical events related to his injury - Whether correlation sufficient to prove cause - Complainant alleging that there was 'no other reason' for differential treatment of him - Complaints dismissed - Applicant failed to prove relevant acts were discrimination against him on the ground of his impairment - Observations on whether poor management practices prove discrimination - Victimisation complaint dismissed for lack of proof and as lacking in substance

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 62(C), s 66(A)(1), s 66A(1)(a), s 67, s 89, s 90, s 93(1)

Result:

Complaints dismissed

Summary of Tribunal's decision:

Mr Damien McMahon worked for Nannup Timber Processing Pty Ltd (NTP). He worked at NTP's timber mill in Nannup. NTP owns accommodation in Nannup which it leases to employees and nonemployees. Mr McMahon lived in Nannup in a cottage owned by NTP. Initially, the rental for that cottage paid by Mr McMahon was below comparative market rentals for Nannup.

Mr McMahon suffered a back injury at work. Because of that injury, Mr McMahon was eventually dismissed from his employment with NTP because of a lack of suitable duties for a person with this type of injury. However, he continued to reside in the cottage with his partner. Prior to his dismissal, but after his back injury, NTP increased Mr McMahon's rent and then subsequently sought to recover the costs of the supply of water to the cottage by imposing, for the first time, charges for water use.
NTP claimed that it was pursuing a policy of 'normalisation' of rents, that is bringing the rental and other charges up to market rates. In other words, NTP was, over time, phasing out its subsidies for the cottages. There was evidence that such phasing out of subsidies had, over time, affected other tenants in the cottages besides Mr McMahon. However, Mr McMahon appeared to be, in the relevant period, the first tenant caught by the implementation of NTP's policy. Mr McMahon experienced an apparently disproportionate (compared to other tenants) impact on his circumstances.
The increased rent and then the imposition of water charges led to various incidents and friction between Mr McMahon and NTP (including attempts by NTP to evict Mr McMahon). There were unannounced visits to the cottage by NTP and there was also an attempt by NTP to restrict Mr McMahon's water supply, events that were possibly in breach of Mr McMahon's lease. After a commercial property manager took over the administration of NTP's leases, matters between the parties settled down.
A complaint was lodged by Mr McMahon with the Equal Opportunity Commission (EOC) alleging that NTP had unlawfully discriminated against him on the ground of his impairment (that is, his injured back) in the area of accommodation. A further complaint was filed by Mr McMahon alleging that certain other conduct of NTP, which had occurred after Mr McMahon had lodged his complaint, was victimisation. The EOC had dismissed that complaint as it 'lacked substance'.
NTP's general manger (Mr Vince Corlett) gave evidence in the hearing that none of the rent increases or related incidents were in any way connected with Mr McMahon's back injury. Rather, so far as any of the incidents between the parties were concerned, they eventuated because Mr McMahon was alleged, amongst other things, to be a 'troublesome' tenant. Mr Corlett did admit, however, that his attitude towards Mr McMahon was somewhat 'irrational'.
Until he lost his employment with NTP, Mr McMahon was being administered under NTP's workers compensation arrangements. Such matters, including his eventual dismissal from NTP, were, it seems, mainly handled from the Perth office of NTP or by NTP's insurers.
Mr McMahon attempted to show a link between the various events concerning (from his point of view) his deteriorating tenancy arrangements with events and incidents related to his medical diagnosis or treatment. Essentially, in the absence of any direct proof of discrimination, Mr McMahon contended that correlation showed cause and that there was no other explanation for what had happened to him, other than it related to his back injury.
The Tribunal discussed the various authorities that considered evidential matters associated with proving discrimination. Suitable proof was needed, given the nature of the allegations made, to show that conduct was unlawful discrimination. Although proof of actual intention to cause discrimination was not required, an allegation of discrimination was nevertheless a serious matter that required satisfactory proof that the acts complained of were done 'on the ground of' the complainant having an impairment. The burden of proving that causative link lay with the applicant, although circumstantial evidence and inference may be relied upon (if based upon objectively proved facts).
The Tribunal held that poor management decisions or other unsatisfactory conduct directed to a tenant with an injured back (if that is what had occurred) were not proof of causation for discrimination purposes. It was not the Tribunal's task to judge the particular conduct or morality of the respondent or its agents. Conduct that was irrational did not make it, by itself and without more, discriminatory. Here, the Tribunal was not satisfied that a causal link had been established by the applicant. Moreover, there was evidence that a normalisation of rents process was affecting other tenants and that was a probable or at least a partial explanation for the alleged discriminatory treatment of the complainant. But, even if Mr McMahon had been singled out for adverse treatment in the area of accommodation, such conduct did not, without more, show relevant causation linked to his injured back.
The complainant did not, amongst other things, provide any evidence of intentional acts of victimisation and the incidents complained of did not, in any case, meet the requirement that the alleged disadvantage be 'substantial and not trivial'.
The complaints were dismissed.

Category: A

Representation:

Counsel:

Applicant : In Person

Respondent : Mr P Weeks

Solicitors:

Applicant : N/A

Respondent : Graham and Associates

Case(s) referred to in decision(s):

Acklin v Anti Discrimination Commissioner and Batchelor Institute of Indigenous Tertiary Education [2008] NTMC 30
Clayton and Australia Post [1998] VADT 23
Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16
Gounder v Allmand [2007] VCAT 1898; (2007) EOC ¶93-480
IW v City of Perth (1997) 191 CLR 1
Kovac and Australian Croatian Club Ltd [2014] ACAT 41
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
McMah v Simon Blackwood (Workers' Compensation Regulator) and BHP Billiton Coal Pty Ltd [2015] ICQ 9
Monash University v Kapoor [1999] VSC 463
Sanzana and Director General, Disability Services Commission [2011] WASAT 208
Sellen and TNT Australia Pty Ltd [2015] SAEOT 6
Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91
Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305
Summerville and Department of Education [2006] WASAT 368
University of Ballarat v Bridges [1995] 2 VR 418
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA) 1

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On 23 November 2013, the applicant in these proceedings, Mr Damien McMahon complained to the Equal Opportunity Commission (EOC) that he was the victim of unlawful discrimination by Nannup Timber Processing Pty Ltd (NTP). The EOC was unable to resolve the matter through their processes of investigation and conciliation and, on 7 May 2014, the Commissioner referred the matter to this Tribunal pursuant to s 93(1) of the Equal Opportunity Act 1984 (WA) (EO Act).

2 At all material times, NTP operated a timber mill in the Town of Nannup in Western Australia. NTP was Mr McMahon's employer, but Mr McMahon's complaint to the EOC was solely in relation to NTP's capacity as the lessor of his workrelated residential accommodation in Nannup. NTP has denied that it has or had ever engaged in unlawful discrimination in connection with Mr McMahon's accommodation.

3 Mediation in the Tribunal failed to resolve the matter and the matter proceeded to a three-day hearing in Busselton. Mr McMahon represented himself; NTP was represented by counsel, Mr P Weeks. The Tribunal acknowledges Mr Weeks' fair presentation of his client's case, his assistance to the Tribunal and his extensive cooperation with Mr McMahon as a litigant in person.

4 During an associated site visit to Nannup (in the presence of the parties), the Tribunal visited the precinct where some employees' cottages (including Mr McMahon's) are located. Such accommodation has been described in the proceedings as 'a number of cottages adjacent to the [timber] mill which [NTP] leases to [its] employees and [to] non-employees'. It is located in close proximity to the timber mill.

5 Mr McMahon, who was employed as a timber stacker, suffered from a back injury, namely 'a significantly herniated disc at L4/5'. At all material points in the proceedings, Mr McMahon was being dealt with by NTP's insurers under their workers compensation arrangements.

6 It is common ground in these proceedings that Mr McMahon is relevantly impaired with the meaning of the EO Act: see the definition of 'impairment' in s 4 of the EO Act. However, I note that NTP's General Manager located in Nannup (Mr Vince Corlett) alleged in his initial reply to the EOC (of 15 January 2014) that:

Mr McMahon is regularly seen about the township of Nannup. Mr McMahon continues to provide care and feed for his horses at a remote property. I am not medically qualified to comment on the degree of Mr McMahon's disability, however, it would appear to the casual observer that Mr McMahon has a reasonable degree of mobility.

I am not qualified to comment on what may or may not aggravate Mr McMahon's injury. I would assume that Mr McMahon's partner [Ms Kristen Santospirito] would be available to assist him with either the organising or the physical demands of relocating [following a notice of eviction issued by NTP, see below].

7 In January 2014, that is, after the EOC had notified NTP of Mr McMahon's discrimination complaint, the EOC received a further complaint alleging victimisation by or on behalf of NTP. That matter is dealt with separately below.

8 By consent, both complaints were heard and determined together, given their common substratum of related parties and relevant facts.

9 At the time of the hearing, and notwithstanding the events related below, both Mr McMahon and his partner continue to reside in NTP's cottage and are paying 'rent and water bills on a par with the other tenants'.

The allegations of discrimination

10 In short, Mr McMahon alleges that after his back was reinjured at work in August 2012, NTP treated him, because of that impairment, (that is, 'on the ground of'), 'less favourably than in the same circumstances, or in circumstances that are not materially different', than NTP 'treat[ed] or would [have] treat[ed] a person who does not have such an impairment': see s 66A(1)(a) EO Act.

11 The claim is one of direct discrimination. It is not a claim of indirect discrimination and it is a claim in this Tribunal unconnected with his employment or his workers compensation. With respect to the applicant, at various points in his case it appears that there was an attempt to conflate events connected with the administration of his workers compensation claim with his discrimination claim; these matters were put forward as selfevidently directly connected with Mr McMahon's impairment discrimination case.

12 However, the claim before the Tribunal is solely in respect of Mr McMahon's residential accommodation and it is impermissible to mix the two, except perhaps to acknowledge common elements relating to the injury constituting the alleged impairment. In any case, some caution might have to be exercised in this whole area because discriminatory conduct under an EO Act (if any) might nevertheless constitute 'reasonable management' under a workers compensation statute: cf McMah v Simon Blackwood (Workers' Compensation Regulator) and BHP Billiton Coal Pty Ltd [2015] ICQ 9; Summerville and Department of Education [2006] WASAT 368 at [75]. This issue need not be explored further in this case.

13 NTP's alleged discrimination against Mr McMahon was claimed to have occurred solely in the area of 'accommodation' (which is defined in s 4 of the EO Act so as to include 'residential' accommodation). In particular it is alleged that Mr McMahon was subjected to relevant 'detriment in relation to [that] accommodation occupied by [him]': see s 62(c), EO Act.

14 The general picture of the discrimination alleged against NTP, as narrated by the events presented by Mr McMahon, is that NTP at first sought repayment from Mr McMahon of an outstanding rental bond (in September 2012) and then significantly increased his rent from 7 December 2012. Further rental increases followed together with attempts to evict Mr McMahon. Associated charges for water consumption also increased over the relevant period.

15 The precise particulars of discrimination pleaded by Mr McMahon in his Statement of Issues, Facts and Contentions (prepared by a lawyer) are first, at [76], discrimination in the issuing of notices of termination of Mr McMahon's tenancy on 15 January 2013 and 31 October 2013. Secondly, it is alleged that Mr McMahon was subjected to certain 'detriment' as follows (at [77]):

(a) In October 2012, after the Applicant re-injured himself at work, the Respondent issued him with a notice of rent increase. Mr Corlett [NTP's General Manager] told the Applicant that if he did not like it, he could move out[;]

(b) The Respondent issued him with a second notice of rent increase in July 2013[;]

(c) After the Applicant refused to pay the second rent increase, Mr Corlett and another of the Respondent's employees attended the Applicant's property on three occasions, uninvited, with the intention of intimidating the Applicant and his partner[;]

(d) In November 2013, the Respondent increased the Applicant's water rate[;]

(e) Mr Corlett sent a plumber over to the Applicant's property to disconnect the water supply because he disputed the increased water rate[;]

(f) The Respondent increased the Applicant's water rate again in January 2014[;]

(g) The Respondent engaged debt collectors to recover the unpaid amount for water from the Applicant and threatened him with legal action[.]

16 Stripped of their adverse imputations, NTP does not generally dispute any of the central events just outlined but NTP says that, in effect, there are valid explanations for NTP's actions, the main one being the implementation of a policy of increasing rents to their commercial or market equivalents and action taken as lessor to recover outstanding rent or charges. As I have said, NTP denies any unlawful discrimination on the grounds of Mr McMahon's impairment.

17 NTP also maintained in these proceedings that Mr Vince Corlett, the General Manager of NTP and the Nannup Mill, and NTP's principal (and only) witness, had no knowledge, even if others in NTP did, of Mr McMahon's impairment until February 2013. In Mr Corlett's witness statement, his knowledge of the impairment is described as follows:

… throughout Mr McMahon's claim I have not had a detailed knowledge of his injury. I had minimum involvement in Mr McMahon's compensation claim and was only peripherally aware of its progress.

18 As will appear below, it is unnecessary to fully resolve this issue of the extent of corporate or individual knowledge of Mr McMahon's impairment.

19 At this point, it may be convenient to record Mr Corlett's summary view of his relationship with Mr McMahon. In his witness statement, Mr Corlett said:

I accept that my relationship with Mr McMahon has been strained. At times, I have been incredibly frustrated dealing with him as a tenant.

However, the fact that Mr McMahon has a back injury has never formed part of any of the decisions that I have ever made in relation to his tenancy.

20 I will return to these matters below.

How is discrimination established?

21 In Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent), Pritchard DCJ (as Her Honour then was) helpfully summarised the elements of a successful claim under s 66A(1) of the EO Act. Her Honour noted, at [32], that the applicant must show that:

a) he suffered from an impairment;

b) the [respondent] treated him less favourably than in the same circumstances or in circumstances that are not materially different, the [respondent] treats or would treat a person without such an impairment; and

c) he was treated less favourably on the basis of that impairment that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;

• it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct - it is enough if it is one of the grounds for the conduct;

• proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.

See Williams and Commissioner of Police[2005] WASAT 349 at [35] [38] and the cases cited therein, and see also s 5 of the EO Act.

22 Similar observations appear in Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [78] [80] (Pritchard DCJ and Member McNab).

23 Thus, Mr McMahon must:

… prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances … The expression 'less favourably' [appearing in the EO Act] bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case …

To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated …

It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.

Edoo

at [160] [162], internal citations omitted.

Causation

24 Importantly, 'establishing the existence of [the] causal link is frequently the most crucial element in any case': Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA) 1 (Zangari), citing C Ronalds, Discrimination Law and Practice (3^rded, 2008) at 36; now see, C Ronalds and E Raper, Discrimination Law and Practice (4^thed, 2012) at 35 (emphasis added).

25 That is, critically (and critically for this case; the Tribunal having raised the matter with Mr McMahon on more than one occasion), it must be proved that 'there is a causal connection between the ground of discrimination alleged and the decision or act complained about' (Laurent, at [32]). However:

It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the [EO Act] Act.

Zangari

, at [33], citing Kirby J in

IW v City of Perth

(1997) 191 CLR 1, at 63 (dissenting as to the result, but not on this point).

26 Ormiston J (as His Honour then was) suggested a formulation whereby the expression 'on the ground of', in this context, 'connotes a basis which actuates or moves a person to decide a matter or to act in a particular way': University of Ballarat v Bridges [1995] 2 VR 418 cited in Clayton and Australia Post [1998] VADT 23.

27 The learned authors of Australian and NZ Equal Opportunity Commentary (CCH, at [¶5-250]) have suggested that (emphasis added):

In order for an unlawful act of discrimination to have occurred, the ground or characteristic in question, that is, the complainant's sex, race, etc, must have a causal effect on the decision to commit the discriminatory act. An aggrieved person

has to be able to show a relationship of cause and effect

between the relevant characteristic and the action of the discriminator …

As a result of the decision of the High Court in Purvis v New South Wales (Department of Education and Training) [[2003] HCA 62; (2003) 217 CLR 92] (2004) EOC ¶93-305, which considered the expression 'because of' in the Disability Discrimination Act 1992 [Cth], it seems that the appropriate approach to expressions such as 'by reason of', 'on the ground of' and 'because of' is to question the 'true basis' or 'real reason' for the act of the alleged discriminator.

28 In addition, the following matters may be noticed which relate to how such matters are to be established or proved.

29 First, allegations of discrimination under the EO Act are to be generally characterised as of a 'serious nature', carrying serious consequences if proved: Edoo at [53]; but cf the authorities cited in D Allen, 'Reducing the burden of proving discrimination in Australia' (2009) 31 Sydney Law Review 579 and Hon Justice Duncan Kerr, 'A Freedom to be Fair', paper delivered to Excellence in Government Decision-making, AGS Symposium, Canberra, on 21 June 2013, at 11.

30 Accordingly, as Edoo suggests, at [53] (internal citations omitted):

[A]lthough the civil standard of proof on the balance of probabilities applies, [the Tribunal] must feel an 'actual persuasion' that the facts alleged … actually occurred and that [the Tribunal is] reasonably satisfied that the allegations of discrimination have been proved, before [the Tribunal] may make such a finding [of discrimination].

31 Secondly, given the 'serious' nature of the allegations made, facts must be proved to an appropriate standard (see above), and inferences may only be drawn from a process of 'logical deduction' from 'a foundation of objective facts'. See, for example, the discussion in Zangari, at [46] [55], and Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 (Soelberg) at [87] [92]. The onus of proof remains upon the applicant: Edoo at [53]. In Soelberg, it was observed, at [91], that:

A respondent is in a special position to explain the reasons behind impugned discriminatory conduct. Where an inference is drawn from a failure of a respondent to explain the reasons, this does not reverse the onus of proof.

32 Similarly, the decision of Byrne J in Monash University v Kapoor [1999] VSC 463 (Kapoor) at [64] (aff'd: [2001] VSCA 247; (2001) 4 VR 483; (2002) EOC 93-188) where His Honour said, at [64]:

… the burden of establishing each of the ingredients of impermissible discrimination lies on the complainant and that [he or she] may discharge this burden with respect to an ingredient by circumstantial evidence, that is, by inference from proved facts. Where an ingredient is proved in this way the complainant must, in accordance with ordinary principles, show affirmatively that the inference contended for was more probable than any competing innocent inference.

33 On drawing inferences from circumstantial evidence, I note that, recently, in Kovac and Australian Croatian Club Ltd [2014] ACAT 41 the following passage was cited, at [93], from Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40] [41]:

In a [discrimination] case depending on circumstantial evidence, it is well established that the trier of fact must consider 'the weight which is to be given to the united force of all the circumstances put together'. One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone ... It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.

34 Finally, I mention the suggestion made by the Court in Acklin v Anti Discrimination Commissioner and Batchelor Institute of Indigenous Tertiary Education [2008] NTMC 30 at [48], as follows (emphasis added):

[The complainant] must be able to point to some evidence, direct or circumstantial, that shows differential treatment on the basis of [the relevant characteristic]. Such an inference might be drawn in circumstances … where there is no direct evidence of discrimination

but there can be no other reason for the treatment at issue

. In such a case, an inference could be drawn that [the relevant characteristic] was a factor in the person's treatment.

35 What these matters mean for a case like the present is that sufficient evidence must be provided by the applicant showing or tending to show that NTP's differential treatment of Mr McMahon, if any, is actually (that is, causatively) linked to the existence of his back injury.

36 Mr McMahon's case on the causation element is encapsulated in these particular exchanges with the Tribunal (amongst other exchanges) about the link with discrimination to be inferred from NTP's conduct:

[

THE TRIBUNAL

]: … So I think you have given three incidents now of things happening that look, in your mind, suspiciously connected with your back injury … in terms of the way they treated you in relation to the tenancy. But your case is that it's only an inference to be drawn because there is no other explanation.

McMAHON, MR: Yes.…

[THE TRIBUNAL]: …and answering my central concern about whether there is any evidence of a causal link and, in the end, [for] all of it is there is no other explanation. There can be no other reasonable explanation. That is essentially your case.

McMAHON, MR: That's it. [T: 46-47; 72; 28.07.2015]

37 As the evidence presented and discussed below shows, the applicant has failed to discharge this obligation as regards causation. As will be seen, other possible explanations for NTP's treatment of him have also emerged from the evidence.

Background and key facts

38 The following matters are agreed or substantially agreed (at least to the extent indicated below) as between the parties.

39 Mr McMahon and the respondent entered into a periodic tenancy for his cottage from 7 November 2011 at an agreed rent of $92.50 per week. NTP says that this sum 'reflected the market rate for similar properties in the Nannup area'. However, the 'usual practice' of NTP was to charge tenants who are their employees 'less rent as compared to nonemployees'. This was, it was said by NTP, subject to NTP's 'absolute discretion'.

40 The parties do not agree on the extent to which the rental agreement was derived from or related to the relevant industrial Enterprise Agreement, but that dispute need not be resolved given the nature of the claim before the Tribunal. In any case, a union representative indicated to Mr McMahon that the matter 'was outside the workplace [and] the union couldn't be involved'.

41 Mr McMahon injured his back on or around 20 February 2012 and consequently lodged a workers compensation claim. In June 2012, Mr McMahon was certified fit to return to work on light duties. His back was subsequently reinjured at work in August 2012. NTP says that this event is more properly characterised as a 'reoccurrence of his previous back injury' but nothing seems to turn upon that characterisation. Mr McMahon was then certified as totally unfit for work.

42 By way of a letter dated 25 September 2012, NTP sought an arrangement for the payment of an outstanding rental bond. There is a disagreement between the parties as to whether this matter had been the subject of previous discussions or arrangements but, in any event, Mr McMahon signed a direct debit form to pay the outstanding bond in two instalments.

43 Notice was then given to Mr McMahon on 8 October 2012 that from 7 December 2012 his rent would increase to $150 a week. From January 2013, the other employee tenants had their rent increased to $120 per week, and the nonemployee tenants had their rents increased to $130 per week.

44 NTP says that these were commercial decisions based upon a rent review on the anniversary of each rental agreement. NTP's policy objective was said to be 'to align the income it was deriving from its rental properties with the average rent payable in the Nannup area'. The parties are in dispute as to the extent to which, if any, Mr McMahon notified or discussed with NTP's representatives the alleged hardship that would flow from such a significant rent increase.

45 On 15 January 2013, NTP gave Mr McMahon 60 days' notice of termination of his lease. No grounds were specified in the statutory Notice of Termination. This is permissible under Western Australian tenancy law. However, for the purposes of this hearing NTP alleged, amongst other things, that Mr McMahon had not kept his property in a suitable state of tidiness or cleanliness. It was alleged that he had allowed various materials to accumulate on the property which might also have been a 'fire hazard'. Such items included 'baled hay'.

46 A draft notice, at any rate one not served, identifying such matters was produced to the EOC by NTP from its records. That notice, dated 3 October 2012 gave only seven days' notice of eviction. In his witness statement Mr Corlett also mentioned alleged damage to a front verandah balustrade. Mr McMahon denied that the premises were ever untidy or blighted with garden refuse or rubbish or that he had in any way damaged the cottage.

47 Eventually, on 11 April 2013, NTP withdrew its Notice of Termination. This appears to be connected to proceedings under the tenancy law commenced by Mr McMahon in the Busselton Magistrates Court. NTP said in these proceedings that this was because the property had, by then, been repaired and 'cleaned to an acceptable standard'.

48 During this period, Mr McMahon did not return to work because of his injury and a lack of suitable duties available for him. Eventually, on 5 July 2013, Mr McMahon was assessed as having a permanent impairment of the lumber spine preventing him from returning to his preinjury duties. Over the next few months Mr McMahon's workers compensation injury assessments would ultimately lead to his termination from work. That event occurred (with four weeks' notice) on 1 November 2013. That notice of termination was not issued locally, but was issued from Perth by the HR department of NTP.

49 On 19 July 2013, Mr McMahon was given notice that the rental on his property would further increase, from $150 to $180 per week. Again, NTP maintains that this event was the application of its policy of the commercial or market alignment of all rents in the precinct.

50 It appears that other tenants also received notice that their rents were going to increase, but that Mr McMahon was the only tenant who was facing a rental of $180 per week. Mr McMahon received advice from the Department of Commerce that from 1 July 2013, lessors were required to serve a formal notice of rental increases. Thereafter, exchanges took place concerning the circumstances and the validity of the rent increases and an extra oneoff charge (of $60) imposed upon Mr McMahon. Mr McMahon did not sign or return his deduction forms in apparent protest at the increases, which he and his partner saw as unjustified and unfair.

51 There followed a particular episode which occurred at the cottage. This incident is perhaps illustrative of a deteriorating relationship between the parties, and should be addressed in a little detail. The applicant's Statement of Issues, Facts and Contentions alleges that the following events occurred (at [44] - [49]):

On the morning of 28 October, 2013, Mr Corlett [NTP's General Manger] and Mr Gizzarelli [another senior NTP employee] arrived unannounced at the Applicant's residence. The Respondent['s agents] banged incessantly on the front door. The Applicant did not answer.

At approximately 7.00 am on 1 November 2013, Mr Corlett and another of the Respondent's employees, Charlie Marlow, went to the Applicant's house. Mr Corlett picked up a broom from the front verandah and commenced banging on the front door loudly and repeatedly for approximately 10 minutes, whilst demanding that the Applicant get up and come to the door.

Neighbours came out of their houses to see what was going on. The Applicant and his partner felt intimidated and frightened so did not answer the door. Mr Corlett and Mr Marlow left but returned about an hour later.

Mr Corlett banged on the front door with the broom for several minutes, demanding that the Applicant come to the door. Mr Marlow went to the rear of the house and tried to open the back door. The Applicant did not respond.

On the same day, the Applicant received two letters from the Respondent. The first, dated 31 October 2013, gave the Applicant 60 days [sic] notice of termination of tenancy under the Residential Tenancies Act, and attach[ed] a Notice of Termination form.

The second, dated 1 November 2013, gave the Applicant four week's [sic] notice of termination of his employment, due to his injury.

52 NTP's Statement of Issues, Facts and Contentions alleges in reply (at [35] - [38]):

The respondent does not agree with [the description of events relating to the two visits to the premises] and says that they are irrelevant to Mr McMahon's contentions of discrimination in the area of accommodation.

The respondent does not agree [with the further description of events relating to the two visits to the premises] and says that Mr Corlett and Mr Marlow attended the applicant's property as they had concerns for the applicant because he had been uncontactable and they wanted to ensure that he was not severely incapacitated or injured.

The respondent agrees [that two letters were received by Mr McMahon].

The respondent [says that, as to the notice of termination of employment] letter that was sent to the applicant[, it] was to advise him that NTP was not in the position to offer him a position with duties the performance of which would not jeopardise his recovery.

53 On the site visit already referred to, the Tribunal was shown markings (very small dents) on the door which appear to be consistent with the events alleged by Mr McMahon and his partner, Ms Santospirito.

54 Mr McMahon and his partner gave oral and written evidence generally consistent with these various allegations, although their evidence suggested two visits by NTP's agents on 1 November 2013. They were both crossexamined by Mr Weeks but neither witness resiled from their respective recollections of the incident or incidents that occurred on 1 November 2013.

55 Mr Corlett's response to this incident, and generally, is dealt with below.

56 Thereafter, as was mentioned above it seems in tandem with his notice of termination as regards employment, dated 1 November 2013 Mr McMahon received a further notice of eviction from his premises, with 60 days' notice and no grounds specified.

57 On 6 December 2013, Mr McMahon noticed a significant increase in his water charges which he refused to pay. He alleged that other tenants were not being asked to pay the higher water rate by NTP. This led to an allegedly overdue amount of $115 being owed by Mr McMahon and then to a series of incidents on 20 December 2013 when NTP sent a plumber to the premises to restrict the water supply to the property. Mr McMahon maintains that the plumber arrived 'to remove the water meter' altogether. NTP's agents have disputed the applicant's characterisation of exactly what occurred on that day but admit that a plumber was engaged to restrict the water supply 'because the applicant's water account was outstanding'.

58 I interpose to record that around 18 December 2013, a letter from the EOC was sent to NTP summarising Mr McMahon's impairment discrimination complaint. NTP claims that the complaint was received on 23 December 2013. In his oral opening to his case, Mr McMahon submitted that the increase in water rates or the attempted water restrictions or both were, in reality, a victimisation complaint. That is, the alleged events came about as a retaliatory measure undertaken by or on behalf of NTP when (and in response to) NTP were informed of Mr McMahon's EOC complaint. However, the EOC never referred a complaint to the Tribunal in that form. An altogether different complaint of victimisation was referred by the EOC (see below).

59 The short answer to this particular claim of victimisation is that the Tribunal 'cannot inquire into alleged contraventions not included in the original complaint to the [EOC]': Winter and Commissioner of Western Australian Police Service [2006] WASAT 87 at [36]; Sanzana and Director General, Disability Services Commission [2011] WASAT 208 at [18].

60 I return to the narration of events.

61 Consequently, after a 'stand-off' of sorts on that day (20 December 2013), Mr McMahon served a notice on NTP alleging a breach of the tenancy agreement. Matters apparently escalated with higher water charges imposed (from February 2014), and the eventual involvement of debt collectors. Matters continued in this vein until July 2014 when NTP handed over the administration and management of all of their leases to a local real estate agent. Water rates returned to the old figure and any alleged debts have, it appears, been placed in abeyance.

62 NTP says that the handing over the administration of the leases was commercially motivated.

Mr Corlett's evidence

63 We can commence a review of Mr Corlett's evidence with the issue of disparate rentals. Mr Corlett said in his oral evidence:

The housing estate at Nannup is has been all over the show. We have and it's only this year [2015] that we've managed to achieve a flat rate across the entire without making any discriminations between employee, nonemployee. The Mr McMahon's rent going up was the first of all of them going up. They're all now, I think, in a level of - I think we're aiming for [$]175 [per week], being across the board, regardless of who you are; so no discrimination between employee and nonemployee. [T: 166; 29.07.15]

64 In Mr Corlett's witness statement in the proceedings, he pointed to the following matters (in summary):

• the historical extent of the generous subsidies directed to NTP's cottages and houses (initially tenants were paying only approximately half the market rate for Nannup);

• that the policy of subsidy phase-out had been pursued since 2008;

• that rents were reviewed bi-annually since 2009;

• that other tenants, besides Mr McMahon, had expressed dissatisfaction with the increases; and

• that the NTP Housing Estate was treated as a 'distinct commercial component of its business'.

65 He also stated that (emphasis added):

The way rents and outgoings have been charged between different tenancies, be it employees or non-employees,

has never been uniform

. Since NTP started increasing rents, there was even less consistency. That inconsistency was due to a range of factors such as:

a) different rents being charged at the commencement of new tenancies;

b) the fact that some rents initially were only increased annually, and then at 6 month periods, so as to comply with the Residential Tenancies Act 1987; and

c) differences in the qualities and features of the rented houses.

[It] was my intention to increase the rents for each tenancy by manageable amounts over time. It was intended that all rents in the Housing Estate (for employee and nonemployees) would eventually be raised to amounts comparable to those applying in the town of Nannup and all outgoings [such as water charges] would be passed on to the tenants.

66 Importantly, Mr Corlett drew attention to particular entries in NTP's Rent Registers for October and December 2013, illustrating NTP's rental normalisation policies. These entries were as follows (cross references to documents have been omitted):

[a] the number of tenants paying the same rent as Mr McMahon changed by October 2013 to nine …; and

[b] in November and December 2013, nine other tenants paid the same rent as Mr McMahon …

67 The entries produced are consistent with these assertions.

68 As to the incident on 1 November 2013, Mr Corlett states:

I went to [Mr McMahon's cottage in View Terrace] for the purposes of explaining the water cost. I went because attempts to contact Mr McMahon by post had received no response.

Initially, I knocked on the front door in a usual fashion. There was no response. I believed that Mr McMahon was almost certainly inside the house, it was in the morning and his vehicle was parked in the drive. I did not know if he was injured and had concerns about his reluctance to answer the door. When he did not answer, I knocked loudly on the door.

I did not bang on the door for 10 minutes, or even 5 minutes. I did not damage the door and was not yelling.

That was the only time I tried to engage with Mr McMahon at [his home on] that day.

69 Mr Corlett was asked by the Tribunal in relation to his treatment of other tenants by restricting their water supply to 'encourage' the payment of amounts unpaid. The exchange was as follows:

Q.

[

The Tribunal

]: … Given that there were people owing much greater sums, did you ever contemplate or take any action to restrict their water?

A. [Mr Corlett]: No.

Q. Why not?

A. Well, we had been able to contact those people and speak to them about it.

Q. So as far as you're aware there was an excuse or an arrangement in place or some other satisfactory [arrangement]?

A. Yes.

Q. All right. And is your answer then that - for Mr McMahon - there was no such arrangement or communication with him?

A. No. [T: 186-187; 29.07.15]

70 In his witness statement, Mr Corlett said this of his relationship with Mr McMahon:

On 31 October 2013, I sent a notice to Mr McMahon terminating his tenancy … The reasons why I did that are:

(a) in part because Mr McMahon was, I believed, in arrears of rent and was refusing to pay; and

(b) in part because I formed the view that Mr McMahon was a bothersome tenant that NTP was better off not having on its rental books.

I formed the view that Mr McMahon was bothersome due to:

(a) the history of his rental property having been damaged and not maintained … and the fact that an eviction notice was required before that matter was addressed;

(b) the history of him contesting rental increases and refusing to pay;

(c) the refusal of him to pay [his] September 2013 rent increase based on what I saw as an irrelevant technicality.

It was my overall assessment of Mr McMahon as a tenant that he was often in breach of his obligations, was generally uncooperative and adversarial and that it was not worth maintaining his tenancy, so I sent him the notice terminating his tenancy.

71 The Tribunal asked Mr Corlett in his oral evidence to expand generally upon the reasons for NTP's apparently differential treatment of Mr McMahon in relation to his accommodation arrangements with NTP. Mr Corlett answered as follows:

Q.

[

The Tribunal

]: [You said that Mr McMahon] was troublesome and you were frustrated and that's in your witness statement. The reason for that frustration is still not particularly clear to me. Was it just because you didn't like him in some way or he was causing trouble with other people? I'm really striving to understand why there was this sense of frustration with him because it's not clear to me so far?

A. [Mr Corlett]: Look, other than being what I would term an undesirable tenant, there's really not - no other way I can give you an explanation.

Q. But why is he so undesirable? I mean he seems to have paid his rent and he seems to have been a loyal employee and there's no drugs [unlike another tenant identified in the proceedings], there's no – there's not the suggestion that he is noisy or that there's something going on. I mean why would you classify him as undesirable?

A. So there is no tangible reason as such, but I'm sure if I trolled through the documents there, by Mr McMahon's own admission, at one point I think in the EOC documents he states that he would find it very difficult - like I said by his own admission - to find alternate rentals in Nannup. […] I - pretty much we put down to my - my explanation is that there's no logical …

Q.There's just, what, a feeling?

A. Yes.

Q. [An] understanding that he is not a good bloke, or he is not a good tenant, or he is not going to get on in some way? Is this what you're driving at?

A. For - for lack of a better term, yes.

Q. […] So even if that's the case you say that that's not the discrimination that the [EO Act] covers, it's nothing to do with his impairment it's just some dislike […] maybe even irrational …?

A. Yes, totally. Not rational, but …

Q. But there it is, but not discriminatory under the Act, that's essentially your case?

A. Yes. As I say by - by Mr McMahon's own admission he would find it difficult to get …

Q. Yes, I'm not sure he is admitting that he is a bad tenant in any way or that people might think he is not worthy of tenanting a property, he is just saying it's difficult given - as I understood it - the financial situation […] your view is that there's – that's an admission by him that other landlords might have the same problem; is that what you're saying?

A. Yes. [T: 195-196; 29 07.15 (emphasis added)]

Other evidence produced by the Applicant

72 Mr McMahon and Ms Santospirito's respective evidence on the principal issues is referred to above.

73 Because of the conclusions that I have reached on the main issue of discrimination (see below) it is unnecessary to address Mr McMahon's other evidence dealing with his alleged losses and psychological stress. This means it is also unnecessary, amongst other things, to deal with Mr Weeks' criticisms of the alleged lack of objectivity of the applicant's expert and treating clinical psychologist, Ms Claudia RosenbachZiembinski.

Conclusions on the Respondent's motivations

74 There is no doubt that a visit to Mr McMahon's home by NTP's agents took place sometime on the morning of 1 November 2013. It seems more probable than not that NTP's agents effected a noisy, possibly very noisy, visitation. It seems implausible that the visit was in connection with Mr McMahon's welfare (as NTP has appeared to suggest), given the record of dealings between the parties todate, indicating a generally deteriorating relationship (including, presumably, NTP's reaction - whether justified or not - to Mr McMahon's recourse on two occasions to his legal rights in connection with his tenancy).

75 However, whatever the rights and wrongs of any of these various activities are on the part of NTP as lessor (and whether they are, say, breaches of the right to quiet enjoyment under the lease) they do not, in and by themselves, demonstrate relevant discrimination against Mr McMahon on the ground of his impairment.

76 Similar conclusions are to be reached in relation to the other major incidents or exchanges occurring between the parties.

77 And, it is axiomatic that, without more, correlation does not imply cause. Thus, a sequential or closely connected series of events (for example, notice of termination of the lease followed shortly thereafter by notice of termination of employment), in and by themselves, do not demonstrate relevant discrimination against Mr McMahon on the ground of his impairment. Rather, these various events, seen in their broadly chronological context, suggest responses and counter responses to independently occurring although related events (such as confirmatory medical assessments of permanent injury and the unavailability of work for an employee with that status). And, even if animus directed towards Mr McMahon were to be demonstrated in these incidents, again it does not, without more, show relevant discrimination against Mr McMahon on the ground of his impairment.

78 An examination of the rent and water increases across a number of tenancies in the cottages' precinct suggests that Mr McMahon was, unfortunately for him and probably because of the anniversary dates of his original lease, the first 'victim' of phasedin, marketbased rents. Again, there is no relevant or cogent evidence that such a disproportionate impact on Mr McMahon, compared to other tenants (assuming that is what it was), shows relevant discrimination, in the sense discussed above. And, even if Mr McMahon had been initially singled out to pay higher rent or charges that would not necessarily demonstrate, without more, relevant discrimination against Mr McMahon on the ground of his impairment.

79 In short, in my view, there is nothing in the evidence to show 'cause and effect' as alleged by Mr McMahon, and nothing in the evidence to draw an adverse inference of a relevant connection between Mr McMahon's treatment and his impairment. Rather, Mr Weeks fairly summed up the state of the evidence as to Mr Corlett's likely real motivations for his treatment of Mr McMahon (at least at the point when Mr McMahon had specifically entered into his consciousness) as any, or a combination of the following matters:

[A] perhaps irrational dislike of Mr McMahon, and [Mr Corlett's] view that he's a bad tenant, and that the company was better off without him, when it ultimately gets down to it.

80 I accept the thrust of this submission. Of course, other similar motivations, unconnected with Mr McMahon's impairment, might have also intruded along the way, but these identified matters represent, I think, (whether objectively justified or not) the dominant strands of Mr Corlett's (and therefore NTP's) thinking at the relevant time.

Conclusions

81 The Tribunal has no jurisdiction to inquire into whether Mr McMahon should have been treated by his lessor (and his employer) more charitably and, if so, to what extent because of his personal or other circumstances. I will return to this point in a moment.

82 Suspicion, conjecture and unsupported inferences are not sufficient evidence to discharge the onus on the applicant to show some logical connection based upon relevant objective facts proving discriminationto the relevant standard on the ground alleged. Further, as I have already indicated, the Tribunal does not sit to pass judgment on the morality of NTP's or its agents' conduct in its relationships with its tenants and employees. And, even if findings adverse to NTP were made on such matters, again, they are not in themselves relevant evidence, let alone proof, of discrimination under the EO Act.

83 Accordingly, the Equal Opportunity Tribunal of South Australia could find, as it did recently in Sellen and TNT Australia Pty Ltd[2015] SAEOT 6, at [19], that certain conduct of a manager in relation to an employee with autism 'was unfair and irrational' but that did 'not make it unlawful' under the local equivalent of the EO Act. As was similarly noted by the Victorian Tribunal, in Gounder v Allmand[2007] VCAT 1898; (2007) EOC ¶93-480, at [94], legislation such as the EO Act is not concerned with,

… the behaviour of an employer that is industrially unwise, contrary to sound management principles, capricious or unjust. The complainant must establish discrimination [under the relevant EO Act].