Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hayne v Illawarra Shoalhaven Local Health District [2021] NSWCATAD 171 Hearing dates: 10 – 12 February 2021, 29 March 2021, 19 April 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member E Hayes, General Member Decision: Application is dismissed. Catchwords: DISCRIMINATION on grounds of carer's responsibilities– "on the grounds of" – VICTIMISATION Legislation Cited: Anti-Discrimination Act, 1977 (NSW), ss4, 4A, 49T, 49V, 50. Cases Cited: Bradley v State of NSW (No 2) [2003] NSWADT 94 Commonwealth Bank v Human Rights and Equal Opportunities Commission ) [1997] FCA 1311; 150 ALR 1 Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Equal Opportunity Commission (1995) 63 FCR 74 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 Gardiner v NSW WorkCover Authority [2003] NSWADT 1 IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696 Reddy v International Cargo Express [2004] NSWADT 218 The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 Category: Principal judgment Parties: Scott Hayne (Applicant) Illawarra Shoalhaven Local Health District (Respondent) Representation: Counsel: T Bateman (Applicant) V Balut (Respondent) Solicitors: Applicant (Self Represented) Workdynamic Australia (Respondent) File Number(s): 2020/00048743 Publication restriction: Nil REASONS FOR DECISION Introduction 1. This was an application alleging carer's discrimination and victimisation of the applicant by the respondent. What is required in order to establish discrimination on the ground of carer's responsibilities? 1. Section 49T of the Anti-Discrimination Act, 1977 ( NSW) ( hereafter referred to as 'the Act') provides as follows: (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of the aggrieved person's responsibilities as a carer if the perpetrator-- (a) on the ground of the aggrieved person having responsibilities as a carer, 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 those responsibilities, 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 such responsibilities comply or are able to comply, being a requirement that 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 responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. 1. Section 49V of the Act provides as follows: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer-- (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer-- (a) in the terms or conditions of employment that the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment-- (a) for the purposes of a private household, or (b) if the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5. (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 responsibilities as a carer 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 responsibilities as a carer-- (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 arrangements that are not required by persons without those responsibilities as a carer and the making of which would impose an unjustifiable hardship on the employer. (5) For the purposes of subsection (3) (b), a corporation is regarded as the employer of the employees of any other corporation which, with respect to the first mentioned corporation, is a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth. 1. Section 4A of the Act provides as follows: If— (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. Factual Background 1. The applicant, Mr Scott Hayne, was employed by the respondent, Illawarra Shoalhaven Local Health District (hereafter referred to as 'the respondent' or 'ISLHD') in a position of Health and Security Assistant brackets ('HASA') working at the Milton Ulladulla Hospital from 20 to May 2017 until 17 January 2020. 2. The role of a HASA was to provide security services, cleaning services and wards person services at the hospital. There were three shifts, a morning shift 6 AM to 2:30 PM, afternoon shift 2 PM to 10:30 PM and a night shift 9:30 PM to 6 AM. 3. The applicant was employed on a casual basis from 22 May 2017 working 15 hours per week, from 28 August 2017 until 15 April 2018 on a permanent part time basis working 38 hours per week and from 16 April 2018 on a permanent full-time basis. He was absent from the workplace from late November 2018, due to a psychological injury in the workplace and his employment was terminated by the respondent in January 2020. 4. The applicant alleges that the respondent has unlawfully discriminated against him on the ground of his responsibility as a carer and, secondly, that the respondent has unlawfully victimised him. 5. It was common ground between the parties that the applicant, throughout his employment with the respondent, shared the care for his two sons with his former partner. He had responsibilities as a carer as defined in the Anti-Discrimination Act 1987 (NSW) (referred to in these Reasons for Decision as 'the Act'). 6. Whilst the applicant worked on a casual and then permanent part-time basis, he was rostered on morning, afternoon and evening shifts. Once he assumed the full-time permanent role, he was rostered for night shift only for a time. The applicant's evidence was that this was because his request for consideration for his care arrangements had been met. 7. The applicant alleges that he made known to the respondent that he had carer's responsibilities before, during and after the application process for the permanent full-time position. The permanent full-time HASA position was advertised as requiring candidates to have "availability and willingness to participate in a 24 hour/7 day a week rotating roster, including weekends and public holidays". 8. The applicant stated in his written application that he "currently works as a HASA on a casual basis and works on morning, afternoon and night shifts including weekends and public holiday days so [he could] not see any problem working a rotating roster". This was also confirmed by the applicant's supervisor, Mr Haub, in a reference check form completed by Mr Haub in support of the applicant's application for the full-time role. 9. At the interview for the full-time role, the applicant says that he made it clear to the interviewers, Ms Williams and Mr Lenane, that he could only work night shift, so as to be able to care for his sons. He alleges that was the basis upon which he was offered and accepted the full-time role. The applicant alleges that during the interview he told the truth and agreed that his written application did not correctly state his true position in relation to his carer's responsibilities. 10. Ms Williams and Mr Lenane do not accept that conversation occurred as the applicant described. They deny that the applicant stated in the interview that he could only work on the night shift or that they agreed to this in offering him the position. The respondent argues that the evidence of Ms Williams and Mr Lenane should be preferred. 11. This submission is made relying on several different bases: first, because the evidence of Ms Williams and Mr Lenane is consistent with the operational requirements of the hospital and the importance of a rotating roster; secondly, because it was not put to Ms Williams and Mr Lenane that their evidence was untrue and their Brown v Dunne obligation was not discharged, thirdly, the applicant's evidence as to saying something different in the interview from what he had said in the written application showed a willingness not to be entirely frank, either in the interview or in the written application form and finally, fourth, because the applicant conceded that although he worked night shifts whilst he was working permanent part- time, this was not due to any specific agreement, just that his request for night shifts was accommodated. 12. The respondent's evidence is that the arrangement for the applicant to undertake nightshifts whilst he was working permanent part- time was not approved by management, but was an informal agreement. 13. It was common ground between the parties that once Mr Hayne became a permanent full-time employee, he worked nightshifts. He alleges that this was because of his carer's responsibilities, which had been made known to the respondent before, during and after the application process. 14. In around August 2018, the respondent sought to introduce a 24/7 rotating roster for all HASAs. Mr Haynes sought to be excluded from this. He applied for and was granted Worker's Compensation in late November 2018 due to psychological injury, particularly the stress associated with the issues that are the subject of this application. He did not return to work and is no longer employed by the respondent. Discrimination Claim 1. The Tribunal needs to determine whether the applicant was discriminated against by the respondent, as defined in s49V of the Act on the ground of his carer's responsibilities. His case was argued on the basis that he experienced "indirect discrimination". In other words, that, pursuant to s49T(1)(b) of the Act, that the respondent required the applicant to comply with a "requirement or condition'; that he was unable to comply with it; that a substantially higher proportion of persons who do not have carer's responsibilities comply with, or are able to comply with the requirement or condition; that the requirement is not reasonable having regard to the circumstances of the case. 2. The applicant has termed the requirement that hospital management imposed in around August 2018 that a HASA work across three shift types, being morning, afternoon and night shifts, which would change from month to month, as "the Roster Requirement". The Tribunal adopts that terminology as being a convenient "shorthand" summary of the change in the rostering system that was then introduced and accepts that for the purposes of the Act the Roster Requirement constitutes a "requirement or condition". 3. It was not in dispute that by imposing the Roster Requirement the respondent required the applicant to comply with a requirement or condition. 4. The applicant argued that another witness and HASA, Mr Coles, had carers duties and could not comply with the condition. 5. Mr Haub, who supervised the duties of the HASA staff on a day-to day basis under the direction of Ms Williams, gave evidence that he was responsible for 15 HASAs. He stated in evidence that of those 15 HASAs for whom he was responsible, he was aware of only two of them (Mr Hayne and Mr Coles) who had carer's responsibilities. He stated that the others did not have carer's responsibilities. 6. The applicant urges that evidence should be accepted because Mr Haub had the day-to-day supervision of the HASAs so was in the best position to know whether or not they had carer's responsibilities. Secondly, the applicant argues, by 19 November 2018 Ms Williams gave evidence that she had received only one application for flexible work practices, which is consistent with very few of the HASAs having carer's responsibilities. 7. In re-examination of Mr Haub, his evidence was that "a lot" of the HASAs had children; he estimated that appropriately six or seven of the 15 HASAs had children, from infants to teenagers, they shared the care of their children with their partners and also worked a rotating roster. Thus, the respondent denies that a substantially higher proportion of those with carer's responsibilities were unable to comply with the Roster Requirement. 8. The respondent points out that when the rotating roster was introduced, all the HASAs worked the rotating roster. 9. In response to this, the applicant pointed out that when the roster was first introduced, there was apparently high absenteeism on the night shift and argued that this indicated that, contrary to the evidence of Ms Williams, it was not the case that other HASA wanted the more lucrative night work and indicated that they were not all able to undertake the Roster Requirement. 10. There was little other evidence regarding whether a "substantially higher proportion" of those without carer's responsibilities were able to comply with the Rotating Roster requirement. Commonly, subpoenas would be issued by the applicant seeking such information, but that does not seem to have occurred in this case. The applicant rested mainly on the evidence of Mr Haub and Mr Coles. 11. Given the evidence of Mr Haub on re-examination stating that a number of the HASAs had children of differing ages and cared for them with their partners, the Tribunal cannot be satisfied that it has been proven that a substantially higher proportion of those with carer's responsibilities, compared with those without such responsibilities, could not comply with the Rotating Roster requirement. Was the Roster Requirement "not reasonable having regard to the circumstances of the case"? 1. The onus is on the applicant to show that the Roster Requirement was not reasonable having regard to the circumstances of the case for the purposes of s49T(1)(b): Gardiner v NSW WorkCover Authority [2003] NSWADT 184 at [66]. 2. The respondent argued that the Roster Requirement gave HASAs more opportunity to undertake a variety of shifts, some of which carried higher rates, improved security and service, increased the opportunities for supervision of each HASA, improved opportunities for all HASAs to participate in training, being able to effectively manage leave and other absences in the workplace and 'fill' shifts as required and that it brought the hospital into line with the practices of other hospitals. 3. Those reasons for the Roster Requirement listed above can be readily understood, although other justifications advanced by the respondent seem to have little substance, for example the following: that the Roster Requirement would ensure that the respondent could meet required standards of cleaning and other operational needs (it was difficult to see why that would be the case as the numbers of HASAs rostered at any one time did not change); recent elevated security circumstances at the hospital (it was difficult to see why the Rostering Requirement would make a difference as, again, the numbers of HASAs rostered at any one time did not change). 4. In Commonwealth Bank v Human Rights and Equal Opportunities Commission ) [1997] FCA 1311; 150 ALR 1 ('the Finance Sector Union Case') the Federal Court examined the question of what "reasonable in all the circumstances" meant. This is similar, though not identical language to that used in the Anti-Discrimination Act, NSW. Justices Sackville and Davies both referred to various High Court and other authorities including Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251, Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 ("Dopking No 2"). 5. Justice Sackville summarises the position as follows: A number of cases have considered the proper construction and application of s 5(2)(b) of the SD Act, or of equivalent provisions in other legislation. The principal authorities are Secretary, DFAT v Styles (a case concerning s 5 of the SD Act); Waters v PTC (concerning the Equal Opportunity Act (Vic)); Dopking (No2) (concerning s 6 of the SD Act 1975 , dealing with discrimination on the ground of marital status); and AMC v Wilson (concerning the Racial Discrimination Act (Cth)). Some propositions can be distilled from these cases. In my view, they are consistent with the beneficial approach to the construction of anti-discrimination legislation, as applied most recently in IW v City of Perth [1997] HCA 30; (1997) 146 ALR 696, at 702, 704, per Brennan CJ and McHugh J; at 710, per Dawson and Gaudron JJ; at 724, per Gummow J. First, the starting point in determining whether a requirement or condition is "not reasonable having regard to the circumstances of the case" are the observations of Bowen CJ and Gummow J in Styles (at 263) that: "the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account." This passage was approved in Waters, at 395-396, per Dawson and Toohey JJ; at 383, per Deane J; compare at 365, per Mason CJ and Gaudron J. It was applied in Dopking (No2), at 82, per Lockhart J; at 86, per Sheppard J; at 96, per Lindgren J; and in AMC v Wilson, at 60, per Heerey J ( with whom Black CJ and Sackville J agreed). In Dopking (No2), at 82-83, Lockhart J said that the test "required the Commission, first, to examine the reasons in favour of the condition, and secondly, to weigh those reasons against the nature and extent of the discriminatory effect of the condition. The conclusion of discrimination within s 6(2) of the [SD] Act can be valid only when the Commission determines that, in all the circumstances, the difference of treatment between members without a family and members with a family is not reasonable." Since the test is objective, the subjective preferences of the aggrieved requirement. Subjective preferences "may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied by the Commission after considering all the material facts." Dopking (No 2), at 83, per Lockhart J. Secondly, the non-reasonableness of the requirement or condition is itself part of the definition of discrimination in s 5(2). Thus s 5(2)(b) is to be applied according to its terms and is not to be influenced by any concept of discrimination existing outside the statutory definition: Waters v PTC, at 409-410, per McHugh J; see also at 378, per Brennan J; at 394-396, per Dawson and Toohey JJ; at 383-384, per Deane J; at 365, per Mason CJ and Gaudron J; Dopking (No2), at 96, per Lindgren J. As Brennan CJ and McHugh J observed in IW v City of Perth, at 702, many anti-discrimination statutes define discrimination and the activities which cannot be the subject of discrimination "in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the [Equal Opportunity Act 1984 (WA)]. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act".[Citations omitted.] Thirdly, it would be erroneous for the Commission to assume that any difference of treatment between the complainants and (in this case) other employees of the Bank is prima facie discriminatory and therefore unreasonable: Dopking (No 2), at 82-83, per Lockhart J. The complainants bear the onus of establishing that the condition or requirement is not reasonable in the circumstances of the case: Waters v PTC, at 411, per McHugh J, Dopking (No2), at 83, per Lockhart J; Dopking (No 2), at 96, per Lindgren J; AMC v Wilson, at 62, per Heerey J. Fourthly, reasonableness (or non-reasonableness), for the purposes of s 5(2)(b) of the SD Act, is a question of fact for the Commission to determine, but it can only do so by weighing all relevant factors. What is relevant differs from case to case, but will, usually at least, include the financial or economic circumstances of the alleged discriminator, including its ability to accommodate the needs of the aggrieved persons. It may also be relevant to consider the availability of alternative approaches which would achieve the objectives of the alleged discriminator, but "in a less discriminatory way": Waters v PTC, at 394-395, per Dawson and Toohey JJ; and see at 383-384, per Deane J; at 410, per McHugh J. As Brennan J pointed out in Waters v PTC (at 378), reasonableness cannot be determined in the abstract: "[I]t must be determined by reference to the activity or transaction in which the putative discriminator is engaged. Provided the purpose of the activity or transaction is not to discriminate on impermissible grounds, the reasonableness of a requirement or condition depends on whether it is reasonable to impose the requirement or condition in order to perform the activity or complete the transaction. There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory (that is, one to which pars (a) and (b) of s 17(5) [equivalent to s 5(2)(a) and (c) of the SD Act, respectively] would apply) or that is as discriminatory as the requirement or condition imposed. These are questions of fact and degree. Effectiveness, efficiency and convenience in performing the activity or completing the transaction and the cost of not imposing the discriminatory requirement or condition or of substituting another requirement or condition are relevant factors in considering what is reasonable." Fifthly, the role of the Commission is not to determine whether the decision to impose the condition or requirement was the "correct" one. The point was put this way by Heerey J in AMC v Wilson (at 61-62), adopting a passage in the judgment of Sheppard J in Dopking (No2): "`reasonable' in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily in which all people or even most people agree. In Dopking Sheppard J emphasised what is in my respectful opinion an important aspect of reasonableness in an indirect discrimination context. The case was concerned with a complaint by Mr Dopking that a Defence Department determination that a benefit for the reimbursement of legal and other costs in connection with the acquisition of off-base accommodation by armed services personnel discriminated against him because it was restricted to personnel with families. Mr Dopking, being single, was entitled to full board in barracks but wished to live in his own home. Sheppard J said (at 87): `The basis for the discrimination which results from [the determination's] application only to married members is, in the circumstances of the case, within the bounds of objective reasonableness. In other words, the point of distinction which has been adopted has a logical and understandable basis. There may have been other ways of approaching the problem; views may differ about the matter. But, in my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the determination. With respect, I do not consider any other view to be open. I am thus unable to see how it can be said that the adoption of the policy to which the determination gives effect is unreasonable having regard to the relevant circumstances.'" It may be that the passage cited from the judgment of Sheppard J in Dopking (No2) somewhat overstates the position. The fact that a distinction has a "logical and understandable basis" will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement (in the sense in which the authorities interpret that concept) and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision. Depending on the circumstances, such a decision might be legitimately characterised as not reasonable, having regard to the circumstances of the case, within the meaning of s 5(2)(b) of the SD Act 1984 . I do not understand Heerey J to have intended to express a different view in AMC v Wilson. However, in my respectful view, Sheppard J's judgment correctly emphasises that the question is not simply whether the alleged discriminator could have made a "better" or more informed decision. The issue is that posed by the legislation, namely, whether the requirement is not reasonable having regard to the circumstances of the case. 1. The summary of the meaning of the term 'reasonable in all the circumstances' (he term is used in the in the Sex Discrimination Act 1984 (Cth)) set out above by Sackville J in the 'Finance Sector Union Case,' has been oft-quoted and applied in subsequent decisions in relation to the issue. 2. Taking into account the arguments advanced by the respondent for the introduction of the Roster Requirement and applying the reasoning of Justice Sackville in the 'Finance Sector Union Case,' the Tribunal finds that the Roster Requirement had a logical and understandable basis and was reasonable in all the circumstances. 3. The respondent argued that it had explored less discriminatory options in that it had tried to accommodate the needs of the applicant by proposing a trial roster whereby Mr Hayne would work 14 night shifts, 2 morning shifts and 3 afternoon shifts. However, this was only for one roster on a trial period. The applicant responded that this was unworkable and sought to continue on night shift only due to his carer's responsibilities. 4. The applicant sought flexibility in suggesting two other possibilities: he offered to consider doing afternoon as well as evening shifts at the meeting with Ms Williams on 11 September 2018 and at the same meeting offered to reduce his hours to .8 of the hours of a full-time employee if he could be rostered to perform 8 consecutive shifts and, by email of 22 November 2018 he offered to work one week on and one week off ( 'the every other week offer') and provide additional services to the renal unit, forgoing overtime rates. None of these possibilities appear to have been seriously considered by the respondent. None were accepted. 5. Nevertheless, the Tribunal is not satisfied that the disregard of these options was so contumelious as to establish that the Rotating Roster requirement was not reasonable and amounted to indirect discrimination. Representations made by the applicant as to whether he could perform the full-time role. 1. The applicant completed an application form for the full-time position, which expressly required "Availability and willingness to participate in a 24 hour/seven day a week rotating roster, including weekends and public holidays". In his application (which was in evidence), he expressly confirmed that he could do this and Mr Haub, his referee also confirmed this on a reference check. 2. The applicant's evidence is that in the interview for the position, he made it clear to those interviewing him, Ms Williams and Mr Lehane, that he could only work night shift, so as to be able to care for his sons. He alleges that the role was offered to him on that basis and that he accepted it on that basis. Both Mr Williams and Mr Lenane deny that this was the case. 3. Given the fact that Ms Williams in particular was keen to introduce a Rotating Roster requirement, it seems unlikely that she would have agreed to such an arrangement. 4. The position was advertised on the basis that it would involve 24/7 availability, was applied for in a written application on that basis and the two interviewers deny that it was offered on any other basis. There was no written documentation of any agreement with the applicant that he perform night shift only. For those reasons, the Tribunal prefers the evidence of Ms Williams and Mr Lehane that there was no agreement in the position interview for the applicant to perform night shifts only. Nor was he offered the position on that basis. However it appeared to be common ground between the parties that once he had the full-time position, by agreement within the HASA group he almost always worked on the night shift. 5. The applicant argued that in any event, he had stated on the job application form was not relevant as the real issue for the Tribunal is whether at the time of the introduction of the Rotating Roster requirement the applicant was able to comply with that requirement. In our view, what he wrote on the application form as to his availability to perform all shifts is relevant as to credit. It is also relevant in assessing whether or not the applicant could or could not comply with the Rostering Requirement that he signified assent to participating in rotating morning, afternoon and night shifts on his written application only a few months prior to the implementation of the Rostering Requirement. Inability to Comply 1. The applicant argued that he was unable to comply with the Rotating Roster requirement due to his carer's responsibilities, as he wanted to be available during the day to care for his two sons, aged 11 and 12, whilst they were at school and wanted to be able to attend any school activities. He cared for his sons together with his former partner and agreed in cross examination that they were somewhat flexible in their arrangements as required. 2. The assessment of whether a person can comply with a requirement or condition is to be assessed in a practical and not merely a theoretical sense: see for example Bradley v State of NSW (No 2) [2003] NSWADT 94 at [6]; Gardiner v NSW WorkCover Authority [2003] NSWADT 184 at [59]; Reddy v International Cargo Express [2004] NSWADT 218; The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 at 77,1672; Styles v The Secretary of the Department of Foreign Affairs and Trade and Anor (1988) EOC 92-239 at 77,238 per Wilcox J. 'Substantially higher proportion' 1. In demonstrating that a substantially higher proportion of persons with carer's responsibilities could not comply with a particular requirement, it is not necessary that statistical data is presented in every case (see Tleji v The TravelSpirit Group [2005] NSWADT 294 at [89].) Although the Tribunal decided differently in Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295, neither decision is binding on the Tribunal, which needs to assess the facts in every case in order to determine whether, in the particular case, the requirements of the relevant section of the Act have been met. 2. It is important for the Tribunal to determine what the base group is. That is a question of law. As stated in Bonella & Ors v Wollongong City Council [2001] ADT 194 at [82]: 3. "for the purposes of the statutory comparison, like must be compared with like in a context appropriate to the case under review" 4. In this case, the Tribunal finds that the appropriate base group was HASAs, as their duties were the same as those of the applicant and they can be said to be clearly comparable. 5. The former partner of the applicant was not called as a witness. The Tribunal is not prepared to draw a Jones v Dunkel inference arising for that, although it was unexplained, but it does represent a "gap in the evidence" as to whether or not the applicant could not comply with the Rotating Roster requirement. It would have assisted the Tribunal to have more specific evidence from the mother of the children as to why it would not be possible for the applicant to comply with a Rotating Roster requirement, as the applicant argued. 6. In the Summary of Complaint filed by the Applicant on 7 September 2020, he stated that "I currently have a 50% shared care agreement with the mother. The agreement was made verbally between the mother and I after separating back in 2012". Thus, the agreement is not a Court Order and could conceivably be changed by negotiation. 7. There does seem to have been a degree of flexibility in relation to the care arrangements the applicant had: in his Complaint to Anti-Discrimination NSW the applicant stated that he has time with his two sons "currently 50% to 40% of the time" as set out in the President's Report at page 25. 8. Given the evidence of the applicant that there was some flexibility as between himself and his former partner in relation to caring for their children and in the absence of specific evidence as to whether she could have accommodated the Roster Requirement and the absence of evidence as to whether the applicant could have accessed before and after school care when required, the Tribunal finds it has not been established on the balance of probabilities that the applicant could not comply with the Rotating Roster requirement. 9. The claim of discrimination has not been established and is dismissed. Victimisation 1. Section 50 of the Act provides as follows: 50 Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 1. The applicant argued that the applicant had been victimised within the meaning of the Act in a number of ways and thereby suffered detriment, as set out and considered below. 2. First, the applicant argued that the respondent failed to properly or adequately investigate serious allegations made against Mr Haub (which can conveniently be termed "the January Complaints"). The detriment is said to be the failure to investigate the January Complaints. The respondent argues that even if this is so (which is denied), there is no evidence connecting such alleged failure to the complaints of discrimination made by the applicant. It is clear from s50 that any detriment suffered must be suffered "on the ground that" the person victimised has brought proceedings, given evidence or information in connection with proceedings or other ground set out in the section. This requirement has been paraphrased in the jurisprudence as "due to" or "because of". 3. In order to establish a claim of victimisation, there needs to be a causal nexus between the conduct said to constitute victimisation and the complaint, evidence given or other matter set out in s50. The applicant has not demonstrated on the balance of probabilities that any alleged failure to investigate the January Complaints was "on the ground of" the applicant's complaints of discrimination. 4. Secondly it is argued that the respondent failed to properly or adequately consider less discriminatory options available to it to accommodate the applicant. This ground is misconceived: it may be relevant to whether or not a complaint of indirect discrimination is proven but does not demonstrate a causal nexus between the making of the complaint or bringing the complaint and the applicant being treated in a certain way because of bringing that complaint or those proceedings, as set out in s50. 5. The applicant also argued that the respondent's general conduct towards him amounted to victimisation. This was broken down into several distinct areas, as set out and discussed below. 6. First, it is argued that in the period after the first ADB Complaint, the foreshadowed application and the January Complaints, the respondent made no meaningful efforts to secure the applicant's return from worker's compensation leave. Given the medical evidence as to the severity of his psychological condition at that time, the more natural inference is that they were giving him some time to recover. 7. As set out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], the Tribunal has identified considerations in the drawing of inferences as follows: 70 The exercise of drawing inferences was discussed in detail by this Tribunal, differently constituted, in Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT, in A v B [1997] NSWEOT and in Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. The authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences: i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts ii. an inference must be reasonably drawn on the basis of the primary facts iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof v. it is not enough that the inference is a mere possibility: it must be one of "probable connection" vi. the inference must be a logical one, and not supposition vii. an inference cannot be made where more probable and innocent explanations are available on the evidence. 1. In this case, the evidence does not support the drawing of an inference that no meaningful efforts to secure the applicant's return from worker's compensation leave "on the ground of" or "due to" or "because of" his discrimination claim, nor that it was one of several reasons, even if not the sole reason, for the reasons set out below. 2. On one view, the various phone calls (eight on one day, which were firmly rebuffed by the applicant) were an effort to ascertain his situation. Even if these are not taken into account, there is a lack of evidence that any delay in attempting to get the applicant back to work was due to, "on the ground of" his discrimination claim or foreshadowed claim or the January Complaints. The causal nexus is simply not made out on the evidence that is before the Tribunal. 3. Similarly, deactivating the applicant's access card (that enabled access to the hospital) on 9 January 2019, whilst he was on workers compensation for psychological injury, does not amount to victimisation where a more natural inference is available, namely that as a matter of workplace health and safety, the access was deactivated in order to protect those on the hospital premises at a time when the psychological state of the applicant had not been deemed by his treating professional as making it appropriate for him to be in the workplace and where he had responded aggressively to phone calls by Mr Lenane on the same day, 9 January 2019. 4. The Tribunal also takes into account the evidence of another witness for the respondent, Mr Mark Nichols, the Recover at Work Coordinator for the respondent. He gave evidence that on 12 December 2018 the applicant had referred in a telephone call that Mr Nichols made to the applicant that if his claim were denied he would want to respond violently. The applicant denies saying that. Mr Nichols says that the applicant immediately re-framed that and said that matters would not reach that point. Nevertheless, Mr Nichols, whose professional role involves dealing on a routine basis with those who have suffered workplace injury, was sufficiently concerned that he escalated the matter internally "as I considered the comments made by the applicant were a possible threat to Ms Williams". His email immediately afterwards described the applicant as having retracted his comment after saying the particular words, but he was nevertheless moved to alert others to the conversation. His email was in evidence, as Annexure "MN-1" to his affidavit. Although the applicant denied making the comments, the Tribunal prefers the version of events outlined in the contemporaneous email that immediately followed the conversation to the applicant's recollection sometime later, in response to the affidavit of the Mr Nichols. 5. The fact that the applicant had been perceived by Mr Nichols as making, or possibly making, a threat to another member of staff, Ms Williams, which concern had been "escalated internally" and the acrimonious phone calls between the applicant and Mr Lenane on 9 January 2019, provide a reasonable basis for a decision to de-activate the swipe card access of the applicant to the workplace on 9 January 2019. 6. The email of Nina Kenny, Acting Workforce Support Manager of 29 January 2019 (annexed to the affidavit of Rebecca Hoare dated 2 October 2020 as Annexure RH-4) is also corroborative of the organisation being alert to a duty of care for the safety and wellbeing of the applicant and for his treating doctor to be able to confirm his ability to participate in investigative processes. 7. The Tribunal is not satisfied that the deactivation of the applicant's swipe card was undertaken on the ground of, or due to, his anti-discrimination claim. 8. It is also argued that the refusal of a leave application was an act of victimisation. The link with the discrimination claim has not been established on the balance of probabilities. 9. Similarly, allegations regarding the Chief Executive, Ms Margot Mains, victimising the applicant, have not been established on the balance of probabilities. The Tribunal accepts and prefers the evidence of Ms Hoare that Ms Mains was not involved in responding to any complaints brought by the applicant, which were dealt with at a more local level. 10. A further incident of alleged victimisation has been argued: the applicant disclosed to Ms Williams his foreshadowed anti-discrimination application and 20 minutes later Mr Haub upbraided him for having his security licence not clearly visible. Whilst it is understandable that the applicant may think that there might be a link between those two things, this rises no higher than speculation. There is insufficient evidence that this was done by Mr Haub "on the ground of" or "because of" his compliant of discrimination or that one of the reasons for that was the discrimination claim. That incident therefore does not constitute a substantiated instance of victimisation. 11. Further, it is argued that Mr Lenane sent an email to Mr Hayne's colleagues implying that Mr Hayne and Mr Coles were responsible for roster shortfalls which would result in Mr Hayne's colleagues being rostered for more night shifts than normal. Again, there is no evidence that such an action was "on the ground of", "due to" or "because of" the discrimination complaint. It may have been poor conduct but something more is required in order to constitute victimisation. 12. It is argued that the respondent contacting the ADB three days before the planned mediation to state that they did not believe that it was appropriate to mediate because the applicant was allegedly "psychologically unwell" constituted victimisation. 13. Rather, given the available medical evidence, the Tribunal accepts the evidence of Mr Ian Tobin, Director Workforce for the respondent as set out in his affidavit dated 1 October 2020 that it was reasonable for the respondent to notify the ADB of that matter and thus potentially avoid the applicant being unduly exposed to the psychological pressure of having to prepare for and appear at a conciliation with the respondent present, either on-line or in person, at a time when the applicant was unwell. 14. The Tribunal is not satisfied that either individually or cumulatively, the incidents referred to above constitute substantiated victimisation within the meaning of the Act. 15. The claim of victimisation is therefore dismissed. Order 1. Application is dismissed. ********** 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: 17 June 2021