NESTER AND ACT FIRE BRIGADE
[2005] ACTDT 1
•25 MAY 2005
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
CITATION:NESTER AND ACT FIRE BRIGADE [2005] ACTDT 1
(25 MAY 2005)
DT03/19
Catchwords: Discrimination in employment – hearing on remittal by Supreme Court – causal link between attribute and unfavourable treatment.
Discrimination Act 1991, ss. 4, 7, 10, 49, 102
Fire Brigade (Administration) Act 1974, s. 19A
Drabsch v Switzerland General Insurance Co. Limited, Supreme Court of New South Wales, 16 October 1996, Santou J, unreported
Tribunal:Mr M H Peedom, Deputy President
Date:25 May 2005
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/19
RE: KEN NESTER
ComplainantAND: ACT FIRE BRIGADE
Respondent
DECISION
Tribunal : Mr M H Peedom, Deputy President
Date : 25 May 2005
Decision :
The complaint that the respondent has engaged in unlawful discrimination has been substantiated.
……………………………..
Deputy President
AUSTRALIAN CAPITAL TERRITORY )
DISCRIMINATION TRIBUNAL ) NO: DT03/19
RE: KEN NESTER
ComplainantAND: ACT FIRE BRIGADE
Respondent
REASONS FOR DECISION
25 May 2005 Mr M H Peedom, Deputy President
In a decision given on 10 March 2004 the Tribunal found that a complaint that the respondent had engaged in unlawful conduct under the Discrimination Act 1991 (“the Discrimination Act”) had been substantiated. On 2 April 2004 it ordered the respondent to re-instate the complainant to the position in which he was employed prior to 1 November 2001 and to pay him the sum of $47,500 inclusive of costs, by way of compensation for the loss or damage suffered by the complainant as a result of the respondent’s unlawful conduct.
2. The circumstances which gave rise to the complaint and the Tribunal’s reasons for decision were set out in written reasons for decision dated 10 March 2004 (“the reasons”) and it is unnecessary to repeat the detail of them here.
3. The respondent appealed from the Tribunal’s decision to the Supreme Court on a number of grounds. On 10 December 2004 the Supreme Court ordered that the matter be remitted to the Tribunal for determination according to law. The Court saw no reason for the matter to be considered by a reconstituted Tribunal.
4. When the matter returned to the Tribunal directions were given to the parties to file and serve on each other written submissions for further consideration by the Tribunal. Written submissions were made in accordance with those directions on behalf of the parties.
5. The central issue raised by the Supreme Court related to the requirement of the Discrimination Act for a complaint of unlawful conduct to be substantiated, that there be established a causal connection between any unfavourable treatment of the complainant by the respondent and an attribute specified in section 7 of the Discrimination Act. In her reasons for decision of the Supreme Court, Bennett J said:
12.As I read the Tribunal’s decision, the only finding by the Tribunal of unfavourable treatment in the terms or conditions of employment was in respect of custom and practice requiring that the respondent (‘Mr Nester’) be treated fairly in the decision that affected him adversely. There was no link or causal nexus found between that treatment and Mr Nester’s presumed impairment. The causal nexus found by the Tribunal and submitted by the solicitor then appearing for Mr Nester was in respect of his transfer from “operational” to “non-operational” duties.
13.Similarly, there is no link or causal nexus found by the Tribunal between the denial of procedural fairness and any disability or presumed disability suffered by Mr Nester.
6. Her Honour further observed that it was important to note that there was no discussion by the Tribunal of overtime in the context of section 10(2)(a) or section 10(2)(d) of the Discrimination Act.
7. In order to reach a conclusion as to whether a claim of unlawful conduct under the Discrimination Act has been substantiated it is necessary to consider whether:
- the complainant has an attribute specified in section 7 of the Discrimination Act;
- the complainant has been treated unfavourably in a relevant respect; and
- there is a causal connection between the attribute and the treatment.
8. The Tribunal found that the complainant had an attribute specified in section 7, that is, an impairment which the respondent presumed him to have (see paragraph 75 of the reasons). The decision of the Supreme Court does not call for further consideration by the Tribunal of that issue.
9. The complainant’s representative alleged that the complainant was treated unfavourably in two respects. First, he was transferred from operational to non-operational duties. Second, in arriving at the decision to transfer the complainant to those duties, the respondent denied the complainant natural justice.
10. The Tribunal considered that the manner in which the decision to transfer the complainant to non-operational duties and the reason for it were integral to the making of the decision and inseparable from it (see paragraph 94 of the reasons). Nevertheless, to the extent to which the decision of the Supreme Court requires that each aspect of the alleged unfavourable treatment be separately addressed, I make the following further comments and findings.
11. In relation to the transfer of the complainant to non-operational duties the Tribunal found that the complainant suffered financial loss as a consequence (see paragraphs 81-82 of the reasons). It also found that the complainant suffered hurt and humiliation as the result of the transfer (see paragraph 84 of the reasons). The Tribunal concluded that as the result of the financial loss and the hurt and humiliation suffered by the complainant in consequence of his treatment by the respondent, that he had been treated unfavourably by the respondent.
12. There was evidence before the Tribunal that officers of the respondent, including the complainant until the time of his transfer, worked overtime and were remunerated for doing so. Whether that occurred in consequence of written terms and conditions of employment, a determination of those terms and conditions, an industrial award or otherwise, was not made clear by the evidence. Nor did the evidence make clear what were the circumstances in which officers were required to work overtime or became entitled to or offered the opportunity to do so. Evidence of the practice of officers working overtime and of the complainant doing so suggests that overtime was a term and condition of the complainant’s employment in the position he occupied prior to his transfer and, therefore, a term or condition of employment which he was afforded by the respondent. In that event, the conclusion to be reached is that the complainant was treated unfavourably in a relevant respect, that is, that which is referred to in section 10(2)(a) of the Discrimination Act. Nevertheless, to the extent to which any doubt exists I would conclude that if overtime was not a term or condition of employment afforded the respondent’s employees it was a benefit associated with that employment and that the complainant was treated unfavourably by the respondent in the respect referred to in section 10(2)(b) of the Discrimination Act. Alternatively, he was subjected to a detriment other than that referred to in section 10(2)(a) or section 10(2)(b), within the meaning of section 10(2)(c) of the Discrimination Act.
13. I therefore find that the complainant was treated unfavourably in a relevant respect and a finding that he has been the subject of unlawful treatment is, therefore, justified provided that the necessary causal connection between that treatment and the complainant’s attribute is established. As the Tribunal has already concluded (at paragraph 77 of the reasons) that a reason for the transfer of the complainant to non-operational duties was the complainant’s attribute, I find that the complaint of conduct made unlawful by section 10(2) of the Discrimination Act has been substantiated.
14. In relation to the treatment of the complainant that involved a failure to deal with him fairly in making the decision to transfer him to non-operational duties, I note that at the relevant time section 4(2) of the Discrimination Act included a refusal to do an act within a reference to the doing of an act. The Tribunal made a specific finding that such treatment was unfavourable (see paragraph 92 of the reasons). The treatment occurred in the course of the complainant’s employment and, as the Tribunal found, contrary to an obligation imposed upon the Fire Commissioner pursuant to section 19A(1)(a) of the Fire Brigade (Administration) Act 1974. It was, in that event, treatment that the respondent afforded the complainant in the terms or conditions of his employment. If not a term and condition afforded him, it was a benefit associated with his employment. Alternatively, he was subjected to other detriment.
15. The requirement for dealing with employees fairly before making decisions or taking action adverse to their interests is well understood and accepted. It was an obvious requirement for the proper discharge of the obligation imposed on the Fire Commissioner by section 19A(1)(a) of the Fire Brigade (Administration) Act. References made by the complainant in his evidence to the fact that Acting Superintendent Jeffrey mentioned to him that he had “uncovered certain, largely anecdotal evidence of incidents of conflict between the complainant and other members of the brigade” show an awareness of that obligation and that the failure to provide the complainant with more detailed information in relation to those matters was not inadvertent. The evidence shows that he had come to a view that the complainant should be transferred immediately to non-operational duties and that the need for this action to be taken was the paramount consideration. The conclusion which I have reached that Superintendent Jeffrey’s recommendation was made and accepted because of the complainant’s presumed impairment is consistent with his evidence that a general principle was applied by the respondent in circumstances of suspected stress, that the officer involved should not be asked about whether he or she was suffering from that condition. This evidence suggests that the respondent had formed a view that further involvement of the complainant in any process to determine a course of action in relation to him was inappropriate.
16. I therefore find that there is a causal link between the respondent’s unfavourable treatment of the complainant contrary to section 10(2) of the Discrimination Act because of the impairment from which the respondent presumed the complainant to suffer.
17. The matters referred to above appear to me to address the issues required by the decision of the Supreme Court to be the subject of further consideration. Additional matters were, however, raised by the submissions made on behalf of the respondent and responded to by the submissions made on behalf of the complainant. Those matters are referred to below.
18. It was submitted on behalf of the respondent that the complainant’s legal representative had abandoned any reliance upon section 10(2)(a) at the hearing before the Tribunal and, despite the Tribunal making findings based on the application of that section, it could not now be relied upon. To do so, it was submitted, would involve a denial of natural justice.
19. Reference was made to this issue by Bennett J in her reasons for decision on appeal. She noted that the respondent’s counsel had sought leave to amend the respondent’s amended notice of appeal to abandon the ground now relied upon and that the leave sought had been granted.
20. I note further that the respondent’s written submissions do not seek to further address the operation of section 10(2)(a) despite the opportunity given by the Tribunal’s directions dated 7 February 2005 to do so. The respondent does not, in that event, appear to have accepted and acted upon any admission by the complainant, even assuming his failure to specifically rely upon section 10(2)(a) can properly be characterised as an admission, and the further amendment of the amended notice of appeal is, in my view, good reason to not disturb what was previously conceded (see Drabsch v Switzerland General Insurance Co. Limited, Supreme Court of New South Wales, 16 October 1996, Santou J, unreported). There is nothing, in any event, in Her Honour’s reasons for decision which calls for the Tribunal to now further address the issue of its finding in relation to the application of section 10(2)(a) in which event I refrain from further doing so.
21. A consequence of a finding of unlawful conduct pursuant to section 10(2)(a) of the Discrimination Act is that the defence provided for by section 49(2) is not available in circumstances where the discrimination relied upon is that referred to in section 10(2)(d) of the Discrimination Act.
22. The issue of the exception created by section 49(2) was the subject of consideration by the Tribunal (see paragraphs 99-101 of the reasons). There is nothing in the reasons for decision of the Supreme Court which calls for that issue to be addressed further.
23. The conclusion which I have reached is that the complaint has been substantiated.
24. The respondent has requested opportunity to make further submissions in relation to the orders which are appropriate to be made pursuant to section 102 of the Discrimination Act. I am prepared to give that further opportunity to both parties.
AUSTRALIAN CAPITAL TERRITORY
DISCRIMINATION TRIBUNAL
APPEARANCE DETAILS
To be completed by Member's Staff
________________________________________________________________________
FILE NO: DT03/19
COMPLAINANT: KEN NESTER
RESPONDENT: ACT FIRE BRIGADE
COUNSEL APPEARING: COMPLAINANT: MR M SPRY
RESPONDENT: MR J PAPPAS
SOLICITORS: COMPLAINANT: KEN JOHNSTON BEDFORD
& CO
RESPONDENT: ACT GOVERNMENT SOLICITOR
OTHER: COMPLAINANT:
RESPONDENT:
TRIBUNAL MEMBER: MR M H PEEDOM, DEPUTY PRESIDENT
DATE OF HEARING: ** PLACE: CANBERRA
DATE OF DECISION: 25 MAY 2005 PLACE: CANBERRA
COMMENT:** NO ORAL HEARING REQUIRED – DETERMINED ON SUBMISSIONS OF PARTIES LODGED WITH TRIBUNAL ON 7/3/05, 11/4/05 & 18/4/05.
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