Spencer v Greater Murray Area Health Service

[2005] NSWADT 138

CITATION:	Spencer v Greater Murray Area Health Service [2005] NSWADT 138
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Wendy Spencer RESPONDENT Greater Murray Area Health Service
FILE NUMBER:	031148
HEARING DATES:	3/11/2004, 22/11/2004-23/11/2004 & 16/02/2005
SUBMISSIONS CLOSED:	02/16/2005
DATE OF DECISION:	06/23/2005
BEFORE:	Britton A - Judicial Member; Hayes E - Non Judicial Member; Weule B - Non Judicial Member
APPLICATION:	Carers' Responsibility Discrimination - in work - Sex Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Trade Practices Act 1974 (Cth)
CASES CITED:	Amery & Ors v State of New South Wales (Director- General NSW Department of Education and Training) [2004] NSWCA 404 Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Bradley v State of New South Wales (No.2) [2003] NSWADT 94 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 Hafez v Warilla Women’s Refuge Ltd & Ors [1997] NSWEOT Hall v Sheiban (1985) ALR 503 Mandla v Dowell Lea [1983] 2 AC 548 O'Callaghan v Loder [1984] EOC 92-023 Price v Civil Service Commission (1978) ICR 27 Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 Waters & Ors v Public Transport Corporation [1991] 173 CLR 349
REPRESENTATION:	APPLICANT M Tibby, barrister RESPONDENT G Charteris, barrister
ORDERS:	1. The complaint of discrimination on the ground of sex is dismissed; 2. The complaint of discrimination on the ground of carer’s responsibility is dismissed; 3. The complaint of victimisation is substantiated; 4. The Respondent shall within 28 days pay to the applicant the sum of $10,000 by way of compensation for non-economic loss

1 Wendy Spencer has worked with the Greater Murray Area Health Service since 1998. In January 2000 the Health Service agreed to her request to work her forty-hour week over four rather than five days. Ms Spencer made this request because of her responsibilities to care for her aging parents and a sister who was recovering from a stroke. In late 2001 Ms Spencer was directed to return to a standard five-day week. Soon after she had a nervous breakdown and left work. Ms Spencer complains that her employer, by refusing to allow her to continue to work a four-day week, discriminated against her on the grounds of her responsibilities as a carer and sex. In addition, she contends that she was victimised because she made a complaint of discrimination.

Background

2 The Greater Murray Area Health Service, the Respondent in these proceedings, is a State Government agency that provides health care services for people living in a rural area in the south west of New South Wales.

3 Ms Spencer commenced employment with the Respondent in June 1998 as an assistant Human Resource Manager in the Respondent’s Human Resources unit, based in Deniliquin.

4 In May 2001 the Respondent decided to centralise its payroll and personnel services in a new unit to be based in Albury. Before then, that work had been spread across a number of offices in the area covered by the Health Service, including the Deniliquin office where Ms Spencer had been employed. The amalgamation resulted in the closure of the Deniliquin office. Ms Spencer’s then supervisor Marion Whalan, and a number of other staff who did not wish to relocate to Albury, resigned. The balance of the staff transferred to Albury.

5 Ms Spencer was formally advised on 8 June 2001 that her position had been abolished and she was now classified as a “displaced person”. She subsequently applied for two positions within the Respondent’s Organisation Learning and Development Unit but withdrew one application and was unsuccessful in the other.

6 Brian McInerney was appointed to head up the new Human Resources Unit in Albury and took up that position on 8 October 2001. In October 2001 the remaining staff from the Deniliquin unit moved to Albury. Ms Spencer started at Albury on 15 October 2001.

7 Mr McInerney decided to appoint Ms Spencer to the position of Principal Personnel Services Officer without advertising. That position was at the same level as Ms Spencer’s previous position and was effectively the second-in-charge of the new unit.

8 Hours of work In late 1999 Ms Whalan agreed to Ms Spencer’s request to work a four-day week (10 hours per day) because of her family responsibilities. Under that arrangement, which came into effect on 10 January 2000, Ms Spencer continued to accumulate a rostered day off each month. Before then she had worked a five-day week (eight-hour day).

9 Shortly after she started at Albury, Mr McInerney told Ms Spencer that, given the demands of the new unit, he wanted her to return to a five-day week. Ms Spencer challenged that decision.

10 Ms Spencer commenced working a five-day week on 10 December 2001. A week later she went off on sick leave and remained off work for twelve months. Ms Spencer was diagnosed as having had a nervous breakdown.

11 Ms Spencer had been living in Deniliquin up until October 2001 when she moved to Wodonga to live with her sister. Wodonga is a town on the NSW/Victorian border, about 200 kilometres from Deniliquin and ten kilometres from Albury. Ms Spencer’s parents lived on a cattle farm at Chiltern, Victoria which is about 40 kilometres from Albury.

12 Claim of Discrimination

Relevant legislative provisions

13 Ms Spencer asserts that the Respondent’s decision that she return to a five-day week amounted to unlawful discrimination on the grounds of carer’s responsibilities, (s 49V(2) of the Anti Discrimination Act 1977 (the Act)) and sex, (s 25(2) of the Act). Section 49V(2) provides:-

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer:
(a) in the terms or conditions of employment that the employer affords the employee, or

(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.

14 Ms Spencer’s complaint is cast as one of both direct and indirect discrimination. The test of discrimination on the ground of carer’s responsibilities is set out in s 49T(1):

(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of the aggrieved person’s responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

15 Section 49S sets out the meaning of “responsibilities as a carer”.

(1) A reference in this Part to a person’s responsibilities as a carer is a reference to the person’s responsibilities to care for or support:

(c) any immediate family member of the person who is in need of care or support, being one of the following:

(iii) a parent or step-parent of the person or of a spouse or former spouse of the person,

(v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person.

(2) A reference in this Part to a person’s responsibilities is a reference to responsibilities:

(a) that the person has, or

(b) that the person is thought to have (whether or not the person in fact has the responsibilities), or

(c) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or

(d) that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities).

16 Section 25(2) is the substantive provision relating to sex discrimination. The test of discrimination on the basis of sex is set out in s 24. Ms Spencer relies on the so-called “characteristics extension” set out in s 24(1A) which provides:

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

17 To succeed in her claim that the Respondent’s decision requiring her to return to a five-day week constitutes unlawful discrimination as defined by s 49T(1)(b) in breach of s 49V(2), Ms Spencer must establish on balance that:

- she had “responsibilities as a carer”.

- she was unable to comply with the requirement to work a five-day week because of those responsibilities.

- a substantially higher proportion of persons who do not have responsibilities as a carer comply or are able to comply with that requirement.

- the requirement was not reasonable in all the circumstances.

18 It is common ground that Ms Spencer’s complaint, if proven, is capable of falling within s 49V(2)(a) (terms and conditions of employment) and s 49V(2)(b) (denial of a benefit). It is agreed also that the requirement that she return to work a five-day week constitutes a requirement or condition for the purposes of s 49T(1)(b).

Carer’s responsibilities /inability to comply

19 It is Ms Spencer’s case that when Mr McInerney reviewed her hours she was responsible for the care of her elderly parents and her sister, Lynne, and that because of that was unable to work a five-day week.

20 The Respondent disputes that claim and argues that Ms L Spencer was not a person in “need of care” and in any event the nature of Ms Spencer’s family responsibilities did not prevent her working a five-day week. It is relevant, argues the Respondent, that with the relocation of Ms Spencer’s office to Albury and her home to the nearby town of Wodonga, her travel time and, consequently time away from her family had been radically reduced.

21 As the evidence about the nature of Ms Spencer’s responsibilities and her ability to comply overlap, we deal with the two issues together.

22 Lynne Spencer According to Ms Spencer as a result of the stroke her sister, Lynne, had an “Acquired Brain Injury”, right-sided weakness, ongoing difficulties with her speech, could not live independently and was in need of continuous care and support. Ms L Spencer had been living with her brother, Paul, in Wodonga since October 2000. When he moved out in October of the following year, Ms W Spencer moved in and, on her account, became Lynne’s “sole carer”.

23 According to Paul Spencer, after the stroke, Lynne’s life “had fallen apart” and she looked primarily to her sister, Wendy, for support. He claimed that during the time he lived with Lynne, she was heavily dependent on him and did little if any cooking or housework and then only when prompted.

24 While Ms Spencer conceded that her sister’s condition had “improved slightly” by late 2001, in her opinion, she still required assistance with the tasks of daily living such as cooking, laundry and shopping, and needed a set routine. On her account, she was obliged to keep an eye on Lynne “24 hours a day”.

25 The Respondent argues that in contrast to the impression given by Ms Spencer, the objective evidence reveals that, at least by mid-2001, Ms L Spencer’s condition had significantly improved and her needs were minimal. By that time rehabilitation had ceased, she had returned to full-time work, was not in need of regular medical treatment and could drive a car. In support, the Respondent points to Mr Spencer’s evidence which reveals that while he claimed that Lynne had limited ability to undertake normal household duties, in the year he had lived with her, he was often forced to leave her alone for extended periods because of the demands of his job and the family farm.

26 Parents Ms Spencer’s parents lived on a small cattle farm outside Albury. They were in their seventies and suffered a number of health problems. In mid- 2001 Mr Norm Spencer had an operation for a hernia. He was also diagnosed to have cardiac problems. In September 2001, orthopaedic surgeon, Stephen Leitl, recommended a hip replacement on account of an “increasingly painful osteoarthritic hip” but recommended surgery be delayed until his cardiac problems had been “sorted out”.

27 Following an injury in December 2000, Mrs Nancy Spencer had a painful and swollen knee, found walking painful and walked with a limp. An arthroscopy revealed significant osteoarthritis in the knee and a total knee replacement was carried out in mid-2002.

28 In addition to these problems, each had an array of minor health problems.

29 Ms Spencer claimed that throughout 2001 she routinely went down to the farm to check on her parents. Once every six or so weeks she would do a “big cook up” and take down pies etc, the sorts of things her parents liked but her mother could no longer prepare because of ill health. She said she helped her parents with various tasks: household chores, tending the vegetable garden, running errands and the “administrivia” of life such as arranging medical appointments, banking etc.

30 She claimed that by 2001 her father was incapable of working on the family farm and the burden fell largely to her brother, Paul who owned the farm with his parents. Ms Spencer assisted her brother on the farm on weekends.

31 Need for Friday off Ms Spencer claimed that she needed the flexibility a day off provided as it allowed her to undertake tasks which could only be done on a weekday - banking, taking her parents to medical appointments etc. Ms Spencer conceded that most of the medical appointments that her parents attended in 2001 had not been on a Friday and that they had managed to get themselves to those appointments without her assistance.

Findings and Conclusions

32 Ms Spencer must establish, first, that her parents and or sister were people in need of care or support; second, that she had responsibilities to each and, third, that as a result of those responsibilities she was unable to comply with the requirement to work a five-day week.

33 Person in need of care We accept the Respondent’s contention that Ms Spencer overstated the extent to which her family were in need of her care. The evidence establishes that by 2001 Mr and Mrs Spencer Snr were able to get to medical appointments alone, drive into town, shop, cook and perform general household tasks although because of ill health they found these tasks increasingly difficult. By October 2001 when Ms W Spencer moved to Wodonga, Ms L Spencer’s condition had improved: she had returned to full time work, could drive and perform most household tasks.

34 Ms Spencer need not establish, that her parents and sister could not survive or function without her care or support. The hurdle placed by s 49S (1) is not set that high. It is enough that she establish that her parents and/or sister were in need of care or support.

35 In determining whether a person is in need of “care or support”, all of the circumstances must be considered. In this case, Ms Spencer’s parents were in their seventies and their health was deteriorating. Both had severe osteoarthritis and found walking increasingly painful and difficult. While their health was not in freefall, the severity of their respective conditions was worsening and their need for medical intervention increasing. In addition, their ability to carry out the many and varied tasks of running a rural property and caring for themselves was diminishing. The problems they confronted were exacerbated by the fact that they lived on a large rural property in a relatively remote location. While theoretically they may have been able to “get by” without their daughter’s support, their quality of life would have been significantly compromised had they been forced to do so.

36 We find that as at late 2001 Ms Spencer’s parents were persons in need of “care or support”.

37 Sister While as conceded by Ms Spencer, her sister’s condition had improved considerably by late 2001, it is clear that she was not the person she had been before the stroke - she tired easily and required some assistance in the more demanding activities of everyday living. Not surprisingly, she was in need of significant emotional support. As Mr Spencer observed, her life “had fallen apart” and she looked to her only sister, Wendy, for emotional support.

38 We find that by late 2001, Ms L Spencer was a person in need of support.

39 Responsibilities as a carer As pointed out in Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 at [35] and [39] while s 49S defines the relationship which must exist between the aggrieved person and the person who is being cared for or supported, it does not define what is meant by the former person’s “responsibilities to care for or support". Nor is the term “responsibilities” defined. “Responsibility” is defined as “liable to be called to account, answerable”. (Oxford English Dictionary)

40 Only two of Mr and Mrs Spencer’s children were in a position to assist and care for them on a day-to-day basis. Their son had a demanding job, which meant he was often away from home. The little spare time he had was taken up on the family farm. It seems that the task of assisting Mr and Mrs Spencer with the tasks of daily living fell largely to Ms Spencer.

41 The Respondent submits that the assistance provided by Ms Spencer on the farm does not constitute work performed in discharge of her responsibilities as a carer as the farm was a commercial venture jointly run by her parents and brother. While strictly speaking the Respondent might be correct it seems to us that in the rural world the line between assistance to the person and assistance to their farm is somewhat blurred. In any event, given the age and state of health of Ms Spencer’s parents it seems to us they were in need of her care and support if they were to remain at home and have a reasonable quality of life irrespective of any help they might require on the family property. .

42 We find that Ms Spencer had “responsibilities as a carer” to her parents and sister.

43 Unable to comply Ms Spencer must establish that because of those responsibilities she was unable to comply with the requirement to work a five-day week. The relevant time in which her ability to comply is to be assessed is the time the requirement was imposed i.e. late 2001.

44 The authorities in the United Kingdom and Australia have consistently interpreted compliance with a requirement in the context of indirect discrimination as the ability to comply in a practical not theoretical sense. See for example Mandla v Dowell Lea [1983] 2 AC 548; Waters & Ors v Public Transport Corporation [1991] 173 CLR 349; Price v Civil Service Commission (1978) ICR 27; Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 at 77, 238; Bradley v State of New South Wales (No.2) [2003] NSWADT 94 at [45] and Gardiner v New South Wales WorkCover Authority at [59].

45 We must therefore determine whether, as Ms Spencer asserts, she could not comply in a practical sense with the requirement to work a five-day week. The Respondent contends that Ms Spencer has not demonstrated that her responsibilities to her parents and sister could not be discharged if she worked a five-day week. It asserted that if she returned to work a five day week, she would be able to carry out some of her responsibilities after work as her working days would be shorter. It also points to the relocation of Ms Spencer’s home and place of work to the Albury / Wodonga area which meant that the time spent travelling to visit her parents and sister had dramatically reduced. In addition, it argued that Ms Spencer had available one RDO per month plus various forms of leave, which together could be used to carry out any tasks that could only be performed during standard work hours. It is relevant, argues the Respondent, that Ms Spencer did not take a single RDO throughout the period she worked a four-day week.

46 We understand Ms Spencer to concede that her responsibilities to her sister did not stop her working a five-day week but rather that it was the combination of the responsibilities to her parents and sister that meant she could not comply with the requirement.

47 Critical to an assessment of Ms Spencer’s ability to work a five-day week, is the nature of the needs of her parents and sister. A careful examination of the tasks undertaken by Ms Spencer in her role as carer reveal that a small number could only be undertaken on a weekday and, as the Respondent points out, Ms Spencer had various forms of leave available she could use for such tasks. In testing compliance, however, the proper approach, in our view, is not to look at each task carried out by Ms Spencer in the discharge of her family responsibilities and ask was it possible to perform that task and work a five-day week. Rather the question to be posed is: having regard to the totality of those tasks could in practical terms Ms Spencer work a five-day week?

48 It would have been physically possible for Ms Spencer to travel to her parents’ farm after work and carry out some tasks each day, as the Respondent suggests. However, as a matter of commonsense this would have been extremely demanding and tiring in the long term, even with the flexibility a shorter working day provided.

49 The task of caring for her parents and sister had become somewhat easier with the relocation of Ms Spencer’s work and home to Albury/Wodonga but was, nonetheless, very demanding and, when coupled with her other day-to-day responsibilities, exhausting. While her travelling time had significantly reduced, this does not mean that she necessarily was able to comply with the requirement to work a five-day week. As we see the evidence, it merely gave her an extra few hours each week. The issue is not whether it was easier for Ms Spencer to manage her family responsibilities once her work and home had moved closer to where her parents and sister lived, but rather, taking account of all relevant factors, whether she was unable to comply with the five-day week requirement.

50 The ability to comply with the disputed requirement should not in our opinion be assessed against the hypothetical performance of some notional ‘super carer’. Rather, account must be taken of the circumstances in which the aggrieved person who complains of discrimination finds themselves. In this case, the applicant is a middle-aged woman, working full time in a senior position with responsibilities for aging parents and an emotionally dependent sister. It is a matter of common knowledge and experience that human beings under heavy strain, especially when they receive little or no external support, are exhausted by such strain and eventually are unable to continue to bear the load. When their reservoirs of strength and endurance are used up, they, to use the vernacular, ‘burn out’. The bearing of emotional burdens is an especially taxing, but difficult to measure, experience. It is undoubtedly true that Ms Spencer, once she moved to Albury, had more time in which to care for her parents and sister, but there appears to have been no reduction in the pressure placed upon her emotional resources. As time progressed, while some burdens became lighter (such as the need to physically care for her sister), others became greater (such as the emotional dependency of her sister).

51 We are therefore satisfied that because of the combination of Ms Spencer’s responsibilities to her parents and sister; the draining effect of those constant demands and responsibilities; the reasonably high level of responsibility she bore at work and the demands her work placed on her, and her need for some respite in order to continue to meet her work and family responsibilities, that she was, in practical terms, unable to comply with the requirement to work a five-day week.

Substantially Higher Proportion

52 Ms Spencer must establish that a substantially higher proportion of persons who did not have carers’ responsibilities comply, or are able to comply, with the requirement to work a five-day week as compared to those who do not have carer’s responsibilities. This is a question of fact: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 at pp 178-179; Amery & Ors v State of New South Wales (Director- General NSW Department of Education and Training) [2004] NSWCA 404 at [136].

53 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77] sets out a useful guide as to the steps to be undertaken in determining this issue:

First, identify the pool or base group.

Second, identify the members within that group who do not have carers’ responsibilities and can comply with the requirement.

Third, identify the members of the base group who have carers’ responsibilities and can comply with the requirement.

Finally, compare the proportion of employees without carers’ responsibilities who can comply with the requirement with the proportion of employees with carers’ responsibilities who can comply.

54 Base group In written submissions, the base group nominated by Ms Spencer was the “Human Resources section of GMAHS”.

55 The members of that group were not identified with any precision. It is unclear for example whether Ian Stephens (who worked alongside Ms Spencer as a supernumerary after the relocation to Albury) or Mr McInerney, the head of the unit, belong to the nominated group. We presume they do not on the basis of the reference in oral submissions by Counsel for Ms Spencer, to the group consisting of eight individuals which would necessarily exclude them. Identification of the group is further complicated by the submission put for Ms Spencer that the group consisted of three women and five men. This sits at odds with the organisational chart tendered by the Respondent (Exhibit R6, Tab 20) which sets out the seven positions supervised by Ms Spencer and the names of the persons who held those positions. This chart shows that only two of the group were men.

56 Without any better evidence, we proceed on the basis that the base group is the group working under Ms Spencer identified in Exhibit R6, Tab 20 namely: Greg Prater, Greg Rowe, Kelly Landy, Kate Clark, Christine Greenham, Dianne Hickman and Elisabeth Conallin.

57 Staff with carers responsibilities and can/able to comply Having identified the base group, the members of that group who do not have carers’ responsibilities and can comply with the requirement to work a five-day week must be identified. While we know that Ms Spencer was the only member of this group who was unable to comply (Greg Prater had been working a four-day week but reverted to standard hours shortly after the relocation to the Albury) it is unclear whether any members of the group had carer’s responsibilities.

58 It was submitted for Ms Spencer that she was the only member of the base group who “made known” that they had carer’s responsibilities to her or the Respondent. Having scoured the material before us, we can find no evidence to support that claim. Ms Spencer gave no evidence on this point and nor did any of her witnesses. The only witness to address what the Respondent’s managers might have known or thought about their staff’s family responsibilities was Ms Whalan. She told us that in 1999 after she announced that she would permit flexible hours, she was approached by two staff with family responsibilities, Ms Spencer and Bernard Graeber, and approved their requests to work flexible hours. While this reveals that two staff members with family responsibilities elected to take up the flexible hours option, it does not tell us whether the remaining staff did or did not have such responsibilities, or indeed whether Ms Whalan (or any one else in management) thought that they might have. In any event, this evidence is of limited assistance as the group of staff supervised by Ms Whalan at that time was different to the base group.

59 It is conceded for Ms Spencer that there is no direct evidence on this point. However, it is also submitted on her behalf that when the evidence is looked at as a whole it is clear that no one other than her had asked to work flexible hours because of carer’s responsibility and accordingly it can be assumed that none had such responsibilities. Even if the first of these propositions is accepted, and we note there is no evidence on this point, it is false logic to say that because no one asked to work flexible hours, no one had, or was thought to have, family responsibilities.

60 A claim of indirect discrimination must fail unless it can be established that a “substantially higher proportion” of persons within the base group who do not have or are thought not to have the relevant characteristic (in this case, carers’ responsibilities) comply or are able to comply with the offending requirement as compared to the proportion of persons who do have or are thought to have that characteristic. Ms Spencer as the applicant in these proceedings must identify the two groups without which that assessment cannot be made. It may be, as asserted for Ms Spencer, that she was the sole member of the base group to have family responsibilities or thought to have such responsibilities but without evidence on this point we cannot be satisfied that that was the case. It is not open to her to argue that as there is no evidence to the contrary, the evidentiary onus has been discharged. All this establishes is that there is no evidence on the point one way or the other. The onus does not shift to the Respondent to disprove the assertion.

61 Accordingly the claim of indirect discrimination on the grounds of carer’s responsibilities must fail.

Indirect Discrimination – Sex

62 Ms Spencer claims that the Respondent’s refusal to allow her to continue to work a four-day week also constitutes indirect discrimination as defined by s 24(1)(b) on the ground of sex. Ms Spencer must establish on balance that:

- she was unable to comply with the requirement to work a five-day week.

- a substantially higher proportion of men comply or are able to comply with the requirement.

- the requirement was not reasonable in all the circumstances.

63 Unable to comply For the reasons above, we are satisfied that Ms Spencer was unable to comply with the offending requirement.

64 Substantially higher The base group nominated by Ms Spencer is the same one nominated for the claim of discrimination on the ground of carer’s responsibilities. Within this group, six are women (Ms Spencer, Kelly Landy, Kate Clark, Christine Greenham, Dianne Hickman, Elisabeth Conallin), and two are men (Greg Rowe and Greg Prater). Of the six women only one could not comply with the requirement: Ms Spencer. All the men within the group could comply. This translates into a compliance rate of 100% (2:2) for men and 83.33% (5:6) for women.

65 The issue to be determined is whether, in this case, a compliance rate of 100% is “substantially higher” than one of 83.33 %.

66 It has been suggested that guidance to the meaning of “substantially higher” proportion within the context of indirect discrimination might be gained from interpretations of other Australian legislation such as the Trade Practices Act 1974 (Cth), where the word “substantial” within the context of “substantial loss or damage” and “substantially strengthening market control” has been held to mean real or of substance rather than trivial, minimal or nominal on the one hand, or weighty, considerable or large on the other. (see Hunter, R, Indirect Discrimination in the Workplace, Sydney, Federation Press, 1992, pp 217-218.)

67 In Bonella & Ors v Wollongong City Council, the Tribunal analysed the difficulties caused by a mere statistical approach in determining whether a difference in compliance rates is “substantial” especially where the nominated pool is small in size. It said (at [94]):

The leading cases have not laid down any tests for determining when a difference in gender compliance rates with a challenged requirement or condition is of such magnitude that it becomes reasonable to conclude that a substantially higher proportion of persons of one sex, as compared to the other, have complied. It is a question of fact in each case; sometimes the numbers will be so great that a difference in one or two percentage points may be sufficient, whilst in other cases the numbers will be so small that it will be impossible to determine whether any statistical disparity may be the result of nothing more than accident or chance.

68 In this case the numbers themselves are apt to mislead when translated into percentages. It is self-evident that the sample is too small to be statistically meaningful because the margin for error is too wide. To adopt the formulation of the Tribunal in Bonella in this case, it is “impossible to determine whether any statistical disparity may be the result of nothing more than accident or chance”.

69 Given the weakness of the statistical evidence and the absence of any other evidence that might assist us place those figures in context we cannot be satisfied that Ms Spencer has proven that a substantially higher proportion of men than women are able to comply with the requirement to work a five-day week.

70 Accordingly, the claim of indirect discrimination on the grounds of sex must fail.

Direct Discrimination - Sex

71 Ms Spencer asserts that the Respondent’s decision to change her hours constitutes discrimination on the grounds of sex under s 24(1)(a).

72 To succeed in this complaint Ms Spencer must establish on the balance of probabilities, that:

- In the same or similar circumstances, a male staff member would have been treated more favourably (“differential treatment”).

- One of the reasons for that less favourable treatment was that she was a woman (“causation”).

73 Ms Spencer relies on the so-called “characteristics extension” set out in s 24(1A). She asserts that having responsibilities as a carer is a characteristic that appertains generally to women or a characteristic generally imputed to them. No evidence has been led to support that proposition, however in our view this is a matter of common knowledge of which we may take judicial notice. (See s 144 of Evidence Act 1995).

Evidence

74 The comparators In October 2001, Mr McInerney reviewed the hours of all staff in the new Albury unit and found that five were working non-standard hours: Bernard Graeber, Systems Administrator; Jack Earl, Acting Payroll Team Leader; Anthony Klasson, Administrative Officer Payroll; Paul Kobzan, Senior Payroll Officer; Greg Prater, Assistant Personnel Services Officer, and Ms Spencer. Mr Prater and Ms Spencer were the only members of the group requested to revert to standard hours.

75 Mr Prater, at the relevant time, was a team leader overseeing three staff and reporting to Ms Spencer. He agreed to change his hours when approached by Mr McInerney and indicated that he had been considering initiating the change.

76 Mr Klasson had been working a four-day week under a rehabilitation plan.

77 As noted, Ms Spencer was working a ten hour day, four-day week and accruing a rostered day off every four weeks. Messrs Graeber and Prater also worked a four-day week, but worked half an hour less each day than Ms Spencer and had no rostered day off. Messrs Kobzan and Earl worked a five-day week, each working an evening shift once a fortnight.

78 Mr Graeber held the position of Systems Administrator. He was on the same grade as Ms Spencer. According to Mr McInerney, after meeting with Mr Graeber he concluded that the arrangements under which he worked should continue as they allowed Mr Graeber to undertake “systems upgrades” outside standard work hours. When these upgrades were being undertaken , staff could not access the computer system. For similar reasons, Mr McInerney decided to allow Messrs Earl and Kobzan to continue to work an alternating Monday evening shift as this minimised the time staff would be locked out of the computer system.

79 With the exception of Mr Klasson, all staff whose hours were reviewed by Mr McInerney held reasonably senior positions.

80 Request to Ms Spencer Mr McInerney met with Ms Spencer on 18 October 2001 to discuss her hours of work. According to Mr McInerney, while he had known before the meeting that Ms Spencer had been working a four- day week, he only learned of the reasons for that arrangement at the meeting. Ms Spencer disputes that claim and points to her letter to Mr McInerney of 25 October 2001 in which she stated that the 18 October meeting was “the third time I told you that the compressed hours I worked had nothing to do with my work location and was required to enable me to meet my responsibilities to my family.”

81 At that meeting Mr McInerney said the reason he wanted to change Ms Spencer’s hours was so that she would be available to supervise staff five days a week. Mr McInerney claimed that Ms Spencer had been “defensive and withdrawn” at the meeting. This is denied, although Ms Spencer conceded that she might have been “withdrawn” on account of what she saw as Mr McInerney’s confrontational manner.

82 By letter, dated 18 October 2001, Mr McInerney notified Ms Spencer that as from 19 November 2001 she would be required to work Monday to Friday. The letter went on to state: “Should there be personal circumstances or reasons preventing you working the desired hours you should outline them in writing so that alternative options suitable to both parties can be considered”. Ms Spencer was directed to respond to the proposal within six days.

83 In her reply dated 25 October 2001, Ms Spencer detailed the health problems of her parents and sister. She pointed out that she had worked compressed hours for two years and during that time “no issues concerning difficulties resulting from work had ever been raised”. She went on to state that she was extremely concerned with the ramifications of the decision and if it was not resolved she would be forced to “seek resolution elsewhere”. In closing she wrote “However I do believe that common ground can be found if both parties are committed to finding a workable solution…”

84 Throughout late October and early November a number of meetings were held where Ms Spencer’s hours of work were discussed. According to Ms Spencer, Mr McInerney pressed her to consider alternatives arrangements for her family.

85 Mr McInerney notified Ms Spencer in a letter dated 26 November 2001, that she was required to work Monday to Friday from 10 December 2001. He wrote “at present your hours of work result in your absence from work for a total of one week in four. Your work hours mean that you are unsupervised during a time when you need direction, support and training. As a senior manager there is an expectation that you provide a leadership role to other staff within the unit and currently your hours of work are not compatible with achieving that objective.”

86 Ms Spencer commenced a five-day week, as directed, on 10 December 2001.

87 Ms Spencer’s Performance Much evidence was led in these proceedings about Ms Spencer’s work performance and Mr McInerney’s attitude towards her and vice a versa.

88 It is not in issue that when the Human Resources Unit started up in Albury there was a significant backlog of work. Mr McInerney, in his evidence, hinted that Ms Spencer’s performance might have been a contributing factor although he acknowledges that the decentralised structure of the Respondent’s Human Resources Division before the merger was largely responsible for the inefficiencies and delay. (See Exhibit R2 paragraph [10]). In Ms Spencer’s opinion, the backlog was the result of staff shortages. She wrote in a file note dated 1 November 2001, “nobody takes any notice of me when I say we have been working under increasing levels of pressure since June/July [2001] …with every additional resignation from the HR unit the pressure has increased.”

89 There is no evidence that before Ms Spencer commenced in Albury, Mr McInerney or any one else had any concerns about her performance. Mr Stevens and Ms Whalan, both of whom had worked closely with Ms Spencer over an extended period considered her to be a committed and competent employee.

90 However, shortly after she started at Albury Mr McInerney raised with Ms Spencer alleged problems with her performance including an alleged lack of attention to detail and the manner with which she dealt with junior staff.

91 At a team leaders meeting on 16 October 2001, Mr McInerney asked Ms Spencer when a longstanding issue involving a member of staff could expect to be resolved, to which she replied, “how long is a piece of string?” Mr McInerney rebuked Ms Spencer in front of staff and made a file note of the incident. Ms Spencer said she felt embarrassed and humiliated. At the next meeting of team leaders, held at the end of October, Mr McInerney criticised Ms Spencer for accumulating 15 rostered days off.

92 Shortly after that meeting, a heated exchange took place between Mr McInerney and Ms Spencer. On Ms Spencer’s account, when she approached Mr McInerney to obtain guidance about some files she had been working on, he confronted her and accused her of “white-anting” him.

93 On 7 November 2001 Ms Spencer met with Mr McInerney’s superior, Peter McLaughlin and the Manager, South Western Area Health Service to discuss concerns she had raised in a letter dated 26 September 2001 addressed to Mr McLaughlin. These concerns included allegations of discriminatory and improper recruitment and selection practices within the Area Health Service and Mr McInerney’s performance. Ms Spencer was disappointed with the outcome of this meeting and considered that her concerns had not been given proper consideration. Mr McInerney first learned of the letter that initiated this meeting at the meeting with Ms Spencer on 31 October.

94 On 3 December 2001 Mr McInerney met with Ms Spencer to discuss concerns about her personal behaviour and performance. A further meeting was held on 7 December 2001 in which Mr McInerney advised Ms Spencer that she was no longer to have any responsibility for the supervision of staff and that this role was to be taken over by Mr Stevens.

95 Complaints by staff After commencing at Albury, four members of staff lodged separate complaints about Ms Spencer. Three alleged that her management style was intimidating. Ms Spencer claimed that Mr McInerney escalated these complaints and failed to comply with the Respondent’s grievance handling policy.

Findings and conclusions

96 Differential treatment A determination of less favourable treatment requires us to make a comparison between the treatment afforded Ms Spencer and that afforded a male staff member in the same or similar circumstances (the comparator). Ms Spencer nominates four comparators: Messrs Graeber, Earl, Klasson, and Kobzan.

97 Neither party addressed in any detail whether the members of this group are appropriate comparators. In our view some of the nominated comparators were not in broadly comparable circumstances to Ms Spencer. Mr Klasson, for example, held a relatively junior position and had been working under a rehabilitation program.

98 Mr Graeber, on the other hand, in our opinion is an appropriate comparator. Like Ms Spencer, he was a senior manager and his hours of work were broadly comparable.

99 The treatment afforded Ms Spencer was demonstrably less favourable than that afforded Mr Graeber: she was directed to change her hours, he was not. Accordingly, the first element is made out. Given this finding, it is unnecessary for us to determine whether the remaining members of the group are also appropriate comparators.

100 Causation Having found that Ms Spencer was subjected to less favourable treatment we must now examine the reason for that treatment. Ms Spencer contends she was treated as she was, because of her sex and also because of a “characteristic generally imputed to women” namely, carer’s responsibilities. Ms Spencer must establish a causal link between that treatment and her gender and/or carer’s responsibility. These factors need not be the main or dominant reason for the treatment, nor do they stand or fall together, it is enough that one of the reasons the Respondent acted as it did through Mr McInerney, was “on the grounds of” Ms Spencer’s gender or carer’s responsibility (s 4A of the Act).

101 The conduct complained of, as we understand it, is not only the initial decision by Mr McInerney to ask Ms Spencer to change her hours but his subsequent refusal to “back down” after the strength of her opposition became evident.

102 Counsel for Ms Spencer, Ms Tibby, argued that it cannot be dismissed as mere coincidence that of the six staff whose hours were reviewed, the only one directed to revert to standard hours was a woman with family responsibilities. She argues that the stated reasons given for not disturbing the hours worked by Ms Spencer’s male colleagues were no more compelling than the reasons Ms Spencer had advanced for remaining on a four day week. She argued that Ms Spencer’s early start and late finish times allowed her to attend to tasks that demanded a block of uninterrupted “quiet time”, such as reviewing contracts and documents. She asserted that the initial explanation given by Mr McInerney – the need for staff supervision, did not stand up to scrutiny. She pointed out that staff in her section worked different hours and if she were to work as directed from 8.30 am to 5 pm, she would be unavailable to those staff who started early and finished late. In any event, she pointed out that if staff did require support or supervision on her day off, Mr Stevens was available to step in. Even if her Friday absences might cause some problems, so too, she argued, would the respective absences of Messrs Graeber, Earl and Kobzan who also were responsible for supervising staff. She argues that Mr McInerney’s insistence that she return to standard hours, after she had been stripped of any supervisory duties, further calls into question the true reason for his decision.

103 It is submitted for the Respondent that the decision that Ms Spencer return to a five-day week must be placed in the context of the restructure that was underway in its human resources operations at that time. A key reason for the establishment of the Albury office had been the significant delays and backlogs, complaints of inconsistency and inflexibility and difficulties in recruiting and retaining staff, which the Respondent believed was caused in part by the decentralised structure of its HR operations. It was in this context that the decision was taken to review the hours of staff and where appropriate to have staff work five days per week. Mr McInerney had formed the view that given Ms Spencer’s critical role in the setting up of the new unit and supervision of a new team, it was necessary that she be available to her staff on five, not four, days per week. It was not feasible or viable, as suggested by Ms Spencer, that Mr Stevens step in on her Fridays off as his services were only temporarily available to the Unit and might cease at any time. In addition, the need for Ms Spencer to have every Friday off had not been made out especially since the move to Deniliquin had dramatically reduced the time she had to spend travelling to visit her family. It had also emerged, argues the Respondent, that by the time the final decision had been taken there was a need to closely supervise Ms Spencer’s own work. The offending decision was made, it is asserted, for logical and cogent reasons which had nothing to do with Ms Spencer’s gender or carer’s responsibilities.

104 There is no direct evidence that Mr McInerney made the decision/s he did because of Ms Spencer’s gender or her carer’s responsibilities. The absence of any direct evidence on causation is not uncommon where discrimination is alleged. We must, therefore, look to all the evidence surrounding the alleged discriminatory conduct and ask whether an inference can be drawn from the primary facts, considered either separately or in combination, that one of the reasons for the decision was gender or carer’s responsibility. The exercise of drawing inferences in discrimination law was discussed in Dutt v Central Coast Area Health Service [2002] NSWADT 133, Hafez v Warilla Women’s Refuge Ltd & Ors [1997] NSWEOT, and in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31.

105 Before turning to examine the reasons for the Respondent’s decision we digress and look briefly at the issue of Ms Spencer’s performance, which has been the source of much comment in these proceedings. We understand Ms Spencer to contend that Mr McInerney’s criticism of her work was unwarranted and indicates he might have found it difficult to work with women in senior roles. As noted there is no evidence to suggest that before commencing in Albury, Ms Spencer had been anything but a highly regarded and competent employee. Mr McInerney’s decision to directly appoint her as his 2-I-C indicates that, at least initially, he had faith in her abilities. After all, his own performance would ultimately be judged on the success of the unit in which she was to play a critical role.

106 Was Mr McInerney’s assessment that Ms Spencer’s performance warranted counselling and finally demotion, influenced by factors other than those stated? On Ms Spencer’s own evidence throughout November / December, her position had become untenable and she was under intolerable stress. Her boss had accused her of “white-anting” him, he had discovered that she had lodged a formal complaint about his conduct and he had forced on her a fundamental change to her working arrangements. She found his management style confrontational. By early November each was making extensive file notes on the other, aware that the situation was likely to escalate.

107 As early as 1 November, Ms Spencer recorded in her diary “I feel sick to the stomach in the morning at the thought of going to work. I feel myself sitting there doing nothing feel[ing] very tense.” On 19 November, she was forced to walk out of a meeting with Mr McInerney and shortly after took a week off on stress leave. It is not surprising that in this environment Ms Spencer was starting to make mistakes and act in an uncharacteristic way towards staff. While it is difficult to pinpoint what caused this apparently sudden deterioration in her work performance, it seems that the stress she was under at that time was the main reason. It may be, as Ms Spencer, believes that Mr McInerney’s handling of the “piece of string” incident, RDO and hours issues, staff complaints and the growing list of matters, which were to become the source of conflict between them, was inappropriate and clumsy. But the inescapable conclusion is that her work suffered in this period. We cannot conclude that Mr McInerney’s decision to demote her indicates that his assessment of her performance was coloured by the fact she was a woman and or had family responsibilities.

108 It is apparent that by the start of November, if not earlier, the relationship between the two had soured. He thought Ms Spencer to be disloyal and inflexible. She considered him heavy handed and unreasonable. She had told his boss he was not up to the job. It is likely that the antagonistic nature of this relationship influenced how they related to each other. Of itself, it does not indicate that in his dealing with Ms Spencer, Mr McInerney was influenced by the fact she was a woman or had carer’s responsibilities.

109 We turn now to consider whether the decision to change Ms Spencer’s hours but not those of her male colleagues discloses that that he was influenced consciously or otherwise by these factors. The stated reasons given by Mr McInerney not to change the hours of Messrs Graeber, Earl, Klasson and Kobzan appear reasonable and cogent if taken at face value. It would appear that the decision about Mr Klasson was essentially out of his hands, having been put in place sometime earlier, presumably by the Respondent’s workers compensation insurer. The rostered hours worked by Messrs Graeber, Earl and Kobzan allowed them to undertake essential work on the Respondent’s computer system with minimal disruption to staff.

110 It is understandable that Mr McInerney would be concerned about the impact which the absence of a senior staff member might have on the smooth running of the unit, especially in its early days. Why then did he conclude that Ms Spencer’s could not be spared during core hours but her male colleagues could? Given their positions within the organisation, we think it likely that Messrs Graeber and Earl must have had some responsibilities for the supervision of staff although there is little if any evidence about the extent of their supervisory roles. The decision concerning Mr Earl in our view is distinguishable from that under review, as he was absent from the office for only part of the day and then only every fortnight. Mr Graeber’s arrangements on the other hand, like Ms Spencer’s, took him out of the office one day in five.

111 Mr McInerney’s stated reason for not requiring Mr Graeber to change his hours was that it allowed him to undertake essential systems administration work at a time convenient to the Respondent, that is, at a time that did not lock staff out of the computer system. He did not disclose in these proceedings and nor was he asked whether he saw any possible disadvantage to the Respondent flowing from that arrangement.

112 While the different conclusions reached by Mr McInerney in respect of Ms Spencer and Mr Graeber sit somewhat uncomfortably, we cannot be satisfied that one of the reasons for the different treatment was gender. There is simply not enough evidence before us to draw that conclusion. Had the evidence revealed that Mr Graeber had significant front-line supervisory duties, the argument put for Ms Spencer would have been more compelling as it would have raised an apparent inconsistency between the two decisions. But without such evidence and in the light of the significant systems administration component of Mr Graeber’s work, we cannot conclude that there was no material difference in the work undertaken by the two employees, and therefore no apparent logical reason for the different treatment.

113 It seems to us that that the initial decision to require Ms Spencer to return to standard hours was unreasonable in some respects, at least while Mr Stevens remained with the unit. On the information available to Mr McInerney at that time, Ms Spencer had been performing her job competently for the two years she had been working a four-day week. A respected colleague with long experience with the organisation was available to step into her shoes on her days off. Her family responsibilities were onerous. (We do not accept Mr McInerney’s claim that Ms Spencer failed to adequately brief him about what her responsibilities were. Even if she did not clearly put her case at the 18 October meeting, her two-page letter of October 25 clearly set out the problems faced by her family at the time.)

114 It is entirely understandable, at least in the startup phase, that Mr McInerney would want to restructure the unit in such a way that in his view, rightly or wrongly, would result in the optimal performance of the unit. His concern that Mr Stevens did not offer a long-term solution to Ms Spencer’s weekly absence, is also understandable.

115 Whether the initial decision made by Mr McInerney was reasonable is a matter about which minds will differ. In our opinion, had all the parties been willing it may have been possible to accommodate Ms Spencer’s hours and at the same time minimise the negatives identified by Mr McInerney. But the issue here is not reasonableness, as it is in a claim of indirect discrimination. While an unreasonable decision will warrant closer scrutiny of the reasons given for it, it does not necessarily reveal that it was made “on the grounds” of the relevant characteristic. Having carefully reviewed the reasons for the decision and all of the evidence in this matter, we cannot be reasonably satisfied that Mr McInerney made his decision because Ms Spencer is a woman or because she had family responsibilities. It is possible that these factors influenced his thinking but on the evidence available we cannot be satisfied of this.

116 Nor are we satisfied that Mr McInerney’s subsequent decision not to reverse his original decision was “on the grounds” of Ms Spencer’s sex or family responsibilities. In reaching that conclusion we have taken account of the fact that the stated reason for the original decision was no longer applicable as Ms Spencer had been stripped of her management responsibilities. It seems to us that by that time their relationship had deteriorated to such a degree that Mr McInerney was unlikely to have been prepared to accommodate Ms Spencer in any way. Again it is possible that Mr McInerney’s decision was in some way affected by Ms Spencer’s gender or her carer’s responsibilities but we cannot be satisfied that was the case.

117 Accordingly the claim of sex discrimination is dismissed.

Direct Discrimination – Carer’s Responsibility

118 Ms Spencer also claims that the Respondent’s decision constitutes direct discrimination as defined by s 49T(1)(a) on the grounds of carer’s responsibility.

119 A complaint of “direct discrimination” on this ground is identical to a complaint of sex discrimination where, as in this case, the asserted characteristic is carer’s responsibility. The only material difference is the comparator employed to determine differential treatment. For the reasons as set out above, we are not satisfied that one of the reasons Mr McInerney made his decision was because Ms Spencer had responsibilities as a carer. Therefore this claim must fail also.

Victimisation

120 Ms Spencer complains that the Respondent victimised her, contrary to s 50 of the Act, because she had made a complaint of discrimination to the Anti-Discrimination Board. In a letter to the Board dated 13 January 2003, Ms Spencer alleged that the Respondent delayed her return to work for four months because of that complaint.

121 The facts relevant to this complaint can be briefly stated. Ms Spencer ceased work on 18 December 2001 and shortly after had a nervous breakdown. Despite an initial refusal, the Respondent’s worker’s compensation insurer accepted Ms Spencer’s claim for weekly compensation benefits.

122 By August 2002 Ms Spencer had been certified as fit to return to work by her treating doctor, Dr Francis, and a return-to-work plan prepared recommending that Ms Spencer resume duties on 26 August 2002. That plan developed by the Respondent’s rehabilitation provider, CRS restricted the type of work Ms Spencer could undertake. Her work station was not to be located in the unit where she had previously worked. She was not to work directly under or report to Mr McInerney and her performance was not to be assessed throughout the life of the plan.

123 On 7 August 2002 the Respondent was notified that Ms Spencer had lodged a complaint of discrimination. On 15 August 2002 the Respondent advised Ms Spencer that it intended to delay the return to work due to the receipt of that complaint.

124 Julie Reid, who held the position of General Manager, Organisation Development and Learning Unit, was responsible for overseeing Ms Spencer’s return to work. She concedes that she delayed Ms Spencer’s return to work after she received advice of Ms Spencer’s complaint to the Board. On her account, the restrictions mandated by the return to work plan together with the shortage of suitable positions meant that she had found it extremely difficult to find what she described as a “caring environment” in which to place Ms Spencer.

Findings and Conclusions

125 To succeed in her complaint of victimisation Ms Spencer must establish on balance that the Respondent subjected her to a detriment “on the ground” that she had lodged a complaint of discrimination with the Board (s 50(1)). It is agreed that the postponement of Ms Spencer’s return to work constitutes a “detriment”. What is in issue is why the date of her return was pushed back to 11 December 2002.

126 The meaning of the words “on the ground of” is critical to the operation of s 50(1). Section 4A has no application to the operation of s 50. Guidance as to what is meant by these words is to be found in those cases that considered the term in the context of discrimination on substantive grounds before the 1994 amendment to the Act that inserted insert s 4A, took effect. The NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1997, (NSW) Report No 92 at [7.155-7.158] notes that before the 1994 amendment, two approaches were generally followed. The first required a determination of whether the unlawful conduct constitutes a “significant factor” in the decision- making process (see O'Callaghan v Loder [1984] EOC 92-023 at 75,499; Reddrop v Boeringer Ingleheim Pty Ltd [1984] EOC 92-031 at 75,569.) The second required a determination of whether one of the “real or operative” grounds for doing the act was a proscribed ground of discrimination. (See the decision of Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99 at p 106.) More recently in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 43], the following approach was adopted: “it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred”.

127 It is not necessary for Ms Spencer to show that the Respondent, through Ms Reid, intended to subject her to a detriment, or that the decision was motivated by malice. (See Waters v Public Transport Commission (1992) 173 CLR 349 at 359.)

128 The Respondent concedes that the delay amounted to a technical breach of s 50(1) but argues that its liability is limited in scope to the period 26 August to 19 September 2002. In any event, the Respondent maintains that the delay was largely caused by the practical difficulties of finding a suitable position for Ms Spencer.

129 Medical Clearance In its written submissions the Respondent contends that its liability is restricted to the period Ms Spencer was certified fit for work. It contends that Dr Francis certified Ms Spencer unfit for the period after 19 September 2002. It is common ground that sometime before 19 September 2002, Dr Francis reversed his decision that Ms Spencer was fit for work, as he had apparently formed the view that her reaction to the Respondent’s decision to delay her return to work had set back her recovery. That certificate was not tendered in these proceedings nor is it referred to in the statements prepared by Ms Reid and tendered by the Respondent (Exhibit R 4 and R 5). It is referred to in passing by psychiatrist, Barrie Kenny, in his report of 19 September 2002 (Exhibit R 6).

130 Missing from the evidence is any information which might assist us to know when, or if, Dr Francis decided that Ms Spencer was fit for work. We know that Dr Kenny considered her fit with restrictions from 19 September but this helps us little as we do not know when or if that opinion was conveyed to the Respondent. The contention that Dr Francis’ alleged refusal to certify Ms Spencer fit for work for the period 19 September to 12 December, was the main reason the Respondent postponed Ms Spencer’s return, sits uncomfortably with Ms Reid’s testimony that throughout that period she had been making every effort to find a suitable position. In oral evidence, Ms Reid acknowledged that Dr Francis had withdrawn Ms Spencer’s clearance but did not indicate that her search for a suitable position was as a consequence put on hold. The best evidence is that Dr Francis had withdrawn Ms Spencer’s clearance by 19 September and reinstated it at some indeterminate time before 12 December 2002.

131 The parties are at odds over the extent to which Ms Reid made a real and genuine attempt to place Ms Spencer back at work. It is the Respondent’s case that any delay was caused by the nature of Ms Spencer’s work restrictions, the lack of suitable jobs within the organisation, the difficulties accommodating Ms Spencer’s stated preferences and Ms Reid’s commitment to finding a “caring environment”. It is argued for Ms Spencer that the extent of these difficulties was overstated and that in an organisation of the Respondent’s size it is implausible that it would have taken some four months to find a suitable position given Ms Spencer’s considerable skills and experience.

132 On Ms Reid’s own evidence, she (and others within the organisation) considered that it was not in Ms Spencer’s best interests that she return to work while her complaint to the Board was pending. Her evidence is that it was a combination of the shortage of suitable positions and her hope that the complaint could be resolved through mediation that caused the delay.

133 While we accept Ms Reid’s claim that she was not motivated by malice or any ill feeling toward Ms Spencer, nevertheless, as she concedes, it was the combination of the lack of suitable positions together with the difficulties of accommodating Ms Spencer within the organisation while the complaint was on foot, that delayed her return to work. It is apparent that both factors played a significant and operative role. We are not satisfied for the reasons as stated that from 19 September 2002 the Respondent’s hands were effectively tied because of the advice of Ms Spencer’s treating doctor.

134 To use the language of Sivananthan, we are satisfied that the fact that Ms Spencer had lodged a complaint “had a real causative effect in the sense that but for its presence the act complained of [the delay in the return to work from 26 August to 11 December] would not have occurred.

Relief

135 The final issue to be determined is what, if any, orders should be made. Ms Spencer seeks various orders including an award for damages for non-economic loss. In our view, the only order appropriate to make in this case is an order for damages for non-economic loss. (It is common ground that she suffered no economic loss as a result of her delayed returned to work.)

136 We accept Ms Spencer’s evidence that the delay in her return to work caused her additional anxiety and distress. This is not at all surprising. At that time she was in a fragile emotional state. On her evidence, she was geared up for her return, which given her condition at the time would have been difficult enough in itself.

137 As the following often quoted passage from the judgement of Wilcox J in Hall vSheiban (1985) ALR 503 at 543 recognises, the task of determining the appropriate level of damages for non-economic loss in a case of unlawful discrimination is notoriously difficult.

"...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."

138 It is argued for Ms Spencer that an award at the high end of the range is justified. Not surprisingly, the Respondent does not agree and submits that any award should be modest given what it characterises as the technical nature of the breach. Taking account of all circumstances, we believe an award of $10,000 to be appropriate.

Orders

1. The complaint of discrimination on the ground of sex is dismissed.

2. The complaint of discrimination on the ground of carer’s responsibility is dismissed.

3. The complaint of victimisation is substantiated.

4. The Respondent shall within 28 days pay to the applicant the sum of $10,000 by way of compensation for non-economic loss.