Tebb v State of New South Wales

[2021] NSWCATAD 104

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tebb v State of New South Wales [2021] NSWCATAD 104

Hearing dates:

27 - 29 January 2021

Date of orders:

28 April 2021

Decision date:

29 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member
J Goodman-Delahunty, General Member

Decision:

1.   The complaint of discrimination on the grounds of disability and carers’ responsibilities is dismissed.

2.   The complaint of victimisation is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – context - in employment

HUMAN RIGHTS – discrimination – grounds – disability – carers’ responsibilities - causation

HUMAN RIGHTS – victimisation - causation

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404

Bogie v The University of Western Sydney (1990) EOC 92–313

Braiding v Charles Sturt University [2016] NSWCATAD 90

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20

O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023

Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Andrew Tebb (Applicant)
State of New South Wales (respondent)

Representation:

Counsel:
R Graycar (Respondent)

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2018/00366593

Publication restriction:

None

REASONS FOR DECISION

The applicant’s case

1. The Applicant is seeking to have the Tribunal find that the Respondent breached the Anti­Discrimination Act 1977 (the ADA) in relation to claims of his complaints of discrimination and victimisation.

2. He made two complaints. The first is a complaint of direct discrimination on the grounds of:

1. disability (s49(D)(2) of the ADA) and

2. carer’s responsibility (s49V(2) of the ADA)

made on 23 April 2018 (the Discrimination Complaint). The applicant alleges that during the period 5 April 2018 to 23 April 2018, he was discriminated against on these grounds.

3. The second complaint is a complaint of victimisation lodged on 7 June 2018 pursuant to s 50 of the ADA (the Victimisation Complaint). In the Victimisation Complaint, the Applicant alleges that during the period 14 May 2018 to 7 June 2018 he was treated detrimentally because he had lodged the Discrimination Complaint.

Discrimination complaint

4. In the Discrimination Complaint the applicant alleged that the respondent’s conduct contravened s 49D(2)(b) and (d) and 49V(2)(b) and (d). (Initially he said he relied on s 49V(a) and (b) but this was later changed in submissions).

5. He claims that the detriments he suffered were:

1. denial of access to the Flexible Working Agreement which was part of his employment conditions,

2. being required to provide medical certificates for all sick leave contrary to award conditions, and

3. being placed on a PIP to manage his deemed poor attendance and sick leave record, where his sick leave and non-attendance was for the purposes of managing his carer’s responsibilities or due to his illness.

Victimisation complaint

6. In the Victimisation Complaint, the applicant alleges that the respondent subjected him to further detriments after it became aware of the Discrimination Complaint on 8 May 2018. He alleged the respondent’s conduct contravened s 50 of the ADA.

The respondent’s defence

7. The respondent’s defence is summarised below.

Disability discrimination

1. The applicant has provided no evidence of disability, and in particular, no medical evidence in respect of the time covered by the complaint as to any medical condition and how any such condition comes within the meaning of “disability” in the ADA.

2. There is no evidence that the applicant informed the respondent that he had a disability.

3. There is no evidence from which the Tribunal could find or infer that the applicant had been treated less favourably than an employee without the claimed disability would have been treated in the same or not materially different circumstances.

Carer’s responsibility

1. The conduct alleged against the respondent does not come within s 49V(2)(b) or (d) nor is there any evidence on which the Tribunal could find or infer that the conduct was based on the applicant’s responsibilities as a carer.

2. The applicant has not identified a comparator.

Victimisation

1. The respondent denies that the applicant suffered any detriment.

2. There was no change in the applicant’s employment conditions following his complaint.

3. No connection between the meeting of 17 May 2018 with the Registrar and the complaint has been established.

Relevant legislation

8. “Disability” is defined in s4 of the ADA to mean:

“(a)   total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   the malfunction, malformation or disfigurement of a part of a person’s body, or

(d)   a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)   a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

9. Section 49A provides:

“Section 9A Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability—

(a)   that a person has, or

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

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

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

10. 49B provides:

“49B What constitutes discrimination on the ground of disability

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, or

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

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

3. For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A)   For the purposes of, but without limiting, this section, the fact that a person who has a disability—

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability.

1. A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.”

   11. Section 49D provides:

“49D Discrimination against applicants and employees

…

1. It is unlawful for an employer to discriminate against an employee on the ground of disability—

   (a)   in the terms or conditions of employment which the employer affords the employee, or

   (b)   by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

   (c)   by dismissing the employee, or

   (d)   by subjecting the employee to any other detriment.

2. Subsections (1) and (2) do not apply to employment—

   (a)   for the purposes of a private household, or

   (b)   where the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5, or

   (c)   by a private educational authority.

3. Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability—

   (a)   would be unable to carry out the inherent requirements of the particular employment, or

   (b)   would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

4. For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.”

   12. Sections 49S and 49T provide:

“49S Meaning of “responsibilities as a carer”

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

   (a)   any child or step-child of the person (whether or not under the age of 18 years) who is—

   (i)   wholly or substantially dependent on the person, or

   (ii)   in need of care or support, or

   (b)   any child or adult who is in need of care or support and—

   (i)   of whom the person is guardian, or

   (ii)   for whom the person has parental responsibility under a law of the Commonwealth or this State, or

   (iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or

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

   (i)   a spouse or former spouse of the person or of a spouse or former spouse of the person,

   (ii)   a grandchild or step-grandchild of the person or of a spouse or former spouse of the person,

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

   (iv)   a grandparent or step-grandparent of the person or of a spouse or former spouse of the person,

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

2. A reference in this Part to a person’s responsibilities is a reference to responsibilities—

   (a)   that the person has, or

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

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

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

3. In this section—

spouse of a person means—

(a)   a person to whom the person is legally married (including a husband or wife of the person), or

(b)   the de facto partner of a person.

Note—

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

step-child or step-grandchild of a person means—

(a)   a child or grandchild of the spouse or former spouse of the person, or

(b)   a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouse’s former spouse).

1. A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person—

   (a)   includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and

   (b)   includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and

   (c)   in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister.

49T What constitutes discrimination on the ground of a person’s responsibilities as a carer

1. A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s responsibilities as a carer if the perpetrator—

   (a)   on the ground of the aggrieved person having responsibilities as a carer, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities, or

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

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

   13. Section 49V provides:

“49V Discrimination against applicants and employees

…

1. It is unlawful for an employer to discriminate against an employee on the ground of the employee’s responsibilities as a carer—

   (a)   in the terms or conditions of employment that the employer affords the employee, or

   (b)   by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

   (c)   by dismissing the employee, or

   (d)   by subjecting the employee to any other detriment.

2. Subsections (1) and (2) do not apply to employment—

   (a)   for the purposes of a private household, or

   (b)   if the number of persons employed by the employer, disregarding any persons employed within the employer’s private household, does not exceed 5.

3. Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person’s responsibilities as a carer if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer—

   (a)   would be unable to carry out the inherent requirements of the particular employment, or

   (b)   would, in order to carry out those requirements, require arrangements that are not required by persons without those responsibilities as a carer and the making of which would impose an unjustifiable hardship on the employer.

4. For the purposes of subsection (3) (b), a corporation is regarded as the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.”

   14. Section 50 provides:

“50 Victimisation

1. It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

   (a)   brought proceedings against the discriminator or any other person under this Act,

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

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

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

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

2. Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

   15. The following facts are not in dispute. The applicant is 46 years of age. He is employed by the respondent as a full time Grade 1-2 Client Services Officer in Wollongong Local Court. He is employed under a Flexible Working Agreement (FWA). He reports to a team leader, above whom is the Deputy Registrar and the Registrar.

   16. In order to establish his claim of discrimination on the grounds of disability, Mr Tebb must establish on the balance of probabilities that:

   1. he has a disability, and

   2. he was treated less favourably by the respondent on the ground of that disability than it would have treated a person in the same or not materially different circumstances who did not have a disability,

   3. by denying him access to a benefit associated with his employment or by subjecting him to other detriment (s 49D(2)(b) and (d) of the ADA).

   17. In order to establish his claim of discrimination on the ground of carer’s responsibilities, Mr Tebb must establish on the balance of probabilities that:

   1. he has carer’s responsibilities, and

   2. he was treated less favourably by the respondent on the ground of those responsibilities than it would have treated a person in the same or not materially different circumstances who did not have those responsibilities,

   3. by denying him access to a benefit associated with his employment or by subjecting him to other detriment (s 49D(2)(b) and (d) of the ADA).

   18. In order to establish his claim of victimisation, Mr Tebb must establish on the balance of probabilities that the respondent subjected him to a detriment on the ground that he had done any of the things in s 50(1) of the ADA.

   19. Mr Tebb must establish his case on the balance of probabilities (Braiding v Charles Sturt University [2016] NSWCATAD 90 at [34]; Amery v State of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404 at [60]). A mere assertion that discrimination has occurred is not sufficient (Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188 at [20].

Claim of discrimination

Disability

20. Mr Tebb stated that he has suffered chronic gout for over six years which affects his feet and ankles. It is not in dispute that Mr Tebb informed the Registrar, Mr Watson, on 5 April 2018 that he had gout. He also told him that he was starting treatment but his evidence to the Tribunal was this was not the first treatment he had received.

21. Based on the documentary and witness evidence before the Tribunal, we find that prior to 5 April 2018, Mr Tebb was approved to take sick leave supported by a medical certificate on 9 December 2014, and on a number of occasions in 2015 and 2016 where gout was the reason stated on the approval. Mr Watson did not make these approvals as he was not managing Mr Tebb at the time. The evidence of these approvals is contained in a number of documents generated by a human resources system (“the Aurion records”), but while some refer to medical certificates, those certificates are not in evidence.

22. In 2018 Mr Tebb had provided medical certificates in support of claims for sick leave however none of these referred to gout. They only referred to a “medical condition.” He claimed that sick leave on 9 December 2014 was granted on the basis of having gout, however this is not stated on the certificate. Subsequent to the 5 April 2018 meeting with Mr Watson, Mr Tebb provided a medical certificate dated 30 April 2018 certifying Mr Tebb was unable to work for one day attributed to “acute gout”.

23. A letter from his GP was in evidence dated 6 April 2018 which stated that he had been diagnosed with gout and was “undergoing appropriate treatment and prevention.” Under cross examination Mr Tebb at first said he could not recall when he provided this letter to the respondent and then appeared to agree that he did not provide this to the respondent until November 2018, saying he “had no opportunity to do so.” He maintained however that he had seen his GP on 6 April 2018 and the letter was provided to him on that date and not backdated. His GP also subsequently provided a letter dated 26 November 2019 which stated that he “is known to suffer from gout for many years”. He said he believed that the Respondent had other evidence that it knew about his gout prior to this but had not produced it in the proceedings.

24. The respondent accepted that a medically documented diagnosis of gout could amount to a disability under the ADA. It submitted however that for the relevant period, there was no medical evidence that Mr Tebb suffered from any disability, and in particular the gout he claimed to have suffered from for six years. The assertion by the applicant that he suffered from gout, and the available evidence is not sufficient in this case to establish that he had a disability for the purposes of the ADA.

25. Mr Watson was the Registrar of Wollongong Court from 30 January 2017 to 11 February 2019. He gave evidence that Mr Tebb’s primary role as Client Services Officer is to act as a Court Officer, which involves assisting in the operation of court rooms. He also provides a range of clerical and administrative services.

26. Mr Watson’s evidence was that Mr Tebb was absent on 5 occasions in February 2017 either because he or his partner was unwell, but gout was not mentioned to him. In March 2018 he received an “Unplanned Absences report” which was generated automatically and circulated to managers. He noted that Mr Tebb’s sick leave record showed 5.82 days of unsupported/unplanned leave and 32.57 days of unplanned leave for the previous 12 months. He consulted Ms Tanya Stephens, a Senior Human Resources Manager. Ms Stephens told him that it was appropriate to conduct a sick leave review and said that another option was a PIP under the respondent’s Managing Underperformance Guidelines which stated that underperformance may come to attention through attendance records. She emailed him a “poor attendance PIP template”. He arranged a meeting with Mr Tebb for the purposes of a sick leave review. He said that at the meeting on 5 April 2018 Mr Tebb said “I have gout and I am seeking treatment for this condition.” Mr Watson said this was the first time he was made aware that Mr Tebb suffered from gout. He was not aware of the Aurion records at the time as that system ceased to be used in 2016 and they were not available to him. He first saw them in October 2020.

27. Ms Evelyn Partridge, Mr Tebb’s manager, said under cross examination she was not sure whether she was first made aware of Mr Tebb’s gout on 5 April 2018. She said she only processed Mr Tebb’s leave applications from January 2018, however. As noted above, there was no evidence that earlier sick leave applications lodged by Mr Tebb in 2018 had mentioned gout.

28. The respondent refers to the sick leave approvals which predate 5 April 2018 as “self-reporting”. We infer from the available evidence that where those approvals refer to “SL – with M/C” and refer to “gout” that they were supported by a medical certificate which at least stated Mr Tebb was suffering from that condition on the specified day, and that they were accepted by the respondent at the time on that basis.

29. In order to find that Mr Tebb had a disability, the Tribunal must be satisfied that he suffered from gout and that this condition comes within:

“(a)   total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   the malfunction, malformation or disfigurement of a part of a person’s body.”

30. More than one of the criteria can apply to the condition (Purvis v NSW Department of Education and Training (2003) 217 CLR 92.) In our view, the available evidence establishes that gout is a medical condition for which medical treatment is provided. We do not understand the applicant to deny that Mr Tebb suffered from gout at times, but that it challenges whether this constitutes a disability for the purposes of the ADA. There was no medical evidence before the Tribunal as to the nature of gout. Mr Tebb said it affected his feet and ankles. On the basis of this evidence we accept that his condition came within the definition.

31. The evidence shows that Mr Tebb had a disability, namely gout, as at 5 April 2018, and while the respondent had been made aware of this disability prior to that date, Mr Watson and Ms Partridge did not have that knowledge. They were made aware of it on 5 April 2018 at the sick leave review meeting. In our view this finding is not relevant to whether he had a disability but it is relevant as to whether any discrimination can be shown to have been committed on the ground of that disability. We deal with this point below.

Carer’s responsibilities

32. Mr Tebb described his carer’s responsibilities for his children and his wife. His eldest son suffered an allergic condition during 2017-2019, which has involved taking him to the hospital emergency department up to 6 times in 2017-18. This sometimes involved being at the hospital late at night.

33. He supported his wife during her second pregnancy and birth in March 2017. He said that she had ongoing difficulties during this pregnancy with gestational diabetes. He said he needed time off after the birth to “step in and support her” and it was reasonable for him to take time off work for “unplanned emergencies” relating to the birth. He provided as much notice as possible and supported his leave requests with medical certificates.

34. Under cross examination he admitted that the information in one of the certificates he relied on to claim leave contained erroneous information about the stage of his partner’s pregnancy. He said that he only needed the certificate because of work and the doctor had been “lazy”.

35. The respondent did not dispute that he had children, or that he was a carer. It did dispute however that he had brought these responsibilities to its attention sufficiently that it was aware of any specific responsibilities of that kind. While he had submitted medical certificates for leave where he had been looking after an ill child or his partner, these certificates did not contain a diagnosis or information which indicated it was an ongoing issue.

Less favourable treatment and nature of detriment

36. Mr Tebb claimed the less favourable treatment he suffered was:

1. denial of access to the FWA, in particular being made to start at 9.00 am

2. being required to provide medical certificates for all sick leave contrary to award conditions, and

3. being placed on a PIP.

37. His is a claim of discrimination in employment and he claims that he was denied or limited access to benefits associated with employment and/or any other detriment. We accept that access to the FWA is a benefit associated with employment.

38. In O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023 the Tribunal discussed the meaning of the phrase “subjecting ... to any other detriment” in s 25(2)(c) of the ADA dealing with sex discrimination. Mathews DCJ, as her Honour then was, said 105 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.”

39. Mr Tebb took 38.39 sick days in the 12 months prior to 23 March 2018. He agreed the level of his sick leave was high but there were reasons for it based on his condition and his carers’ responsiblities. He was required to attend a meeting for the purposes of a sick leave review by Mr Watson. At the meeting he was advised that he would be placed on a Performance Improvement Plan (PIP) regarding attendance which included mandatory medical certificates for sick leave and carer’s leave commencing on 9 April 2018 for 3 months and to be reviewed weekly.

40. Mr Tebb stated that at the time of the meeting under the FWA the attendance core hours were 9.30 am to 3.30 pm with a bandwidth of 7.30 am to 6.00 pm. Later in 2018 the core hours changed to 10.00 am to 3 pm with a bandwidth of 6.30 am to 9.00 pm.

41. He said he was one of 10 court officers in Wollongong and that all officers rotate between duties in a court room and duties in the court office or registry. He received performance reviews twice a year and prior to the issues raised in 2018 he had not had a negative performance review.

42. Mr Tebb said that at the meeting Mr Watson told him that he wanted to place him on a Performance Improvement Plan (PIP). He gave him a copy of the PIP and asked him to consider it overnight. Mr Tebb said he was surprised as his performance had not been an issue previously and it was not part of the sick leave review as he understood it.

43. The PIP included requiring Mr Tebb to work standard hours, with a 9 am start, a 5 pm finish and a one hour lunch break. The PIP was to last for three months. Mr Watson said that if there were no issues after three months the PIP would end.

44. After discussion this was changed to a 9 am start but a lunch break in line with the magistrate’s lunch break. Mr Tebb regarded this as unfair and it caused him stress and anxiety. He felt that he had been isolated and targeted. Other staff who had sick leave reviews were not put on a PIP. He refused to sign the PIP but was told it was in place whether he signed it or not.

45. On 10 April 2018 he had his annual performance review with Ms Partridge. He said no issues were raised and Ms Partridge noted “Expectations met”. He tried to have the PIP revoked but on 19 April 2018 Mr Watson declined to do this. He also declined to provide Ms Partridge’s notes of the 5 April meeting.

46. It is not in dispute that the contents of the PIP were:

1. Attend to work on time daily by 9 am except when staff meetings are scheduled at 8.45 am

2. Working standard hours, including starting daily at 9 am (except when staff meetings are scheduled), taking lunch between 1 and 2 pm and finishing at 5 pm.

3. All absences to be with prior approval or in the event of illness, supported by a medical certificate, including diagnosis

4. Requirement to make personal contact with his manager Ms Partridge or another team leader/ Deputy Registrar/ Registrar if Ms Partridge is unavailable, by telephone by 8.30 am in the event of unplanned absence eg. Sick or FACS leave.

5. No unauthorised absences

6. Apply for all leave on SAP either prior to taking leave or immediately on return to work following that leave

7. Produce medical certificate immediately upon return to work following leave

8. Daily completion of flex/attendance record

9. Attend staff meetings on time

10. Attend training courses on time.

47. Under cross examination Mr Tebb said that his alleged non-attendance at staff meetings and lateness was not discussed at the meeting. He said that he was once late to a training course. He agreed that in a letter to the respondent written by his union on his behalf, the 9.00 am starting time was not raised. He said that he had provided reasons for why a start time of 9 am was a problem for him.

48. The Respondent’s Sick Leave Policy and Guidelines stated that there are 4 stages in the sick leave review process – an informal meeting with manager and employee, the first formal counselling session, the second formal counselling session and the final advisory meeting.

49. Arising from the first meeting the manager can decide whether no further action is to be taken (apart from monitoring); to meet again at an agreed time; to take action in consultation with the employee; and/or to require the employee to provide mandatory medical certificates for all future sick leave absences. The Policy does not refer to a PIP.

50. Mr Watson said that on 20 April 2017 he was instructed by the Coordinating Magistrate that the Wollongong Circuit Courts starting time was to be 9.30 am as from 1 June 2017. Staff were advised of this by email on 1 May 2017. The Court building opened at 8.30 am, the Registry counter opened to the public at 9 am and the Registrar’s list commenced at 9.15 am. Some magistrates, however, chose to commence sitting before 9.30 am, such as at 9.00 am or 9.15 am, if they for example wished to deliver a judgment before commencing with the Court list. If he was notified that a Magistrate wished to start before 9.30 am, which sometimes happened at 8.00 am the same day, he had to ensure that court staff were available.

51. He said that he had made it clear to staff at Wollongong that it was an operational requirement of the Court and an expectation to start at 9.00 am for this reason. Managers could exercise discretion with individual starting times, however. He considered that staff meetings were mandatory. If staff could not attend, they needed to explain why.

52. Mr Watson said he had noted that Mr Tebb had only attended three out of 15 staff meetings between 30 January 2017 and 24 April 2018. He did not attend a presentation on 16 November 2017 and he arrived late at the “Our Values” training course on 1 March 2018. He arranged a sick leave review meeting for 4 April 2018 but Mr Tebb did not attend work that day, or advise Mr Watson that he would not attend.

53. The meeting was rescheduled for 5 April 2018 with Ms Partridge also in attendance. At the meeting Mr Watson said that he provided records of Mr Tebb’s leave and a conversation with words to the following effect took place:

Watson: I have concerns about your leave.

Tebb: I agree that the number of sick days is unacceptable

Watson: I am concerned about your well-being, is there anything I can do to help?

Tebb: There is nothing you could do to help my situation and implementing flexible working arrangements would not assist me. My partner and/or my children are often sick. I have gout and am seeking treatment for this condition. I have no family help in Wollongong and my partner is not coping, this is making things very stressful and hard to handle at home. My children sometimes suffer from allergies and tests are being done.

54. Mr Watson suggested he use the Employee Assistance Program and Health and Wellbeing Service provided by the Department.

55. He then explained his decision to implement a PIP, and told him that his absences were affecting the team and they needed to improve. He outlined the requirements of the PIP. He also raised his non-attendance at staff meetings and being late for training. His file note of that meeting was in evidence. Under cross examination he said he did not consult Mr Tebb’s performance record before instituting the PIP. He believed the pattern of sick leave was not reasonable.

56. On 6 April 2018 he met with Mr Tebb again. Mr Tebb said he did not want to sign the PIP or the letter directing him to provide mandatory medical certificates and thought it was unfair. He said he should have received a warning before being put on “standard hours”.

57. After consulting HR, Mr Watson said that he would not put Mr Tebb on standard hours but the other conditions would remain. He told Mr Tebb the PIP would last for 3 months, and warned Mr Tebb formally that if he did not comply with the PIP he would be placed on standard hours. His file note of that meeting was in evidence. The PIP was to be reviewed weekly by Ms Partridge, Mr Tebb’s manager. Mr Tebb maintained that he would not sign the PIP but Mr Watson told him that it would apply whether or not he signed it.

58. Mr Watson said that Mr Tebb requested a HR review of his decisions, that the PIP be revoked and that full flexible working arrangements be reinstated. Mr Watson met with him on 18 April 2018 about these requests. He advised Mr Tebb that he could submit a grievance but HR would not review the decision. He said he asked Mr Tebb to explain how starting at 9.00 am instead of 9.30 affected his carers responsibilities, so that he could consider the request about his starting time, but Mr Tebb did not answer the question then or later.

59. The evidence of Mr Tebb and Mr Watson is largely without conflict on the key issues. In our view the evidence establishes that Mr Tebb was subjected to the requirement to provide mandatory medical certificates and being placed on a PIP with the prescribed conditions. But in order to succeed, he must establish that:

1. this treatment was done on the prohibited ground of his disability and/or his carer’s responsibilities (the causation element) and

2. his treatment was less favourable than the treatment that was or would have been given to a person without his disability or carers’ responsibilities in the same or materially the same circumstances.

Causation

60. Mr Watson said that the expectation that all staff commence at 9.00 am was based on operational reasons, the court opening times and possible commencement times of court hearings.

61. Clause 3.5 of the FWA in force at the time stated that a staff member may be directed to work standard hours where attendance has been shown to be repeatedly poor and/or circumstances where poor performance is limited to hours of work or where the employee has breached a provision of the Agreement or the Award.

62. Deputy Registrar Bruiceen Coulthard gave evidence that at the time, the FWA core hours were 9.30 to 3.30. She said there was an expectation that court staff would arrive by 9 am. They were expected to remain until 4.30 unless individual permission was given to leave earlier. If they could not arrive by 9 they were to let their supervisor know beforehand or let them know if they were late. The earliest time a Magistrate would start sitting was 9.00 am but this was uncommon. She would normally be made aware the afternoon before. Staff needed to be in court at least 15 minutes before a 9.00 am start and 30 minutes before a 9.30 start, in case of any technical issues. She said a court officer was preferred to be on duty in the court room rather than just a monitor alone.

63. She said she had conducted sick leave reviews. She had not put anyone on a PIP following a sick leave review. Staff meetings were held once a month and there was an expectation that staff attend, but it was not mandatory. If they could not attend, they had to read the minutes.

60. Ms Evelyn Partridge, Mr Tebb’s supervisor, gave evidence that 9.30 was the latest possible starting time for staff between 2017 and 2018 but that if the staff member was rostered on the counter or in court they needed prior approval to start at that time. She said that staff were expected to attend staff meetings and agreed that minutes went out.

61. Mr Tebb said that he spent three-quarters of his time in courtrooms. While it was essential that the court be ready before a court sitting that was not only his responsibility, it was shared between him and the monitor. He agreed that the court may start sitting before 9.30 but this was usually notified the day before.

62. The question the Tribunal should ask in this case when addressing the causation element is whether Mr Tebb’s disability is at least one of the “real”, “genuine” or “true” reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. In this case there is no direct evidence of the reason for his treatment relating to Mr Tebb’s disability or his carer’s responsibilities. A causal link between those matters and the alleged treatment would therefore have to be established by inference from the available facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262.

63. Any such inference must be logical and reasonable, and must show that a connection is probable; an inference cannot be made where more probable and innocent explanations are available on the evidence (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).

64. Mr Tebb submitted that he had demonstrated that the respondent was aware of his disability over a long period of time and that Mr Watson was informed of it at the sick leave review meeting on 5 April 2018. The disability was known to Mr Watson before the review outcomes were finalised.

65. He submitted that the PIP is a tool for disciplinary processes, and the respondent had been unable to point to any proper basis for imposing it, other than it was advice to Mr Watson from HR. The imposition of the PIP further limited his access to benefits associated with employment, both under the FWA and the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. The applicant was not able to access the clause 68.2 whereby he was entitled to “because of illness or other emergency notify or arrange for another person to notify the supervisor”.

66. He submitted that the Tribunal should not accept the respondent’s proposition that operational requirements were a reason for limiting access to the FWA. In any event the operational requirements were only applied to Mr Tebb. There was no justification under the FWA to subject him to standard working hours.

67. He submitted that no explanation was given how the PIP would mitigate or reduce the applicant’s need to access leave for carers’ needs, or for illness. The respondent’s decision to put in place a PIP and reduce employment benefits was punitive in his view and included matters that were not part of the sick leave review.

68. The respondent submitted that there was no evidence from which the Tribunal could find that Mr Tebb underwent the sick leave review because of his disability or his carers’ responsibilities in circumstances where a person without those characteristics would not have been required to do so. Nor would it find that any of the outcomes were imposed because of those reasons. The evidence is that the Applicant's absences and his lateness in starting work were having a deleterious impact on the functioning of the workplace and his attendance issues negatively impacted the workplace, including impacting negatively on other staff.

Consideration

73. Both the disability and the carers’ responsibilities gave rise to the sick leave of the applicant which led to the sick leave review. We find, because there is no credible evidence to the contrary, that the sick leave review was initiated because of the unplanned absences report received by Mr Watson. Mr Watson was required under the relevant policy to act on that report.

74. We find that he acted on that report by meeting with Mr Tebb and deciding to implement the PIP and measures which required Mr Tebb to commence work earlier and provide comprehensive medical certificates promptly after taking sick leave. We accept, based on the available evidence, that Mr Watson’s reasons for implementing a sick leave review and PIP were that Mr Tebb’s unplanned absences were excessive; that some action needed to be taken to improve it; and that he was advised by Ms Stephens that a PIP was an appropriate course of action. Ms Stephens provided him with a template.

75. We have some doubts whether the Managing Underperformance Guidelines authorise a PIP in cases of sick leave. The Guidelines state that underperformance may come to light through poor attendance; not that poor attendance itself equates to underperformance. The Sick Leave Policy and Guidelines do not refer to a PIP as an option.

76. While Mr Watson’s approach deviated from the Sick Leave Policy, this does not necessarily lead to a conclusion that his actions were based on the prohibited grounds of Mr Tebb’s disability or his carers’ responsibilities. There is no evidence from which we can infer that the PIP was imposed either because of Mr Tebb’s disability or his carers’ responsibilities. In fact there is evidence to the contrary, as Mr Watson had drafted the PIP before he was made aware of Mr Tebb’s gout or his specific carers’ responsibilities on 5 April 2018. We accept Mr Watson’s evidence, supported by documentary evidence and not challenged by Mr Tebb, that he consulted HR prior, had the document at the meeting and gave it to Mr Tebb to consider overnight.

77. The direction to work standard hours was part of the PIP. It was later discarded and not implemented, but Mr Tebb was directed to start work at 9.00 am each day. Mr Watson’s and Ms Coulthard’s evidence is that starting before 9.30 am was an expectation of all court staff. Ms Partridge’s evidence was slightly different but she said that staff needed prior permission to start at 9.30 am if they were working on the counter or in court. We are satisfied on the available evidence that this direction was not only addressed at Mr Tebb and it was not made on the ground of his disability or his carer’s responsibilities, but rather to address operational requirements.

78. The requirement to provide a medical certificate for all sick leave was also part of the PIP. This measure is specifically provided for in the respondent’s Sick Leave Policy and Guidelines. Again we find on the evidence that the reason for this was to manage Mr Tebb’s unplanned absences, not because of his disability or carers’ responsibilities.

79. Accordingly we find that the applicant has not established that the conduct of the respondent can be attributed to the ground of either his disability or his carers’ responsibilities. This is an essential element, and our finding in this respect means that his claim of discrimination fails. It is unnecessary to consider whether his treatment was less favourable than that applied to a comparator.

Claim of victimisation

80. Mr Tebb claims that he was subjected to detriment by the respondent on the ground that he lodged a discrimination complaint against the respondent.

81. It is not in dispute that Mr Tebb lodged his discrimination complaint on 23 April 2018 and informed Mr Watson of his complaint on 8 May 2018 by email.

82. The email was in evidence. In that email Mr Tebb also told Mr Watson that he had not had any weekly reviews under the PIP as originally planned.

83. Mr Watson replied to his email on the same day and said that weekly reviews of the PIP would now occur from the following Friday.

The PIP process and scrutiny of Mr Tebb’s work

84. On 15 May 2018, according to Mr Tebb, the PIP was reviewed and signed off by Ms Partridge as all targets having been met to date. He said he received 4 weekly reviews at once from Ms Partridge although no actual meetings had taken place.

85. Mr Tebb also stated that at the meeting in the fifth week, he raised with Ms Partridge an earlier meeting where he considered his work had been unusually scrutinised. He said that Ms Partridge told him that she was now required to scrutinise his work and work output at the direction of Mr Watson. He said that he thought this was unfair and she said that the scrutiny was what Mr Watson wanted.

86. He relied on a file note of 15 May in which Ms Partridge recorded:

“Andrew raised the discussion we had on 3 May 2018. He said he was concerned that I had checked on the number of matters he had outcome on the day (sic).

He said “I didn’t think you could do such a report”.

I said that I had to go into each matter in the listings bucket to check each one.

I said “Are you okay with me raising any issues with you as they arise?”

He said “Yes I would prefer that. I just don’t want it to become a witch hunt as it has been with Kathy in the past.”

I said that I would continue to appraise Andrew of any other issues that were raised.”

87. We accept this file note as an accurate record of the conversation.

88. Mr Tebb’s evidence was that on 17 May 2018 he was told that Mr Watson wanted him to attend a meeting for “a review of the reviews” that morning. On the same morning he received an email from Kathy Frost, the Regional Director. It contained a document titled “Andrew Tebb PIP v0.2” which appeared to be an amended version of the PIP with more restricted finish times imposed. The email was also sent to an HR officer Melanie Le Clerc. The email was before the Tribunal. It did not contain any message, apart from “fyi”. The PIP had also been sent to Mr Watson that morning.

89. Another email from Ms Frost to Mr Watson on the same day was in evidence before us. This email was headed “Sick Leave Review / Performance Improvement Plan” and included the following:

“Go through his current PIP and where each issue which is not met is discussed – please make notes on the document. At the end offer Andrew a copy.

Make personal contact – not met – means AT needs to make personal contact, not his partner.

Apply for leave etc – not met

Produce medical certificate – not met – advise this means unauthorised leave will be entered.

[Illegible] you get to – complete flex sheets, advise Andrew that you are aware he has not been completing his flex sheets daily, and ask Evelyn to open. If they have since been completed, still mark not met and advise they were not completed daily. Advise these issues came to your attention yesterday.

At the end of the review – advise a few issues have been highlighted, one of which is the requirement to remain until 4.30 pm and as such there will be a revised PIP moving forward.

Ensure you offer Andrew EAPS

If he raises his carer responsibilities, or medical issues or says he cannot be at work by 9 am or remain until 4.30 pm – listen to what he says, remember to offer flexible working practices if required – ie. Part time (shorter hour days) to support him if needed.

If Tony commences to advocate on AT’s behalf, remind him his role is as a support person and he is not to speak on AT’s behalf, if he would like to speak with AT – then you can offer a short break and provide that opportunity.

If you are not sure of anything – ask for a 10 min break whilst you consider and give me a ring/ get some advice from HR.”

90. Mr Tebb said that Mr Watson phoned him on 17 May and said he had reviewed Ms Partridge’s review and did not agree with the outcome of the fifth week. He said that he could bring a support person to the meeting but also said words to the effect: “The meeting is today. The meeting is now. Go and get your support person the meeting is now. I will see you in my office.”

91. Mr Tebb asked Ms Coulthard the Deputy Registrar if she would be his support person. He said that she agreed but went to inform Mr Watson. When she came back she said that Mr Watson did not want her to do it. According to Mr Tebb, she said “It has to be my decision, but he doesn’t want me to do it and told me I shouldn’t.”

92. Mr Tebb then phoned the Public Service Association (PSA). The PSA apparently contacted Mr Watson.

93. Mr Watson emailed the PSA at 1.03 pm stating:

“I have requested to meet with Mr Andrew Tebb following the review of his current performance improvement plan (PIP) which occurred on 15 May.

I have become aware targets required to be met as part of the PIP were in fact not met and I need to ensure moving forward Mr Tebb is well aware of what is required of him in relation to the PIP.

Mr Tebb is entitled to have a support person with him, and that opportunity has been provided to him. Mr Tebb selected Ms Coulthard as his support person, however after consideration – Ms Coulthard declined this role.

Mr Tebb is entitled to ask any other person to be his support person and I will delay my meeting with him until 2 pm to ensure his provided this opportunity.

I am not prepared to delay this meeting beyond 2 pm today. “

94. Mr Watson’s evidence was that Ms Partridge was monitoring Mr Tebb’s compliance with the PIP weekly. He denied that he asked Ms Partridge to scrutinise Mr Tebb’s work and work output. She was monitoring his performance under the PIP and performing her general responsibilities as his manager.

95. He denied telling Ms Coulthard that she could not be Mr Tebb’s support person at the meeting on 17 May 2018. He recalled that she asked him if it would be OK for her to be his support person and he said that it was a matter for her. She then said she would decline the request as it may result in a conflict of interest.

96. On 17 May 2018 he asked Ms Partridge to direct Mr Tebb to attend a meeting with the two of them about the PIP review conducted by Ms Partridge on 15 May 2018. He said Mr Tebb could have a support person at the meeting.

97. Under cross examination he said the reason for the meeting was that Mr Tebb and Ms Partridge had not been meeting weekly as he requested and it was not because Mr Tebb had complained. It had been brought to his attention that the reviews were not going well. He wanted to discuss the PIP to determine about whether there had been compliance. It was not because of the complaint of discrimination. There had not been any decision about starting or finishing times for Mr Tebb and he was not told by anyone what to do, nor had he predetermined an outcome. He was shown the email from Kathy Frost but said he did not recall seeing it before and did not know what the document name meant. He did not recall telephoning Mr Tebb on the morning of the meeting, but he may have. He was told by HR that Mr Heathwood could not advocate for Mr Tebb but he sought advice about that during the meeting.

98. Ms Partridge later reported to him that Mr Tebb refused to attend the meeting. He then received an email from the Public Service Association (PSA) requesting that the meeting be delayed to allow a PSA representative to attend as support person. Mr Watson agreed to delay the meeting and the meeting took place that afternoon between Mr Watson, Ms Partridge, Mr Tebb and Mr Tony Heathwood from the PSA.

99. Ms Frost did not give evidence.

The meeting on 17 May 2018 and the aftermath

100. Mr Tebb said that at the meeting Mr Tony Heathwood from the PSA attended as his support person. Mr Watson told Mr Heathwood he could not be an advocate and did not permit him to ask questions. Mr Tebb attempted to ask why the PIP was implemented and his attendance was not being managed under the Sick Leave Policy. Mr Watson did not wish to discuss these issues. The meeting ended. Mr Tebb said he had felt victimised and discriminated against during the meeting, and it did not address his concerns about the PIP process.

101. Mr Tebb said he was informed by Mr Heathwood that Mr Watson had contacted him by phone later to discuss the matter. An email dated 17 May 2018 from Mr Heathwood to Mr Tebb was in evidence which referred to:

“a conciliatory call from Daniel just now admitting that things did not go well and looking at how we can move forward. Still not happy to withdraw the PIP which he strangely states is not about PERFORMANCE just attendance.

Will take a look at the plan tomorrow and see if we can suggest a format or wording for an alternative and talk to you guys.”

102. Emails were exchanged and on 23 May the PIP document was changed to a Management Plan. Mr Tebb did not return to work after that date, however and said he felt anxious and stressed by the matter. He lodged a workers compensation claim which was eventually declined. When he received the documentation he noted that the employer had claimed that the process was conducted under the Managing Underperformance Policy, not the Sick Leave Policy. He said this was the first time underperformance had been raised.

103. Mr Watson’s evidence was that Mr Heathwood both interrupted him and behaved unprofessionally during the meeting. A file note Mr Watson had made of the events of that day was tendered which supported his account. He did not recall the details of his call to Mr Heathwood but remembered that Mr Heathwood disagreed with PIP terminology being used. He denied victimising Mr Tebb because of the complaint.

104. Ms Partridge also attended the meeting and her file note was in evidence. It records that Mr Heathwood was told that he was present as a support person not an advocate and would have to apply in writing to be an advocate. She recorded that Mr Watson wished to discuss the PIP and Mr Tebb wanted to express his disagreement with the PIP. She recorded that Mr Tebb said that he had made a complaint against Mr Watson and that “If you want to continue down this path you’ll end up in the IRC.” Mr Watson asked Mr Tebb to stay and take part in the review but he and Mr Heathwood left the meeting.

105. Ms Coulthard gave evidence that she did not recall what she first said when Mr Tebb asked her to be his support person at the meeting. She remembered saying at some point “No, I don’t think it is appropriate.” She did not know if she had spoken to Mr Watson about it, but she might have as he was her manager.

Submissions

106. Mr Tebb submitted that he notified the respondent of the lodgement of his complaints with the Anti-Discrimination Board, and thereafter the respondent subjected the applicant to detriment by extraordinary scrutiny of his work, an unfair PIP review intended to impose further loss of benefits associated with employment, loss of flexible working time, and a disciplinary process.

107. The applicant submitted the victimisation occurred:

1. at Mr Tebb’s meeting with Ms Partridge on 15 May 2018 (his submission refers to 15 April 2018 but later submissions and his reliance on a file note dated 15 May indicates this is an error) and

2. at the review meeting with Mr Watson, Ms Partridge and Mr Heathwood on 17 May 2018.

108. Mr Tebb said that he was told by Ms Partridge on 15 May 2018 that she had been required by Mr Watson to scrutinise his work and work outputs in addition to monitoring him under the PIP. He alleged this constituted victimisation.

109. Mr Tebb contends that the meeting on 17 May 2018 constituted victimisation because:

1. there was no notice given;

2. Mr Watson had not involved himself in the PIP process until after Mr Tebb lodged his complaint;

3. he was forced to obtain a support person and attend the meeting in haste.

110. The respondent submitted that there is nothing before the Tribunal to suggest the emails from Ms Frost to Mr Watson were anything other than the correspondence a person would be expected to have with their manager/supervisor in advance of a difficult meeting, to assist them to ensure they were fully prepared. Mr Watson gave evidence that he had not determined any outcome before the meeting, but that she had provided him with assistance on the range of possible outcomes.

111. There was no complaint from the PSA representative about the manner in which the meeting was held. Nor was there any concern identified by the union to the content of the plan that had been imposed on the Applicant, nor of the appropriateness of imposing certain obligations on the Applicant in relation to his attendance and timeliness. Rather, the Union proposed, and the employer agreed to this proposal, that the description of the plan be changed from Performance Improvement Plan to Management Plan.

110. Ms Partridge denies saying the words attributed to her by Mr Tebb and further denies that she was ever directed by Mr Watson to scrutinise the Applicant's work. Mr Watson also denies giving her any such direction aside from being responsible for monitoring his compliance with the PIP and more generally, as his manager, with his work.

111. The Applicant does not identify any detrimental conduct of the Respondent that is said to have occurred as a result of his having lodged a complaint of discrimination and has provided no evidence that that is the case. The victimisation claim cannot be made out and should be dismissed.

Consideration

114. The approach to be taken by the Tribunal to a claim of victimisation has been set out in Dutt at 235:

“The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an Applicant did or was suspected of doing one of the acts in s50(1), and whether the Respondent did anything which caused detriment to the Applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did Respondent do that thing on the ground that the Applicant did or was suspected of doing one of the acts in s50(1).”

115. The applicant must establish that he suffered loss or damage that was real and not trivial; and that one of the “real”, “genuine” or “true” reasons he was subjected to that detriment was because he did one of the things listed in s 50(1) of the Act: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

116. It is not in dispute that Mr Tebb lodged a complaint and that Mr Watson was aware of this from 8 May 2018.

117. As to the first alleged instance of victimisation, the scrutiny by Ms Watson, this was first raised by Mr Tebb on 3 May 2018, prior to him notifying the respondent that he had lodged a complaint. Mr Tebb alleged Ms Partridge told him that Mr Watson had instructed her to do this. Ms Partridge’s file note does not support this. She denied saying the words attributed to her by Mr Tebb or that Mr Watson had directed her to scrutinise his work. We are not satisfied that she said the words attributed to her. In any event even if the scrutiny did occur as alleged and was detrimental, it could not constitute victimisation as it began prior to the respondent being aware of the complaint. Therefore the required causation element linking the complaint to the detrimental conduct is absent.

118. As to the meeting on 17 May 2018, we are satisfied that the applicant has established that:

1. There was no advance notice given earlier than the day of the meeting;

2. The Regional Director had prepared a PIP which contained a more restrictive finishing time to apply to Mr Tebb and that PIP was provided to Mr Watson in the expectation of Ms Frost that he would apply it. There was no evidence that it was in fact applied as Mr Tebb did not return to work after the meeting;

3. Mr Tebb had to arrange a support person at short notice.

119. It is not sufficient for an employee to subjectively believe that he or she has been subjected to a detriment (Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]. The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial” (Sivananthan at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146). Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken (Sivananthan at [41]).

120. Mr Watson said he did not recall receiving the emails from Ms Frost but that he had not predetermined the outcome of the meeting. We find it is more probable than not that there had been some discussion or correspondence between Mr Watson and Ms Frost about the perceived failure of Mr Tebb to meet the PIP requirements, otherwise there was no reason for Ms Frost to send the emails or the amended PIP. Ms Frost’s email focused on the targets which were not met and how this should be addressed by Mr Watson under the PIP process. We cannot know if Mr Watson would have applied the amended PIP as he did not have the chance to do so, and in fact his evidence was that he had not determined what the outcome would be. The meeting ended abruptly and Mr Tebb did not return to work. Accordingly we do not see the amended PIP as a detriment.

121. We have observed above that there may be doubt about whether the PIP process was the correct process to use. However that process was chosen for reasons unrelated to discriminatory grounds, as we have found, and this meeting was a continuation of the process.

122. While Mr Watson involved himself again in the PIP process from 8 May 2018 after Mr Tebb informed him of the complaint, he had also been informed by Mr Tebb on that date that the weekly reviews were not occurring. He took steps to address this by advising Mr Tebb (and presumably Ms Partridge) that they would take place on Fridays. We are satisfied that he received information which led him to believe, correctly or otherwise, that requirements under the PIP were not being met. We infer that this came about through the reviews Ms Partridge reported on. Arranging a meeting to discuss perceived problems was a logical step in the process which had been adopted. Accordingly we do not consider the meeting itself was a detriment.

123. Mr Watson only gave Mr Tebb a few hours’ notice of the meeting and we accept that this made it difficult for him to obtain a support person. Mr Tebb properly conceded that the evidence showed only that Ms Coulthard decided to decline the support role after talking with Mr Watson. We are unable to infer that he prohibited it or advised her not to take on that role. In any event, Mr Tebb obtained Mr Heathwood’s assistance so he did not attend the meeting unsupported. We are not satisfied that Mr Watson’s contact with Mr Heathwood after the meeting was a detriment. Mr Heathwood’s email indicated that there were some positive aspects to their communication. No concrete disadvantage was identified.

124. Accordingly the only detriment in our view was the lack of notice of the meeting.

125. Mr Tebb must establish the causation element of his victimisation claim. The phrase “on the ground of” in s 50(1) of the Act has been interpreted to mean one of the ‘real’, ‘genuine’ or ‘true’ reasons (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]; see also Burns v Sunol [2016] NSWCATAD 74 at [85]). There is no direct evidence to indicate that the meeting was called when it was because of Mr Tebb’s complaint nor is there any evidence from which we can infer that this was the reason. The applicant has not pointed to any direct evidence of this. There is no identifiable connection between the two and no evidence from which such an inference can be drawn. Mr Watson had been aware of the complaint for more than a week. There are other plausible explanations for him calling the meeting, specifically, Mr Watson’s disagreement with the review conducted on 15 May 2018 which he would have received on or after that date, his perception that targets under the PIP had not been met by Mr Tebb and the nature of the process itself.

126. Even if we are incorrect about whether the other matters were detriments, again the applicant has not identified any evidence from which we can infer logically and reasonably that the discrimination complaint was one of the reasons for those actions.

127. In our view the victimisation claim cannot succeed and should be dismissed.

Orders

1. The complaint of discrimination on the grounds of disability and carers’ responsibilities is dismissed.

2. The complaint of victimisation is dismissed.

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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: 29 April 2021