Thomas v IBM Australia Ltd
[2013] FCCA 1993
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THOMAS v IBM AUSTRALIA LTD | [2013] FCCA 1993 |
| Catchwords: PRACTICE & PROCEDURE – Summary dismissal of Application – no reasonable prospects of success. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Federal Magistrates Court Rules 2001 (Cth), r.13.10 |
| Chung v University of Sydney [2001] FMCA 94 Price v Director-General, Departments of Education & Training (NSW) [2008] FMCA 1018 |
| Applicant: | OWEN THOMAS |
| Respondent: | IBM AUSTRALIA LTD |
| File Number: | SYG 1803 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 19 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Glover |
| Solicitor for the Respondent: | Ms K. Srdanovic of Ashurst |
ORDERS
The Application filed 20 August 2012 is dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) and s.17A of the Federal Circuit Court of Australia Act1999 (Cth).
The Applicant is to pay the Respondent’s costs of and incidental to the Application as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1803 of 2012
| OWEN THOMAS |
Applicant
And
| IBM AUSTRALIA LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 August 2012 the applicant, Owen Thomas, filed an application (the “Application”) alleging unlawful discrimination by the respondent, IBM Australia Ltd (“IBM”). IBM then filed an application in a case on 1 February 2013 (the “Summary Dismissal Application”) seeking that the proceeding be dismissed pursuant to s.17A(2) of Federal Magistrates Court Act 1999 (Cth) (now the “Federal Circuit Court Act 1999 (Cth)) and rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (the “Rules”) (now the Federal Circuit Court Rules 2001 (Cth)). The Summary Dismissal Application came before the Court for hearing on 19 April 2013 for hearing and has been brought on the following bases:
a)Taking the applicant’s own material at its highest the proceeding has no reasonable prospect of success; and
b)The proceeding is frivolous, vexatious or an abuse of process of the Court.
Summary Dismissal Application
The Summary Dismissal Application seeks the following orders:
1. That Orders 4, 5, 6, 7 and 10 made by the Court on 2 November 2012 be set aside pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001.
2. That the proceedings be dismissed pursuant to section 17A(2) of the Federal Magistrates Court Rules 2001.
3. That costs be awarded to the Respondent.
IBM filed and read the affidavit of Kathy Srdanovic sworn 31 January 2013 (the “Srdanovic Affidavit”) in support of the Summary Dismissal Application.
Original Complaint
Mr Thomas’ original complaint as set out in the “Termination of your complaint against IBM Australia Ltd (IBM)” letter dated 9 August 2012 from the Australian Human Rights Commission (the “AHRC”) is as follows:
You say that in 2005, while you were working at IBM, you met with your manager and requested permission to work from home. You state your position was subsequently made redundant in 2006. You say that in 2009, you realised the reason you requested permission from IBM to work from home was because you did not want to work with other people due to having an acquired brain injury. You claim that IBM’s action in making you redundant in 2006 is disability discrimination.
Applicant’s Points of Claim
Pursuant to orders of Smith FM made on 5 October 2012, Mr Thomas was required to file and serve a points of claim document. This was complied with and on 6 December 2012 Mr Thomas filed his points of claim document (the “Points of Claim”). The Points of Claim state:
2 Facts.
These facts have been listed in reverse chronological order as this order also appears to list these events in reverse order of judicial relevance to this case. However, please note that I will argue that each fact is necessary in illustrating IBM’s unlawful acts in relation to the allegations I describe in the next section.
1. On 30 August 2012, IBM rejected my application for re-employment in their Graduate Consultant intake for 2013. They claim that as it has been more than nine years since I graduated, I do not qualify for further consideration. I told them that my application was for re-employment in a position similar to that which I was dismissed from in 2006. I told them that I have a disability which was undiagnosed in 2006, and I also asked them to accept variations to my employment conditions which would assist my productive involvement.
2. In about May or June 2009, I saw a psychiatrist. By this time, I had held not less than seven similar jobs and all of these jobs led to redundancy or resignation based on excessive stress and depression consequent to the social demands of employer-prescribed work location, work mode, work intensity, and social participation. From this overall consultation process, it was concluded that a brain injury I sustained in 1986 had left me with atypical personality traits.
3. In May 2006, IBM dismissed me from a similar position to the one I applied to in point 1 above. IBM cited redundancy. The Graduate Consultant position couldn’t have been made redundant because IBM continues to rely on this graduate scheme to recruit suitable candidates from 2006 until I re-applied in 2012. I must have been made redundant from another position which I had been moved to.
4. Late 2005, feeling overwhelmed by the stress of the unanticipated social obligations IBM were placing on me, I approached my boss, Terry Speer. I do not remember specifically what I requested, but I believe my request included the ability to do my work from home four out of five days per week. In a subsequent meeting where myself, Terry, Terry’s boss (Mr Ross Collins), and two others (one of whom was on speaker phone) attended, Mr Collins put it to me that I should shut up and “add value to the business of IBM’s customers!”
5. On 14 February 2005, I commenced work for IBM. I was recruited in IBM’s graduate intake closing 2004, having graduated in July 2003 in the Bachelor of Computer Science at Wollongong University. Originally, due to the fact that I said at the interview that I didn’t want to work in Sydney, my workplace was to be in Hobart. However, about a week prior to the start of a week long induction programme, I was advised that Hobart didn’t look promising. I accepted a redeployment to a client in a northern suburb of Sydney at the conclusion of the induction.
6. In 1986, I sustained a significant inoperable brain trauma due to a bicycle accident. I spent a total of about three months as a patient of Wollongong hospital. Shortly after leaving hospital, I was drawn to programming computers as a way to 1. exercise my curiosity where 2. I could control the level of environmental input. Based on these two qualities, I decided to try and make a career of this interest.
Procedural Chronology
The relevant procedural background is as follows:
a)The applicant filed the Application on 20 August 2012 commencing the current proceedings alleging unlawful discrimination;
b)On 6 December 2012, the applicant filed his Points of Claim. The Affidavit of Owen Thomas affirmed 12 December 2012 (the “December Thomas Affidavit”) was filed and served on 13 December 2013;
c)By a letter dated 16 January 2013, IBM informed Mr Thomas of its view that “he [did] not have any reasonable prospect of successfully prosecuting the Proceedings”: Srdanovic Affidavit at Annexure “KS1”. The letter foreshadowed an application to dismiss the proceedings. In the circumstances, Mr Thomas was invited to discontinue the proceedings on the basis that each party bear their own costs. Mr Thomas rejected that invitation: Srdanovic Affidavit at Annexure “KS2”;
d)On 31 January 2013, IBM filed the Summary Dismissal Application and the Srdanovic Affidavit in support;
e)On 12 February 2013, the Court made procedural orders for the filing of further evidence by Mr Thomas, the filing and service of submissions and the setting down of the Summary Dismissal Application for hearing. Mr Thomas filed further evidence on 6 February 2013 and 4 March 2013; and
f)On 18 March 2013 Mr Thomas filed an application in a case (the “Application to Amend”) and the Affidavit of Owen Thomas affirmed 18 March 2013 (the “March Thomas Affidavit”) annexing an amended points of claim document (the “Amended Points of Claim”) which he sought leave to file.
Material filed by the Applicant
In these proceedings to date, Mr Thomas has filed:
a)Application on 20 August 2012;
b)Affidavit of Service of Owen Thomas affirmed 10 October 2012 and filed on the same day;
c)Affidavit of Owen Thomas affirmed 24 October 2012 and filed 25 October 2012 (the “October Thomas Affidavit”);
d)Points of Claim filed on 6 December 2012;
e)Affidavit of Owen Thomas affirmed 12 December 2012 (the “December Thomas Affidavit”) and filed on 13 December 2012;
f)Affidavit of Owen Thomas affirmed 5 February 2013 and filed on 6 February 2013;
g)Affidavit of Owen Thomas affirmed 4 March 2013 and filed on the same day; and
h)The Application to Amend and Affidavit of Owen Thomas affirmed 18 March 2013 annexing the Amended Points of Claim on 18 March 2013.
The relevant tests applying to summary dismissal
Subsection 17A(2) of the Federal Circuit Court Act 1999 (Cth) states:
17A Summary judgment
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
For the purposes of s.17A, a proceeding need not be (i) hopeless, or (ii) bound to fail for it to have no reasonable prospects of success; s.17A(3).
Rule 13.10 of the Rules states:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
Respondent’s Submissions
Principles applying to summary dismissal and strike out
IBM submits that the relevant principles necessary to determine the Summary Dismissal Application are well settled and can be expressed in summary form as follows: Otti v Commonwealth of Australia [2012] FMCA 1022 at [15]:
a)The jurisdiction to summarily dismiss a proceeding must be exercised with exceptional caution and is to be sparingly invoked: Seers v Australia Post [2011] FMCA 659 at [10];
b)IBM bears the onus of proof of showing that the proceeding is of a character that it should be dismissed;
c)The proceeding should be dismissed on this basis only:
i)If the claim may properly be characterised as unarguable; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129; SZBBL v Minister for Immigration [2004] FMCA 185 and Oorloff & Anor v Lee & Ors [2004] FMCA 893; or
ii)Where the claim is otherwise objectionable as being frivolous or vexatious, or an abuse of process of the Court: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9];
d)Where an applicant is self-represented, the court should use great care and consider independently whether an arguable case based on the material could be made out by the applicant: Oorloff v Lee (supra);
e)In such circumstances, the Court must have regard not only to the litigant in person but also to the position of the other party concerned and to what is required in justice to prevent the unnecessary expenditure of public and private resources: Seers v Australia Post (supra) at [9]; and
f)It is in the interests of the public and the parties that a proceeding which is clearly shown to be lacking in substance should be summarily terminated. It is “no kindness to a complainant to shrink from the exercise of the power… in circumstances where that exercise is clearly warranted”: Seers v Australia Post (supra) at [9].
Applying the Principles to the Applicant’s Application
IBM argues that the Application in a Case is brought on the following two bases:
a)Taking Mr Thomas’ own material at its highest the proceeding has no reasonable prospect of success; and
b)The proceeding is frivolous, vexatious or an abuse of process of the Court.
No reasonable prospect of success
What is the terminated complaint?
Being a claim for unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (the “Disability Discrimination Act”), IBM submits it is necessary for there to be a “terminated complaint” to the AHRC under s.46PO of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”). Subsection 46PO(3) states that the unlawful discrimination alleged in the application must either:
a)Be the same (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
b)Arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
Proceedings have been dismissed summarily where the subject matter of the application before the Court was different from the terminated complaint that was made to the AHRC: Soreng v Victorian State Director of Public Housing [2002] FMCA 124; Price v Director-General, Department of Education & Training (NSW) [2008] FMCA 1018.
The October Thomas Affidavit annexes two complaints from the AHRC:
a)Complaint lodged on 20 July 2012 and terminated on 9 August 2012 (Annexure “A”) (Complaint A); and
b)Complaint lodged on 10 September 2012 and terminated on 17 October 2012 (Annexure “B”) (Complaint B).
The December Thomas Affidavit annexes material relating to a further complaint from the AHRC from August 2011 (Annexures “7” and “8”) (Complaint C).
IBM submits that of these three complaints, the only complaint capable of being the subject of this proceeding is Complaint A. This is because:
a)Mr Thomas was out of time to bring the proceeding in relation to Complaint C: AHRC Act s.46PO(2); and
b)Complaint B had not even been made until after the proceeding was commenced (i.e., on 20 August 2012).
IBM contends it appears the “Grounds of Application” contained in Part B of the Application reflect the position that Complaint A is the “terminated complaint” for the purposes of this proceeding. This was expressed by Mr Thomas as follows:
Management intimidation to a reasonable request to vary terms of employment in 2005 to be as they are now known by both parties. Dismissive arrogance following intimidation leading to withdrawal by applicant which led to “redundancy” based dismissal by respondent in 2006.
Nevertheless, IBM submits the apparent subject matter of Complaint C and Complaint B is considerably intermingled throughout the applicant’s material. In much of the applicant’s material, he appears to draw a “relationship” between the “incidents of 2005/2006” and “the respondent’s rejection of the applicant’s 2012 job application”: Amended Points of Claim p. 4. Significantly, the applicant’s 2012 job application was not subject of Complaint A, and cannot be the subject of this proceeding.
Is a claim for disability discrimination made out on the applicant’s material in relation to the July 2012 complaint?
Even focusing solely on Mr Thomas’ material in relation to Complaint A, IBM submits the applicant has no reasonable prospects of success in this proceeding.
Mr Thomas’ original Points of Claim referred to both direct discrimination under s.5 and indirect discrimination under s.6 of the Disability Discrimination Act. However, the Amended Points of Claim abandon the claims of indirect discrimination.
Direct discrimination, as it stood at the time of the alleged conduct of IBM in 2006, is the subject of Complaint A and is addressed by s.5 of the Disability Discrimination Act as was in force at the relevant time (this section has since been amended):
5 Disability discrimination
(1) For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
Mr Thomas appears to rely on both subsections 5(1) and 5(2) of the Disability Discrimination Act.
Common to both subsections 5(1) and (2) is the requirement for a causal connection between the alleged discriminatory act and the applicant’s disability. This arises from the phrase “because of the disability”. Indeed, summary dismissal has been ordered where there was no causal nexus between the alleged acts of discrimination and the complainant’s attribute: Chung v University of Sydney [2001] FMCA 94; Paramasivam v University of New South Wales [2007] FCA 875.
Also relevant, although not referred to in Mr Thomas’ claim, are subsections 15(1) and (2) of the Disability Discrimination Act. At the time of the alleged conduct outlined in Complaint A s.15 of the Disability Discrimination Act stated:
15 Discrimination in employment
(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:
(a) in the arrangements made for the purpose of determining who should be offered employment; or
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability or a disability of any of that employee’s associates:
(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.
The Points of Claim at p.13 allege Mr Thomas’ “disability caused [his] dismissal in 2006”. IBM submits that this submission presumably seeks to engage s.15(2)(c) of the Disability Discrimination Act.
IBM submits, assuming for present purposes that Mr Thomas has a “disability” within the meaning of that term in s.4 of the Disability Discrimination Act, that it simply did not and could not discriminate against Mr Thomas on the ground of his attribute by dismissing him for the following reasons:
a)Mr Thomas was not dismissed for reasons relating to his capacity or conduct. Mr Thomas’ position was made redundant on 4 May 2006: December Thomas Affidavit, Annexure “5” (Employee Separation Certificate) and Annexure “6” (Employee Termination Statement). Mr Thomas was paid his entitlements, including a payment on account of redundancy: Points of Claim, p.6, point 6;
b)Mr Thomas’ disability was unknown, even to him, in 2005 and 2006. It appears it was first diagnosed in November 2009: December Thomas Affidavit at Annexure “1”;
c)It also appears that Mr Thomas’ disability developed when he was 12 years old and, as such, he would have had his disability at the time he was employed by IBM and throughout the course of his employment;
d)To the extent that Mr Thomas relies on the letter from Dr Heiner dated 10 December 2012 (December Thomas Affidavit at Annexure “1”) and the report from Jason Cusack, clinical psychologist, of Illawarra Brain Injury Service (December Thomas Affidavit at Annexure “2”), those documents do not support any casual nexus between Mr Thomas’ attribute and the cessation of his employment by IBM on account of redundancy; and
e)Mr Thomas appears to place considerable weight on an email from an employee of IBM, Mr Terry Speer, to him on 11 July 2012: Points of Claim p.7. Mr Speer was Mr Thomas’ manager in 2005-2006. The email appears in the October Thomas Affidavit at Annexure “A” on p.15. The content of the email from Mr Speer to Mr Thomas is blank. Nevertheless, Mr Thomas appears to rely on this email as suggesting “that someone else may have seen” the wrongdoing allegedly suffered by Mr Thomas when in the employment of IBM: Points of Claim p.9 at [3]; Amended Points of Claim pp.2-3. Mr Speer has not provided any evidence in these proceedings. IBM submits that nothing turns on Mr Speer’s email. It simply cannot support any causal nexus between Mr Thomas’ attribute and his redundancy in 2006.
In both his Points of Claim and Amended Points of Claim Mr Thomas refers to “the case of Zoltaszek”, to the effect that knowledge of a disability is not a necessary factor in direct discrimination. This is, apparently, a reference to Zoltaszek v Downer EDI Engineering Pty Ltd (No.2) [2010] FMCA 938. Contrary to Mr Thomas’ submissions, in that case Barnes FM (as she then was) found that the respondent had been unaware that the applicant suffered from any disability until a particular point in time. Accordingly her Honour held that it had not been established that the respondent had discriminated against the applicant “on grounds of” his disability as required under the Disability Discrimination Act prior to that point in time (see [89]-[95]).
Relief claimed is unrelated to the events the subject of the July 2012 complaint
Mr Thomas appears to argue that, having regard to the events the subject of Complaint A (being those in 2005 and 2006), he should now be re-employed by IBM in the equivalent position to the position he then held. He has applied for employment in such a position on numerous occasions: December Thomas Affidavit at Annexure “10”. Indeed, Complaint B relates to alleged disability discrimination with respect to Mr Thomas’ application for a graduate consultant position in the employment of IBM commencing in July 2013. That complaint was terminated after this proceeding was commenced.
However, IBM argues Mr Thomas’ failure to obtain employment in this position (and, indeed, previous ones) has nothing to do with his disability, but simply is because he has been employed with IBM previously and has graduated in a period outside the 24 months required by IBM’s graduate program: December Thomas Affidavit at Annexure “12”.
It is also relevant to note here that Mr Thomas has described the time he was employed by IBM as follows:
I hated my job, it was the ugliest single 15 months of drudgery I have yet endured.
Mr Thomas’ résumé, which appears in the December Thomas Affidavit at Annexure “11”, reveals that Mr Thomas worked at Accenture for 12 months (from July 2007 to July 2008) and the Wholesale Communications Group (from December 2006 to July 2007).
Proceeding is frivolous, vexatious or abuse of process
IBM submits the proceeding is frivolous, vexatious and/or an abuse of process for the following reasons:
a)Mr Thomas’ main complaint appears to be against employers and society in general: see Points of Claim pp.16, 17, 20-21. He acknowledged, however, that he is “singling out” or making an example of IBM: December Thomas Affidavit at Annexure “8”, p.2. Indeed, as mentioned above, Mr Thomas has had other employment since his employment with IBM ended;
b)Mr Thomas’ résumé states “[c]urrently working on a patented concept called Clique Space™. Part-time work would support my progress in the research and development of the associated system. A balance of work on Clique Space™ and paid employment would mean that I could earn an income which would support my endeavours in Clique Space™ while achieving an optimal distribution of effort and enjoyment”: December Thomas Affidavit, Annexure “11”. This reveals Mr Thomas’ real motivation, appearing in the next paragraph of his résumé, for part-time employment with “at least 95% of work at an unspecified location”. It has simply nothing to do with his disability, rather with his desire to progress Clique Space™; and
c)The emails appearing at Annexure “KS5” of the Srdanovic Affidavit establish that Mr Thomas’ claim is an abuse of process of the Court. For example, the emails:
i)Use inappropriate language towards IBM’s employees: pp.7,17-18, 19-20, 21, 24;
ii)Threaten IBM’s employees and staff of the AHRC: pp.11, 25, 27, 29, 35 and 47 (to AHRC staff), 45, 48 (uses the word “threat”), 51;
iii)Evince an intention of Mr Thomas to make complaints and applications to this Court “over and over again until I die or get satisfaction”: p.46; and
iv)Demonstrates a willingness to proceed with subsequent job applications, even though they are unlikely to be successful: p.30.
Consideration
Mr Glover provided the Court and Mr Thomas with a lever arch file of all relevant documents filed in these proceedings, presented in chronological order with pagination. For the purposes of IBM’s Application in a Case, I will treat this bundle in its entirety as the “Exhibit Bundle”. Mr Glover then formally moved on IBM’s Summary Dismissal Application filed on 1 February 2013 (the contents of which are reproduced above at [2]). Mr Thomas, on 18 March 2013, filed the Application to Amend. Put broadly, the Application to Amend seeks to vary the applicant’s claim, in that he is abandoning Complaint A which is based on the AHRC’s Notice of Termination dated 9 August 2012 (see [4] above) and instead seeks to pursue Complaint B: October Thomas Affidavit at Annexure “B”, p.3.
The basis of the Summary Dismissal Application applies equally to both of Mr Thomas’ terminated complaints, as IBM submits they have no reasonable prospect of success, are frivolous, vexatious and an abuse of process of the Court. As it was explained to Mr Thomas during the hearing those words are not used in any way as a criticism of Mr Thomas or the way in which he has presented his case, rather, the words are used in a strict legal sense, meaning there is an absence of a cause of action, a well-established legal principle.
There are two issues to be addressed in this matter which are outlined here and addressed in more detail below. The initial issue to address is in respect of Complaint A and Complaint B. The only terminated complaint that can be the subject of these proceedings is Complaint A. The second and more substantial point is, regardless of whether the terminated complaint is Complaint A or Complaint B, to establish if the proceedings have no reasonable prospects of success. The resolution of these issues will lead to the determination of whether the Application filed 20 August 2012 is frivolous, vexatious and/or an abuse of process.
Before proceeding to an analysis of these propositions I wish to note that Mr Thomas informed the Court that he appears as an unrepresented litigant with very limited experience with court and legal processes and the manner in which these types proceedings are conducted. He indicated that it was his understanding that the purpose of this hearing was for the parties to supply any additional information to the Court specifically requested and for the Court to adjudicate on the Summary Dismissal Application that had been brought by IBM. He understood that both parties had disclosed their argument in their respective written submissions and that he would be placed at a considerable disadvantage if he were required to engage in argument with the IBM’s counsel because of his lack of experience, and because his disability may contribute negatively to his case. Mr Thomas indicated that he was cognisant of the limitations due to his condition and that he did not wish to enter to spontaneous debate over unexplained subject matter.
I indicated to Mr Thomas that I was concerned as to whether he had been advised as to the difficulties that may be experienced in discrimination cases and noted that this matter was originally in the docket of Smith FM who had transferred the matter to my docket on his retirement. Mr Thomas confirmed that the complexity of this jurisdiction for a lay advocate had been briefly explained by Smith FM. I reiterated the general comment that all Australian discrimination laws are extremely complicated because they are extremely technical and a person without legal training and without skill in this particular area of law would find them difficult to navigate and comprehend. This proposition would even apply to some legal practitioners. Mr Thomas indicated that he had taken great care with his written submissions, but that it would be difficult for him with his neurophysiological condition to enter spontaneous debate. I informed Mr Thomas that I understood his position and indicated that the traditional approach is that both parties appear before the Court at a hearing and highlight the documents they are putting forward and the arguments they are advancing.
There was no need for new material to be put on as the Court would consider the contents of the affidavits that had been filed in accordance with prior Court orders. All of the material that was contained in the Exhibit Bundle prepared by Counsel representing. I will refer to the documents as they are found in the Exhibit Bundle and, where possible, give reference to where I have drawn the material from. IBM has also assisted the Court by preparing a bundle of decided cases (“List of Authorities”) in this area and I will make reference to the decided cases in these reasons.
The one qualification I will make for this approach is that I will consider the brief submissions on Complaint B which was introduced to these proceedings by Mr Thomas after the date of directions hearing on 28 March 2013 setting down the date for hearing IBM’s Summary Dismissal Application. This situation arises because the only complaint that can be the subject of these proceedings is Complaint A. This is because at the time the proceedings commenced with the filing of the Application on 20 August 2012 the only complaint that had been terminated for the purposes of s.46PO of the AHRC Act was Complaint A which related to events in 2005 and 2006. The Notice of Termination issued by the AHRC is dated 9 August 2012. The termination notice which is being referred to as Complaint B is dated 17 October 2012, after the date of the filing of the Application in this Court.
The basis of the Court’s jurisdiction with respect to claims relating to disability discrimination is a complaint that has been terminated by the AHRC. Ascertaining the parameters of a terminated complaint is addressed in the decision of Price v Director-General, Departments of Education & Training (NSW) (supra) (List of Authorities, Tab 8) per Cameron FM (as he then was) at [25], where his Honour stated:
25. In Hollingdale v Northern Rivers Area Health Service [2004] FMCA 721, Driver FM said at [10]:
The task for the Court is to determine what are the parameters of the complaint that has been terminated. The documents on which that determination may properly be based include, but are not necessarily limited to, the notice of termination and accompanying letter from the President, and the terms of the document or documents setting out the complaint or complaints to HREOC.
At [31] of Price (supra) the operation of s.46PO(3) is considered, which is the provision that states that the subject matter of a human rights application to this Court or the Federal Court of Australia must be the same or substantially the same as the discrimination alleged in the terminated complaint, or arise out of the same act, omission, or practice that was subject to the terminated complaint. At [31] his Honour continued:
31. However, the respondent’s submissions are not limited to this point. The Department also submits that the grounds of the application to this Court raise issues which were not raised in the complaint made to the Commission. That this is not permissible is made clear by the terms of s.46PO(3) as well as by the cases which have considered it such as Jandruwanda v Regency Park College of TAFE [2003] FCA 1455, Yee v North Coast Area Health Service [2007] FMCA 1788 and Hollingdale v Northern Rivers Area Health Service.
The consequences of that impermissibility are set out in Price (supra) at [34] where his Honour stated:
34. None of the matters raised in the second paragraph of the application were included in the complaint made to the Commission and thus in these proceedings the Court has no jurisdiction in relation to them. The allegation that the applicant was required to complete modules of work relates to the implementation of the DESU enrolment, not its termination. The alleged requirements on the applicant to attend a particular public school or to enrol in home schooling may be factually consequential upon the termination of the DESU enrolment but do not arise out of it.
In the matter before this Court, none of the issues raised in Complaint B, the only complaint Mr Thomas sought to proceed on (as he’d abandoned Complaint A), were included in the complaint made to the AHRC. Consequently, in these proceedings the Court has no jurisdiction in relation to these issues. Examination of the Application filed 20 August 2012, the Notice of Termination dated 9 August 2012 and the accompanying letter from the President’s Delegate all make clear that the only complaint that is capable of being subject of these proceedings is Complaint A.
Complaint A
Following the approach outlined above, I turn to the Application itself, which is located at Exhibit Bundle Tab 1. Appearing on p.1 below the Court seal is the date of 20 August 2012, being the date that the proceedings were commenced. At p.3 under the heading “Part A - Orders sought”, Mr Thomas seeks:
1. Re-employment under terms suitable for both parties, as previously disclosed by the applicant and known by respondent.
2. The Respondent (and if it is necessary, the Court) to recognise the legitimacy of the applicant’s right to reemployment in respect to s.5 and 6 Disability Discrimination Act 1992.
In the Application under “Part B - Grounds of Application” the following appears:
Management intimidation a reasonable request to vary terms of employment in 2005 to be as they are now known to both parties. Dismissive arrogance following intimidation leading to withdrawal by the applicant which led to “redundancy”-based dismissal by respondent in 2006.
Normally appearing at “Part F – Required Documents” are the documents that must accompany an applicant under the AHRC Act alleging unlawful discrimination, being a copy of the complaint to the AHRC and the notice of termination because the cause of action arises upon termination of the complaint to the AHRC. These documents are not attached to the reproduction of the Application appearing behind Tab 1 of the Exhibit Bundle, but are attached to the Application in the Court File.
Appearing At Tab 2, pp.6-17 of the Exhibit Bundle and identified as Annexure “A”, p.2 is the Affidavit of Service of Owen Thomas affirmed 10 October 2012 annexing the orders of his Honour Smith FM dated 5 October 2012 which stated:
1. The applicant must serve a sealed copy of his Application and of this order on the Respondent by leaving a copy at its registered office, all by registered post to that address, before 19 October 2012.
2. The application is adjourned for further directions on 2 November 2012 at 9.30am at court 6D level 6, John Maddison Tower, 88 Goulburn Street, Sydney.
Annexure “B” to that affidavit is a copy of the Human Rights Application (Exhibit Bundle, Tab 2, pp.13-17).
Appearing at Tab 3 of the Exhibit Bundle is the October Thomas Affidavit. Annexure “A” is a copy of Notice of Termination dated 9 August 2012. These documents constitute Complaint A. As the Notice of Termination is dated 9 August 2012 and the proceedings were commenced on 20 August 2012 it is clearly within the 60 day time period where proceedings can be commenced in this Court without the requirement to seek leave.
Appearing at Tab 3, p.22-24 of the Exhibit Bundle is the AHRC President’s Delegate’s decision letter dated 9 August 2012. In the third paragraph, under the heading “Your complaint” the final sentence states:
…You claim that IBM’s action in making you redundant in 2006 is disability discrimination.
That is, Complaint A is the only complaint that this Court has jurisdiction to determine. At p.23 of the Exhibit Bundle, under the heading “Possible Further Action” it states:
The AHRCA says that after a complaint is terminated, the complainant may make an application to the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by the respondent to the terminated complaint. Information about the court process is available from a court registry.
Clearly, that is what Mr Thomas has done and the above documents satisfy the requirement that set the boundaries of what has been referred in these reasons as Complaint A. I address the prospects of Complaint A in further detail below.
Complaint B
Annexure “B” of the October Thomas Affidavit appearing at p.2 (Exhibit Bundle; Tab 3, p.40) is the document identified as Complaint B. This document is a notice of termination from the AHRC dated 17 October 2012, being approximately two months after these proceedings were commenced. Appearing at pp.41-42 is the AHRC’s President’s Delegate’s decision letter. It is important to note that this letter is in a different form to that contained to the 9 August 2012 decision letter (Exhibit Bundle, Tab 3, p.22). The 17 October 2012 letter does not set out the basis of the alleged discrimination. At the bottom of the page under the heading “Possible Further Action” it states:
The AHRCA says that after a complaint is terminated, they complainant may make an application to the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by the respondent to the terminated complaint. Information about the court process is available from a court registry.
Consequently, if Mr Thomas wanted to make a complaint to this Court about the complaint terminated on 17 October 2012 (Complaint B), he should have commenced fresh proceedings by lodging an application in this Court within 60 days of 17 October 2012. Also, within Complaint B at p.43 of the Exhibit Bundle is a copy of Mr Thomas’ complaint that was submitted by email to the AHRC. Importantly, that document was sent on 2 September 2012, which is also after the application in this Court was filed. In that email correspondence in “Part 3 – Details about the Complaint” (Exhibit Bundle at Tab 3, p.44) the details of the complaint are recorded as follows.
Part 3 – Detail about the complaint
Why are you complaining to the commission? I have been discriminated against because I have a disability
If you have been treated unfairly for another reason, please state that reason:
When did this happen to you? After 30 August, 2012
What happened to you? In 2005, I was employed as a Graduate Consultant / Developer. The AHRC has significant knowledge of my circumstances with regard to my neuropsychological condition, and how this condition contributed to my earlier dismissal from this position 15 months later in May 2006. I reapplied for the graduate position last Thursday, and in that position, declared (yet again) to IBM that I was attempting to re-apply for a job which IBM admitted me to before. I made it clear to them that although it has been more than 24 months since I graduated, and otherwise in accordance with the Disability Discrimination Act 1992, IBM should consider my application, and give me another go.
Part 4 – How has this affected you?
What loss or harm have you experienced because of what happened to you? This attempt for re-employment at IBM has failed, I think I have reasonably solid grounds for making a claim to have my position re-instated as the relaxation of the 24 month rule is one of several reasonable adjustments that would cause IBM no unjustifiable hardship.
…
Part 5 – Result?
What kind of outcome do you want to resolve your complaint? I want this job. I want this job because I want IBM to acknowledge that the reason I left in 2006 was due to an undiagnosed neuropsychological condition. I believe IBM can consider my disability and make adjustments to the way in which their work is to be done (I’m not asking that the work be changed in any way) so to make a productive career as an employee of IBM accessible to me. I want another go at being a productive contributor to IBM and its customer’s business.
Part 6 – Other ways you have tried to resolve the complaint?
Complaints to other agencies: I have complained to the AHRC numerous times before about similar treatment by IBM.
If so what was the outcome of your complaint? YES
Significantly, from the above description, the act of discrimination complained of occurred after the current proceedings were commenced. The other important aspect to be noted is that it has been more than 24 months since Mr Thomas had graduated from university. This is an important factor because it cannot enliven direct discrimination in respect of Complaint B. There is no reasonable prospect of success because there is no less favourable treatment of Mr Thomas compared with a comparator. This argument will be expanded upon below.
Also appearing within Complaint B of the October Thomas Affidavit, p.11 (Exhibit Bundle, Tab 3, pp.49-50) is an IBM job application, headed “Global Business Services Graduate Consultant – July 2013 – Canberra”. Under the second job description sub-heading, it states:
As a new graduate, you will work on a variety of projects for clients across a wide spectrum of industries, experience different working environments and roles.
At p.50 of the Exhibit Bundle, in the description of the employment position the following appears:
Our Graduate Program:
Øis an elite program to develop and nurture top talent
Øprovides a sense of connectedness, being part of a community
Øenables strong corroboration and teaming
Øensures customised career planning and one-on-one attention,
Øwill help participants gain leadership and development skills
Øprovides monitoring, shadowing and peer to peer reviews.
Øprovides outlets to give back and make a difference
Øprovides a structured, broader and accelerated approach to career development ensuring breadth of exposure to the GBS business
The document continues:
This position is a part of the IBM Consulting by Degrees Graduate Program.
We will consider applicants who have:
· A Degree in or studying IT, Computing, Computer Science or Engineering, or even a combination of these disciplines.
· Graduating in the last 18 months or due to graduate by mid-year 2013.
· …
· Have no more than 2 years full time relevant work experience.
· …
That is the material that is before the Court that constitutes the boundaries of Complaint B.
It is acknowledged that there is considerable intermingling of Complaint A and Complaint B. In respect of the Court’s jurisdiction under s.46PO of the AHRC Act the Court can only consider this application in respect of Complaint A as the Court has no jurisdiction to circumvent the operation of s.46PO(3) of the AHRC Act. In passing, I note that there is Complaint C in the material filed by Mr Thomas, and the approach of that terminated complaint must be the same as that adopted in respect of Complaint B.
Role of Comparator
I now turn to the issue of the prospects of success in that there is no causal connection between Mr Thomas’ attribute and any conduct by IBM. Mr Thomas has not been treated less favourably because of his disability. In order to have a proper claim for discrimination based on a disability there is a need to have a comparator. This is apparent from the decision in Purvis (on behalf of Hoggan) v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92. This proposition has been effectively summarised in Seers v Australia Post (supra) per O’Dwyer FM (as he then was) at [14]-[15].
In Purvis v State of NSW (supra) it was established that it is necessary, in order to sustain a complaint of disability discrimination under s.5(1) of the Disability Discrimination Act, to identify the appropriate comparator to whom more favourable treatment would have been given. At [214] their Honours Gummow, Hayne and Heydon JJ stated:
214. The comparison that is to be made is of the treatment given or proposed to be given to the disabled person and the treatment of a person without the disability "in circumstances that are the same or are not materially different". Recognising that s 5(1) requires comparison with the treatment that would be given to a person without the disability is critical to the proper application of the Act. It is a comparison which is very different from the comparisons required by other forms of disability discrimination legislation.
Then at [222]-[224] of Purvis (supra) their Honours went on the explain how the comparison is to be undertaken:
222. It may readily be accepted that the necessary comparison to make is with the treatment of a person without the relevant disability. Section 5(1) makes that plain. It does not follow, however, that the "circumstances" to be considered are to be identified in the way the appellant contended. Indeed, to strip out of those circumstances any and every feature which presents difficulty to a disabled person would truly frustrate the purposes of the Act. Section 5(2) provides that the relevant circumstances are not shown to be materially different by showing that the disabled person has special needs. The appellant's contention, however, went further than that. It sought to refer to a set of circumstances that were wholly hypothetical - circumstances in which no aspect of the disability intrudes. That is not what the Act requires.
223. In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability.
224. The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
In Mr Thomas’ Points of Claim, under the heading “5.3 Definition of a disability and direct disability discrimination” (Exhibit Bundle, Tab 4, p.67), Mr Thomas identified the comparator as someone “who is employed by IBM in the same job as himself, but who does not exhibit symptoms of his disability”. This is the correct comparator when considering Complaint A based on a reasonable reading of Purvis. Whether there has been less favourable treatment is dealt with in the written submissions prepared by Mr Glover and reproduced at [22]-[24] above which follows from the conclusion that it is only Complaint A that can be the subject of these proceedings.
Mr Glover’s submissions deal with the material contained in the December Thomas Affidavit and, in particular, Annexure “1”, being the medical report of Doctor James Heiner dated 10 December 2012 (Exhibit Bundle, Tab 5, p. 82) and Annexure “2”, being the medical report from Illawarra Brain Injury Services dated 13 November 2009 (Exhibit Bundle, Tab 5, p.85). These annexures are Mr Thomas’ medical evidence establishing his disability. On a fair reading of these documents, it does not establish a causal nexus between Mr Thomas’ disability and IBM’s conduct. I note that no objection on any technical basis has been raised in respect of this material. The Court also notes that in the letter from Dr Heiner, a consultant psychiatrist, in the second paragraph, he states:
I understand that this is to accompany an application to the Court regarding “an unfair dismissal claim”. I don’t know the exact details of that claim, or exactly what information would be required. For this reason I will provide a brief summary and, if further information is required, it can be requested.
Then under the subheading “Resulted impairment” Dr Heiner states:
From a functional point of view, Mr Thomas is an intelligent, qualified computer programmer. He enjoys this work, and is able to spend long periods at the computer, apparently programming in a professional, efficient and functional manner. The difficulties occur when he is in an environment with other people, as he becomes distracted. His anxiety and uncertainty about what others are doing means that his concentration is broken, and he becomes somewhat disjointed and fragmented in his productivity.
It is for the above reasons that I would recommend that Mr Thomas be provided with employment or seek employment where the need for him to have frequent, disruptive contact with others is minimised.
The inference that can be drawn from the above statement is that Dr Heiner appears to have taken, on face value, what Mr Thomas has told him.
The second report annexed to the December Thomas Affidavit has been prepared by the Illawarra Brain Injury Service on 13 November 2009. On the third page of the report (Exhibit Bundle, Tab 5, p.87) it states:
…The degree to which his brain injury has impacted on psychiatric factors is less clear and further history may shed further light in such aetiologies if warranted.
These reports put into issue the causal connection between Mr Thomas’ disability and his capacity to function in a work environment.
Attached to the December Thomas Affidavit at Annexure “5” (Exhibit Bundle, Tab 5, p.96) is a copy of Mr Thomas’ Centrelink employment separation certificate which indicates that his employment commenced on 14 February 2005 and his last working day with IBM was 4 May 2006, with his employment being terminated due to shortage of work or redundancy. The employment termination statement provided to Mr Thomas is a summary of his final entitlements (December Thomas Affidavit, Annexure “6”, Exhibit Bundle, Tab 5, p.98) reveal a redundancy payment and his final entitlements when he ceased employment at IBM. Of critical importance to these proceedings is that throughout the period of his employment with IBM, both Mr Thomas and IBM were unaware of Mr Thomas’ disability. Mr Glover addresses this in his written submissions reproduced at [33] above.
In the original Points of Claim, under the heading, “Legal argument” and under the subheading “5.2 Knowledge of a disability is NOT a necessary factor in direct discrimination” Mr Thomas states:
For the sake of clarity, I will state a specific impression of the principle of direct disability discrimination I have formed from reading the DD Act and through my exposure to relevant case law: Knowledge of a disability is NOT a necessary factor establishing a causal link in direct disability discrimination. Neither myself, nor any other attendee knew of my condition when the fateful meeting in 2005 took place. Everyone at that meeting, however, did observe a symptom of my disability. Mr Speer, the project line manager with which I was working, Mr Collins, and various others with whom I had contact with while an employee of IBM observed my symptoms generally in this interval of time.
In Zoltaszek v Downer EDI Engineering Pty Ltd (No 2) [2010] FMCA 938 at [91], the justice noted that the applicant did not inform the respondent of a physical disability. Reading the case notes, it appears that the applicant did not sufficiently the respondent of the facts that were known by the applicant; the lack of disclosure of known facts and the asymmetry of knowledge appears to imply that causation could not be found. This general judgement to be fair especially if one or more parties intentionally withhold disclosure to gain an unfair advantage over one or more other parties.
However, I believe this asymmetry does not apply in my case; no one, including myself, had any idea of my disability either at the meeting or in general. I contend that this general lack of knowledge does not limit liability in the legislation. I can see no connection between a knowledge and causation given in s.5(1) of the DD Act.
(Exhibit Bundle, Tab 4, p.66-67)
Mr Glover, in his written submissions (reproduced at [28] above), responds to the decision in Zoltaszek (supra) and I am satisfied that his submissions are correct in this regard.
In the December Thomas Affidavit, Annexure “9” (Exhibit Bundle, Tab 5, pp.109-111) is Mr Thomas’ job application which was prepared and submitted via the internet for the Graduate Consultant position with IBM commencing in July 2013 in Canberra. This application was unsuccessful and Mr Thomas complained to the AHRC in September 2012 which is after these proceedings were commenced (20 August 2012). This job application, its rejection and corresponding complaint to the AHRC have been identified throughout this judgment as Complaint B.
The following key information is contained on the front page of that employment application:
First Study (Bachelor)
University of Wollongong, information technology, bachelor of computer science.
…
Highest qualification level achieved: Bachelor’s degree
(Exhibit Bundle, Tab 5, p.109)
In that employment application Mr Thomas’ period of study is nominated as February 1996 to July 2003, with graduation occurring in 2003. On the following page the question appears:
Have you ever worked at IBM before?
Start date: 14 February 2005
End date: 5 May 2006
Regular Hire
(Exhibit Bundle, Tab 5, p.110)
Under the heading “Applicant: Additional Remarks” the following comments appear:
I have a disability that influences my ability to work in situations that involve a moderate to high degree of stress or distraction, and find it difficult to maintain concentration for extended periods. <br><br>I am making this application in the hope that you consider my candidature under relevant equal opportunity considerations. 1. Part time work at no less than 50% FTE, and 2. No less than 95% work place based at my own discretion (home). <br><br> However, you may also see my candidature as suitable to an EEO or CSR policy; my employment might be used by yourselves as publicity to show that IBM is indeed, a Great Place To Work, and true haven for workplace diversity <br><br> Please note that I have secured employment for IBM in 2005, but had to leave 15 months later due to my disability, which at that time, was undiagnosed, and unknown both to myself and to IBM. Hence, in this application, I am asking for re-employment in an identical position which will pay consideration to my disability by allowing my employ to be under the conditions I ask.
(Exhibit Bundle, Tab 5, p.110-111)
Taking Mr Thomas’ employment application as set out above and for the moment putting aside his entry under “Additional Remarks” and treating them as not have being made, then the remainder of the job application establishes the comparator for this complaint. This test is applied in the following manner in that a person who was in Mr Thomas’ position with his work history and graduation details, would not be considered for a position as a graduate consultant by IBM because they would fail to meet two criteria that are mentioned in the job application (above at [66] and [67] as against [54]). That is the comparator for Complaint B and, consequently, Complaint B has no reasonable prospects of success. There is no less favourable treatment on the basis of Mr Thomas’ disability.
In the December Thomas Affidavit at Annexure “12” (Exhibit Bundle, Tab 5, p.124) is an email from Jonathon Reyes of IBM to Mr Thomas dated 21 November 2011. This letter was forwarded to Mr Thomas in relation to his earlier complaint concerning his rejection from being hired as an enterprise integration engineer. Importantly, within that email it specifically mentions to Mr Thomas why he cannot be considered for the Graduate Program, as follows:
I can confirm that based on our chat this morning that I cannot consider you for the IBM Graduate program as you have previously been employed by IBM for 15 months and have graduated in a period outside the 24 months required by the program.
I will discuss any opportunities that are available with the broader recruitment team, should an opportunity come to light I will reach out to you. If there are none available there is no further help I can provide.
In the meantime, I would encourage you to pursue applications via our employment site.
This conduct, on behalf of IBM, is similar to that demonstrated in the decision in Chung v University of Sydney (supra) per his Honour Driver FM (as he was then). In Chung, the University went to extra lengths to help a non-English speaking student who was experiencing difficulties in a course that he was undertaking. The applicant in that matter was undertaking a conversion course to commence medical practice within Australia. His Honour made the following comments at [22]-[24]:
22. …It is apparent that Mr Chung suffered difficulties in coping with his university studies almost from the outset. It is also apparent that the university made a substantial effort, in fact a very substantial effort, to attempt to assist him with his studies to enable him to complete his course successfully. Ultimately, after seven years the university felt that it was unable to continue with those efforts and took the decision to exclude Mr Chung.
23. Mr Chung has referred to concern he had that some of his medical certificates were not accepted by the university by reason of them coming from an Asian medical practitioner but there was nothing on which I could form a view that there is any substance to that concern. It is clear that the university accepted a number of medical certificates for the purposes of making special arrangements for Mr Chung.
24. Mr Chung also considers that the university treated him inappropriately in suggesting that he had time off from his studies but that in itself would not support a successful case of disability discrimination because it would not be treating him adversely, relative to other people. I think it simply indicates that the university was doing its best to attempt to make arrangements for Mr Chun that would assist him. The university made other arrangements in addition including allowing Mr Chung to sit repeat examinations and allowing him to attempt to repeat courses at a later time. Mr Chung's academic record indicates that over all, despite those efforts by the university, he was largely unsuccessful in completing the requirements of his academic studies. The university had a policy of maintaining academic standards. The university was entitled, consistent with its policy and in fairness to other students, to decide at the point that it did decide that it could no longer grant special accommodation to Mr Chung.
This is similar to the conduct of IBM in attempting to ascertain whether there was a position for which Mr Thomas would be suitable, bearing in mind that he could not be suitable for a graduate position for reasons completely unrelated to his disability.
Applying the principles from Purvis (supra) in relation to Complaint B the relevant comparator is a person who graduated from university at the same time as Mr Thomas, has a similar work history of Mr Thomas, but does not have Mr Thomas’ disability. When those three matters are considered in relation to Mr Thomas, even using Mr Thomas’ application, there can be no less favourable treatment on the basis of his disability. In the Full Federal Court decision of Forbes v Australian Federal Police (Commonwealth of Australia) [2004] FCAFC 95 (List of Authorities, Tab 10) per Black CJ, Tamberlin and Sackville JJ, the Court considered an alleged unlawful discrimination claim in relation to the Commonwealth through the Australian Federal Police purportedly discriminating against a female officer on the ground of her disability, namely, a depressive illness from which she suffered. The alleged unlawful discrimination related to her conditions of employment and to the Australian Federal Police refusal to reemploy her at the conclusion of her fixed term contract as a police officer. In addressing the issue regarding the refusal to reemploy the Full Court stated at [80]-[81]:
80. …If the Disability Discrimination Act makes it unlawful to refuse re-employment to someone because of their lengthy absence from work, where that absence is due to a disability, the appellant’s submission would have force. The difficulty is that the appellant must establish that the AFP treated her less favourably, in circumstances that are the same or are not materially different, than it treated or would have treated a non-disabled person. The approach of the majority in Purvis makes it clear that the circumstances attending the treatment of the disabled person must be identified. The question is then what the alleged discriminator would have done in those circumstances if the person concerned was not disabled.
81. Here, the appellant was not reappointed because the history of her dealings with the AFP, including her absence from work for nearly three years, showed that the employment relationship had irretrievably broken down. There is nothing to indicate that in the same circumstances, the AFP would have treated a non-disabled employee more favourably. On the contrary, the fact that the Panel did not know of the appellant’s medical condition indicates very strongly that it would have refused to reemploy a non-disabled employee who had been absent from work for a long period and whose relationship with the AFP had irretrievably broken down.
The circumstances in the case of Complaint B are disclosed from Mr Thomas’ own job application. Putting to one side the additional remarks about his disability which are reproduced at [68] above, there is no evidence that IBM would have treated a person in Mr Thomas’ situation, but without his disability any differently. For that reason there is no less favourable treatment of Mr Thomas because of his disability for any proceedings founded on Complaint B as this would have no reasonably prospect of success. Mr Thomas was applying for a graduate position and was treated no less favourably than anyone who had graduated in 2003 and has more than two years work experience.
Complaint C
As referred to above, Mr Thomas in his affidavit material has included correspondence concerning an earlier terminated complaint. In the December Thomas Affidavit at Annexure “7” (Exhibit Bundle, Tab 5, p.101), there is a letter from IBM responding to the AHRC dated 21 October 2011. At Annexure “8” (Exhibit Bundle, Tab 5, p.102-103) is email correspondence from Mr Thomas to the AHRC challenging IBM’s response. Mr Thomas claims that this material was not included to raise an additional third complaint before the Court, but rather as supporting evidence of the two complaints contained in his Amended Points of Claim. The value of this material contained in Annexures “7” and “8” of the December Thomas Affidavit (Exhibit Bundle, Tab 5, p.100-107) is minimal because Complaint C relates to Mr Thomas’ failure to obtain a job as an enterprise integration developer and not for employment in their graduate consultant intake of 2013. In IBM’s response to the AHRC (Exhibit Bundle, Tab 5, p.101), IBM stated:
Application for Job ID GBS-0415539- Enterprise Integration Developer.
…
IBM is seeking to recruit two Enterprise Integration Developers, one for the Business Process Management, and the other for Integration practices. There were 38 candidates for this role. Mr Thomas was shortlisted for manager review of his application. Mr Thomas was interviewed by IBM on 27 September 2011.
…
The position description for this role is attached to this letter. IBM’s assessment of the skills required to perform the role against Mr Thomas’ skills from his CV demonstrated to us that whilst he had certain skills which are required, he did not meet all of the skill requirements – particularly when compared with some of the other candidates. For example, of the 11 highly regarded skills for the Integration Development Role, Mr Thomas appears to only meet five based on his resume.
The letter then contains a detailed assessment on Mr Thomas’ skills and why he was ultimately judged as unsuitable when compared with another candidate for the job.
Proceedings being Frivolous, Vexatious or an Abuse of Process
The Court’s attention has been drawn to some emails attached to the Srdanovic Affidavit. Ms Srdanovic is a senior associate of Ashurst, retained in the matter by IBM (Exhibit Bundle, Tab 7). Before going to the individual emails, Mr Thomas refers to this correspondence in his original Points of Claim under the subheading “4. Evidence” (Exhibit Bundle, Tab 4, p.63) in the following manner:
Since November 2005, I have been sending emails primarily to federal and state politicians letting them know of my circumstance and of how I feel about general societal regards for telework and how this society appears to permissively cajole, admonish, and intimidate me away from my home and into foreign, dark, and threatening cities; never to remain in one place, let alone in my home. This vision of a life of transience amongst places full transient strangers is being presented to me as if this anathema is precisely what I desire. Nothing could be further from the truth. I explain more of this anathema in section 6 of this document.
While the contents of these letters is cathartic - I concede that a lot of it is even derogatory and abusive – these letters are an attempt to illustrate my acute feelings of disgust and frustration at the way this society appears to arrogantly discount the advent of the increasingly reasonable proposition of telework. Generally, I write these letters in an attempt to draw the readers’ attention the sever contradiction in industries which should be best placed to use telework: industries in which IBM is a significant contributor – Information Technology and Software Development industries.
Turning to the specific emails, I reproduce an email sent by Mr Thomas on 5 October 2012 located at Tab 7, p.137 of the Exhibit Bundle:
Re: Employment-from home.
05/10/2012 10:50 PM
Owen Thomas to: Ross Collins, Jonathon Reyes, IBM A&NZ Recruitment Centre, LAW KLC Legal, peter.dutton.mp, senator.milne, “a.albanese.mp”, tanya.pilbersek.mp, pdavis, joe, “Wong, Penelope (Senator)”, senator.conroy, “Bird, Sharon (MP)”,
…
IBM ya bastards,
Now that we have a case before the courts, I’ll remove you from my list of friends. You’ll be back as soon as I declare myself bankrupt.
Fuck off now.
…
I acknowledge the oral submissions made by Mr Glover during the hearing that the reading of the Srdanovic Affidavit and the attached emails were not intended to paint Mr Thomas as someone who entertains fantasies or in a derogatory light, rather, they are used to demonstrate that these proceedings disclose no cause of action and are frivolous or vexatious in the legal sense. The tone and language which is used in these emails is unusual and in some instances totally inappropriate. I make this observation in light of Mr Thomas sending this material to a list of recipients including:
a)Mr R Collins; an IBM employee;
b)Mr J Reyes; an IBM employee;
c)IBM A&NZ Recruitment Centre;
d)Kingsford Legal Centre, run by the University of NSW;
e)Peter Dutton; Shadow Minister for Health;
f)Senator Milne; leader of the Greens Party;
g)Minister Albanese; Minister for Transport;
h)Minister Plibersek; Minister for Health;
i)P. Davis;
j)Senator P. Wong; Minister for Finance;
k)Senator Conroy; Minister for Communications and Digital Economy; and
l)Ms Sharon Bird; Member for Cunningham (Mr Thomas’ local member).
Other names appear on various emails, however, the above email at [76] demonstrates that many of the names appearing in the above list are extremely remote from Mr Thomas’ proceedings, with the exception that these people are being addressed in the form of a campaign to foster telework which Mr Thomas is advocating.
In an email sent by Mr Thomas on 3 October 2012 (Exhibit Bundle, Tab 7, p.141) to Ross Collins, Jonathon Reyes, IBM, A&NZ Recruitment Centre and others it states:
Your lawyer bastards may be thinking this…
If Owen is confident in his opinion of these machinations, then why does he wish to poke and prod IBM with the consequence that his poking and prodding might damage his case?
My answer is this:
I am not confident that I will receive justice. I am not a lawyer, and have a very low esteem that justice will be delivered to me. My poking and prodding, if having any effect whatsoever in the greater scheme of my life, may only be an act of catharsis, so give it to me baby – cleanse my soul.
Of course I will abide by magistrates caution should the magistrate make such a caution against me for further representations to IBM in this medium while the case is in the Court. The magistrate’s advice will only be followed while this case is before the Court; my conduct beyond this point will be subject to my exclusive discretion.
In the Exhibit Bundle at Tab 7, p.142 as part of a chain of email correspondence from Mr Thomas, it reads:
On 2 October 2012 17:10, Owen Thomas <email address> wrote:
Oi! IBM
I think I almost stuffed up. We’re going to have our first court hearing on Friday! It’s going to be at 9.30am. Won’t it be great!
Run!
Run!
Run!
..ahhh coming to gechya..
(Exhibit Bundle, Tab 7, p.142)
Appearing at Tab 7, p.147 of the Exhibit Bundle is an email sent by Mr Thomas to Mr Collins and others. This email is identified because it contains a number of totally inappropriate words used to address Mr Collins. The usage of these terms is justified by Mr Thomas as he claims that Mr Collins was the person at IBM who intimidated him. Another example is located in the Exhibit Bundle at Tab 7, p.149, which can only be characterised as fairly threatening communication. This is more significant because, besides being addressed to IBM there is a long list of parties copied with the correspondence who are Ministers of the Commonwealth in very senior positions. Similarly, in the Exhibit Bundle at Tab 7, p.153, there is an email that is not addressed to IMB but to Mr P. Dutton, the Shadow Minister of Health and this email contains quite inflammatory language. On the following page (Exhibit Bundle, Tab 7, p.154) there is an email in a fairly aggressive tone, again written by Mr Thomas to Mr Collins and copied to numerous people. The significance of that email is the date that it was sent being 17 September 2012, which is after the current proceedings had commenced.
Turning to an email in the Exhibit Bundle at Tab 7, p.176, Mr Thomas writes to IBM, A&NZ Recruitment Centre and a number of Commonwealth politicians who appear to be regular addressees. This email is dated 15 August 2012, approximately a week before these proceedings were commenced. Within that correspondence it states:
I’m glad to inform you all that I will apply to the Federal Magistrates Court with the most recent AHRC complaint. If it should fail (I suppose it most probably will), there will be future opportunities. I will wait for any future job opportunities on IBM’s web site. I will apply for a job at IBM, make a complaint at the AHRC if no offer is made, and take my case to the Federal Magistrates Court if the AHRC terminates the complaint. I will do this over and over again until I die or get some satisfaction.
This demonstrates a level of vexatiousness in that these proceedings have not been brought for a proper purpose. Mr Thomas sought to address the issue of vexatiousness and indicated that he wrote these emails to express a mixture of catharsis, wishful thinking and the desire to purge himself of the emotional turmoil resulting from the events of 2005. The events of intimidation by Mr Collins, who is one of the recipients of the more wordy of the emails, was not intended as a threat, however, Mr Thomas acknowledged that he was not sure whether he had threatened anyone and had difficulty remembering precisely what he had said. Mr Thomas stated that he did not intend any physical danger, violence or anything of that nature towards anyone.
Conclusion
Based on the material, submissions and oral argument which have been summarised above I conclude as follows:
a)Mr Thomas’ Human Right Application against IBM in these proceedings will inevitably fail;
b)Given Mr Thomas is a self-represented litigant and has indicated to the Court that due to issues associated with his neuropsychological condition, he finds that it is extremely difficult to make detailed oral submissions or respond to arguments advanced by counsel for the other side;
c)Mr Thomas, being aware of these personal limitations, has spent considerable time preparing detailed written submissions including review of decided cases relating to this area of law;
d)While acknowledging Mr Thomas’ detailed written preparation, his claims against IBM are set out in his Application and supporting material against IBM are clearly untenable and his case is unarguable;
e)To allow the proceedings to continue beyond this point would be manifestly unfair to IBM, as it would bring the administration of justice in to dispute amongst right thinking people;
f)There is clearly a public interest in the finality of the litigation as it is oppressive for IBM to have to defend proceedings which do not fall within the provisions of the legislative structure in which they are brought: see Quall v Northern Territory [2009] FCA 18 at [100]-[101]; and
g)In preparing these reasons for the judgment I have endeavoured to provide Mr Thomas with references to the source material and authorities so that he is able, in his own time, to examine and understand the reasons for the summary dismissal of these proceedings.
Consequently, Mr Thomas’ Human Rights Application, filed 20 August 2012 must be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) and s.17A of the Federal Circuit Court of Australia Act1999 (Cth) with costs awarded to IBM.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 29 November 2013
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