Vassollo v Jetswan Pty Ltd
[2010] FMCA 708
•17 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VASSALLO v JETSWAN PTY LTD & ANOR | [2010] FMCA 708 |
| HUMAN RIGHTS – Disability discrimination – store manager suffered workplace injury requiring treatment and lifting restrictions during recovery period – during recuperation period was demoted to sales assistant – whether demotion and termination involved harassment in respect to the disability – onus of proof on the applicant – no breach of legislation established – application dismissed. |
| Disability Discrimination Act 1992 (Cth), ss.5, 6, 10, 11, 15 Disability Discrimination and Other Human Rights Legislative Amendment Act 2009 (Cth) Evidence Act 1995 (Cth), s.140 Human Rights and Equal Opportunities Commission Act 1986 (Cth), s.46PO Federal Magistrates Court Rules 2006 (Cth), r.4.02.2(b) |
| Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Badman v Grasshoppers Early Learning Centres Pty Ltd [2009] FMCA 32 Bailey v Australian National University (1995) EOC 92-313 Briginshaw v Briginshaw (1938) 60 CLR 336 Carr v Baker (1936) 36 SR (NSW) 301 Chapman v Cole (2006) VSCA 70 Conners v Craigio (NSW SC McInerney J 5 January 1993, Unreported BC9303838 Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257 Damiano & Anor v Wilkenson & Anor [2004] FMCA 891 Dare v Pulham [1982] HCA 70 Department of Health v Arumugam [1988] VR 319 Dutt v Central Coast Area Health Services EOD [2003] NSWADTAP 3 Employment Advocate v Williamson (2001) 111 FCR 20 Fetherston v Peninsula Health [2004] FCA 485 Ferrus v Qantas Airways Ltd [2006] FCA 812 G v H [1994] HCA 48 Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 Glasgow City Council v Zafar (1997) IRLR 229 Greater Taree City Council v Peck [2002] NSWCA 331 Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 Haywood v Rohd Four Pty Ltd & Anor [2008] FMCA 1490 Hautlieu Pty Ltd t/as Russell Pathology t/as McIntosh [2000] WASCA 146 Jango v Northern Territory of Australia (2007) 159 FCR 531 Jones v Dunkel (1959) 101 CLR 298 KLK Investments Pty Ltd v Riley (No 1) (1993) 10 WAR 523 Luxton v Vines (1952) 85 CLR 352 Miller v Cameron (1936) 54 CLR 572 Nominal Defendant v Owens (1978) 22 ALR 128 Nesterczuk v Mortimore (1965) 115 CLR 140 O’Callaghan v Loder (1983) 3 NSWLR 89 Peter Li v Joseph Eliezer (1997) unreported, NSW Supreme Court, 134516 of 1996 Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Shaikh v Commissioner, New South Wales Fire Brigade (NSW) (1996) EOC 92-808 Sharma v Legal Aid (Qld) (2002) 115 IR 91 Sivananthan v Commissioner of Police (NSW) [2001] NSWADT 44 Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR 561 State of Victoria & Ors v McKenna (1999)140 IR 256 Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133 State of Victoria v McKenna (1999) 140 IR 256 Trustees of the property ofCummins (a bankrupt) v Cummins [2006] HCA 6 Waters v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | PETER VASSALLO |
| First Respondent: | JETSWAN PTY LIMITED T/AS CASH CONVERTERS BLACKTOWN (ABN 91 971 227 677) |
| Second Respondent | PAUL STRINGER |
| File Number: | SYG 835 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 25, 26, 27 May 2009 and 23 June 2009 |
| Date of Last Submission: | 14 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Shoebridge |
| Solicitors for the Applicant: | Barwick Legal |
| Counsel for the Respondent: | Mr M. Seck |
| Solicitors for the Respondent: | Duncan Cotterilll |
ORDERS
The application filed on 13 February 2008 is dismissed.
The applicant file submissions on costs by 18 October 2010.
The respondent file submissions on costs by 25 October 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 835 of 2008
| PETER VASSALLO |
Applicant
And
| JETSWAN PTY LIMITED T/AS CASH CONVERTERS BLACKTOWN (ABN 91 971 227 677) |
First Respondent
And
| PAUL STRINGER |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were brought pursuant to s.46PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth). Mr Vassallo claims that Jetswan Pty Ltd and Paul Stringer have engaged in conduct contravening s.5, s.6 and s.15 of the Disability Discrimination Act 1992 (Cth) in that Mr Vassallo’s employment was terminated in contravention of s.15 of the Disability Discrimination Act.
Background
The First Respondent, Jetswan Pty Ltd is a franchisee of Cash Converters based at Blacktown, New South Wales. The Second Respondent, Mr Paul Stringer, is a director and shareholder of the First Respondent. On 27 December 2000, the Applicant, Mr Peter Vassallo commenced employment with Jetswan Pty Ltd. On or about 3 March 2005 promoted to the role of Store Manager of the Blacktown store. He was responsible for the running of the store, including its financial performance. During late 2006, the sales, profit and finances of Jetswan Pty Ltd declined markedly.
On 16 February 2007, Mr Vassallo was demoted to the role of Retail Sale Assistant for reasons of poor performance and conduct in his role as Store Manager. Mr Vassallo continued employment in his new role. On 24 March 2007, Jetswan dismissed Mr Vassallo on the basis of poor attitude, conduct and performance. On or about 31 May 2007 Mr Vassallo lodged a complaint to the Human Rights and Equal Opportunity Commission (HREOC). Jetswan Pty Ltd submitted a response to the complaint on 20 August 2007. Conciliation was not successful and HREOC terminated the complaint on 20 March 2008.
On 8 April 2008, Mr Vassallo filed an application in this Court under s.46O of the Human Rights and Equal Opportunities Act 1996 alleging that Jetswan Pty Ltd had contravened the Disability Discrimination Act and claims damages. At a directions hearing on 9 May 2008. The parties handed up draft orders which were made by consent that the matter was to be progressed by way of pleadings in accordance with r.4.02.2(b) of the Federal Magistrates Court Rules 2006 (Cth) and the solicitors representing Mr Vassallo filed points of claim. At the request of the parties these orders were made.
The points of claim and consequent particulars limit the range of matters that can be put before the Court by the way of evidence and argument: Jango v Northern Territory of Australia (2007) 159 FCR 531 at [75]-[76]. The pleadings enable the relevance and admissibility of evidence to be determined at trial: Miller v Cameron (1936) 54 CLR 572 at 576-577; Dare v Pulham [1982] HCA 70 at [6]. The Applicant’s case must be confined to and the presentation of the Applicant’s case cannot diverge from the pleadings and particulars: Da Costa v Australian Iron & Steel Pty Ltd (1978) 20 ALR 257 per Barwick CJ at 260. The Court should not conduct a roving enquiry to determine whether the Applicant has a claim outside the points of claim: Jango v Northern Territory (supra) at [84]. The significance of these restrictions in proceedings under the Disabilities Discrimination Act will be referenced and expanded in the reasoning set out below.
On 23 June 2008 the solicitors representing Jetswan and Mr Stringer sought further and better particulars in respect of the Points of Claim and these were provided on 3 July 2008. On 25 July 2008, representatives of Jetswan and Mr Stringer filed their defence. At the same directions hearing an order was made that the parties approach a registrar of this Court to list and hear a mediation of the matter. A mediation took place on 28 October 2008 before Registrar Hannigan but was unsuccessful and the matter was listed for formal hearing commencing on 25 May 2009.
Pleadings
The Points of Claim filed on behalf of the Applicant and the corresponding defence filed on behalf of the Respondents are set out below.
The Applicant relies on the following facts and assertions:
The Parties
1. The First Respondent is a corporation and is capable of being sued by its said name and style.
Defence: Admitted
2. At all material times, the Second Respondent has been a director and shareholder of the First Respondent and was a person involved in the conduct of the Firs Respondent in its dealings with the Applicant as pleaded in this Point of Claim.
Defence: Admitted
Factual Background
3. The Applicant (DOB: 23 July 1981) was employed by the First Respondent between 27 December 2000 and 26 March 2007.
Defence: Admitted
4. The Applicant initially commenced employment with the First Respondent in the capacity of retail sales. On or around 2 March 2005, the Applicant was promoted to the position of Store Manager.
Defence: Admitted
5. On 15 January 2007 the Applicant injured himself whilst performing duties at work. Following the injury the Applicant was diagnosed as having soft tissue injury to this right elbow.
Defence: Admitted
6. On 16 January 2007 the Applicant returned to work in accordance with a WorkCover Medical certificate which deemed the Applicant fit to perform suitable duties. In particular, the Applicant was restricted to lifting a maximum of five kilograms and was not to engage in frequent tasks using his right hand.
Defence: Admitted
7. on 16 February 2007, the Applicant slipped and injured his ankle whilst on his way to work. The Applicant proceeded to work and was advised by the Second Respondent that he was no to leave work to have his ankle examined until there were sufficient staff present. No other staff were available and the Applicant remained at work.
Defence: Admitted
8. Later that day, 16 February 2007, the Applicant was advised by the Second Respondent that following the close of business, the Applicant was to meet with the Second Respondent. The Applicant met with the Second Respondent and was notified that he was being demoted to the position of retail sales. Prior to the meeting the Applicant had no knowledge or indication that his performance was in question.
Defence: The Respondents admit the Second Respondent met with the Applicant on 16 February 2007 and advised the Applicant that he would be demoted, but otherwise deny the allegations pleaded in paragraph 8.
9. The following Monday, 19 February 2007 the Applicant arrived at work and was advised by the Second Respondent that he was to have two weeks off work at the expense of the First Respondent. The Applicant was advised to take this time off work to rest and recover from his injuries.
Defence: Admitted
10. On 23 February 2007 the Applicant attended the premises of the First Respondent to collect his pay. Whilst the Applicant was at the premises of the First Respondent he was instructed by the Second Respondent to finalise the accounts in regards to the store’s lay-by and borrow books. On this occasion the Second Respondent also stated that he no longer trusted the Applicant, which had the effect of undermining the trust and confidence in the employment relationship.
Defence: The Respondents admit the Applicant attended the premises of the First Respondent to collect his pay on 23 February 2008 but otherwise deny allegations pleaded at paragraph 10.
11. On 26 February the Applicant received a telephone call from the recently appointed store manager Mr. Howard Lucasan. During this telephone conversation the Applicant was questioned in regards to missing stock. In particular, the Applicant was questioned in regards to a missing 22ct gold necklace.
Defence: Not Admitted
12. On 5 March 2007 the Applicant returned to work following the two week period he was instructed to have off work. On returning to work the Applicant was told that he was not to work in the jewellery section or anywhere in the back area unsupervised which had the effect of undermining the trust and confidence in the employment relationship.
Defence: The Respondents admit the Applicant returned to work on 5 March 2007 but otherwise deny the allegations pleaded at paragraph 12.
13. Following the Applicant’s injuries as detailed at paragraphs 5 and 7 above the Applicant became subject to abusive language and derogatory comments in relation to his injuries.
Particulars of occasions where the Applicant was subject to abusive language and derogatory comments in relation to his injuries
a. On 15 January 2007, the Applicant was questioned by the Second Respondent as to the circumstances of the Applicant sustaining his injury. The Second Respondent said to the Applicant, words to the effect:
“You fell up the stairs? Pete how the f**k do you fall up stairs?”
Defence: The Respondents admit the Second Respondent spoke with the Applicant about how the Applicant sustained his injury but otherwise deny the allegations pleaded at paragraph 13(a)
b. on 15 January 2007, the Second Respondent instructed the Applicant to notify the Second Respondent of the outcome of his medical appointment of that date. During the conversation the Second Respondent said to the Applicant words to the effect:
“Pete, people doing just fall up stairs. How the f**k do you want me to believe you. Look I’ve got to go, keep in touch about your arm”.
Defence: The Respondents admit the Second Respondent asked to be kept up to date about the outcome of the Applicant’s medical appointment that day but otherwise deny the allegations pleaded at paragraph 13(b)
c. On 8 March 2007, the Applicant was having a discussion with Marisa Fernandes, the assistant store manager. During this conversation, Marisa Fernandes said words to the effect:
“I don’t appreciate you coming into work and doing nothing. I also don’t appreciate you giving other staff the reason to cruise and not to work.”
Defence: Not Admitted
14. As a result of at the manner stated in paragraphs 10 and 13 above the Applicant felt stressed, upset and anxious.
Defence: Respondents not required to plead the allegations.
15. On 16 March 2007 the Applicant was questioned by Marisa Fernandes, in regards to his performance levels and specifically why he was not performing as he had in the past. The Applicant explained to Marisa Fernandes, that due to his injuries he was restricted in the service he could provide, in particular, stating that it was very frustrating to require assistance whenever showing heavy items to customers.
Defence: Not Admitted
16. On 20 March 2007, the Applicant was requested to attend a discipline counselling meeting with Mr. Howard Lucasan. The Applicant was provided with a weekly target sheet. The Applicant refused to sign the weekly target sheet as the Applicant did not agree with the targets set for his performance; in particular, the Applicant believed the targets were unfair and unachievable given the restrictions placed on his duties.
Defence: The Respondents admit that on 20 March 2007 Mr Lucasan met with the Applicant and gave the Applicant a weekly target sheet which the Applicant refused to sign but otherwise deny the allegations pleaded in paragraph 16.
17. Later that day, 20 March 2007, the Applicant was approached by the Second Respondent whilst outside the rear of the shop. The Second Respondent said to the Applicant, words to the effect:
“Because of you I have lost $300,000 worth of stock, you should know where it is you were the store manager.”
Following this comment the Second Respondent advised the Applicant that he and his business partners intended taking the Applicant to Court. The Second Respondent also made a comment to the Applicant, words to the effect:
“You are just like your father on workers comp.”
Defence: The Respondents deny the allegations pleaded in paragraph 17.
18. At 5:00pm, on the same day, 20 March 2007 the Applicant was issued with a discipline counselling form from the Second Respondent. The form had been witnessed by Howard Lucasan and Marisa Fernandes and set out a number of allegations regarding the Applicant’s performance. The Applicant refused to sign the discipline counselling form as he did not agree with the allegations set out therein.
Defence: The Respondents admit that on 20 March 2007 the Second Respondent issued the Applicant with a discipline counselling form which was witnessed by Howard Lucasan. The Respondents deny that the discipline counselling form was witnessed by Marisa Fernandes. The Respondents admit the Applicant refused to sign the discipline counselling form but otherwise deny the allegations pleaded at paragraph 18.
19. On 22 march 2007, the Applicant gave the Second Respondent a form indicating that the Applicant would require time off work to attend an upcoming appointment for a MRI scan with a diagnostic imaging centre.
Defence: Not Admitted
20. On Saturday 24 March 2007, the Applicant received a telephone call from the Second Respondent. The Applicant was advised that as of Monday 26 March 200, the Applicant’s employment was terminated.
Defence: Admitted
21. On 26 March 2007, the Applicant attended the premises of the First Respondent to collect his final payments. The Applicant was handed a separate letter and a letter of termination. The separate letter was dated 23 March 2007.
Defence: The Respondents admit the Applicant attended the First Respondent’s premises on 26 March 2007. The Respondents admit the Applicant was handed a separate letter, inaccurately dated 23 March 2007 and a letter of termination dated 26 March 2007. The Respondents also provided the Applicant with an “employee Termination Record” which detailed the payments made to the Applicant on the termination of his employment with the First Respondent.
22. The letter of termination addressed to the Applicant specified that his employment was being terminated due to continued problems relating to his performance in the position of salesperson and serious performance issues stemming from the Applicant’s previous position of store manager. The Applicant disputes these allegations and believes they are unsubstantiated and without justification.
Defence: In answer to paragraph 22 of the Points of Claim, the Respondents will refer to and rely on the separation letter and the letter of termination for its full terms and effect and otherwise deny the allegations pleaded at paragraph 22.
Disability Discrimination
23. In the period 15 January 2007 to 26 March 2007, the Applicant suffered from a disability within the meaning of section 4 of the Disability Discrimination Act 1992.
Defence: denied
24. The First and Second Respondents treated the Applicant less favourably than other persons in the same or not materially different circumstances by reason of the Applicant’s disability.
Particulars
a. By demoting the Applicant as detailed at paragraph 8 above;
b. By subjecting the Applicant to abusive language and derogatory comments as detailed at paragraph 13 and 17 above;
c. By accusing the Applicant of theft and not investigating other employees who held keys to the First Respondent and the access codes to the safes. The Applicant repeats the particulars at paragraphs 10, 11, 12 and 17 above;
d. By terminating the Applicant’s employment on 26 March 2007 by reason of his disability;
Defence: denied
25. The First and Second Respondents discriminated against the Applicant by requiring the Applicant to comply with a requirement or condition which is a substantially higher proportion of persons without the disability are able to comply and which was not reasonable having regards to the circumstances of the case.
Particulars
a. By requiring the Applicant to sign a weekly target sheet and achieve those targets which targets did not accommodate the restrictions on his duties. The Applicant repeats paragraph 16 above;
b. By issuing the Applicant a discipline counselling form which made allegations in regards to the Applicant’s performance. The allegations did not take into consideration the fact that the Applicant was on restricted duties. The Applicant repeats paragraph 18 above.
Defence: denied
26. The First and Second Respondents thereby unlawfully discriminated against the Applicant on the ground of his disability contrary to s.15(2)(c) of the Disability Discrimination Act 1992 by dismissing the Applicant.
Particulars
The Applicant repeats the particulars at paragraphs 20, 21 and 22 above.
Defence: denied
27. The First and Second Respondents thereby unlawfully discriminated against the Applicant on the grounds of his disability contrary to s.15(2)(d) of the Disability Discrimination Act 1992 by subjecting the Applicant to detriment.
Particulars
a. By demoting the Applicant as detailed at paragraph 8 above;
b. By subjecting the Applicant to abusive language and derogatory comments as detailed at paragraph 13 and 17 above;
c. By accusing the Applicant of theft and not investigating other employees who held keys to the First Respondent and the access codes to the safes. The Applicant repeats the particulars at paragraphs 10, 11, 12 and 17 above;
Defence: denied
28. As a result of the aforesaid discrimination the Applicant suffered loss and damage.
Defence: denied
29. In the circumstances in paragraphs 8, 9, 10, 11, 12,, 13, 15, 16, 17, 18, 20, 21 and 22 the First and Second Respondent were in contravention of Sections 5, 6, 10 and 15 of the Disability Discrimination Act 1992.
Defence: denied
30. At all material times, the Second Respondent was a person within the meaning of Section 122 of the Disability Discrimination Act 1992 and acted in breach of Section 122.
Particulars
a. The Second Respondent caused, induced, aided or permitted the First Respondent to do the acts in contravention of the Disability Discrimination Act 1992.
b. The Applicant repeats the particulars at paragraph particulars at paragraphs 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 20, 21 and 22 above.
Defence: denied
Loss and Damages
31. As a result of the breaches of the First and Second Respondent pleaded at paragraphs 24, 25, 26, 27, 29, and 30 the Applicant has suffered loss and damage.
Particulars of loss and damage
Past loss of earnings
I. Up to the Applicant finding alternate employment on 5 September 2007, the Applicant suffered loss of earnings of approximately $24,348.00 gross.
II. Up to 7 April 2008 the Applicant suffered a loss of earnings of $18,527.00 gross. Further particulars of this calculation will be provided.
III. From 8 April 2008 the Applicant suffers a loss of earnings of approximately $500.00 gross per week on an ongoing basis. Further particulars will be provided.
IV. The Applicant claims superannuation entitlements of 9% on the lost earnings. Further particulars will be provided.
V. The Applicant claims an amount in respect of loss of annual leave entitlements. Further particulars will be provided.
VI. Interest on any sums awarded for loss of earnings.
b. Future Loss of Earnings
I. The Applicant claims a lump sum amount in respect of future loss of earnings at the rate of $ 500 net per week from 5 September 2007 for a two year period, minus the sum referred to at paragraph 32. a II above, which is $500 x 104 weeks, which equals $52,000 minus $18,527.00 which gives a total figure of $33,473.00 gross. Further particulars of this calculation will be provided.
c. General Damages
I. The Applicant makes a claim from the Respondents for general damages with such sum to be assessed by the Court with respect of the actions pleaded at paragraphs 24, 25, 26, 27, 29 and 30.
Defence: denied
The Applicant’s case
Mr Vassallo claims that Jetswan Pty Ltd and Mr Stringer discriminated against him in the course of his employment with Jetswan by reason of his disabilities in the period from 15 January 2007 to 26 March 2007.
On 15 January 2007 Mr Vassallo was asked by another employee, Babak Nikbin, to assist him to move some stock in the section upstairs of the Blacktown store. As he ascended the stairs he states that he missed the third or fourth stair and fell forward, taking his weight onto his right arm so as to prevent him falling on his face. He states that he felt an instant pain through his right arm. He reported the accident to Mr Stringer and then left work to see a general practitioner, Dr Longuido. The doctor completed and provided Mr Vassallo with a WorkCover NSW Medical Certificate recording the soft tissue injury and indicated fitness to work from 16 January to 23 January subject to limiting any lifting to 5kgs and no frequent use of the right hand and arm. Six subsequent medical certificates were issued by Dr Longuido that ultimately extended this restriction on lifting and repetitive use of his arm until 13 April 2007. On 16 February 2007, whilst on his way to work, Mr Vassallo slipped on the front porch of his home and injured his ankle.
It is Mr Vassallo’s case that because of, and not necessarily solely because of his disabilities, he was subject to the conduct complained of. The crux of Mr Vassallo’s case is that no material change to the employment relationship occurred other than his injuries, that “cogently explain the conduct complained of?” The submission advanced by Mr Shoebridge is to examine the treatment of Mr Vassallo before and after the accident occurred. It is submitted that this comparison is a fair and viable one. That comparison, it is submitted, proves the less favourable treatment and grounds of liability.
Mr Vassallo has made serious claims of unlawful discrimination against Jetswan and Mr Stringer. Largely his case is based on allegations that Mr Stringer made remarks of an abusive, culpable and sensitive character and acted capriciously and unreasonably in demoting and dismissing him to prove Mr Stringer’s state of mind before engaging in the unlawful discrimination. Such allegations are serious in nature and reflect heavily on the character of Mr Stringer: Sharma v Legal Aid (Qld) (2002) 115 IR 91 at [98]; Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [573]-[576].
In the application filed in these proceedings on 8 April 2008 and in the points of claim set out above at [7] above Mr Vassallo alleges that the Respondents had engaged in direct discrimination against him by treating him less favourably than other persons in the same or not materially different circumstances because of his disabilities. Paragraphs 26 and 27 of Points of Claim provide the following particulars of alleged detriment:
a)Demoted him from the position of store manager to retail sales person (para. 8 in the points of claim);
b)Subjected him to abusive language and derogatory comments (paras. 13 and 17 in the points of claim);
c)Accused him of theft and not investigating other employees for theft (paras. 10, 11, 12 and 17;
d)Terminated his employment (paras.20-22 of the points of claim).
The Points of Claim particularised two elements of indirect discrimination:
a)The Respondent’s required the Applicant to sign a weekly target sheet that did not accommodate the restrictions on his duties (para 25(b)); and
b)it is only Mr Vassallo who was subject to disciplinary action for failing to meet his sales targets.
Damages claimed are for losses arising from conduct complained of being for demotion, termination, continuing lesser earnings and general damages.
Evidence
The following affidavit evidence was filed on behalf of the Applicant:
a)Affidavit of Peter Vassallo, sworn 19 September 2008 (“first affidavit of Mr Vassallo”);
b)Affidavit of Peter Vassallo, sworn 26 November 2008 (“second affidavit of Mr Vassallo”);
c)Affidavit of Ms Cidalia Marisa Fernandes sworn 22 October 2008; and
d)Affidavit of Howard Uy Lucasan sworn 23 October 2008.
The following exhibits were filed on behalf of the Applicant:
A1 – Malik Investments letter;
A2 – Cash Converters Blacktown Profit and Loss Statement and partner’s profit distribution (ending 30/06/06);
A3 – Email from P. Stringer to Cash Converters Blacktown (28/06/06);
A4 – Quarterly Review & Discussion for Blacktown (25/10/06);
A5 – Email from P. Stringer Blacktown Cash Converters (13/11/06);
A6 – Email from P. Stringer to Blacktown Cash Converters (13/01/07);
A7 – Email from P. Stringer to Blacktown Cash Converters (21/02/06);
A8 – Affidavit of CM Fernandes (22/10/08);
A9 – Staff Performance Retail (bundle) ; and
A10 – Affidavit of Howard Lucasan (23/10/08).
The following affidavit evidence filed on behalf of the Respondent was read:
a)Affidavit of Paul Arthur Stringer affirmed 28 October 2008.
The following exhibits were filed on behalf of the Respondent:
R1 – Notice to Produce (to Applicant );
R2 – Position Description – Store Manager, Peter Vassallo (3/03/05);
R3 – Store Standard Audit – Blacktown NSW (15/08/05);
R4 – Profit & Loss Statement of Jetswan Pty Ltd (July 05 to June 06) and (July 06 – June 07);
R5 – Store Audit Blacktown (8/02/06);
R6 – Quarterly Review and Discussion – Blacktown (8/02/06);
R7 – Monthly Store Targets Weekly Averages – Blacktown July 2006 to June 2007;
R8 – Workers Compensation for Peter Vassallo;
R9 – Diary ;
R10 – Memo from Cash Converters regarding contacting P. Vassallo fro Workers Compensation claim (30/01/07);
R11- Letter from Byrne to Stringer dated (31/01/07);
R12 – Letter including details of Peter Vassallo’s wages (07/02/07);
R13 – Letter to Mr Vassallo concerning provisional acceptance of medical expenses only (09/02/07);
R14 – Letter to Mr Stringer re provisional acceptance of liability for closed period (09/02/07);
R15 – Claims action summary sheet 22/01/07 – 20/03/07;
R16 – Handwritten history review by Peter Vassallo;
R17 – Typed notes by Peter Vassallo;
R18 – Allianz Injury Management Plan (23/02/07);
R19 – Recov Initial & Workplace Assessment Report (07/03/07);
R20 – HREOC Complaint form;
R21 – Cash Converters Reference Letter (30/05/07);
R22 – Peter Vassallo’s CV;
R23 – Emirates Letter of offer (25/05/08);
R24 – Allianz Workers Compensation Renewal Account;
R25 – Store Performance Report;
R26 – Affidavit of Paul Stringer (28/10/08);
R27 – Letters from Duncan Cotterilll Lawyers to Barwick Legal and vice versa (bundle (23/06/08, 03/07/08); and
R28 – Shop Employees (State) Award (bundle).
HREOC complaint
The Human Rights and Equal Opportunity Commission acknowledged a complaint filed by Mr Vassallo under the Human Rights and Equal Opportunity Commission Act against Jetswan Pty Ltd t/a Cash Converters Blacktown and Mr Paul Stringer on the basis of discrimination in employment on the grounds of disability. That complaint was considered under s.5, s.6, s.10, s.11 and s.15 of the Disability Discrimination Act. Significantly, before this Court is material recorded in the complaint form at paras. 6, 7 and 10:
6. On 16 February 2007 Paul Stringer had requested I met with him at the Cash Converters Blacktown store at close of business. This meeting was also attended by Anish, the Liverpool Cash Converters Manager. At this meeting Paul Stringer said to me words to the effect:
PS: “Look Pete, you know why you are here. You’re here in regards to your demotion. I’m not happy with your work since you hurt your arm, and with all the jobs you can’t perform now”
PV: “You’ve got to be joking. After working six and a half years this is how your treating me. The only reason I can see you’re demoting me is because of my arm and costing you $4000 extra on next year’s premium.
7. Prior to that meeting, I had no indication at all that Paul Stringer was unhappy with my work performance as Store Manager, and I was shocked to hear that he was demoting me. I had a physiotherapy appointment that afternoon, 16 February 2007. I had a physiotherapist look at my ankle and he advised me to keep an ice pack on it.
…
10. Since I sustained my elbow injury there had been a number of occasions where Paul had used offensive language toward me, repeatedly Paul had used words such as “get fucked” and “fuck off” with regard to my injury.
Particulars of Occasions where Paul used offensive language toward me
a) On 15 January 2007, I had a conversation with Paul in regards to the circumstances of my accident at work, where words were said to the effect:
PV: “Babak called me upstairs to help him with something and as I was going up the stairs I missed third or fourth step and injured my right arm”
PS: “You fell up the stairs? Pete, how the fuck do you fall up the fucking stairs”
Further in the same conversation I told Paul of my intentions to see a doctor to which Paul replied stating words to the effect:
PS: “Make sure you call me with the fucking results from the doctor”
b) Following my appointment on 15 January 2007 I called Paul as he requested, to notify him of the outcome of the appointment. Paul and I had a conversation to the effect:
PV: “Hi Paul just came back from the doctors, he told me to start getting physio and to come back and see him on 22 January”
PS: “Pete, people don’t just fall up stairs. How the fuck do you want me to believe you. Look I’ve got to go, keep in touch about your arm”
c) On 16 February 2007 I recall another occasion where Paul used inappropriate language toward me. On this occasion Paul had asked me to meet with him at the store after hours. The only people present at the store when I arrived at 6:30pm were Paul, Anish and Howard. Paul asked me to walk through the store with him and as we did so Paul began questioning the pricing of the sale items. We had a conversation to the effect:
PS: “Why are some prices too high and some too low?”
PV: “Because there are three people pricing mainly David and I but also sometimes Marisa”
PS: “Fuck off, you’re full of fucking excuses!”
PV: “Well how about you tell me why all the prices are wrong”
PS: “Fuck off! Pete just fuck off!”
d) On 23 February I went to work at Cash Converters Blacktown to collect my weeks pay. Whilst I was at the store Paul again had a conversation with me using inappropriate language. I recall a conversation where words were said to the effect:
PV: “Please don’t speak to me with that foul language”
PS: “Fuck off”
This conversation took place within earshot of three other staff member, David Callandruccio, Phalan and either David Camilleri or Babak.
Consideration
Onus of proof
Mr Vassallo bears the onus of proof in proving the alleged unlawful discrimination excluding whether the requirement or condition is reasonable in the claim of indirect discrimination under s.6 of the Disability Discrimination Act: Sharma v Legal Aid (Qld) 2002 (supra) at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48]. Mr Vassallo must prove allegations according to the civil standard of proof established under s.140 of the Evidence Act 1995 (Cth) which codifies the common law position in Briginshaw v Briginshaw (1938) 60 CLR 336 that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove and, in particular, by reference to the gravity of the matter in question: Employment Advocate v Williamson (2001) 111 FCR 20 at [65]; Qantas Airways Ltd v Gama (supra) per Branson J at [128]. Alleged breaches of the Disability Discrimination Act require a higher onus of proof for the existence of facts as identified in Briginishaw v Briginshaw (supra) that applies to the alleged breaches of the: Dutt v Central Coast Area Health Services EOD [2003] NSWADTAP 3; State of Victoria v McKenna (1999) 140 IR 256 at [181]; Sharman v Legal Aid QLD 202 (supra) at [40]; Qantas Airways Ltd v Gamma (supra) per Branson J at [130].
Principles of drawing inferences
Mr Shoebridge advances the argument that rarely will a person positively state that they are discriminating against a person by reason of their disability. Silence or obfuscation are the more common approaches. Consequently for a cause of action to succeed it is normally necessary to draw inferences from a pattern or patterns of conduct to prove a case founded on discrimination. It is on this basis that Mr Vassallo presses his case in these proceedings and relies on the following line of authorities. In G v H [1994] HCA 48 at[4] it was held that:
…an inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary power of human reason in the light of human experience; it is not affected directly by any rule of law.
Inferences may properly be drawn from facts proven to the requisite degree of satisfaction: Nesterczuk v Mortimore (1965) 115 CLR 140 per Kitto J at [149]-[150] where His Honour said:
the Tribunal may of course reason for the material before it, drawing all logical inferences while refraining from speculation. In particular, by comparing that which has proved to have occurred with that which according to general experience is to be expected when a particular condition has been fulfilled, it may conclude that the condition was not fulfilled in a case before it…Res ipsa liquitur. By this process of reasoning many a case is decided.
Mr Shoebridge submits that Mr Vassallo accepts that he must establish that the circumstances appearing in the evidence give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability: Trustees of the property ofCummins (a bankrupt) v Cummins [2006] HCA 6 contends that in a civil claim it is not necessary for an Applicant to provide evidence to reject all innocent explanations for the conduct in order to prove an adverse inference: Chapman v Cole (2006) VSCA 70 per Callaway J where His Honour stated:
[14] In a civil trial the question is whether to draw an inference on the balance of probabilities and there need only be circumstances raising a more probable inference in favour of what is alleged: but, before it can be drawn, the inference must be something which follows from given premises as being at least probably true (references omitted).
[16] the test was not whether an inference of malice “the only inference reasonably open”. That is the test in a criminal case. Similarly, the Applicant did not have to show that, if the underlying facts were accepted, an inference “necessarily” followed. It only had to be more probable than not.
In Sharma v Legal Aid (QLD) (2002) (supra) at [40] states:
it is for the Applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case would usually depend on what inferences it is probable to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 ALLER 953 at 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised if at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425 at 433.
It is submitted that similar observations are applicable in disability discrimination cases. Mr Seck in his submissions also relied on Sharma v Legal Aid (Qld) (2002) (supra) at [40] and more recently in Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767 per Raphael FM at [7]-[9]. An inference may only be reasonably drawn on the basis of facts which have been established by the Applicant in evidence such that “it is more probable or that it exists than it does not”: Carr v Baker (1936) 36 SR (NSW) 301. For an inference to be drawn it must follow from given premises as certainly or probably true: Nominal Defendant v Owens (1978) 22 ALR 128 at 130 citing Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at 264.
Mr Seck submits that no inference can be drawn from conflicting conjectures of equal degrees of probability where reasons of equal sufficiency or insufficiency exists for other explanations: Luxton v Vines (1952) 85 CLR 352; Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133. The state of facts that leads an observer to think that the Applicant’s version is a possible version of what occurred is insufficient; this amounts to conjecture: see Carr v Baker (supra) at 206 – 307; Jones v Dunkel (1959) 101 CLR 298 per Kitto J at [305]; Peter Li v Joseph Eliezer (1997) unreported, NSW Supreme Court, 134516 of 1996 at [3]-[7]. However, where an alternative explanation is given for a decision or even where no explanation is given, a court ought not draw an adverse inference that the conduct occurred for an unlawful discrimination reason: Department of Health v Arumugam [1988] VR 319 per Fullagher J at 330 where His Honour stated:
If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non acceptance of an explanation can in itself provide an element of proof required. It can enable already available inferences to be drawn dishonest explainers with greater certainty, but that is all.
It is submitted that an adverse inference should not be drawn, that the conduct occurred on the basis of a prohibited characteristic unless there is sufficient evidence to reject all innocent explanations for the conduct: State of Victoria & Ors v McKenna (1999) 140 IR 256 at [42]. Given the serious nature of the allegations, an inference may only be drawn in circumstances “such as to fairly raise in an unsuspicious mind” that the inference of unlawful discrimination as the “probable explanation for the different treatment”: KLK Investments Pty Ltd v Riley (No 1) (1993) 10 WAR 523; EOC 92-525 at 70, 668.
Direct discrimination – treats the aggrieved person less favourably than a person without a disability
The approach for the analysis of whether the treatment of an aggrieved person is less favourable than a person without the disability (the comparator) is now well settled. In Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92, the judgment explores the conceptually difficult comparison of unfavourable treatment, under the first requirement of the definition. Subsection 5(2) and the subject matter of legislation suggests that the Act intends to permit different treatment of a disabled person, where this attempts to accommodate or to assist that person. It does not intend to totally prohibit on discriminatory treatment. Considerations such as these led the majority justices to reject the submission that the comparators hypothetical “same or not materially different” circumstances should exclude all attributes or consequences of the disability itself, and led them to confine the matters which are to be excluded from the comparators circumstances.
The following paragraphs from that judgment which are commonly referred to in an analysis in respect to a comparator are as follows:
[11] It may be accepted, as following from paras (f) and (g) of the definition of disability, that the term "disability" includes functional disorders, such as an incapacity, or a diminished capacity, to control behaviour. And it may also be accepted, as the appellant insists, that the disturbed behaviour of the pupil that resulted from his disorder was an aspect of his disability. However, it is necessary to be more concrete in relating para (g) of the definition of disability to s 5. The circumstance that gave rise to the first Respondent's treatment, by way of suspension and expulsion, of the pupil, was his propensity to engage in serious acts of violence towards other pupils and members of the staff. In his case, that propensity resulted from a disorder; but such a propensity could also exist in pupils without any disorder. What, for him, was disturbed behaviour, might be, for another pupil, bad behaviour. Another pupil "without the disability" would be another pupil without disturbed behaviour resulting from a disorder; not another pupil who did not misbehave. The circumstances to which s 5 directs attention as the same circumstances would involve violent conduct on the part of another pupil who is not manifesting disturbed behaviour resulting from a disorder. It is one thing to say, in the case of the pupil, that his violence, being disturbed behaviour resulting from a disorder, is an aspect of his disability. It is another thing to say that the required comparison is with a non-violent pupil. The required comparison is with a pupil without the disability; not a pupil without the violence. The circumstances are relevantly the same, in terms of treatment, when that pupil engages in violent behaviour. The law does not regard all bad behaviour as disturbed behaviour; and it does not regard all violent people as disabled. The fallacy in the appellant's argument lies in the contention that, because the pupil's violent behaviour was disturbed, and resulted from a disorder, s 5 always requires, and only permits, a comparison between his treatment and the treatment that would be given to a pupil who is not violent. Rather it requires a comparison with the treatment that would be given, in the same circumstances, to a pupil whose behaviour was not disturbed behaviour resulting from a disorder. Such a comparison requires no feat of imagination. There are pupils who have no disorder, and are not disturbed, who behave in a violent manner towards others. They would probably be suspended, and, if the conduct persisted, expelled, in less time than the pupil in this case.
[13] Similar considerations arise in respect of the related issue of identifying the ground of the first Respondent's action, which is to be considered in the light of both ss 5 and 10 of the Act. The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. It is the school authority that is the alleged discriminator, and it is the reason or reasons for action of the responsible officers of the school authority that is or are in question. It is their conduct that is to be measured against the requirements of the Act. If one were to ask the pupil to explain, from his point of view, why he was expelled, it may be reasonable for him to say that his disability resulted in his expulsion. However, ss 5, 10 and 22 are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of the principal to suspend and later expel the pupil5. In the light of the school authority's responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil's disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people.
[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator101. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.
[236] For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
In Fetherston v Peninsula Health [2004] FCA 485 per Heerey J, His Honour provided a helpful analysis of Purvis which assists in an understanding of the application of the principles in Purvis to other cases including the one currently before this Court. In that analysis His Honour referred to Purvis as follows:
[69] …A pupil in a school conducted by the Respondent had suffered brain damage in infancy. This disorder manifested itself in repeated acts of violence by the pupil against staff and other students. The school principal suspended him several times and eventually expelled him. By a majority (Gleeson CJ, Gummow, Hayne and Callinan and Heydon JJ, McHugh and Kirby JJ dissenting) the High Court held there had been no discrimination within the meaning of the Act.
[70] Gleeson CJ held (at [11]) that the comparison required by s 5 was with a pupil without the disability, not a pupil without the violence. The treatment of the pupil (suspension followed by expulsion) was to be compared with the treatment that would be given, in the same circumstances, to a pupil whose similar violent behaviour was not disturbed behaviour resulting from a disorder.
[72] Moreover, his Honour held (at [13]) that the student’s disorder and associated disturbed behaviour was, from the point of view of the school principal, “neither the reason, or a reason, why he was suspended and expelled”. The “expressed and genuine basis” of the principal’s decision was the danger to other students and staff constituted by the student’s violent conduct and the principal’s responsibilities towards those people.
Mr Vassallo relies upon the prohibitions in ss.5, 6 and 15 in Part 2 of the Disability Discrimination Act. Because these sections were amended by the Disability Discrimination and Other Human Rights Legislative Amendment Act 2009 (Cth), it is appropriate to set out therefore these terms in the sections as they stood at the relevant time.
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.
6 Indirect disability discrimination
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 the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.
…
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.
(3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person’s disability, in connection with employment to perform domestic duties on the premises on which the first‑mentioned person resides.
(4) Neither paragraph (1)(b) nor (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 the disability and the provision of which would impose an unjustifiable hardship on the employer.
It is well established that the references in s.15 to “discriminate… on the grounds of the … disability” not at large but confined to the definitions of direct disability discrimination in s.5 and of indirect disability discrimination in s.6. A “disability” was defined in s.4 of the Act which was also amended in 2009. The section as it stood at the relevant time was:
disability, in relation to a person, means:
(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future; or
(k) is imputed to a person.
disability discrimination has the meaning given by sections 5 to 9 (inclusive).
Observation as to injury
In the present case, there was limited medical evidence confirming that the malfunction of Mr Vassallo’s right arm meets the requirements specified above. There is limited prognosis on his ability to perform duties of his employment. It was common ground that he presented a medical certificate showing that he had been diagnosed with a condition but the immediate and long term physical impairments arising from the injury were poorly explained in the evidence. It is common ground that he was required to attend three sessions of physiotherapy per week but could return to work on the provision that he observed a lifting restriction or any repetitive activity for the injured arm. The parties were content to present their cases without exploring or challenging the immediate or long term effects of Mr Vassallo’s arm injury. Different witnesses expressed different beliefs as to the incapacitating effect on his work.
Section 5 defines direct disability discrimination and requires Mr Vassallo to establish that Jetswan Pty Ltd, in particular Mr Stringer, as the person whose actions are attributed to the discriminator, treated Mr Vassallo less favourably than he would have been treated a person in the same circumstances but without an arm injury requiring a lifting restriction, and did so because of that disability. Section 5(1) imposes two requirements: the finding that Mr Stringer treated Mr Vassallo less favourably than he would have treated the hypothetical comparator, and, if less favourable treatment is found, also a finding that Mr Stringer’s less favourable treatment was because of Mr Vassallo’s disability. Mr Vassallo’s representative bears the onus of proof on both of these requirements, and, also of the occurrence of the conduct alleged to constitute the discriminatory treatment. These statutory provisions have been explored in numerous cases and both counsel in their submissions have referred me to the recent discussion by the High Court in Purvis v New South Wales (supra). That case explored the conceptually difficult comparison of unfavourable treatment under the first requirement of the definition.
Sub-section 5(2) suggests that the Act intends to permit different treatment of a disabled person, where this attempts to accommodate or assist that person. It does not intend a total prohibition on discriminatory treatment. The definition operates in a context where the surrounding circumstances of unfavourable treatment of a disabled person may often not be normal. Consideration such as these resulted in the Court rejecting the submission that the comparator’s hypothetical same or not materially different circumstances should exclude all attributes or consequences of the disability itself and resulted in the Court confining the matters which are to be excluded from the comparator’s circumstances.
The second requirement of s.5(1) requires consideration of Jetswan and Mr Stringer’s reasons for taking the challenged action. This analysis requires consideration of s.10 Disability Discrimination Act which provides:
Acts done because of disability and for other reason
If:
(a) an act is done for two or more reasons; and
(b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantive reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason.
This provision retains the focus of s.5(1) upon the real reason for Jetswan Pty Ltd and Mr Stringer’s actions. It requires findings about the discriminator, and not about how a reasonable or other hypothetical employer would be motivated to act in the same circumstances. In order to reach a conclusion in respect of the four claimed acts of direct discrimination set out at [12] above it is necessary to consider the credit of witness evidence and each of the claims.
Witness’ Credit
Mr Vassallo’s credit
Mr Vassallo’s case depends largely on his credit as a witness. The majority of the alleged conversations he relies upon to support his case occurred in the absence of any independent corroborative witnesses. Consequently, the Applicant’s credit must be weighed against the Respondent’s witnesses including Mr Stringer, Ms Cidalia Marisa Fernandes, the assistant store manager and Mr Howard Lucasan, the store manager who replaced Mr Vassallo after his demotion.
There were three days of cross examination of Mr Vassallo by Mr Seck. Mr Shoebridge submits that Mr Vassallo was not a particularly sophisticated witness as he does not have a particularly high level of education and contends that he was evasive when answering the questions put to him. Mr Shoebridge contends that one very substantial challenge to Mr Vassallo’s credit occurred at the beginning of the cross-examination by Mr Seck alleging the reference given to Mr Vassallo by his former manager Mr Lucasan was not authentic (second affidavit of P Vassallo, Exhibit PV20, transcript p.47-48). The original of the document was produced on the second day of hearing (transcript p.89). This allegation was then dropped and Mr Lucasan never denied the authenticity of the document in his evidence.
Mr Shoebridge also referred to cross examination in respect to discrepancies between Mr Vassallo’s diary entry on 23 February 2007 when contrasted with the first affidavit of Mr Vassallo at paragraph [26]. This was put by Mr Seck as proving that the diary entry was inaccurate (Transcript (“T”) 3 p4-5).
In support of this contention, Mr Shoebridge argues that Mr Vassallo’s version of events contained in his affidavit material was corroborated by:
a)His 31 May 2007 statement attached to the HREOC application (Exhibit R20);
b)His contemporaneous “History Review” document Exhibit R16;
c)The 20 March 2007 notes written out by his then girlfriend headed “Claims Actions Summary Sheet” (Exhibit R15); and
d)His 19 April 2007 type history given to his solicitors.
Mr Shoebridge submits that there are minor natural variations in the syntax or the exact words used in this context, far from being a basis to attack Mr Vassallo’s credit. His evidence was that of a witness honestly seeking to recount an accurate version of events from memory. This natural variation can be contrasted with a witness who does not have a truthful recollection and requires the close aid of an initial written version for use as a crutch in making later statements or affidavits. Mr Shoebridge indicated to the Court that Mr Vassallo’s affidavits were prepared from meetings with his lawyers, partly based on Mr Vassallo’s diary notes, partly based on notes forming Exhibit R15 and R16 and Mr Vassallo’s recollection (T107, 45 – 108, 22). Mr Vassallo revived his memory from documents which were prepared contemporaneously and formed a summary. Mr Vassallo affirms that his affidavit evidence was ultimately a product of his recollection with the benefit of reviewing the contemporaneous records.
Mr Seck in his written submissions, challenges Mr Vassallo’s credit on the basis that none of the accounts are consistent and, in some aspects, are materially different. In some cases, Mr Vassallo does not record the important conversations or details which one would have expected in support of his claim. In other cases, Mr Vassallo records the details and evidence in one account but inexplicitly does not repeat them. Some examples include:
a)Mr Vassallo claims that he kept a diary during the period in early 2007 (Exhibit A9) which served two purposes: firstly to keep a record of key upcoming events (such as birthday’s, appointments and reminders) (T97, 43-47); and secondly to create a daily log of events that Mr Vassallo considered important which he would generally record on the relevant page (T98, 1-16; T99, 34-47). The explanation advanced on behalf of Mr Vassallo was that the diary was a 10cm by 18cm, 1 x 3 calendar entry per page, document. Moreover, Mr Vassallo’s evidence was that the diary represented “short notes of what happened on the day” (T104, 30). His evidence was that the diary does not record all matters that are the subject of this application: “Regarding to the diary, it hasn’t got marked down every conversation between Paul and I in regards to the language he did use towards me” (T143, 43-45). Mr Vassallo claimed, under oath, that any significant event in regards to the injury was recorded in his diary.
b)In the second affidavit of Mr Vassallo at paragraph 33 he claims that after his injury on 15 January 2007, he “became vigilant in keeping a diary”. Initially, he claimed that unless the matter was contained in his diary, then it did not occur or was not of any importance (T98, 36-44). However, he later accepts that numerous significant events were not recorded in his diary because of “human error” (i.e. T112 at [28] – [113] at (48); the events of 16 February 2007 (T142(40-143)(48); the events of 23 February 2007 (T235-5(23)). Mr Vassallo continued to claim that he kept an accurate record of events in his diary even though he acknowledged that it did not contain important details of his claim (T113, 25 – 41).
c)Following the termination of his employment on 24 March 2007, Mr Vassallo created more documents that set out his recollection of key events leading up to the termination of his employment. These documents were not produced in response to a Notice to Produce (Exhibit R1) even though the documents came within the scope of para 5. The documents were only produced after Mr Vassallo identified them during cross examination as having been relied upon in preparing his affidavit and the documents were called for (T106, 4). Mr Vassallo claims he produced these documents to his solicitors to produce his affidavit in these proceedings (T104, 26; T105, 45 – 46).
d)Mr Vassallo and his ex-partner, Ms Nicky Nilgunserce together created a handwritten document of seven pages which lists, in reverse chronological order, his account of alleged events between 15 January and 20 March 2007(Exhibit R15) (T135, 14 – 136, 17; T25, 1-43). Mr Vassallo claims that the document was created within one month after the termination of his employment when the events were still “fresh in his memory” (T135, 1-9). In preparing the document, Mr Vassallo did not rely solely on his diary but also embellished the details based on his own memory of events (T135, 11-12).
Mr Vassallo’s evidence was that Exhibit R15 was a hand written document prepared by him and Ms Nilgunserce following the termination of employment and it actively records the events that occurred in relation to his injury on 15 January 2007 and his termination (T136, 1-17). Mr Vassallo’s evidence was that this document “was a summary of events that actually took place” and that it went into further details when preparing the affidavit (T30, 35-36). Mr Shoebridge’s submission is that the diary does not contain every account of foul language but this does not provide a reason for criticism as many individuals would be reluctant to record this material.
The failure to record the incidents of foul language in a number of documents relied upon by Mr Vassallo as a source for the preparation of his affidavits is highly significant in this matter as I will now refer to in greater detail below.
e)Mr Vassallo recited a narrative of events to Ms Nilgunserce. She then wrote down by hand what Mr Vassallo said to create the document (T135, 21-22; 33-35; T136, 4-8). Mr Vassallo was not present at all times during the preparation of the document but claimed that it accurately recorded his recollection of the material events (T135, 33-35; T26, 1-9). Ms Nilgunserce was not called to verify the method and circumstances of this preparation, in particular, the basis for her recording material matters in Mr Vassallo’s absence.
f)During the same period, Mr Vassallo also claims that he prepared a typed document of four pages recording key conversations in the first person of the relevant events (Exhibit R17). Again, Ms Nilgunserce typed the document due to Mr Vassallo’s arm injury (T134, 14-17) in the period shortly after the termination of his employment (T134, 7-13). Mr Vassallo dictated the events to Ms Nilgunserce to produce a typed record (T134, 19). He relied only on his diary and no other document in preparing the typed notes (T134, 23). The typed notes vary in key respects to his records of events contained within his diary (Exhibit R15).
Mr Shoebridge submits that these documents record the same factual matters in varying levels of detail and represent a rational process engaged in to record pertinent conversations and matters relevant to Mr Vassallo’s application. Further, these documents represent a witness who has sought to rely on his memory to create contemporaneous records.
g)Mr Vassallo asserts that both the handwritten and typed notes accurately recorded the major events which form the subject matter of these proceedings (T136, 13-17). There is no explanation why Mr Vassallo considered the need to create two separate written records (Exhibits R15 and R17) at around the same time. A comparison between Exhibit R15 and R17 demonstrates that there are substantial differences in these two documents.
h)On or about 31 May 2007 Mr Vassallo made a complaint to HREOC (Exhibit R2). The HREOC complaint contained a signed document by Mr Vassallo recording an account of events (Exhibit R20, p7). Mr Vassallo took care to ensure that the complaint contained all of his material allegations against the Respondents were true and accurate (T51, 43-T52, 4).
i)Although Mr Vassallo claims that the alleged events were fresh in his memory at the time of making the HREOC complaints (T52, 10 – 11) , the complaint contained allegations which were not contained in other prior or subsequent documents and Mr Vassallo did not have an explanation for these discrepancies (T54 – 55).
j)Mr Vassallo also agreed that he recalled reading and authorising his solicitors to file and serve the Points of Claim (T90, 10-11). After reading the document in the witness box, Mr Vassallo confirmed that the Points of Claim set out his recollection of events accurately (T92, 19- 21). Mr Vassallo acknowledged the accuracy of each document however the Points of Claim contain material allegations different from those in the HREOC complaint and the previous documents.
k)Mr Vassallo states that he provided his lawyers with a copy of his notes to prepare his affidavit (T107, 20 – 23). He also had a meeting with his lawyers to prepare the affidavit (T107, 45- 46). Mr Vassallo claims that he read his affidavits carefully before making notes to ensure that they stated fully and accurately his account of events (T108, 9 – 11). However, there are substantial inconsistencies between his affidavits and his notes and records.
l)Mr Vassallo attested to the affidavits more than 18 months after the alleged events and claims that they represent the most accurate version of events (T56, 24 – 25). Although it is inconsistent with his account of events and subsequent notes and the HREOC complaint.
Mr Seck submits that the numerous and significant inconsistencies in Mr Vassallo’s account demonstrates a witness who does not have a reliable memory of events but more likely improvised facts that suited his claim but could not keep track of all of the details.
Mr Stringer’s Credit
Mr Shoebridge submits that Mr Stringer was an evasive witness and not a witness of credit. In support of this contention, a number of examples were advanced.
a)An issue was whether 3or not Mr Stringer said to Mr Vassallo on or about 3 February 2007 words to the effect of: “Because of you Pete, I now have to pay forty thousand fucken’ dollars on next years insurance premiums” (first affidavit of Mr Vassallo para 12). In Mr Stringer’s affidavit he sought to deny that he had any knowledge of insurance premiums rising as a result of workers compensation claims until well after this time (para 144). On cross examination he admitted he had previously experienced some three workers compensation claims before Mr Vassallo’s (T121). He also agreed that as a result of Mr Vassallo’s claim, his premiums did in fact, go up (T121, 30). He also agreed that in New South Wales, if an employer had claims against it, then it’s workers compensation premium goes up (T121, 5). It is submitted that Mr Stringer’s denial, and the basis for his denial being that he had no knowledge that his premiums would be impacted at the time of the alleged comment, is simply implausible and is contrary to his own experience. Mr Calandruccio, in his affidavit evidence, supported Mr Vassallo’s version of this conversation. Mr Shoebridge submits that the denials by Mr Stringer were convenient and untrue and ought not to be accepted in light of his past acknowledged history and the version from the independent witness.
b)It was the Respondent’s case that under Mr Vassallo’s management, the Blacktown store had long standing poor financial results (affidavit of Mr Stringer, para 25- 40). However, the financial records showed a different result, being that the store had improved net profits for FY2005 – FY 2006 (Exhibit A2). It is submitted that when this was put to Mr Stringer in cross examination he sought to equivocate. His initial response was “possibly, yes” (T125, 5). On further pressing, he did accept that the figures were unquestionable and showed improvement (T125, 5-35).
c)Mr Stringer initially acknowledged that both Mr Vassallo and his co-manager Marissa Fernandes ran the Blacktown business (T121, 35). However, he then sought to suggest that Ms Fernandes would not normally send emails to him containing the weekly sales results. When such an email was put to him he said: “Peter must have been on holidays”. On being pressed, he admitted that this answer was not from memory but rather unfounded speculation (T127, 20).
d)When questioned why there was no criticism of Mr Vassallo’s performance in the notes of 25 October 2006 quarterly review formed by Mr Stringer was: “No, that is done via the revenue report” (T132, 45). There is no criticism of Mr Vassallo’s performance in Mr Stringer’s written report provided on 13 November 2006. The explanation was: “As I said before, I only raised that in face-to-face meetings” (T134, 15). When the contradiction in his evidence was raised with Mr Stringer, he responded: “I did it in both – do it in both” (T134, 35). It was submitted that if this was true, then it was evidence in neither of the contemporaneous records.
e)Mr Stringer continues this line of convenient answers (T134, 20 – 30) where he says he criticised Mr Vassallo’s management in a February 2006 written report. Yet this answer contradicts why he said he did not criticise management in the November 2006. He alleged he did not include such criticism in written reports as the emails can be read by other members of staff (T135, 25 – 50). When this was put to Mr Stringer the explanation was: “The February audit was actually hand delivered, as I remember”. When the email sending the February 2006 audit was shown to him, he suggested that he both hand delivered and emailed it (T144, 35 – T145, 10; Exhibit A7).
f)Mr Stringer initially accepted that his store audit report on 13 November 2006 was based on weekly sales figures up until the end of October 2006 (T133, 15). However, cross examination sought to suggest the 13 November 2006 report was based only on sales figures up until August 2006 (T141, 20). On being reminded of his earlier contradictory evidence, he did recant and accept that the November 2006 report was based on October sales figures (T141, 20 – 30).
g)Mr Stringer’s version of the events on the evening of 2 February and morning of 3 February 2007 was that he had been out at a club in Parramatta until it closed at around 1am (T158, 10). He said he had only “two drinks, it might have been three or four” (T157, 25 – 30). It is submitted this is an implausible low intake of alcohol for a person who stays at a club until it closes. It is contrary to the version of Mr Vassallo who says Mr Stringer gave him the impression of being “drinking all night” (first affidavit of Mr Vassallo para 23). Mr Stringer’s recount of the further events that happened that night was inconsistent with Mr Vassallo’s version. Initially his response to the allegation that he had told Mr Vassallo he had been involved with some girl in the toilets of the Albion club at Parramatta was: “I wish it was [true], but it wasn’t, no” (T158, 10). He then went on to deny it on the basis that: “Yes, I am a married man with five children” (T158, 15 – 20).
h)Mr Stringer sought to deny that Mr Vassallo’s pay rise on 25 October 2006 was in fact a pay rise (first affidavit of Mr Vassallo, annexure PV5 – pay rise notification). In cross examination Mr Stringer denies that there was a pay rise (T173, 35 – T174, 35). It is submitted that these answers are implausible. Ms Fernandes’ evidence confirms that there was a pay rise for both her and Mr Vassallo (T197, 5 – 30).
i)Mr Stringer initially denied a conversation occurred between him and Mr Vassallo on 20 March 2007 because he was interstate on that day. He later accepted that he was in Blacktown on that day. He only made the concession when he was confronted with a document he signed on that day in Blacktown (T186, 5 – 35).
Mr Shoebridge submits that Mr Stringer’s evidence should be given little weight whenever it is inconsistent with Mr Vassallo’s evidence.
Mr Seck submits that the attack on Mr Stringer’s credit as a witness is based chiefly on matters which are not the key matters in dispute between the parties. Mr Seck submits that the arguments advanced on behalf of Mr Vassallo do not address the allegation of offensive language in his attack on Mr Stringer’s credit even though they comprise the primary matters where it was Mr Vassallo’s word against Mr Stringer’s word on what occurred. In respect of Mr Stringer’s credit on the Blacktown business’s financial position can be chiefly determined in the documents. Jetswan Pty Ltd’s profit and loss statement for the period clearly shows that it had been making significant losses during the period. Mr Stringer’s account of events is largely corroborated by the evidence of Ms Fernandes who states in her evidence that Mr Stringer had raised major concerns about the profitability of the Blacktown store and had warned about the prospects of replacing management if things did not improve.
Mr Lucasan’s credit
Mr Shoebridge submits that Mr Lucasan was continuing in employment with Jetswan Pty Ltd at the time he gave his evidence and was not an impartial witness. In his affidavit he makes an allegation of a claim that was made against Jetswan Pty Ltd for $30,000.00 in relation to an alleged failing in management when Mr Vassallo was the manager responsible. His affidavit does not include information that the case was settled for “a tiny fraction of that”. His explanation of failing to include this was that “I guess I must have forgotten” (T214, 15-50).
Mr Lucasan, in his affidavit evidence, suggests that Mr Vassallo had an ulterior motive when he provided Mr Lucasan with unnecessary work when he placed items in the re-pricing trolley for re-pricing. Yet in cross examination he accepted there was no ulterior motive that in fact all goods needed to be re-priced (T219, 20 - T220, 50).
Mr Lucasan’s evidence was that in the short time he managed Mr Vassallo for three weeks after his return from a period of leave, the sales more than doubled and that in his last week of employment he was one of the Blacktown store’s top sales people (T217, 20 – T218, 30). He could not reconcile this with the fact that Mr Vassallo’s alleged poor sales was the reason given for terminating Mr Vassallo (T218, 20 – 30).
Mr Shoebridge submits that Mr Lucasan’s evidence should be given little weight where it is inconsistent with Mr Vassallo’s evidence.
Mr Seck submits that Mr Lucasan had no reason to lie when giving evidence in this matter as he had no retrospective interest in Jetswan Pty Ltd. He simply replaced Mr Vassallo in the position of Store Manager. In that role he presented his view of Mr Vassallo’s poor attitude and lack of cooperation in the workplace. Necessarily Mr Lucasan’s view was based on his perception of the matter which was supported by the evidence of Ms Fernandes. Further, there is no suggestion that Mr Lucasan lied in cross examination. Mr Seck submits that nothing in these proceedings depends on Mr Lucasan’s credit as he was not the controlling mind of Jetswan Pty Ltd. There is no controversial conversation that occurred between Mr Vassallo and Mr Lucasan where credit must be judged.
Ms Fernandes credit
Mr Shoebridge submits that Ms Fernandes’ evidence was that Mr Vassallo was promoted over her (T193, 5). As co-manager she was next in line to assume the management of the store if Mr Vassallo was demoted or dismissed. On request of Mr Stringer in late January 2007, she wrote on 2 February 2007 a negative report in relation to the Blacktown store’s management and she was not without motive in doing this.
Ms Fernandes accepts that she was responsible, together with the Applicant, for the management of the store. Nevertheless, she accepted no responsibility whatsoever for the alleged shortcomings in the store’s performance as set out in her report to Mr Stringer (T193, 15 –T195, 5). Ms Fernandes also sought to suggest that the Applicant’s injury would not have impacted on his sales as he could have had the cleaner, Jake, assist him in moving items required for sale (T199, 15 – 30) but this evidence is implausible. Mr Lucasan’s response to this suggestion that the cleaner was assigned to assist Mr Vassallo in making sales was, quite simply: “definitely not the cleaner” (T216, 25). Mr Shoebridge submits that Ms Fernandes’ evidence, including her report, should be given little weight wherever it is inconsistent with the Applicant’s evidence.
Mr Seck submits that Ms Fernandes has no reason to lie as she no longer works for Jetswan Pty Ltd. The suggestion that she had reason to undermine Mr Vassallo because she was next in line for the job is not supported by the evidence to suggest that Mr Stringer had indicated this to be so, or that Ms Fernandes aspired to the position.
Observation on credit
Mr Shoebridge indicated to the Court that his client was not a particularly sophisticated witness and does not have a particularly high level of education. My observation was that Mr Vassallo appeared in the Court wearing a suit with a collar and tie. He spoke clearly and distinctly and did not resort to slang or incorrect English expression when responding to the detailed cross-examination of Mr Seck. He answered questions confidently and used sophisticated language.
However, over the period of three days of cross-examination, I formed the view that Mr Vassallo was extremely well prepared for the presentation of his evidence and gave the impression that his responses were well rehearsed. He did not appear to have to spend time to think about his answers, or to go through the process of recall of events or conversations.
I believe the most significant aspect of his evidence was the obvious omissions in his answers. Mr Vassallo had been employed for a period of approximately seven years with the Jetswan Pty Ltd organisation. The period which the alleged discrimination occurred was from 15 January 2007 – 26 March 2007 which is nine weeks, two of which were granted as leave with pay. In the pleadings, occasions are identified by Mr Vassallo as having occurred that are essential to his claim. The details in relation to the conversations are all relatively brief in length and straightforward in content. I will address these substantial numbers of these omissions under the heading of “offensive language” below.
There are other examples elsewhere in Mr Vassallo’s evidence. One example occurred 2 weeks after his accident, and is directly relevant to his claim. The conversation took place on 2 or 3 February 2007 but the date is not critical. Mr Vassallo states in his first affidavit, para. 12, that Mr Stringer made comments about workers compensation premiums. The paragraph states:
On 3 February 2007 I was sitting at the office computer attending to my email. I recall that David Calandruccio (David) the Manager of the Buys and Loans department, was also present in the office. Whilst David and I were in the office, Paul walked in and I observed Paul opening letters from the mail in the box. I recall Paul and I had the following conversation:
PS: “Because of you Pete, I now have to pay $4000 fuckin’ dollars in next years insurance premiums”
PV: “You can’t put that on me, its not like I purposely meant to injure my arm”
Following this conversation I observed Paul continuing to read the mail. David and I left the office.
This alleged response is not mentioned elsewhere in the materials even though the affidavit was prepared 18 months later. Mr Vassallo acknowledges that he did not record this conversation (T111, 16 – 114, 7) Mr Vassallo advanced the excuse that this was “human error” and “slipped my mind” (T113, 37 – 41) to record the conversation in the diary but denied that he had not been vigilant in keeping the diary (T143, 35 – 48).
Mr Vassallo makes no reference to this conversation in his dairy or his subsequent handwritten notes immediately after the event. The absence of any reference to what is plainly an important conversation in various contemporaneous documents casts doubt on the likelihood that the conversation in the form recorded in the affidavit actually occurred. This view is strengthened by the existence of uncontroversial documentary evidence which shows that it is highly improbable that Mr Stringer would have made the alleged statement nominating a precise increase only two weeks after the injury occurred. By this date Jetswan Pty Ltd’s workers compensation insurer had only just received Mr Vassallo’s workers compensation for assessment and a decision in respect to an increase of future premium rates was yet to be determined.
I note that the profit and loss statement for Jetswan Pty Ltd (Exhibit R4) for the period January 2006 – June 2007 under the expense ‘insurance’ recorded an increase for the month of March. There is no explanation as to what the monthly amount listed under that expense item represents. It does not indicate whether it is general insurance or workers compensation or a combination of both. The total for the 2006 – 2007 year, which is $27,127.35 is slightly lower than the proceeding financial period, July 2005 – June 2006 which is $28,748.55. The 2006 – 2007 year records the following entries under ‘insurance’
December: $2275.73
January $1743.76
February $1743.75
March $4432.63
April $2403.47
May $2037.36
For the reasons set out below, the figure recorded for March could not be in response to Mr Vassallo’s claim, however could have been recorded in some document received by Mr Stringer, prompting the comment about the increased premium value.
Mr Vassallo’s completed a workers compensation form dated 22 January 2007 (Exhibit R8) seven days after the date of injury. On 30 January 2007, Mr Vassallo contacted Allianz, Jetswan’s workers compensation insurer, to confirm receipt of the claim form (Exhibit R10). Allianz confirmed receipt of the form on 31 January 2007 (Exhibit R11). Allianz insurance requested further information about Mr Vassallo’s injury in a letter dated 7 February 2007 (Exhibit R12). On 9 February 2007, Allianz notified that it had only made an assessment on a provisional basis (Exhibit R13 and R14).
With the benefit of the correspondence between Allianz insurance and Jetswan Pty Ltd and the absence of any document containing a statement that the workers compensation premiums were to be increased in a nominated amount of $4000.00, it casts considerable doubt that this alleged statement was made. At the alleged time of the conversation, Jetswan Pty Ltd had not received workers compensation insurance premiums for the relevant period. The renewing documents for the policy for the period 20 November 2006 to 20 November 2007 did not come into Jetswan’s Pty Ltd or Mr Stringer’s possession until around 17 January 2007, several days after the alleged injury occurred. The renewal documents illustrate that Jetswan’s workers compensation insurance premium had already been determined for the next year by the time that Mr Vassallo suffered his injury. The premiums actually decreased rather than the claimed increase by $4000.00 (i.e. $15,765.00 for 2005 and 2006; $12,992.05 for 2006 – 2007; and $10,924.28 2007 – 2008).
Jetswan Pty Ltd workers compensation renewal documents show that the impact of Mr Vassallo’s injury on the workers compensation premiums would not have been known until 20 November 2007 (Exhibit R24). The renewal documentation shows that Mr Stringer would not have been in the possession of material concerning the premium regime as at 3 February 2007. Consequently, I find it highly unlikely that Mr Stringer made the alleged comment that Mr Vassallo’s injury had resulted in the increase in his workers compensation premiums by an amount of $4000.00.
This alleged conversation concerning the increase in the workers compensation premium was also in the presence of Mr David Calandruccio who provided an affidavit, gave evidence under oath and was cross examined. He claims that he heard Mr Stringer make a statement that Mr Vassallo’s accident had resulted in a workers compensation premium increase of $4000.00. I note a number of significant issues in respect of this witness’ evidence. He is no longer an employee of Jetswan Pty Ltd and left his employment with that organisation without observing the notice provisions in respect of withdrawing his services did not pick up his outstanding holiday pay entitlements and failed to repay an amount owing to Jetswan Pty Ltd. In respect of the conversation he alleges he overheard, he relies on a note that he prepared at the end of March 2007 at Mr Vassallo’s request, detailing the discussion. Mr Calandruccio claims that he prepared the document with the assistance of his brother, but in the absence of Mr Vassallo. Significantly, the conversation that is alleged to have occurred is recorded in terms, nearly word-for-word as those used in Mr Vassallo’s account of the conversation. Such similarities include the spelling of the word “fucken’” (Exhibit R17). I agree with the submission made by Mr Seck that the striking similarity between these two accounts of the conversation strongly suggest that Mr Calandruccio’s recollection of events was not independent, but had been at the suggestion of Mr Vassallo.
Another area of significant omission from Mr Vassallo’s first affidavit concerns the HREOC complaint where Mr Vassallo alleged that Mr Stringer said to him on 16 February 2007 the following:
I’m not happy with your work since your hurt your arm and with all the jobs that you can’t [sic] perform now (para. 6).
In the context of anti-discrimination law, the meaning of the word “detriment” has been held to command a plain and ordinary meaning of “loss, damage or injury”: Shaikh v Commissioner, New South Wales Fire Brigade, New South Wales (1996) EOC 92-808 at 78,896 at 48. The detriment suffered must be real, not trivial, determined objectively and not subjectively: Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41]; Damiano & Anor v Wilkenson & Anor [2004] FMCA 891 at [23] – [24].
Observations on offensive language
The offensive language complained of by Mr Vassallo has two significant and distinct features. Firstly, it appears to have been added to, or overlayed on the original contemporaneous notes made by Mr Vassallo. As described above, the diary (Exhibit R9) and the handwritten Claims action summary (Exhibit R15) prepared by Mr Vassallo together with the handwritten history review (Exhibit R16) and his typed notes prepared by Ms Nicky Nilgunserce (Exhibit R17), contain very different references to offensive language that appear in the HREOC complaint or the documents filed in these proceedings.
Alleged conversations that are recorded in Mr Vassallo’s diary, and repeated in Exhibits R15, R16 and R17 without the offensive terms, or with very limited usage, appear in a similar form in the HREOC complaint and the Court documents with the offensive words inserted.
I am unable to accept that the offensive terms were absent or extremely limited in these documents that were prepared contemporaneously and then appear in the Points of Claim. No plausible explanation has been advanced for this very serious omission but he indicates, the use of such words had such a profound impact on him. There were numerous ways these details could have been recorded to maintain the integrity of the record and the circumstances of its use. The complete absence of any reference to the use of the word is implausible.
In respect of the conversations that are alleged to have occurred on 23 February 2007 and set out in detail above, Mr Vassallo records the conversations in exhaustive terms, but does not record any conversations in his first affidavit where the words “fuck off” or “get fucked” had been used on five or more occasions contrary to Mr Vassallo’s assertions in his diary and notes. The words “fuck off” are used twice, whereas the words “get fucked” are not even mentioned. While Mr Vassallo alleges that the word “fucken” was used three times in the conversation, it is not used in the personal sense as “fuck off” and “get fucked” as it is not directed at Mr Vassallo, more it is used as an adjective rather than a pejorative term, rather than in an offensive manner. It gives the impression that the offensive words have been added as an afterthought when the Points of Claim were being prepared. If a reason does exist for the omission as to Mr Vassallo’s embarrassment in using this word, no explanation has been advanced to explain this omission from the contemporaneous documentation.
The other unusual feature in respect of the use of the offensive language is that it is limited to a single inappropriate but frequently used word. In all the incidents complained of, no other word that could be classified as offensive was used. The reported cases on offensive language generally relate to the summary offense of using offensive language in “a public place or school”. These cases usually involve the use of numerous words that are offensive to the “reasonably tolerant bystander”: Conners v Craigio (NSW SC, McInerney J 5 January 1993, Unreported BC9303838).
In determining as to whether the use of the word complained of is offensive I refer to material on this issue in the LexisNexis online service for Local Court Criminal Practice in New South Wales, under the summary offense of offensive language in public or other places, the editors note:
[23A.185] Offensive language
A starting point for determining whether language uttered is offensive is Worcester v Smith [1951] VLR 316 at 318; [1951] ALR 660 at 662 . Here the defendant was charged in s 25 Police Offences Act 1928 (Vic) as a result of (apart from a few other minor matters) carrying a banner in front of the United States Consulate in Melbourne which stated "Stop Yank intervention in Korea" in association with the utterance of the following words "The bloody Yanks are causing the trouble." O'Bryan J stated at VLR 317–18 ; ALR 662 :
In my opinion, the whole of this evidence did not support the charge of offensive behaviour. This section is not directed to the peaceful and inoffensive statement either verbally or in writing of political views...
Behaviour to be “offensive” within the meaning of that section, must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.
In respect of the similar offence of “use indecent language in a public place”, it has been held that it is equally erroneous to hold that the common four-letter words are necessarily indecent in every context and to hold that they can never be indecent in any context at all. Further, it has been held that it is an error of law to hold that the common four-letter words and their variations and derivatives are necessarily indecent regardless of context: Hortin v Rowbottom (1993) 61 SASR 313; 68 A Crim R 381. In that case, Mullighan J, in the Supreme Court of South Australia, stated at page 389:
It is clear that the appellant did not use the allegedly indecent words in their primary sense. He was using them as “intensives” or “expletives” and to give emphasis to the message he was seeking to convey. In my view, the language of the appellant was certainly course and I expect it would be offensive to, and regarded as indecent by, some sections of the community. However, I do not think that these days it would satisfy any of the tests which are set out in the cases. Such language is now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in its primary sense but more often in its secondary sense, without offending contemporary standards of decency. There was nothing about the context in which the appellant used the language which renders it indecent in the relevant sense.
Evidence was given that a “swear jar” existed in the Blacktown store with offenders required to place a penalty payment when caught using inappropriate language. However, further details in respect to the scope and frequency of this facility was not provided. Nor was there any evidence provided that would indicate the prevalence of bad, inappropriate language. However, in recent years this word is used and heard more frequently in various forms of broadcast media. The days of deleting the term by integration, editing or entire omission is less frequently adopted. The days of hearing that type of language in male dominated workplace environments has passed, with this particular word being unfortunately and inappropriately used by both men and women in many and varied walks of life. In the words of Mulligan J, the term is used in an intensive or expletive sense to give emphasis to the message that they are seeking to convey.
The context in which the word was allegedly used by Mr Stringer appears to have been to emphasise his message. References to:
a)Falling up the stairs;
b)Obtaining the doctor’s results;
c)The peculiar circumstances causing the accident;
d)The proximity of the second accident; and
e)The lack of staff to permit Mr Vassallo to attend the doctor after the second accident.
These are examples of the term being used as an expletive to intensify or give emphasis to statements being made and I am satisfied that they are not being used in a pejorative sense. Similarly, in most of the examples when the term “fuck off” is used, it appears from the context that Mr Stringer was either having trouble accepting the validity of an explanation being given, or in other cases, terminating the discussion. The explanation being advanced was not believed or seemingly implausible. Again I do not believe that it has been used in a pejorative way to Mr Vassallo personally.
There is no doubt that the offending word was used in discussions between Mr Vassallo and Mr Stringer would be difficult to believe that the Blacktown store, like many other organisations would be completely free from the occasional usage of what can be described as offensive language. The situation would be less believable if the word was not used in circumstances where an unusual sequence of unfortunate accidents involved the same employee. The detriment must involve matters of substances which there is a “material difference in treatment”: Hautlieu Pty Ltd t/as Russell Pathology t/as McIntosh [2000] WASCA 146 at 165 – 169; O’Callaghan v Loder (1983) 3 NSWLR 89 at 105; Bailey v Australian National University (1995) EOC 92-744. The term “subjected” carries with it a requirement that the Respondent intended to cause detrimental consequences to the Applicant: Bogie v University of Western Sydney (1990) EOC 92-313. Detriment cannot be unintended or unconscious. The Applicant must show that “detriment” pleaded meets this test.
Mr Vassallo has not given evidence of any psychological damage or emotional distress resulting in a loss which is a consequence of the alleged offensive language. In the absence of any evidence that Mr Stringer used such language regularly in the workplace, there is no basis for a determination of any difference in the treatment of Mr Vassallo before and after his injury. There was evidence in respect of their “swear jar” but as to who were the offenders, the frequency of the penalty or any other aspect concerning this object does not provide the Court with any assistance.
Observation in respect of derogatory comments
Putting the question of offensive language to one side, there were two incidents relied on by Mr Vassallo in relation to derogatory comments. One, by Ms Fernandes on 8 March 2007 and the other by Mr Stringer on 20 March 2007. Ms Fernandes is alleged to have said on 8 March 2007 that she did not consider Mr Vassallo was “coming into work and doing nothing”. This comment is alleged to have been made four days after Mr Vassallo had returned to work on Monday 5 March 2007 after recuperation leave. Ms Fernandes in her affidavit at para.75 denies making the comment to Mr Vassallo.
Mr Vassallo must show that this comment constituted less favourable treatment because of his injury. On the material before the Court and in the absence of any statement in cross examination, Ms Fernandes makes no reference to Mr Vassallo’s injury, but rather complains about his poor attitude towards his involvement in work. In para.76 of her affidavit she states:
76…I deny my attitude towards Mr Vassallo changed. I was disappointed with the attitude Mr Vassallo was displaying after returning to the store and how it was affecting his image with Mr Lucason and others. I was also trying to balance my work relationship with Mr Vassallo so that I could perform my role as Assistant Store Manager.
In Mr Vassallo’s second affidavit (responding to the affidavit of Howard Uy Lucasan sworn 23 October 2008) in para.59 Mr Vassallo states:
59. In response to paragraph 60 I strongly deny that I displayed a poor attitude and was not prepared to work as instructed. Subsequent to my injury, and my demotion I attended work each day and performed to the best of my ability and within my injury management plan. I continued to perform to the best of my ability despite feeling depressed and embarrassed and discriminated against because of my injury. I did find it increasingly difficult to work to the best of my ability as a consequence of Howard and Marisa’s comments to me regarding my work performance as deposed to at para.29, 32, 33, 35 and 38 of my affidavit affirmed 19 September 2008. I also found the performance meetings on 16 February 2007 and 20 March 2007 very de-motivating and demoralising and accordingly found it increasingly difficult to continue to work to the best of my ability…
In cross examination Mr Vassallo concedes that after his accident and demotion he no longer demonstrated the same level of enthusiasm as when he was Store Manager (T3 p8, 37).
Despite Mr Shoebridge’s argument to the contrary, I believe Mr Vassallo is fit enough to be fully cognoscente of his responsibilities as a Store Manager both in terms of the store’s financial viability and the professional appearance of the business. There is sufficient evidence before the Court and acknowledgement by Mr Vassallo that the financial performance of the store during the 2006 – 2007 financial year was very poor. As early as October 2006, Mr Stringer was conveying to Mr Vassallo his deep concerns in respect of the store’s profitability. There was a pronounced drop in sales during the month of November 2006 resulting in Mr Stringer and a fellow director Mr Biney visiting the Blacktown store for an additional review. During that visit, Mr Stringer expressed to Mr Vassallo his concerns in respect to staff grooming, employees being unshaven, wearing dirty uniforms and shoes as well as the condition of the store being less than satisfactory and the stock not being properly cleaned and prepared before being put on display for sale. Stock was poorly displayed and not properly merchandised and the back storage areas were described as “messy”. These concerns were clearly conveyed to Mr Vassallo and his retention as part of the management structure was in jeopardy.
The second comment, made by Mr Stringer on 20 March 2007, concerned Mr Vassallo’s father also receiving workers compensation benefits. This comment does not appear in the typed notes (Exhibit R17) or the history review (Exhibit R16) however, in the Claims action/summary sheet (Exhibit R15) which is a handwritten document on a pre-lined page, the entry appears:
He also accused my father of being on workers comp. I was very disturbed at how he could turn instead of helping me get back to normal duties and then involve my family.
In that passage, a further line appears to have been entered at a later date which reads:
“You’re just like your father on workers comp?”
This appears to have been added at a later date as it does not appear as part of the original text.
Findings in respect of offensive and derogatory statements
On the material before the Court, in relation to both the offensive and derogatory statements allegedly directed at Mr Vassallo by Mr Stringer, I have formed the view that a substantial part of this claim appears to have materialised initially in the preparation of the HREOC complaint and further advanced in the application to this Court in both the points of claim and the affidavit material in support. I accept that in many work environments there is an element of both offensive and derogatory comment much of which is not specifically directed at any particular individual with the intention to offend or to be derogative of that individual. The structure of many of the statements tendered in evidence and is used as an adjective rather than a. For the reasons set out above I am not satisfied that this claim can be sustained and should be rejected.
Accusation of theft
In the Points of Claim at para.17, Mr Vassallo alleges that Mr Stringer sought an explanation in respect of missing stock. Mr Stringer indicated that it appeared that the quality of compliance with security appeared to be significantly lax and asked him to explain the large discrepancy between Mr Vassallo’s stock-take and the one which occurred just over a month later. On 21 March 2007, Mr Stringer raised his concerns in a meeting with Mr Vassallo with missing stock and loan items arising out of Mr Vassallo’s tenure as Store Manager (affidavit of Mr Stringer, para.122-129; affidavit of Ms Fernandes.
Mr Vassallo acknowledged that he had the primary responsibility for the running of the store including the security of items. However, he contests that he did not receive the part of his job description setting out responsibilities for store security (affidavit of Mr Stringer, annexure PS1 at pp.4 – 7) Mr Vassallo accepted that his job description set out accurately his duties and responsibilities as Store Manager (other than daily banking) (T44, 13 – 27). These duties included responsibilities for preventing external and internal theft of stock and assuring inventory control (annexure PS1 at P4; T37 – 47).
Mr Stringer’s affidavit evidence was:
93. On 17 February 2007 I conducted a stock-take of all products in the store. I was assisted by Ms Fernandes and other staff. The stock-take indicated that the store stock had $251,729.00 worth of stock. Annexed to this affidavit and marked “PS15”(pages 57-58) is a copy of my stock-take report.
94. When I compared the February stock-take against the December stock-take of $343,000.00 I could not understand why there was a massive difference. Particularly when the sale figures were well down, it would tend to suggest that stock levels would have remained consistent or gone up if we had continued to buy stock. Initially I understood there was $75,000.00 of stock missing, however we subsequently determined that there was over $90,000.00 worth of stock and loan items missing and/or unaccounted for.
Given the significant variance of stock which occurred under Mr Vassallo’s stewardship as Store Manager, Mr Stringer simply held him accountable as he was in charge of security for the relevant period (Stringer’s affidavit, para.100) and probably asked him to explain the situation (paras.122 – 129). The stock-take discrepancy is unchallenged and in Mr Vassallo’s second affidavit (in reply) he seeks to adduce evidence that others may have been responsible for the missing stock. The case advanced on behalf of Mr Vassallo is that the accusation of discrimination made against him was on the basis of his disability, not on the basis of the missing stock.
Observation regarding the issue of missing stock
This issue must be considered in light of Mr Vassallo’s responsibility as Store Manager and his knowledge of the store’s performance. Contrary to the argument being advanced on Mr Vassallo’s behalf, Mr Stringer did not accuse Mr Vassallo of theft, but merely because he was the Store Manager, and was responsible for the store’s security, the explanation was sought in respect of the significant discrepancy in stock.
The position description issued to Mr Vassallo as Store Manager, Blacktown Store (Exhibit R2) on 3 March 2005 under the heading “Security” and sub-heading “Stock” identifies two items:
·External and internal theft; and
·Inventory control.
In this document there are no further instructions or information explaining these functions or responsibilities. This is an unusual document as it consists of a series of headings and dot points expressed in the most simplistic terms. It is a six page document of three different formats and type faces. The first two pages are numbered at the foot as 11 and 12 while the remainder of the document is unnumbered. The first and second pages are not italicised while three, four, five and six contain the initials ‘PB’ in the top right hand corner.
Findings regarding the issue of missing stock
On the material before the Court, I have formed the view that the issues in respect of missing stock were part of Mr Vassallo’s responsibilities as store manager to supervise and control the storage of all items in the stores inventory. Items of significant value which were highly portable such as jewellery, watches and other items of this category special care and attention should have been paid with the acceptance and release of each item. Nothing is before the Court to indicate what systems existed in the monitoring and control of these stock items. Normal practice for dealing of stock of this nature would require a control system that is auditable at all times. The issue that has been taken up with Mr Vassallo is that discrepancies in the administration of the stock has occurred and an explanation was being sought. On the material before the Court this is not in the form of an accusation against Mr Vassallo in respect of its removal. The inquiry is directed to the administration of the stock and the failure of that system.
I am satisfied that Mr Vassallo’s claim that he was being accused for the disappearance of missing stock and that this had anything to do with his injury cannot be sustained. The requested explanation is being sought as part of his responsibilities as store manager and has no causal connection with a discrimination claim.
Indirect discrimination
To establish the claim of indirect discrimination under the provision of s.6 of the Disability Discrimination Act. The Applicant must show:
a)That the Respondent required the aggrieved person to comply with the requirement or condition;
b)That a substantially higher proportion of persons who do not have the Applicant’s disability can comply or are able to comply with that requirement or condition;
c)The Applicant is not able to comply with the requirement or condition; and
d)That requirement or condition is not reasonable having regard to the circumstances of the case.
To establish indirect discrimination the Applicant must first identify with precision a condition or requirement which applies to all relevant persons: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation (1991) 173 CLR 349 at 393.
In the points of claim at paragraph [25] the Applicant provides particulars of the indirect discrimination:
a)By requiring the Applicant to sign a weekly target sheet which did not accommodate restriction on his duties; and
b)By issuing the Applicant a disciplinary council form which made allegations regarding the Applicant’s performance which did not take into account the Applicant’s restricted duties.
The argument advanced on behalf of Mr Vassallo was that prior to his disability and subsequent demotion on 16 February 2007, Mr Vassallo was the store manager and not a retail sales assistant. In that position he did not have to meet any sales targets (Mr Vassallo’s first affidavit, Exhibit PV3). It was only on his demotion that sales targets were imposed on him. The relevant pool of persons for the purposes of s.6(a) of the Disability Discrimination Act are the other sales employees at the Blacktown Store. These employees identified together with their respective sales targets in Mr Vassallo’s first affidavit at Exhibit PV10. The claim is that it was only Mr Vassallo who was subject to disciplinary action for having failed to meet his sales targets. The argument being advanced is that given his disability the sales targets that he was required to achieve were not reasonable. Mr Vassallo admits that he failed to meet his disciplinary sales target.
There is no dispute between the parties that the requirement to demonstrate to the potential purchaser, the characteristics and performance of the item being offered for the sale occurs in a substantial number of transactions. The proposition that Mr Vassallo was store manager did not have allocated sales targets and that this requirement was only imposed upon him when he entered the role of sales assistants is difficult to sustain and every other sales assistant working in the organisation was designated a sales target. Another aspect is that Mr Vassallo had a record of very successful sales performance and received numerous awards for this. There is no evidence before the Court to identify the product mix of the items that Mr Vassallo would normally sell with a percentage of items weighing greater than 5kgs. The proposition being advanced is that if a customer arrived seeking the demonstration of a vacuum cleaner and that machine was greater than 5kgs, Mr Vassallo would not perceive the sale and would correspondingly lose that opportunity of completion. This is difficult to accept that a person of Mr Vassallo’s superior sales capacity would allow this to occur.
Jetswan has neither required Mr Vassallo to do anything nor has it imposed anything on him. Mr Vassallo has failed to demonstrate any notion of compulsion in respect of the alleged requirements and are no more than targets. In Sluggett v Human Rights & Equal Opportunity Commission (2002) 123 FCR 561 Drummond J referred to the Macquarie Dictionary definition of “required” and “requirement” and held that (at [56]):
the concept of a “requirement or condition” with which the aggrieved person is required to comply involves the notion of compulsion or obligation.
To sustain this claim, Jetswan must impose the requirement where the term denotes the application and enforcement of a particular stipulation. It must be a requirement or condition “imposed” by Jetswan and not by agreement or by other means: State of New South Wales v Amery (2006) HCA 14 at [80]-[81] and [205]-[207]. Further the requirement or condition must be something separate from the nature of the job itself: Howe v Qantas Airlines Ltd [2004] FMCA 242 at [231]-[232]. Consequently if the nature of the job requires that an employee makes a number of sales, then it cannot be a requirement or condition for the purposes of establishing an indirect discrimination claim because the requirement and condition is not imposed by the employer but by agreement of the parties.
Signing a target sheet to confirm his previous job requirements is not imposing a requirement. There is no assertion that Mr Vassallo could not sign such a document. If it merely confirms an aspect of Mr Vassallo’s job then it is not a requirement or condition imposed on him but a part of the job itself. The requirement of having to sell merchandise and meet targets is a condition of being a retail salesman and Mr Vassallo agreed to this part of the job when he became a retail sales assistant. In the absence of any evidence to the contrary Mr Vassallo would have been aware of the requirement of sales assistants to sign weekly sales targets as this had been part of his previous supervisory role as store manager.
Counselling of Mr Vassallo for failing to meet sales targets does not constitute a requirement or condition of his employment but is rather a response to Mr Vassallo’s poor work performance. In light of my findings I am satisfied that the claim of indirect discrimination cannot be sustained. Where a condition or requirement is reasonable in all circumstances then no indirect discrimination has occurred. The claim by the Applicant can be narrowed to the aspect that consideration has not been taken into account of the lifting restrictions placed on the Applicant because of his injury. Although not stated, this presumably is to be expressed as a reduction in Mr Vassallo’s sales target because he is unable to demonstrate part of the product sales range because of his inability to lift a product over 5kgs in weight. In some circumstances such a lifting restriction could severely hamper a sales person that dealt with predominantly in excess of 5kgs that required to be demonstrated to each customer. No evidence or particulars has been advanced to suggest that this was the situation that existed in the Blacktown store.
The Court is forced to rely on the general knowledge of the product range typically found in a pawnbrokers operation which consists of a wide range of consumer products that individuals seek to pledge in return for a loan or the products they wish to sell. Clearly many of these products would not exceed the weight limitation that is temporarily being imposed on Mr Vassallo because of his injury. It also ignores the issue in respect of Mr Vassallo seeking temporary assistance from a fellow employee to assist in moving these products when required to complete a sale. It is difficult to accept that if assistance is required in a demonstration, that Mr Vassallo could surrender that sale or fail to pursue the sale if the movement of the item was required.
The submission on behalf of Jetswan is that Mr Vassallo’s complaint is in truth concerned with an alleged failure to accord special treatment to him or accommodate his disability by altering the requirements of his job. Mr Vassallo asserts that he ought to have been treated more beneficially compared with other employees by not performing the same targets for selling merchandise. In Purvis (supra) per Gummow, Hayne and Heydon JJ at [203]-[207] held that the provisions of the Disability Discrimination Act do not explicitly oblige treatment of persons with a disability different from others in the community. Their Honours noted that unlike the Disability Discrimination laws in the United Kingdom and the United States, the Disability Discrimination Act does not oblige employers or education authorities to make “reasonable adjustments” to accommodate persons with disabilities.
In all circumstances, I am satisfied that a claim for indirect discrimination cannot be sustained and should be dismissed.
Conclusion
Mr Vassallo was employed by Jetswan Pty Ltd as store manager of the Blacktown operation. He suffered a workplace related injury to his right arm and shortly after a non-work related injury to one of his feet. During the recovery period from his physical injury he was placed on a supervised return to work program designed by the firm’s workers compensation insurer. During the recovery period Mr Vassallo had his job responsibilities changed in so far as his responsibility as store manager was changed to that of a salesman. Mr Vassallo protests that Jetswan Pty Ltd and Mr Stringer, a director and shareholder of the company discriminated against him because of his disability suffered following his workplace accident. Mr Vassallo claims he was subjected to direct and / or indirect discrimination in contravention of ss.5 and 6 of the Disability Discrimination Act and was terminated in contravention of s.15 of that Act. Jetswan Pty Ltd and Mr Stringer’s treatment of Mr Vassallo throughout this process was no less favourable than treatment of a like person without a disability would have experienced. I am satisfied that there was no direct discrimination by Jetswan Pty Ltd or Mr Stringer of the Applicant. The changes to Mr Vassallo’s employment status were unrelated to the temporary disability experienced by Mr Vassallo due to a workplace injury.
Although Mr Vassallo was subjected to a change of his employment status after workplace accident he has failed to adduce evidence that this change was related to the temporary working restrictions in respect of his ability to lift products in excess of specified weight limits or the repetitive movements of his right arm. I am not satisfied that Mr Vassallo has demonstrated any discrimination by Jetswan Pty Ltd or Mr Stringer in his employment particularly with regard to Mr Vassallo’s past work history, qualifications and experience.
In the Applicant’s submissions on facts, Mr Vassallo deals with the decision to demote and dismiss him as part of the same decision making process rather than a distinct and independent decision. However, Mr Vassallo does not explain why Mr Stringer would initially demote him rather than dismiss him immediately because of his injury. If the argument being advanced is that he was dismissed because of the increase of the organisation’s workers’ compensation premiums and his inability to form work as a store manager then it is illogical that the organisation would have continued to employ Mr Vassallo. Mr Vassallo asserts that his performance had been exceptional and nothing changed to justify his dismissal. It is insufficient for Mr Vassallo to suggest simply that no good reason existed or the reasons given were not supported by evidence. It does not automatically follow that in the absence of cogent reasons for dismissal permits an inference to be drawn that the reason must have been an unlawful one.
The question for the Court was that on the balance of probabilities was Mr Vassallo dismissed because of his disability whereas the evidence indicates that when Mr Vassallo returned to work after the injury he became exceptionally difficult in the workplace and work colleagues provided examples of Mr Vassallo’s poor attitude to work. In light of my findings in respect to the other aspects of the claim I am satisfied that Mr Vassallo’s termination of employment cannot be attributed to his disability. In summary the application has failed and should be dismissed.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 17 September 2010
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