MEUNIER and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES
[2021] WASAT 112
•26 AUGUST 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: MEUNIER and DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES [2021] WASAT 112
MEMBER: DR B MCGIVERN, MEMBER
MR P D MCNAB (SENIOR SESSIONAL MEMBER)
HEARD: 6 MAY 2021
DELIVERED : 26 AUGUST 2021
FILE NO/S: EOA 23 of 2019
BETWEEN: JENNIFER MARY MEUNIER
Applicant
AND
DIRECTOR GENERAL, DEPARTMENT OF COMMUNITIES
Respondent
Catchwords:
Equal Opportunity Act 1984 (WA) - Discrimination in employment on the ground of race - Discrimination in employment on the ground of impairment - Whether denial of request for alternative position in a different location constitutes failure to make reasonable adjustment to work
Legislation:
Equal Opportunity Act 1984 (WA), s 36(1)(d), s 37, s 66A, s 66(A)(1), s 66A(3), s 66B, s 66B(2), s 89, s 90(1), s 90(2), s 93(1), s 107, s 107(1), s 107(3), s 127, s 127(a), s 127(b)
State Administrative Tribunal Act 2004 (WA), s 13
Result:
Complaint dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms J Vincent |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Barghouthi v Transfield Pty Ltd (2002) FCA 666
Briginshaw v Briginshaw [1938] 60 CLR 336
Daghlian v Australian Postal Corporation (2003) FCA 759
D'alto and Curtin University [2019] WASAT 61
De Alwis and Commissioner for Corrective Services [2016] WASAT 52
Drury v Andreco Hurll Refractory Services Pty Ltd (No 4)
Edoo and Minister for Health [2010] WASAT 74
Grover v Commissioner of Police [2005] WASC 263
Johnston and Director General, Department of Communities [2019] WASAT 21
Mallard and City of Fremantle [2018] WASAT 44
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Sanzana and Director General, Disability Services Commission [2011] WASAT 208
Winter and Commissioner of Western Australian Police Service [2006] WASAT 87
Zangari and St John Ambulance Service [2010] WASAT 6
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Ms Mary Jennifer Meunier, was engaged by the Department of Communities (Department) to work at its office in Halls Creek. After three months of working there, she took sick leave and has since indicated she does not feel able to return to that office. She has sought redeployment to another location. Ms Meunier alleges that she was and is being discriminated against by the Department on the grounds of an impairment and her race. The Department denies that it has discriminated against Ms Meunier and says that working in Halls Creek is an inherent requirement of the role to which she was appointed.
Ms Meunier complained to the Equal Opportunity Commissioner (Commissioner), who investigated and dismissed her complaint. The matter has been referred to the Tribunal for determination and, for the reasons that follow, the application is dismissed.
Issues
In these reasons, the following issues are to be determined:
a)What is the nature and scope of the complaint to be determined?
b)Did the Department discriminate against the applicant in her employment on the ground of an impairment?
c)Did the Department discriminate against the applicant in her employment on the ground of her race?
d)If either kind of discrimination occurred, has the applicant suffered damage?
Those matters are to be decided by reference to the relevant provisions of the Equal Opportunity Act 1984 (WA) (EO Act) and, unless otherwise specified, a reference to a legislative provision is a reference to a provision of the EO Act.
Evidence and hearing
A final hearing of the application was held on 6 May 2021.
The Tribunal prepared a hearing book containing the materials filed in the matter prior to the hearing. That hearing book was taken into evidence (Exhibit 1) and includes:
a)the documents provided by the Commissioner to the Tribunal upon referral of the complaint, including:
i)the complaint form submitted by Ms Meunier to the Commissioner on 6 May 2019 (Complaint Form);
ii)an undated supporting statement of circumstances and allegations by Ms Meunier (SCA)
iii)a witness statement of Ms Meunier dated 27 November 2018 (Applicant's First Statement);
iv)a response on behalf of the Department to the Commissioner dated 22 July 2019 (Department's Response);
v)a responsive statement by Ms Meunier to the Department's Response;
vi)the notice of dismissal from the Commissioner to Ms Meunier dated 16 September 2019; and
viii)the Commissioner's summary of investigation and complaint dated 1 October 2019 (Complaint Summary);
b)the letter of appointment from the Department to Ms Meunier dated 2 February 2018;
c)various email and written correspondence passing between Ms Meunier and the Department;
d)various public sector policy documents;
e)documents relating to medical and allied health assessments of Ms Meunier, including:
i)a report of Dr FKF Ng, consultant psychiatrist, dated 22 October 2018 (Ng Report);
ii)a report of Dr H Piirto, consultant psychiatrist, dated 17 November 2018 (Piirto Report);
iii)reports of Dr YC Lee, consultant psychiatrist, dated 9 March 2020 and 1 April 2020; and
iv)as part of the applicant's bundle, various other records relating to medical and allied health assessments of Ms Meunier (Applicant’s Health Records);
f)written evidence or statements from persons not called to give oral evidence, as follows:
i)affidavit of Valerie Tomlin affirmed 20 January 2021;
ii)witness statement of Lisa Ngarangi Davis dated 28 January 2021; and
iii)statement of David Ramdhun made in support of the applicant (undated);
g)submissions from each of the parties, including:
i)a written submission from Ms Meunier dated 4 March 2020 (Applicant's Submission);
ii)respondent's Statement of Issues, Facts and Contentions dated 11 September 2020 (Respondent's SIFC).
The Tribunal also took certain additional documents into evidence with their own exhibit numbers,[1] as follows:
a)witness statement of Gabrielle Bird dated 19 March 2021 (Exhibit 2);
b)applicant's Statement of Issues, Facts and Contentions dated 4 August 2021 (Applicant's SIFC) (Exhibit 3);
c)respondent's opening submissions dated 4 May 2021 (Respondent's Opening Submissions) (Exhibit 4); and
d)witness statement of Mary Jennifer Meunier dated 5 March 2021 (Applicant's Second Statement) (Exhibit 5).
[1] Some of those documents are also contained or partly contained in Exhibit 1.
At the hearing:
a)Ms Meunier was unrepresented, although she was supported by an advocate, Ms Tarbotton;
b)Ms Meunier gave evidence but did not call any other witnesses; and
c)the respondent was represented and called one witness, Ms Bird, the Department's Principal Consultant Employee Relations.
The parties did not make oral closing submissions; instead written closing submissions were filed respectively:
a)by the applicant on 27 May 2021 (Applicant’s Closing Submissions); and
b)by the respondent on 28 May 2021 (Respondent’s Closing Submissions).
Material background facts
The following facts are found by the Tribunal and, except as otherwise stated, were not contentious.
In the period March 2014 to February 2018, Ms Meunier worked under a number of fixed term contracts for the Department in a range of capacities, offices and locations.
Towards the end of 2017, the Department advertised and Ms Meunier applied for a permanent Customer Service Officer position in the Halls Creek Housing Office (Role).[2]
[2] There was some contention about whether the Role was specific to the location of Halls Creek. As identified later in these reasons, we are satisfied that it was: see [38](a) below.
Ms Meunier was formally appointed to the Role upon her acceptance of an offer contained in a letter of appointment dated 2 February 2018.
a)Ms Meunier was initially offered the Role on 15 January 2018 and requested time to consider the offer.
b)By email dated 19 January 2018, details of the entitlements and allowances available as part of the offer were confirmed to Ms Meunier. They included access to subsidised accommodation (at the Department's discretion) in Halls Creek. The Department also offered to assist with relocation costs.
c)Ms Meunier notified the Department of her acceptance by return email on 22 January 2018.
Ms Meunier commenced the Role on 19 February 2018.
On 18 May 2018, Ms Meunier provided a medical certificate to the Department which certified that she was unfit for work for one week, noting that she had 'describe[d] a history with an occupational causation'.[3] She has not worked in the Role since that date.
What is the nature and scope of the complaint to be determined?
[3] Exhibit 1, page 475.
The Tribunal's power to deal with disputes derives from statute.[4] Relevant to the present dispute, s 107 of the EO Act provides that the Tribunal must hold an inquiry into each matter or complaint referred to it under s 90(2), s 93(1) or s 107(1).
[4] State Administrative Tribunal Act 2005 (WA) (SAT Act), s 13.
In this case, the matter was referred to the Tribunal under s 90(2), which is engaged as follows:
a)under s 89, if at any stage of investigating a complaint made under the EO Act, the Commissioner is satisfied that it:
… is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of this Act, the Commissioner may, by notice in writing addressed to the complainant, dismiss the complaint[;]
b)under s 90(1), a complainant may, within 21 days of receiving a notice under s 89, require the Commissioner to refer the matter to the Tribunal; and
c)the Commissioner is required by s 90(2) to refer the complaint to the Tribunal where the complainant gives valid notice under s 90(1).
By reason of those provisions, the Tribunal's power to deal with a matter under s 107(3) is:
a)in the exercise of the Tribunal's original jurisdiction;
b)referable to, and circumscribed by, the complaint referred to it by the Commissioner; and
c)therefore does not extend to anything beyond the complaint accepted by the Commissioner.[5]
[5] De Alwis and Commissioner for Corrective Services [2016] WASAT 52 (De Alwis); Sanzana and Director General, Disability Services Commission [2011] WASAT 208: Winter and Commissioner of Western Australian Police Service [2006] WASAT 87.
Section 127 provides that after holding an inquiry the Tribunal may either dismiss a complaint or find the complaint substantiated and make an order pursuant to that section.[6]
Complaint allegations
[6] Orders that may be made under s 127(b) in respect of substantiated complaints include orders for the payment of damages, enjoining the respondent from continuing or repeating the unlawful conduct, requiring the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered, declaring void a contract or agreement made in contravention of the Act, or declining to take further action.
It follows from the above that it is necessary to determine the nature and scope of the complaint in this case.
The Complaint Summary makes clear that, following receipt of the Complaint Form on 6 May 2019, the Commissioner:
a)initially assessed that the matter may not have come under the EO Act because Ms Meunier seemed to be referring to an impairment caused by work, rather than being treated less favourably at work due to an existing impairment;
b)ultimately accepted (on 29 May 2019) the matter as a complaint of impairment and race discrimination (Complaint), on the basis of:
i)Ms Meunier's explanation that her complaint concerned an allegation that the Department refused to grant her request to return to work at an alternative location based on her impairment; and
ii)allegations of being treated less favourably at work due to race;
c)dismissed the Complaint on 13 September 2019 and issued a notice of dismissal under s 89 to Ms Meunier on 16 September 2019.
It is clear therefore that the Complaint accepted by the Commissioner and referred to the Tribunal under s 90(2) for determination:
a)does not extend to any allegation of victimisation, because that was not a ground of the Complaint accepted by the Commissioner; and
b)does not extend to allegations about any impairment said to result from Ms Meunier's employment, because the Commissioner did not accept such matters as part of the Complaint (not being matters falling under the EO Act); and
c)is confined to the alleged conduct of the Department (and associated grounds) in the period leading to the Complaint, being no later than 29 May 2019 (Material Time).
Evidence that post-dates the Material Time may of course be accepted, but that evidence must be relevant to determining the alleged discrimination (and associated grounds) at the Material Time.
Based on the materials provided by Ms Meunier to the Commissioner, the allegations relevant to the Complaint as accepted (Complaint Allegations) may be summarised as follows:
a)Ms Meunier is of Mauritian descent.
b)In mid-April 2018, Ms Meunier accompanied a Housing and Property Support Officer (HPSO) on a visit to a community located approximately one hour's drive from Halls Creek. In the course of that trip, the HPSO allegedly stated to Ms Meunier: 'You don't fit in, you're a black sheep'.
c)Prior to commencing employment with the Department in Halls Creek, Ms Meunier was:
i)treated in 2006 for depression, which involved a six month course of anti-depressants resulting in a complete resolution of symptoms; and
ii)since that time, not otherwise diagnosed with, or symptomatic of, depression.[7]
[7] Applicant's First Statement at paras 245-247, Exhibit 1, page 122.
d)After commencing employment with the Department in Halls Creek, Ms Meunier experienced stress. Stressors associated with her employment and relocation to Halls Creek included:
(i)challenging interactions with a number of colleagues, against whom Ms Meunier makes allegations of rudeness, irritation, criticism and undermining behaviours;[8]
(ii)workload (arising from a backlog of work) and physical work environment (being allocated a desk in a conference room for the first seven weeks of employment);
(iii)difficulties in obtaining a bed, in circumstances where Ms Meunier had elected not to relocate her furniture, but to hire furniture excepting a bed, having been advised that she could buy a bed in Halls Creek. After being unable to find a suitable bed to buy, she asked for one to be loaned or hired to her by the Department. One was only made available to her after around three months; and
(iv)concerns about the amount of rent she was paying for the quality of the housing provided under the subsidised rent arrangement.
e)In March 2018, a more senior colleague stated during a staff meeting that it had been a tough week and that Ms Meunier 'had her breakdown yesterday'. The same colleague, on a different occasion, also said words to the effect: 'If you think I look stressed, you should look at Jennifer [referring to Ms Meunier]'.
f)By April 2018, Ms Meunier was struggling emotionally and sought assistance through the Employee Assistance Program (EAP).
g)On 18 May 2018, Ms Meunier went on sick leave. She has subsequently 'sought to return to work' but is 'being denied further employment because of the impairment of depression and anxiety'.[9]
h)Ms Meunier feels unable to return to the Halls Creek Housing Office. She has sought, but not been granted, appointment to an alternate permanent position at a metropolitan office of the Department.
[8] Ms Meunier identifies a range of challenging interactions with five named colleagues at paras 87-191 of the Applicant's First Statement: Exhibit 1, pages 104-115.
[9] SCA: Exhibit 1, page 182.
There are numerous allegations in the materials filed in the Tribunal by Ms Meunier to which we have not referred above because they relate to conduct excluded from the scope of the Complaint[10] and we cannot deal with them.[11]
Onus of proof
[10] By reason of the matters in [21] above.
[11] See [17] in the above reasons.
Ms Meunier bears the onus of proof in establishing her complaint of discrimination according to the civil standard of proof (being on the balance of probabilities). However, having regard to the serious nature and consequences of allegations of discrimination under the EO Act, the approach which the Tribunal has taken[12] is in accordance with Briginshaw v Briginshaw,[13] being that:
a)the Tribunal must feel an 'actual persuasion' of the occurrence or existence of the facts alleged by Ms Meunier before those facts can be found;[14] and
b)although it is enough that the affirmative of an allegation is made out to the 'reasonable satisfaction' of the Tribunal, that reasonable satisfaction should not be produced by 'inexact proofs, indefinite testimony, or indirect inferences'.[15]
[12] Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53]; D'alto and Curtin University [2019] WASAT 61 at [21]-[22] (D'alto); Mallard and City of Fremantle [2018] WASAT 44 at [99]-[100].
[13] [1938] 60 CLR 336(Briginshaw) at 361-362 per Dixon J.
[14] Briginshaw at 361; D'alto at [22].
[15] Briginshaw at 362; D'alto at [22].
In determining whether a complaint of discrimination is established, the Tribunal must base its findings on material which is probative of the matters to be proved.[16]
Discrimination against the applicant on the ground of impairment?
[16] Edoo at [54]; Grover v Commissioner of Police [2005] WASC 263 at [26].
In order to make out her allegations of impairment discrimination, Ms Meunier would need to establish that:
a)the Department (by its staff) subjected her to discrimination within the meaning of that term in s 66A;
b)that discrimination was unlawful in that it occurred in the circumstances referred to in s 66B (and relevantly, s 66B(2) which applies to discrimination in the course of employment); and
c)the respondent was vicariously liable for the discriminatory conduct of his employees.
Broadly speaking, a person with an impairment may be discriminated against:
a)directly, if the person is treated less favourably than a person without the impairment in the same circumstances, or circumstances that are not materially different;[17] and
b)indirectly, if the person is required to comply with a requirement or condition that the person is unable to comply with, but a high proportion of persons without the impairment can comply with, and where such a requirement or condition is not reasonable in the circumstances.[18]
[17] Section 66A(1), EO Act.
[18] Section 66A(3), EO Act.
The Applicant's SIFC and Applicant's Closing Submissions allege both direct and indirect discrimination on the ground of impairment.
a)However, the only conduct explicitly referred to in relation to indirect discrimination is alleged to have occurred after the Material Time (and is therefore outside the scope of the Complaint referred to the Tribunal).
b)In any event, by reason of the nature of the matters alleged in [23](d)-(h) above, and the manner in which those allegations were pressed at hearing, it appears that insofar as it concerns discrimination on the ground of impairment, the Complaint is best characterised as a complaint of direct discrimination.
c)The possible exception is in relation to being required to work in Halls Creek (as to which, see [23](g) and (h) above), which could be characterised as a complaint of indirect discrimination, and is implicitly treated as such by reference in the Applicant’s Closing Submissions to case law dealing with indirect discrimination in the context of a failure to make reasonable adjustments for a person’s impairment.[19]
Direct discrimination
[19] As to which, see [35] below.
Relevant to the claim of direct discrimination:
a)the Tribunal would need to be satisfied that, at the time of the alleged discrimination, Ms Meunier had an impairment; and
b)as identified in Edoo,[20] in order for Ms Meunier to establish she has been treated 'less favourably' (within the meaning s 66A), it would be necessary for her:
i)to identify another person (which may include a hypothetical person) whose 'circumstances' are 'the same' or 'not materially different' as hers at the time of the alleged discrimination (a comparator);
ii)to determine whether the manner in which she was treated was less favourable than the manner in which the comparator was or would be treated in the circumstances;
iii)to establish a factual basis upon which the (distinguishable) treatment of the comparator can be determined; and
iv)to demonstrate the similarity of the comparator's circumstances by reference to all the objective features surrounding the Complaint Allegations.
[20] Edoo at [160]-[163]. See also Zangari and St John Ambulance Service [2010] WASAT 6; Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92.
In relation to having an impairment, at an early stage of the hearing:
a)the Tribunal canvassed with both parties the objections raised in the Respondent's Opening Submissions,[21] which included that:
i)the applicant had failed to clearly identify when she allegedly had an impairment, and the nature of that impairment;[22] and
ii)to the extent that there was any medical evidence filed in support of the applicant's contention that she had an impairment,[23] that evidence is conflicting and in any event does not support a finding that Ms Meunier had any impairment at the time of the alleged discriminatory conduct;[24]
b)in light of the above, Ms Meunier sought an adjournment of the hearing to have the opportunity to file further and better medical evidence;[25]
c)the respondent objected to an adjournment and, to avoid that course, consented to the Tribunal assuming, without deciding, that the applicant had an impairment at the Material Time.[26]
[21] These issues were also foreshadowed in the Respondent's SIFC.
[22] Respondent's Opening Submissions, [20]-[22]. The applicant states in the SCA that she has/had depression and anxiety: Exhibit 1, page 181. The Ng Report includes an assessment as at 22 October 2018 of 'an adjustment disorder with mixed anxiety and depressed mood (DSM 5)', being partially treated at that time: Exhibit 1, page 136. The Piirto Report includes an assessment as at 6 November 2018 that the applicant '[did] not present with a formal psychiatric disorder' (Exhibit 1, page 165). The bulk of the Applicant's Health Records (Exhibit 1: pages 436-476) concern assessments undertaken after the Material Time.
[23] The applicant did not call either Dr Piirto or Dr Ng as a witness, and the respondent objected to their reports: Respondent's Opening Submissions at [23].
[24] Respondent's Opening Submissions, [24]-[26].
[25] ts 40-43, 6 May 2021.
[26] ts 57, 6 May 2021; Respondent's Closing Submissions, paras 5-7.
On the basis of the above, it will be assumed for the purpose of these reasons that Ms Meunier had an impairment of the kind described in the SCA (being depression and anxiety) at the Material Time.[27]
[27] The practical effect of this concession is to reserve for another case consideration of whether the stated conditions or the condition known as an adjustment disorder (or similar conditions) are 'impairments' within the meaning of the EO Act.
However, notwithstanding that assumption, there are a number of deficiencies in relation to the remaining elements of her claim that militate against a finding of direct discrimination.
a)Ms Meunier gave her own evidence about the matters in [23](d)-(h) above and the respondent did not crossexamine her on it. In that sense, her evidence is not directly challenged.
b)However, Ms Meunier did not give or adduce any direct evidence concerning which (if any) of the persons whose conduct she complained of had knowledge, at the time of the conduct, of her impairment[28] (and therefore that such conduct was because of her impairment). Further, she did not call any of the individuals in respect of whom she complained to give evidence.
c)Ms Meunier has described the conduct complained of as being 'less than favourable'.[29] As appears from the language of s 66A, that is not the test. Rather, the issue is whether Ms Meunier can establish that she has been treated less favourably than a person without her impairment.
d)Despite being put on notice by the Respondent's SIFC and Respondent's Opening Submissions, and having the importance of doing so emphasised in the hearing,[30] Ms Meunier did not point to any comparator, or any sufficiently objective features of the surrounding circumstances to facilitate the assessment of an appropriate comparator.[31]
[28] Although her evidence is to the effect that the senior colleague referred to in [23](e) knew of a number of the stressors alleged in [23](d) above: Applicant’s First Statement, Exhibit 1, pages 95-109.
[29] Applicant's SIFC, page 2.
[30] ts 6-8, 6 May 2021.
[31] In the Applicant's Closing Submissions (at page 2), Ms Meunier identifies 'less favourable treatment' as being overlooked for promotion and transfer, and receiving less pay and less favourable benefits, citing a comparator of 'a full-time worker'. 'A full-time worker' is not an appropriate comparator for the purposes of the Complaint, and such comparator was never raised in the course of the hearing. In any event, many of the allegations raised in the Applicant’s Closing Submissions (and the Applicant’s Second Statement) go to matters that are alleged to have occurred after the Material Time.
Accordingly, even if the factual matters alleged in [23](d)-(h) were to be found, by reason of the matters in [33](b)-(d), it would be impossible for the Tribunal to feel an 'actual persuasion' that such conduct was directly discriminatory within the meaning of s 66A(1).
Indirect discrimination
Ms Meunier points to Daghlian v Australian Postal Corporation[32] in support of her claim, noting that the employer in that case 'was found to have discriminated against the employee that was seeking reasonable adjustments, even though the employee was able to meet the inherent requirements of the job'.[33]
[32] (2003) FCA 759 (Daghlian).
[33] Applicant's Closing Submissions, page 1.
That submission appears to be directed to Ms Meunier's allegations that she has not been offered an alternative equivalent position despite feeling unable to return to the Halls Creek office. As noted above, such allegations are capable of being characterised as complaints about indirect discrimination on the ground of impairment.
In our view, Daghlian offers little assistance in the context of the current complaint.[34] That case concerned:
a)a claimant who demonstrably met the inherent requirements of the job she occupied;
b)the introduction of a 'blanket' policy against the use of stools at the claimant's work site despite:
i)evidence of the claimant's physical disability (a degenerative back condition) being known to the respondent;
ii)that accommodation (a stool) having previously been made for her; and
iii)there being no evidence that the claimant's stool had caused any trip hazard or impaired the performance of work at the site; and
c)the subsequent deployment of the claimant away from a position she had held for 11 years, to a location some 2½ hours travel away (effectively making it impossible for her to continue working for the respondent).
[34] Similarly, we do not consider the decisions in Barghouthi v Transfield Pty Ltd (2002) FCA 666 and Drury v Andreco Hurll Refractory Services Pty Ltd (No 4) [2005] FMCA 1226, which were also cited by the applicant in support of her claim, to be of assistance.
In this case, the applicant seeks an alternative position on the basis that she feels unable to continue working in Halls Creek.
a)The evidence is to the effect, and we find, that Ms Meunier was appointed to the Role, the location of which was specific to Halls Creek.[35]
b)Unlike Daghlian:
(i)a relocation away from the Halls Creek office is not an adjustment to Ms Meunier’s work within the Role. This is not a case where, for example, Ms Meunier was hired to a pool and deployed in a manner that disproportionately impacted upon her because of an impairment; and
(ii) nor is it a case where Ms Meunier was effectively being denied an opportunity to continue in the Role she occupied.
c)It is difficult to see how Ms Meunier is being discriminated against by being required to perform in the Role for which she was hired.
[35] The advertisement for the Role specified the location as Halls Creek: Exhibit 1: page 605; Exhibit 2, GB-1. Ms Bird’s evidence in chief was that ‘it was and remains an essential requirement of the Position that the employee is based in and works in Halls Creek’: Exhibit 2 at para 12. She did not resile from that position under cross-examination: ts 75, 6 May 2021.
The requirement that Ms Meunier work in the Halls Creek office, and more specifically, the Department declining to redeploy her to an alternative location, is not in our view unreasonable in the circumstances, and therefore does not constitute indirect discrimination on the ground of impairment within the meaning of s 66A(3).
Discrimination against the applicant on the ground of race?
The only matter alleged to constitute discrimination on the ground of race is the Complaint Allegation contained in [23](b) above.
Section 37 makes it unlawful to discriminate against a person in employment on the ground of a person's race.
Section 36(1)(d) provides that a person may be discriminated against on the ground of race if they are treated less favourably than a person of a different race in the same circumstances, or in circumstances that are not materially different.
That language means that, to establish a claim of discrimination on the ground of race, an approach line with that outlined at [30](b) above must be undertaken.[36]
[36] See Johnston and Director General, Department of Communities [2019] WASAT 21at [29].
For reasons similar to those outlined at [33] above, Ms Meunier's allegation of race discrimination suffers from a number of insurmountable deficiencies.
a)Ms Meunier gave her own evidence about the matter in [23](b) and the respondent did not cross-examine her on it. However:
i)the respondent denies the allegation, and tendered the witness statement of the HPSO in question in which the HPSO stated that she did not use the phrase 'black sheep';[37] and
ii)Ms Meunier did not call the HPSO to give evidence.
b)Even if we could be satisfied that the conversation took place as alleged, there is insufficient evidence to support a finding that it was discriminatory. In common parlance, the phrase 'black sheep' refers to a person who does not fit in, or who is a disappointment.[38] On the evidence,[39] we are not satisfied that the expression was used (if it was used) other than in its colloquial sense and that race was a factor in its use.
[37] Exhibit 1, page 682.
[38] Macquarie Dictionary (2020), ‘black sheep’.
[39] Which includes, on her own account, that Ms Meunier had a difficult working relationship with her colleagues: see [23](d) above.
There is insufficient evidence for us to feel an 'actual persuasion' that Ms Meunier was, by reason of the matters outlined in [23](b), discriminated against on the ground of race in her employment.
Has the applicant suffered damage by reason of discrimination?
Given our conclusions at [34], [39] and [45] above, we are not satisfied that Ms Meunier has been unlawfully discriminated against. As such, we cannot be satisfied that she has suffered damage by reason of discrimination.
Conclusion
It follows from the reasons above that, pursuant to s 127(a), we dismiss the Complaint.
Orders
The Tribunal orders:
1.Pursuant to s 127(a) of the Equal Opportunity Act 1984 (WA), the complaint is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B MCGIVERN, MEMBER
26 AUGUST 2021
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