Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ELV v Leaders in Real Estate Pty Ltd [2020] NSWCATAD 251 Hearing dates: 7 October 2020 Date of orders: 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: Leave is granted for the complaint of disability discrimination in employment to proceed. Catchwords: EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave EQUAL OPPORTUNITY — direct discrimination in employment on ground of disability — whether certain characteristics appertain to or are generally imputed to persons with the disability Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Texts Cited: None cited Category: Principal judgment Parties: ELV (Applicant) Leaders in Real Estate Pty Ltd (Respondent) Representation: Solicitors: Applicant (Self Represented) Respondent (Self Represented) File Number(s): 2020/00267935 Publication restriction: Pursuant to s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 the disclosure of the name of the applicant in these proceedings is prohibited. REASONS FOR DECISION Background 1. ELV, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with a complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 27 May 2020 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from ELV against the respondent, Leaders in Real Estate Pty Ltd (LRE). The applicant alleged that LRE had discriminated against her on the grounds of her disability by dismissing her from her employment. 2. The President declined the complaint on 1 September 2020 on the ground that it was lacking in substance and on the same date the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act. Legislation and principles governing the grant of leave 1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act). 2. Section 92 provides: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint— (a) the President is satisfied that— (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of— (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96." 1. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A) as has happened in this case. The complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)). 2. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]). 3. In assessing the available evidence, the Tribunal is to take the applicant's case at its highest, by accepting that everything which she has put in evidence is true and then determine whether she could possibly succeed in her complaint (Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73). The nature of the complaint 1. ELV commenced employment as a journalist with LRE on 6 April 2020. Her contract provided for a probationary period of six months. On 11 April 2020 her father died overseas. Due to the restrictions on travel at the time she was unable to attend her father's funeral in person. She stated that she saw images of her father's corpse by video link which traumatised her. She was unable to be with members of her family in person following his death as they were overseas. She had been diagnosed with post traumatic stress disorder (PTSD) some time prior to this. She considers that the events associated with her father's death caused this condition to recur. 2. She claims that her dismissal on 23 April 2020 was on the ground of her actual or presumed disability. The definition in 49A of the AD Act of "disability" includes: "(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." 1. Section 49B provides: "49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator— (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability." 1. Section 49D relevantly provides: "49D Discrimination against applicants and employees … (2) It is unlawful for an employer to discriminate against an employee on the ground 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. … (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability— (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is taken to be the employer of the employees of any other corporation which, with respect to the firstmentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth." Evidence and submissions of the applicant 1. ELV relied on a letter from her psychologist which stated that she was being treated for PTSD and depression. She had not informed the respondent of her prior treatment for PTSD or that she had PTSD or depression currently. 2. She submitted that the Tribunal should find that LRE either was aware of her psychological condition or presumed she had a psychological condition following her father's death because: 1. She had burst into tears during a video call with the director, Mr Chris Baynes and the editor, Ms Lauren Broomham three days after his death. 2. On or about 19 April she said in an email to Mr Baynes that she was "having difficulty with concentration at the moment, as I am in a state of grief after losing my father." This was in response to him asking her to re-do a story. She said she would appreciate short, sharp instructions in writing. 3. She was noticeably "more flat" in her manner. 4. She was having trouble concentrating. 1. Due to Covid-19 restrictions at the relevant time, ELV was working from home and all communications were by phone, video call or email. 2. She said that she was dismissed by telephone by Mr Baynes who told her that her employment was "not working out" and that her attention to detail was not satisfactory. He referred to one article where she had allegedly included some information which was not current. 3. ELV claimed that her dismissal was on the ground of her disability because: 1. Until the death of her father, she had received positive feedback about her work. 2. After she broke down during the call on 14 April 2020, Mr Baynes sent flowers which indicated he believed she was distressed, but then his manner changed and was more negative. 3. Her lack of attention to detail, which was stated to be a reason for her dismissal, was a symptom of her psychological condition. Evidence and submissions of the respondent 1. Mr Baynes, who represented the respondent at the hearing, denied that ELV burst into tears during the video call. He said he noticed she was sad but she was not sobbing as she had stated. He said that she had told them she wanted to keep working. 2. Later, when he decided that her work was not meeting their requirements, he decided that the business should dismiss her as she was still on her probationary period. At the time they were receiving applications from many other suitable journalists. 3. He said that the decision to dismiss her was not based on any disability and referred to two other employees with a disability or personal circumstances which the business had accommodated. 4. He provided a statement by Ms Broomham which stated that ELV was hired to fill a gap in staffing. She said that her early stories required heavy editing, she was concerned that ELV was not adapting her style sufficiently and she lacked attention to detail. Consideration 1. ELV says that the relevant act of discrimination was her dismissal (see s 42D(2)(c)). For the purposes of this leave application, I accept that she had a disability at the relevant time. While she did not articulate this expressly, it appears her complaint is one of direct discrimination based on differential treatment. In order to succeed, therefore, she would have to establish: 1. That by being dismissed she was treated less favourably by LRE than LRE treated or would treat a person in the same or not materially different circumstances, who did not have that disability (s49B(1)(a)); 2. That she was dismissed by LRE on the ground of either her PTSD, a characteristic that appertains generally to persons who have PTSD or a characteristic that is generally imputed to persons who have PTSD (s 49B(2)). 1. ELV does not claim that anyone at LRE was aware she had PTSD. Therefore in my view she would have to establish through evidence that the characteristics of being distressed, in "a state of grief" or being unable to focus on details or concentrate are characteristics that appertain generally to persons with PTSD or that they are characteristics that are generally imputed to people with PTSD; and that any or all of these characteristics was the reason why she was dismissed. 2. The other question to be asked is whether ELV's disability or the relevant characteristics or any of them were at least one of the 'real', 'genuine' or 'true' reasons for the differential treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144. In this case it appears a mixture of direct evidence and inference from available facts would be required to establish a causal link between the characteristics and the dismissal. 3. Any such inference must be logical and reasonable, and must show that a connection is probable; an inference cannot be made where more probable and innocent explanations are available on the evidence (Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]). 4. In my view it is possible, on the available evidence, that ELV could establish that one or more of the characteristics was the ground on which she was dismissed. She may face difficulty in establishing that any or all of these characteristics appertain generally or are generally imputed to persons with PTSD, however. After consideration, I have reached the view that this factual issue relating to the characteristics is not suitable for determination at the leave stage, given the present lack of expert or other evidence. 5. ELV would also need to establish that a person without her disability (a "comparator") would have been treated more favourably than she was, in the same or similar circumstances, in order to show that she was discriminated against. This could be a real or hypothetical comparator. 6. While the complaint does not have strong prospects of success, I do not consider that it lacks substance or is untenable or hopeless. It should be determined on its merits. 7. In my view the interests of justice require that ELV be given an opportunity to address each of the elements, obtain relevant evidence and to test the respondent's evidence. LRE should also be given the opportunity to respond to her claims and bring further evidence. Order 1. Leave is granted for the complaint of disability discrimination in employment to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2020