Merrick v Wallace Bishop Pty Ltd

[2008] NSWADT 89

CITATION:	Merrick v Wallace Bishop Pty Ltd [2008] NSWADT 89
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Kerrie Merrick RESPONDENT Wallace Bishop Pty Ltd
FILE NUMBER:	071018
HEARING DATES:	27, 29 and 30 August 2007
SUBMISSIONS CLOSED:	30 August 2007
DATE OF DECISION:	19 March 2008
BEFORE:	Ireland G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Carers' Responsibility Discrimination - victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Browne v Dunn (1893) 6 R 67
REPRESENTATION:	APPLICANT In person RESPONDENT E Kennedy, barrister
ORDERS:	1. The complaints of discrimination on the ground of carers’ responsibility is not substantiated and is dismissed 2. That the claim of victimisation is not substantiated and is dismissed.

REASONS FOR DECISION

Background

1 The Tribunal has conducted an inquiry into complaints made by the applicant in which she alleged that the respondent has discriminated against her on the ground of her responsibilities as a carer and on the ground of victimisation.

2 The applicant appeared in person before the Tribunal. The specifics of the allegations of the applicant altered in some details between the Points of Claim that she filed with the Tribunal on 18 May 2007; her opening statements before the Tribunal; and her final submissions to the Tribunal after the evidence was concluded. The Tribunal has accepted that the best statement of the applicant’s allegations are those made in her final submissions to the Tribunal and can be summarised as follows:

1. An allegation of direct discrimination under s 49T(1)(a) of the Anti-Discrimination Act 1977 (the Act) in that the applicant was less favourably treated by the respondent on 21 September 2006 as she was rostered on for work at the Tuggerah store of the respondent to work on Thursday, 21 September 2006 between the hours of 8.00am and 9.00pm and that she was denied by the respondent the right to take a break around 7.00pm when she needed to attend to her daughter to inject her with a drug prescribed for a condition arising out of her pregnancy.

2. That under s 49T(1)(a) of the Act, the applicant was discriminated against unlawfully, by the respondent on 23 September 2006 as she was presented that day with a new roster for the month of October under which she was required to continue to work on Thursdays between 8.00am to 9.00pm.

3. That the respondent refused to extend to the applicant 2 days carers’ leave which, it is alleged, the applicant was entitled to under the terms of her workplace agreement with the respondent.

3 It is alleged by the applicant that these acts of discrimination were unlawful under s 49V(2)(a) of the Act as the acts of discrimination breached the terms and conditions of employment between the parties and also, under sub-s 49V(2)(d) of the Act as the discrimination subjected the applicant to a detriment.

4 The applicant stated that she was bringing her claims as complaints of direct discrimination.

5 In addition, the applicant complained that she was the subject of victimisation under s 50 of the Act. She specified the victimisation was constituted by the cumulative result of the following circumstances:

1. On 19 September 2006, in a phone call to Belinda Milne, the manager of the Tuggerah store of the Respondent, the applicant advised Ms Milne of the situation that had arisen in relation to the need to inject her daughter on a daily basis and told Ms Milne that on 21 September 2006, when she was rostered on from 8.00am to 9.00pm that she would need to leave the store to inject her daughter around 7.00pm and that Ms Milne in that conversation in a belligerent tone told the applicant that she could not leave the store without adequate staff support being left at the store. The applicant alleged that she told Ms Milne that it was against the law for her to refuse to allow the applicant to attend to her daughter’s needs.

2. At a meeting on 21 September 2006 with Mr Patrick Butler, the area manager of the respondent, and Ms Milne, the applicant alleged that she told Mr Butler and Ms Milne that it was discrimination if she was not allowed to take time out in order to inject her daughter.

3. At a meeting on 23 September 2006 with Ms Milne and Mr Knight, the retail manager of the Tuggerah store, Ms Milne produced a new roster for the month of October 2006. The roster provided for the applicant to have Fridays and Saturdays off but required the applicant to work each Thursday from 8.00am to 9.00pm. The applicant told Ms Milne that this arrangement discriminated against her because of her daughter’s illness. Ms Milne stated that the arrangement was not discriminatory and had nothing to do with the illness of the applicant’s daughter. The details of the conversations at this meeting are set out later in the decision.

6 The applicant alleged that the cumulative effect of the allegations of discrimination that the applicant made against the respondent was that she suffered a detriment from such a stressful reaction that she was obliged to immediately leave the store on 23 September 2006 and that her medical condition subsequently has prevented her from returning to work with the respondent. The evidence shows that the applicant has not worked with the respondent since 23 September 2006 yet the respondent has confirmed to the Tribunal that it regards her position as still available to her. The applicant has stated that she is not able to return to her former employment because of her continuing medical condition.

7 The respondent conceded that the circumstances of the applicant brought her within the meaning of ‘responsibilities as a carer’ in s 49S of the Act.

Chronology of relevant events

8 The evidence presented to the Tribunal by the applicant comprised a lengthy statement by the applicant with numerous attachments; a document which she called ‘Summary in Response’; a document in response to the statements submitted by the respondent; and a statement by Karlene Potts, who was the manager of the Tuggerah store of the respondent from the time of its opening on 11 July 2005 until she was transferred to the respondent’s Erina store in late August 2006 at the time when Belinda Milne took over the position of manager of the Tuggerah store. The applicant and Ms Potts had been friendly for approximately 5½ years as they had worked together at a previous jewellery store before they worked at the respondent’s Tuggerah store. The applicant supported her statements with oral evidence before the Tribunal including cross-examination by the respondent’s counsel.

9 The respondent’s evidence comprised statements by Ms Milne, Mr Butler, Mr Knight and Mr Gunther, the group retail manager of the respondent. Each of the respondent’s witnesses gave oral evidence before the Tribunal. Although invited to do so, the applicant did not cross-examine the witnesses except in some cases in a short and ineffective manner.

10 The Tribunal has examined this evidence and has isolated the most relevant aspects as they relate to the allegations of unlawful discrimination and victimisation. The evidence is best understood by setting out in chronological order the events as they occurred and, where there is conflict in the evidence in material respects, to set out the different versions of that evidence.

July 2005 :
The applicant commenced employment with the respondent as a trainee store manager at the opening of its Erina Store.

The applicant was appointed assistant manager at the Tuggerah Store in September 2005.

The applicant’s position was changed to a sales associate at the Tuggerah Store in August 2006.

June 2006 :
The applicant was issued by the respondent with a notice which it called a First Short Term Underachievers Review. This arose out of the failure of the applicant to achieve her sales budgets for a period of 3 months.
July 2006 :
The applicant was issued by the respondent with a further review notice as she had not met her sales budget for the month of July 2006.
16 August 2006 :
Mr Gunther, the Group Retail Manager, held a meeting with the applicant. Mr Gunther told the applicant that she had not met her sales budget in August 2006 and she had not met her sales budgets for any of the months since February 2006. He told the applicant that she was to be put back on the sales floor as a Sales Associate in lieu of her managerial position but with no reduction in salary. He told her that her sales results would be reviewed over the coming months and her future employment would be reviewed at the end of August 2006.
15 September 2006 :
The applicant was on sick leave.

The applicant was told of her daughter’s medical condition and the need for her daughter to be injected each day at the same time i.e. at 7.00pm after the applicant had finished work on each day except Thursdays when she was rostered from 12.00noon to 9.00pm on alternate Thursdays.

The applicant stated that her daughter was aged 27 years and during her first pregnancy 7 years previously, had developed an extensive deep vein thrombosis to her left leg which was life threatening to her and to her embryo. At that time, the daughter required hospitalisation including a long-term Clexane injection twice daily at the same time each day and that the applicant administered each injection to her daughter. The applicant explained that with her daughter’s second pregnancy it was now necessary to reinstate the daily injections of Clexane.

The applicant stated that she phoned Ms Milne and told her that she would require Monday, 18 September 2006 and Tuesday, 19 September 2006 as unpaid carers’ leave as her sick day leave had been exhausted. She told Ms Milne that she would definitely return to work for her rostered shift on Thursday, 21 September 2006, from 12.00noon to 9.00pm.

Ms Milne agreed to these requests.

16 September 2006 and 17 September 2006 :
The applicant was on leave as these days were her rostered days off.
18 September 2006 and 19 September 2006 :
The applicant was absent on unpaid carers’ leave.

On 19 September 2006, Ms Milne phoned the applicant at her home in relation to the roster for Thursday, 21 September 2006, being the next day that the applicant was rostered for work. In that conversation Ms Milne requested the applicant to work from 8.00am to 9.00pm because of staff shortages. Ms Milne stated that she had exhausted all other means of trying to get somebody else to fill in on the Thursday, but there was nobody else available. She stated that she asked the applicant whether she could help her out and work the full day on the Thursday and that the applicant replied that that was no problem.

The applicant stated that in the telephone conversation, Ms Milne abruptly informed the applicant that she must work from 8.00am to 9.00pm when she returned to work on Thursday, 21 September 2006. The applicant stated that she said that she would do the hours but she would need to leave the store in her break between 6.30 and 7.30pm in order to inject her daughter. The applicant stated that Ms Milne refused that request and said ‘No you can’t leave the shop as it will only leave one person in the store’ and that when the applicant pointed out that she needed to give the injections, Ms Milne said ‘It would only leave one person in the store, you won’t be getting a break.’

Ms Milne said there was no mention in that conversation of the applicant having to give her daughter injections. Ms Milne said that she was not aware at that stage that the applicant’s daughter required injections.

20 September 2006 :
The applicant did not attend the Tuggerah Store as this was a rostered day off. The applicant stated that she received a phone call from Dr Forsyth, a haematologist attending to her daughter, who advised the applicant that it was necessary to bring forward an appointment for him to see her daughter to 22 September 2006.

The applicant stated that she phoned Ms Milne requesting that she be allowed to take off the 22 September 2006. The applicant stated that Ms Milne said ‘Well, okay. But you cannot take it as sick leave as that is exhausted or as annual leave as you need to give a month’s notice, so it will have to be a rostered day off even if you have to work 10 days straight or more. Other people have lives you know.’ The applicant stated that this response caused her distress and to feel sick in the stomach as it showed no empathy for the applicant’s position in having to attend regularly to her daughter’s injections.

21 September 2006 (Thursday) :
The applicant attended at the Tuggerah Store. The applicant stated that early in the afternoon Ms Milne requested that she accompany her and Mr Butler, the Area Manager of the Respondent, to a meeting which was held in the Food Court at the Tuggerah Supermarket. At that meeting Mr Butler handed the applicant a letter which he described as an ‘official warning letter.’ The letter refers to the unsatisfactory sales record of the applicant and to her conversation with Mr Gunther when he told her that her position would be reviewed at the end of August 2006. The letter concludes ‘As discussed with Don, your future employment at Wallace Bishop would be reviewed at the end of August 2006. Kerry, you did achieve the minimum requirement of bronze level sales budget for August 2006 in the Tuggerah Store. Should you not continue to achieve your monthly bronze sales budget by September 30 2006, your future employment at Wallace Bishop will again be reviewed. I will meet with you and discuss your September results on October 4 2006.’

Mr Butler stated that he told the applicant to read the letter and to make sure she understood it and to ask any questions. He said that the applicant stated that she understood the letter. He said that when she had read the letter she said to him that she required time off to inject her daughter because she was not feeling well and she went into some detail as to what was involved. Mr Butler stated that he told the applicant that he was sorry for her daughter and that he would not want to stand in the way if anything would happen to her and that he would feel bad about that and that he wanted to make sure that would not happen.

Mr Butler stated further that the applicant responded that she wanted some carers’ leave and that she was entitled to take carers’ leave. Mr Butler said that he responded by saying that he was not familiar with the requirements for carers’ leave but if she was entitled to it then that was fine with him. He stated that he would get in touch with the respondent’s pay office to see about the applicant’s entitlements and he would get back to her.

Mr Butler stated that the applicant also said that she needed time off around 7 o’clock every day to attend to her daughter and that he replied that was not an issue and that the applicant could take the time off if she wanted to in her meal break. Mr Butler stated that he did not recall that there was any further discussion about staffing levels at the store on Thursday nights.

Mr Butler further stated that after the meeting he went to the store and phoned the payroll official who told him that the applicant had used up most of her sick leave and had only 2 hours of sick leave available to her. Mr Butler stated that he then spoke to the applicant, told her what the position was with her sick leave and that she could take a full day at sick pay and that she was entitled to 4 days carers’ leave each year.

Ms Milne, in her evidence, stated that when the discussion with the applicant dealt with the need for the applicant to leave the store to inject her daughter, she pointed out that it was not possible, for security reasons, to leave only one person in the store. She stated that Mr Butler then said that she should arrange for 3 people to be rostered on the Thursday evening so that the applicant could take her break and still leave 2 people to attend to the store. Ms Milne denied that she told the applicant that she could not leave the store that evening to attend to her daughter. She stated that she agreed with the applicant that she could take the following day off in order to attend with her daughter on the specialist doctor. She said that the applicant asked her whether she was entitled to time off in lieu of her having to work on a Thursday evening. Ms Milne stated that she told the applicant she would have to look into that and that she would get back to her.

The applicant stated that soon after the meeting started she was asked how long was it going to be for the applicant to need to take time off with her daughter. She said that Ms Milne asked her why can’t she inject herself and why can’t her husband do it? The applicant said that she proposed a reasonable working solution that would require the applicant to work Thursdays from 8.00am to 5.30pm until the end of February or the end of March 2007 by which time her daughter would no longer need to be injected. She said that Ms Milne refused this suggestion as she said it was not fair to others.

The applicant said that she stated that it was against the law to deny her the time required as a carer to attend to her daughter and that it was unreasonable and that it was a matter for her to choose how she used her break and that the respondent needed to make alternative arrangements as she would be leaving the store that night to go and give her daughter an injection and that she was also having the next day off to take her daughter to the specialist.

The applicant stated that at about 5.55pm that evening, Ms Milne rang the store and the applicant answered the phone. The applicant said that Ms Milne told her in a very nasty tone that she had spoken to Mr Butler again and ‘we can make you work 8.00am to 9.00pm every Thursday so think yourself lucky.’ The applicant said that Ms Milne then said abruptly ‘I want to speak to Emma’ (another staff member).

The applicant stated that she left the store at 6.35pm and went to her daughter and gave her the injection and that she returned to the store at about 7.35pm.

22 September 2006 :
The applicant took unpaid leave to attend with her daughter on Dr Forsyth.
23 September 2006 (Saturday) :
At approximately 9.00am, Ms Milne requested the applicant to accompany her and Mr Knight to a meeting which was held at the Coffee Club Restaurant in the Tuggerah complex. Mr Knight stated that he had been asked by Ms Milne to sit in on that meeting.

Mr Knight stated that at the commencement of the meeting, Ms Milne outlined a number of matters that she wished to discuss including changes to the current roster; issues in relation to carers’ leave; the provision of a doctor’s certificate that had been previously requested; some general paperwork; issues in relation to remaining at the Tuggerah Store until late at night; counting the till in the morning and at night; and issues in relation to the manner in which the applicant had conducted herself in a previous meeting with the applicant and Mr Butler.

Mr Knight stated that Ms Milne then commenced to discuss issues in relation to changes in the roster and she produced a roster for the month of October which was handed to the applicant and that Ms Milne pointed out that under the changes the applicant was to have Fridays and Saturdays off and consequently would work on Thursdays. The applicant’s immediate reaction was very sharp and abrupt and she accused Ms Milne of targeting her and claimed that she was being discriminated against because of her daughter’s illness.

He said that Ms Milne stated that she was not targeting or discriminating against the applicant and that the changes to the roster had nothing to do with her daughter’s illness but the reasons for the changes were strictly business related and were targeted at cost cutting wages for casual staff. He said that Ms Milne stated that the changes were in the best interests of the company and were aimed at achieving the best results by reducing the cost of wages for casual staff especially during extended trading hours on Thursdays.

He said Ms Milne stated that the changes meant that 3 staff members would be rostered on Thursday evenings which would allow Mrs Merrick to attend to her daughter between 6.30 and 7.30pm and allow for savings due to reduced casual staff hours.

Mr Knight said that Mrs Merrick became angry and continued to speak in a very short and sharp manner towards Ms Milne and said that she intended to look into Ms Milne’s decision and that Ms Milne was attempting to target her and her decision was not right.

He said that Ms Milne then produced a copy of the applicant’s staff agreement. He said that the applicant asked why she was the only person rostered on to perform a long shift on Thursday and pointed out that no other member of the management team was rostered to perform the extended Thursday shift. Ms Milne explained the difference in total hours for salaried employees each week and said the discussion continued for some time concerning the Thursday shift and the rostering changes.

He said the conversation also included a reference to the applicant’s wages. He said the applicant became very upset and irate when this topic was introduced and stated that it was none of their business what she was on and that she was not to blame for a bad business decision made by Wallace Bishop and she refused to discuss the matter further.

He said that there was a discussion then concerning the applicant remaining in the Tuggerah store for long after its closing on Thursday night. Mr Knight said that the applicant was getting agitated and upset. He stated that the conversation was not going anywhere and suggested they leave the issues to be discussed for a later time. He said that Ms Milne suggested to the applicant that she take the rest of the day off as she appeared to be upset and that she was crying. He said that the applicant went back to the store where he followed and suggested to the applicant that it was a good idea for her to take the rest of the day off. He said that the applicant agreed and then left the store.

Ms Milne stated that when she showed the new roster to the applicant and explained to her the need for the changes, the applicant said ‘It’s completely unfair, it’s discrimination and I won’t work it.’ Further, when she explained the need for the cost cutting, the applicant said ‘No, I won’t do it, you’re targeting me in relation to my daughter and I will not work it.’ Ms Milne said that she asked the applicant whether she was aware that she was a ‘salaried associate.’ She said she showed her a copy of her letter of appointment and pointed out that the applicant was required to work 42½ hours a week on a flexible basis. She stated that she asked the applicant ‘What is it that you bring to the Tuggerah Store as a sales associate’ and that the applicant responded ‘Honesty.’ The applicant refused to expand on this statement. Ms Milne said that there was no mention at that meeting of the need for the applicant to take time off on Thursday nights. Ms Milne said that she had arranged for at least 3 persons to be rostered on at any one time on the Thursday night on the new roster.

Ms Milne said at no stage did the applicant make suggestions concerning her working from 8.00am to 5.30pm on Thursdays. She said that the applicant simply refused to accept the roster. She said that the meeting did not finish very well. She stated that she suggested the applicant take the rest of the day off but the applicant replied that she would go back to the store and she would be fine. Ms Milne said that she was in tears at the end of the meeting. Ms Milne stated that by the time she went back to the store the applicant had left.

The applicant stated that when she was shown the new roster at the meeting, she said to Ms Milne ‘Have you made a mistake with the Thursdays?’ She said Ms Milne responded ‘No. This is now permanent.’ The applicant said that she said to Ms Milne ‘You know Thursday is the hardest day for me when I have to inject my daughter on my break, why are you doing this to me? Why now? The applicant said that Ms Milne responded ‘I don’t care. Look at the money you earn. This is going to happen.’ The applicant stated that she pleaded with Ms Milne to show empathy and be more considerate of her position. She stated that she said to Ms Milne again what she had said to her and Mr Butler two days previously, that is, that she would not abuse her carers’ responsibilities and would take as little time off as necessary.

She stated that Ms Milne replied ‘No, on your salary we can make you do it, have you ever read your contract?’ She said that Ms Milne then produced a copy of her employment contract. She stated that Ms Milne said ‘Do you know how much money you’re making? You’re the highest paid sales associate in all of the Wallace Bishop company. What do you bring to the company to deserve your pay or time off?’

The applicant said she responded ‘What about my daughter and her injections, it’s just one hour per fortnight in my own break.’ She said she tried to explain to her what the Thursday would be like working a 13 hour day as she had worked on the previous day and that it was detrimental to her daughter having to give her an injection under the totally rushed conditions and that would be dangerous for her daughter and for her having to rush in peak hour traffic and back. She said Ms Milne responded ‘Well why can’t she inject herself.’

The applicant then described further conversations with Ms Milne when Ms Milne suggested that the applicant might consider a pay cut and that she finally said that she would not change the Thursday shift and she will now refer the matter to Mr Gunther and Mr Butler. The applicant said that she reminded Ms Milne that it is unlawful to deny carers’ responsibilities.

The applicant stated that when she returned to the store she said she felt ill, her heart was racing and she became dizzy and nauseous and she had a severe pain in the left side of her neck extending to her chest. She said that she was scared and had not felt like that before. She said that she rang a friend and asked him to pick her up. She said she felt so ill that she attended the Tuggerah Medical Centre within the shopping complex where she was examined by a doctor. She said her blood pressure was very elevated. She said the doctor prescribed medication to commence immediately. She said that she was not feeling well for some days and she went back to the doctor who diagnosed that she was suffering from ‘panic attack.’ She said that she subsequently was referred to a consulting psychiatrist, Dr David Butler, who confirmed that she was suffering from panic attack.

23 September 2006 to 27 November 2006 :
The applicant has not returned to work with the respondent since 29 September 2006. She made an application for workers compensation. That application was granted for the period to 27 November 2006. Since that date she has received a pension through Centrelink.

The applicant stated that she is still suffering stress and is not fit to return to work. The respondent stated that she considers that her employment has not been terminated and that her position as a sales associate is still available to her.

25 October 2006 :
The applicant lodged a complaint of discrimination and victimisation with the Anti-Discrimination Board.
Analysis of evidence

11 In her evidence, Ms Milne explained that when she was appointed to manage the Tuggerah store, the respondent was concerned that the store was not meeting its sales budgets and its profitability had deteriorated. She was given the objective of restoring its profitability. The applicant’s record of on-sales had deteriorated since February 2006. She had failed to meet her monthly sales budgets for each month up till August 2006. She had been given notices concerning her underperformance and she had been demoted from assistant manager to an associate salesperson. She was told as late as 21 September 2006 that her performance was still under review and her employment was in jeopardy if she did not meet her sales budgets.

12 Ms Milne explained that she was responsible for setting the rosters. She explained that rosters were not permanent and that they required constant revision. Each monthly budget required prior approval by Mr Butler. Mr Butler explained that in order to approve a monthly roster, it was necessary for him to cost the salaries associated with the roster against the monthly budgets and unless there were small intermediate changes, any changes to a monthly roster would also need to be approved by him.

13 There was exhibited to the Tribunal the roster for the month of September after it was changed in relation to the applicant for Thursday, 21 September. The change to the roster for that day demonstrates that the roster was altered to ensure that there were 4 persons including Mr Knight, working in the store until 7.30pm and from 7.30pm, there would be 3 persons working in the store. Those persons included the applicant.

14 For the month of September 2006, up until 21 September 2006 and after allowing for the rostered days off and sick leave and carers’ leave that had been taken by the applicant, the applicant had taken 11 of the 20 working days off during that period.

15 Ms Milne explained that she found it necessary to rearrange the roster for Thursday, 21 September 2006 to require the applicant to change her work time from 8.00am to 5.30pm to 8.00am to 9.00pm because of staff shortages. The applicant has implied that the change to the roster on that day was to penalise her for her request for special consideration for carers’ leave and to make it impossible or difficult for her to take a break that would enable her to attend on her daughter to inject her at 7.00pm each day, and especially on Thursday, 21 September 2006. The applicant submitted that this interpretation of Ms Milne’s actions in relation to the re-roster on 21 September 2006 is supported by the attitude adopted by Ms Milne towards the applicant in their conversation on 19 September 2006; in the later telephone conversation on 21 September 2006 and at the meeting with Mr Milne and Mr Butler on 21 September 2006.

16 Ms Milne, in her evidence, did not specifically refer to the telephone conversations on 15 or 19 September. In relation to the telephone conversation on 20 September, Ms Milne gave a different version of the conversation as related by the applicant. Ms Milne stated that when she raised with the applicant the need for the applicant to be rostered on for 13 hours on Thursday, 21 September 2006 as she had exhausted her attempts to find somebody else to fill in for the applicant that day, that the applicant simply said that she would do so and that it was no problem.

17 In relation to the meeting on 21 September 2006, the versions of the conversations on that day by the applicant on the one hand and Ms Milne and Mr Butler on the other hand are quite different. Mr Butler and Ms Milne both stated that they were conciliatory towards the applicant and her needs to discharge her responsibilities as a carer towards her daughter. They told the applicant that she could take the time off on the Thursday evening to attend to inject her daughter. They further stated that they were sympathetic towards the applicant’s request for carers’ leave and that Mr Butler subsequently made inquiries concerning her entitlements and that he told her she was entitled to a total of 4 days carers’ leave under her workplace agreement.

18 The applicant’s version of the conversations concerning her rights to carers’ leave were that both Ms Milne and Mr Butler were antagonistic towards her and that it was only in the most reluctant tones that they acknowledged that she could take the time off on the Thursday night and that Mr Butler did not show empathy towards her when she sought to have carers’ leave provided to her.

19 The Tribunal is unable satisfactorily to reconcile the different versions of these conversations. In relation to the evidence of Ms Milne and Mr Butler, the applicant did not attempt to cross-examine them or to put to them her versions of the telephone discussions or of the meeting on 21 September. Although the failure of the applicant to put to Ms Milne and Mr Butler her version of the conversations, even on the principle of Browne v Dunn (1893) 6 R 67, does not exclude her from asserting that her versions of those conversations are correct. However, her failure to question the witnesses on these conversations detracts from the acceptance by the Tribunal of her version of the conversations in preference to the versions of the conversations given by the witnesses.

20 In the view of the Tribunal, both Ms Milne and Mr Butler gave their evidence in a positive and forthright fashion. The Tribunal could detect no aspect of the presentation of their evidence which would justify rejecting the truthfulness of their versions of those conversations. On the other hand, the applicant, in giving her evidence, which was based mainly on written material, was disjointed. The Tribunal considers that in presenting her evidence the applicant has failed to give a complete version of conversations and has concentrated solely on those aspects of the conversations which support her proposition that neither Ms Milne nor Mr Butler were sympathetic towards her needs to support her daughter. This is not the impression gained from the evidence of Ms Milne and Mr Butler. On the contrary, their evidence in the view of the Tribunal, demonstrates that they were sympathetic towards the applicant’s needs and made every reasonable endeavour to accommodate her requirements in relation to her carer responsibilities.

21 The applicant’s situation must be considered in the context that she was under extreme pressure to maintain her job in the face of her recent history in failing to meet her sales budgets and the notices she had received from the respondent which threatened that unless there was an improvement in her performance, her employment would be discontinued. She had recently had a downgrade in her position from assistant manager to a sales associate.

22 In these circumstances, it is more likely that the applicant was seeking combating pressures to exert on the respondent to maintain her position or if she lost her position, to be able to claim compensation.

23 The Tribunal, faced with the difficulty of having to decide between the varying versions of conversations, prefers the versions presented by Ms Milne and Mr Butler to the versions asserted by the applicant, where those versions conflict. The result is that the Tribunal is of the view that up to and including 21 September 2006 the allegations made by the applicant concerning the adverse attitudes towards her expressed by Ms Milne and Mr Butler and the allegation that the roster change to her hours of employment on 21 September 2006, are not substantiated when those allegations assert that the respondent treated the applicant less favourably than it would have treated another employee who did not have carers’ responsibilities. In the view of the Tribunal the evidence demonstrates that the respondent’s representatives took all reasonable action to accommodate the requirements of the applicant to enable her to discharge her carer responsibilities towards her daughter. The allegations of the applicant that in conversations with Ms Milne during this period that Ms Milne had spoken to her in a non-sympathetic manner, had been rude towards her and had been angry in responding to her requests for consideration, have not been substantiated.

24 This then leaves for consideration the circumstances relating to the change of roster relating to the applicant for the month of October and the meeting on 23 September 2006 with Ms Milne and Mr Knight.

25 On Friday 22 September 2006, the applicant was absent from the Tuggerah store. She took that day off with the approval of the respondent, as unpaid leave in order to attend with her daughter on the appointment with the specialist, Dr Forsyth. The September roster shows that the applicant had been rostered on that day to work at the Tuggerah store from 8.00am to 5.30pm.

26 On the following day, Saturday 23 September 2006, the applicant attended at the Tuggerah store to work her rostered times from 8.00am to 5.00pm. No changes had been made by the respondent to the rostered times for the applicant to work on 22 September and 23 September 2006.

27 The applicant produced to the Tribunal a roster for the month of October 2006, which she stated was issued prior to 21 September 2006. That roster showed that the applicant was rostered on duty on Thursdays alternatively from 12.00noon to 9.00pm and on the following Thursday from 8.00am to 5.30pm.

28 At approximately 9.00am on 23 September 2006, Ms Milne requested that the applicant accompany her and Mr Knight to a meeting which was held in the Coffee Club restaurant at the Tuggerah centre. The different versions of the context of that meeting have been set out earlier in this document. The applicant’s complaint relates to her being handed a new roster for the month of October, a copy of which was exhibited to the Tribunal, which showed that her times for working on Thursdays had been altered so that she was rostered on from 8.00am to 8.00pm on each Thursday during the month of October. The applicant claimed that this change was consistent with the change that had been made to her rostered time on Thursday 21 September 2006 and she alleges that the roster was changed to make it more difficult for her to take her break time in order to attend to inject her daughter.

29 The applicant also referred to a change in the October roster which required her to work on each Sunday from 9.00am to 4.00pm whereas the roster given to her before the 21 September showed her working only on alternate Sundays in October. The applicant stated that the change that required her to work every Sunday prevented her from following her usual practice of attending Church on the alternate Sundays when she was not rostered for work. In relation to the allegation concerning the change on Sundays, the applicant did not specify that the change constituted discrimination concerning her carers’ responsibility. Accordingly the Tribunal has not considered the change to the roster on Sunday as constituting a claim of unlawful discrimination.

30 In her evidence to the Tribunal, Ms Milne described the reason for the change to the working times for the applicant on Thursdays during October 2006 as having to be made in order to ensure that the applicant worked for her full weekly number of hours under her employment contract and to enable Ms Milne to be able to balance the rest of the roster each week so that she could accommodate adequately each of the other staff and their contracted working hours. Ms Milne said that she had programmed the roster so that on Thursday nights when the applicant took off one hour for her break around 7.00pm to attend to her daughter, there would always be 2 staff remaining on duty in the Tuggerah shop. The roster produced by the applicant demonstrated that Ms Milne had achieved that objective.

31 Ms Milne stated that it was not until she had a conversation with Mr Butler following the meeting with the applicant on 21 September, that she learnt that under the applicant’s employment agreement she was obliged to spend 42½ hours each week in her employment and that the agreement required her to be flexible in the allocation of those hours of work. Ms Milne stated that she realised when she examined the existing rosters that the applicant had only been allocated to work 38 hours each week. Ms Milne explained that she was particularly concerned about the failure to allocate to the applicant the full weekly hours that she was required to work especially having regard to the applicant’s record of failing to meet her sales budget and the general unprofitability of the Tuggerah store. Ms Milne stated that the reason she extended the hours for the applicant to work on Thursdays and required the applicant to work on every Sunday was to ensure that the applicant worked for the full period of her weekly commitment.

32 In order to demonstrate that the change to the October roster discriminated against her when compared to the treatment of other employees in the Tuggerah store, under the new October roster, the applicant points to the allocations made to Ms Casey and Ms Pearson, who she said had alterations to their rostered times in the new October roster such that their rostered times were more conducive to a sensible timeframe and, especially on each Thursday, they were rostered only to work between 5.00pm and 9.00pm. The Tribunal does not accept that the comparison with Ms Casey and Ms Pearson is appropriate. In each case they were not full-time employees and Ms Milne explained that the changes to their roster were made firstly to ensure that they were working during the evening periods on Thursday nights. Although their working hours were reduced on Thursday, they nevertheless were required to work for their full contracted period during each week, on the other days on which they were rostered for duty.

33 The claim by the applicant that at the meeting on 23 September 2006 Ms Milne stated that on Thursday nights the applicant could not take her break in the evening and would not be able to attend to inject her daughter at 7.00pm on those nights, is not consistent with Ms Milne’s evidence who denied that she refused permission for the applicant to take her break at that time and nor is it consistent with the changes that Ms Milne made to the roster for Thursday nights so as to ensure that if the applicant took her break around 7.00pm that there would remain on duty at least 2 other staff members, that is Ms Casey and Ms Pearson. The Tribunal determines that this aspect of the applicant’s claim is not substantiated.

34 It is the view of the Tribunal after considering all the evidence concerning the changes that Ms Milne made to the October roster and to the discussions that took place during the meeting on 23 September 2006, in the circumstances relating to those changes, the changes did not constitute less favourable treatment of her. In addition, the Tribunal considers that the changes that Ms Milne made to the roster for October were not made on the ground of the applicant’s responsibilities as a carer. The changes were made in order to achieve a better control of the business of the respondent at the Tuggerah store and especially to ensure that the applicant attended for the full number of hours for which she was contracted and at the same time, making provision to enable the applicant to take her break around 7.00pm on the Thursday night in order to attend to her daughter’s injection. The Tribunal accordingly determines that this claim of unlawful discrimination has not been substantiated by the applicant.

35 The third item of complaint of unlawful discrimination by the applicant relates to her claim that the respondent failed to observe the terms of her employment contract by allowing the applicant to take 4 days carers’ leave during 2006. The only evidence to support this claim is the allegation by the applicant that during her discussion with Ms Milne and Mr Butler on 21 September 2006, Mr Butler said that he was not aware that the applicant was entitled to carers’ leave and that on 22 September 2006, being a day on which she was rostered off, she was obliged to take unpaid leave in order to attend with her daughter at the appointment with Dr Forsyth. The applicant stated that she was unable to be paid for that day as her sick leave entitlements had been exhausted.

36 A document was produced to the Tribunal by the applicant during her submissions. The document she stated was an extract from her employment agreement with the respondent. The respondent did not dispute that the pages extracted related to the applicant’s employment contract and accordingly the Tribunal accepts that that extract confirms that it was a term of the applicant’s contract that she was entitled to 4 days per year as carers’ leave.

37 The applicant took off 18 September and 19 September 2006 as unpaid carers’ leave to care for her daughter, with the approval of the respondent. This is not inconsistent with the terms of the employment agreement.

38 Where there is inconsistency in the evidence of the applicant and the evidence of Mr Butler concerning their conversations on 21 September 2006 in relation to carers’ leave, the Tribunal prefers the evidence of Mr Butler who stated that he, after the meeting on that day, spoke by telephone with the respondent’s pay clerk who confirmed that the applicant was entitled to carers’ leave. Mr Butler stated that he then spoke to the applicant and advised her that it was in order for her to take 4 days carers’ leave. The applicant denied that she was told by Mr Butler that she could take 4 days carers’ leave. Having regard to the fact that the applicant was allowed 2 days carers’ leave and that she was also allowed to take off 22 September 2006 to take her daughter to the doctor’s appointment, although she was not paid for that day, is evidence that the respondent was not intending to avoid its responsibility to provide carers’ leave to the applicant in accordance with her employment contract. The Tribunal concludes that the evidence does not substantiate that the applicant has been less favourably treated by the respondent in relation to her entitlement to 4 days carers’ leave per annum.

Complaint of victimisation

39 In her submissions to the Tribunal, the applicant specified that there were 3 occasions on which she made allegations to representatives of the respondent that their actions were unlawful or were discrimination. The applicant claimed that as a consequence of her statements she suffered detriment. She has submitted that the 3 instances in which she alleged she had been discriminated against should be considered cumulatively and that on a cumulative basis the detriment that she suffered was the physical impact on her health. This physical consequence occurred immediately after the meeting on 23 September 2006 with Ms Milne and Mr Knight when the applicant broke down at the end of that meeting and when she went back to the respondent’s store at Tuggerah she was so upset that it caused her to have what she called a panic attack and this condition has continued from that time through to the present. Although the applicant did not raise as an item of detriment the fact that the result of her upset on 23 September resulted in her being unable to work since that time, the Tribunal considers that that is an item of detriment that should be considered in the context of her claim of victimisation.

40 The three instances on which the applicant relies to establish that she had made an allegation that she had been discriminated against which was the ground for the detriment that she suffered as follows:

1. In her conversation on 19 September 2006 with Ms Milne when the applicant alleged that Ms Milne was reluctant to allow the applicant to take time out on 21 September 2006 to inject her daughter, the applicant told Ms Milne that it was against the law to refuse her request for carers’ leave.

2. At the meeting on 21 September 2006 with Ms Milne and Mr Butler the applicant alleges that she said that it was discrimination if she was not allowed to take time out to inject her daughter.

3. In the meeting on 23 September 2006 with Ms Milne and Mr Knight, after she was shown the new roster for October, the applicant stated that she was being discriminated against because of her daughter’s illness. On this occasion the statement alleged to have been made by the applicant is confirmed in Mr Knight’s evidence.

41 Section 50 of the Act is in the following terms:
‘ 50 Victimisation

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

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

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

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

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

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

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

42 The applicant did not specify under which sub-section of s 50(1) she was bringing her claim. In the view of the Tribunal the appropriate sub-section is sub-section (c). In order for the applicant to succeed under that section, it would be necessary to substantiate that she had suffered a detriment on the ground that she had alleged that the respondent had committed an act which would amount to a contravention of the Act. For the purposes of the claims of the applicant, in order to succeed under that sub-section the applicant must establish at least 3 elements:
1. That she had made an allegation that the respondent had committed an act that was in contravention of the Act.

2. That she suffered a detriment.

3. That the detriment that she was subjected to was on the ground of the allegation of a discriminatory act by the respondent.

43 For the reasons already expressed, the Tribunal is not satisfied that the applicant has substantiated that in the discussion with Ms Milne on 19 September 2006 that she stated that it was unlawful for Ms Milne to refuse to give her time off on 21 September. The Tribunal is not satisfied that Ms Milne made that statement, especially having regard to the specific denial by Ms Milne that she refused the request by the applicant to take off the period around 7.00pm on the night of 21 September 2006.

44 In regard to the other 2 occasions on which the applicant claims that she made allegations that the conduct of the respondent was discrimination, that is during the meetings on 21 September 2006 and on 23 September 2006, the Tribunal accepts the applicant’s evidence that she did make those statements on those occasions.

45 The Tribunal is also satisfied that following the meeting on 23 September 2006 the applicant suffered detriments arising in relation both to a deterioration in her health and to the fact that she was unable, because of her physical and mental condition, at that time to continue her employment. As a consequence, the applicant has suffered an economic loss after 27 November 2006 when her claim for workers compensation was no longer accepted. Both the physical and mental deterioration and the economic loss, in the view of the Tribunal, constitute a detriment within the provisions of s 50 of the Act.

46 In order to succeed, the applicant must satisfy the Tribunal that the detriment that she suffered was ‘on the ground’ that she had made the allegations of discrimination on 21 September and 23 September 2006. The applicant must establish that there was a causal link between the allegations of discrimination she made and the actions of the respondent that subjected her to the detriment. The cause of the mental and physical disorders suffered by the applicant on and following 23 September 2006 and which prevented her from returning to her employment, arose directly out of the meeting on 23 September 2006. In the context of s 50 of the Act, the cause of the applicant’s distress was the opinion that she held that the change to the October roster that required her to be on duty each Thursday from 8.00am to 8.00pm and her opinion that the respondent was refusing to allow her to take a break around 7.00pm to inject her daughter, was a result of her allegations of discrimination and her further opinion that Ms Milne and Mr Butler had been belligerent towards her requests for consideration in relation to her requirements for carers’ leave.

47 The Tribunal has already found that there are explanations given by Ms Milne for the changes to the roster both on 21 September 2006 and for October 2006 which are understandable and which give cogent reasons for requiring the applicant to comply with those changes and are explanations which are not referable to the allegations of discrimination. For the reasons already expressed, the Tribunal does not find that the applicant has substantiated that the respondent, through either Ms Milne or Mr Butler, refused to allow her to take a break on the Thursday evening around 7.00pm. The Tribunal finds that the arrangements made by Ms Milne, both on 21 September 2006 and in the roster for October 2006, were designed to ensure that there were adequate staff at the Tuggerah store around 7.00pm which would allow the applicant to take a break at that time.

48 The applicant was under stress during the period after 15 September 2006 because of the medical advice concerning the condition of her daughter and the requirement for her daughter to be treated daily to avoid developing a thrombosis during her pregnancy. In addition, the applicant was under considerable stress from her unsatisfactory sales performance in her role at the Tuggerah store. The respondent, through Mr Butler at the meeting on 21 September 2006, had made it plain to the applicant that she was under threat of termination of her employment if she continued to fail to meet her sales budgets.

49 The Tribunal finds that the applicant has failed to substantiate that the detriment that she suffered on and after 23 September 2006 was causally linked to or resulted from the allegations that she specified concerning a contravention of the Act by the respondent. Accordingly the Tribunal finds that the applicant has failed to substantiate her claim of victimisation under s 50 of the Act.

Conclusion

50 The Tribunal is not satisfied that the applicant has substantiated her claims of unlawful discrimination.

51 The Tribunal also finds that the applicant has failed to substantiate her claim of victimisation.

Orders

1. The complaints of discrimination on the ground of carers’ responsibility is not substantiated and is dismissed

2. That the claim of victimisation is not substantiated and is dismissed.