St Joseph's Hospital Ltd v Correy (EOD)

[2008] NSWADTAP 4

Appeal Panel - Internal

CITATION:	St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4
PARTIES:	APPELLANT St Joseph's Hospital Ltd RESPONDENT Kathryn Correy
FILE NUMBER:	079030
HEARING DATES:	12 September 2007
SUBMISSIONS CLOSED:	12 September 2007
DATE OF DECISION:	29 January 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Mooney L - Non Judicial Member
CATCHWORDS:	Jones v Dunkel - applicability of rule in - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Correy v St Joseph's Hospital Ltd [2007] NSWADT 104
FILE NUMBER UNDER APPEAL:	061003
DATE OF DECISION UNDER APPEAL:	05/10/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Disability Discrimination Act 1992 (Cth) Industrial Relations Act 1966
CASES CITED:	Attorney General (NSW) v 2UE Sydney Pty Ltd and Others (2006) 236 ALR 385 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Bogie v The University of Western Sydney (1990) EOC 92-313 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 510 Jones v Dunkel (1959) 101 CLR 298 Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 Purvis v New South Wales (2003) 217 CLR 92 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 Weissensteiner v R (1993) 178 CLR 217 Wollongong City Council v Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
REPRESENTATION:	APPELLANT P Newall, barrister RESPONDENT E Brus, barrister
ORDERS:	1. Leave is granted for the appeal to extend to the merits of the Tribunal’s decision but only on the issue of whether the test in section 49T(1)(a) of the Anti-Discrimination Act 1977 has been satisfied. 2. The order that, “The complaint of discrimination on the ground of responsibilities as a carer is substantiated” is set aside. In substitution for that order, an order is made that, “The complaint of discrimination on the ground of responsibilities as a carer is dismissed.” 3. The order that, “The Respondent to pay the Applicant the sum of $26,121.00 within 28 days” is set aside. 4. The victimisation complaint is remitted to the Tribunal (as originally or similarly constituted) to be heard and decided again, in accordance with the following directions: a) the issue for determination is whether the necessary causal connection exists between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant; b) that issue is to be determined in accordance with the Appeal Panel’s decision on the applicability of Jones v Dunkel (1959) 101 CLR 298 and R v Weissensteiner (1993) 178 CLR 217; c) if the Tribunal finds that the relevant connection exists, it should then decide, on the basis of the existing evidence, whether the Appellant is entitled to a remedy.

REASONS FOR DECISION

Introduction

1 Ms Correy, an enrolled nurse, went on maternity leave in May 2004. Prior to that she had worked for nine years almost exclusively on night shift in the Palliative Care Unit (PCU) of St Joseph’s Hospital. Ms Correy had taken two periods of maternity leave before taking leave in 2004 and had returned to work in the PCU on both occasions. When she was due to return from leave on the third occasion, she requested that she be rostered back in the PCU on night shift but that her hours be reduced from 24 to 16 per week. The Hospital initially agreed to her requests, however in mid May 2005 she was told that she had been rostered to work in one of the three other units of the Hospital. She met with representatives from the Hospital in June 2005 and was told that her position in the PCU had been filled by a person who was working full-time. Ms Correy made known her wish to return to PCU and, in a later conversation, said that there was ‘no way’ should could work in the Aged Care Psychiatry Unit because she had experienced domestic violence and would find it distressing to work in a locked ward.

2 By letter dated 16 June 2005, Ms Correy was advised that on her return her first roster period would involve working eight shifts in the Aged Care Assessment and Rehabilitation Unit and two in the Aged Care Psychiatry Unit. Ms Correy said again that it would be distressing for her to work in Aged Care Psychiatry. The roster for the next period, which she received on 27 July 2005, was for her to work nine of the ten shifts in Aged Care Psychiatry. Ms Correy did not go back to work and complained that the Hospital’s refusal to return her to what she regarded as her previous position constituted direct discrimination on the ground of carer’s responsibilities and sex in breach of the Anti-Discrimination Act 1977 (AD Act). She later complained that the Hospital had victimised her for complaining: AD Act, section 50.

3 The Tribunal found in favour of Ms Correy in relation to the complaint of discrimination on the ground of carer’s responsibilities and in relation to the victimisation complaint and awarded her $26,121.00 for economic loss. The Tribunal dismissed the complaint of sex discrimination and we need say no more about that complaint. The Hospital appealed against the Tribunal’s decision. It is entitled to appeal on a question of law but needs the Appeal Panel’s leave to appeal against the merits of the decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113(2).

4 Our decision is that the Tribunal’s finding that the Hospital discriminated against Ms Correy on the ground of her carer’s responsibilities involves errors of law. The Tribunal erred when it found that the Hospital treated Ms Correy less favourably than it would have treated a person without carer’s responsibilities. In addition, its finding that the Hospital’s decision not to place Ms Correy back in her position in the CPU was “on the ground of” her carer’s responsibilities was in error. As the Tribunal’s decision to award Ms Correy damages was based on its finding that the discrimination complaint had been substantiated, we have also set aside that decision.

5 We have also found, in relation to the victimisation complaint, that the Tribunal erred when it found that the rule in Weissensteiner v R (1993) 178 CLR 217 was applicable. The Tribunal was also in error in applying the rule in Jones v Dunkel (1959) 101 CLR 298 to circumstances where there was an absence of expected evidence from the Hospital. We have remitted the victimisation complaint to the Tribunal to be heard and decided again in accordance with certain directions.

Definition of carer’s responsibilities

6 Responsibilities as a carer. ‘Responsibilities as a carer’ is defined in the AD Act as including a reference to the person’s responsibilities to care for or support any child of the person who is wholly or substantially dependent on the person or in need of care or support: section 49S. The Tribunal found at [120] of its reasons that it was not in issue that Ms Correy had responsibilities as a carer or that the reason she took maternity leave was to care for her infant child. The Tribunal added that, “It goes without saying that that child was both substantially dependent on Ms Correy and in need of her care and support.” According to the Hospital, the Tribunal erred in finding that it could be assumed, without any evidence, that a mother always has responsibilities as a carer and that a child is always substantially dependent on his or her mother.

7 Conclusion. The Tribunal did not find that a mother has, in every case, responsibilities as a carer or that every child is substantially dependent on his or her mother. Rather, there was evidence from Ms Correy that she is married and has six children, including stepchildren, ranging in age from 16 years old to 12 months old. While Ms Correy did not say so expressly, the Tribunal assumed on the basis of that evidence that her children were substantially dependent on her. Mr Gagen from the Hospital acknowledged in cross-examination that Ms Correy’s family circumstances had an impact on the number of hours she could work. There was also evidence that the Tribunal did not refer to in its decision, that when Ms Correy applied to work at the Hospital in 1996, she requested weekend shifts because of family commitments. In those circumstances, it was open for the Tribunal to find that Ms Correy had responsibilities as a carer. Furthermore, the Hospital did not put the question of whether she had carer’s responsibilities in issue. In particular, Ms Correy was not cross-examined on that question. Once conceded, either expressly or impliedly, the Tribunal is entitled to make a findings of fact on the basis of that concession: see eg Comcare v Fiedler [2001] FCA 1810 at [40].

Elements of discrimination on the ground of responsibilities as a carer

8 Section 49V(2) makes it unlawful to discriminate against an employee on the ground of his or her responsibilities as a carer in certain circumstances:

(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.

9 Section 49T defines discrimination on the ground of a person’s responsibilities as a carer in the following way:
(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.
10 Ms Correy did not rely on the provisions of section 49T(1)(b), so-called “indirect” discrimination, nor did she rely on what is known as the “characteristics extension” in section 49T(2). In relation to the complaints of direct discrimination (as defined in section 49T(1)(a)) on the ground of carer’s responsibilities and sex discrimination, the Tribunal said, at [29], that:
To succeed in her complaints which are cast as allegations of ‘direct discrimination’ (subsection 49T(1)(a) and 24(1)(a)), Ms Correy must, on the balance of probabilities, establish, that:

First, that the conduct complained of, fell within one or more of the substantive provisions of the Act, i.e. it represented a change in a term or condition of her employment, denied or limited her access to a benefit or subjected her to a detriment (subsection 49V(2) and 25(2)).

Second, that in the same or similar circumstances, the Hospital would have treated a male EN or an EN without family responsibilities more favourably (differential treatment); and

Third, if so, that one of the reasons for any less favourable treatment was ‘because of’ Ms Correy’s gender or her responsibilities as a carer (causation).

11 The Hospital did not challenge the Tribunal’s characterisation of the elements or requirements that needed to be established. We will refer to these three requirements as the “area” requirement, the “differential treatment” requirement and the “causation” requirement. The area requirement is that to be unlawful, the conduct complained of must come within an area of activity covered by section 49V(2) of the AD Act, including terms and conditions of employment or some other detriment. The differential treatment and causation requirements are the two strands of the definition of direct discrimination on the ground of carer’s responsibilities in section 49T(1)(a).

Onus and standard of proof

12 The Hospital accepted as correct the Tribunal’s statement in relation to the onus and standard of proof at [30]:

In determining whether Ms Correy has established her case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. (See the remarks of Dixon J in Briginshaw v Briginshaw ((1938) 60 CLR 336 at 361-362. See also Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3.)
13 The Hospital maintained that the Tribunal failed to take this approach in reaching some of its findings. So far as they have any arguable basis, we have dealt with these submissions as they arise in context.

Tribunal’s findings on area requirement

14 The first issue for the Tribunal was whether the Hospital’s conduct, in failing to roster Ms Correy in the PCU on her return from maternity leave, constitutes conduct which comes within one of the paragraphs in section 49V(2). In relation to section 49V(2)(a), the Tribunal concluded that the Hospital’s conduct constituted a variation to an implied term of Ms Correy’s contract of employment, namely that the Hospital would comply with all relevant industrial laws. The Tribunal came to that conclusion by the following chain of reasoning:

a) prior to taking maternity leave, Ms Correy had a ‘position’ within the meaning of that word in section 66 of the Industrial Relations Act 1966 ( IR Act ); (In general terms, section 66 makes it an offence not to return an employee to the ‘position’ they held before taking parental leave.)

b) the Hospital’s decision not to return Ms Correy to the PCU constitutes a breach of section 66 of the IR Act;

c) neither the Public Hospitals (Nurses) State Award nor the terms of the Department of Health Circular 99/66, Policy Directive modifies section 66 as it applies to Ms Correy’s situation; and

d) non-compliance with section 66 constitutes a variation to an implied term of the contract of employment.

15 Alternatively, the Tribunal found that the Hospital’s conduct constituted a ‘detriment’ within the meaning of that term in section 49V(2)(d). While the Tribunal found that the Hospital’s decision did not affect Ms Correy’s wages or other entitlements, it found that it nevertheless constituted a loss in terms of job satisfaction and certainty of rostering arrangements. Given that finding, the Tribunal said it was unnecessary to determine whether the Hospital’s conduct also constituted a denial or limitation of a benefit associated with employment under section 49V(2)(b).

Grounds of appeal on area requirement

16 Summary. The Hospital submitted that the Tribunal had erred in relation to each of the factual and legal findings summarised above. The Hospital said:

a) the Tribunal had no jurisdiction to make a finding as to whether there had been a breach of section 66 IR Act ; and or

b) Ms Correy did not have a position in the PCU within the meaning of that term in section 66 of the IR Act; and or

c) the Public Hospitals (Nurses) State Award and or the terms of the Department of Health Circular 99/66, Policy Directive modify section 66 as it applies to Ms Correy’s situation; and or

d) it was not an implied term of Ms Correy’s contract of employment that the Hospital would comply with all relevant industrial laws; and or

e) the Hospital’s conduct did not constitute a ‘detriment’ under section 49V(2)(d).

17 Tribunal’s jurisdiction under IR Act. According to the Hospital, the Tribunal exceeded its jurisdiction by finding that there had been a breach of section 66 of the IR Act . The relevant parts of section 66 provide that:
(1) An employee returning to work after a period of parental leave is entitled to be employed in:
(a) the position held by the employee immediately before proceeding on that leave, or

(b) if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave-the position held immediately before commencing that part-time work or less regular casual work, or

(c) if the employee was transferred to a safe job under section 70 before proceeding on maternity leave-the position held immediately before the transfer.

(4) An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.

Maximum penalty: 100 penalty units.

18 The Hospital submitted that the Industrial Court of NSW has power pursuant to section 153 of the IR Act to determine whether an offence has been committed under section 66 but that the Tribunal has no such power. According to the Hospital, the Tribunal is a statutory body charged with certain specific functions under various statutes and none of those statutes give it power to make a declaration in relation to an offence committed under another Act. Since the Tribunal has no inherent jurisdiction to make such a declaration, the Hospital said that the Tribunal acted without jurisdiction.

19 Conclusion. We agree that the Tribunal cannot make a binding determination that an employer has committed an offence under section 66, however we do not understand the Tribunal to have purported to make such a determination. While the Tribunal found that the Hospital’s decision not to return Ms Correy to the PCU constituted a breach of section 66, it did not impose any penalty on the Hospital. Consequently it was not purporting to exercise a function under the IR Act.

20 It is uncontroversial that the relevant legal obligations of an alleged discriminator should be taken into account when interpreting and applying anti-discrimination legislation. In Purvis v New South Wales (2003) 217 CLR 92 at [7] when interpreting the Disability Discrimination Act 1992 (Cth) Gleeson CJ pointed out that it is important to maintain coherence in the law by ensuring that the obligations arising from anti-discrimination legislation are construed having regard to the functions, powers and responsibilities of the alleged discriminator. In particular Gleeson CJ said that:

If there is a reasonable construction of the Act, which avoids a conflict between those responsibilities and the obligations imposed by the Act, then that construction should be preferred. And in the practical application of the Act in an evaluation of the conduct of the first respondent, those responsibilities should be kept in mind.
21 These principles were applied in Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 in relation to a complaint of disability discrimination where the Tribunal said at [44] that the provisions of the AD Act :
. . . cannot be read in isolation from the body of law which governs relations between employers and employees generally, and from those laws which govern the specific employment relationship that is the subject of a particular case. Just as the High Court made it clear in Purvis v NSW (2003) 217 CLR 92 that the precise nature of a school principal’s obligations to a pupil under disability discrimination legislation must be determined in the light of the entire body of law which governs the relationship between a school and its pupils, so too must the precise nature of an employer’s obligations to an employee under disability discrimination legislation be determined by considering the entire body of law which governs that relationship ... The language that is used throughout the Act when the relationship of employer and employee is regulated, such as "terms or conditions of employment", "promotion" and "benefits associated with employment", can only be properly understood when interpreted in the light of the entire body of law which governs the employment relationship.
22 The Court of Appeal has also recognised that it is necessary for the Tribunal, when engaged in the process of statutory interpretation, to interpret other written and unwritten laws: Attorney General (NSW) v 2UE Sydney Pty Ltd and Others (2006) 236 ALR 385 per Spigelman CJ, Hodgson and Ipp JJA agreeing at [30]. While that function is conferred expressly on the Appeal Panel by section 115(1)(b) of the ADT Act , the Court of Appeal found that there was no need for express words to confer on the Tribunal the function of interpreting other relevant written and unwritten laws.

23 The Tribunal considered it necessary when interpreting the AD Act, to express a view as to whether section 66 had been breached. The Tribunal expressed that view in three contexts. The first related to the area requirement, in particular, the question of whether Ms Correy had been discriminated against in relation to the terms or conditions of employment that the Hospital afforded her. The Tribunal found, at [80], that:

If follows that the decision to not return Ms Correy to the PCU constitutes a variation to an implied term of her contract of employment, namely that the Hospital would comply with all relevant industrial laws. For these reasons, in our view, the conduct complained of falls within the scope of section 49V(2)(a) of the Act.
24 The second context in which the Tribunal expressed a view about section 66 relates to the differential treatment requirement. In order to determine whether that requirement had been met the Tribunal identified the circumstances that should be taken into account when comparing the treatment the Hospital afforded to her with the treatment that it would have afforded to a hypothetical comparator. It found that those circumstances included a failure to comply with a statutory obligation to return an employee to his or her previous position following a period of leave.

25 Finally, the Tribunal decided when awarding damages, that Ms Correy had been constructively dismissed because the Hospital had breached an essential term of her contract, namely that it comply with section 66 of the IR Act. To the extent that a breach of section 66 was relevant when interpreting the provisions of the AD Act, the Tribunal did not exceed its jurisdiction by making a finding that section 66 had been breached.

26 Ms Correy did not hold a ‘position’ as defined in section 66. Alternatively, the Hospital submitted that the Tribunal’s finding that there had been a breach of section 66 was factually incorrect. It asserted that Ms Correy’s position prior to taking maternity leave was an enrolled nurse, not an enrolled nurse attached to the PCU. The Hospital did not submit that the Tribunal had misconstrued the meaning of the term “position”, rather that, as a matter of fact, Ms Correy did not have a position attached to the PCU to which she was entitled to return.

27 Conclusion. It is clear from the decision in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 that no error of law arises when the Tribunal makes a finding of fact unless, among other things, there is no evidence to support that finding. In this case the Tribunal found on the basis of the evidence summarised at [66] to [70] that “although the Hospital may not have formally conferred a position upon Ms Correy in the PCU when the employment contract was first formed, it had by its own conduct, effectively created such a position for her over time.” The Hospital did not identify an error of law that the Tribunal made in reaching that conclusion.

28 Effect of Award and Policy Directive. The Hospital also submitted that the Tribunal had erred when it held that the terms of the Public Hospitals (Nurses) State Award, which governed Ms Correy’s employment, did not affect her entitlements when returning to work. The Award restates section 66 but also provided at clause 30(xiv) under the heading “Return for Less than Full Time Hours”, that:

Employees may make application to their employer to return to duty for less than the full time hours they previously worked by taking weekly leave without pay. All such applications are to be considered having regard to the terms of Department of Health Circular No 99/66 dated 30 July 1999, as amended from time to time.
29 The Department of Health Circular No 99/66 headed “Access to Reduced Hours for Staff ... Returning from maternity Leave” and compliance with which is mandatory, relevantly states that:
It is Department of Health Policy that applications from staff ... seeking access to reduced hours following a return from maternity leave should be approved, and that, where possible the reduced hours be available in the person’s substantive position.
30 The Hospital made the point in relation to the Policy Directive that Ms Correy had never been formally appointed to a position in the PCU and consequently that was not her ‘substantive position’. As we have said, the Tribunal decided at [71] that although the Hospital may not have formally conferred a position upon Ms Correy in the PCU when the employment contract was first formed, it had created such a position for her over time. This was a finding of fact. The Hospital did not identify an error of law in the process by which the Tribunal came to that conclusion.

31 Conclusion. The Tribunal considered the effect of the Award and the Policy Directive at [73] to [79] and concluded that neither modified the obligation in section 66 of the IR Act. In the Tribunal’s view, the relevant provisions of the Award relate to full-time employees who apply to work reduced hours on returning from maternity leave. That was not Ms Correy’s situation because she was already working part-time when she went on maternity leave. In relation to the Policy Directive, the Tribunal found at [78] that Ms Correy’s request to reduce her hours was not the reason the Hospital refused to return her to that position. These were findings of fact supported by the evidence and no error of law has been made.

32 Not an implied term of contract to comply with industrial laws. Having found that the Hospital had breached section 66 of the IR Act, the Tribunal concluded that the decision not to return Ms Correy to the PCU constituted a variation to an implied term of her contract of employment, namely that the Hospital would comply with all relevant industrial laws. The Hospital said that this proposition is fundamentally wrong in law and relied on the High Court’s decision in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 510 at 420. That case is authority for the proposition that damages cannot be obtained for breach of an award provision unless that provision has been expressly included in the contract of employment or its inclusion can be implied in fact. The Hospital said that the same reasoning applies to a breach of a statutory provision.

33 Conclusion. It is unnecessary to deal with this ground of appeal because the Tribunal’s interpretation of the phrase “terms and conditions of employment” in section 49V(2)(a) was unduly narrow. It is not confined to the terms of an employee’s contract of employment. Rather, that phrase includes all the legal rights given to an employee, and all of the legal obligations on an employer, by express and implied contractual terms, collective agreements, statutes, industrial awards and custom and practice. We adopt the following reasoning for this conclusion set out in Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 at [39] to [41]:

39 It is necessary to determine what is meant by the words "terms or conditions of employment" in section 25(2)(a). Employment relationships are legally complex. Whilst the core of every employment relationship is a contract of employment, it is rare for that contract alone to be the source of all legal rights and obligations possessed by an employer and an employee (see Concut Pty Ltd v Worrell [2000] HCA 64; (2001) 75 ALJR 312 at 315). As Professors McCallum and Pittard indicate: "The sources of legal obligation in an employment relationship in Australia can include express and implied terms under a contract of employment, collective agreements, statutes, industrial awards and even custom and practice" (R McCallum and M Pittard, Australian Labour Law: Cases and materials 3rd edition, Sydney: Butterworths, 1995 at page 15).

40 At common law, the terms of a contract are "the components of obligation assumed by the parties" under, and to, the contract (N Sneddon and M Ellinghaus, Cheshire and Fifoot's law of contract, 7th Australian ed, Sydney: Butterworths 1997 at page 324). There can, of course, be express and implied terms. There are two sub-categories of terms: conditions and warranties. A condition is an essential term (a breach of which justifies termination), whereas a warranty is a non-essential or subsidiary term (see Sneddon and Ellinghaus at page 743). Thus, it appears that the phrase "terms or conditions of employment", as used in section 25(2)(a), should be given its everyday meaning, rather than its technical meaning in contract law, for if these words are to be given their technical legal meaning it does not appear to make a lot of sense to refer, in the alternative, to all of the components of obligation under a contract (the terms), and then only to those components of obligation which are essential (the conditions). This construction is supported by observations made by Lee J in Allders International Pty Limited v Anstee [1986] 5 NSWLR 47 at 55 when considering the breadth of an earlier, and slightly differently worded, form of section 25(2)(a). He stated:

In my view the Tribunal was correct in its finding, the expression "terms and conditions of employment which he affords him" being not restricted to the matter of the terms of contract of employment, but being designed to encompass as well, all those demands and requirements, and benefits and concessions in the actual employment which the employee must comply with or can accept as the case may be.
34 Applying this definition, the allocation of Ms Correy to duties other than those of what the Tribunal found was her ‘substantive position’ was itself conduct relating to the terms and conditions of employment. It was unnecessary for the Tribunal to imply into Ms Correy’s contract of employment an obligation to not breach section 66 of the IR Act . The reasoning concerning section 66 of the IR Act was superfluous to the Tribunal’s view that the conduct in question was within section 49V(2)(a), that is, conduct relating to terms and conditions of employment. The reasoning concerning section 66 of the IR Act was superfluous for another reason: the Tribunal concluded, in the alternative, that the Hospital’s conduct constituted a detriment under section 49V(2)(d). This alternative finding was sufficient for the Hospital’s conduct to come within an area of activity set out in section 49V(2). Accordingly, we do not need to decide this ground of appeal.

35 Finding that there was a “detriment”. The Hospital submitted that the Tribunal erred in its finding that its conduct constituted a detriment to Ms Correy within the meaning of that term in section 49V(2)(d). It agreed with the Tribunal’s characterisation at [82] that the detriment must be ‘real and not trivial’ and must be able to be judged objectively. The Hospital’s argument was that Ms Correy merely said that working in the Aged Care Psychiatry Unit was ‘distressing’ and she did not want to work there on a regular basis. The Hospital said that the fact that the Tribunal accepted this evidence on its face, without any corroboration, means that it does not meet the Briginshaw standard: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In addition, the Hospital said that there was no objective basis for finding that Ms Correy suffered a loss when there was no financial penalty. Finally, the Hospital submitted that as Ms Correy did not do any work in the Aged Care Psychiatry Unit, she did not suffer any detriment as a result.

36 Conclusion. At [87] the Tribunal set out the reasons for its conclusion that the Hospital’s conduct constituted a ‘detriment’ within the meaning of that term in section 49V(2)(d) - incorrectly referred to as 49V(2)(c):

While the Hospital’s decision did not result in a change in Ms Correy’s rate of pay or other entitlements, it nonetheless constituted a ‘loss’ as measured against the intangible benefits of employment, such as job satisfaction and certainty in rostering. That loss in our view is real and not trivial. Objectively viewed, we believe that by placing Ms Correy on a rotational roster the Hospital had subjected her to a ‘detriment’ within the meaning of section 49V(2)(c).
37 The question, as correctly framed by the Tribunal at [83], was whether the roster arrangements subjected Ms Correy to “loss damage or injury” ( Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]) that disadvantaged her as to a matter of substance as distinct from a trivial matter: Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,146. The test is an objective one. Contrary to the Hospital’s submission, the treatment does not have to be detrimental in the sense that it impacts on Ms Correy’s carer’s responsibilities or constitutes a financial loss. The evidence from Ms Correy was that the new arrangements would mean a loss of job satisfaction, a lack of collegiality, a loss of specialist skills and a lack of certainty in rostering arrangements. The Tribunal decided that this was sufficient evidence, even having regard to the Briginshaw standard, to allow it to be comfortably satisfied that it was objectively a detriment for her to be rostered to work outside the PCU. Furthermore, a decision that will take effect in the future can constitute a detriment. There was no error of law in relation to the Tribunal’s reasoning or conclusion on these points.

Tribunal’s findings on differential treatment requirement

38 The differential treatment requirement, as set out in section 49T(1)(a), is that the treatment afforded to Ms Correy is less favourable than the treatment that would have been afforded to a person without carer’s responsibilities in the same or similar circumstances. The Tribunal referred to the High Court’s decision in Purvis v New South Wales (2003) 217 CLR 92 at 160-161 as authority for the proposition that the circumstances attending the treatment given (or to be given) to the person must be identified. The High Court said that those circumstances are “all of the objective features which surround the actual or intended treatment of the (disabled) person by the person referred to in the provision as the ‘discriminator’.” In the absence of an actual employee whose treatment could be validly compared with the treatment given to Ms Correy, the Tribunal correctly relied on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19.

39 The Tribunal compared Ms Correy with a hypothetical male enrolled nurse without carer’s responsibilities. The only relevance of the comparator being male was in relation to the complaint of sex discrimination. The Tribunal assumed that the male enrolled nurse had, with the Hospital’s consent, taken twelve months leave of absence, wished to return to his pre-leave position and had a statutory right to do so. At [99] the Tribunal concluded that the Hospital had treated Ms Correy less favourably than it would have treated such a person because:

In the absence of any evidence that the Hospital routinely failed to comply with its legal obligations we think it more probable that not that the comparator would be returned to their pre-leave position.
Grounds of Appeal on differential treatment requirement

40 Identification of comparator and circumstances. The Hospital submitted both to the Tribunal and the Appeal Panel, that the appropriate comparator was an enrolled nurse who, with the Hospital’s consent, took twelve months’ leave of absence from their employment and wished to return to their pre-leave position and had a statutory and Award right to be given work, where possible in their pre-leave position. This formulation reflected the Hospital’s view that section 66 had no application because Ms Correy’s previous position was not attached to the PCU and that even if section 66 did apply, it had been modified by the operation of the Award and the Policy Directive. The Tribunal had rejected those submissions and it also rejected the Hospital’s formulation of the hypothetical comparator.

41 Conclusion. As the High Court said in Purvis v New South Wales (2003) 217 CLR 92, the first step when applying the differential treatment requirement is to identify the objective features or circumstances attending the treatment given to the person. The Tribunal identified one of those features as being that Ms Correy had a statutory right to return to her job in the PCU. While this appears to be an objective feature, it was not a feature that actually attended the Hospital’s treatment of Ms Correy. The treatment of Ms Correy took place in circumstances where Hospital managers believed she had no such right. The Tribunal was obliged under section 49S(1)(a) to compare Ms Correy’s treatment with that of a hypothetical comparator in “the same circumstances, or in circumstances which are not materially different.” The circumstances identified by the Tribunal were materially different from the circumstances that attended the treatment given to Ms Correy. This was an error. The circumstances attending the treatment of Ms Correy were that the Hospital did not consider that she had a statutory right to return to a position in PCU. She merely had the right to be given work, where possible, in her pre-leave position. In the Hospital’s view, that position was not a position attached to any particular unit in the Hospital.

42 This error means that the merits of the Tribunal’s decision, that the Hospital would not have treated a comparator in the same way as it treated Ms Correy, needs to be reconsidered. As the comparator is a hypothetical person, there is no need for any further evidence to be provided on that issue. Consequently, it is appropriate for the Appeal Panel to determine that issue and we give leave for the appeal to be extended to the merits of the Tribunal’s finding on that issue and will determine the question ourselves.

43 The correct comparator was an enrolled nurse without carer’s responsibilities. The circumstances attending the treatment given to Ms Correy were that she took 12 months leave and wished to return to the same job but the Hospital did not regard her as having a statutory entitlement to return to that job. When one asks how the Hospital would have treated a person without carer’s responsibilities in the same or materially similar circumstances, it is apparent that it wouldmay well have treated that person in the same way that it treated Ms Correy; it cannot be said that the Hospital would necessarily have treated that person more favourably. Consequently, contrary to the Tribunal’s finding, the differential treatment requirement was not met. As that requirement is an essential component of a finding of discrimination, the complaint is not substantiated and should be dismissed. Nevertheless, we go on to consider the remainder of the Hospital’s grounds of appeal in relation to the complaint of discrimination.

Tribunal’s findings on causation requirement

44 The Tribunal was obliged, as it did, to treat the two strands of discrimination (differential treatment and causation) separately. The majority of the High Court in Purvis (Gummow, Hayne and Heydon JJ) made that clear at [231]:

The answer to the question presented by treatment “because of” disability does not determine the separate, comparative, question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?
45 The causation requirement is met as long as one of the reasons for the treatment (whether or not it is the dominant or substantial reason) is the person’s responsibilities as a carer: AD Act , section 4B. At [115], the Tribunal stated the causation requirement as set out by the majority in Purvis v New South Wales (2003) 217 CLR 92 at 163 when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth):

[w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’
46 The AD Act uses the words “on the ground of”, rather than “because of” but no different meaning is intended. The Tribunal made the point at [118] that the absence of any motive or purpose on the part of the Hospital to discriminate against Ms Correy is not fatal to her complaint. The Tribunal then examined the definition of “responsibilities as a carer” in section 49S and said that the reason Ms Correy took maternity leave was to care for her infant child. The Tribunal also said that that provision is a de facto ‘characteristic extension’ and extends the reach of Part 4B which deals with discrimination on the ground of a person’s responsibilities as a carer.

47 Ms Correy did not allege that the Hospital had discriminated against her on the ground of 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: section 49T(2). The Tribunal appeared to be suggesting that section 49S operates as a de facto section 49T(2) because the taking of maternity leave was ‘part and parcel’ of Ms Correy discharging her responsibilities as a carer. The Tribunal said that the taking of leave and those responsibilities were inextricably linked.

48 The Tribunal concluded at [122] that:

Ms Correy’s work history and that of her PCU colleagues makes it clear that as a general rule the Hospital permitted staff to stay in the one ward unless they expressed a preference to move on. Had Ms Correy not been absent throughout 2004 and 2005, the need to fill her ‘roster spot’ and the consequent ‘musical chairs’ scenario that confronted Hospital management in March 2005 would simply not have arisen. It follows, therefore, that there was a causal link between Ms Correy’s responsibilities to care for her infant child and the Hospital’s ultimate decision not to return her to the PCU. That the Hospital’s officers might not have intended that to be the consequence of their actions or have been prejudiced against her because of those responsibilities is, not determinative. Ms Correy’s responsibilities as a carer were nonetheless, in our view, one of the reasons for the decision not to return her to the PCU.
Grounds of Appeal on causation requirement

49 According to the Hospital, the Tribunal erred by treating as irrelevant Ms Correy’s evidence that if she had been offered Friday and Saturday night shifts in the Aged Care Assessment and Rehabilitation Unit that would have satisfied her child care responsibilities. The relevant evidence is at page 38 and page 39 of the transcript of 4 September 2006:

Q. So your reason for not working in aged care rehab was because it was not palliative care?

A. Not my pre-maternity leave position.

Q. Well, just bear with my question if you would be so kind?

A. Okay, yes.

Q. It was not palliative care?

A. Yes.

Q. You’ve indicated to us, while you were unwilling to accept any wards other than palliative care, I understand that, your position was then that you would not accept a shift anywhere but palliative care at this time?

A. Yes.

Q. You accept that you could have worked that shift in aged care rehab, but you chose not to?

A. Yes.

Q. And that remains your position that you would only work in palliative care or not at all, until the time that you ceased being an employee of the hospital?

A. Yes.

Q. And, indeed, it’s on the basis of that position that you adopted, that you would only work in palliative care and not otherwise, that you ceased work for the hospital?

A. Because I wasn’t returned to my pre-maternity leave position.

Q. Because they weren’t offering you shifts in palliative care, you ceased work?

A. Yes.

Q. You understood that there were other shifts offered to you, not in geriatric psych where you had said you didn’t feel comfortable to work, but in other places, and you declined them?

A. Yes.

. . .

If you’d been working Friday to Saturday nightshifts in aged care rehab that would have dealt with your carer’s responsibilities concerns, wouldn’t it?

A. It wasn’t my pre-maternity leave position though.

Q. Yes, I well understand you to say that. My question to you is, had you worked Friday and Saturday night shifts in aged care rehab that would have dealt with your carer’s responsibilities concerns, wouldn’t it?

A. Yes.

50 The Hospital’s submission was that it was not open to the Tribunal to find that evidence to be irrelevant or to disregard its effect. Such a finding was said to constitute an error of law.

51 Conclusion. Contrary to the Hospital’s submission that the Tribunal ignored the evidence set out above, it dealt with it squarely at [32] and [33]:

32 The Hospital argues that Ms Correy’s complaint is miscast, as her insistence that she work in the PCU was, on her admission, unrelated to her responsibilities to care for her children. It points to Ms Correy’s concession that those responsibilities could have been met regardless of which Unit she was rostered to work. Put simply it contends that under the new roster arrangements she would have been just as able (or unable) to meet her responsibilities to her children than had she been returned to the PCU. It argues that the claim, that Ms Correy’s concern was her carer’s responsibilities, was never her ‘actual concern’ but a ‘construction of her lawyers’.

33 This argument in our view is misconceived. While an inability to comply with the offending requirement or condition imposed by the alleged discriminator is an essential ingredient in a complaint of ‘indirect discrimination’, no corresponding element exists where ‘direct discrimination’ is alleged. Under the latter the complainant must establish differential treatment and causation. They are not also required to establish an inability to comply with the offending requirement. This means it is not necessary for Ms Correy to establish that because of the Hospital’s decision not to return her in the PCU she was unable to meet her responsibilities to care for her children.

52 The Tribunal dealt with this evidence by pointing out that it is not necessary for Ms Correy to establish that the Hospital’s conduct meant that she could not fulfil her responsibilities as a carer. The reasons for her conduct are not relevant. The question is what were the reasons for the Hospital’s conduct. No error of law is disclosed.

53 Characteristic extension? The Hospital also submitted that the Tribunal erred when it found at [121] that section 49S operated as a de facto characteristic extension. The Hospital said that there was no statutory basis for such a construction. We agree. There is nothing in section 49S, which defines responsibilities as a carer, to suggest that it extends beyond the grounds set out in that provision: it is limited in its scope to a person having the responsibilities of a carer as defined. Section 49T(2) extends the ground to a characteristic that appertains generally or is generally imputed to persons who have responsibilities as a carer. Ms Correy did not rely on that provision and there is no basis for importing a ‘characteristic extension’ into section 49S. However, it is not apparent that this error affected the Tribunal’s final conclusion on the causation requirement. Rather it appears to have been a passing comment.In doing so the Tribunal erred, and this led it to an erroneous finding as to the ground for the conduct.

54 Test for causation. The Hospital also submitted that the Tribunal erred at [122] when it concluded that there was a causal link between their conduct and Ms Correy’s responsibilities as a carer. In our view, while the Tribunal identified the correct test for determining causation, it did not apply that test. The correct approach, as stated by the majority of the High Court in Purvis at [236], is to ask why Ms Correy was treated in the way that she was treated. Rather than answer that question, the Tribunal concluded that there was a chain of causation between Ms Correy’s responsibilities as a carer and the Hospital’s decision. The Tribunal’s approach is apparent from [122] of the decision where the Tribunal states that:

Had Ms Correy not been absent throughout 2004 and 2005, the need to fill her ‘roster spot’ and the consequent ‘musical chairs’ scenario that confronted Hospital management in March 2005 would simply not have arisen. It follows, therefore, that there was a causal link between Ms Correy’s responsibilities to care for her infant child and the Hospital’s ultimate decision not to return her to the PCU.
55 The chain of causation argument is akin to the “but for” test. That test asks whether “but for” the person’s responsibilities as a carer, they would have been afforded the same treatment. While Gummow, Hayne & Heydon JJ did not refer specifically to that test in Purvis , Gleeson CJ rejected it at [13]. McHugh & Kirby JJ (dissenting in the decision, but not on this point) said at [166] that the “but for” test is no longer the accepted test of causation in the context of anti-discrimination legislation. Regardless of the status of the “but for” test, in our view the Tribunal did not correctly answer the question, “why was Ms Correy treated in the way that she was?” On the basis of the Tribunal’s factual findings, Ms Correy’s responsibilities as a carer was not one of the reasons for the Hospital’s treatment of her. The reason was that she had been absent during 2004 and 2005 on maternity leave. While we agree that Ms Correy’s absence on maternity leave and her responsibilities as a carer were, in the circumstances, closely related, that nexus is not sufficient to satisfy the simple test enunciated by the High Court. The Tribunal’s finding of causation was based on erroneous reasoning. Had it applied the correct reasoning it would have come to the view that carer’s responsibilities was not one of the reasons for the Hospital’s conduct. The Tribunal’s error is another basis for setting aside its decision that the complaint of discrimination on the ground of carer’s responsibilities is substantiated.

Tribunal’s findings on victimisation

56 As well as complaining of discrimination on the ground of her responsibilities as a carer, Ms Correy alleged that the Hospital had victimised her in breach of section 50 of the AD Act. That provision states that:

(1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
57 Ms Correy identified the “detriment” to which she had been subjected as:
(i) the decision to roster her in the Aged Care Psychiatric Unit; and

(ii) the continuing decision not to place her back in the PCU.

58 The Tribunal applied the elements of victimisation as described by the former Equal Opportunity Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808:
Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under sub-section (2) the respondent has a complete answer to the claim if it is shown the allegation of discrimination was not made in good faith.
59 The Tribunal found at [132] and [133] that the two decisions outlined above constituted a “detriment” within the meaning of that term in section 50. The Tribunal then considered whether either of those decisions was made “on the ground of” Ms Correy having done one of the things set out in paragraphs (a) to (d) of section 50(1). The Tribunal found at [147], that:
The history in this matter makes clear that the Hospital’s managers were aware from early March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. She repeatedly made that accusation throughout the protracted negotiations that ensued. She made it abundantly clear to the Hospital that she would not let the issue rest and consistent with the entry made in his diary in mid June, Mr Geoghegan believed she intended to ‘take the matter further’. No doubt the appearance of Ms Correy’s lawyers on the scene escalated the dispute. It is telling that Mr Geoghegan had been instructed to stop negotiating with Ms Correy not long after correspondence was received from them.
60 Although there was no direct evidence that the Hospital rostered Ms Correy in that Unit because she persisted in her complaints of discrimination, the Tribunal found that the evidence as a whole justified such an inference. That evidence was circumstantial. The Tribunal noted that the Hospital did not call any witnesses who might have been expected to provide an explanation for the decision to offer Ms Correy a majority of shifts in the Unit where she had said she found it distressing to work. None of the Hospital’s witnesses could identify who had prepared the July and August rosters. In the absence of evidence from those witnesses, or other witnesses who might reasonably have been expected to have the relevant information, the Tribunal drew on the principle in Jones v Dunkel (1959) 101 CLR 298 that their evidence would not have been of assistance to the Hospital (at [150]).

61 The Tribunal also referred to Weissensteiner v R (1993) 178 CLR 217, a criminal matter, as authority for the proposition that a Tribunal of fact may more readily or comfortably draw conclusions against parties who have particular knowledge but who choose not to give evidence of that knowledge. The Tribunal concluded at [155] to [156] that:

In our view, therefore, the combination of Ms Correy’s evidence of regular rostering in the very ward she had specified she did not wish to work; the proof that the regularity of the rostering was maintained and, on one view, increased after she made her complaint of discrimination; and the absence of the sort of evidence that might have been expected from the management to explain why it took the course it did, leaves Ms Correy’s hypothesis that she was victimised virtually unchallenged.

Having carefully considered all of the evidence we are comfortably satisfied that Ms Correy was rostered to work in Aged Care Psychiatry because she had made and, importantly, persisted in her allegation that the Hospital by its actions had acted unlawfully and discriminated against her. For these reasons we find the complaint of victimisation substantiated.

62 Slip rule. When the Tribunal’s decision was first published, order 3 read: “The complaint of victimisation is dismissed.” The Tribunal applied the “slip rule” in section 87 of the ADT Act to change that order to read: “The complaint of victimisation is substantiated.” The decision was also amended to add the words, “For these reasons we find the complaint of victimisation substantiated” at the end of [156]. No change was made to the amount of damages awarded, namely $26,121.00.

Grounds of Appeal on victimisation complaint

63 Slip rule. The Hospital submitted that the Tribunal erred when it applied the ‘slip rule’ because an inference could not be drawn from the text that the complaint of victimisation was substantiated. Section 87 of the ADT Act states that:

(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.

(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.

(3) Examples of obvious errors in the text of a decision or statement of reasons are where:

(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the decision and the statement of reasons.

(4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceedings to which the decision relates.
64 After the Tribunal handed down its decision, Ms Correy alerted it to the fact that the reasoning in [156] was inconsistent with the order that the complaint of victimisation be dismissed. The Tribunal then made the changes to which we have referred. The Hospital submitted that they were denied the opportunity to make any submission about any changes to the text. If they had been given that opportunity, they would have said that the slip rule is only available to cure inadvertent errors, not to make a new finding.

65 Paragraph 156, without the additional sentence, read as follows:

Having carefully considered all of the evidence we are comfortably satisfied that Ms Correy was rostered to work in Aged Care Psychiatry because she had made and, importantly, persisted in her allegation that the Hospital by its actions had acted unlawfully and discriminated against her.
66 This is a finding that Ms Correy suffered a detriment because she did one of the things in section 50. That finding means that the complaint of victimisation is substantiated. Instead, the Tribunal’s orders stated that the complaint of victimisation is dismissed. This is a case where there is an obvious error, namely an inconsistency between the decision (or orders) and the statement of reasons: ADT Act , section 87(3)(d). The addition of the sentence at the end of [156] was to correct an obvious omission. Having found that there was a causal link between Ms Correy’s allegations of discrimination and being rostered in the Aged Care Psychiatry Unit, it follows that the complaint of victimisation is substantiated. Even if the addition of that sentence were not in accordance with the slip rule, its removal would not affect the Tribunal’s reasoning or decision. Finally, it is not an error of law to fail to consult the parties before applying the slip rule. The rule is intended to quickly correct obvious errors. That is how it was used in this case.

67 No ‘trigger’ for the victimisation. One of the elements of victimisation is that the complainant has done one of the things listed in section 50(1)(a) to (d). According to the Hospital, the rostering arrangements were made before Ms Correy had made a complaint of discrimination.

68 Conclusion. We accept that the rostering decisions occurred before Ms Correy lodged a formal complaint with the Anti-Discrimination Board on 25 August 2005. However, the Tribunal found as a matter of fact, that the Hospital’s managers were aware from early March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. There was evidence that Ms Correy alleged discrimination and victimisation in the meeting on 7 June 2005. There is no need for a formal complaint to have been made in order for the provisions of section 50 to apply.

69 No detriment. According to the Hospital there was no “proper evidence” that Ms Correy suffered a detriment by being asked to work in the Aged Care Psychiatry Unit because while Ms Correy said that the experience would be distressing on a regular basis, she did not say that she could not work in that Unit. Furthermore, Ms Correy did not do any work in the Psychiatric Unit so could not have suffered any detriment.

70 Conclusion. The Tribunal set out some of the evidence on this point at [136] to [138]:

A number of people within the Hospital were aware that Ms Correy had strong objections to working in this Unit. Night manager, Patricia Cosgrove, knew of Ms Correy’s concerns, as did Ms McCarthy whom Ms Correy informed on 7 June 2005. Ms McCarthy had briefed Mr Geoghegan. In a letter to Mr Geoghegan dated 16 June 2005, Ms Correy wrote:
I have previously mentioned to Kathy McCarthy of my concerns about working in a locked ward, as a result of a previous domestic violence circumstance that I have been subjected to. On occasions when I have had to work in this Unit for a shift I have found it extremely distressing and on occasions have been physically ill. It would not be tenable for me to have to work in such an environment on a regular basis.
On 5 July, Ms Correy’s solicitors wrote to Mr Geoghegan and detailed the discussions between the parties and the voluminous correspondence that had been exchanged. They pointed out that due to ‘physical and emotional trauma’ Ms Correy was unable to work in Aged Care Psychiatry on an ‘on-going basis’. They wrote:
The Hospital’s attempts to have our client work in the Aged Care Psychiatry and Neurosciences Unit on an ongoing basis despite her informing you that she had previously suffered serious physical and emotional trauma, which may cause further psychological injury, is a concern in relation to the Hospital’s duty to provide our client with a safe environment of work.
In reply, Mr Geoghegan rejected the accusation that Ms Correy had been discriminated against. He wrote, ‘Ms Correy has rarely been asked to work in the Aged Care Psychiatry and Neurosciences Unit. I will note that to date Ms Correy has not submitted a formal request regarding her objection to working in this area’.
71 The Tribunal also said at [25] that:
Mr Geoghegan said he would usually try to accommodate a request such as that made by Ms Correy not to work in Aged Care Psychiatry. His evidence was that he had no reason to doubt that Ms Correy felt unable to work in that Unit.
72 The Hospital’s argument was that Ms Correy merely said that working in the Aged Care Psychiatry Unit was ‘distressing’ and she did not want to work there on a regular basis. Despite the qualifications expressed in the 5 July letter, it was open to the Tribunal, on the basis of all the evidence, to find that rostering Ms Correy to work in the Aged Care Psychiatry Unit and the continuing decision not to place her back in the PCU constituted a detriment.

73 No causal link. The Hospital also said that there was insufficient evidence to establish a causal link between their conduct in rostering Ms Correy in Aged Care Psychiatry and the fact that she had made a complaint of discrimination. Apart from that submission, the Hospital said that the Tribunal erred by characterising the issue as whether Ms Correy had made out her “hypothesis”. The Hospital also challenged the Tribunal’s articulation and application of the rule in Jones v Dunkel (1959) 101 CLR 298 and the principles in Weissensteiner v R (1959) 101 CLR 298.

74 Evidence of causation. There was evidence that Ms Correy alleged discrimination and victimisation in the meeting on 7 June 2005. On 16 June the Hospital forwarded her a roster in which two of the ten shifts were in the Aged Care Psychiatry Unit. On 5 July 2005 Ms Correy’s solicitors wrote to the Hospital restating Ms Correy’s objection to working in that Unit and alleging discrimination. On 27 July the Hospital provided Ms Correy with the August roster. Nine of the ten shifts in that roster were in the Aged Care Psychiatry Unit. This was the circumstantial evidence which, together with absence of the sort of evidence that might have been expected from the management to explain why it took the course that it did, persuaded the Tribunal that Ms Correy had been victimised. We are not persuaded that the Tribunal made an error of law in relation to its reliance on circumstantial evidence.

75 Hypothesis. The Hospital objected to the Tribunal’s approach of testing Ms Correy’s hypothesis that the reason she was rostered in the Aged Care Psychiatry Unit was because she had alleged that she had been discriminated against. According to the Hospital, as a matter of law, the Tribunal cannot start from a position of a complainant’s hypothesis. Rather, it must start from the position that nothing is established unless proven by evidence.

76 Conclusion. The Tribunal made no assumption about the correctness of Ms Correy’s allegation. It used the term “hypothesis” merely as a way of referring to the allegation, which Ms Correy said, was supported by the circumstantial evidence. The Tribunal made it abundantly clear at [150] that the onus was on Ms Correy to make out her case.

77 Rule in Jones v Dunkel and reference to Weissensteiner v R. The Tribunal is said to have misunderstood and misapplied the rule in Jones v Dunkel (1959) 101 CLR 298 and the decision of Weissensteiner v R (1959) 101 CLR 298. The first case stands for the proposition that in circumstances where a party could be expected to bring evidence of a matter a failure to do so, without explanation, will entitle a tribunal to proceed on the basis that the evidence would not have assisted the party concerned. According to the Tribunal at [152], the second case stands for the proposition that a Tribunal of fact may more readily or comfortably draw conclusions against parties who have particular knowledge but who choose not to give evidence of it. The errors that the Hospital said that the Tribunal made were as follows:

a). assuming at [150] that the inference referred to in Jones v Dunkel operates against the party “with the relevant information” as opposed to against the party “who might have been expected to bring the evidence”;

b). going beyond what the rule in Jones v Dunkel would permit at [153] to [154] by suggesting the kind of evidence the Hospital might have brought;

c). referring to Weissensteiner v R which is a criminal matter with no application to civil proceedings;

d). incorrectly stating the law at [152] by relying on the general principle in Weissensteiner v R and ignoring the qualifications to that principle; and

e). holding that the Hospital had any evidentiary responsibility whatsoever.

78 Conclusion . The first point is a semantic one. There is no material difference in the circumstances of this case between the party “with the relevant information” and the party who “might have been expected to bring the evidence”. As to the remaining points, we agree that there is a material difference between criminal and civil proceedings in relation to the circumstances in which significance can be attributed to the failure of a defendant or a respondent to give certain evidence. In civil proceedings, the rule in Jones v Dunkel applies. The rule is that an inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. That inference is that the evidence, if adduced, would not have assisted the party’s case. The rule is expressed in the following way by Odgers in Uniform Evidence Law , 7th edition, Law Book Co, 2006 at page 176:
“... while it may (depending on all the circumstances) be appropriate to conclude that evidence already adduced by an opponent which might have been contradicted by the uncalled evidence may be more readily accepted, and inferences open on the opponent’s evidence more readily drawn, the failure cannot fill an evidentiary gap in the opponent’s case.”
79 In criminal proceedings the position is different. A defendant in a criminal trial is not required to give evidence and the rule in Jones v Dunkel does not ordinarily apply: Dyers v The Queen (2002) 210 CLR 285 per Gaudron and Hayne JJ at [9]. Weissensteiner v R is a rare exception to this rule. It allows a Jones v Dunkel type inference to be drawn, but only where the evidence that the accused fails to give relates to additional facts that are peculiarly within his or her knowledge. In Azzopardi v The Queen (2001) 205 CLR 50 at [64] the High Court (Gaudron, Gummow, Kirby and Hayne JJ) explained precisely when the reasoning in Jones v Dunkel is available in criminal proceedings:
There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters, which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence.
80 The principle in Weissensteiner v R is considerably narrower than the principle in Jones v Dunkel and does not apply to the facts of this case. Rather than applying to evidence a party might have been expected to bring to contradict evidence already given, it applies only to additional evidence that is peculiarly within the person’s knowledge. In our view, the Tribunal erred when it characterised the rule in Weissensteiner v R as that: “... a tribunal of fact may more readily or comfortably draw conclusions against parties who have particular knowledge but who choose not to give evidence of it”. That formulation of the rule was too broad. The Tribunal also erred when it concluded that that principle “seems applicable in a situation such as this”.

81 The Tribunal correctly applied the rule in Jones v Dunkel at [150] when it decided, that since the Hospital did not call the people who actually prepared the rosters, an inference could be drawn that their evidence would have been of no assistance. In our view that was the limit of the application of the rule in the circumstances of this case. The Tribunal went on at [153] to [154] to express its view as to the kind of evidence that the Hospital did not bring, which it said falls within the rule in Jones v Dunkel:

At the very least, the Hospital (if it were the case that it had made efforts to rotate other staff) might have led evidence that it had taken steps that enabled Ms Correy to at least have some time on her preferred ward. As it is the Hospital’s case that staff are rostered at the convenience of the hospital and that nurses are expected to be able to work on all wards and have no special privileges in relation to any particular work positions, there is no particular reason why it could not have sought volunteers to create a space for Ms Correy to work in palliative care or at least to have avoided having her work in the one ward to which she had such strong objections.

No such evidence of managing of rosters in that way, seeking ‘win-win’ solutions for the staff, was provided. Nor was there any evidence that others were routinely and regularly rotated through wards they did not want to work so that the ‘pain’ was shared equally by staff. If that had been the policy, evidence could have been provided of it. No evidence was provided of any concrete efforts made in respect of the assurances given to Ms Correy that her requests would be accommodated if possible.

82 The Tribunal’s conclusion, at [155] was that:
In our view, therefore, the combination of Ms Correy’s evidence of regular rostering in the very ward she had specified she did not wish to work; the proof that the regularity of the rostering was maintained and, on one view, increased after she made her complaint of discrimination; and the absence of the sort of evidence that might have been expected from the management to explain why it took the course it did, leaves Ms Correy’s hypothesis that she was victimised virtually unchallenged.
83 The absence of a plausible explanation from management as to why Ms Correy was rostered in Aged Care Psychiatry is not a situation where Jones v Dunkel is applicable. Mr Geoghegan gave evidence on that issue and was was available to be cross-examined. The fact that the Tribunal was unimpressed with Mr Geoghegan’s evidence does not mean that it was entitled to apply the rule in Jones v Dunkel . The rule operates to limit an inference from the absence of expected evidence to the inference that such evidence would have been of no assistance. In error, the Tribunal relied on the absence of expected evidence from the Hospital as a basis for its finding against the Hospital. Given the misapplication of the rule in Jones v Dunkel , and the erroneous reliance on Weissensteiner v R , the Tribunal made an error in relation to its finding that the complaint of victimisation had been substantiated. ’s decision that the complaint of victimisation is substantiated, must be set aside. It is not possible to predict whether, had that error not been made, the Tribunal would have come to the same conclusion.

84 The options in these circumstances are either to extend the appeal to the merits and determine the victimisation complaint ourselves, or remit the complaint to the Tribunal to hear and decide again either with or without the hearing of further evidence, in accordance with our directions: ADT Act, section 114(2)(b). The advantage of the first option is that it may reduce any further delay in finalising the complaint. The advantage of the second option is that the Tribunal as originally constituted has heard the evidence and it is in the best position to re-determine the matter. Although the credibility of witnesses was not a significant issue in this case, we consider that the Tribunal at first instance is best placed to redetermine the victimisation complaint.

85 The issue for the Tribunal to determine, based on the existing evidence, is whether the necessary causal connection exists between the triggers in section 50(1)(a) to (d) and the detriment suffered by Ms Correy. In reaching its decision, the Tribunal should ensure that it applies the rule in Jones v Dunkel in the way in which the Appeal Panel has discussed. If the Tribunal finds that the necessary causal connection exists, it must then decide, on the basis of the existing evidence, whether Ms Correy is entitled to any remedy. This is not an opportunity for the parties to relitigate their respective cases. Both parties were legally represented at the Tribunal hearing and they are bound by the way they conducted their respective case at that hearing: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68. We envisage that the Tribunal may wish to determine this issue either ‘on the paper’ after giving the parties an opportunity to file written submissions or, if the parties would prefer, by way of a short oral hearing.

Orders

1. Leave is granted for the appeal to extend to the merits of the Tribunal’s decision but only on the issue of whether the test in section 49T(1)(a) of the Anti-Discrimination Act 1977 has been satisfied.

2. The order that, “The complaint of discrimination on the ground of responsibilities as a carer is substantiated” is set aside. In substitution for that order, an order is made that, “The complaint of discrimination on the ground of responsibilities as a carer is dismissed.”

3. The order that, “The Respondent to pay the Applicant the sum of $26,121.00 within 28 days” is set aside.

4. The victimisation complaint is remitted to the Tribunal (as originally or similarly constituted) to be heard and decided again, in accordance with the following directions:

a) the issue for determination is whether the necessary causal connection exists between any of the matters in section 50(1)(a) to (d) and the detriment suffered by the Appellant;

b) that issue is to be determined in accordance with the Appeal Panel’s decision on the applicability of Jones v Dunkel (1959) 101 CLR 298 and R v Weissensteiner (1993) 178 CLR 217;

c) if the Tribunal finds that the relevant connection exists, it should then decide, on the basis of the existing evidence, whether the Appellant is entitled to a remedy.