Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer

[2008] NSWADTAP 24

Appeal Panel - Internal

CITATION:	Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24
PARTIES:	APPELLANT Pollem Zhang RESPONDENT Blinds Pty Ltd trading as Blinds by Peter Meyer
FILE NUMBER:	079045
HEARING DATES:	26 November 2007
SUBMISSIONS CLOSED:	26 November 2007
DATE OF DECISION:	21 April 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Bolt M - Non Judicial Member
CATCHWORDS:	Question of law
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Zhang v Blinds Pty Ltd [2007] NSWADT 158
FILE NUMBER UNDER APPEAL:	051027
DATE OF DECISION UNDER APPEAL:	07/25/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 Whalan v Kogarah Municipal Council [2007] NSWCA 5 O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Mifsud v Campbell (1991) 21 NSWLR 725 (Court of Appeal) Fightvision Pty Ltd v Onisforou [1999] NSWCA 323 Hall v University of New South Wales [2003] NSWSC 669 Collection House Ltd v Taylor (2004) VSC 49 Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 1040 Soulemezi v Dudley (Holdings) P/L (1987) 10 NSWLR 247
REPRESENTATION:	APPELLANT In person RESPONDENT P Rochfort, agent
ORDERS:	1. The Tribunal’s orders are set aside 2. The case is remitted to be decided again by a similarly constituted Tribunal in accordance with the directions of the Appeal Panel set out at [57] 3. The respondent’s application for costs is refused.

REASONS FOR DECISION

Introduction

1 Mr Zhang has appealed against a decision of the Tribunal dismissing his complaints of disability discrimination and victimisation under the Anti-Discrimination Act 1977 (AD Act). He is entitled to appeal against a decision of the Tribunal on a question of law but must obtain the Appeal Panel’s leave to appeal against the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 112 and section 113(2). Mr Zhang appeared in person. In the proceedings before the Tribunal, he was represented by an agent, Ms Wang. Ms Wang and Mr Zhang speak Mandarin as their first language. An interpreter was present during most of the proceedings before the Tribunal but the majority of the proceedings were conducted without using the interpreter.

Background

2 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.

3 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. However, after the evidence had been completed he asked the Tribunal to consider his complaints as complaints of indirect discrimination as well as direct discrimination. The Tribunal refused to do so. No error arises from that decision given that Mr Zhang had an adequate opportunity to characterise his case as involving indirect discrimination had he so wished.

4 When the President of the Anti-Discrimination Board referred the complaints to the Tribunal, he specified the period covered by the discrimination complaint as being between 11 February 2003 and 11 August 2003. The period of the victimisation complaint was said to be 19 February 2004 to 26 February 2004.

5 The Tribunal listed seven alleged instances of discriminatory treatment in its reasons for decision at [7]. Mr Zhang did not agree with the Tribunal's characterisation of his complaint however, in summary, our understanding is that Mr Zhang says he was discriminated against because the respondent:

a) demoted him and took away his supervisory duties;

b) changed his employment status from full-time to casual;

c) failed to assist him to perform his supervisory role or to assist him when he needed to move heavy boxes;

d) failed to accommodate the restrictions on his ability to work, including the requirement that he take a five minute break every hour;

e) disadvantaged him in relation to the remuneration he received, especially his eligibility for bonus payments; and

f) harassed him because of his disability.

Legislative requirements

6 In order to make out his complaints of direct disability discrimination Mr Zhang had to prove to the Tribunal that:

a) he had a disability within the meaning of that term in section 4 of the AD Act ;

b) the incidents about which he complained related to the terms or conditions of his employment or one of the other areas listed in section 49D(2);

c) the allegedly discriminatory incidents occurred:

(i) within the period of the complaint as referred by the President of the Anti-Discrimination Board; or

(ii) outside that period but the Tribunal should exercise its discretion to amend the complaint to include those incidents: AD Act, section 103; or

(iii) prior to the period of the complaint but the incident continued to be operative during the complaint period: Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268 at [52].

d) in relation to those incidents, the respondent treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would have treated a person who does not have a back injury: AD Act , section 49B (the differential treatment test); and

e) at least one of the reasons for the treatment was Mr Zhang's disability: AD Act, section 49(B) (the causation test).

7 If Mr Zhang had made out each of these elements of the complaint then the onus would have shifted to the respondent to prove that it was not liable because of the operation of a defence or exception: AD Act , section 104.

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).

Tribunal's decision

9 The Tribunal's decision includes reasons given ex tempore on 17 November 2006 as well as the written reasons handed down on 25 July 2007. The ex tempore decision was handed down after the completion of the evidence and before submissions were filed. Reading those decisions together, the Tribunal concluded that:

a) Mr Zhang had a disability within the meaning of that term in section 4 of the AD Act , namely a severe back condition; (at [5])

b) Mr Zhang’s complaints relate to the terms or conditions of his employment: AD Act, section 49D(2);

c) Mr Zhang was entitled to rely on the incidents that occurred within the period of the complaint as referred by the President of the Anti-Discrimination Board; (11 February 2003 to 11 August 2003 for the discrimination complaint and 19 February 2004 to 26 February 2004 for the victimisation complaint)

d) it did not have power to amend the complaint to include incidents that occurred outside those periods; (see ex tempore decision 17 November 2006)

e) the fact that Mr Zhang commenced working on a casual basis without any supervisory duties on 15 October 2001 was not an incident which was operative during the complaint period and which could be considered as a discrete act of discrimination; (see ex tempore decision 17 November 2006)

f) in relation to each alleged incident of discrimination the respondent had not treated Mr Zhang less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would have treated a person who does not have a severe back condition: (at [25] and [26]).

10 The Tribunal’s conclusion in relation to the differential treatment requirement was made using a hypothetical comparator. In the absence of an actual employee whose treatment could be validly compared with the treatment given to Mr Zhang, the Tribunal correctly based its conclusion on a hypothetical person in a comparable situation: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA (at page 19).

11 The finding in relation to the differential treatment requirement meant that the Tribunal did not need to go on to determine whether the treatment was on the ground of Mr Zhang’s disability (the causation requirement). Similarly, the finding in relation to the differential treatment requirement meant that the Tribunal did not need to go on to determine whether any of the defences under the AD Act had been made out.

12 In relation to the complaint of victimisation the Tribunal found that Mr Zhang had suffered a detriment on 19 February 2004 namely the termination of his casual employment. The Tribunal did not regard that detriment as having been on the ground that Mr Zhang had lodged a complaint with the President of the Anti-Discrimination Board: (at [62]).

Grounds of appeal on questions of law

13 The grounds of appeal on questions of law can be divided into the following categories. The Tribunal:

a) misapplied the law when deciding whether to exercise its discretion to amend the complaint to include incidents that had occurred outside the period of the complaints as referred by the President of the Anti-Discrimination Board (see ex tempore decision 17 November 2006);

b) did not regard the fact that Mr Zhang commenced working on a casual basis without any supervisory duties on 15 October 2001, as an incident which was operative during the complaint period and which could be considered as a discrete act of discrimination (see ex tempore decision 17 November 2006);

c) misunderstood and misapplied the law in relation to the discrimination complaint and the victimisation complaint;

d) ignored relevant evidence;

e) acted in a procedurally unfair manner; and

f) gave inadequate reasons for its decision.

14 The grounds of appeal in relation to the merits of the Tribunal's decision (if the Appeal Panel grants leave for the appeal to be extended to the merits of the decision) were that the Tribunal made findings of fact, which were based on an uncritical acceptance of the evidence given by the respondent's witnesses.

15 We deal first with the appeal grounds on a question of law. The first two of those grounds require us to determine whether or not to give Mr Zhang leave to appeal against the interlocutory ex tempore decision. Leave is required firstly because the decision is an interlocutory decision: ADT Act, section 113(2A). Leave is also required because the appeal was lodged more than 28 days after the Tribunal had furnished written reasons for the decision: ADT Act, section 113(3).

16 We give leave for Mr Zhang to appeal against the ex tempore decisions even though they were interlocutory decisions because the final decision has been handed down and the interlocutory decisions are critical to the final outcome.

17 In relation to the fact that Mr Zhang lodged his appeal late, the Tribunal provided Mr Zhang with a copy of the interlocutory decisions and a copy of a notice entitled Rights of Appeal under ADT Act by letter dated 14 December 2006. This notice advised Mr Zhang that he had 28 days to appeal against the decisions. No appeal was lodged until after the decision in the substantive matter was handed down on 25 July 2007. In our view, it is understandable that he waited until he had the final reasons for decision before lodging a Notice of Appeal. English is not his first language and he may not have been aware of the implications of not lodging an appeal. Furthermore, there is no substantial prejudice to the respondent in accepting the appeal out of time given that an appeal has been lodged against the final decision. We give leave for the Notice of Appeal to be filed out of time pursuant to ADT Act, section 113(3).

Refusal to amend complaint

18 The Tribunal decided that it did not have power to amend the complaint to include incidents that had occurred outside the periods of time identified by the President of the Anti-Discrimination Board when referring the complaint to the Tribunal. Section 103 of the AD Act provides that:

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

19 The Tribunal decided that section 103 only authorises the Tribunal to add complaints where those complaints arise out of the complaints that have been investigated by the President. The rationale for that view was that otherwise a complainant would have an unlimited capacity to seek to have complaints added even though the President had not investigated those complaints. The Appeal Panel rejected that interpretation in a previous decision: Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 at [37] – [38]. We adopt that reasoning in this case.
37. The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal’s decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38. There is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal’s conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added.

20 Applying that analysis, in our view the Tribunal erred in its interpretation of section 103. However, that error did not have any practical effect because Mr Zhang did not identify any conduct which could amount to a breach of the AD Act either before, during or after the relevant periods. He submitted that Mr Quigley’s refusal on 24 September 2003 to allow him to resume the full time supervisory role, was a discriminatory act. However, even if we accept that that occurred, it does not amount to a discrete act of discrimination. It was merely confirmation that the existing arrangement that had been in place since 2001would continue. Similarly, Mr Zhang’s allegation that he was not entitled to the wage increases granted to other employees after he became a casual employee is not a discrete allegation of discrimination. It is merely a fact, which would potentially affect the level of damages to which Mr Zhang may be entitled. (See items 2 and 4 listed at [7] of the Tribunal’s decision.)

21 Mr Zhang also appealed against the Tribunal’s decision not to allow him to characterise the victimisation complaint (being stood down) as a complaint of disability discrimination as well. (See transcript 9 August 2006, page33, line 6 and following.) Contrary to the Tribunal’s assumption, an amendment is not required for Mr Zhang to characterise his victimisation complaint as a complaint of disability discrimination. The fact that the President of the Anti-Discrimination Board did not characterise the ‘standing down” incident as an alleged breach of the disability provision, does not mean that the complainant cannot characterise it in that way before the Tribunal: West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240 (5 October 2007) at [5] to [11]. Consequently the only error the Tribunal made in relation to the consideration of the amendment provisions was to regard itself as being unable to allow Mr Zhang to characterise his victimisation complaint as a complaint of discrimination as well.

Continuing operation of previous treatment

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. 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.

23 The Tribunal did not regard the fact that Mr Zhang commenced working on a casual basis without any supervisory duties on 15 October 2001 as a circumstance, which continued to be operative during the complaint period. In their ex-tempore reasons for decision the Tribunal referred to the Supreme Court decision in NSW Commissioner of Fire Brigades (NSW) v Lavery [2005] NSWSC 268. The Tribunal’s conclusion was that that decision indicates that the Tribunal can, in an appropriate case, consider the circumstances that gave rise to a complaint prior to the relevant period in deciding whether an applicant suffered unfavourable treatment within the complaint period.

24 However, when the Tribunal considered the events of 15 October 2001 at [21] and following, it did not come to a conclusion as to whether that situation constituted unlawful discrimination or whether it continued to operate during the complaint period. Rather, the Tribunal made two findings, which were irrelevant to those questions. Firstly it found that the respondent acted “sensibly and reasonably” in moving Mr Zhang to a casual position with no supervisory responsibilities. Secondly, the Tribunal found that Mr Zhang did not complain about the change for 16 months.

25 In our view the Tribunal misunderstood the principle in Lavery and failed to decide whether that principle applied in this case. The Tribunal did not ask itself whether Mr Zhang’s move to a casual position without supervisory duties in 2001 constituted unlawful discrimination on the ground of disability and if so, whether that situation continued to operate during the complaint period. Its failure to do so constitutes an error of law. In our view, what the Tribunal should have done was decide whether the change to Mr Zhang’s terms and conditions of employment was “treatment” for the purpose of the AD Act. To do so, it needed to make a finding of fact in relation to the conflicting evidence as to who instigated the change. If the change to the terms and conditions of employment did amount to “treatment” the Tribunal should then have gone on to decide whether the differential treatment and causation requirements had been fulfilled and whether the treatment continued to be operative during the relevant period.

Misunderstanding and misapplication of the law

26 Introduction. Several of Mr Zhang’s grounds of appeal assert that the Tribunal misunderstood or misapplied the law. We deal with each of the remaining allegations of discrimination in turn to determine whether the Tribunal correctly applied the law.

27 Failure to respect medical restrictions and provide assistance. As part of his complaint of disability discrimination, Mr Zhang said that the respondent failed to respect the medical restrictions to which he was subject and failed to provide him with assistance to perform his supervisory functions and to move heavy boxes. (See items 1 and 3 listed at [7] of the Tribunal’s decision.) The Tribunal’s response to this allegation appears at [14] and [15]:

14 The respondent co-operated and gave assistance to the applicant to ensure that the applicant was able to work within the medical restrictions. Within the complaint period there were several instances where the applicant breached the restriction on his being able to lift, push or pull heavy weights. On at least 2 occasions these breaches led to the applicant suffering severe pain arising from his back injury. The respondent was aware and concerned for its liability under the Workers Compensation laws if the applicant should aggravate his injury during his employment with the respondent.

15 On 13 February 2003, when the applicant attempted to move a heavy box in excess of 7 kilograms weight from a position near his workstation and as a result suffered extreme pain, a serious episode occurred with several consequences. When the applicant was unable to move the boxes, he requested assistance from the factory supervisor. The production manager, Mr Morris, intervened and refused assistance to the applicant. The applicant proceeded to open the big boxes and remove the smaller boxes inside and to store the smaller boxes under his worktable. When this space was filled, the applicant then dragged and pushed the remaining 4 or 5 large boxes to the kitchen for storage.

28 The Tribunal concluded at [25] and [26] that the respondent did not breach the differential treatment requirement in section 49B(a) because it would have treated an employee who had similar restrictions on his working conditions, but who did not have a back injury, in a similar manner to the manner in which Mr Zhang was treated.

29 The Tribunal’s factual findings on this question are contradictory. At [14], the Tribunal says, “The respondent co-operated and gave assistance to the applicant to ensure that the applicant was able to work within the medical restrictions.” Those restrictions included not lifting boxes above a certain weight. At [15], the Tribunal says that the production manager refused to assist Mr Zhang to move some boxes when he requested that assistance. In addition, the Tribunal failed to make any finding in relation to Mr Zhang’s allegation that he had not been provided with assistance to perform his supervisory functions. The Tribunal then concluded, without explanation, that the respondent had not treated Mr Zhang less favourably than it treated or would have treated other employees without a disability.

30 Reasons for decision should refer to the relevant evidence and set out any material findings of fact. The Tribunal should also provide reasons for making relevant findings where factual matters are in dispute. In short, the Tribunal must “engage with” the cases presented by the parties: Whalan v Kogarah Municipal Council [2007] NSWCA 5 per Ipp JA at [40]. It did not do so in relation to Mr Zhang’s allegations of being given inadequate or no assistance to perform certain duties of his job or in relation to his allegation that the respondent had failed to respect the restrictions under which he had to work. Its failure amounts to an error of law.

31 Once relevant findings of fact had been made, the Tribunal should then have considered whether any failure to accommodate Mr Zhang’s medical restrictions or to assist him to move boxes could constitute direct disability discrimination as defined in section 49B(1)(a). This was not a situation where the alleged breach had been characterised as indirect discrimination or where the defence in section 49D(4) applied.

32 Harassment allegations. Part of Mr Zhang’s complaint was that he had been harassed on the ground of his disability by Mr Morris on three occasions. The Tribunal came to the following conclusions at [35] and [36] in relation to these incidents:

35 In relation to the occasion on 13 March 2003, it is the view of the Tribunal that Mr Morris was justified in requesting the applicant not to sit near another staff member during his lunch break. Mr Morris was using his position of power but not in an inappropriate manner.

36 In regard to the incidents on 15 March 2003 and 17 March 2003, it is the view of the Tribunal that although Mr Morris may be guilty of not showing sufficient sensitivity towards the applicant, the approach adopted by Mr Morris on those occasions could not be classed as less favourable treatment to justify the finding of discrimination on the ground of the applicant’s disability.

33 The question of whether harassing behaviour can amount to unlawful discrimination was first addressed in New South Wales by Mathews DCJ in O'Callaghan v Loder [1983] 3 NSWLR 89. 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.

34 When determining whether the harassment to which Mr Zhang said he was subjected constituted discrimination, the Tribunal asked itself the wrong question. In relation to the first incident, which occurred on 13 March 2003, the question is not whether Mr Morris was justified in requesting that Mr Zhang not to sit near another staff member during his lunch break. In relation to the other two incidents, the Tribunal concluded that there had been no differential treatment without providing any reason for reaching that conclusion. In relation to all the incidents of alleged harassment the Tribunal should have applied the principles in O’Callaghan v Loder and asked whether the workplace was poisoned by disability harassment and, if so, whether the respondent failed to respond appropriately. In our view the Tribunal erred in its consideration of the harassment allegations.

35 Quota system. The final aspect of Mr Zhang’s complaint was that he was disadvantaged in his access to the bonus payment system because he had to produce more blinds per hour than employees who were working full time in order to receive a bonus. The Tribunal made a factual finding at [42] that full time employees had to produce roller screens at the rate of 2.4 per hour to be eligible for the bonus. Mr Zhang, who was working 6 ½ hours per day, would need to produce 2.76 screens per day. Taking into account the 5 minute break each hour, he would have to produce 3.01 screens per hour. However, the bonus was only paid if those working in a particular section met the total weekly quota for that section. The Tribunal also found that Mr Zhang did not earn a bonus payment, although the respondent admitted that he had been paid a bonus on one occasion as a gesture of goodwill (See transcript of 21 September 2005, line 36). The Tribunal set out its conclusion at [45]:

45 Although, on a mathematical basis it could be demonstrated that the bonus system as it applied to the applicant did not fully take account of his 5 minute break every hour, when consideration is given to the totality of the circumstances relating to the applicant’s attendance and to the sectional calculation of the bonus and in the absence of evidence as to what bonus was paid to other employees, the Tribunal is unable to conclude that the applicant suffered less favourable treatment when compared to other employees who, in similar circumstances to the applicant, would have been treated in a manner different to the manner in which the applicant was treated. Any mathematical misapplication of the finite position of the applicant, in the case of another employee who had similar restrictions on his working hours, would, on a notional basis, have applied in a similar manner to the other employee.

46 In the view of the Tribunal the applicant has failed to substantiate that the circumstances relating to the manner in which his qualification for a bonus was calculated constituted less favourable treatment of him. Consequently, the claim of discrimination arising out of those circumstances, has not been substantiated.

36 With respect, we cannot understand the Tribunal’s reasoning. The Tribunal’s factual finding was that Mr Zhang had to produce screens at a greater rate than full-time workers in order to receive the bonus. The Tribunal erred by failing to provide an intelligible reason for its conclusion that the differential treatment test had not been satisfied.

Ignoring relevant evidence

37 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)
38 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.)

39 Whether the alleged conversation took place in the terms set out by Mr Parker is directly relevant to the question of whether Mr Zhang was stood down because he made a complaint to the Anti-Discrimination Board: AD Act, section 50. The Tribunal did not refer to that evidence in its reasons for decision. Ignoring evidence that is critical to an issue in the case amounts to an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 (Court of Appeal); Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at 513 (Court of Appeal).

40 In relation to the victimisation complaint Mr Zhang said that the Tribunal did not take into account that the relevant award did not provide for an employee to be stood down. Whether or not the Tribunal took that matter into account is irrelevant. The basis for its decision was that there was no causal connection between Mr Zhang making his complaint of discrimination and the respondent standing him down. Whether or not Mr Zhang had been lawfully stood down in accordance with the Award was not an issue that the Tribunal needed to determine.

Procedural fairness

41 Section 73(2) of the ADT Act obliges the Tribunal to comply with the rules of natural justice, otherwise known as procedural fairness. The rules of natural justice are found in the common law, that is, in cases dealing with those issues. The "right to be heard", which is one element of procedural fairness, was summarised by McClellan J in Hall v University of New South Wales [2003] NSWSC 669 at [68] as including a reasonable opportunity to make submissions, give evidence and call witnesses in support as well as being given notice of various matters such as the time, date and place of the hearing, the case to be answered and an adequate time to prepare submissions and gather evidence. However, a party need only be given a "reasonable opportunity" to present their case.

42 As well as the common law rules of procedural fairness, section 72(4) of the ADT Act requires the Tribunal to "take such measures as are reasonably practicable":

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

43 In Collection House Ltd v Taylor (2004) VSC 49 at [27], Nettle J of the Supreme Court of Victoria, in hearing an appeal from a decision of the Victorian Civil and Administrative Tribunal, said:
That is not to say that the Tribunal exists to provide legal advice to parties that appear before it or even that it would be appropriate for the Tribunal to provide legal advice to parties. It does not and it would not be. But there is a difference between providing legal advice and explaining in the course of hearing to unrepresented litigants the nature and effect of the various processes, which are being undertaken, and as to the steps open for the litigants to take. In that sense, a higher burden of explanation and assistance may fall upon a member of the Tribunal than would fall upon a judge in a curial proceeding in which the parties are represented by counsel. ...
44 Refusal to accept evidence from Dr Roberts . Ms Wang sought to tender a report from Dr Roberts, a consultant psychiatrist, dated 14 February 2006. Mr Rochford, representing the respondent, objected to the tender of that report on the basis that Dr Roberts was not available for cross-examination. The Tribunal upheld the objection and did not admit the report into evidence. (See transcript of 23 February 2006 at page 10 and following and 24 February 2006 at page 6 and following.) Ms Wang submitted to the Tribunal, and the Appeal Panel, that the Tribunal’s failure to admit the report amounted to a breach of procedural fairness.

45 A reading of the relevant passages in the transcript reveals that the Tribunal refused to admit Dr Roberts’ report because he was not available to be cross-examined and the respondent had put Ms Wang on notice that they required Dr Roberts for cross-examination. Ms Wang raised the possibility that the Tribunal could issue a summons to Dr Roberts, but it refused to do so. She also attempted to explain why Dr Roberts could not attend but the Presiding Member said that it did not matter why Dr Roberts could not attend and refused to listen to her explanation. (See transcript 23 February 2006 page 13, line 17 and following.) With respect, in our view, the reason that Dr Roberts was not able to attend could have been relevant to the Tribunal’s decision as to whether the report should be admitted. If he had a reasonable excuse, or if Ms Wang could not afford to pay his expenses, it may have been fair to either hear his evidence at another time or hear his evidence by phone. In our view, the Tribunal failed to give Ms Wang a reasonable opportunity to explain why Dr Roberts was not able to attend and give evidence. The Tribunal also failed to explain to Ms Wang the options that may have been available to her including the possibility that Dr Roberts could give evidence by phone. Those failures constitute a breach of procedural fairness.

46 Time limits on cross-examination. On 6 June 2006 Ms Wang wrote to the Tribunal objecting to time limits being placed on her cross-examination of the remaining respondent witnesses. At that time, the matter had been heard over six days, 21 September 2005, 22 September 2005, 23 September 2005, 23 February 2006, 24 February 2006 and 6 June 2006. A final day was scheduled for 7 June 2006. The matter concluded on 9 August 2006. Ms Wang said that her poor English and the “limitation in the quality of her examination” meant that she could not complete the cross-examination of the witnesses in one day. Ms Wang says she was not aware of any power the Tribunal had to restrict time for cross-examination. Section 73(5)(d) of the ADT Act states that:

The Tribunal in the case of a hearing may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
47 In our view, this provision relates to the cross-examination of parties. It is reinforced by the common law principle that:
A judge or magistrate has a wide discretionary power in any proceedings to contain cross-examination within proper limits and to disallow prolix or unnecessary questions: The Queen v Kelly 28 SASR 271 at 273 per King CJ.
48 In Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 1040 the Court of Appeal relied on this principle to reject a submission that a Magistrate denied the plaintiff natural justice by not allowing the plaintiff to "fully" cross -examine the defendant. The Court of Appeal held that the Magistrate gave reasonable time and breadth for the cross-examination and that the Magistrate had merely restricted unreasonable questioning.

49 Having read the transcript we are satisfied that the limits the Tribunal placed on the cross-examination of witnesses were "reasonably necessary for the fair and adequate presentation" of the case. The Tribunal was attempting to restrict unreasonable and irrelevant questioning. Furthermore Ms Wang did not identify a specific area of cross-examination, which she was prevented from pursuing and which would have been relevant.

50 Opportunity to re-examine respondent’s witness. Ms Wang said that she was denied the opportunity to re-examine the respondent’s witnesses. Ms Wang cross-examined the respondent’s witnesses. Only the party calling the witness has the right of re-examination. If Ms Wang meant to say that she was denied the opportunity of cross-examining the respondent’s witnesses, it is true that the Presiding Member repeatedly admonished Ms Wang in relation to her questioning style and asked her to confine herself to clear and relevant questions. However, while the Presiding Member was somewhat impatient with Ms Wang, she was not prevented from questioning the respondent’s witnesses on relevant matters. (See, for example, transcript of 7 June 2006 at page 46, line 30 and following.)

51 Re-examination of Mr Zhang. Ms Wang said that she did not have an opportunity to re-examine Mr Zhang. That is not correct. (See transcript of 24 February 2006 at page 23 and following.) At the hearing on 9 August 2006, which was the last day, Ms Wang asked if she could re-call Mr Zhang to give further evidence. The Tribunal refused that request saying that she could not re-open her case after the respondent had finished their case. There is no error in that approach. In fact, the Tribunal may have been denying the respondent procedural fairness if it allowed Ms Wang to re-open the applicant’s case at that stage.

52 Use of the interpreter. Mr Zhang said that he was not given an adequate opportunity to be understood during the hearing because the Tribunal did not allow the interpreter to interpret from ‘English into Chinese simultaneously’. Ms was acting as Mr Zhang’s agent and her role was to ensure that his interests were protected. Ms Wang did not require an interpreter. In those circumstances, there was no need for everything that was being said to be interpreted so that Mr Zhang could follow the proceedings. It was sufficient that an interpreter was available to assist him when he was giving his evidence. Mr Zhang said that an interpreter was available for that purpose. He agreed that the questions he was asked were interpreted before he was required to answer.

53 Intimidating environment. Finally, Ms Wang said that the Tribunal created an intimidating environment. However, there was no submission to the Appeal Panel that the Tribunal was biased nor was any application made to the Tribunal for disqualification for bias. In those circumstances, an allegation of intimidation does not identify a question of law.

Adequacy of reasons

54 Mr Zhang submitted that the Tribunal erred by not setting out, under three distinct headings, its factual findings, a statement of the relevant rule and the application of the rule to the findings. He also said that the Tribunal failed to deliver a reasoned and judicial decision in accordance with the principles set out in Soulemezi v Dudley (Holdings) P/L (1987) 10 NSWLR 247 at page 278. McHugh JA (as he then was) spoke generally about the decision making processes of courts and tribunals in that case at page 278:

When parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles, which govern their conduct, and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles.
55 We agree that the Tribunal did not make relevant findings of fact in relation to some of the issues in dispute and that it did not clearly set out the relevant legislative tests. Some of those failures have been discussed in these reasons.

Conclusion

56 Given the errors we have identified, we consider it appropriate to set aside the Tribunal’s orders and remit the case to the Tribunal to be decided again in accordance with the Appeal Panel’s directions: ADT Act, section 114(2)(b). Given the fact that Mr Zhang was not legally represented and we have found a breach of procedural fairness, the matter should be remitted to the Tribunal with a different presiding member. As far as possible, the Tribunal should rely on the existing evidence as set out in the exhibits and the transcript. This is not an opportunity for Mr Zhang to run his whole case again. The Tribunal’s role is limited to determining the issues set out below. It is only where fresh evidence is necessary to determine those issues that the Tribunal should allow such evidence to be adduced.

57 The Tribunal is directed to:

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).

Costs

58 The respondent applied for costs. Its submission was that there were no proper grounds for the appeal and that while Mr Zhang does not have to pay his agent a fee, as a corporation, the respondent has no choice but to pay the costs of representation. The first submission is not relevant given our findings. The second submission is not a circumstance justifying an order for costs: AD Act, section 110.

Orders

1. The Tribunal’s orders are set aside

2. The case is remitted to be decided again by a similarly constituted Tribunal in accordance with the directions of the Appeal Panel set out at [57]

3. The respondent’s application for costs is refused.