Pignat v Richmond Valley Council

[2005] NSWADT 162

CITATION:	Pignat v Richmond Valley Council [2005] NSWADT 162
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Fioravante Raymond Pignat RESPONDENT Richomnd Valley Council
FILE NUMBER:	041109
HEARING DATES:	07 & 08/04/2005
SUBMISSIONS CLOSED:	05/06/2005
DATE OF DECISION:	07/14/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Nemeth de Bikal L - Non Judicial Member; O'Sullivan M - Non Judicial Member
APPLICATION:	Disability Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Industrial Relations Act 1996
CASES CITED:	Bogie v The University of Western Sydney (1990) EOC 92-313 Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 Browne v Dunn (1893) 6 R 67 Hill v Water Resources Commission (1985) EOC 92-127 at 76,290I W v City of Perth (1997) 191 CLR 1 Mooney v Commissioner of Police New South Wales Police Service (No 2) [2003] NSWADT 107 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Sloey & Anor [1999] NSW SC 47
REPRESENTATION:	G Donaghy, solicitor A Dansie, solicitor
ORDERS:	1.The complaint of disability discrimination is dismissed; 2.The complaint of age discrimination is dismissed; 3.The complaint of victimisation is dismissed.

Introduction

1 Mr Pignat is 62 years old and has been employed in local government for over 30 years. Since November 2002, he has been on sick leave (and more recently on annual leave) as a result of anxiety and depression. On 23 July 2003 Richmond Valley Council (the Council) sent him a letter asking him to “show cause” as to why his employment should not be terminated. He was not terminated, but on 19 January 2004, he lodged a complaint of disability discrimination and a complaint of age discrimination with the Anti-Discrimination Board. In relation to the complaint of age discrimination, Mr Pignat submitted that the Tribunal should consider events prior to the writing of the letter on 23 July 2003. The prior conduct is not itself unlawful because it falls outside the statutory time period covered by the complaint. But according to Mr Pignat, it suggests that at least one of the reasons Council sent the 23 July letter was his age. Mr Pignat also lodged a complaint of victimisation as a result of a letter Council sent to him after he complained to the Board requesting that he attend a medical appointment. These complaints need to be viewed against the background of events commencing in February 2000 when Casino Municipal and Richmond River Shire Councils amalgamated to form the Richmond Valley Council.

Amalgamation and restructure

2 Following the amalgamation, Council developed rules relating to the recruitment and selection of staff to the new organisational structure (the Rules). All non-managerial positions were declared vacant and employees including Mr Pignat were asked to nominate the positions in which they were interested. Mr Pignat’s first preference was for the position of overseer at Evans Head. Following the application of the Rules, Mr Grainger was appointed to that position and Mr Pignat was told that he had not been selected. Mr Grainger is the same age as Mr Pignat. Even though Mr Pignat missed out on this position, there were several other positions that remained vacant and Council encouraged Mr Pignat to apply for one of those positions. In the meantime, Mr Pignat appealed against Council’s decision to appoint Mr Grainger, but was unsuccessful. Mr Pignat was also unsuccessful in his application for the position of leading hand. On 28 October 2002, Mr Pignat’s appointment as a factory labourer, effective from 21 February 2003, was confirmed. Unlike his previous job as Works Supervisor this job did not involve supervising other staff. The new structure commenced on 23 February 2003, three years after the amalgamation.

23 July letter

3 On 23 July 2003, when Mr Pignat had been on sick leave for 7 months, Council wrote to him asking him to show cause as to why his employment should not be terminated. That was the letter that Mr Pignat says amounts to unlawful age and disability discrimination under the Anti-Discrimination Act 1977 (the Act). The letter stated that:

Council recently wrote to Dr Paul Watterston seeking his advice regarding duties that you may be reasonably capable of performing. In response to that request Dr Watterston has stated “I feel that Mr Pignat is currently unfit for all employment at Richmond Valley Shire Council.” A copy of Dr Watterston’s statement is attached.

In light of this advice from Dr Watterston, Council is considering termination of your employment, in accordance with Clause 30(iii) Termination of employment, Local Government (State) Award 2001.

Could you please show cause, in writing, by not later than Wednesday 6 August 2003, why Council should not proceed with termination of your employment.

A copy of this letter has been forwarded to McKenzie Cox, Solicitors, marked for the attention of Mr G Donaghy.

Sgnd

BA Wilkinson

General Manager

4 The letter from Dr Watterston was dated 17 July 2003, 6 days prior to the 23 July letter. Clause 30(iii) of the Award, referred to in the letter, states that:

The council shall give to an employee a period of notice of termination in accordance with the following scale or by payment in lieu thereof.

5 The Award then sets out the notice periods for various periods depending on the length of continuous service. Mr Pignat’s solicitors responded on 7 August 2003 and Council did not dismiss Mr Pignat.

Disability discrimination complaint

6 Elements of disability discrimination. It is not in dispute that Mr Pignat suffers from reactive anxiety and depression which is a “disability” under s 4 of the Act. It is unlawful for Council, as Mr Pignat’s employer, to discriminate against him on the ground of his disability by subjecting him to any detriment: s 49D(2)(d). Disability discrimination is defined in s 49B. The relevant parts of that provision are set out below.

(1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if, on the ground of `the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 that disability or who does not have such a relative or associate who has that disability, or
…

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

…

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

7 Characteristic. Section 49B(1)(a) defines what is commonly called “direct” discrimination. Section 49B(2) is sometimes called the “characteristics extension” because it extends unlawful conduct to treatment of a person on the ground of a characteristic that people with a particular disability generally have or that is generally imputed to them. The first notice the Tribunal or the Council had that Mr Pignat was relying on the characteristics extension was in the written submissions filed after the hearing. Council did not object to Mr Pignat relying on that aspect of disability discrimination at such a late stage and responded to the submissions. Given that there was no objection from Council, we will consider the complaint on the basis of the characteristics extension. The characteristic that was said to generally appertain to people with Mr Pignat’s disability was that they have a tendency to use substantial amounts of accumulated sick leave.

8 What needs to be proved. In order to prove that Council has unlawfully discriminated against him on the ground of his disability, Mr Pignat must prove, on the balance of probabilities, that:

1. the alleged conduct amounted to subjecting him to a “detriment”;

2. using substantial amounts of accumulated sick leave is a characteristic generally appertaining to people who have Mr Pignat’s disability;

3. Council treated Mr Pignat less favourably than they treated or would have treated a person who did not have that disability or that characteristic, in the same circumstances, or in circumstances which are not materially different (“differential treatment”); and

4. at least one of the grounds for that treatment was the characteristic (“causation”).

9 Definition of detriment. The detriment that Mr Pignat is said to have suffered is the receipt of the letter dated 23 July 2003 which stated that Council was “considering termination of your employment” and asking him to show cause as to why Council should not proceed with the termination. Mr Pignat confined his age and disability discrimination complaints to the sending of the 23 July letter. (See paragraphs A5 and B1 of written submissions filed 3 May 2005.) However, in D15 of the written submissions, Mr Pignat’s solicitor alleges that the circumstances of a meeting on 14 November 2003 were also discriminatory. We deal briefly with that meeting below at [33] but have assumed, given the clear indication at the beginning of Mr Pignat’s written submissions, that he is not relying on that event as a discrete act of discrimination.

10 Following receipt of Mr Pignat’s reply, Council did not proceed with the termination. Council said that sending the letter did not amount to subjecting Mr Pignat to a “detriment” because it gave him the opportunity to give reasons as to why he should not be terminated before a final decision was made. Such an opportunity is consistent with the principles of procedural fairness. According to Council, the absurdity of treating a notice to show cause as a detriment in the circumstances of this case is apparent when one considers the effect of the defence in s 49D(4). That provision exculpates an employer if an employee is dismissed where, among other things, the employee “would be unable to carry out the inherent requirements” of the job. While the defence does not apply to conduct which subjects an employee to a detriment, Council said it would be absurd if they could lawfully terminate Mr Pignat because he is unable to perform the inherent requirements of the job, but could not lawfully write to him asking him to “show cause” before deciding whether or not to terminate him.

11 The word “detriment” should be given its ordinary meaning of “loss, damage or injury”. (The Macquarie Dictionary, 3rd edition, The Macquarie Library.) The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively”: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]. Council did not terminate Mr Pignat’s employment, so he did not suffer any loss, damage or injury on that count. The letter did put Mr Pignat in the vulnerable position of having to justify the continuation of his employment. He was no doubt distressed and anxious when he received the letter. He incurred costs by instructing his solicitors to respond. While the detriment was not substantial, it was not trivial. A reasonable person would have regarded receiving such a letter as a “detriment”.

12 The fact that Council may have had a defence if it had dismissed Mr Pignat does not affect the meaning of “detriment” in s 49D(2)(d). Similarly, the fact that Council was complying with the principles of procedural fairness in giving Mr Pignat the opportunity to put his case, does not mean that the sending of the letter was not a detriment. Conduct, which is otherwise lawful, may still be a detriment to an employee.

Identification of the characteristic

13 In their written submissions, Council conceded that it is a distinguishing peculiarity or quality of people who have Mr Pignat’s disability, or a disability that is substantially the same as his disability (s 49B(4)), that they have a tendency to use substantial amounts of their accumulated sick leave. (See Mooney v Commissioner of Police New South Wales Police Service (No 2) [2003] NSWADT 107 at [57] and Sloey & Anor [1999] NSW SC 47 Barr J.) At various parts of the written submissions, Mr Pignat’s solicitor appears to have been submitting that the characteristic was that Mr Pignat had available to him significant amounts of sick leave. (See, for example, paragraphs C22-24 of the written submissions.) That is not a characteristic that generally appertains to people who have Mr Pignat’s disability. We have not addressed any submissions based on a characteristic other than a tendency to use substantial amounts of accumulated sick leave.

Differential treatment

14 With whom should Mr Pignat be compared? Section 49B(1)(a) requires that the conduct towards Mr Pignat be compared with the conduct towards an actual or hypothetical person “who does not have that disability”. Section 49B(4) states that:

(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

15 While the meaning of this sub-section is not clear, we presume that it means that any actual or hypothetical comparator should not have the same disability as Mr Pignat, nor a disability that is substantially the same as Mr Pignat’s disability. But does the comparator have the characteristic of taking substantial amounts of sick leave? The most authoritative decision on this point is IW v City of Perth (1997) 191 CLR 1 where the High Court was applying a similar provision in the Equal Opportunity Act 1984 (WA). The High Court held (Kirby J at p 66-69, Toohey at 33-34, Gummow J concurring) that in making the comparison the characteristics are to be ignored. According to Toohey J at p 34, “Any other approach would render the Act ineffective.”

16 The circumstances in this case are that Mr Pignat had been on sick leave for 7 months and there was a recent opinion from Dr Watterston that he was currently unfit to return to work in any capacity. The closest comparable situation to that of Mr Pignat is the situation of a person who has been on worker’s compensation leave (weekly benefits) who does not have Mr Pignat’s disability, nor the tendency to use substantial amounts of accumulated sick leave. It is an offence to terminate employees who are on worker’s compensation payments less than six months after they first became unfit for employment: s 99 of the Industrial Relations Act 1996. In other respects, employees on worker’s compensation and those on sick leave are in a similar position in relation to termination of employment and the benefits to which they are entitled.

17 Council submitted that it treated employees on worker’s compensation in a similar manner to the way they treated Mr Pignat. Mr Hackett, the Human Resources Manager, gave evidence that it was common practice for Council to consider termination of an employee’s employment if the employee had been absent from work and it was unlikely that he or she would be able to return to work. Two letters sent by the Council to employees who had suffered workplace injuries, tend to support that assertion. (See attachment X to Affidavit of Peter Hackett dated 25/1/05.) One is dated 2 May 2002 and the other 23 September 2002. Both state that:

I refer to recent discussions held between the Director – Works, Human Resources Manager Rehabilitation Co-Ordinator and yourself regarding your continuing employment with Council.

These discussions were held in light of medical evidence advising that you are unable to perform the full range of your pre-injury duties and that it was unlikely that you would be able to resume full pre-injury status in future.

I regret to advise therefore, that in accordance with Clause 30 Termination of Employment Local Government (State) Award 2001 your employment with Richmond Valley Council will cease with effect from . . . (date).

18 While there was no evidence of the kind of disability the employees on worker’s compensation entitlements had, we are satisfied that it was Council’s practice to terminate employees, regardless of the nature of their disability, if the medical evidence was that they were unfit for work and were unlikely to be fit in the future. Consequently Mr Pignat was not treated less favourably than other employees without his disability and without the characteristic of having a tendency to take substantial amounts of accumulated sick leave. While the circumstances relating to employees on worker’s compensation entitlements are not the same as those on sick leave, they are not materially different.

Causation

19 Given our finding on differential treatment, it is not strictly necessary to consider the question of causation. However, we will go on to determine whether at least one of the reasons that the Council sent the letter of 23 July was because of Mr Pignat’s tendency to use substantial amounts of accumulated sick leave. Mr Hackett gave evidence that he believed that the longer an employee is away from the workplace, the less likely it is that they will return to their employment. Mr Pignat submitted that this attitude is evidence of the fact that Mr Pignat was asked to “show cause” because of the amount of time he had been on sick leave.

20 According to Council, the reason for writing the letter was Dr Watterston’s advice of 17 July 2003 that “Mr Pignat is currently unfit for all employment with the Richmond Valley Council.” The requirement to show cause was expressed as being necessary “in the light of this advice from Dr Watterston”. According to Council, since Mr Pignat had been on sick leave for over 7 months, Dr Watterston’s opinion gave rise to a reasonable assumption that Mr Pignat was unlikely to return to work. Council also said that operational considerations were a factor and cited Mr Hackett’s evidence that a casual employee who had been engaged to perform Mr Pignat’s duties represented an additional cost. (Oreb v Discovery Clothing Company Pty Ltd [2001] NSWADT 48.)

21 The letter of 23 July 2003 was written a few days after Council received Dr Watterston’s letter. Dr Watterston’s opinion, together with the fact that it was costing Council money to employ a casual employee in Mr Pignat’s position, were the triggers for the 23 July letter, not the fact that Mr Pignat had a tendency to take substantial amounts of sick leave. If there had been some indication that Mr Pignat would be fit for some kind of work in the foreseeable future, Council would not have written him the show cause letter. That conclusion is supported by the fact that Council was prepared to discuss a return to work plan if he was given a medical clearance to resume work. (See [32-33].)

Age discrimination complaint

22 Elements of the complaint. It is not in dispute that Mr Pignat is 62 years of age. He claims that the Council has directly discriminated against him on the ground of his age by being subjected to a detriment: s 49ZYB(2)(c). The relevant parts of s 49ZYA, which defines age discrimination, state that:

1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group,

23 What needs to be proved? In order to prove that Council has unlawfully discriminated against him on the ground of his age, Mr Pignat must prove, on the balance of probabilities, that:

1. the alleged conduct amounted to subjecting him to a “detriment”;

2. Council treated Mr Pignat less favourably than they treated or would have treated a person who is not of his age or age group, in the same circumstances, or in circumstances which are not materially different (“differential treatment”); and

3. at least one of the grounds for that treatment was his age (“causation”).

24 The conduct about which Mr Pignat complains is the sending of the 23 July letter. For the reasons given in [11-12] we are satisfied that that conduct amounts to a detriment within s 49ZYB(2)(c).

Differential treatment

25 Comparator. Council’s conduct towards Mr Pignat must be compared with the way they treated or would have treated a person who is not of his age or age group in circumstances which are the same or not materially different. In his written submissions, Mr Pignat’s solicitor identified Mr Yager as a comparable employee. Mr Yager accepted a voluntary redundancy and was then offered the position of Leading Hand. Council later offered him a two-month project job. Mr Yager is younger than Mr Pignat but his circumstances are materially different from Mr Pignat’s circumstances. In the absence of an actual comparator, Mr Pignat says that Council would not have treated a hypothetical younger person in the same way. That inference is said to arise from evidence about Council’s previous treatment of Mr Pignat and other employees, in particular:

Council’s deal with the Union;

Mr Bliss asking Mr Pignat to “step aside”;

repeated offers of redundancy; and

correspondence from Council to Mr Pignat requesting meetings.

26 Caution in relation to tendency evidence. Because these events all fall outside the statutory time period that the complaint covers, it is not alleged that any of these incidents amount to discrete acts of discrimination. The question for the Tribunal is whether they prove that Council had a tendency to behave in a certain way towards older people such as Mr Pignat. This kind of evidence should be treated cautiously because it allows a person to be judged by their conduct on other occasions, rather than on direct or indirect evidence of their conduct on the occasion that is the subject of the complaint. Under s 97 of the Evidence Act 1995, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless, among other things, that evidence has significant probative value. This Tribunal is not bound by the rules of evidence, but should nevertheless be careful not to rely on evidence adverse to Council unless its probative value is significant.

Deal with the union

27 During 2002 the Federated Municipal and Shire Councils Union of Australia (the MEU) was negotiating with Council in relation to employees who were subject to the restructure. Mr Hickson, on behalf of the MEU, asked Mr Pignat to identify which employees had lost benefits (including vehicles or salary) as a result of the restructure. Mr Pignat provided Mr Hickson with a list of those employees. Although the precise details were not in evidence, Council came to an agreement with the MEU that if Mr Pignat and two other employees, Mr Lynn and Mr Crouch, accepted a voluntary redundancy with increased benefits, the remaining employees would obtain additional salary maintenance and other benefits. Conversely, if the three men did not accept voluntary redundancy on those terms, the other employees would not receive the increased entitlements. Mr Pignat said that he had never expressed any interest in voluntary redundancy and that being singled out in this way distressed him. Mr Pignat submitted that Council would not have treated a group of much younger men in that way.

28 There is not enough evidence for us to find whether it was the MEU or Council who singled out Mr Pignat, Mr Lynn and Mr Crouch. Nor is there enough evidence to come to a view as to whether they were chosen because they were worse off than they had been before the re-structure, or for some other reason. We know that Mr Grainger, who was the same age as Mr Pignat, was not part of the deal. That suggests that the three men were not singled out on the basis of their age alone. Putting to one side the rights or wrongs of the deal itself, without more evidence we are not satisfied that even one of the reasons these three men were singled out was their age. Consequently the deal does not have significant probative value when determining whether Council had a tendency to behave in a certain way towards older people.

Request to “step aside”

29 Mr Pignat says that he returned to work in November 2002 after a short period of sick leave. On his return, he says his supervisor, Mr Jerry Bliss, said, “I want you to step aside and help Johnny Grainger to learn about your job. I want everything up and running before 21 February 2003.” Mr Pignat said that he told Mr Bliss that he was entitled to continue in his position until February 2003. Mr Bliss denied ever asking Mr Pignat to “step aside.” He said that he routinely approached those employees whose jobs were going to be taken over by someone else, to see if they would co-operate in allowing the incumbent to take a greater role so as to make the change over in February 2003 as smooth as possible. According to Mr Bliss, he did this informally because he knew that the Rules provided that the official change over was not to take place until February 2003.

30 Regardless of which version of the conversation is accepted, we are satisfied on the basis of Mr Bliss’ uncontradicted evidence, that he routinely approached employees whose jobs were to be taken over by someone else. Consequently Mr Pignat was not singled out because of his age but because he was one of the people who would be losing his position in February 2003.

Repeated offers of redundancy

31 The third basis on which Mr Pignat submitted that Council showed a tendency to discriminate against older employees was that he was offered redundancy in the deal with the MEU and again in a letter of 29 November 2002 from the Shires Association to Mr Pignat’s solicitor. Mr Pignat says that he had told Council that he was not interested in redundancy, and yet they made offers of redundancy. According to Mr Pignat, Council would not have persevered with repeatedly making offers of redundancy if he was a younger employee. Without evidence of the age of all the people who were expressly offered voluntary redundancy, we are not satisfied that the offers to Mr Pignat have any significant probative value when determining whether Council had a tendency to behave in a certain way towards older people.

Request for meetings

32 On 14 May 2003, over 5 months after Mr Pignat commenced sick leave, Council wrote to him saying that they were concerned about his continuing absence and requesting that he meet with them to discuss a possible return to work. Mr Pignat’s solicitors replied on his behalf saying that Mr Pignat had a medical appointment on 6 June 2003 and that he would let Council know the outcome of that appointment. Mr Pignat’s solicitors asked Council to advise him of suitable dates for a meeting. A meeting organised for 26 June 2003 was cancelled. Mr Pignat’s solicitors wrote to Council on 7 July saying that Mr Pignat was too ill to discuss a return to work program but would advise Council when he had been certified as medically fit to return to work.

33 After receiving a response to its “show cause” letter, Council wrote to Mr Pignat on 3 September 2003 requesting a meeting. Having received no response to that letter, Council wrote again on 25 September threatening to terminate Mr Pignat’s employment unless he contacted Council to arrange a meeting within 7 days. On 1 October 2003, Mr Pignat’s solicitors responded saying that the correspondence had distressed Mr Pignat and they were unable to obtain instructions from him. Finally, on 14 November 2003, Mr Pignat attended a meeting with Council employees. While Mr Pignat gave evidence of what happened at the meeting, the most reliable evidence of what occurred is in the correspondence between Mr Pignat’s solicitors and Council following the meeting. Mr Pignat’s solicitors wrote to the Council confirming the outcome, namely that Council was prepared to offer Mr Pignat retirement on the grounds of medical unfitness or to discuss a return to work plan if he was given a medical clearance to resume work. Mr Pignat had an appointment with his own psychologist, Dr Pearson, on 12 December 2003. Despite agreeing to advise Council of the results of that appointment, neither Mr Pignat nor his solicitors did so.

34 The evidence suggests that Council’s requests for Mr Pignat to attend meetings were motivated by its need to clarify whether or not there was a possibility that he would be able to return to work. The workers who were terminated when on worker’s compensation both attended at least one meeting with Council managers prior to their termination. Mr Pignat failed or refused to attend several meetings. We are not satisfied that Council singled out Mr Pignat, or that the numerous requests for meetings has significant probative value when determining whether Council had a tendency to behave in a certain way towards older people. It is understandable that Council was keen to meet with Mr Pignat given the fact that he had been on sick leave for so long.

Causation

35 Similarly, we are not satisfied that even one of the grounds for sending the letter of 23 July was Mr Pignat’s age. There is no direct or tendency evidence sufficient for us to infer that a younger person would have been treated any differently. While Mr Pignat did not rely on evidence about his failure to be appointed to the position of overseer, or the failure of his appeal against that decision, Council pointed out that Mr Grainger, an employee of the same age of Mr Pignat, was appointed to that position. This evidence suggests, contrary to Mr Pignat’s submission, that during the course of the re-structure Council did not conduct itself in a manner which discriminated against employees on the ground of their age. It was not Mr Pignat’s age that lead Council to write the letter, but the fact that there was no indication that he would ever be fit to return to work in any capacity.

Victimisation

36 9 March 2004 letter. The complaint of victimisation arises from a letter Council sent to Mr Pignat on 9 March 2004 requesting that he attend a medical appointment with Dr Speedy. That letter stated that:

You are requested to attend an appointment with Dr Sandra Speedy at Goonellabah Medical Centre, 162 Ballina Road Goonellabah at 10.00 am on Tuesday 16 March 2004.

The cost of this medical appointment is to be invoiced directly to Council.

A copy of this letter has been forwarded to your solicitor Mr Geoffrey Donaghy, McKenzie Cox and also to Dr Speedy.

If you have difficulties in making this appointment, could you please notify me on the above number, by not later than Friday 12 March 2004 in order that alternative arrangements can be made.

Sgnd

Peter Hackett

Human Resources Manager

37 Elements of victimisation. Under s 50, Council will have victimised Mr Pignat if he has subjected him to a “detriment” because he alleged that Council had contravened the Act. The relevant parts of s 50 are set out below:

(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,
…
(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.

38 Mr Pignat lodged complaints of discrimination with the Anti-Discrimination Board on 19 January 2004. On 23 February 2004, a conciliation conference was held where the parties engaged in some negotiations in an effort to resolve the complaints. Mr Pignat did not know whether the 9 April letter was sent before or after offers of settlement were exchanged, but we are satisfied, given that approximately 6 weeks had passed between the conciliation conference and the sending of the letter, that settlement negotiations had stalled at that stage.

39 Detriment. Mr Pignat alleged that he was subjected to a detriment because:

Council gave no explanation in the letter as to the purpose of the assessment

Council did not tell Mr Pignat about his rights and obligations in the letter

the letter did not state Dr Speedy’s specialty; and

the letter was hand delivered by Mr Hackett.

40 According to Mr Pignat these circumstances suggest that there was an attitude of hostility to him. Council said that the purpose of the appointment must have been apparent to Mr Pignat and that he could easily have asked about his rights and obligations and about Dr Speedy’s specialty if he had any concerns. Mr Hackett gave evidence that the reason he hand delivered the letter was that it had been difficult to get an appointment and he wanted to give Mr Pignat as much notice as possible. That is a plausible explanation.

41 Leaving aside the lawfulness of the request, the question is whether requiring Mr Pignat to attend a medical appointment or the content or manner of delivering that letter amounts to a “loss, damage or injury”. The Tribunal adopted a slightly different interpretation of “detriment” in the context of the victimisation provision in Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [172]-[173]. The Tribunal in that case preferred the definition of "detriment" in Bogie v The University of Western Sydney [(1990) EOC 92–313]. In that case, following Hill v Water Resources Commission (1985) EOC 92–127 at 76,290, the Tribunal held that all that was required to constitute a "detriment" in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter (at 78, 146).

42 Regardless of whether that interpretation or the dictionary definition is used, we are not satisfied that a requirement to attend a medical appointment is a “detriment”. The only “loss” Mr Pignat suffered was his time in attending the appointment. He was not disadvantaged in any substantial way. He could easily have asked about the purpose of the appointment and the nature of Dr Speedy’s specialty. Had Council made a decision adverse to Mr Pignat on the basis of a report produced following the appointment, then that may have constituted a detriment. However the complaints about the content of the letter and the manner in which it was served are trivial and do not constitute any detriment to Mr Pignat.

43 Causation. If we are wrong, and the letter, its content or the circumstances in which it was delivered, do amount to a detriment, the next question is whether Council wrote the letter on the ground that Mr Pignat had lodged a complaint of discrimination with the Anti-Discrimination Board. According to Mr Pignat the letter was written close to the time that the complaint was made. Mr Hackett explained the situation by saying that although Mr Pignat said that he would provide a copy of his doctor’s report after the appointment on 12 December 2003, he did not do so. Mr Hackett then received notification that Mr Pignat had made a complaint to the Anti-Discrimination Board. Mr Hackett went on to say in his statement that:

As Mr Pignat had been diagnosed as suffering from “reactive anxiety and depression” for over twelve months and no report had been provided by Mr Pignat’s solicitor as anticipated or provided by his treating doctor as requested, Council was left little option but to seek an independent opinion from Dr Speedy…

44 We are satisfied that Council decided to obtain the medical evidence after settlement negotiations proved unsuccessful in order to assess its position in relation to Mr Pignat’s continued employment. The lodgement of a complaint of discrimination was not a ground for seeking that report. We also note that Mr Pignat’s solicitor did not put to Mr Hackett that a reason he sent the letter was because Mr Pignat had lodged a complaint with the Anti-Discrimination Board or done anything else under s 50 of the Act. While this does not amount to a breach of the rule in Browne v Dunn (1893) 6 R 67 because Council was already on notice that Mr Pignat would be alleging victimisation, the failure to do so did not assist his case.

Orders

1.The complaint of disability discrimination is dismissed.

2.The complaint of age discrimination is dismissed.

3.The complaint of victimisation is dismissed.