Mr X v Teachers Mutual Bank Limited

[2013] NSWADT 41

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Mr X v Teachers Mutual Bank Limited [2013] NSWADT 41

Hearing dates:

14 February 2013

Decision date:

18 February 2013

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

The applicant's application for an interim order is refused.

Catchwords:

ANTI-DISCRIMINATION - interim order application - prima facie case - balance of convenience

Legislation Cited:

Administrative Decisions Tribunal Act 1997

Anti-Discrimination Act 1977

Cases Cited:

Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46

Cardile v LED Builders Pty Ltd [1999] HCA 18

Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63

Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92

Category:

Principal judgment

Parties:

Mr X (Applicant)
Teachers Mutual Bank Limited (Respondent)

Representation:

Counsel
Mr R Warren (Respondent)

Mr X (Applicant)
Chadwick Workplace Law (Respondent)

File Number(s):

131008

REASONS FOR DECISION

Introduction

1. Mr X was employed by the Teachers Mutual Bank Ltd. In September 2012 his father became terminally ill and Mr X asked to work remotely and be given leave when necessary to care for his father. Those arrangements did not go smoothly. The Bank terminated Mr X's employment on 8 February 2013 saying he had refused to attend meetings to explain his absences and had been on unauthorised leave from 4 to 8 February 2013. Mr X said his employer discriminated against him on the ground of his carer's responsibilities in breach of the Anti-Discrimination Act 1977 (AD Act). He has applied for an interim order reinstating him to his position until his complaint of discrimination is finalised. I have refused that application.

Application for interim order

2. Mr X lodged a complaint of discrimination with the Anti-Discrimination Board on 8 February 2013 and applied to the Tribunal for an interim order on the same day. His interim order application is made under s 105(1)(c) of the AD Act:

(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:

(a) to preserve the status quo between the parties to the complaint, or

(b) to preserve the rights of the parties to the complaint, or

(c) to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint.

(2) Section 89 of the Administrative Decisions Tribunal Act 1997 applies to an interim order of the Tribunal in the same way as it applies to an original decision of the Tribunal.

3. Mr X wants his job back and also asks that the Bank be prevented from taking any other disciplinary action against him.

Application to the Fair Work Commission

4. On 12 February 2013, Mr X lodged an "Unlawful Termination Dispute" with the Fair Work Commission identifying carer's responsibilities as a ground for the application. The Bank was advised of the application on 13 February 2013 and directed to respond within 7 days.

5. At the hearing of the interim order application before this Tribunal on the morning of 14 February 2013, Mr X advised the Bank and the Tribunal that he had withdrawn his application to the Fair Work Commission.

6. I heard evidence and submissions from each party on 14 February, adjourned the hearing at approximately 1.30 pm and advised that I would give oral reasons at 2 pm the following day. The Bank's solicitors wrote to the Tribunal and Mr X on the afternoon of 14 February advising that, in their view, Mr X had not withdrawn his application to the Fair Work Commission until after the Tribunal proceedings had been adjourned. The Bank's submission was that he had either misled the Tribunal or told a deliberate lie to the Tribunal when he said that he had withdrawn his Fair Work application.

7. I agreed to re-open the hearing. Mr X tendered a letter saying that he had telephoned the Fair Work Commission on the morning of the 14 February and indicated his intention to withdraw the proceedings. He admits that he did not file a Notice of Discontinuance until after the Tribunal proceedings had concluded. He says that if had been asked directly whether he had filed a Notice of Discontinuance he would have said no.

8. Mr Warren and Mr X agreed that they had a conversation after the Tribunal adjourned during which Mr Warren asked Mr X whether he had served the Notice of Discontinuance. Mr X replied that he would receive a copy of the Notice from the Commission. Mr X agrees that he did not tell Mr Warren that he had not actually filed the Notice of Discontinuance at that stage.

9. Mr X is a solicitor. He knows that telephoning the Commission and indicating that he intends to withdraw the application does not mean that the application has been withdrawn. He misled this Tribunal when he said that the application had been withdrawn. That fact reflects adversely on his credibility.

Brief chronology

10. Mr X commenced employment with the Bank on 7 May 2012. On 20 September 2012, he telephoned Ms Russell to tell her that his father was in hospital with a brain tumour and lung cancer and that the outlook was not good. On 24 September 2012 Mr X says he indicated that he required flexibility and would need at least a couple of days off a month to care for his father. He applied for remote access so that he could work outside the office.

11. Mr X applied for "carer's leave" for 22 November 2012. He says Ms Russell asked him to withdraw the application and re-submit as annual leave because he is not the "primary carer" for his father.

12. On 27 and 28 December Mr X says that another employee monitored him at half hourly intervals to see if he was at his desk. He says he chose to work in an outdoor lunch area for a couple of hours on both days as it was a quiet time. He says he also needed to discuss sensitive medical advice his father was receiving and wished to do so in a private area.

13. Mr X applied for leave for 31 December to look after his father. He characterised the application as a bank holiday in lieu of a day he had not previously taken. On 2 January 2013 Ms Russell told Mr X that he should not have taken leave and if it happens again, he will receive a written warning. Ms Russell also told him that it was unacceptable that he was away from his desk for most of the day on 28 December 2012.

14. On 4 January 2013 Mr X said he received an invitation to a meeting to discuss a serious breach of his employment conditions. On the same day he complained of discrimination on the ground of being a carer. He refused to attend the meeting until his complaint had been resolved. Instead, he wrote an email explaining that if the meeting was about being away from his desk for a couple of hours on 28 December, then he felt he was being made a scape goat. Mr X ended the email by saying, "It is unacceptable that a manager behave in such a potentially discriminatory manner in circumstances where, as a carer of a father with a terminal illness such scrutiny and harshness should be replaced with care and consideration."

15. Mr X tendered a certificate from the Resident Medical Officer of St George Hospital certifying that he was "caring for ill family member with Metastatic/terminal cancer from 7 January to 11 January 2013.

16. Mr X took paid carer's leave on 8 and 9 January 2013, exhausting his entitlement to that leave. Mr X applied for and was granted annual leave on 10, 11, 14, 17, 18, 21, 29, 30 and 31 January 2013. He took unpaid leave on 23, 24 and 25 January.

17. On 24 January Mr X received a letter from the investigators of his internal complaint saying they would communicate the outcome to him at a meeting on 24 January. In that letter the authors also mentioned that Ms O'Reilly, Head of Human Resources, has also asked to meet with him on the same day in relation to his whereabouts on 27 and 28 December 2012. That matter had originally been scheduled for discussion on 4 January. Mr X replied that he was unable to attend the meeting on 24 January because he was caring for his father in the intensive care unit of St George Hospital.

18. On 31 January, Mr X emailed saying that it was his intention to be back in the office the following week. He did not return to work on Monday 4 February 2013. Mr X told the Tribunal that circumstances changed and he was not able to return to work because he needed to care for his father.

19. On 4 February Mr X received an email stating that as the investigators were unable to meet with him on 24 January, a written response to his internal complaint has been sent to him. The email went on:

Given that your leave has only been approved to this Friday, 1 February, we would now like to meet with you in the office on Monday 4th February 2013 at 10.00 am to address the original issue of concern that was scheduled for discussion on Friday 4th January 2013.

Please be advised that the failure to comply with a lawful direction to attend this re-scheduled meeting may be considered a breach of your employment obligations and may require disciplinary action, including possible termination of employment.

20. Mr X' response on the same day was:

I will not be in the office today or for the rest of the week.

I am afraid my duties as a carer outweigh any direction to attend Marco's urgent meeting. Despite this, if you wish to meet at St George hospital today (if you cannot wait for my return) then please let me know.

21. This email prompted the Bank to take disciplinary action. On 5 February Mr X received an email from Ms O'Reilly asking that he contact her within 48 hours to reschedule the 4 February meeting. If he failed to do so, Mr X was warned that it might result in the termination of his employment. Ms O'Reilly noted that while Mr X had provided a certificate on 10 January covering 10 and 11 January, that certificate had now expired and he was on unapproved leave.

22. According to the Bank, Mr X took unauthorised leave without pay from 4 to 8 February 2013. His response is that he emailed Ms O'Reilly saying that he would not be at work. Mr X suggested during the hearing that a 'course of conduct' had developed whereby he would indicate at the beginning of each week whether he would be at work that week. Emails he adduced between himself and Neil Kenzler suggest that there were amiable exchanges about Mr X' leave arrangements and his father's medical condition. No doubt relying on the relative informality of those arrangements, Mr X denies that he was on unauthorised leave from 4 to 8 February. But I accept that he had not been approved to take leave that week. In those circumstances his leave was unauthorised.

23. On 8 February 2013, Mr X sent Ms O'Reilly a medical certificate from St George Hospital advising that his father had been an in-patient at the hospital from 4 January 2013 to 6 February 2013 and continuing. According to Mr X he continued to support his father by carrying him, bathing and feeding him.

24. On the same day, 8 February 2013 at 4.12 pm, Ms O'Reilly emailed a letter to Mr X terminating his employment. The reasons for the termination were:

(1) failing to attend three scheduled meetings to discuss his whereabouts on 27 and 28 December 2012; and

(2) failing to provide satisfactory evidence of his need to provide care for his father and being on unapproved leave.

25. One matter in dispute is whether Ms O'Reilly knew when she wrote the termination letter that Mr X had lodged a complaint with the Anti-Discrimination Board. I accept Ms O'Reilly's unchallenged evidence that she did not. She was notified of that complaint by the Anti-Discrimination Board at about 9 am on 11 February 2013.

Consideration

Legal principles

26. The granting of interlocutory relief is discretionary and should generally be the minimum relief necessary to do justice between the parties. In most cases it will cease to operate when the court or tribunal hands down its final decision: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Gaudron, McHugh, Gummow and Callinan JJ at [70]. Under s 105 orders are made 'pending determination of the matter'.

27. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63, the Tribunal discussed interim orders in an employment context at [14] and [15]:

[14] In an employment context, courts have been reluctant to grant injunctions which would have the effect of keeping alive an employer/employee relationship: Heine Bros (Aust) Pty Ltd v Forrest [1963] VicRp 53; [1963] VR 383. Compelling actual performance of a contract for personal services is considered to be fraught because of the personal nature of that relationship. Nevertheless, there are statutory provisions which give courts and tribunals that power. For example, s 89(7) of the Industrial Relations Act 1996 gives the Industrial Relations Commission power to order an employer not to dismiss an employee who has been threatened with termination: Hill v Director General of the Department of Education and Training (NSW) [1998] NSWIRComm 622; (1998) 85 IR 201 at 208. The Commission held in Western Sydney Area Health Service v Australian Salaried Medical Officers' Association (ASMOF) [2004] NSWIRComm 246 (18 November 2004) at [38] that its power under that provision was limited to 'preserving the employment of the employee from dismissal in accordance with an alleged threat until the substantive application has been heard and determined'.

15 Employment decisions under AD Act. Similarly, s 105 of the AD Act has most commonly been invoked where an employer intends to dismiss an employee on allegedly discriminatory grounds. An example is where a university threatens to compulsorily retire an employees in breach of his or her statutory rights: White v University of Sydney (1992) EOC 92-462; Ivory v Griffith University [1996] QADT 15.

28. I am satisfied that s 105(1)(c) of the Administrative Decisions Tribunal Act 1997 (ADT Act) gives this Tribunal the power to reinstate a person to their position after their employment has been terminated.

29. The legal test to be applied, as set out in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46, can be summarised as follows:

1. the applicant must make out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief; and

2. whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.

Prima facie case

30. I have assumed Mr X alleges a breach of s 49V(2)(a), (c) and (d) of the AD Act:

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer:

(a) in the terms or conditions of employment that the employer affords the employee, or

(c) by dismissing the employee, or

(d) by subjecting the employee to any other detriment.

31. In s 49S(1)(c) 'responsibilities as a carer' is deemed to include a reference to a person's responsibilities to care for or support any immediate family member of the person who is in need of care or support, such as a parent.

32. I have also assumed that Mr X is alleging direct discrimination on the ground of responsibilities as a carer is defined in s 49T(1)(a):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities

33. In order to substantiate his complaint, Mr X would have to prove that:

1. he has responsibilities as a carer;

2. his employer has dismissed him or subjected him to any other detriment;

3. his employer would not have treated a person who did not have carer's responsibilities in the same way if the circumstances were the same or not materially different (differential treatment); and

4. at least one of the real or genuine reasons for the treatment is Mr X' carer's responsibilities (causation).

34. An employer has a defence if the person is unable to carry out the inherent requirements of the job: s 49V(4). The Bank did not mention this defence in the context of the interim order application.

35. The Bank disputed Mr X' assertion that he has responsibilities as a carer saying that his father has been in hospital and, for one period, in intensive care. While Mr X may want to be with his father and his father may want him to be with him, there is no requirement that he be present at the hospital to care for his father. Without making a finding about this matter, I acknowledge that this is a potential weakness in Mr X' case.

36. It is agreed that the Bank has dismissed Mr X.

37. In relation to the differential treatment test, Mr X would have to compare himself with a hypothetical person who needed to take leave for a reason other than carer's responsibilities. In the same or similar circumstances, would the Bank have dismissed that person if he or she did not attend three scheduled meetings about a disciplinary issue and was on unauthorised leave for 5 days? It is difficult to answer that question without further evidence, but it is likely that the answer would be yes.

38. The causation element of discrimination requires that at least one of the "real", "genuine or "true" reasons for the treatment was the person's carer's responsibilities: Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92, 163. In this case, it seems more likely that the reason for the termination was that stated by the Bank in its termination letter. Those reasons were:

1. failing to attend three scheduled meetings to discuss his whereabouts on 27 and 28 December 2012; and

2. failing to provide satisfactory evidence of his need to provide care for his father and being on unapproved leave.

39. In my view Mr X has misconceived his rights. He appears to be of the view that his so-called duties as a carer outweigh any reasonable direction his employer may give him. He admits that he was absent from his desk for some hours on 27 December but refuses to attend a meeting to explain and perhaps justify his behaviour. It is no answer to say that his father is ill and he needed to care for him. The need to care for a relative does not give him the right to disregard his employer's directions. Mr X could and should have made time to attend the scheduled meeting. His failure to do so gave the Bank no choice but to terminate his employment. If the evidence remains as it is, Mr X would probably not be entitled to relief under the AD Act.

Balance of convenience

40. The second part of the test for the granting of an interim order is whether the inconvenience or injury which the applicant would be likely to suffer if an order were refused outweighs or is outweighed by the injury which the respondent would suffer if an order were granted.

41. Loss of employment is a major blow. It is not a mere inconvenience. Mr X will be without an income from paid work if an interim order is not granted. There was no evidence as to any other source of income he may have or his prospects of being re-employed.

42. The financial prejudice to the Bank of re-employing Mr X is slight. He has virtually no paid leave left so the Bank would not be out of pocket in the short term if he were reinstated and continued on unpaid leave. But I accept that there is no longer a relationship of mutual trust and confidence between Mr X and the Bank. That makes reinstatement problematic.

40. On the existing evidence, Mr X would probably not be entitled to relief under the AD Act. The balance of convenience, while favouring Mr X, does not persuade me that I should grant the order.

Order

The applicant's application for an interim order is refused.

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Amendments

04 September 2020 - Suppression of name

Decision last updated: 04 September 2020