SMITH and PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA
[2016] WASAT 12
•19 FEBRUARY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: SMITH and PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA [2016] WASAT 12
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: 14 TO 17 SEPTEMBER 2015
FINAL WRITTEN SUBMISSIONS RECEIVED 30 OCTOBER AND 23 NOVEMBER 2015
DELIVERED : 19 FEBRUARY 2016
FILE NO/S: EOA 3 of 2015
EOA 24 of 2014
BETWEEN: NIGEL SMITH
Applicant
AND
PALACE NOMINEES PTY LTD T/AS JOE CRISAFIO KIA
Respondent
Catchwords:
Discrimination - Equal opportunity - Direct discrimination - Impairment - Employment - Employment as vehicle salesperson - Victimisation - Complainant seriously injured at work with previous employer - Previous employer also engaged in vehicle sales - Workers compensation claims included Post Traumatic Stress Disorder (PTSD) - PTSD triggered by events in vehicle salesroom - Whether PTSD an impairment - Applicant suffered severe symptoms of PTSD - Applicant's performance at work declined - Whether summary dismissal and related acts occurred 'on the ground of' that impairment - Whether causative link established - Intention and extent of knowledge of PTSD by respondent - Job application form seeking disclosure of relevant injuries and workers compensation claims - When and how much of PTSD applicant disclosed - Applicant failed to disclose PTSD until after written warning given by employer - Applicant failed to disclose sufficient information about his PTSD in any case - Sufficient disclosure would raise issue of whether applicant incapable of performing inherent duties of his job - Whether open to employer to form perception of conduct of applicant warranting summary dismissal - Whether comparable employee would be similarly treated - Applicant failed to prove relevant acts were discrimination against him on the ground of his impairment - Observations on limited jurisdiction of the Tribunal to conduct a review of industrial or contractual matters - Whether victimisation complaint valid as it overlapped with previous victimisation complaint that was withdrawn - Victimisation complaint dismissed for lack of proof - Costs - Costs in equal opportunity matters - Costs reserved because of disruptive and unreasonable behaviour of applicant and because applicant made serious but unsubstantiated claims against respondent
Legislation:
Equal Opportunity Act 1984 (WA), s 4(1), s 27A, s 35A(1), s 35A(2), s 35B(2)(d), s 35M, s 66A, s 66A(I), s 66B, s 66B2, s 66Q, s 67, s 83A, s 89, s 90
Result:
Complaints of discrimination and victimisation dismissed; costs reserved
Summary of Tribunal's decision:
Mr Nigel Smith, the applicant in these proceedings, is a motor vehicle salesperson. In January 2014, he lodged a claim of discrimination with the Equal Opportunity Commission in relation to his employment as a vehicle salesperson with Mr Joe Crisafio, a Dealer Principal who was the respondent in these proceedings. Mr Smith alleged that he had been adversely discriminated against 'on the ground' of an impairment. He went as far as saying that his employer deliberately inflicted 'torture' on him, knowing of his impairment. Mr Smith suffers from the effects of Post Traumatic Stress Disorder (PTSD), which is a psychological impairment or disability recognised in antidiscrimination law.
Mr Smith suffered serious injuries in another vehicle sales workplace accident in 2011. He was injured when a vehicle moved forward whilst he was under an open bonnet. Besides various physical injuries (which still cause Mr Smith pain, particularly as regards his back) he is afflicted with, amongst other things, flashbacks, anxiety, panic attacks and depression. These injuries resulted in a workers compensation claim which was still on foot at the time that Mr Smith commenced employment with Mr Crisafio. Mr Smith alleged that he told Mr Crisafio's manager at the time of his job interview that he suffered from PTSD. The Tribunal found against this claim, agreeing with the respondent that the first time that the employer became aware of Mr Smith's PTSD was after Mr Smith had received a written warning about his work performance and attitude and he disclosed his PTSD to his manager.
In fact, at the time of his job interview, Mr Smith was suffering from what his examining clinicians described as severe symptoms of PTSD, with extremely high levels of depression and anxiety. He was recommended for immediate hospitalisation. It was specifically predicted that Mr Smith would be at risk of an attack of his PTSD symptoms if, for example, he went near an open vehicle bonnet in the workplace. This scenario eventuated whilst working for Mr Crisafio and Mr Smith had to leave work temporarily. Normal showroom activities could cause Mr Smith to become angry, and he suffered stress and anxiety. Mr Smith had lost four jobs immediately before this job as he could not survive the probation periods because of the effects of his PTSD. The Tribunal found that none of this was disclosed to his new employer.
Nevertheless, with psychotherapy and medication, Mr Smith initially managed to hold onto this job and was, after a few weeks, promoted to second in charge to the manager. When he is not ill Mr Smith is, apparently, a very good salesperson. However, unsurprisingly and predictably, given past events, his work performance declined over time and there were disputes over pay, performance and his duties, leading to the issue to him of the written warning. After the warning, Mr Smith's work did not improve and he felt that he was being unfairly singled out, isolated and was losing out on contacts ('leads' to customers).
Mr Smith filled in an employment application form at the time of his interview but did not disclose either his injuries or his workers compensation claim. The Tribunal found that Mr Smith had, in effect, a duty to adequately disclose these matters, particularly the full extent of his symptoms, as they directly affected his ability to handle the inherent requirements of his new job. The Tribunal found that Mr Smith never sufficiently disclosed to his employer his full symptoms. Without relevant knowledge of an impairment, an employer cannot be guilty of discrimination. Moreover, here there were no acts or omissions of the employer that were done 'on the ground of' Mr Smith's impairment and Mr Smith was treated the same as any other comparable employee who was manifesting a poor work attitude and demeanour.
Mr Smith was summarily dismissed for absenting himself from work with insufficient explanation or permission, taking company data away, and manifesting an intention not to be bound by his contract by apparently clearing out his desk. Mr Smith took his company car and did not return urgent calls to Mr Crisafio. The Tribunal found that there was sufficient material, in the circumstances, to support the employer forming such an opinion. The circumstances included the declining work performance of Mr Smith. Whether this was legally correct as a contractual or industrial matter was irrelevant to these proceedings. In fact, on the day of his summary dismissal, Mr Smith was having a severe panic attack and was seeking urgent medical treatment and was possibly going to work from home later. His attack and his sudden departure were, however, the culmination of a deteriorating workplace environment, a process that had started long before Mr Smith belatedly disclosed some of his PTSD symptoms.
Mr Smith was unsuccessful in both his discrimination and victimisation complaints. As to the latter, the Tribunal expressed doubt whether it was, in any event, a valid claim, in that it did not appear to conform with the relevant legislation regulating previously withdrawn claims. (Mr Smith had unconditionally withdrawn an earlier victimisation complaint which appeared to overlap with the timeframe of his second complaint.) In any case, the evidence (such as it was) supporting the claim of victimisation was extremely weak, based on the hearsay evidence of witnesses with poor recollections or an obvious interest in the proceedings: one witness was the applicant's son; the other witness acknowledged that he was a 'disgruntled' former employee of Mr Crisafio.
Because of the unsatisfactory and repeatedly disruptive manner in which Mr Smith had conducted himself during the hearing (including his selective, argumentative and unresponsive answers in crossexamination), and because Mr Smith had made unsubstantiated and extremely serious allegations against Mr Crisafio, the Tribunal left open the possibility of a costs order against Mr Smith to partially compensate Mr Crisafio for the significant legal costs that he had to bear in order to clear his name.
The applications were dismissed.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr T Kennedy
Solicitors:
Applicant: N/A
Respondent: CS Legal
Case(s) referred to in decision(s):
Boldra v Metropolitan (Perth) Passenger Transport Trust (1992) EOC ¶92445
Clayton and Australia Post [1998] VADT 23
Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317
Cook v Oberon City Council [2010] FMCA 624; (2010) 62 AILR ¶101-233
Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16
Gounder v Allmand [2007] VCAT 1898; (2007) EOC ¶93480
Kovac and Australian Croatian Club Ltd [2014] ACAT 41
Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Lee v Commissioner of State Revenue [2007] WASAT 271; (2007) 58 SR (WA) 314
McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125
Minns v New South Wales [2002] FMCA 60
Monash University v Kapoor [1999] VSC 463 at [64] (aff'd
[2001] VSCA 247; (2001) 4 VR 483; (2002) EOC ¶93-188
Mooney v Butlers Barristers and Solicitors [2012] WASAT 40; (2012) 79 SR (WA) 185
Ninan v Valuer General [2012] WASAT 248
Ninan v Valuer General [2012] WASAT 248 (S)
Purvis v New South Wales (Department of Education and Training) [2001] FCA 1199; (2001) 186 ALR 69
Sellen and TNT Australia Pty Ltd [2015] SAEOT 6
Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91
Slattery v Manningham City Council [2013] VCAT 1869
Smith v Buick Holdings Pty Ltd [2015] FWC 6900
Summerville and Department of Education and Training [2006] WASAT 368
Tate v Rafin [2000] FCA 1582; (2001) EOC ¶93125
University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418
Van Der Kooij v Fire and Emergency Services Authority of Western Australia [2009] WASAT 221; (2010) EOC ¶93-550
Walsh v Palace Nominees Pty Ltd [2015] FWC 6434
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Winter and Commissioner of Police [2007] WASAT 55
Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA); (2010) EOC ¶93565
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Nigel Smith (applicant) lodged a complaint with the Equal Opportunity Commission (EOC) on 29 January 2014 alleging that his former employer, Palace Nominees Pty Ltd (trading as Joe Crisafio KIA) (Mr Crisafio or respondent), unlawfully discriminated against him on the grounds of an impairment, namely his Post Traumatic Syndrome Disorder (PTSD).
Mr Smith's claim is one of direct discrimination and is brought under s 66A of the Equal Opportunity Act 1984 (WA) (EO Act), which provides as follows (emphasis added):
Discrimination on ground of impairment
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of
(a)the impairment of the aggrieved person; or
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or
(c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or
(d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.
The complaint lodged by Mr Smith also included a claim for unlawful victimisation. This additional claim was unconditionally withdrawn by Mr Smith in February 2014. This issue is considered further below in the light of the possible pursuit by Mr Smith of the claim afresh in November 2014.
For present purposes, Palace Nominees Pty Ltd is the alter ego of Mr Crisafio. That is, Mr Crisafio's company, and he, should, for all relevant purposes connected with the present claim, be regarded as one and the same. In any case, it is clear that Mr Crisafio, as the Dealer Principal, was in this claim the sole decision-maker in relation to Mr Smith's circumstances, and fate, as an employee. Mr Smith's case is brought upon this basis. It is therefore Mr Crisafio's state of knowledge of and his reactions to Mr Smith's impairment that are critical to judgments to be made about whether there was any relevant discriminatory treatment of Mr Smith.
The area specified in the claim is alleged 'discrimination at work' (s 66B of the EO Act). In particular, s 66B(2) makes it 'unlawful for an employer to discriminate against an employee on the ground of the employee's impairment':
(a)in the terms or conditions of employment that the employer affords the employee; or
(b)by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.
Mr Smith was employed by the respondent as a vehicle salesperson from 28 May until 13 November 2013, when he was summarily dismissed by Mr Crisafio for allegedly taking confidential trade data out of the office and manifesting an intention to abandon his workplace. Mr Smith's employment contract with Mr Crisafio expressly declared what would already be his obligation with respect to such data: that it was to be treated as confidential and was not to be used except for the benefit of Mr Crisafio's business. The respondent conceded that the data taken was not misused.
Mr Smith denies these allegations. He alleges, in effect, in the alternative that, because he suffered from PTSD, he was dismissed from his employment and he suffered other losses. In rather dramatic terms (a feature of this case), Mr Smith described his treatment at the hands of the respondent as deliberate 'torture' (statement to the EOC dated 28 January 2014).
As will be emphasised further below, it is not the task of the Tribunal in the abstract to adjudge overlapping industrial matters (such as dismissal) as if somehow the Tribunal were an 'employment tribunal'. The task of the Tribunal, exercising jurisdiction under the EO Act, is not to authoritatively decide whether the stated grounds for dismissal were, by themselves, legally and factually justified under relevant awards, contracts or statutes, although assertions by the parties about such matters will usually be relevant in determining the EO Act issues.
The task for the Tribunal is to discover whether there was any unlawful discrimination or relevantly unequal treatment of Mr Smith at work (including termination of his employment).
Victimisation complaints
On 17 November 2014, a second complaint, one of victimisation ('for complaining about discrimination'), was lodged by the applicant with the EOC alleging that between September 2013 (that is, prior to and including his dismissal) and November 2014, Mr Crisafio had led:
… a campaign of calling everyone [Mr Crisafio] knows in the [motor vehicle sales] industry to stop me gaining [employment] or getting me sacked from employers[.] I have at least [two] witnesses and finally have proof of these acts[.]
No date range for victimisation was alleged in the original complaint of victimisation dated 29 January 2014. Nevertheless, there must be an implied overlap in the date range between the two complaints.
The only supporting evidence for the second complaint received by the EOC was a witness statement of Mr Smith's son (Mr Robert Smith) who also worked in the same industry. In a statement dated 28 November 2014 (that is, about a year after the original events and approximately 10 months after Mr Smith's original discrimination claim was lodged), Mr Robert Smith alleged, so far as is presently relevant, that on an unspecified date, presumably sometime in 2014, Mr Sevad Pasic (who was a new car sales manager at DVG Midland Mitsubishi) said to him words that led him to conclude that Mr Crisafio 'was ringing everyone up and telling his and my dad[']s [b]usiness'. This was in the context of earlier comments that indicated that Mr Pasic allegedly knew about the discrimination claim and that Mr Crisafio 'ha[d] been calling other dealers'. There was also a reference to Mr Crisafio allegedly contacting Mr Nigel Smith's previous employer, Automotive Holdings Group Limited (AHG).
The statement also refers to an alleged face-to-face meeting with Mr Pasic on 16 November 2013 concerning the return of Mr Smith's company car.
Now, with one additional sentence added, Mr Robert Smith's statement of November 2014 is exactly the same as his statement tendered in these proceedings (Exhibit 13). Curiously, however, Mr Robert Smith's other statement (Exhibit 13) is dated 26 August 2014. However, Mr Pasic deposed that the conversation between him and Mr Robert Smith took place after 26 August 2014. I will return to these matters below.
It seems that the rather late lodging of the EOC claim (29 January 2014) is explained by the fact that up until around the time of putting that claim together, Mr Smith was solely intent on taking Mr Crisafio to the Fair Work Commission for unlawful dismissal. The unavailability of legal aid for that course seems to explain part of the delay (T:112; 16.09.15); see also T:72; 16.09.15: 'I didn't want to take Joe Crisafio here [to the Tribunal]'.
Section 67 of the EO Act provides as follows:
Victimisation
(1)It is unlawful for a person (in this section referred to as the victimiser) to subject, or threaten to subject, another person (in this subsection referred to as the person victimised) to any detriment on the ground that the person victimised -
(a)has made, or proposes to make, a complaint under this Act; or
(b)has brought, or proposes to bring, proceedings against the victimiser or any other person under this Act; or
(c)has furnished, or proposes to furnish, any information, or has produced or proposes to produce, any documents to a person exercising or performing any function under this Act; or
(d)has appeared, or proposes to appear, as a witness before the Tribunal in a proceeding commenced under this Act; or
(e)has reasonably asserted, or proposes to assert, any rights of the person victimised or the rights of any other person under this Act; or
(f)has made an allegation that a person has done an act that is unlawful by reason of [s 66A, found in Pt IVA of the EO Act]
or on the ground that the victimiser believes that the person victimised has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (f).
(2)Subsection (1)(f) does not apply if it is proved that the allegation was false and was not made in good faith.
In McMahon and Nannup Timber Processing Pty Ltd [2015] WASAT 125 (McMahon), reference is made, at [91], to Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) where Pritchard DCJ (as her Honour then was) said, at [67], that in order to demonstrate victimisation under s 67 of the EO Act, it must be established that:
1.the person victimised suffered, or was threatened with, a detriment;
2.the detriment alleged must be a disadvantage that is substantial and not trivial;
3.the victimiser subjected the person victimised with the detriment, or threatened to do so;
4.a dominant or substantial reason for the victimiser's conduct was that the person victimised has made or proposes to make a complaint under the EO Act, or has brought or proposes to bring, proceedings against the victimiser under the EO Act (or one of the other grounds for victimisation in s 67(1)). That is, it must be established that:
•the complaint, or intended complaint, must be the dominant or substantial reason for doing the act of victimisation;
•there must be an intention to cause detriment; and
•there must be a causal link between the conduct of the victimiser and the detriment suffered. In the absence of facts capable of proving intention to cause the detriment, or facts capable of supporting such an inference, there will be no basis for a contention of victimisation.
On 29 December 2014, the EOC dismissed the victimisation complaint under s 89 of the EO Act as 'lacking in substance'. The grounds specified by the EOC as their reasons justifying dismissal of the complaint were as follows:
There has been no evidence submitted to substantiate [the complaint] even though your complaint stated that you '… finally have proof of these acts'. Your son's statement is hearsay and inherently unreliable. Your other witness is not prepared to submit a statement before February 2015. I am not prepared to keep your file open until then.
Nevertheless, on 31 December 2014, at Mr Smith's request (as he was entitled to do), the Commissioner referred the victimisation complaint to this Tribunal, pursuant to s 90 of the EO Act.
Earlier, by letter dated 24 February 2014 addressed to the EOC (and furnished to the Tribunal on 10 June 2014 with the EOC's referral report on the main complaint of discrimination), Mr Smith unconditionally withdrew his then complaint of victimisation lodged with the EOC on 29 January 2014 (see above). He confirmed that '[I] only [want to] continue with my complaint of impairment discrimination'. Mr Smith then concluded his letter by saying (emphasis added):
Based on this advice I understand that my complaint of victimisation will now be closed.
In his closing submissions on this second complaint of victimisation (that is, his complaint made on 17 November 2014), Mr Smith maintained that his second witness (Mr Paul Walsh) was at that time (that is, around November 2014) unable to give a witness statement to the EOC because Mr Walsh worked for Mr Crisafio and feared for his future employment if he spoke out in favour of Mr Smith.
Mr Smith was permitted in these proceedings to call both his son (Mr Robert Smith) and Mr Paul Walsh. Both witnesses alleged, in effect, that Mr Crisafio was, after Mr Smith's dismissal, contacting potential employers with a view to either warning or dissuading them from employing Mr Smith.
The evidence is dealt with in more detail below. However, for present purposes, we may note that Mr Crisafio has denied the allegations of victimisation, and Mr Pasic has denied the substance of Mr Robert Smith's recollections.
There is no material before me as to why the January 2014 victimisation allegations were withdrawn or as to precisely how (or why) they were apparently revived, given that they appear to cover, at least in part, the same period of time.
Section 83A of the EO Act provides, so far as is relevant, as follows:
Withdrawal and lapse of complaints
(1)A complainant may at any time between the lodging of the relevant complaint and the final disposal of that complaint under this Division withdraw that complaint by notice in writing served on the Commissioner.
(2)…
(3)…
(4)If a complaint
(a)is withdrawn under subsection (1); or
(b)…,
the complaint shall not be pursued afresh unless
(c)the person seeking to pursue the complaint afresh satisfies the Commissioner that there is good cause for that pursuit to take place; and
(d)that pursuit takes place within a period of 6 months from the withdrawal or lapse of the complaint.
(5)Notwithstanding anything in this section, if the Commissioner is satisfied within the meaning of subsection (4)(c) in respect of a complaint, the person seeking to pursue the complaint afresh may do so without lodging another complaint …
The learned authors of the Australian and NZ Equal Opportunity Commentary (CCH, at [¶87-585]) have summarised the effect of s 83A as follows:
Where a complaint is withdrawn or lapses, it cannot be reinstated unless the person seeking to do so satisfies the Commissioner that there is good cause for the reinstatement to take place. The person seeking to reinstate a complaint must do so within a period of six months from the withdrawal or lapse of the complaint. If a person is allowed to reinstate a complaint it will not be necessary to lodge a fresh complaint.
It appears that a period of six months had elapsed since the first complaint was withdrawn by the complainant (s 83A(4)(d) of the EO Act). It would appear that such a limitation period may not, at common law, be extended: cf Lee v Commissioner of State Revenue [2007] WASAT 271; (2007) 58 SR (WA) 314. This would seem to present an insurmountable hurdle for Mr Smith if the two complaints truly overlap.
There is, it appears, no material before me to show precisely how the EOC dealt with the apparent 'pur[suit] afresh' of the withdrawn complaint, except that a further, fresh claim of victimisation was subsequently accepted by the EOC and that it has been referred to the Tribunal. Presumably, 'good cause for that pursuit to take place' was demonstrated, but it seems slightly at odds with a subsequent decision taken only a few weeks later to dismiss the complaint as lacking in substance. It is true, however, that at that later point, Mr Smith's promised second witness (Mr Walsh) had failed to materialise. No doubt there are adequate explanations for all of these events but, if so, they were not placed before me.
The respondent did not take any point on these matters preferring, perhaps understandably, to concentrate, in an already complex case, on the substantive factual issues before the Tribunal.
In the circumstances (including not wishing to delay matters any further), but not without some hesitation on my part, I have decided to proceed upon the basis that there is a valid claim for victimisation before the Tribunal.
Disruptions to the hearing
Mr Smith represented himself in the hearing. The respondent was represented by Mr Tim Kennedy. I acknowledge Mr Kennedy's professionalism and cooperation in what was a far from easy hearing in which to participate. I must also acknowledge his patient assistance in marshalling for the Tribunal and the parties a vast array of paper material said to be relevant to the applicant's case.
I should also, unfortunately, record that one of Mr Smith's text messages to his psychologist, Dr Dale (which Mr Smith voluntarily disclosed amongst scores of text messages), appeared to suggest that Mr Smith wished to harm Mr Kennedy when Mr Kennedy had foreshadowed, perfectly appropriately in the circumstances, following a directions hearing (probably on 18 August 2015), a possible costs application arising out of, in effect, Mr Smith's apparent failure to comply with earlier procedural orders of the Tribunal.
Mr Smith did not deny sending the text message or its import, saying in his written email response, dated 4 September 2015, that this was 'another attempt by [Mr Crisafio] and you to blow things out of proportion'. Inappropriately in his response, Mr Smith wondered 'if you [that is, Mr Kennedy] were the same at school, crying to the teacher and therefore got bullied a lot [note: numerous corrections to the spelling and grammar have been made to this extract]'. The text message to Dr Dale reads (emphasis added; again, numerous corrections to spelling and grammar have been made):
Mr Kennedy is leaving the Tribunal's hearing room but he is always threatening me with legal costs; lying and smiling while he does it, I am trying but for how long I can do this, as I want to hurt him for what he has done and the threats to my family which he denies.
A similar threat was made concerning Mr Crisafio in November 2013 when Mr Smith sent his treating psychologist, Dr Dale, a text message that included the following (emphasis added):
'[i] am going down to confront the boss [Mr Crisafio], but I'm afraid of what I will do. I want to kill him for what he has done [to me and my family] I found myself following him on Sunday, so now I know where he lives …
This text message was, apparently, sent on the morning of a meeting with Mr Crisafio (probably 18 or 25 November 2013). Mr Smith said that he had been misleading his psychologist: that he had not been following Mr Crisafio, and that he did not know where he lived. He did not act on such thoughts. The text message was sent because he was upset and 'angry': see below for Dr Dale's views on this text message; see also T:99100; 16.09.15. It appears that this text message was sent before his meeting with Mr Crisafio. Mr Smith said at first that he was '100% calm' at the meeting until he was allegedly threatened (T:91; 16.09.15). Later, he admitted that going into that meeting he '[w]as angry ... yes, I was angry' (T:105; 16.09.15).
Further difficulties in managing the hearing arose in part because an underlying theme of Mr Smith's narrative of events included suggestions that Mr Crisafio had more than a bad temper and on occasions indirectly threatened Mr Smith (and his witnesses) with violence in connection with events immediately after his dismissal and the bringing of this action. Needless to say, Mr Crisafio has repeatedly denied such allegations. I will make some observations on the possible consequences of making such serious allegations, unsupported by any evidence of substance, later in these reasons.
On the first day of the hearing, Mr Smith arrived very late, bearing what appeared to be minor facial injuries, wearing sunglasses, and with an apparent eye injury. He alleged that on Monday of the previous week some property had been damaged at his residence; then on the Tuesday there was an attempt to poison his dogs; and that on the Wednesday he 'was attacked, assaulted and put into hospital'. Mr Smith claimed that there were injuries to his neck, eye socket and nose. These matters had been reported to the Police. In the Tribunal, Mr Smith identified the incidents as linked to Mr Crisafio.
On the day before the hearing commenced (a Sunday), via email, Mr Smith had notified the Tribunal of some of these events. He had not notified the respondent's solicitors. Mr Smith also claimed that none of his proposed witnesses would attend the hearing 'because there were threats made against them'. In the event, all of his witnesses who were available attended for crossexamination. Mr Smith's wife, Mrs Jill Smith, could not attend and a short corroborating witness statement was received from her.
The hearing was 'rearranged' to allow Mr Smith to attend (as he had foreshadowed) at the Magistrates Court to obtain an ex parte violence restraining order (VRO) against Mr Crisafio. This was granted by a Magistrate on the following day. A standard term or condition of the VRO permitted both parties to attend these proceedings in each other's presence. However, the Tribunal arranged additional, visible security for the hearing.
Notwithstanding these events and various associated disruptions and difficulties, such as Mr Smith commencing, during the hearing, to improperly film on his mobile device Mr Crisafio's associates sitting in the public gallery (T:21; 14.09.15), the hearing proceeded in a more or less orderly way.
I should record, however, that in this febrile atmosphere, towards the end of his own crossexamination, Mr Smith accused Mr Crisafio, in passing, of being a 'coward', which elicited a brief verbal response from Mr Crisafio, mischaracterised by Mr Smith as a 'threat'. After a short adjournment to restore some calm, the hearing proceeded normally (T:8788; 16.09.15). In fairness, I should also record that Mr Smith went some way to redeeming himself by his calm and orderly crossexamination of Mr Crisafio on 17 September 2015.
Mr Smith's impairment
It is common ground that, at all material times, Mr Smith suffered from PTSD, although the medical label 'post traumatic stress disorder' can be problematic, given its wide application to various symptoms and reactions to a serious event or incident. Moreover, as this case shows, the symptoms of the illness can be intermittent and unpredictable.
In Mr Smith's case, he suffered from PTSD following a serious incident (an industrial accident) that occurred in a previous car sales workplace. The accident occurred in August 2011 in, it appears, a vehicle showroom, when a vehicle he was inspecting under the hood (or bonnet) suddenly moved forward, injuring his left eye and throwing him backwards into another vehicle. He was off work for approximately three months and suffered debilitating physical and mental injuries, including temporary blindness in one eye and injuries to his lower back.
Although the incident left Mr Smith with other physical injuries, I understand that his case in this Tribunal is solely confined to the psychological symptoms or effect that PTSD manifests in relation to stress arising in the workplace. This is despite the recitation in Mr Smith's undated witness statement, tendered in the hearing, of a lengthy list of physical ailments associated with the 2011 accident. I take it that the reference to these physical injuries is to demonstrate the scale of the accident and the underlying or associated physical injuries. In any case, those physical injuries seem to form the backdrop to at least one or two incidents that allegedly caused Mr Smith distress when Mr Crisafio attempted to introduce him to two wellknown naturopaths (father and son) who were visiting the dealership on separate occasions
I will set out below in much greater detail the medical evidence in relation to PTSD that was supplied to the Tribunal. However, it may be remarked here that it is clear that the very severe symptoms that Mr Smith was reporting to clinicians concerning his PTSD in May 2013 (that is, a date very close to when he commenced work with Mr Crisafio) were never, even on Mr Smith's case, conveyed to Mr Crisafio or to Mr Smith's line manager, Mr Stephen Molloy.
As will be seen below, Mr Molloy, alone, expressly admits to knowledge of Mr Smith's PTSD, but only from the date of a written 'first and final warning' given to him by Mr Molloy on Mr Crisafio's behalf (on 25 October 2013) and then only, it seems, in relation to the existence of Mr Smith's PTSD in general terms. Mr Crisafio's generalised knowledge of Mr Smith's PTSD, at some point around then, is to be implied from what his solicitors said in their response dated 26 March 2014. This was confirmed in the hearing in this Tribunal. I will return to these matters as appropriate, below.
Particulars of the complaint
The particulars of the complaint, as they appeared in Mr Smith's original written narrative (dated 28 January 2014 and furnished by him to the EOC), were, in summary (with some dates and other minor details inserted to give context), that:
•Mr Smith was an experienced and successful salesperson, so much so that he was promoted by the respondent (on 7 August 2013, just over two months from when Mr Smith started with Mr Crisafio);
•one of Mr Crisafio's senior managers (Mr Molloy) 'knew' about Mr Smith's impairment (a condition that was being adequately managed by Mr Smith, including being managed by him whilst at work);
•Mr Smith could not obtain a copy of his contract of employment from his employer but that, in any case, he had not been paid what had been agreed between them;
•Mr Smith's relations with Mr Crisafio deteriorated, in part, because of conversations about the state of Mr Smith's physical health by Mr Crisafio with third parties, including naturopaths (which distressed Mr Smith);
•Mr Smith was given a 'first and final warning', on 25 October 2013, following an argument with Mr Crisafio;
•Mr Smith's relationship with his employer deteriorated and he was advised, inappropriately, to 'cheer up or fk off';
•sales contacts or 'leads' to various potential customers were withheld from Mr Smith and given to other (and, in some cases, more junior) staff;
•Mr Smith's salary was reduced from the increased salary and benefits that he had been promised after his October promotion;
•delays in the finalisation of some vehicle sales (that is, towards the end of Mr Smith's employment) had the potential to significantly impact on his remuneration for the month (and these delays were possibly orchestrated deliberately by his employer);
•Mr Smith was suffering from mounting anxiety;
•on the day before he was summarily dismissed (that is, on 12 November 2013), Mr Smith was experiencing severe stress at work; he took additional dosages of his medication and left urgently, claiming that he was visiting his general practitioner;
•Mr Smith downloaded from the respondent's data base several contacts (16 'leads' of potential clients) to follow up from home;
•while Mr Smith was waiting for medical treatment, the dealership began chasing him via numerous text messages;
•in particular, the dealership wanted its company vehicle (received as part of Mr Smith's remuneration package) returned to it as soon as possible;
•Mr Smith was then advised, by text message, that he had been dismissed from work and that he would not be paid out his final emoluments until his company vehicle was returned to the dealership;
•Mr Smith's purported dismissal was unjustified and was just 'two weeks short' of the six months period necessary to invoke statutory unfair dismissal remedies;
•Mr Smith was initially short changed in his termination payments; and
•Mr Smith was later subjected to intimidation and threats of violence and malicious rumours were spread about him.
This chronicle of events is, apart from one important (but implied) matter concerning the precise state of Mr Crisafio's knowledge of Mr Smith's impairment, essentially consistent with Mr Smith's more detailed case put at trial. This included a more thorough and professionally prepared statement made by Mr Smith, dated 25 February 2014, and, it seems, prepared by the EOC, and a second, undated, response by Mr Smith (probably given in early April 2014) furnished in reply to the respondent's solicitors' formal denial of discrimination and their alternative explanation of events, dated 26 March 2014.
All of this would be more or less repeated in Mr Smith's undated witness statement filed in the Tribunal in September 2015 and his other evidence given at the hearing. This evidence is examined in considerable detail below.
As has already been indicated (and as will be seen below), the state of any respondent's knowledge of an impairment will be critical in determining whether the alleged discrimination in the work area occurred 'on the ground' of that impairment (s 66B of the EO Act). Here, at the earliest point in his claim, Mr Smith maintained that by reason of a (then) unspecified communication with his line manager (Mr Molloy), it was indicated that Mr Molloy would be 'alright' with the steps that would be needed to 'keep [his condition] under control', such as getting away (that is, by 'go[ing] for a walk') for a short time. Further, in this initial narrative of his complaint, Mr Smith alleged that Mr Molloy, at some (then) unspecified point or points, 'kept trying to make me go to Buddhist meditation' as a cure for his ailment.
Later, Mr Smith would allege that at the time of his job interview (which was conducted solely with Mr Molloy), he told Mr Molloy that he would need time off for medical appointments arising out the 2011 accident and he then allegedly discussed with him whether his PTSD would affect his ability to sell cars (and how much of that needed to be disclosed in his employment application form).
I should observe here, that such 'self-management' of Mr Smith's condition, if this is what it was (and regardless whether anybody in the dealership knew about the precise extent or nature of Mr Smith's PTSD), seems at odds with both the potentially severe symptoms and the management thereof indicated by the medical experts. As will be seen below, at around the time Mr Smith was commencing work with Mr Crisafio, his treating psychologist (Dr Dale) was recommending that Mr Smith 'be hospitalised or undergo intensive treatment' (T:139; 16.09.15). I will return to this issue further below.
Nevertheless, Mr Smith's, in effect, informal and selfmanagement regime (supported by additional therapy with his clinicians, and perhaps also, to some extent, informally supported by Mr Molloy at work) appeared to succeed (at least for a time) because, as the narrative tells us, Mr Smith was promoted by reason of his success as a salesperson.
The respondent's position
In reply to the applicant's narrative of 28 January 2014, the respondent, through his solicitors, said (on 26 March 2014):
Mr Smith was employed by Joe Crisafio KIA, as a general salesperson, on or around 30 May 2013 …
Mr Smith was later prompted from salesperson to be the second in charge. As a result of his promotion, to reflect his increased responsibility, Mr Smith's retainer was increased from $750 to $1000 per week.
Mr [Molloy] suggested that Mr Smith try Buddhist Meditation. This suggestion was made privately and in genuine concern for Mr Smith.
Prior to [25] October 2013 [when the First and Final warning was given to Mr Smith], Mr Crisafio did introduce Mr Smith to two naturopaths that were customers and had previously treated Mr Crisafio's back pain. This introduction was made because Mr Smith had been complaining, openly and loudly, about having a sore back, but had refused to see a doctor citing as his reason 'I can handle pain. I am used to it from being in the Army'.
Mr Smith was given a written warning on [25] October 2013. That warning was given due to [his] poor performance as the [second in charge] and as Acting Sales Manager in Mr Molloy's absence.
On 26 October 2013, and only after receiving the written warning:
•Mr Smith met with Mr Molloy during which he disclosed to Mr Molloy his alleged PTSD;
•Mr Smith said to Mr Molloy that he no longer wanted to continue as [second in charge];
•Mr Smith asked whether his employment would continue despite him no longer being [second in charge]; and
•Mr Molloy confirmed that Mr Smith's employment would continue.
Upon stepping down as [second in charge], Mr Smith's retainer was reduced, from $1,000 to $750 [per week], to match that of an ordinary sales person.
Prior to 26 October 2013, neither Joe Crisafio KIA, Mr Crisafio [n]or Mr Molloy were aware that Mr Smith was suffering or was claiming to suffer from [PTSD].
At no time did Joe Crisafio KIA, its servants or agents or Mr Crisafio:
•introduce customers to Mr Smith for the purpose of belittling and/or embarrassing him about his alleged PTSD;
•frustrate or otherwise reduce Mr Smith's capacity to reach his sales targets at all, or as a result of his PTSD;
•treat Mr Smith any differently after he had disclosed his PTSD; and/or
•say to Mr Smith words to the effect of 'don't get yourself all stressed up or you will be off work with depression'.
After [25] October 2013, Mr Smith was required to continue to work as normal. Mr Smith was given his fair share of leads, when he needed them. In that regard, Mr Smith was treated in the same manner as other employees. As Mr Smith is quick to point out, he had no difficulty meeting his targets.
The allegation that Joe Crisafio KIA pushed the shipping dates back to purposely avoid paying commissions is denied and unsupported, by evidence.
On 12 November 2013, Mr Smith forwarded confidential information belonging to Joe Crisafio KIA to his personal email address. Shortly after, Mr Smith then collected his personal belongings, kept at his desk, and left the premises saying that he was going to see a Doctor.
On 13 November 2013, Mr Smith's employment was terminated. The basis for termination was:
•Mr Smith displayed an intention to use confidential information in breach of his employment contract by emailing the confidential information to himself; and/or
•Mr Smith displayed an intention to no longer be bound by his employment contract, by removing his personal belongings, and also in circumstances where he had engaged in the conduct referred to [immediately above].
Joe Crisafio KIA was concerned that Mr Smith was preparing to accept, or already had accepted, an offer from a rival dealership. The genuine concern was that Mr Smith, by forwarding the contact details for customers, intended to 'poach' existing customers of Joe Crisafio KIA.
Mr Smith belatedly faxed through a doctor[']s certificate on 14 November 2013, only after he had been terminated.
Mr Smith then refused to return a vehicle belonging to Joe Crisafio KIA unless and until he was paid the sum of $4,000.
Mr Smith's complaints appear to relate to the reduction of his retainer, his alleged 'exclusion' from sales leads and the fact that he was terminated. Those matters are all disputes which are more properly dealt with by Fair Work Australia.
It is not in dispute that Mr Smith was a sales person who performed well, as a salesperson.
However, the simple explanation was that Mr Smith was terminated because Joe Crisafio KIA had a genuine concern that he was stealing confidential information for a rival.
Jurisdiction of the Tribunal and relevant principles as to how discrimination is to be proved
In Laurent, Pritchard DCJ (as her Honour then was) summarised the essential elements of a successful claim under s 66A(1) of the EO Act. Her Honour noted, at [32] (emphasis added), that the applicant must show that:
(a)he suffered from an impairment;
(b)the [respondent] treated him less favourably than in the same circumstances or in circumstances that are not materially different, the [respondent] treats or would treat a person without such an impairment; and
(c)he was treated less favourably on the basis of that impairment that is, there is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for the impairment to be the sole or a dominant or substantial ground for the relevant conduct - it is enough if it is one of the grounds for the conduct;
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of the impairment.
See Williams and Commissioner of Police [2005] WASAT 349 at [35] [38] and the cases cited therein, and see also s 5 of the EO Act.
As I noted in McMahon, at [22], similar observations to those set out above appear in Edoo v Minister for Health [2010] WASAT 74; (2010) 72 SR (WA) 16 (Edoo) at [78] [80] (Pritchard DCJ and Member McNab). Thus, here, Mr Smith must:
... prove on the balance of probabilities that the respondent treated him 'less favourably' than the respondent would have treated another person without an impairment in the same or not materially different circumstances ... The expression 'less favourably' [appearing in the EO Act] bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case ...
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated ...
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical ... Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
(Edoo at [160] [162], internal citations omitted)
Critically, as noted in McMahon, at [24], and as was emphasised here by the respondent's counsel, 'establishing the existence of [the] causal link is frequently the most crucial element in any case': Zangari v St John Ambulance Service [2010] WASAT 6; (2010) 70 SR (WA); (2010) EOC ¶93565 (Zangari), citing C Ronalds, Discrimination Law and Practice (3rd ed, 2008) at 36; now see, C Ronalds and E Raper, Discrimination Law and Practice (4th ed, 2012) at 35 (emphasis added). That is, it must be proved that 'there is a causal connection between the ground of discrimination alleged and the decision or act complained about' (Laurent, at [32]). However:
It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the [EO Act] Act.
Zangari, at [33], citing Kirby J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, at 63 (dissenting as to the result, but not on this point).
In McMahon, at [26], I noted that Ormiston J (as his Honour then was) suggested a formulation whereby the expression 'on the ground of', in this context, 'connotes a basis which actuates or moves a person to decide a matter or to act in a particular way': University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418 cited in Clayton and Australia Post [1998] VADT 23.
In McMahon, at [27], I also noted that the learned authors of the Australian and NZ Equal Opportunity Commentary (CCH, at [¶5250]) had suggested that (emphasis added):
In order for an unlawful act of discrimination to have occurred, the ground or characteristic in question, that is, the complainant's sex, race, etc, must have a causal effect on the decision to commit the discriminatory act. An aggrieved person has to be able to show a relationship of cause and effect between the relevant characteristic and the action of the discriminator ...
As a result of the decision of the High Court in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; [2003] HCA 62; (2003) 217 CLR 92] (2004) EOC ¶93-305, which considered the expression 'because of' in the Disability Discrimination Act 1992 [Cth], it seems that the appropriate approach to expressions such as 'by reason of', 'on the ground of' and 'because of' is to question the 'true basis' or 'real reason' for the act of the alleged discriminator.
I consider more thoroughly below the position where the respondent establishes that it had no knowledge (or, relevantly, insufficient knowledge) of the impairment: see the discussion of Tate v Rafin [2000] FCA 1582; (2001) EOC ¶93125 (Rafin) below.
Allegations of discrimination under the EO Act are to be generally characterised as of a 'serious nature', carrying serious consequences if proved: Edoo at [53]; but cf the commentators discussed in McMahon, at [29]. So, as Edoo suggests, at [53] (internal citations omitted):
[A]lthough the civil standard of proof on the balance of probabilities applies, [the Tribunal] must feel an 'actual persuasion' that the facts alleged ... actually occurred and that [the Tribunal is] reasonably satisfied that the allegations of discrimination have been proved, before [the Tribunal] may make such a finding [of discrimination].
In McMahon, at [31], I went on to observe:
[G]iven the 'serious' nature of the allegations made, facts must be proved to an appropriate standard … and inferences may only be drawn from a process of 'logical deduction' from 'a foundation of objective facts'. See, for example, the discussion in Zangari, at [46] [55], and Soelberg (formerly van Droffelaar) and Commissioner of Police [2008] WASAT 305 (Soelberg) at [87] [92]. The onus of proof remains upon the applicant: Edoo at [53]. In Soelberg, it was observed, at [91], that:
'A respondent is in a special position to explain the reasons behind impugned discriminatory conduct. Where an inference is drawn from a failure of a respondent to explain the reasons, this does not reverse the onus of proof.'
See also the authorities discussed in McMahon, at [33] and [34], on the use of circumstantial evidence to prove matters; that is, Monash University v Kapoor [1999] VSC 463 at [64] (aff'd: [2001] VSCA 247; (2001) 4 VR 483; (2002) EOC ¶93-188; Kovac and Australian Croatian Club Ltd [2014] ACAT 41 at [93]; and Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40] and [41].
McMahon also usefully sets out the general limitations on the Tribunal's jurisdiction: see [82] and [83]. I have already mentioned that the Tribunal, when exercising jurisdiction under the EO Act, is not somehow to be equated as if it were an industrial tribunal. Nor is it a tribunal of general morals. In McMahon, I observed, at [82]:
[T]he Tribunal does not sit to pass judgment on the morality of [the respondent's] or its agents' conduct in its relationships with its tenants and employees. And, even if findings adverse to [the respondent] were made on such matters, again, they are not in themselves relevant evidence, let alone proof, of discrimination under the EO Act.
Thus, the Equal Opportunity Tribunal of South Australia could find, as it did recently in Sellen and TNT Australia Pty Ltd [2015] SAEOT 6, at [19], that certain conduct of a manager in relation to an employee with autism 'was unfair and irrational' but that did 'not make it unlawful' under the local equivalent of the EO Act. As was similarly noted by the Victorian Tribunal in Gounder v Allmand [2007] VCAT 1898; (2007) EOC ¶93-480, at [94], legislation such as the EO Act is not concerned with:
... the behaviour of an employer that is industrially unwise, contrary to sound management principles, capricious or unjust. The complainant must establish discrimination [under the relevant EO Act].
Therefore, Chaney J could say, in this same context, that where the complaint 'is that [the complainant] was wrongfully dismissed [it] is not the same as having been subjected to unlawful discrimination': Mooney v Butlers Barristers and Solicitors [2012] WASAT 40; (2012) 79 SR (WA) 185, at [32].
I turn to consider the medical evidence that was placed before the Tribunal concerning Mr Smith's PTSD.
Medical evidence
Dr Frederick Ng is a psychiatrist. He is also a '[W]orkcover (WA) approved medical specialist'. On 31 May 2013, a date very close to when Mr Smith commenced work with Mr Crisafio, Dr Ng assessed Mr Smith for workers compensation purposes. He assessed Mr Smith to be suffering from an 'anxiety disorder' with 'associated depressive symptoms' arising out of the August 2011 incident at work. Dr Ng said that '[s]ome of [Mr Smith's] reported psychiatric symptoms resembled post traumatic stress disorder'. His alternative diagnosis supported a finding of 'post traumatic stress disorder … with associated depressive symptoms'.
During his consultation with Dr Ng, Mr Smith allegedly said that his then employer (not Mr Crisafio, presumably Automotive Holdings Group Limited (AHG)) was very difficult to deal with following the incident and 'allegedly threatened to destroy his reputation' (31 May 2013 report, page 12).
I pause to observe that Mr Smith's allegations seem to reflect recurrent themes in some of his relationships with his former employers (at least in the vehicle sales industry). Besides his allegations in this case, in 2015 in Smith v Buick Holdings Pty Ltd [2015] FWC 6900 (Buick Holdings) (discussed at length below), Commissioner Riordan in the Fair Work Commission noted that Mr Smith had alleged that his 'dismissal was part of a conspiracy to dismiss him by senior management [of Midland City Nissan], following an alleged assault perpetrated upon him by a senior employee'. Despite Mr Smith's PTSD (which still afflicts him), Mr Smith appears to have worked continuously (and successfully) in sales with Midland City Nissan from June 2014 until his dismissal by them for misconduct on 25 March 2015.
Amongst other things, Dr Ng recommended psychotherapy accompanied by a maximum of 15 to 20 hours' work per week. However, activities under the bonnet of a motor vehicle would 'cause [Mr Smith] significant anxiety'. Notwithstanding such concerns, Mr Smith chose (presumably because he was very good at it, and probably because he needed the income see below) to, once again, reenter vehicle sales full time.
Such an occupation might reasonably be regarded as carrying some risk, given the concerns of Dr Ng. As Mr Smith's circumstances in 2013 suggest, with the benefit of hindsight, any full-time work with the potential for a PTSD trigger event might have been risky for his mental health. In any case, as appears below, we now know that immediately prior to his commencement with Mr Crisafio, Mr Smith failed to complete the probationary periods of some four jobs because of 'panic attacks and flashbacks in the workplace'.
A subsequent examination by Dr Ng on 21 June 2013 (that is, approximately three weeks after Mr Smith commenced work with Mr Crisafio) confirmed the substance of the May 2013 diagnosis, with Dr Ng noting that:
[Mr Smith] presented as sincere and consistent in presenting his history and predicament to me[.]
Importantly, Dr Ng also recorded the following (emphasis added):
[Mr Smith] told me that he continued working at a Kia car dealer on a full time basis which he commenced some weeks ago. He said that he was trying to cope with his ongoing psychiatric symptoms in spite of the work. He said that talking to customers was a varying struggle. At times he had significant difficulties talking to them due to anxiety and he needed to 'get out of there'.
When anxious he said that he would feel 'closed in', he experienced difficulties breathing, he would feel hot and feel highly anxious. He was unaware of what the triggers there could be to [sic], regarding the increased levels of anxiety. He said that he could not cope with going under the bonnet of a vehicle and hence avoided doing so.
He said that he had to tell clients that he did not know where the compliance plates of vehicles were in order to avoid going under bonnets of vehicles. If he saw colleagues going under the bonnet of a vehicle he would get anxious and would need to get away from there. He said that at times he found it difficult to cope with his work and had to hide away in the bathroom or toilet or 'jump into' his car and drive away.
He told me that he was currently seeing the psychologist [Dr] Anne Dale on an ongoing basis and saw the psychologist once a week.
Dr Ng's report of 21 June 2013 also reported that Mr Smith was 'easily angered and easily frustrated' and that he 'found it difficult to talk to customers'. Talking to customers, Mr Smith indicated, continued to be 'a varying struggle'. Mr Smith also had 'transient suicidal ideation but [with] no planning or attempts'.
As at 24 June 2013, the applicant's treating clinical psychologist (Dr A Dale), after four sessions with Mr Smith, diagnosed his reporting and presentation as 'indicative of PTSD, with severe concurrent depressive symptoms and Panic Attacks'. The third such session with Dr Dale was the day before Mr Smith commenced working for Mr Crisafio (and the day of his job interview).
Dr Dale also noted that at Mr Smith's initial psychotherapy treatment on 23 May 2013 (a week before Mr Smith commenced work with Mr Crisafio), Mr Smith had presented with 'severe' symptoms. I have already referred above to Dr Dale's recommendation of immediate hospitalisation of Mr Smith. Dr Dale reported the following:
My initial assessment on [23] May, 2013, indicated that in addition to his depressive features, Mr Smith was suffering from PTSD with extreme terror of going blind, or of something terrible happening to him in the workplace. Mr Smith's PTSD and depression and anxiety have prevented him from remaining in the workplace for extended periods of time, and he suffers panic attacks which are so debilitating and frightening, that he has to get away from his workplace. He cannot sleep, is unable to concentrate, has poor memory, and is unable to face people or to cope with terrifying nightmares and flashbacks …
He presented with vegetative (physical) cognitive (mental) and affective (emotional) features of severe clinical depression. In addition, at that stage there were observable and self-reported symptoms of a PTSD picture with 'fear of dying' and fear of blindness, terrifying nightmares, flashbacks, night-sweats, fear of approaching work, panic attacks in the work place and general avoidance of any aspects of his accident. Mr Smith also presented with extreme anxiety and some panic whenever he spoke of his dire financial situation, and his terror that he would never be well enough to return to work. He felt that the insurance company had let him down, never returning calls, withdrawing services, not paying bills, and generally being unavailable. He could not pay his medical bills and has been assisted by good friends so that his doctors will continue seeing him[.]
There is no other evidence of any substance supporting Mr Smith's second victimisation complaint; that claim must also be dismissed.
Concluding observations and the question of costs
Mr Smith has been unsuccessful in his claims. In this jurisdiction, a loss of one's antidiscrimination claims is not, in itself, a ground for an adverse costs order against the applicant. However, other matters of conduct, purpose and motivation might attract a costs order against any participant in a proceeding in the Tribunal. Before turning to Mr Smith's sometimes troubling conduct and his claims in this proceeding, I consider the relevant principles in relation to costs.
In Commissioner for Equal Opportunity and Alcoa of Australia Ltd [2007] WASAT 317, the Tribunal said, at [45] and [47], emphasis added:
Section 87(1) of the [State Administrative Tribunal Act 2004 (WA), (SAT Act)] provides that unless otherwise specified in the SAT Act, the enabling Act [that is. The EO Act], or an order of the Tribunal under s 87, the parties bear their own costs in a proceeding before the Tribunal. There is no provision as to costs in the [EO Act].
We are of the view that the Tribunal should not generally make an award for costs in proceedings bought under the [EO Act] unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings; has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order for costs where a matter has been brought vexatiously or for improper purposes …
In Ninan v Valuer General [2012] WASAT 248, the Tribunal said, at [78]:
The relevant principles concerning costs are set out in the Guide to Proceedings in the WA State Administrative Tribunal at pages 190 193 and 208 212. It is there suggested that there will only be an award of costs in 'special circumstances' (page 190). Thus, successful costs applications in the Tribunal have been described as a 'rare bird' indeed: Tran and Town of Vincent [2009] WASAT 123 at [29]. However, costs might be awarded against a party in circumstances illustrated in this passage taken from Medical Board of Western Australia and Kyi [2009] WASAT 22 at [73], endorsed as of general application by the learned authors (at page 191):
'... If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. ...'
In Ninan v Valuer General [2012] WASAT 248 (S) (Ninan), the Tribunal said, at [19] and [20]:
The aim of costs, where it is permissible to grant costs, is not to punish an unsuccessful party, but rather to indemnify or compensate and usually then only as partial compensation the other party in respect of certain expenses to which they have been unnecessarily put.
The need for restraint in the amounts awarded for costs in the Tribunal is discussed, for example, in Tran and Town of Vincent [2009] WASAT 123 (S), at [40] [42] …
Nevertheless, in Ninan, the Tribunal awarded costs of $50,000 against an unsuccessful litigant who had put the respondent to significant expense in responding to the applicants' serious but 'completely unfounded' claims. The applicants in Ninan had engaged in conduct which was substantially an abuse of process. They had been repeatedly warned of the consequences of advancing baseless claims. Moreover, the Tribunal had ruled, as had been foreshadowed to them, that the applicants' claims were, in any case, 'outside of the Tribunal's jurisdiction'.
In Summerville and Department of Education and Training [2006] WASAT 368, the former President of this Tribunal (Barker J) awarded costs against the applicant in an EO Act matter. His Honour said, at [50] [54] (emphasis added):
At all times, [Ms S] insisted that her complaints against [Mr F] should be maintained in the Tribunal, notwithstanding the attempts by [Mr F] not to be joined in the first instance and later on, before the hearing, to be removed as a party. [Ms S] actively opposed the strike out application before the hearing.
In the event, [Mr F] has successfully defended the complaint against him. His success is against the background I have just described. Even though [Ms S] was self-represented in the proceedings, she failed to give any proper attention to the true basis of her claim against [Mr F]. She simply desired to maintain in the Tribunal all the allegations she originally made to the Equal Opportunity Commission, regardless of their status under the EO Act as a ground for discrimination.
In my view, parties who require their complaints to be transferred to the Tribunal by the Commissioner for Equal Opportunity in circumstances where the Commissioner has already found those allegations to be without substance, should not be entitled to maintain proceedings that do not have any reasonable chance of success without being at risk of a costs order being made against them.
In this case, I consider that, whilst the starting out position in the Tribunal is that it is a 'no cost' jurisdiction, the circumstances of this particular case, where [Ms S] maintained the proceedings against [Mr F] in circumstances in which, taken at their highest, there was no cause for complaint against [Mr F] under the EO Act, should result in her contributing towards the costs incurred by Mr F.
As far as the exercise of that discretion of costs is concerned, [Mr F] has claimed reimbursement of his legal expenses in excess of $23,000. While [Mr F] needed to participate in the hearing over five days, not all of the hearing was relevant to [Ms S]'s claims made against him. I think in all the circumstances of the case, an award of costs in the sum of $7,500 about a third of the claimed costs is fair and reasonable.
In this case, the costs incurred by the respondent in defending himself from Mr Smith's far-reaching allegations will have been considerable.
I have commented above on Mr Smith's sometimes disruptive and unreasonable behaviour in the hearing and in the giving of his evidence. I also think that his occasional inappropriate conduct has probably unnecessarily lengthened the time that this matter has spent in the Tribunal. I have already noted above the suggestion that on at least one previous occasion, Mr Smith apparently failed to comply with some important procedural orders of the Tribunal.
However, and perhaps more seriously, Mr Smith made some extremely damaging personal allegations against Mr Crisafio. Mr Smith sought to paint Mr Crisafio as an unreasonable, extremely quick to anger, perhaps even a violent man, one who was prepared to cause threats to issue to Mr Smith and his family. There is nothing in the material that Mr Smith has produced here to sustain such serious allegations, to the extent that they were ever relevant to the main issues to be decided.
Mr Crisafio operates a business which clearly trades in (if not trades on) his personal name and reputation (that is, as a franchisee, making him the Dealer Principal). The dealership employs or engages several staff (including one or more members of his family). These staff are personally supervised by Mr Crisafio and are, in a sense, ultimately dependent upon him for their continued employment. The profitability of the business is dependent upon a sufficient stream of vehicle sales and associated services in a highly competitive trade built upon reputation.
I regret that these proceedings were, in effect, the instrument that permitted Mr Smith to make such serious allegations, allegations which were not only unfounded (in that no material of any substance was ever produced to verify them) but were far removed from Mr Smith's original core complaints of discrimination on the basis of his PTSD, an impairment that he never adequately disclosed in the first place.
For these reasons, I will reserve for 14 days the possibility of an adverse costs order (if any) against Mr Smith.
Final orders
For the reasons given above, the Tribunal makes the following orders:
1.The applications in proceedings EOA 3/2015, Smith v Palace Nominees Pty Ltd (trading as Joe Crisafio KIA) and EOA 24/2014, Smith v Palace Nominees Pty Ltd, (trading as Joe Crisafio KIA) are, subject to any determination on the question of costs, dismissed.
2.The respondent may, within 14 days, or such further time as the Tribunal allows, file and serve short written submissions on costs including, if costs are claimed, identifying in short form the amount or amounts or proportion of costs sought to be recovered (and the basis therefor).
3.Thereafter, by no later than a further 14 days, or such further time as the Tribunal allows, the applicant may file and serve short submissions in reply.
I certify that this and the preceding [263] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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