Tannock v State of New South Wales

[1999] NSWADT 31

CITATION:	Tannock v State of New South Wales [1999] NSWADT 31
DIVISION:	Equal Opportunity
APPLICANT:	John Kerr Tannock
RESPONDENT:	Hunter Area Health Service
FILE NUMBER:	58 of 1997 and 113 of 1998
HEARING DATES:	10/20/1998; 10/21/1998; 10/22/1998; 10/23/1998; 01/29/1999
SUBMISSIONS CLOSED:	03/30/1999
DATE OF DECISION:	11 May 1999
BEFORE:	C Loukas - Judicial Member M Luger - Member L Mooney - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act 1977
APPLICATION:	-
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: A Moen of Counsel instructed by Geoffrey Edwards & Co Respondent: S Winters of Counsel instructed by Sparke Helmore
ORDERS:	1. Disability discrimination complaint dismissed under s111 Anti-Discrimination Act. 2. Victimisation complaint dismissed under s111 Anti-Discrimination Act

1 Pursuant to s111(1) of the Anti-Discrimination Act1977 (NSW) (Anti-Discrimination Act) , the Tribunal is asked to dismiss the Complainant’s complaints of disability discrimination and victimisation on the basis that both the complaints are misconceived, lacking in substance or for some other reason should be dismissed.

2 This s111 application has been made at a point in the case where the Complainant has called all evidence in relation to liability for both the disability discrimination complaint and the victimisation complaint. Further the Respondent has called a number of their witnesses, interposed for the sake of convenience during the Complainant’s case on liability; including Ms Pearce-Adams, Mr Kedwell, Mr Wheeler and Mr Webb.

3 Additionally, in support of the s111 application the Respondent called Mr Riley, Manager of the Risk Management Unit at the Hunter Area Health Service.

Background
4 The Complainant, Mr Tannock had been employed as a wards person by the Respondent Health Service from 1989 until September 1998.

5 From 1991 to 22 May 1995 the Complainant worked for the Respondent at Belmont Hospital.

6 On 22 May 1995 the Complainant was injured whilst working for the Respondent at Belmont Hospital. The injury was occasioned when an elevator door closed on the Complainant’s head, neck, shoulder and arm.

7 As a result of this injury the Complainant did not work from 23 May 1995 to mid-July 1995. Further as a result of this injury the Complainant was left with a physical disability known as torticollis a condition which involves the sufferer continually holding his head at an abnormal angle.

8 From mid-July 1995 to 19 March 1996 the Complainant worked for the Respondent at Belmont Hospital. From 20 March 1996 to 1 August 1996 the Complainant worked for the Respondent at John Hunter Hospital. The Complainant did not work from 2 August 1996 to 18 August 1996, but continued to be an employee of the Respondent during that period. From 19 August 1996 to 4 September 1996 the Complainant worked for the Respondent at Belmont Hospital. From 5 September 1996 to 1 December 1996 the Complainant was an employee of the Respondent but did not perform any work duties. From 2 December 1996 to 9 October 1997 the Complainant worked for the Respondent at Royal Newcastle Hospital. From 10 October 1997 to 15 September 1998 the Complainant was an employee of the Respondent but did not perform any work duties.

9 On 15 September 1998 the Complainant resigned from employment with the Respondent in conjunction with a commutation settlement of his Workers’ Compensation Court claim.

2. Complainant’s Case
10 As a result of the injury involving the lift the Complainant was unable to work for about 6 weeks. The Complainant returned to work in about July 1995.

11 The Complainant’s case is in accordance with the amended points of claim:


i) From about July 1995 to about March 1996, in the course of his employment at Belmont Hospital, the Complainant was repeatedly subjected to practical jokes, derogatory remarks and offensive written and pictorial material referring to the Complainant’s torticollis. The jokes, remarks and material included the following:

a) Within 2 weeks of his return to work in about July 1995, the Complainant found in his locker cartoon material referring to his torticollis (“Incident 1”).
b) On 23 August 1995 the Complainant found attached to his work locker material identifying the Complainant and referring him as “ The Panadiene Man” . (“Incident 2”).
c) The Complainant found a picture of his head attached to a lift door at Belmont Hospital (“Incident 3”).
d) The Complainant found a photograph of his wife in his work locker with a personally offensive caption referring to the Complainant’s torticollis. (“Incident 4”)
e) The Complainant found his employee identification badge with a caption attached to the badge referring to the Complainant as a “sheltered workshop trainee” (“Incident 5”)
f) In March 1996 the Complainant saw Mr Ian Kedwell, an employee of the Respondent, attach personally offensive material on his work locker. (“Incident 6”)


ii) The Complainant suffered feeling of embarrassment, humiliation and distress as a result of Incidents 1, 2, 3, 4, 5, 6 and other practical jokes, derogatory remarks and offensive written and pictorial material referring to his disfigurement to which he was subjected in the course of his employment at Belmont Hospital between July 1995 and March 1996.

iii) From September 1995 to October 1995 the Complainant required counselling from Dr Frank Hughes as a result of these incidents.

iv) The Complainant reported Incidents 1, 2, 3, 4, 5, and 6 to management employees of the Respondent. The Complainant showed a management employee of the Respondent the material he found attached to his locker in Incident 2 and the material attached to the lift door in Incident 3. The Complainant also had a conversation with the employee, who placed the caption on the badge in Incident 5.

v) During the period from March 1996 to August 1996, when the Complainant worked at the John Hunter Hospital, he was subjected to derogatory remarks and assaultive behaviour in relation to his ongoing physical disability and disfigurement. Incidents where the Complainant was exposed to such behaviour included the following:


a) Mr Warren Behrens, an employee of the Respondent, had a conversation with the Complainant where Mr Behrens said words to the effect of:

“You should not be doing the job you are doing at the John Hunter Hospital because you do not have the experience”. (“Incident 7”)

b) On 1 August 1996 Mr Stephen Griffiths, an employee of the Respondent assaulted the Complainant at the John Hunter Hospital by hitting him in the region of his workplace injury. (“Incident 8”)


vi) The Complainant suffered pain and dizziness as a result of Incident 8, and was unable to work for about 2 weeks.

vii) The Complainant suffered feelings of embarrassment, humiliation and distress as a result of Incidents 7 and 8.

viii) The Complainant reported Incidents 7 and 8 to employees of the Respondent. The Complainant also reported Incident 8 to the Police.

ix) The Complainant received a letter from Mr Kedwell about 3 weeks after Incident 6. The Complainant informed the Respondent that he did not accept Mr Kedwell’s letter as an apology.

x) The day after the Complainant advised the Respondent of this attitude to Mr Kedwell’s letter, Mr Kedwell made an offensive remark to the Complainant. (“Incident 9”)

xi) The Complainant reported Incident 9 to employees of the Respondent.

12 The Complainant’s case continues in relation to the action taken by the Respondent in relation to complaints about conditions of employment:


i) The Respondent took no action in response to Incident 1.

ii) On 23 August 1995 Mr Trevor Cotterill, the Executive Officer of Belmont Hospital, issued a memorandum to Mr Barry Hall, the Manager of Housekeeping Services, in relation to Incident 2. On or about 31 August 1995 the Complainant attended a work meeting with three employees of the Respondent: Mr Warren Reilly, Mr Peter Ray and Ms Jennifer Gardner. These employees of the Respondent proposed the Complainant resolve his concerns about Incident 2 by accepting a transfer to a different workplace. The Complainant continued to work at Belmont Hospital after this meeting. The Respondent took no other action in response to Incident 2.

iii) The Complainant photographed the material in Incident 3 in the presence of a management employee of the Respondent. The management employee reprimanded the Complainant for using his camera in the Hospital.

iv) The Respondent took no action in response to Incidents 4 and 5.

v) The Respondent arranged for the Complainant to be transferred to work at the John Hunter Hospital as a result of Incident 6.

vi) The Respondent took no action in response to Incident 7.

vii) The Respondent arranged for the Complainant to be transferred to work at Belmont Hospital as a result of Incident 8. The Respondent took no further action when the Complainant indicated that Incident 8 had not been resolved to his satisfaction.

viii) The Respondent took no action in response to Incident 9.


13 The Complainant alleges discrimination on the ground of disability in conditions of employment afforded to the Complainant, in that the Complainant’s employment with the Respondent exposed the Complainant to practical jokes, derogatory personal remarks and personally offensive material directed at the Complainant’s disfigurement and disability. This behaviour created a hostile and demeaning atmosphere, which became such a feature of his employment that it amounted to a term or condition of that employment.

14 The Complainant also alleges discrimination on the ground of disability by limiting access to opportunities for promotion, transfer, training and other benefits associated with employment.

15 Further the Complainant alleges that the Respondent is liable for the acts of its employees in discriminating against the Complainant on the grounds of his disability.

16 On the Complainant’s case, the Respondent is liable for these acts of its employees in that:


a) It was an implied condition of employment with the Respondent that employees would not have to tolerate as part of their work environment practical jokes, derogatory personal remarks and the circulation of personally offensive material;

b) the Respondent by implication authorised its employees to subject the Complainant to practical jokes, derogatory remarks and personally offensive written and pictorial material; and

c) the Respondent failed to take all reasonable steps to prevent its employees from contravening the Anti-Discrimination Act.

17 In relation to the victimisation complaint the Complainant alleges in the amended points of claim that the Respondent permitted its employees to subject the Complainant to verbal abuse and offensive gestures on the ground that the Complainant alleged an employee of the Respondent had committed an act which would amount to a contravention of the Anti-Discrimination Act .

3. DISABILITY DISCRIMINATION

Respondent’s Contentions ON S111(1) APPLICATION
18 For the sake of clarity it is important to outline the arguments of both the Respondent and the Complainant at some length.

Disability Discrimination
19 Ms Winters, counsel for the Respondent, referred in oral submissions to:
a) the cardboard cut-out ‘the Panadiene Man’
b) photograph of Complainant’s head on lift
c) Larson cartoon of people with their heads tilted watching television on its side;

as the 3 items which could be said to have some potential reference to Mr Tannock’s disability.

a) the cardboard cut-out: ‘the Panadiene Man’ . Mr Kedwell, the main creator of the ‘Panadiene man’ was a fellow employee and friend. There was some conflicting evidence whenever they had been ‘close friends’.


20 Ms Winters submitted that the cardboard cut-out, could only beconstrued as a joke and could never be construed as having any intention of being malicious or offensive. “A joke between mates”. Further, that the Anti-Discrimination Act does not make jokes unlawful, even if those jokes are based upon race, disability, sex, gender or homosexuality.

21 There is, of course, a fine line and to cross the line to offensive “would either need to be perpetrated by someone who has no sensitivity or is being malicious and has intent to cause harm or hurt or humiliation to the person, who is the butt of the jokes”.

22 In this context Ms Winters referred to the history of joking in the workplace. Ms Winters also referred to the context of the behaviour in the locker room. Mr Tannock, the Complainant, having been identified by many witnesses as being a prankster and a “person who himself went over the boundaries of being amusing and funny and stepped into the field of being crude and offensive in some of his comments to some of his workmates, particularly in relation to their wives and girlfriends”.

23 Ms Winters emphasised that the people Mr Tannock worked with cannot be expected to know that one day he’s okay to joke with and then not, though they all apparently realised there was a change in him over time

b) photograph on lift.


Ms Winters again submitted that this was a joke and in the same short time period when Mr Tannock first came back to work.

c) cartoon of peoples’ heads tilted watching television on its side.


Ms Winters submitted this was funny in context.

24 Joking, Ms Winters emphasised, does not become discrimination unless that joking satisfies the test in s49B Anti-Discrimination Act . The test requires less favourable treatment in the same or similar circumstances that a person without that particular disability would have been subjected to.

Less Favourable Treatment
25 Ms Winters submitted that Mr Tannock wasn’t being treated lessfavourably - he was being treated as one of the crew. The jokes were not on the grounds of his disability. There was a relationship to his disability but the jokes were on the grounds of past practice. For something to be on the ground of disability, it would have to have been a situation of no context of pre-existing joking and sticking items on lockers. Therefore, not on the grounds of disability but rather a continuing pattern of childish inappropriate behaviour: not on the grounds of disability and not less favourable treatment.

Related to Particular Disability
26 Ms Winters submitted that the evidence shows that other employees had different disabilities and they were also the subject of jokes, so it could not be said that because of his particular disability, Mr Tannock was the subject of jokes.eg, Mr Wheeler the ‘Hernia’ Man or Mr Webb poked his finger inhis eye so cut outs of eyeballs were stuck on his locker. There was a well established past practice of joking and it was not limited to disability. The important point Ms Winters emphasised was that Mr Tannock was involved in this ‘boys culture’, though when Mr Tannock came back to work after his injury, he had changed.

Objective Test
27 Ms Winters submitted on this aspect that one cannot say Mr Tannock found it offensive, therefore it was offensive. The test is whether or not a reasonable person in the context of the past behaviour in the locker room would be likely to be offended by these materials. And a reasonable person who had participated in such conduct in the past, would not have found the items offensive.

28 Ms Winters referred to IW v The City of Perth 146 ALR 696 at p. 743:

where Justice Kirby referred to the test for the establishment of the relevant discrimination as being “not subjective but objective”. Ms Winters submitted in conclusion on this point that these 3 items viewed objectively are not disability discrimination.

4. Disability Discrimination Complainant’s Response
29 The Complainants counsel Ms Moen:

1. Posited a 3 part test


a) did the Complainant have a disability?

b) was there discrimination on the grounds of that disability in accordance with the Act?

c) did that discrimination occur in employment within the provisions of the Act?

30 Further Ms Moen submitted that:

a) disability clearly met
b) less favourable treatment was met (referring in particular to Mr Kedwell’s evidence and also to grievance procedures). Additionally the Complainant’s submissions referred to a transfer to ‘Belmont workplace’

On the grounds of disability was met (referring in particular to Mr Kedwell’s evidence and the Complainants evidence). Ms Moen submitted that an inference could be drawn that the “Respondent’s agents reaction to the Complainant’s predicament was peculiar to the Complainant and would not have occurred but for the fact that the Complainant had his particular disability”

c) Met:

* material on lockers was pervasive and inescapable and therefore a condition of employment
* Respondent denied Complainant access to benefits associated with employment - quiet enjoyment.
* the Respondent has allowed the Complainant to be subjected to detriment by fellow employees


2. Referred to the conflicting evidence whether the Complainant was at any time “close friends” with persons engaging in the offensive behaviour. Ms Moen referred in particular to the Complainant’s evidence that he “never found the behaviour to which he was daily subjected in anyway an amusing joke”.

3. Disputed that the material was funny, judged on any objective standard.

4. Submitted that there is no evidence that prior to the Complainant’s injury in May 1995, he was subjected to treatment, in any way resembling the ‘daily harassment’ he described in the Belmont workplace after that date.

5. Submitted that there is clear evidence the matters alleged occurred on the grounds of the Complainant’s disability rather than unrelated grounds. Further submitted that the Complainant’s complaints about harassment were not taken seriously by management.

6. Referred to the case of IW v City of Perth 146 ALR 696 and submitted that the case does not assist the Respondent’s arguments but rather that the ‘provisions of the Anti-Discrimination Act should as far as possible be given a construction that would eliminate discrimination on the ground of impairment’ and emphasised the “but for” test for discrimination.

5. Disability Discrimination

Respondent’s Further Response
31 The Respondent’s Counsel, Ms Winters submitted:

1. The Tribunal has no charter to consider allegations which cannot constitute an allegation of disability discrimination. The Tribunal should focus its attention upon the 3 identified incidents to consider whether they satisfy the definition of discrimination in s49B(1)(a) of the Anti-Discrimination Act .

2. The Complainant has misconstrued the test in s49B(1)(a); the Respondent submits the test is as follows:

1st stage: Whether or not disability - not disputed
2nd stage: Determine whether alleged conduct “on the ground of” the Complainant’s disability. If so;
3rd stage: Consider whether the Respondent treated

Complainant less favourably than Respondents treats or would treat person who does not have that disability. Here, the treatment accorded to other users of the change room without Complainants disability allows direct comparison.


3. Despite the Complainant’s denials the evidence discloses that his conduct and the conduct of other employees before the injury involved practical jokes and comments intended to be humorous.

32 Ms Winters referred to the following examples of Mr Tannock’s behaviour:

Exhibit 30 Mr Kedwell’s affidavit, paragraphs 13-18
References to Mr Tannock being a practical joker and someone who made jokes about people’s looks and disabilities. He would also make sexual references about Mr Kedwell’s wife. Further, it was common practice for wardsmen to place cartoons and signs on each other’s lockers. Mr Tannock sent Mr Kedwell a postcard which said, “I have spent all the money you have given me on a prostitute”. (Exhibit 8).

33 Exhibit 31 Mr Wheeler’s affidavit
“While at Belmont Hospital the Complainant often made crude jokes with myself and other male hospital staff. In 1995, before the Complainant had his neck injury...the Complainant said, “Wheeler, does your wife take it up the ass?””

“It was common practice at Belmont Hospital for the male staff to place items on lockers in the male change room”.

34 Exhibit 32 Mr Webb’s affidavit
* Complainant a joker and ringleader of pranks.
* Complainant made crude sexual references about wives and girlfriends of the male staff, eg “Does your wife take it up the ass?”.
* Common practice for male wardsmen to “joke about by placing cartoons, posters and signs on lockers”.
* “Late April 1995 and a couple of weeks after I started work at Belmont Hospital, I saw the Complainant placing vegemite on locker handles in the male change room. I also recall seeing the Complainant cutting out articles and headlines from newspapers and placing them on the lockers”.

35 Ms Winters further submitted the joking was occurring before the Complainant sustained his injury, so it cannot be said that his disability brought about, or caused the subsequent joking to occur. So it cannot be said as the Complainant says that “the Respondent’s agents reaction to the Complainant’s predicament was peculiar to the Complainant.”

36 Additionally, Ms Winters submitted other employees did not have the Complainant’s disability but had materials placed on their lockers; therefore the Complainant was not treated less favourably than those other employees. Various exhibits were referred to.

37 Ms Winters disputed that this was a “particularly aggressive campaign of such [locker] material targeted at the Complainant. The three particular incidents which might have raised an allegation of disability discrimination cannot be said to have been ‘particularly aggressive”.

38 Ms Winters further disputed the submission that the Complainant was never “one of the boys” as contrary to the weight of the evidence. Similarly, the submission that the Complainant was never close friends with other employees.

39 Ms Winters also emphasised that the Complainant, at the time of the three incidents to be considered by the Tribunal, still had his sense of humour, referring to evidence of Mr Wheeler and Mr Kedwell.

Grievance Procedure
40 On this aspect the Respondent’s Counsel, Ms Winters indicated that there is nothing in the Respondent’s reactions to the complaints made by the Complainant to employees of the Respondent to indicate less favourable treatment on the ground of disability.

Cessation of Work at John Hunter Hospital
41 Ms Winters submitted there is no evidence that the cessation of work at John Hunter Hospital had anything to do with the Complainant’s reporting of the alleged assault on 1 August 1996.

Suspension of duties in September 1996
42 Not less favourable treatment of the Complainant as medical restrictions continued.

Material on Locker so pervasive and inescapable that Amounted to Condition of Complainant’s Employment
43 Ms Winters disputed this as

a) other employees had material placed on their lockers
b) Complainant himself engaged in such conduct

* referring to evidence of Mr Kedwell, Mr Wheeler, Mr Webb and postcard (Exhibit 8).
* There was no employment detriment of the Complainant because as a result of his own conduct, his work colleagues also suffered unwelcome intrusions. Not less favourable.

44 Any psychological problems the Complainant suffered were not due to conduct based upon the ‘Panadiene Man’ cutout, the Larson cartoon or the photo of his head.

Objective Test Not Outrageous
45 A reasonable person would not construe the three items as offensive, particularly when considered in the context of the established pattern of joking behaviour of the employees using the locker room, including the Complainant.

Daily Harassment/ Complainant’s Submission
46 Not supported by any relevant evidence. There is no evidence to suggest that Complainant was subjected to daily harassment, let alone harassment based upon his disability.

Complaints about [Disability] Harassment were not taken seriously by Management/Disputed
47 Memorandum of 23 August 1995 from Mr Cotterill and other action taken were attempts to cease locker room pranks.

48 Complainant cannot claim that his ‘sensibilities’ were offended by the locker room environment up to last relevant date being 31 August 1995, particularly given his own contributions to that environment.

“But For” Test
49 The Complainant’s disability was not the cause of the pranks, merely the topic.

50 In this case the Complainant would have received the same treatment, that is continuing to be included in the locker room joking, regardless of his disability. The nature of the relevant treatment accorded to the Complainant, that is the treatment up to 31 August 1995, was similar to the joking which occurred before his injury, so the most generous of tests of discrimination is not satisfied in this case.

6. Disability Discrimination

Findings
51 1. There are 5 items that have the potential to be considered as disability discrimination:
a) the “Panadiene Man”
b) photograph on lift
c) cartoon of people with heads tilted watching television on its side
d) photograph of Complainant’s wife with caption “I’m looking for a man who can keep a straight head”
e) ‘sheltered workshop trainee’


52 A reference to Scottish origin or other offensive material not related to disability is not within the charter of the Tribunal in this case. The Tribunal must consider whether any of the particular conduct alleged to constitute unlawful discrimination for the purposes of s49B of the Anti-Discrimination Act 1977 (NSW) does have such potential. The Tribunal cannot consider allegations which could not possibly constitute disability discrimination. The Tribunal accepts the Respondent’s submission that the first complaint being one of discrimination on the ground of disability - any allegations that might have been made on some other ground cannot be considered by the Tribunal as only a complaint of disability discrimination has been referred for inquiry.

53 2. Joking per se is not disability discrimination. The Anti- Discrimination Act does not make jokes unlawful even if jokes are based on race, disability, sex, gender or homosexuality. Joking is not discrimination unless it satisfies the test in s49B Anti-Discrimination Act .

54 3. The incidents in this case must be considered within the context of a history of joking in the locker room prior to Mr Tannock’s injury. The Complainant, Mr Tannock, was a joker and prankster prior to his injury. He was also someone who made crude comments. The jokes under consideration in this case were not on the ground of his disability but rather a continuation of past practice - on the ground of past practice. It must be said extremely childish behaviour on the part of the men but not disability discrimination. It was not discrimination on the ground of disability nor was it less favourable treatment.

55 4. The test is an objective test per IW v The City of Perth 146 ALR 696. This case does not meet the test.

56 5. The “But For” test referred to in IW v The City of Perth was emphasised by the Complainant’s counsel. Applying for the “But For” test, the Tribunal finds the Complainant’s disability was not the cause of the pranks; it was the topic. Here the Complainant would have received the same treatment in being included in the locker room joking. The “But For” test for discrimination is not satisfied in this case.

57 6. The evidence disclosed that the Complainant and other employees were, prior to the injury, involved in practical jokes and “humorous” comments in the locker room.

58 The Tribunal accepts the evidence of Mr Kedwell, Mr Wheeler and Mr Webb in this regard. The Tribunal finds that Mr Tannock was not an impressive witness in this regard. He was particularly implausible when being questioned about his pre-injury locker room behaviour.

59 7. There is no evidence to support the contention that the Complainant was treated less favourably in relation to the grievance procedure. There was no less favourable treatment on the ground of disability. In this regard the Tribunal accepted the Respondent’s submissions.

7. Victimisation

Respondent’s Submissions on s111 Application
60 I) In the Respondent’s submission there are only 2 allegations which could be construed as allegations of unlawful conduct in contravention of s50(1)(a). No other part of that section is invoked by the allegations, which appear in the Second President’s Report.

61 II) There are fundamental problems with the proposition that the same incident can be relied upon in support of both a complaint of disability discrimination and a complaint of victimisation.

63 Here, the victimisation complaint is clearly said to be based upon the lodgment of the complaint which occurred on 17 September 1996.

64 III) Allegations of Victimisation
1. The allegation in relation to ostracism is undated.
The allegations at paragraphs 39 and 71 of the affidavit of the Complainant predate discrimination complaint.

2. In relation to the allegation that the Complainant was
victimised by being moved from Belmont District Hospital to Royal Newcastle Hospital, the Respondent submitted that there was no “move” from Belmont to Royal Newcastle Hospital; the Complainant’s employment at the Royal Newcastle Hospital was part of the Respondent’s various attempts to rehabilitate the Complainant back into his original position.
3. Duties at Royal Newcastle Hospital were not withdrawn because of Complainant’s complaint of disability discrimination.


4. Complainant was not victimised in relation to access to telephones.

5. Complainant was not victimised by Respondent by interviewing workmates and filing affidavits.

6. Purchase of tampons was not victimisation. Request for Complainant to help wipe an elderly patient’s bottom was not victimisation.

7/8. Incidents predate complaint and cannot constitute allegation of victimisation following lodgement of the
complaint.


9. Allegation dated December 1996 in the Victimisation Complaint and yet in Mr Tannock’s affidavit, the incident is said to have occurred on 19 January 1996.

January 1996 is 8 months before Complainant lodged his disability discrimination complaint so cannot be victimisation following lodgement of the complaint.

65 IV) Overall the Respondent submits that the victimisation complaint should be dismissed as being misconceived or lacking in substance.

66 “The only allegations in the discrimination complaint which require consideration by the Tribunal are those concerning the cardboard cutout, the photocopy of the Complainant’s head stuck to the lift, the cartoon and the photograph of his wife. No other allegation even comes close to satisfying the definition of discrimination in s49B Anti-Discrimination Act .”

8. Victimisation

Complainant’s Response

Jurisdictional issues in relation to the victimisation complaint:
67 The Complainant’s counsel submitted that:

the Respondent’s written submissions misconstrues the material contained in the second President’s Report. The Complainant’s letter to the President dated 9 March 1998 makes reference to the Anti-Discrimination Act , makes an allegation of victimisation because of complaint, refers to oral representations (not merely the later written complaint) and describes incidents occurring as early as April 1996 several months before the formal written complaint was lodged with the Board in September 1996. The Complainant clearly made statements in that written complaint alleging the Respondent had done an unlawful act under section 50. The jurisdiction of the Board to enquire was then invoked. Details of the acts complained of were ascertainable by the Board in the course of conducting its inquiry: Simplot and Nettlefold (1996) 139 ALR 371. Not all the evidence relevant to those allegations needed to be attached: State Electricity Commission v Rabal [1998] 1 VR 102. The written complaint is not to be treated as a formal pleading. Nothing in the legislative scheme surrounding section 88 of the Act suggests any more onerous a requirement than that the Complainant identify the contraventions in respect of which he brings his complaint. The Complainant is not required to specify sections of the legislation which apply. Nor is he required to link specific allegations to particular sections of the legislation: Clclulla v Curvan-Waller (1996) EOC 92-801. The matters raised by the Complainant in his letter of March, 1998 to the President of the Board clearly on their face invoke three provisions of the relevant section: 50(1)(a), 50(1)(c) and 50(1)(d).

68 The Complainant’s counsel further submitted that:

the Respondent argues that the victimisation complaint is clearly said to be based upon lodgement of the complaint which occurred on 17 September, 1996. On the contrary, it is clear on the face of the document that the Complainant is also referring to actions he took by way of oral representation prior to September, 1996. It is also clear he is referring to detriment suffered in April 1996 prior to that lodgement. In addition, it is clear that the Complainant has himself confused the Tribunal with the Board in his written complaint. This is an example of precisely the problems which arise in treating a Complainant’s personal complaint as a formal pleading.


69 The Complainant’s counsel further disputes that the Complainant intended to limit himself to a complaint under s50(1)(a) and submits that as the Complainant is not a lawyer, he should not be restricted in his choice of ordinary words such as complaint, which also have a strict legal meaning.

70 She further submits that the fact that certain matters are relevant to both the discrimination and victimisation complaints should not preclude the Tribunal considering both.

Evidentiary Issues in Relation to Victimisation Complaint
71 Complainant’s counsel in submission referred to:

i) Evidence before the Tribunal that the Complainant was ostracised by his fellow employees as a result of involving the Anti-Discrimination Board in his complaint about disability discrimination.

ii) In relation to the move to Royal Newcastle Hospital from Belmont Hospital, the Complainant submitted that the evidence is that the Complainant last worked at Belmont Hospital on 4 September 1996 and did not commence work until December 1996 at the Royal Newcastle Hospital. The Complainant further submits that the move was “because of the action taken in relation to the Anti-Discrimination Act ”. The Complainant disputes the Respondent’s argument that Mr Tannock’s employment at the Royal Newcastle Hospital was part of the various attempts to rehabilitate the Complainant back into his original position.

72 Complainant’s counsel submitted that it would be open at this stage for the Tribunal to infer that the Complainant was removed from the Belmont workplace as a result of his actions taken in relation to the Anti-Discrimination Board.

iii) The withdrawal of the Complainant’s duties at the Royal Newcastle Hospital was related to his complaint of disability discrimination against the Respondent. The Respondent’s reasons are inadequate according to the Complainant. According to the Complainant there is “sufficient material of substance which merits an answer by the Respondent on the issue”.

iv) In relation to the denial of access to telephones in 1997, the Complainant disputes that the Respondent’s reference to minutes of meetings is sufficient to dispose of the Complainants case.

v) The Complainant disputes the Respondent’s contention that incidents predating the written complaint of September 1996 should be dismissed.

9. VICTIMISATION

Respondents further response

Jurisdictional Issues
73 i) Authorities cited by the Complainant that a complaint is not to be treated as a formal pleading relate to unrepresented lay Complainants.

ii) Neither of the two incidents which pre-date the lodging of the complaint come within s50(1)(c) or (d) as no suggestion related.

iii) The statutory definitions of unlawful victimisation and unlawful discrimination are so different that no allegation of fact could satisfy both simultaneously.

Evidentiary Issues

I) There is no evidence that the Complainant was “ostracised by his fellow employees as a result of his actions to involve the Anti-Discrimination Board in his complaint about disability discrimination”.

The Complainant did not lodge his complaint until 17 September 1996 and the Complainant alleges he complained at a meeting on 5 March 1996 that “everyone ignores me at work”.

The Respondent’s counsel further emphasised the evidence of Mr Kedwell that the reason fellow employees did not have as much to do with the Complainant some time after his injury was because “he was constantly telling everyone about his injury and the problems he was having”. (Exhibit 30, paragraph 20)

Mr Kedwell also gave evidence the Complainant lost his “sense of humour when word was out that there were legal proceedings”. (page 226, Transcript)


II) The Complainant’s evidence discloses that on 4 September 1996 the Complainant said to Ms Lorraine Pearce-Adams “My neck, head and arm ache all the time”. (Exhibit 1, paragraph 73). Additionally, the Complainant provided a medical certificate on 30 August 1996 changing his restrictions. (Exhibit 39, paragraph 29)

The Respondent further submitted that it would not be open at this stage for the Tribunal to infer that the Complainant was removed from the Belmont workplace as a result of his actions taken in relation to the Anti-Discrimination Board.


10. VICTIMISATION COMPLAINT FINDINGS

Jurisdictional Issues
72 The Tribunal accepts the Complainant’s Counsel submissions in relation to jurisdictional issues. In particular the tribunal finds:


a) the Complainant’s letter to the President 9 March 1998 makes an allegation of victimisation because of complaint, refers to oral representations and describes incidents occurring as early as April 1996 several months before the formal written complaint was lodged in September 1996. The matters raised by the Complainant in his letter of March 1998 to the President of the Broad clearly invoke s50 Anti-Discrimination Act . The written complaint is not a formal pleading.
b) the victimisation complaint is not based solely upon the lodgement of the complaint which occurred on 17 September 1996. The Complainant also refers to oral representations prior to September 1996. The victimisation complaint is not limited to s50 (1)(a).

Additionally:
c) whilst accepting the Respondent’s submission that it may be difficult to imagine a situation where conduct which is alleged to be discrimination can also be victimisation - Nevertheless it is theoretically possible that matters may be relevant to both the discrimination and victimisation complaint. The Tribunal, therefore, may consider both.
Evidentiary Issues
1. The Tribunal finds that there is not sufficient evidence to support the contention that the Complainant was “ostracised by his fellow employees as a result of his actions to involve the Anti-Discrimination Board in his complaint about disability discrimination”. This allegation is contradicted by the Complainant’s own evidence of interactions with other employees of the Respondent. In this regard the Tribunal accepts the Respondent’s submissions.
2. The Tribunal does not infer that the Complainant was moved to Royal Newcastle Hospital from Belmont Hospital “because of the action taken in relation to the Anti-Discrimination Act”. The Tribunal finds that the Complainant’s employment at the Royal Newcastle Hospital was part of the various attempts to rehabilitate the Complainant back into his original position. Particularly in light of Mr Riley’s evidence (Exhibit 39 para 29) that on 30 August 1996 a further certificate was issued by the Complainant’s doctor changing the Complainant’s restrictions.
3. The Tribunal finds that there is not sufficient evidence to support the Complainant’s allegation that his duties at the Royal Newcastle Hospital were withdrawn, because of his complaint of disability discrimination against the Respondent. The evidence of the Respondent’s witness, Mr Riley, is particularly instructive in this regard.
4. The Tribunal finds that there is not sufficient evidence to support the Complainant’s contention that denial of access to telephones was the result of ‘victimisation’.
5. It is not ‘victimisation’ for the Respondent to interview fellow employees and file relevant affidavits. The Tribunal does not find victimisation in this as alleged by the Complainant.
6. The Tribunal finds that there is no evidence to support the Complainant’s contention that purchasing tampons or wiping an elderly patient’s bottom was related to the Complainant’s lodging or mooted lodging of a complaint.


7. The Tribunal finds that there is not sufficient evidence to infer that Mr Diebert’s threat at the garage was related to the Complainant’s oral representations to the Board prior to lodging his formal written complaint.

8. The Tribunal finds that there is insufficient evidence to infer that the assault by Mr Griffiths was in any way related to Mr Tannock’s oral representations to the Board in relation to a disability discrimination complaint prior to lodging the formal written complaint in September 1996.

9. A flow of events is not automatically an act of victimisation just because one event follows another event. Mere knowledge that a person is asserting or has asserted their rights is not sufficient to meet the test for an act of victimisation to be established. The link must be able to be demonstrated . If there is another, more plausible or likely explanation for a certain event, then that version must be preferred: Alone v State Housing Commission (1992) EOC 92-393 at 78, 798-90.

If there is no evidence on the face of the act complained of, apart from the subjective view of the Complainant that one leads to the other, then there is no basis for a complaint of victimisation to the sustained: Herring v Benevolent Society of NSW (1992) EOC 92-408 at 78, 896-7; Hill v University of New England (1990) EOC 92-291 at 77, 951.

Overall in relation to alleged victimisation in this case, the Tribunal finds that the necessary links have not been demonstrated; there is a more plausible or likely explanation for each ‘event’. The subjective view of the Complainant Mr Tannock is not an adequate basis for a complaint of victimisation to be sustained.


11. Section 53 Anti-Discrimination Act
73 The Respondent submitted that had the Tribunal found discrimination on the ground of disability, the Respondent would escape liability under s53 of the Anti-Discrimination Act .

74 In view of the Tribunal’s findings with respect to the disability discrimination complaint, there is no need to address this issue, in any detail.

75 Should the Tribunal be in error in the view that the incidents do not constitute discrimination on the ground of disability - the Tribunal finds that the Respondent is nevertheless not liable under s53 Anti-Discrimination Act . The Respondent did not authorise its employees either expressly or by implication, and took all reasonable steps.

76 In this regard the Tribunal accepts the Respondent’s submissions.

77 The Tribunal notes in particular that the Complainant reported the cardboard cutout to Mr Cotterill on 23 August 1995, and on that day Mr Cotterill issued the memo at Tab 3 of the President’s Report with the instruction that it may be distributed to staff.

78 The memo to Mr Hall (Mr Tannock’s supervisor) from Mr Cotterill, executive officer, stated:

“I am writing to you to ensure that you convey to all staff the need to support all of our colleagues, particularly a colleague on a Rehabilitation Programme. The so-called ‘joke’ that was perpetrated today on Mr Tannock is in very poor taste. It is inappropriate in any work place and does nothing to engender the caring/supportive climate that we all strive for.
I trust the person responsible was not intending to be malicious, however, he/she has demonstrated very poor judgement in this instance. Whoever you are, I believe that you owe Mr Tannock a personal apology for the distress caused to him by your thoughtless behaviour.

Of course, this incident is to be taken seriously and fully investigated by yourself. Please provide me with a full report as soon as practicable.

NB. You may distribute this memo to staff. Please ensure that all staff are made aware of the serious nature of this incident.”


79 At page 106 of the transcript the Complainant is cross-examined in relation to this memo:

Q. And now on the 23rd when you say you saw the cardboard cut-out, Trevor Cotterill came?

A. Yes.

Q. And he on that same day issued a notice to the staff after he’d seen the cardboard cut-out and that’s exactly what you said he could have done isn’t it?

A. Yes, yes.

Q. He gave them all a notice and he put a notice up on the wall?

A. Yes.

Q. Now you don’t say that he could have done anything else at that point in time do you?

A. No.

80 On the Complainant’s own evidence the Respondent also convened meetings with employees who used the locker room and threatened to sack anyone caught sticking things on lockers (para 16 to his affidavit).

81 Despite Mr Cotterill’s memo and Mr Hall’s threat to sack employees, the jokes continued (the photocopy of the Complainant’s head was allegedly stuck to the lift on 29 August and on 30 August the cartoon was allegedly attached to the Complainant’s locker: paras 19, 21). On 31 August 1995 the Complainant complained about the jokes during a rehabilitation meeting (para 23). Mr Riley offered to move the Complainant, but the Complainant said “No. Move the person that is doing this.” Mr Riley is alleged to have then said “We don’t know who is doing this.” On the Complainant’s evidence he was offered the opportunity to be moved, but he refused the offer.

82 Overall, therefore, in summary the Tribunal accepts the Respondent’s submission on s53 Anti-Discrimination Act and
does not accept the Complainant’s submission in relation to s53 Anti-Discrimination Act .


12. S111 ANTI-DISCRIMINATION ACT APPLICATION
83 Any jurisdiction to terminate an action summarily must be employed sparingly, requires the exercise of exceptional caution, and should be exercised only in a clear case: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The need for caution is particularly pressing in a jurisdiction which is not wholly adversarial (the Tribunal has an obligation to inquire and may inform itself) and in which Complainants are frequently unrepresented or disadvantaged because of a lack of English or for some other reason. Reyes-Gonzalez v Sydney Institute of Technology 6 March 1998, Judge Murrell SC, Mr Lau and Mr McDonald OAM.

84 The President of the Human Rights and Equal Opportunity Commission has stated:

Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry. I believe that it may be inappropriate in some cases to relate the criterion of “lack of substance” to the Complainant’s prospects of success at all. It may sometimes be sufficient once the Complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the Respondent. (Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 at 78,900).

85 There is, of course, a balancing act between permitting the Complainant to pursue their case and requiring a Respondent to meet a case which is not sufficiently substantial. Hill v University of New England 1990 EOC 92-291 at 77,951.

86 Here, the Tribunal finds the Complainant’s case is not sufficiently substantial.

87 What occurred did not fit within the statutory framework of “disability discrimination” or “victimisation” even on the broadest interpretation of the relevant sections. There was clearly an unsavoury “boys culture” amongst the men (including the Complainant prior to his injury). What occurred, however, does not come within the relevant statutory framework.

88 This is a sad case. It is clear that the Complainant feels aggrieved by the events that have occurred. It is also clear that Mr Tannock believes that he has been subject to discrimination. The evidence, however, which was presented to the Tribunal is not sufficient to enable the Tribunal to be satisfied on the balance of possibilities that acts of disability discrimination and victimisation against Mr Tannock took place within the parameters of the Anti-Discrimination Act .

89 The beliefs of the Complainant, however sincerely held, do no alone provide sufficient evidence for his claims.

90 For the foregoing reasons, the Tribunal finds that insufficient evidence has been provided to substantiate the complaints and accordingly dismisses the complaints under section 111. The Tribunal does not conclude that the claims ought to be dismissed as frivolous, vexatious or misconceived. Having regard to the Tribunal’s findings on the evidence, the Tribunal has determined that it would not be just to the Respondents to require them to have to go to the expense of leading further evidence by way of reply.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR / ASSOCIATE