Stefanac v Secretary, Department of Family and Community Services

[2018] NSWCATAD 106

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Stefanac v Secretary, Department of Family and Community Services [2018] NSWCATAD 106
Hearing dates:	6 December 2017 and 23 and 24 April 2018
Date of orders:	23 May 2018
Decision date:	23 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President Dr J Goodman-Delahunty, General Member
Decision:	1. The complaint of discrimination is substantiated. 2. The Secretary, Department of Family and Community Services is to pay damages of $20,000 to Ms Stefanac within 28 days of this decision.
Catchwords:	HUMAN RIGHTS – complaint of assumed disability discrimination – where employer directed employee to go on sick leave because it was thought that she had a mental illness – applicability of differential treatment element of direct discrimination to assumed disability complaints
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss 4, 4A, 49A, 49B, 49D, 53(1), 54 and 108
Cases Cited:	Alexander v Home Office [1988] 2 All ER 118 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 O’Callaghan v Loder (1983) 3 NSWLR 89 Purvis v New South Wales [2003] HCA 62; 217 CLR 92 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Texts Cited:	Rees, Rice and Allen, Australian Anti-Discrimination and Equal Opportunity Law, (3rd ed, 2018, The Federation Press)
Category:	Principal judgment
Parties:	Jennifer Stefanac (Applicant) Secretary, Department of Family and Community Services (Respondent)
Representation:	Counsel: M Mando (Applicant) (6 December 2017) A Joseph (Respondent)   Applicant (self-represented) W Jardine (Employee Relations Officer Department of Family and Community Services) (Respondent)
File Number(s):	2017/235989
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. On 2 June 2016 Ms Stefanac was directed to go on sick leave until she could provide a medical certificate stating that she was fit to perform her duties as a child protection caseworker. We will refer to this decision as “the direction”. One of the reasons for making the direction was that a manager was genuinely concerned as to her state of mind. Those concerns arose from conversations Ms Stefanac had with two co-workers. During those conversations Ms Stefanac talked animatedly about various conspiracy theories. After she had been cleared to return to work, Ms Stefanac complained to the President of the Anti-Discrimination Board that the NSW Department of Family and Community Services had discriminated against her on the ground of an assumed mental illness.

2. The Department denies that any of its employees breached the Anti-Discrimination Act 1977 (NSW). Their main argument is that if any employee had made similar remarks or comments to those made by Ms Stefanac to her co-workers, a manager would have given the same direction regardless of any concerns about the person’s mental health. This argument addresses the fact that, to constitute direct disability discrimination the Tribunal must find that the Department treated Ms Stefanac less favourably than it would have treated a person who it did not think had a mental illness.

3. There are fundamental problems with this part of the statutory test for direct disability discrimination when the disability is assumed. In our view, despite these problems, the Department has discriminated against Ms Stefanac. At least one of the reasons for giving the direction was that the manager thought Ms Stefanac had a mental illness. Ms Stefanac has substantiated her complaint and we have ordered the Department to pay her $20,000 for ‘pain and suffering’.

4. There are both factual and legal issues in this case. Below we make relevant findings about what happened, identify the legal tests and the problems with those tests in this case, and then apply the law as we understand it to the factual findings we have made.

Relevant factual findings

Scope of the complaint

5. Ms Stefanac complains that the direction was a breach of the Anti-Discrimination Act. We have addressed this allegation. For the reasons we give below, we have not addressed any other allegation made by Ms Stefanac.

6. As well as complaining about the actual direction, she complained about the manner in which it had been given and subsequent conduct by her managers. For example, she says that she was not given an opportunity to discuss the direction to go on sick leave with her immediate supervisor, Amrit Virdi. She says she was not given a copy of the letter sent to her general practitioner, Dr Samarasinghe, setting out the Department’s concerns for her well-being. After she returned to work on 25 July 2016, she says that no-one met with her to discuss her well-being.

7. Ms Stefanac characterises some of these allegations as a breach of procedural fairness. We do not understand her to be submitting that the Department did any of these things because it was assumed that she had a mental illness. The Tribunal’s role is to determine whether there has been a breach of the Anti-Discrimination Act, not to make findings about the fairness of the Department’s protocols or practices. Consequently we have not addressed these matters.

8. Ms Stefanac complained that she was directed to take sick leave, rather than special leave, from 2 June 2016 to 10 June 2016. The Department subsequently re-credited the sick leave so there is no financial or other loss as a result of that decision. We have not considered it as a discrete allegation of discrimination.

9. Ms Stefanac made various other allegations which fall outside the scope of the complaint. Some of the allegations, including a complaint of victimisation, are not part of the complaint as referred to the Tribunal by the President of the Anti-Discrimination Board. The complaint has not been amended to include a victimisation complaint so the Tribunal has no power to deal with it. Another example of an allegation which was not made in the original complaint was that in September 2016 Ms Stefanac asked for permission to “hot desk” at the Cessnock office for 2 days a week, but she received no reply to that request.

10. Some of the alleged conduct, such as denying Ms Stefanac a transfer to Cessnock, did not occur during the period of the complaint which was from 2 June 2016 to 6 November 2016. The last date on which Ms Stefanac applied for a transfer was November 2014.

11. At the hearing Ms Stefanac withdrew an allegation about an email allegedly sent by Ms Virdi cancelling a meeting.

Content of the conspiracy theory conversations

12. Ms Stefanac had conversations with co-workers, Ms Hodson and Ms Labalaba where she talked about various topics including what are sometimes referred to as conspiracy theories. While she admits to having these conversations, she denies making some of the specific statements attributed to her.

13. On 1 June 2016 Ms Stefanac had a 20 minute conversation with another employee, Ms Hodson. Below we have set out Ms Hodson’s evidence as to what Ms Stefanac said in that conversation.

I am into conspiracy theories.

I believe the Pope of the Catholic Church is a Jesuit.

There is a planet (something 44) that is coming close to earth and it will cause a polar shift.

There is “a Large Hadron Collider” and in Scandinavia it was switched on the other day resulting in shutting down the atmosphere.

There is a government conspiracy to hide this information from us.

Some people question whether the earth is flat.

I believe some stories about aliens being fallen angels.

These fallen angels were kicked out of heaven and some are buried in the Earth’s core, some are walking around on earth and are here to make us confused.

Fallen angels came to earth and bred with humans and that created giants and some of these are between 12 and 30 feet tall and there is proof of this. This happened after a flood.

14. Ms Hodson recalls that Ms Stefanac referred to passages from the Bible when she was talking about fallen angels. She says that she was very concerned by the things Ms Stefanac was saying and that Ms Stefanac’s interest in conspiracy theories gave her the strong impression that she was somewhat disturbed. In those circumstances she was not sure whether Ms Stefanac should be working with vulnerable children and families. Following the conversation with Ms Stefanac, on the same day, Ms Hodson spoke to a manager, Ms Roels. At Ms Roel’s request, Ms Hodson sent her an email setting out the details of what Ms Stefanac had told her. That email is consistent with the evidence set out above.

15. Ms Stefanac denies making certain statements to Ms Hodson including that people question whether the earth is flat. She also denies saying that she was “into conspiracy theories” or that there is a planet coming close to the earth that will cause a polar shift. But she agrees that she referred to “biblical stuff”. She provided a copy of extracts from a website about the book of Genesis, Chapter 6 and from a website about CERN (the European Organisation for Nuclear Research) that operates a particle physics laboratory in Geneva. She denied that she told Ms Hodson that the hadron collider was in Scandinavia.

16. We are satisfied that Ms Stefanac had a conversation with Ms Hodson and that she said the words, or words to the effect of, those recorded by Ms Hodson. The only qualification to this finding is that she did not say that the hadron collider was in Scandinavia. We accept that she said it was in Switzerland or France.

17. We prefer Ms Hodson’s evidence for two main reasons. First, Ms Hodson recorded her recollection of the conversation in an email to Ms Roels on the same day. Ms Stefanac did not provide the Tribunal with any document recording her version of the conversation and we have assumed that she is relying on her memory of what she said. Her memory of events nearly two years later is much less reliable than Ms Hodson’s memory on the day of the conversation.

18. Second, Ms Stefanac denied only particular statements and attempted to justify what she had said by reference to material on the internet, particularly material relating to biblical texts and noncontroversial matters such as the existence of the large hadron collider. Our impression was that Ms Stefanac denied some of these statements to make it appear that the conversation was more rational or defensible than it otherwise may have seemed.

19. Ms Labalaba gave evidence of a similar conversation with Ms Stefanac in April or May 2016. Ms Labalaba alleges that Ms Stefanac said words to the following effect:

Have you heard about the meteorite that is going to hit the earth in November?

It’s a big conspiracy, it will hit the earth and all the world leaders know about it.

20. Ms Labalaba gave evidence that while Ms Stefanac was saying these things she was very animated and appeared excited about what she was saying. She recalls thinking at the time that this was very odd behaviour from a person working in the Department in child protection. At Ms Roels’ request, Ms Labalaba sent her the following email on 2 June 2016:

As requested I would like to inform you of an odd conversation I had a number of weeks ago with a CP caseworker I know as Jenny.

I was out the front of the building having a tea break when I was approached by Jenny who began a general discussion with me.

The conversation was hard to follow and she discussed a number of issues including her having left FACS to work for a political party and then returned again recently.

Another topic of discussion revolved around her belief that the world would soon end and she went into detail about a meteorite heading towards earth and that she indicated was known about by world leaders but being hidden from the ‘rest of us’. Jenny was very animated during this discussion and appeared to be very believing of the conspiracy she was describing. Jenny encouraged me to find out more about it and directed me to websites where she indicated I could find out further information.

When I returned to the office I was somewhat disturbed by the conversation as I felt that Jenny was presenting as fixated on the issues and at the time I mentioned the incident to Janet.

21. Ms Stefanac says she did not recall most of the conversation she had with Ms Labalaba. However she denies that she talked about a meteorite that was going to hit the Earth. She said she was talking about biblical references to meteorites. Ms Labalaba says she does not recall any references to the Bible.

22. We are satisfied that Ms Labalaba had a conversation with Ms Stefanac and that she said all the things recorded in Ms Labalaba’s statement. We prefer Ms Labalaba’s evidence because it was the only conversation she has ever had with Ms Stefanac and she reported it to her manager at that time. Although she was not asked to write the details of the conversation until a few months after it occurred, her recollection is likely to be more reliable than Ms Stefanac’s memory nearly two years later. As with the conversation with Ms Hodson, our impression was that Ms Stefanac denied the statements and emphasised biblical references to make the conversation appear more rational or defensible than it otherwise may have seemed.

The direction

23. The circumstances in which the direction was made and the main reason for the direction are not in dispute. On 2 June 2016 Megan Beckett, Kate Roels and Cathy Croker from Human Resources had a teleconference to seek Ms Croker’s advice. After that meeting, Ms Beckett sent an email to Ms Stefanac:

Dear Jennifer

I have been informed of recent conversations you have had with other staff within the CSC and based on these conversations I have concerns about your well-being. To ensure the agency’s duty of care to yourself, other employees and clients is upheld, I am directing you on Sick Leave, effective immediately.

Due to the reported conversations I will be engaging a case manager from Human Resources to liaise with yourself and your treating practitioner to determine your fitness for work. Human Resources will be able to provide your treating practitioner with the issues to ensure you are appropriately supported. Human Resources will make contact with you directly to obtain the relevant information. If your treating practitioner believes you are well enough to discuss the issues in a formal setting I will arrange a meeting to ensure the issues are dealt with appropriately.

You will remain on sick leave until you are cleared for work and the issues are addressed. If you have any questions please do not hesitate to contact Cathy Croker, HR Manager Western Cluster on [phone number deleted]

Yours sincerely

Megan Beckett

24. The relevant parts of her statement dealing with the background to the direction and the reasons for making the direction, are set out below:

On 2 June 2016 I received an email from Kathryn Roels setting out concerns with statements made by the applicant to colleagues at work. I emailed Human Resources Manager, Cathy Croker saying I did not think Ms Stefanac should be at work given the information I had received, and was seeking to remove her from the workplace, until we had medical advice indicating she was fit for duties.

I formed that view based upon statements she had made to a staff member in relation to the hadron collider shutting down the atmosphere, and the government conspiracy to hide this from the public, ‘fallen angels coming to earth to breed with humans’ and ‘fallen angels walking around earth’ who are there ‘to make us confused’. I was deeply concerned that Ms Stefanac as a caseworker was responsible for assessing the safety, welfare and well-being of children, and given her statements she may not be able to carry out the inherent requirements of the caseworker position.

…

I emailed the applicant on the afternoon of 2 June 2016 directing her to take leave pending an investigation of the situation. I was genuinely concerned as to her state of mind and felt it was best that these matters were not addressed with her until we had the opportunity to obtain information from her doctor as to her well-being.

…

Within the Workforce Safety and Well-being Policy, it is clear that everyone who works for FACS are responsible for taking reasonable care not to put others at risk. I formed the view that the comments by the applicant were such that before she could be allowed to continue to work, some investigation was necessary as to her health to ensure that she was not at risk, nor was anyone that might be working with her, including children.

If any employee were to make similar remarks or comments to those made by the applicant, I believe the response would be the same regardless of there being any concern about the employee’s mental health. I would want any employee who made those remarks removed from the workplace whilst the matter were investigated.

It needs to be remembered that caseworkers in child protection are frequently dealing with parents and children in hostile, emotional and unstable environments. Often parents or carers are unstable, affected by drugs or alcohol, or have their own illnesses that have to be taken into account by caseworkers.

In that environment it is critical that caseworkers are themselves thinking clearly, are not affected by prejudices and are sufficiently alert to be looking for any dangers to children at risk, including ones that may not be apparent at first glance. The applicant’s remarks as reported to me suggested a belief system and thought pattern that could not be reconciled with the core objectives of the department and her role. They were serious enough to require immediate action.

Return to work

25. On 28 June 2016 Ms Stefanac’s, general practitioner, Dr Samarasinghe, expressed the view that Ms Stefanac was fit to resume her usual duties:

I saw Mrs Jennifer Stefanac with regard to issues you raised in your letter. She stated that all the topics she was discussing were related to her leisure time reading and topics of interest she found in the Internet. She denied any strong beliefs attached to the topics of discussion. However, I gathered that she has some degree of anxiety in working at current place of work due to her previous unpleasant experiences.

Based on the information available to me, I believe she is fit to resume her usual duties.

26. Ms Stefanac returned to her duties on 25 July 2016. There was no challenge to Dr Samarasinghe’s evidence that Ms Stefanac was fit for her usual duties. We note that Ms Stefanac denies that engaging in those conversations suggests that she has a mental illness because the information that she discussed is published through numerous sources across the globe. Ms Stefanac says that she was researching all views about these topics and did not display signs of being animated or fixated.

Consideration

Identification of legal elements of direct discrimination

27. The complaint is that the Department, through its employee, directly discriminated against Ms Stefanac on the ground of a perceived or an “assumed” disability. The Anti-Discrimination Act defines “disability” to include “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”: s 4. We will call this kind of disability “mental illness”. Disability is further defined in s 49A to include a disability “that a person is thought to have (whether or not the person in fact has the disability)”: s 49A(c). We will call this an “assumed” disability.

28. The provision of the Anti-Discrimination Act which Ms Stefanac says the Department has breached is s 49D(2)(d). That provision states that:

It is unlawful for an employer to discriminate against a person on the ground of disability by subjecting the employee to any other detriment.

29. What it means “to discriminate” is set out in s 49B. Section 49B(1) defines what is known as “direct” discrimination:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability,

30. The definition of direct discrimination in s 49B(1) has two elements: “differential treatment” and “causation”.

31. Using our terminology, Ms Stefanac’s case was that the Department directly discriminated against her on the ground of an assumed mental illness by subjecting her to a detriment. Ms Beckett was the person who decided to give Ms Stefanac the direction to go on sick leave and the Department did not deny that it is vicariously liable for her acts: Anti-Discrimination Act, s 53(1).

32. The Department did not rely on any defence or exception. We note that compliance with internal policies or industrial awards does not excuse any act of discrimination: s 54. Ms Beckett also expressed the view that Ms Stefanac may not be able to perform the inherent requirements of the job. The Department noted that the “inherent requirements” defence in s 49D(4) applies only to decisions about who should be offered employment and who should be dismissed. It does not apply to any other detriments occurring during the course of employment.

33. The Department submitted that Ms Stefanac has not proven each of the elements of her complaint. Consequently, in broad terms, the issues that need to be determined are:

1. did Ms Beckett subject Ms Stefanac to a detriment when she gave the direction?

2. does the giving of the direction meet the “differential treatment” part of the test for direct discrimination?

3. was at least one of the reasons for giving the direction that Ms Beckett thought Ms Stefanac had a mental illness in accordance with the “causation” part of the test for direct discrimination?

4. if the complaint is substantiated, what remedy, if any, should the Tribunal order?

Did Ms Beckett subject Ms Stefanac to a detriment when she gave the direction?

34. The Department submitted, without a great deal of conviction, that the direction cannot be regarded as subjecting Ms Stefanac to a detriment because she did not suffer any financial loss and the treatment was trivial. In O’Callaghan v Loder (1983) 3 NSWLR 89, Mathews DCJ, when referring to the equivalent provision relating to sex discrimination, held that “detriment” means being placed under a disadvantage in comparison with employees of the opposite sex. Her Honour went on to hold that:

The disadvantage must be a matter of substance; the legislation is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is … essentially a matter of fact to be determined in each individual case.

35. Since that decision, courts and tribunals have also suggested that as well as being placed under a disadvantage, there must be some resulting “loss, damage, or injury”: see, for example, Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44, [40]. In our view a reasonable person would consider that directing a person to leave work on sick leave and not to return until a medical clearance has been given, constitutes a substantial disadvantage. There is no need to prove financial loss. In this case, at a minimum, it resulted in an injury to Ms Stefanac’s feelings. We elaborate on that finding below at [51]-[63].

Does the giving of the direction meet the “differential treatment” element of direct discrimination?

36. The differential treatment part of the test for direct race discrimination was explained by the Appeal Panel of the Administrative Decisions Tribunal in Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [46]:

For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race (in this case the treatment of a non-Aboriginal person) and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same circumstances as the complainant or in circumstances which were not materially different. As Mahoney JA observed in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 when discussing this component of the element of direct discrimination:

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter.

37. Section 49B(1)(a) states that the relevant comparator is “a person who does not have that disability”. In this case, “that disability” is “a disability that a person is thought to have (whether or not the person in fact has the disability)”: s 49A(b). It is not strictly necessary for us to decide whether Ms Stefanac did in fact have a mental illness but we have chosen to make that finding because it affects the application of the differential treatment test. Based on the assessment of Ms Stefanac conducted by Dr Samarasinghe, which we did not understand the Department to be challenging, we find that the discussion of conspiracy theories was not symptomatic of any mental illness as defined in s 4(e).

38. The Department submitted that the relevant comparator is a hypothetical caseworker in child protection who did not suffer from the same (assumed) disability. While that formulation reflects the statutory requirement, the difficulty with that requirement in this case is that Ms Stefanac is not suffering from an assumed disability. It follows that since Ms Stefanac did not actually have the disability that Ms Beckett thought she had, a comparison cannot be made between two individuals, one of whom does not have “that disability”. It does not make sense to compare the way Ms Beckett treated Ms Stefanac with the way she would have treated a person who she did not think had a disability. Clearly she would not have given the direction to the person whom she did not think had a disability. When making the comparison, the circumstances must be the same or not materially different.

39. The Department submitted that, in accordance with the High Court’s decision in Purvis v New South Wales [2003] HCA 62; 217 CLR 92 those circumstances include the conversations about conspiracy theories. The majority of the High Court held that s 5(1) of the Disability Discrimination Act 1992 (Cth) (which is in similar terms to s 49B(1)(a) of the Anti-Discrimination Act) required the Tribunal to identify the circumstances which are “the same …, or ... not materially different” when making the comparison. The relevant question is how a hypothetical comparator would have been treated in those circumstances. Gummow, Hayne and Heydon JJ found at [224] that the circumstances included that a school student acted violently because of an injury he had suffered as a baby.

The circumstances referred to in s 5(1) 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'. It would be artificial to exclude (and there has been no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

40. According to the Department, the comparison should be made between the way Ms Stefanac was treated and the way a hypothetical employee who had the same conversation about conspiracy theories would have been treated. Ms Beckett’s evidence was that, “if any employee had made similar remarks or comments to those made by Ms Stefanac, the response would have been the same regardless of any concerns about their mental health”. In other words, if another employee, who Ms Beckett did not think had a mental illness, had had the same conversations, she would have given that employee the same direction. With respect, that reasoning is not logical when the disability is an assumed mental illness. Inevitably Ms Beckett would have assumed that another employee who had animated conversations about conspiracy theories would also have had a mental illness.

41. The problem in this case is not with the Department’s submissions but with the way the differential treatment test is drafted. Where the disability is an assumed disability, and the person does not actually have that disability, the differential treatment element of direct discrimination does not reveal the true basis for the direction.

42. Despite the problems with the differential treatment part of the test in this case, we will address the Department’s further submission that the objective circumstances when making the comparison include the relevant industrial award and the Department’s policies. The Department relied on policies regarding the safety health and well-being of staff and cl 79.4 of the Crown Employees (Conditions of Employment ) Reviewed Award 2009:

79.4 The Department Head may direct a staff member to take sick leave if they are satisfied that, due to the staff member’s illness, the staff member:

79.4.1 is unable to carry out their duties without distress; or

79.4.2 risks further impairment of their health by reporting for duty; or

79.4.3 is a risk to the health, wellbeing or safety of other staff members, Departmental clients or members of the public.

43. Contrary to the Department’s submission, the objective circumstances do not include industrial awards and policies. If they were included, a respondent would be able to defend a complaint of discrimination by submitting that the conduct was in compliance with a policy or award. There is no exception in the Anti-Discrimination Act for acts done in compliance with such industrial awards or policies and the existence of those documents cannot be used as a basis for excusing action which is in breach of the Act.

Was at least one of the reasons for giving the direction that Ms Beckett thought Ms Stefanac had a mental illness establishing the “causation” part of the test for direct discrimination?

44. To constitute direct disability discrimination, the direction must have been “on the ground of” Ms Stefanac’s assumed disability. The causation element is met when at least one of the reasons for the direction was that Ms Beckett thought Ms Stefanac had a mental illness: s 49B(1)(a). If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the unlawful reason is the dominant or a substantial reason for doing the act: s 4A.

45. In Commissioner of Corrective Services v Aldridge, the Appeal Panel of the Administrative Decisions Tribunal described the causation part of the test for race discrimination in the following terms at [47]:

If the Tribunal had satisfied itself that differential treatment, as we have described it, had occurred, it should then have considered the issue of causation. When considering causation, it is the grounds or the reasons for a respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant.

46. The causation element of direct discrimination was dealt with in Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, where the Court used words such as the ‘true basis’ (per Gleeson CJ at 102), the ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for the treatment.

47. The Department put forward other reasons for giving Ms Stefanac the direction, including allegations that she made highly disparaging comments about managers. Even if we found that the disparaging comments were made and that the direction was made partly because of those comments, it would not make the direction lawful. As long as at least one of the reasons for the direction was that Ms Beckett thought Ms Stefanac had a mental illness, the causation test is satisfied. Assumed mental illness does not have to be the dominant or a substantial reason: s 4A.

48. We are satisfied that one of the true or genuine bases or the real reason for making the direction was that, based on the conspiracy theory conversations, Ms Beckett thought Ms Stefanac had a mental illness. That finding is supported by Ms Beckett’s statement detailing some of the content of the conversations and her evidence that given those conversations she was genuinely concerned about Ms Beckett’s state of mind and her mental health. She said it was important that employees are themselves “thinking clearly” and that Ms Stefanac’s remarks suggest a “belief system and thought pattern that could not be reconciled with the core objectives of the Department”.

49. It follows that the Department has directly discriminated against Ms Stefanac on the ground of assumed mental illness.

Remedies

Overview

50. If the Tribunal finds the complaint substantiated, it may make certain orders: s 108. The remedies Ms Stefanac seeks are: compensation for pain and suffering; a transfer to the Cessnock office of the Department; and an apology. The Department submits that, even if the Tribunal finds that Ms Stefanac has proven her complaint, we should take no further action.

Damages for pain and suffering

51. The Tribunal has power to “order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. The Department submitted that the Tribunal should not make an award of damages for non-economic loss because:

1. Ms Stefanac’s evidence does not support a finding that she suffered any hurt or humiliation;

2. there is no medical evidence suggesting that the direction had any adverse effect on her;

3. there is evidence that Ms Stefanac’s grievances stem from several years of allegedly unfair treatment.

52. After Ms Beckett sent the email to Ms Stefanac on 2 June 2016, Ms Roels spoke to her. She records the conversation as being in the following terms:

I said, “Hi Jennifer, have you been on your emails?

Jennifer said “No”

I said “There is an email from Megan that you need to read urgently”

Jennifer looked somewhat worried so I offered Jennifer to come to my office and read the email in privacy. Jennifer agreed followed me to my office.

I opened up the email and Jennifer read the content.

After reading the email Jennifer laughed and stated ‘that’s great’

I said, Jennifer if you have any questions feel free to call Cathy Croker from HR.

Jennifer said, “Yes, I know Cathy.

Jennifer again laughed and said, “I feel good, I feel listened to. Finally someone is listening to me.’

53. The Department submitted that the fact that Ms Stefanac laughed and said, “that’s great” and “I feel good” suggests that she was not upset by the direction. Ms Stefanac did not give evidence about whether she said those words or what she meant to convey, but in her complaint to the Anti-Discrimination Board she wrote that when she read the email, “I went into shock and disbelief that I was directed to leave the office immediately … “. Ms Roels was not available to give evidence but we admitted her statement subject to weight. We are satisfied that Ms Stefanac did laugh and say the words attributed to her, but we find that her reaction was in response to the shock of the direction rather than because she genuinely thought it was good news.

54. The clinical notes from Dr Samarasinghe are relevant to how Ms Stefanac was feeling in the days and weeks before and after the direction was given. We understand the short hand c/o to mean “complains of”. On 23 May 2016, 10 days before the direction was given, Ms Stefanac saw her general practitioner, Dr Samarasinghe who recorded that:

c/o feel frustrated and unhappy, Tired and lacking energy, Has spoken to union about her grievances, WorkCover meeting in 2 weeks, worried and anxious about them, Trying to come to Cessnock office two days a week for hot desk ...

55. On 6 June 2016, two days after the direction was given, Dr Samarasinghe recorded the following:

Patient c/o her work has stopped her from working stating that she is not safe to work in the workplace. Patient records talking to colleagues about how tiring and frustrating to regularly drive to Sydney for work. She has been speaking to colleagues about her fatigue and previous incidents at workplace. Jennifer stated that she was advised to go on sick leave until she is deemed fit to come back to work. Feels very disappointed. Denied thoughts of self harm or suicide Patient wanted to record a situation with GP. Declined medical certificate when offered. Stated work would contact the GP to discuss her matters. Further added that she will engage trade union with the matter.

56. Two days later, on 8 June 2016 Dr Samarasinghe recorded that Ms Stefanac “stated that workplace was concerned about expressions of religious convictions and stated she was discussing Aboriginal drawings, god, science and pope with peer workers during her break”. Dr Samarasinghe administered the Hamilton Depression Scale. On the same day Doctor S wrote to the Department stating that:

I have assessed Ms Stefanac’s mental health today with Hamilton Depression Scale and Kessler 10 depression assessment tools. In both assessments she scored low risk. She did not report any other symptoms suggestive of Significant Mental Health disorder. I believe she is fit for her usual duties.

57. Dr Samarasinghe saw Ms Stefanac again three weeks later on 28 June 2016 and wrote to the Department again expressing the opinion that she was fit to resume her usual duties. Ms Stefanac returned to work on 25 July 2016. She was placed in a different team supervised by Ms Nadia Ashe. Ms Ashe gave evidence that when she returned to work Ms Stefanac gave no impression of being affected by what had occurred before she went off work in early June 2016. She did not raise the issue with Ms Ashe. We accept Ms Ashe’s evidence that Ms Stefanac did not complain about the direction or give the impression that she was affected by it. Other evidence leads to the opposite conclusion.

58. When Ms Stefanac complained to the Anti-Discrimination Board on 7 November 2016, five months after the direction was given, she said:

I am experiencing isolation, as I feel I cannot really have a conversation with colleagues for fear of anything being used against me. I am cautious to trust anyone in the office as I am unsure who could have had these concerns in the first place … I feel my reputation and relationships with my colleagues, including management, places me in a hostile environment. ‘Concerning conversations’ were never explained in any detail or who informed management of these conversations during the teleconference with PSA, HR and my support person.

59. The evidence demonstrates that the direction and management’s response was not an isolated incident. The Department has had performance and attendance issues with Ms Stefanac for some considerable time. Ms Roel’s provided a chronology with supporting documents going back to November 2011.

59. Just days before the direction was given, Ms Stefanac was feeling “worried and anxious” about a Workcover meeting. Nevertheless, her statement to the Anti-Discrimination Board that she “went into shock and disbelief” when she received the direction is entirely plausible. When she returned to work, she was reluctant to talk about the direction or its effect on her because she felt betrayed by and did not trust her colleagues or managers, and perceived her work environment as hostile. That does not suggest to us that she was unaffected by the direction.

60. Ms Stefanac provided a medical report from Dr Jager, a forensic psychiatrist who examined her on 30 January 2018 at the request of the Department’s workers compensation insurer. Ms Stefanac attached that report to her document entitled Points of Claim and affidavit evidence filed on 3 April 2018. Although that report was not formally admitted into evidence we did not understand the Department to be objecting to Ms Stefanac relying on it. Dr Jager’s diagnosis was that Ms Stefanac has a mixed anxiety/depressive disorder. He expressed the view that:

The predominant event precipitating the current episode involves the District Director emailing her to “get out” when she was having reportedly inappropriate conversations at work. It is that matter and the subsequent chain of events arising from that that still distressed the claimant.

62. Our conclusion from the evidence is that while the mixed anxiety/depressive disorder is not wholly attributable to the direction, the direction materially contributed to Ms Stefanac’s anxiety/depressive disorder.

63. While we acknowledge the difficult of quantifying non-economic loss, an award should not be minimal because, as was said in the British case of Alexander v Home Office [1988] 2 All ER 118 at 122, that would “tend to trivialise or diminish respect for the public policy to which the Act gives effect”. Although there is only one act of discrimination, it was not trivial. Directing an employee to leave work immediately and not to return until cleared by a doctor as mentally fit is an extreme action to take. We consider the degree of damage to be just below the mid-range. In those circumstances a relatively modest sum of $20,000 is appropriate.

Transfer

64. The Tribunal has power “to order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant”: s 108(2)(c). Orders of this kind are sometimes referred to as mandatory injunctions. They require a respondent to take some positive action, such as employing or re-employing a person: Rees, Rice and Allen, Australian Anti-discrimination and Equal Opportunity Law, (3rd ed, 2018, The Federation Press) at 931. The Department submitted that the Tribunal does not have power under this provision to order that Ms Stefanac be transferred to the Cessnock office because:

1. the failure to obtain a transfer is not causally related to the direction and therefore could not be loss or damage said to arise from that direction; and

2. Ms Stefanac has not formally applied for a transfer since November 2014.

65. In our view, Ms Stefanac’s perception that the working environment has been hostile and unsupportive since her return to work, means that a transfer would, to some extent, redress the loss or damage Ms Stefanac has suffered as a result of the direction. However, we are also mindful of the fact that Ms Stefanac has been seeking a transfer since as long ago as 2014. In our view, the main reason for seeking a transfer is not to redress the loss or damage she has suffered as a result of the direction, but for other long standing reasons.

66. Even if a transfer would, in part, redress the loss and damage Ms Stefanac has suffered, the Department submitted that:

1. it would be discriminatory to make such an order when the policy in relation to transfers requires an employee to apply for a transfer and Ms Stefanac has not made such an application since November 2014;

2. the transfer policy requires the Department to assess all applications to transfer against certain objective criteria; and

3. Ms Stefanac is currently receiving compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

67. We do not agree that ordering the Department to transfer Ms Stefanac would discriminate against other employees, at least not unlawfully on any of the grounds set out in the Anti-Discrimination Act. We accept that such an order would not meet the Department’s policy and procedural requirements but that is not necessarily a barrier to implementing such an order.

68. The problem with ordering the Department to transfer Ms Stefanac is that Dr Jager expressed the view in January 2018 that she does not have capacity to undertake her pre-injury employment. She “needs to be treated either by the psychiatrist or the psychologist … Six months treatment ought to be sufficient”. There was no evidence as to whether Ms Stefanac is receiving the recommended treatment or when she may have the capacity to undertake her pre-injury employment. In those circumstances, it would not be practicable to order that she be transferred to another workplace.

Apology

69. The Tribunal has power in s 108(4) to order the Department to publish an apology for giving Ms Stefanac the direction. We do not consider that this is a case where it is appropriate to do so. Ms Beckett and others made assumptions about Ms Stefanac’s mental health which turned out to be incorrect. But there is no suggestion that they did not genuinely think that Ms Beckett had a mental illness. We have ordered the Department to compensate Ms Stefanac for the pain and suffering caused by the direction and there is no further benefit to Ms Stefanac in receiving an apology.

Orders

1. The complaint of discrimination is substantiated.

2. The Secretary, Department of Family and Community Services is to pay damages of $20,000 to Ms Stefanac within 28 days of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 May 2018