Tighe v Macquarie Community College Inc

[2000] NSWADT 37

CITATION:	Tighe -v- Macquarie Community College Inc. [2000] NSWADT 37
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Enid Tighe RESPONDENT Macquarie Community College Inc.
FILE NUMBER:	991024
HEARING DATES:	13/03/2000
SUBMISSIONS CLOSED:	03/13/2000
DATE OF DECISION:	04/06/2000
BEFORE:	Bartley R - Judicial Member; Alt M - Member; McDonald O - Member
APPLICATION:	Disability Discrimination - In work - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT S Winters, barrister RESPONDENT E Devine, solicitor
ORDERS:	1. The complaint is dismissed, both as to Direct and Indirect Discrimination.; 2. No order as to costs.

1 On the 30 April 1997 Mrs Enid Tighe complained to the Anti Discrimination Board alleging discrimination on the grounds of disability and victimisation in employment by her employer the Macquarie Community College.

2 The Complaint was lodged out of the six months statutory time frame. The President of the Anti Discrimination Board in the exercise of his discretion under section 88(4) of the Anti discrimination Act 1977 accepted the complaint out of time.

3 It appears that the parties in due course commenced negotiations regarding settlement, however on 17 February 1999 the Applicant wrote to the Board and requested that the complaint be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal.

4 The Complaint was listed for hearing at the Administrative Decisions Tribunal on 13 March 2000. At the commencement of the hearing the Applicant abandoned her complaint of victimisation against the Respondent. However Ms Winters on behalf of the Applicant sought leave to add a claim of indirect Discrimination.

5 Ms Devine, who appeared for the Respondent opposed this application. The claim was added and an adjournment offered to Ms Devine, which she declined. She indicated that notwithstanding the short notice the Respondent was prepared to deal with the matter though she did protest again at the late notice.

Facts

6 Mrs Tighe, the Applicant joined the Respondent as a casual employee in 1991 as a clerical assistant. In May 1995 she was appointed to the permanent part-time job-share position of Administrative Assistant. She worked two days one week and three days the following week. These two positions were the first positions made permanent by the Board, except that of Mr Papallo the Chief Executive Officer. All the remaining positions were “casual” except Mr. Papallo’s. Casual workers arranged between themselves when they could work and if one was not coming in one day, that person arranged for another one to work instead. It was as Mr. Papallo said a “family arrangement”.

7 The matter in dispute between the parties is of small compass and concerned the leave of the Applicant. A table setting out the steps that happened follows:

18 March 1996 Applied for paid and unpaid leave from 20 May to 12 July 1996 for overseas trip.

19 March Leave approved The Applicant and her husband were not able to travel overseas as planned because the husband was diagnosed as having cancer(“the disability”) and on 26 April 1996 had an operation for the removal of the tumour.

Late April Respondent allows immediate commencement of leave so that Applicant can care for husband.

9 July Applicant requested further 6 months leave without pay.

16 July Respondent rejects application for 6 months leave but extends Applicant’s return to work from 14 July to 19 August 1996.

21 July Applicant replies indicating she has no option other than to resign, given the refusal of her leave application.

1 August Respondent extends the Applicant’s return to work date to 2 September 1996.However the Respondent indicated that due to the requirements of the College no further extension of leave was possible.

8 The Applicant then considered as a result of the refusal to extend her leave she had no option other than resign from her employment so that she could care for her dying husband.

9 Ms Winters at the commencement of proceedings said that Applicant now also pleaded indirect discrimination which was along the lines of a "requirement or condition of Mrs Tighe’s employment that she work 5 days a fortnight and not take unpaid leave."

10 Neither the Applicant nor Respondent in the correspondence between them ever adverted to such a requirement, nor for that matter even hinted at it. It is clear both parties accepted that Mrs. Tighe had a permanent position as distinct from a “casual”, and neither suggested otherwise. Neither party ever suggest Mrs. Tighe’s employment had an implied condition as suggested by Counsel.

11 The tribunal is of the view that having regard to the evidence that it is not possible to draw the inference suggested by Ms Winters.

12 The tribunal was impressed with the way the parties corresponded and it is a great pity that the matter could not have been settled without resort to the tribunal.

13 It appears to the tribunal that Mr Papallo was at all times anxious to help Mrs Tighe At no stage was there any evidence to the contrary.

14 In fact Mr Papallo extended her possible return date on two occasions. He had his commitments to the College and was anxious to have Mrs. Tighe’s help, in view of her experience. Therefore, Mr Papallo was concerned for Mrs Tighe to return to work. Mrs Tighe on the other hand had obligations to her sick husband. Possibly a conference between the parties at some stage may have resolved the impasse but it did not happen.

15 The Tribunal is of the view that on the evidence, whilst Mrs Tighe's husband had a disability within the terms of the Act, the fact of the disability was not the cause of Mr Papallo's decision to refuse Mrs Tighe's application for leave, which she says caused her resignation.

16 Mrs. Tighe said that Mr,. Papallo had suggested to her over the phone that it would “probably be in her own interests to resign” Mr. Papallo denied that this conversation took place.

17 Despite questioning by the Tribunal it was not clear in what way a resignation rather than a dismissal would be of more benefit to the Applicant.

18 The Tribunal is unable to find whether or not the conversation as alleged took place but even if it did it does not appear to the Tribunal to justify or compel a resignation. There was no evidence of any other conversation on the phone or written in the letters along those lines.

19 Mr. Papallo had a community college to organise and run and he had to balance Mrs. Tighe’s desire to nurse her husband through his disability with his duties as an employer. He did this by granting her l9 weeks leave both unpaid and paid; Mr. Papallo had never had this position arise before (which is understandable as he only had two permanent part-time employees).

20 He gave Mrs. Tighe leave for as long as he could bearing in mind his work commitments. It is quite clear that the refusal of leave to Mrs. Tighe was not caused by her husband’s disability. On the contrary because of he husband’s disability he gave her considerable leeway until in his judgment as an employer he could go no further.

21 On the evidence it could not be said Mr. Papallo treated Mrs. Tighe any less favourably than any other person who had a relation with a disability.

22 Miss Winter in opening her case submitted that the Tribunal had to decide whether Applicant could “causally” establish that the disability of her husband was the cause of her being refused leave. Mrs.Tighe on the balance of probabilities has failed to establish this fact.

23 The Complaint is dismissed, both as to Direct and Indirect Discrimination.

24 The Tribunal having heard both parties on the question of costs makes no order as to costs.