Zhang v Blinds Pty Ltd

[2010] NSWADT 91

CITATION:	Zhang v Blinds Pty Ltd [2010] NSWADT 91
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Pollem Zhang Respondent: Blinds Pty Ltd trading as Blinds by Peter Meyer
FILE NUMBER:	081042
HEARING DATES:	8 September 2008 29 October 2008 21 November 2008
SUBMISSIONS CLOSED:	27 February 2009
DATE OF DECISION:	12 April 2010
BEFORE:	Smyth M - Judicial Member; Mooney L - Non-Judicial Member; Weule B - Non-Judicial Member
CATCHWORDS:	isability Discrimination Employment - Victimisation
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42, Commissioner of Fire Brigades (New South Wales) v Terence Lavery [2005] NSWSC 268 Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 Fuad v Telstra Corporation [2009] NSWADT 251 Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 Mitchell v Clayton Utz & Ors [2009] NSWADT 266 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 O'Callaghan v Loder [1983] 3 NSWLR 89 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 Zhang v Blinds Pty Ltd [2007] NSWADT 158 Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24
REPRESENTATION:	Applicant Representative: Ms Wang agent Respondent Representative: Mr Rochfort agent
ORDERS:	The complaints are dismissed.

REASONS FOR DECISION

Introduction

1 Mr Zhang complained of disability discrimination and victimisation under the Anti-Discrimination Act 1977 (NSW) Act [AD Act]. His complaints were heard by the Tribunal at first instance and dismissed. [Zhang v Blinds Pty Ltd [2007] NSWADT 158 ].

2 Mr Zhang appealed that decision and the Appeal Panel of this Tribunal set aside the Tribunal’s orders and remitted the case to the Tribunal with a different judicial member, to be decided in accordance with the Appeal Panel’s directions. [Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24]. The Appeal Panel’s decision was not an opportunity for Mr Zhang to run his whole case again. The Appeal Panel indicated that fresh evidence should only be considered where it was necessary to determine the issues set out by the Appeal Panel. The Appeal Panel set out the following task for this Tribunal [at 57]:

1. Determine whether to allow the applicant to characterise the victimisation complaint, in the alternative, as a complaint of disability discrimination, if such a characterisation is still pressed. That issue is to be determined taking into account the following matters:
a) the date on which Mr Zhang first sought to characterise the victimisation complaint as a complaint of disability discrimination;
b) the prejudice to Mr Zhang if the complaint is not characterised as complaint of disability discrimination;
c) the prejudice to the respondent if Mr Zhang is permitted to characterise the victimisation complaint as a complaint of disability discrimination.
2. If permission is granted, determine whether Mr Zhang being stood down on 19 February 2004 constitutes unlawful discrimination on the ground of disability.
3. Determine whether Mr Zhang’s move to a casual position without supervisory duties in 2001 constituted unlawful discrimination on the ground of disability at the time and, if so, whether that situation continued during the complaint period.
4. Make relevant findings of fact in relation to Mr Zhang’s allegations of being given inadequate or no assistance to perform certain duties of his job and in relation to his allegation that the respondent had failed to respect the restrictions under which he had to work. Apply those findings to the law and determine whether there has been a breach of the AD Act.
5. Make findings of fact in relation to the allegations of harassment and determine whether those findings constitute a breach of the AD Act.
6. In relation to the victimisation complaint, refer to the evidence about the alleged conversation between Mr Meyer and Mr Parker and make findings of fact based on that evidence.
7. Re-determine the question of whether Mr Zhang was stood down on the ground of having lodged a complaint to the Anti-Discrimination Board on the basis of all relevant evidence.
8. Allow Mr Zhang or Ms Wang to give evidence of the reason Dr Roberts did not attend and give evidence and determine whether to admit the report and/or give Dr Roberts an opportunity to give evidence either by phone or in person.
9. If any of the complaints are substantiated, determine whether any order should be made under section 108(2).

Characterisation of victimisation complaint in the alternative as a complaint of disability discrimination

3 Mr Zhang’s victimisation complaint was that he had been stood down by the respondent on 19 February 2004 because he had brought proceedings against the respondent under the Anti-Discrimination Act 1977. Mr Zhang contended that being stood down also amounted to disability discrimination. In accordance with the Appeal Panel decision referred to above, this Tribunal must determine whether to allow the applicant to characterise the standing down incident, in the alternative, as a complaint of disability discrimination.

What is the victimisation complaint and when did Mr Zhang first seek to characterise that complaint as a complaint of disability discrimination?

4 Mr Zhang said that at the time he was stood down he considered that his employer’s real reason for standing him down was due to his disability. He maintained that the reason given by his employer for standing him down, that he had dragged a box well over the 7 kilogram limit set out in his Work Cover certificate and as directed by his employer, was an excuse to get rid of him.

5 Mr Zhang said that his view was firmed up by the meeting he had with management regarding being stood down on 25 February 2004. On 26 February 2004 the Anti-Discrimination Board [the Board] received a fax from Mr Zhang with a letter dated 23 February 2004. Mr Zhang maintained that this letter was a complaint of both victimisation and disability discrimination regarding being stood down.

6 The letter dated 23 February 2004 was in evidence before the Tribunal at first instance and before us. In that letter Mr Zhang referred to a letter he had received from the Board dated 13 February 2004 and made reference to a previous matter waiting for the Board President’s decision on whether that complaint would be accepted out of time. He then stated.

7 “Out of the blue, I was unfairly standing (sic) down by the Company on 19^th February 2004. Mr P. Meyer stated to Brad Parker, an Organiser of the CFMEU, the decision of standing me down is related to the letter they received from the Anti-Discrimination Board, The Company believes I was a troublemaker for making complain to ADB (sic).”

8 Mr Zhang then referred to some enclosed correspondence. He then stated:

“It appeared I was victimized by the Company because of my complaint letter. The Company has never known this until receiving the letter from the ADB. Would ADB investigate this matter further?

I alleged [sic] the Company has tried to get rid of me because of my disability and because of I made a complaint to the ADB.”

9 Mr Zhang wrote other letters to the Board. In his letter of 5 March 2004 to the Board he made it clear that the reason he was stood down was because he had made a complaint to the Board. After describing what happened at a meeting between himself, his union representative and the respondent held on 25 February 2004 he concluded his letter by stating:

“It appeared very clearly to me now, the reason of standing me down is because I made complaint to ADB. The standing down will not be over until I withdraw my complaint from ADB and agreed to be continuously discriminated against by the Company for rest my life in this Company.”

10 The Anti-Discrimination Board characterised the fax received on 26 February 2004 as a victimisation complaint. That is clear from the Board President’s report to the Tribunal and the Board’s letter of 5 March 2004 notifying the respondent of that complaint.

11 The Respondent contended that the February 2004 complaint of victimisation was separate and distinct and further submitted that his complaint was not part of a continuing act of discrimination. They described his complaint of continuing discrimination as whimsical and nebulous.

12 In addition, the respondent submitted that Mr Zhang’s complaints of disability discrimination and victimisation had been fully heard by Tribunal and that characterising the victimisation complaint as disability discrimination added nothing. The respondent submitted that a failure to characterise his victimisation complaint as a disability discrimination complaint would not cause prejudice to the Applicant [Respondent submissions at 1 b].

What is the prejudice to Mr Zhang if his victimisation complaint is not characterised as a complaint of disability discrimination?

13 Mr Zhang’s submitted that he would suffer prejudice as he would be refused natural justice [Submissions 13 June 2008 at 19]. It is apparent that if Mr Zhang’s victimisation complaint is not characterised as a complaint of disability discrimination he would not be entitled to any remedy for the alleged disability discrimination in relation to the stand down if he was able to substantiate that claim of discrimination.

What is the prejudice to the respondent if Mr Zhang is permitted to characterise the victimisation complaint as a complaint of disability discrimination?

14 The respondent submitted they would be prejudiced by having to address new issues so long after the allegation of victimisation had been made. In addition, the respondent submitted that the two areas of complaint were exhaustively argued before the Tribunal. [Submissions 10 July 2008 at 1 c].

15 Mr Zhang contended that the respondent would not suffer prejudice as all the relevant material was already before the respondent and the Tribunal.

Decision

16 We accept that Mr Zhang, the applicant, believes that one of the reasons for him being stood down was his disability. It is apparent from his oral and written evidence that he formed that view soon after he was stood down. His fax received by the Anti-Discrimination Board on 26 February 2004 clearly stated that “the Company has tried to get rid of me because of my disability and because of I made a complaint to the ADB [sic]”.

17 In this matter, as sometimes occurs where parties are not legally represented, there were no points of claim at first instance. At the commencement of the hearing at first instance the Tribunal spent some time getting the applicant to outline the nature of the complaint. The applicant and his representative were not legally trained and are both from non English speaking backgrounds. It is evident that at that time they had some difficulty in articulating the nature of the applicant’s complaints.

18 We have considered the prejudice to Mr Zhang if he is not permitted to characterise his victimisation complaint as a complaint of disability discrimination and the prejudice to the respondent if he is allowed to do so. We have also taken into account that the applicant does not wish to put any further evidence before the Tribunal. Having considered the prejudice to both parties we consider the prejudice to the applicant outweighs the prejudice to the respondent. On that basis, together with the fact that in his first complaint to the Board about the stand down the applicant said clearly that he considered the company had tried to get rid of him because of his disability and that the applicant does not wish to put on further evidence, we have decided to permit the applicant to characterise the victimisation complaint, in the alternative, as a complaint of disability discrimination.

19 We deal with this disability discrimination complaint later after dealing with the victimisation complaint.

20 The Appeal Panel’s decision referred to above sets out the background to Mr Zhang’s complaints at [2-4]. The Panel stated:

On 4 November 1999 Mr Zhang began working with Blinds Pty Ltd (the respondent) as a full-time factory supervisor. Two months earlier he had suffered a work-related back injury with a previous employer and had made a workers compensation claim. A rehabilitation plan was prepared which limited the weights he was allowed to lift and placed other restrictions on his physical activities. On 15 October 2001 Mr Zhang presented a workers compensation certificate to the respondent which said that his working hours should be limited to six hours per day and that he was not to lift weights above 5 kg. Following the presentation of this certificate, Mr Zhang commenced working on a casual basis without any supervisory duties. On 19 February 2004 he was stood down. The respondent says the reason he was stood down was that he attempted to drag a box, which weighed over 7 kg contrary to the restrictions set out in his medical certificate. Mr Zhang complained of victimisation saying that the reason he was stood down was that he had lodged a complaint of discrimination with the Anti-Discrimination Board on 11 August 2003.

21 Mr Zhang also alleged that the respondent had discriminated against him on the ground of his disability during the course of his employment. He said that the discrimination was “direct” (see AD Act, section 49B(1)(a)) as distinct from “indirect” (see AD Act, section 49B(1)(b)) discrimination.

22 After the evidence had been completed before the Tribunal he asked them to consider a complaint of indirect discrimination as well as direct discrimination. This request had been refused and the Appeal Panel found no error with that decision. The complaint before this Tribunal is one of direct disability discrimination. When the complaint was referred to the Tribunal by the President of the Anti-Discrimination Board, the President set out the period of the disability discrimination complaint as between 11 February 2003 and 11 August 2003.

23 Section 49D(2) of the AD Act makes it unlawful for an employer to discriminate against an employee on the grounds of disability

(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.

24 In order to prove a complaint of direct disability discrimination the applicant needs to establish that he has a disability as defined in section 4 of the AD Act. It is not in issue that Mr Zhang had a back injury that was a disability within the meaning of that term in section 4 of the AD Act.

25 He must prove that the incidents he complains of occurred and related to one of the areas covered in section 49D(2) set out above, for example, the terms or conditions of his employment.

26 In addition he must prove differential treatment and causation. These elements of direct discrimination have been set out in many cases before this Tribunal. In Mitchell v Clayton Utz & Ors [2009] NSWADT 266 the Tribunal described these elements of direct disability discrimination as follows [at 27]

... The first component of the test for direct discrimination in s 49B(1)(a) is the ‘differential treatment’ test. The treatment afforded to Mr Mitchell must be compared with the treatment that would have been afforded to a person without his disability in the same or similar circumstances. In the absence of an actual employee whose treatment could be validly compared with the treatment given to Mr Mitchell, a Tribunal would have to rely on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. The second component is ‘causation’. At least one of the reasons for being terminated or subjected to a detriment must be his disability (current or imputed). In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 although interpreting the words ‘because of’ rather than ‘on the ground of’, the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the ‘true basis’ (per Gleeson CJ at 102), ‘genuine basis’ (Gleeson CJ at 102), or the ‘real reason’ (McHugh & Kirby JJ at 144) for that treatment. In a joint judgement with McHugh J, Kirby J rejected the ‘but for’ test which asks whether ‘but for’ the person’s disability the allegedly discriminatory conduct would not have occurred.

27 The evidence is clear that there was a change in Mr Zhang’s terms and conditions of employment as he was moved from a permanent to a casual position.

28 There is conflicting evidence regarding who instigated this change. In addition, Mr Zhang maintained that he had been employed as a Factory Supervisor (foreman) from 4 November 1999.

29 Mr Quigley, the respondent’s general manager, provided an affidavit filed on 20 June 2005 and gave oral evidence. Mr Quigley maintained that Mr Zhang’s status as a casual employee was at the insistence of Mr Zhang and that he had refused to accept an offer of employment as a permanent part-time employee. He also disputed that he had ever been engaged as a “Factory Supervisor” and maintained he had acted in a leading hand capacity with a title of Factory Foreman. He maintained that the applicant had asked for a meeting with him and Mr Meyer, the respondent’s managing director, and that this occurred on 27 October 2001. The applicant had said his back was bad and that he could not do his job fulltime and did not want to be a supervisor any more. Mr Quigley agreed that he had raised the suggestion that Mr Zhang work as a casual but maintained that Mr Zhang had agreed with this suggestion. He said that it was agreed at that meeting that the respondent would put him on as a casual until such time as he could stabilise his hours. [Transcript 24/02/06 p 42:27-30]. The company proposed that he worked as a casual at the rate of $18 an hour. A letter was written to Mr Zhang dated 31 October 2001, in evidence before the Tribunal. Mr Zhang refused to sign the letter. [[B2 at 2.4.6 and 2.4.7]

30 Attachment C to Mr Zhang’s affidavit filed on 23 May 2005, in evidence before the Tribunal at first instance, is a statement of terms and conditions of employment on the respondent’s letterhead signed by Mr Zhang on 6 August 2001. That statement makes no reference to his actual position but clearly indicates the hours of employment, breaks, overtime, calculation of wages, superannuation, entitlement to sick leave, bonuses and a statement that all employees are subject to a trial period of one month. In addition there is a clause regarding termination that requires one week’s notice by either party. It is evident that he was employed in a full time position at that point. The letter from Mr Meyer below adds weight to Mr Zhang’s claim that he also undertook a supervisory role. Mr Quigley also acknowledged that he had a role as a leading hand or foreman. We are satisfied that in October 2001 the applicant had a role as a foreman.

Attachment K to Mr Zhang’s statement is a letter from Mr Meyer to the applicant dated 31 October 2001. That letter states:

”Dear Pollem,
It is with regret that we accept your move from full time to casual employment and the relinquishment of your management roll [sic] as we have agreed.

We have appreciated all your efforts to continue full time work, but the reality is that your pre existing injury has never healed fully, and despite five weeks holiday, you are having difficulty working at the level normally expected. As we have discussed this move will give you more time to pursue physiotherapy and will remove the pressure associated with your full time position.

We continue to value your expertise and will continue to offer you approximately 6 hours light duty per day at this stage, as per your doctors certificate, with the hope that you may be able to return to full time work at some time in the future.”

31 The letter then went on to set out the casual rate of pay.

32 Mr Zhang maintained that Mr Quigley asked him to sign this letter and he refused. His evidence was that he never agreed to the change in status to becoming a casual employee or to giving up his supervisory role. He has maintained that as a consistent position. For example, there is a letter he said he wrote to Mr Quigley, the respondent’s General Manager, dated 23 March 2003 that clearly stated this. [Exhibit Z1Attachment L1]

33 Mr Zhang’s evidence was that when he received his wages on 7 November 2001 the wage slip was altered to reveal his status as casual and his hourly rate had been amended. He said that this change took place from 1 November 2001.

34 In addition there is a typed memo to all staff from Mr Quigley with a hand written date of 17 October 2001. That memo states in part:

“unfortunately Pollem’s pre-existing back problem is not improving and as a result he can now only work six hours per day. This is very stressful for him and means that Pollem cannot continue in his role as Factory Foreman.”

35 Mr Quigley denied that the memo was written on 17 October 2001 and said it was written on 24 October 2001. There is a further memo dated 6 March 2002 that stated Mr Morris had been appointed as the Supervisor and that Mr Quigley was now the Production Manager.

36 Mr Zhang also contended that he asked to be reinstated to permanent status and his previous position of factory supervisor in a letter to the General Manager Mr Quigley dated 23 February 2003.

37 A report prepared by Dr Roberts dated 7 July 2002, a psychiatrist who treated the Applicant, was in evidence before the Tribunal. That report was addressed to a firm of litigation lawyers and prepared in the context of a worker’s compensation claim. Dr Roberts also gave oral evidence by phone and was cross examined.

38 The respondent objected to him giving evidence by phone. In accordance with the Appeal Panel’s directions the Tribunal heard evidence from the applicant about the reason Dr Roberts had not attended the earlier hearing to give evidence and decided to give Dr Roberts an opportunity to give evidence by phone. Oral reasons were given for that decision at the time.

39 Dr Roberts report was admitted into evidence along with some other documents and he gave oral evidence by phone. Dr Roberts stated that on 8 January 2002 Mr Zhang had handed him a copy of the memo sent to all staff by Mr Quigley, referred to above, informing them that Mr Zhang’s back injury was not improving and that he could not continue as a foreman. He stated that Mr Zhang “made reference to the fact that he was no longer foreman, he commented that he had become upset prior to Christmas, of his wife attempting to calm him.” [at p2 of report]

40 Dr Roberts also saw Mr Zhang on 24 January 2002. Among other matters he stated that Mr Zhang had commented that “nothing special had happened at work since his demotion and loss of wages...” He also said that Mr Zhang referred to being employed on a casual basis. [at p 3] . In cross examination Dr Roberts made it clear that Mr Zhang was upset that his work status had changed and that he considered it a demotion [Transcript 29/10/08 page 14 lines 47-50; page 18].

41 Dr Robert’s evidence is consistent with Mr Zhang’s evidence that he had been demoted, that his employment status had been changed and that he was upset about it. We are satisfied that the employer instigated the change to Mr Zhang’s terms and conditions of employment. Up until then Mr Zhang was employed as a foreman and had a supervisory role. It was evident from the letter sent by Mr Meyer that his employment status was changed to casual. It was evident despite further treatment for his back condition and some time off agreed to by his employer, that Mr Zhang had a medical restriction in place and could only work six hours per day. We accept Mr Zhang’s evidence that he did not agree to relinquish his supervisory role as a foreman or to give up his permanent full time position for casual work.

42 That is consistent with his refusal to sign the letter from Mr Quigley. It is also consistent with Dr Robert’s notes and recollection that Mr Zhang had complained to him about the change in his employment status.

43 Mr Meyer’s letter of 31 October 2001 makes it clear that one of the reasons for the change in status from permanent to part time and for not undertaking supervisory duties was Mr Zhang’s back injury. We are satisfied that the change in status and his terms and conditions of employment constitutes treatment for the purposes of the AD Act and that the Applicant’s disability, his back condition, was one of the reasons for this treatment.

44 Before finally determining whether the move to a casual position without supervisory duties in 2001 constituted unlawful discrimination on the ground of disability we need to determine whether this treatment was operative during the period of the complaint. The Applicant’s complaint was lodged with the President of the Board on 11 August 2003. At that time section 88(3) of the AD Act required that a complaint be lodged with the Anti-Discrimination Act within six months after the date of the alleged contravention. Consequently it is necessary for us to determine whether that treatment was operative during the complaint period of 11 February to 11 August 2003.

45 During that period of time the Applicant’s employment status was casual and he was in a non supervisory position. That was as a direct result of the decision made by the employer on or before 31 October 2001 to change his permanent status to casual and to remove his supervisory duties.

46 The Appeal Panel and the original Tribunal referred to the decision of Commissioner of Fire Brigades (New South Wales) v Terence Lavery [2005] NSWSC 268 stating [at 22]:

In Commissioner of Fire Brigades v Lavery (EOD) [2003] NSWADTAP 60, a fireman was told by his employer in 1971 that he was prohibited from fire fighting duties and should remain at the same rank indefinitely due to his disability (loss of sight in one eye). The Tribunal found that there had been continuing discrimination against the fireman during the six month period before his complaint by deploying him in a non-operational position and by denying him training and promotional activities.

47 That decision was upheld by the Appeal Panel and the Supreme Court: Commissioner of Fire Brigades (New South Wales) v Terence Lavery [2005] NSWSC 268.

48 That instance concerned a decision made in 1971 that continued to operate. The Supreme Court clearly encapsulated this [at 55] by stating ...ie that what was involved was “treatment” within the complaint period not the consequence of the earlier treatment.

49 In the matter before us we consider that a relevant distinction. What occurred here was “treatment” in 2001 ie the change of status to casual and demotion from a supervisory position. That was a discrete act and constituted treatment for the purposes of the AD Act. In our view by 2003 his status as a non supervisory casual employee was a consequence of that earlier discrete treatment, not treatment that was operative during the period in the six months prior to the lodgement of his complaint on 11 August 2001.

50 As it is outside the complaint period it is not necessary for us to consider further whether that change in status or demotion constituted a breach of s 49D(2).

Make relevant findings of fact in relation to Mr Zhang’s allegations of being given inadequate or no assistance to perform certain duties of his job and in relation to his allegation that the respondent had failed to respect the restrictions under which he had to work. Apply those findings to the law and determine whether there has been a breach of the AD Act.

51 As the Appeal Panel stated Mr Zhang alleged that the respondent had failed to respect the medical restrictions that he was subject to and had failed to provide him with assistance to perform his supervisory functions and to move heavy boxes. He maintained that this constituted direct disability discrimination.

52 Mr Zhang provided a statement dated 23 May 2005 and gave some oral evidence before the Tribunal. He had medical restrictions on the number of hours he could work a day. In October 2001 he was able to work 6 hours a day and this increased to 7 hours a day by February 2003.

53 Failure to assist him perform his supervisory role. The period of the disability discrimination complaint is from 11 February to 11 August 2003. As discussed earlier the decision to remove his supervisory role was taken in 2001 and consequently his allegations regarding the respondent’s failure to assist him perform his supervisory role fall outside the period of the complaint. Accordingly that element of his complaint fails.

Provision of inadequate or no assistance to perform certain duties of his job and the respondent’s failure to respect the restrictions under which he had to work.

54 The Applicant said that on 13 February 2003 he returned to work after visiting China for some treatment for his back condition. He said there were 7-8 boxes around his workstation that needed to be moved, each box weighed 17-22 kgs. He was unable to move them due to medical restrictions regarding moving heavy weights. His evidence included a medical certificate dated 10 February 2003 from his treating doctor, Dr Au-Yong that stated that he was fit for light duties, was able to lift up to 8 kilograms and could only work at his own pace.

55 The applicant asked the factory supervisor for some help. He was being assisted by Ming another employee when the Production Manager, Mr Morris, ordered Ming to stop immediately and do something else. The Applicant said that when he protested Mr Morris had told him he did not need help and could do it by himself.

56 The Applicant then opened the big box, took out the small boxes and stored them under his work table. When that space was full there were four to 5 boxes weighing 17-22 kgs. He said that he dragged, pushed and lifted them to the kitchen and then stored the small boxes. He then said he suffered pain and was bedridden when he arrived home.

57 He complained to Mr Quigley and provided him with a medical certificate on 23 February 2003. Mr Quigley then required him to visit his medical practitioner and report back with a medical certificate.

58 Mr Zhang then said that because he was refused assistance on that occasion he did not ask for any assistance after that date. He then went on to refer to another occasion on 19 February 2004 where he again did not get assistance. The 2004 incident is relevant to his victimisation complaint, characterised in the alternative as a disability discrimination complaint, but is not relevant to this particular complaint of disability discrimination as it occurred outside the period of this complaint.

59 Mr Morris provided a written statement and gave oral evidence before the Tribunal. He agreed that there were a number of cartons in and around the applicant’s work station that weighed between 17 and 22 kilograms and that these contained smaller boxes. He thought there were 6 boxes in each carton. According to Mr Morris the applicant was seeking to move the cartons “intact” in excess of the weight restrictions that applied to him and had sought Mr Ming’s assistance to do so.

60 He agreed that he had directed Mr Ming to stop and return to his duties. In essence he said that the applicant was attempting to do something contrary to his return to work plan. He denied harassing or threatening the applicant.

61 It is not in contention that the heavy boxes were around the Applicant’s work station and that they contained a number of lighter boxes. Mr Morris estimated that these boxes weighed between two and a half and three and a half kilos. There is no evidence to suggest that the smaller boxes weighed above the kilo weight limit that the applicant was restricted to lifting. Mr Morris’s evidence was that approximately once a month the applicant would open the large boxes and empty the smaller containers onto his table. That is consistent with the applicant’s evidence that he had emptied a number of the cartons onto his work table.

62 We are satisfied that Mr Morris’s direction to Ming to stop assisting the applicant constituted treatment of the applicant for the purposes of s 49D(2).

Differential treatment

63 In this instance the Applicant was refused assistance with moving the larger carton. There is no actual comparator and in these circumstances we have used a hypothetical comparator without a back injury. There is no evidence to suggest that such a person would have been given assistance to move a large carton in the same circumstances or circumstances that are not materially different. We are not satisfied that such a person would have been given assistance and consequently we do not consider the failure to provide assistance with moving the larger boxes constitutes less favourable treatment.

Causation

64 Even if the applicant met the differential treatment test to make out his complaint of direct discrimination he must prove that one of the reasons for that differential treatment was his disability. We are not satisfied that one of the reasons for the treatment was the applicant’s back condition.

65 The Applicant appears to be under a misapprehension about the extent to which the direct disability discrimination provisions of the AD Act require an employer to modify duties for employers with disabilities and provide assistance. In Fuad v Telstra Corporation [2009] NSWADT 251 at [54] the Tribunal referred to the following passage from Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 at [57]:

The disability discrimination provisions in the Anti-Discrimination Act do not require an employer to alter the duties of a job in order to accommodate a person with a disability in any circumstances. Whether they ought to do so in some circumstances is a policy issue which it is for the parliament, and not the Tribunal, to determine. Even in those cases when the so-called ‘inherent requirements’ defence in s 49D(4) of the Act is in issue - when an employer may be contemplating refusing to hire or dismissing an employee - the employer is under no obligation to alter the duties of the job in order to cater for an employee with a disability.

That Tribunal then went on to discuss section 49D(4) of the AD Act which does not apply to the question before us as the treatment complained of, the failure to provide assistance, was not related to recruitment or termination of employment.

66 In Fuad the Tribunal further noted [at 92]

...... Subject to what has been said previously about s 49D(4) (and the equivalent provisions elsewhere in Part 4A of the Act, such as s 49L(4) and (5)), the Anti-Discrimination Act “does not explicitly oblige persons to treat disabled persons differently from others in the community” (Gummow, Hayne and Heydon JJ in Purvis v NSW (2003) 217 CLR 92 at 155)…

67 That Tribunal also referred to Baalbaki v Rail Corporation of New South Wales [2009] NSWADT 47. In that case the Tribunal stated at [16]

Refusal to provide light duties . Except in relation to decisions to hire or fire an employee, nothing in the AD Act requires an employer to alter the duties of a job or to provide “light work” in order to accommodate an employee with a disability. While there are such requirements in section 49 of the Workplace Injury Management and Workers Compensation Act 1998, this Tribunal does not have jurisdiction to determine whether there has been a breach of that provision: Laycock v Commissioner of Police, NSW Police [2006] NSWADT 261 and, in the federal context, Cosma v Qantas Airways Limited [2002] FCA 640.

68 There may be occasions where it is possible for an applicant to prove a complaint of indirect disability discrimination under s 49B(1)(b) where a requirement or condition is imposed, for example to move a certain weight or amount of material, and the applicant is able to prove that they cannot comply with that requirement, that a substantially higher proportion of people without their disability can comply and that the requirement is not reasonable in all the circumstances. As this case was not one of indirect discrimination the Tribunal is not able to consider that.

Failure to investigate his complaint.

69 The Applicant said that he complained to Mr Quigley following this event. His letter of complaint dated 23 February 2003 was in evidence before the Tribunal. In addition to providing some advice regarding the settlement of his workers compensation claim with his previous employer he also complained that he had been treated in a prejudicial manner since he became unfit to work for 8 hours a day. He asked the company to reinstate his permanent status and position as a factory supervisor, to ensure that the guidelines from his treating doctors were implemented properly, to “Stop all of prejudice on the disability and ensure that I would not be disadvantaged/prejudiced because of the disability, (the back injury) and for compensation for lost wages and entitlements due to the change in employment status.”

70 It was not disputed that Mr Quigley and Mr Morris met with the complainant on 25 February 2003. Mr Quiqley maintained that he was concerned that the applicant’s back condition was not improving and that he was unable to perform his job. He was also concerned that the company provide a safe and secure workplace for the applicant and that the workplace could be a contributing factor to the Applicant’s back condition given that his condition was not improving. He asked the applicant to visit his doctor and report back with a certificate regarding fitness for work.

71 Mr Quigley then wrote back to the applicant on 27 February 2003. The company denied treating him in a prejudicial manner and said that they had tried at all times to accommodate the restrictions placed on him by his injury with his previous employer and gave him reasonable assistance in order to carry out his work. The company maintained that the applicant’s change to a casual status on 31 October 2001 was done by agreement with him and pointed out that he had not questioned the arrangements for 16 months. On that basis and their advice from their industry association they refused to pay him his requested compensation and said that they would continue to provide him with reasonable assistance to carry out his role, take into account advice from his doctor and that where advice was unclear they would seek further information regarding the nature of the duties he was permitted to do and what reasonable assistance they could provide him with.

72 Having reviewed the evidence we are satisfied that Mr Quigley took the applicant’s complaint seriously. He met with the Applicant promptly, obtained advice from his industry association and wrote back to him quickly. In these circumstances we are not satisfied that the applicant was treated less favourably than another employee without his disability would have been treated in the same or similar circumstances. Consequently that aspect of his complaint fails.

Allegations of harassment

73 Mr Zhang alleged that Mr Morris, the Production Manager, harassed him on 13, 15, 17 March 2003. Although not expressed precisely, the allegation appears to be that the workplace became hostile. For example at paragraph 91 of the applicant’s statement [Exhibit Z1] he says that he “has been harassed by Mr. Morris in the public place a few times after making complaint in writing”. He says that he never received any response from the respondent regarding his complaint about Mr Morris’s behaviour.

13 March 2004 incident

74 That Applicant said he was sitting on a chair after lunch close to a colleague’s workstation. He alleged that Mr Morris said “Pollen, you cannot talk to Jeff, he is very busy in his job.” He had replied, “ I did not talk to him. I am just resting. Please don’t be serious.” He alleged that Mr Morris’s said, “What did you say?” and that his body language and voice were very rude and angry. The applicant says he tried to defuse the situation and that Mr Ming had asked him to leave immediately telling the applicant that it was his lunch break. [Attachment L2 to Z1]. In oral evidence before the Tribunal Mr Zhang said he did not recall whether he talked to Jeff or just greeted him, but maintained that Jeff had not stopped production.

15 March 2003 incident

75 The applicant said that Mr Morris asked him some questions regarding a job and later had come to borrow a tool. The Applicant said Mr Morris did not call his name when he came to speak to him.

17 March 2003 incident

76 The Applicant said that after lunch he sat on a chair in front of “Venetia testing” to rest. He said that Tina was doing her job. He maintained he and Tina were in silence when Mr Morris said to him in a very rude manner, “ You have lunch break now but Tina has not got her lunch break yet. She needs to work, please leave here immediately.”

77 Although there is no clear reference to harassment on the ground of disability in the AD Act the Appeal Panel referred to the decision of O'Callaghan v Loder [1983] 3 NSWLR 89 stating at [32]

........ In that case her Honour found that sexual harassment in the workplace, which the employer knew or ought to have known about, could be regarded as a "detriment" or as a "term or condition" of employment. Such conduct constituted discrimination on the ground of sex because it was directed to women only and occurred because the intended recipient was a woman. On the basis of the reasoning in O'Callaghan v Loder and other leading decisions such as Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17, an employer could be held to have contravened sex discrimination laws by failing to respond appropriately to a work environment permeated by sexual harassment. The actual discrimination on the ground of sex for which the employer is liable is the employer's inadequate response to the work environment, which the female employee is forced to endure. These principles apply equally to harassment on other grounds including disability.

78 The Appeal Panel has ordered this Tribunal to apply the principles in O’Callaghan v Loder and ask “whether the workplace was poisoned by disability harassment and, if so, whether the respondent failed to respond appropriately.” [at 34].

79 The applicant alleged that he was harassed and treated less favourably than an employee without his disability would have been treated. He alleged that the incidents from 13-17 March 2003 described above amounted to harassment. Although not stated precisely, the Applicant also alleged that there was a pattern of harassment in the way he was treated throughout the period of his disability discrimination complaint. Mr Morris denied harassing the applicant and the respondent denied that harassment had occurred.

80 In Mitchell v Clayton Utz & Ors [2009] NSWADT 266 [at 20] the Tribunal referred to O’Callaghanv Loder [1983] 3 NSWLR 89; (1984) EOC 92-023 and the meaning of the phrase ‘subjecting ... to any other detriment’ in s 25(2)(c) of the AD Act, a section comparable to s 49D(2)(d). In that case Matthews DCJ adopted a definition of detriment as meaning ‘putting under a disadvantage’. The Tribunal went on to say at [21]

However, Mathews DCJ said in O’Callaghan at 105 that, ‘The disadvantage must be a matter of substance; the legislation [referring to s 25(2)(c) of the Anti-Discrimination Act] is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is ... essentially a matter of fact to be determined in each individual case.’ The test is an objective one. It is not sufficient for an employee to subjectively believe that he or she has been subjected to a detriment: Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763 at p 78,651; Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].

81 In regard to the incident on 15 March 2003 where Mr Zhang was not referred to by his first name we accept that Mr Zhang believed he had been subjected to a detriment. However the test is an objective one and we are not satisfied that the disadvantage to Mr Zhang was a matter of substance.

82 In regard to the two incidents where Mr Zhang had gone to “rest” and was sitting next to other workers engaged in production there is no suggestion that Mr Morris told him he could not rest. Mr Morris asked him to leave the particular area and said he did so because the other workers were not on a break. Again we accept Mr Zhang believed he had been subjected to a detriment however, on an objective test, we do not consider that by being asked to move elsewhere in the factory the disadvantage to him was a matter of substance.

83 In both the 13 March and 17 March 2003 incidents Mr Zhang alleged that Mr Morris had spoken to him in a rude manner. Mr Morris denied harassing the applicant in his affidavit of 20 June 2005 [Para 5.5 Exhibit B 4]. Mr Morris appeared before the Tribunal on 6 and 7 June 2006 and was cross examined by the Applicant’s representative. The allegation that he had spoken to the Applicant in a rude manner was not raised with him in the course of cross examination. The onus is on the applicant to prove that this conduct occurred. The rule in Browne v Dunne (1894) 6 R 67 is that a cross examiner must put to an opponent’s witnesses so much of the case that concerns that witness or they could give evidence on. [See discussion in Correy v St Josephs Hospital Ltd [2009] NSWADT 40 citing [at 31] Allied Pastoral Holdings Pty Ltd v Federal Commissioner Of Taxation(1983) 44 ALR 607]. In this instance that did not occur and in those circumstances where the evidence has not been properly tested we cannot be satisfied that this conduct occurred in the manner described by the Applicant.

84 Even if Mr Morris has spoken in a rude manner the applicant needs to prove that he was treated less favourably than a person without his disability would have been treated in those circumstances. If indeed Mr Morris had spoken to Mr Zhang in the rude manner alleged by Mr Zhang that would need to compared to the way that Mr Morris would have treated a hypothetical employee without the applicant’s disability in the same or not materially different circumstances. We are not satisfied that Mr Morris would have treated such a person any differently.

85 We do not consider that the workplace was, in the words of the Appeal Panel, “poisoned by disability harassment.” Indeed there is evidence to the contrary that the employer took a flexible approach to Mr Zhang’s terms and conditions of employment over a number of years to accommodate the hours he could work and the medical restrictions that applied to him.

86 We also do not accept Mr Zhang’s allegation that the employer did not investigate his complaints. It is evident that the employer did not conduct a very formal investigation process into the Applicant’s allegations regarding the incidents in March 2003 however they were not ignored. We accept Mr Quigley’s evidence that he did speak to Mr Morris about the incidents and was satisfied that Mr Morris had not behaved improperly. He also noted that no further incidents of that nature had been reported to him since the incident. There is no evidence that the applicant was treated differently than a person without his disability would have been treated regarding the manner adopted by the employer to investigate his complaint.

87 Consequently the complaint of harassment fails.

Victimisation

88 In relation to the victimisation complaint, refer to the evidence about the alleged conversation between Mr Meyer and Mr Parker and make findings of fact based on that evidence.

Re-determine the question of whether Mr Zhang was stood down on the ground of having lodged a complaint to the Anti-Discrimination Board on the basis of all relevant evidence

89 The applicant’s victimisation complaint has been outlined earlier in this decision. The Appeal Panel ordered this Tribunal to refer to the evidence about the alleged conversation between Mr Meyer and Mr Parker and make findings of fact based on that evidence. The Appeal Panel set out the evidence given by Mr Parker a union organiser regarding a phone conversation he said he had with Mr Meyer, the respondent’s Managing Director stating [at 37-38].

90 Mr Zhang said that the Tribunal ignored relevant evidence when making its finding that the complaint of victimisation had not been substantiated. That evidence was given by union organiser, Brad Parker, to the effect that the Managing Director, Mr Meyer, told him on the phone that Mr Zhang was a very litigious person and that he had complained to the Anti-Discrimination Board. (See Exhibit Z1 at [135] and [136].) Mr Parker gave evidence to the Tribunal of the conversation with Mr Meyer:

. . . what he did say was there was a position that Mr Zhang had decided to take in relation to the company. By bringing some proceedings against the company in the Anti-Discrimination Board jurisdiction and that he was concerned about that. I discussed with him that the company’s position in standing down Mr Zhang was probably a breach of the award and that we need to talk about it and I was trying to organise a meeting. He then said to me that, “Look, this is all getting a bit much” and said that he believed Mr Zhang was a litigious person. (see transcript of 21 September 2005 at page 63)

91 Mr Parker was cross-examined on that evidence. (See transcript of 21 September 2005, page 87, line 50.) In his affidavit dated 20 June 2005, Mr Meyer denied that he had ever told anyone that Mr Zhang was a litigious person. (B5 at [15].) Mr Meyer was not cross-examined on that evidence. Ms Wang began that cross-examination but did not proceed. (See transcript of 7 June 2006 at page 91, line 20 and following.)

92 Mr Parker did not provide a written statement however he gave oral evidence before the Tribunal at first instance. He described the phone conversation with Mr Meyer referred to above as short, lasting for 2 to 3 minutes and said that in the course of that phone call he and Mr Meyer arranged a meeting for 25 February 2004. Mr Parker’s evidence was to the effect that at the meeting on 25 February 2004 the company had said Mr Zhang had been stood down over an occupational health and safety issue pending some inquiry or investigation they were going to conduct internally. The company had put forward some terms on which they would reinstate Mr Zhang and a condition of that was that he drop his anti-discrimination complaint. The company had also expressed concerns about Mr Zhang re-aggravating an old injury and dragging material in a box. In addition, Mr Zhang’s inability to work 8 hours a day was raised and the company’s view was that he could not have a supervisory role if he could not work full time. Under cross examination he acknowledged that by the time of the meeting Mr Zhang was working as a casual in a non supervisory role. He denied that in the course of the meeting the company had suggested a permanent part time position for Mr Zhang.

93 During the meeting Mr Parker did not put any counter proposal to the company and it was agreed that they would meet on another occasion and that he and Mr Zhang would come back to the company. That did not occur. He recalled Mr Quigley chasing him up and said that some time later he informed the company that Mr Zhang wanted to pursue the matter through the Anti-Discrimination Board.

94 The applicant’s evidence was that the Anti-Discrimination Board sent him a letter dated 13 February 2004 regarding his complaint of disability discrimination lodged the previous August and that he received on 17 February 2004. That such a letter was sent to the respondent is consistent with Tab 3 of the Anti-Discrimination Board President’s report to this Tribunal [Exhibit Z 7]. Tab 3 was a letter to the respondent dated 13 February 2004 informing them that a complaint of disability discrimination had been made by the Applicant, attaching a copy and dealing with other matters. The respondent’s witness Mr Quigley, acknowledged during cross examination that the respondent had been notified of the discrimination complaint before the standing down incident [Transcript 9 August 2006 p 34:47 on and 6 June 2006 53:35-58 and 54:1-10].

95 Mr Meyer denied the allegations of victimisation and denied that he had told anybody he considered the applicant to be litigious [B 5]. In cross examination he agreed he had spoken to Mr Parker but did not recall whether that had happened on the 19^th February or the next day. As stated previously the allegation that he had made the comment about the applicant being litigious was not put to him in cross examination. Neither was the allegation that he had mentioned his concern about the applicant bringing proceedings at the Anti-Discrimination Board.

96 The Applicant relied on the evidence of Mr Parker regarding his conversation with Mr Meyer, in particular that Mr Meyer was concerned about the Anti-Discrimination Board proceedings and had said that he believed Mr Zhang was a litigious person. In addition the Applicant says Mr Parker had told him Mr Meyer had made that comment at the time.

97 We are satisfied that the respondent had received the letter from the Anti-Discrimination Board dated 13 February 2004 prior to the stand down incident on 19 February 2004. That is consistent with Mr Quigley’s evidence and a copy of the letter is included in the Board President’s report to the Tribunal.

98 While the proximity in time between the date of the letter being sent and the stand down incident may indicate some connection it is not proof that this occurred. The other piece of evidence is Mr Parker’s assertion that Mr Meyer had mentioned his concern about the proceedings at the Anti-Discrimination Board. That allegation was not put to Mr Meyer in cross examination, nor was the allegation regarding the statement about Mr Zhang being litigious. Given that it was not tested we cannot be satisfied that those statements were made in the way alleged by Mr Parker.

99 This Tribunal must now re-determine the question of whether Mr Zhang was stood down on the ground of having lodged a complaint to the Anti-Discrimination Board on the basis of all relevant evidence.

100 The Appeal Panel clearly stated the requirements to prove a complaint of victimisation under section 50 of the AD Act as follows [at 8]:

In order to make out his complaint of victimisation Mr Zhang had to prove that:
a) he was subjected to a detriment; and
b) the reason he was subjected to that detriment was that he had made a complaint of discrimination to the Anti-Discrimination Board: AD Act , section 50(1)(c).

101 Mr Zhang made a complaint of disability discrimination that was received by the Anti-Discrimination Board on 11 August 2003.

Was he subjected to a detriment?

102 The applicant said that on 19 February 2004 at around 7.30 am he went to his work station and found some boxes in front of his worktable. His evidence was to the effect that without moving them he could not make any blinds and, given the lack of assistance in moving boxes the previous year (the incident of 13 February 2003), he decided to move them. They were tied up with string and he pushed a box with his foot first and then pulled the strings to drag them. [Exhibit Z1 at pp 18 and 19]. He said that Mr Quigley saw him dragging the boxes and ordered him to stop and ordered someone else to move the boxes.

103 At approximately 1.30 pm Mr Morris asked him to go to Mr Quigley’s office and Mr Quigley gave him a letter. Mr Quigley referred to a 7 kilogram restriction from his doctor and the signs on the boxes that indicated they weighed over that amount. Mr Quigley told Mr Zhang he had breached the occupational health and safety regulation and that was unacceptable. Mr Zhang said he had responded that he had not lifted the box but had dragged it and Mr Quigley had told him it was a serious breach. He said that Mr Quiqley told him:

“Pollem, I do not want to discuss with you any more. All you need to do is to get all your personal staff (sic) leave all tools to Steve and leave here immediately.” He said that Mr Morris escorted him to get his personal belonging and “took the Rehabilitation Chair and put it into my car”. Mr Zhang said that Mr Morris had then apologised to him and told him it has nothing to do with him.

104 Mr Quigley agreed that he had given Mr Zhang the letter attached to the Applicant’s affidavit [Attachment O to Z 1]. That letter signed by Mr Quigley stated

This is to notify you that we are standing you down, effective immediately.
This follows your actions this morning in dragging a box well over the 7kg limit as prescribed in your last Work Cover certificate and as specifically directed by us.
This has raised a very serious Occupational Health and Safety issue
We are not prepared to offer you any further shifts, as you willfully disobeyed our reasonable directions.

105 Mr Quigley said that he told him words to the effect “I am most concerned about what I saw you doing earlier. I regard your actions as deliberate disobedience of an instruction you have been given in relation to lifting weights. Do you have any explanation for what you have done?” [B1 at 31] He maintained that the Applicant said “I did not lift the box, I dragged it.” Mr Quigley’s evidence was to the effect that he had reiterated the seriousness of the breach, had referred to the weight of the box as being 19 kilograms and in excess of Mr Zhang’s weight restriction and had told Mr Zhang that he was stood down for the rest of the day and would not be provided with more work until he had an assurance that he would only work as directed. [B1 at 33].

106 Mr Quigley then said that on or about 24 February 2004 he had received a letter dated 20 February 2004 from the Applicant [Attachment O to the applicant’s affidavit Z 1]. He said he did not respond to the letter as Mr Meyer told him that there was to be a meeting with the Applicant and his union representative on 25 February 2004. We accept that evidence. It is not in dispute that a meeting was held between Mr Zhang, his union representative Mr Parker, Mr Meyer and Mr Quigley on 25 February 2004.

Subject to a detriment

107 The term detriment discussed earlier in this decision means that the Applicant was placed under a disadvantage as to a matter of substance. The terms of the letter Mr Quigley gave him were very clear, not only was he stood down but he would not be given more work. That statement is consistent with the Applicant’s recollection that he was required to get his personal things and leave the immediately. By being stood down and required to leave the premises we are satisfied that Mr Zhang was subjected to a detriment within the meaning of that term in s 50 of the AD Act.

108 On the ground of making a complaint to the Anti-Discrimination Board contrary to s 50(1)(c). To succeed in a complaint of victimisation.

109 Mr Zhang also needs to prove that he was subjected to a detriment on the ground that he made a complaint to the Anti-Discrimination Board. The test is an objective one. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (1 April 2009) at [37] the Appeal Panel set out the question to be asked in victimisation matters as follows:

The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant……

110 The Applicant had previously raised allegations of discrimination with the respondent, for example in 2003. That was a long time prior to this incident and we do not consider there is sufficient evidence to indicate that these prior allegations of discrimination were one of the real, genuine or true reasons for the stand down decision.

111 In regard to his complaint of discrimination before the Anti-Discrimination Board the respondent agreed they had received the letter from the Anti-Discrimination Board prior to the stand down although they did not know when. It could only have been a matter of days given that the Board’s letter was dated 13 February 2004.While that raises the possibility that the events were connected it does not provide proof. The test is objective.

112 We note that Mr Zhang obtained a medical certificate dated 21 April 2004 from his doctor [Z 13]. Dr Au-Yong said the applicant was unfit to lift above 7 kg and provided clarification that this did not refer to dragging, pulling or pushing”. She went onto state “On 19 February 2004 he was dragging a box without bending his back. This dragging action would involve his shoulder muscles and not his back muscles/ He is therefore able to drag at work in spite of his back injury.”(her emphasis). Given that this certificate was obtained in April 2004 the respondent did not have this certificate at the time the decision to stand Mr Zhang down was made or that subsequent discussions were held with Mr Zhang and his Union organiser during the period of the victimisation complaint.

113 The respondent has provided a plausible explanation for the stand down incident. It is evident the respondent was concerned that by moving a heavy box the applicant was in breach of his medical restrictions. The respondent also held a concern that the Applicant may aggravate his pre-existing injury.

114 After carefully reviewing the evidence we are not satisfied that the fact that the Applicant had made a discrimination complaint was a real, genuine or true reason for the stand down or the approach taken by the employer to discussions at that meeting of 25 February. . Similarly we are not satisfied that the fact that the applicant had previously complained to his employer about allegations of discrimination was a real genuine or true reasons for that stand down.

115 In regard to the meeting on 25 February 2004 that was called as an attempt to deal with the occupational health and safety matter. The employer put forward some terms of settlement to be considered by the Applicant. There is some dispute about the nature of those terms however we accept Mr Meyer’s evidence that he wanted the applicant to return to work. During the meeting Mr Parker did not put any counter proposal to the company and it was agreed that Mr Zhang would get some advice, they would meet again and Mr Zhang would come back to the company. It is clear on the basis of the applicant’s and Mr Parker’s evidence that they did not get back to the company with a view to attending another meeting to resolve the matter. Eventually Mr Parker informed the company that Mr Zhang was proceeding through the Anti-Discrimination Board. We do not consider that the company putting forward a proposal to resolve the dispute, agreeing to Mr Zhang getting advice and to a further meeting constitutes subjecting him to a detriment and consequently it is not victimisation. Having reviewed all the evidence surrounding the stand down incident we are not satisfied that the fact that Mr Zhang had lodged a discrimination complaint was an operative factor in the decision to stand him down.

Did the stand down of Mr Zhang on 19 February 2004 constitute unlawful discrimination on the ground of disability?

116 As we decided to allow Mr Zhang to characterise his victimisation complaint in the alternative as a complaint of disability discrimination, we now turn to this complaint.

117 The applicant said that the stand down incident constituted direct disability discrimination. The applicant did not seek to put additional evidence before the Tribunal and said that the Tribunal had sufficient evidence to determine this complaint.

118 At the hearing on 29 October 2008, on the basis that the Tribunal may decide to allow the applicant to characterise his victimisation complaint in the alternative as disability discrimination, the Tribunal allowed the respondent the opportunity to cross examine the applicant further regarding his evidence relating to the stand down incident. In addition, as stated earlier the Tribunal had also admitted the evidence of Dr Roberts and heard his oral evidence.

119 The respondent denied that the act of standing down the applicant constituted disability discrimination. As set out above in the discussion of the victimisation complaint, the respondent said that that the reason the applicant was stood down was that he disobeyed an instruction from the company by attempting to drag a box weighing well over the restrictions that applied to him set out in his Workcover medical certificate. Mr Quigley, the respondent’s general manager’s evidence is set out above. In essence he said that he observed that applicant pulling a large carton that weighed across the workplace floor. He said that he had told the Applicant that he regarded his action as a serious breach of a direction given to him and that it was in violation of occupational health and safety requirements.

120 The applicant acknowledged that he had dragged the box. While the applicant acknowledged that he had restrictions on the amount that he could lift set out in medical certificates from his treating medical practitioner he denied that these included dragging. The applicant placed medical certificates from his treating doctors in evidence as an attachment to his affidavit [Z1].

121 His treating doctor, Dr Au-Yong provided medical certificates throughout 2003. For example, her medical certificate dated 25 February 2003 stated among other requirements that he should continue light duties with no back strain and could lift up to 8 kilograms. The certificate of 29 March 2003 required him to continue duties as before and have a 5 minute stretch break every hour. Similarly in June 2003 requirements included that he work at his own pace and continue light duties with no back strain and a lifting limit of 8 kilograms. On 29 September 2003 he was restricted to working 7 hours a day, continuing light duties with no back strain and no lifting above 7 kilograms. A certificate dated 11 November 2003 required no more than 7 hours a day, working at his own pace, continuing light duties with no back strain and a lifting limit of 8 kilograms.

122 We note that part of the applicant’s case in regard to his allegations of disability discrimination in the course of his employment outlined earlier in this decision was his employer’s failure to provide him with assistance to move heavy boxes. For example, he maintained that he was not able to move heavy boxes on 13 February 2003 that weighed 17-22 kilograms. After that incident he told the Tribunal that he had dragged, pushed and lifted some boxes weighing 17-22 kilograms and that he had suffered pain and was bedridden when he arrived home. At that time he had complained to Mr Quiqley and had given him a medical certificate on 23 February 2003. The applicant said at that time Mr Quigley required him to visit his medical practitioner and report back with a medical certificate.

123 There was then the subsequent incident in December 2003 when he lifted a box containing five motors and experienced back strain as a result. He did not dispute that he had lifted the box and had given Mr Quigley a Workcover certificate from Dr Sun dated 16 December 2003. That certificate, in evidence before the Tribunal, referred to acute lumbosacral strain and described the applicant’s injury as “Lifted a box containing 5 motors”. The certificate specified two weeks off work for intensive physiotherapy. [Exhibit Z 1 Attachment I 8 and Transcript 23 February 46: 4-20]. After taking those two weeks off work, the applicant was then issued with two subsequent Workcover certificates in January 2004 related to his injury. The certificate of 30 January 2004 provided a lifting limit of 7 kg, stated he was fit to work 7 hours a day, specified no bending and a requirement that he work at his own pace.

124 The incident that led to the stand down occurred only a few weeks later on the 19 February 2004. It is not in issue that the applicant was stood down on that date. The Applicant acknowledged that he had been stood down as he had dragged a box with a lifting limit in excess of the lifting restriction that applied to him. The applicant had seen Dr Roberts, his treating psychiatrist, four days after the stand down incident and he agreed that he had told Dr Roberts on 23 February 2004 that he has been asked to cease work and had been stood down immediately arising from an incident where had dragged a box that was over the seven kilogram weight limit that had been set for him as an upper limit. [Transcript 29 October 2008 46:44-50 and 47:1-5].

125 The applicant denied that he had acted in breach of his medical restrictions. He acknowledged that his medical certificates said that he was not to suffer back strain. [Transcript 23 February 2006 39:1-7]. The applicant denied that the respondent had given him a direction not to exceed his lifting limit [Transcript 29 October 2008 49:23-31]. He agreed that the box weighed 19 kilograms although he said that at the time he did not know that. When cross examined about the weight of the box concerned at the first instance hearing the applicant was asked whether he recalled the weight of the box and replied “I forgot the weight anyway” [on 23 February 2006 T 39:35]. He then said that the gross weight was 18 kilograms. He agreed that the box had something in it but said he did not lift it [T 39:46-54]. He also agreed that the box was a large one that contained a number of smaller boxes. He denied that the company had a procedure of removing the small boxes from the larger boxes for storage or that he had been directed to do this previously. On the evidence before us it is not clear whether the box weighed 18 or 19 kilograms however we accept that the box weighed well over the lifting limit that the applicant ’s medical practitioners had set.

126 We have considered the evidence and do not accept the applicant’s evidence that he had not been given a direction not to exceed his lifting limit. In addition, we do not accept his evidence that the company did not have a procedure of removing the small boxes from the larger boxes for storage and that he had been directed to do this previously. Given the history of his previous discomfort from the lifting incident in 2003, the regular medical certificates he had provided his employer that included a reference to light duties and avoiding back strain and the incident that had just occurred in December 2003 where he injured himself lifting a box containing motors, we consider it more likely than not that his employer had directed him to work within his medical restrictions and to avoid back strain.

127 We have earlier referred to the medical certificate dated 21 April 2004 provided by Dr Au Yong. Given the date of the certificate it is evident that Mr Quigley, Mr Meyer and others at the company did not have this certificate at the time of the stand down incident or at the subsequent meeting held on 25 February 2004.

128 As stated earlier it is unlawful under section 49D(2) of the AD Act for an employer to discriminate against an employee on the grounds of disability

(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.

129 It is not in issue that the applicant has a back injury and we accept that the applicant’s back injury is a disability as defined in section 4 of the AD Act. We are also satisfied that he was subjected to a detriment within the meaning of section 49D(2)(d) of the Act as he was given a letter telling him he was stood down and would not be offered more shifts.

130 The applicant relied on section 49D(2)(c) and said that he had been dismissed. The respondent denied that he had been dismissed. The respondent’s letter to the applicant told him he was being stood down and clearly stated that the company was not prepared to offer him any further shifts.

131 We accept the applicant’s evidence that he was asked to leave the premises on 19 February 2004 and remove his belongings after having a conversation with Mr Quigley once he had received the letter. We accept the evidence of the respondent’s witnesses to the effect that he was offered a position back on certain conditions during the meeting held on 25 February 2004 to discuss the stand down.

132 On the basis of the text of the letter he was given by Mr Quigley on the day of the stand down incident and that he was asked to remove his belongings from the workplace we are satisfied that at that stage the respondent did not plan to offer him more shifts and that he was dismissed within the meaning of section 49D (2)(c).

133 As stated earlier in this decision the test for direct disability discrimination involves two elements, less favourable treatment and causation.

Less favourable treatment

134 As we do not have an actual comparator we have used a hypothetical comparator. The treatment afforded to the applicant must be compared to the treatment that would have been afforded to a person without his disability in the same or not materially different circumstances.

135 In this instance after considering the evidence we are satisfied that Mr Quigley saw the applicant dragging a box that weighed well above the weight limit he was allowed to lift and that this action was contrary to previous medical restrictions placed on him including avoiding back strain and occupational health and safety requirements. This incident occurred in context of previous incidents where the applicant had injured himself, most recently in the December 2003. We are not satisfied that Mr Quigley would have treated a person without his disability acting in a way contrary to medical restrictions and occupational health and safety requirements any differently.

Causation

136 Even if the applicant met the less favourable treatment test to make out his complaint of direct discrimination he must also prove that one of the reasons for that less favourable treatment was his disability. We are not satisfied that one of the reasons for the treatment was the applicant’s back condition. We consider that the true reason was the employer’s concern that he was acting contrary to the medical restrictions that applied to him, a concern that he may injure himself and may expose the respondent to liability for any injury sustained. The onus is on the applicant to prove that the respondent has discriminated against him. In this instance we are not satisfied that he has established his complaint of disability discrimination.

137 The complaints of discrimination and victimisation are dismissed.