Set aside by Appeal : CITATION: Zhang v Blinds Pty Ltd [2007] NSWADT 158 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Pollem Zhang RESPONDENT Blinds Pty Ltd FILE NUMBER: 051027 HEARING DATES: 21 September 2005, 22 September 2005, 23 - 24 February 2006, 6 - 7 June 2006, 19 August 2006 SUBMISSIONS CLOSED: 5 March 2007 DATE OF DECISION: 25 July 2007 BEFORE: Ireland G - Judicial Member; Mooney L - Non Judicial Member; Weule B - Non Judicial Member CATCHWORDS: Disability Discrimination - In work - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 APPLICANT D Wang, agent REPRESENTATION: RESPONDENT P Rochefort, agent ORDERS: 1. The complaints of disability discrimination made by the applicant against the respondent be dismissed.; 2. The complaint of victimisation made by the applicant against the respondent be dismissed. REASONS FOR DECISION Nature of Complaints 1 The matters for determination by the Tribunal relate to two complaints made by the applicant to the Anti-Discrimination Board (ADB). The first complaint was lodged on 11 August 2003 and related to a number of complaints of unlawful discrimination in employment. The second complaint was lodged by the applicant on 26 February 2004 and was a complaint of victimisation. 2 After investigating the complaints, the President of the ADB determined that the complaints of unlawful discrimination on the ground of disability be limited to the period from 11 February 2003 to 11 August 2003. The claim of victimisation is limited to the period from 19 February 2004 to 26 February 2004. 3 The hearing of the inquiry into the complaints before the Tribunal ranged over a long period commencing on 21 September 2005 and concluding on 9 August 2006. A total of seven hearing days was required to complete the evidence presented to the Tribunal by the parties. A timetable for the presentation of written submissions by the parties' representatives was extended on two occasions at the request of the representative of the applicant. The process of the written submissions was not completed until 5 March 2007. Factual Background 4 To comprehend the circumstances relating to the complaints, it is necessary to set out the most relevant of the events which gave rise to the complaints: - In the latter part of 1999, the applicant agreed to work for the respondent, starting in September 1999. - On 2 August 1999, the applicant resigned his position with his then employer, Silent Gliss Pty Ltd. - On 4 August 1999, the applicant suffered a work-related injury while still employed with Silent Gliss Pty Ltd. The injury resulted in a severe back injury which rendered the applicant totally unfit for work. The applicant made a claim for Workers Compensation which was accepted by the insurer to Silent Gliss Pty Ltd. - As a result of the injury, the respondent extended the starting date for the applicant until the applicant was fit to work. - In October 1999 the Workers Compensation insurer approved a rehabilitation program for the applicant. - On 4 November 1999, the applicant commenced employment with the respondent. The applicant stated that his position was Factory Supervisor on a full-time basis. - On 8 November 1999, MEND, a rehabilitation provider, issued a rehabilitation plan for the applicant. The plan stated that the applicant would require restrictions against lifting, pulling, pushing and trunk twisting. It stated that the applicant would be able to trial lifting up to three kilograms initially and then increase the limits. MEND recommended that the applicant attend a work conditioning program such as hydrotherapy, but the applicant preferred to delay that program until he saw how he progressed. - The condition of the back injury suffered by the applicant deteriorated during 2001. In February 2001, an MRI check showed that the applicant was suffering from a disc degeneration at L5/SI and a disc protrusion in the lumbar spine. He was diagnosed as having pain in the lower back suffered as a result of the workplace accident. - Early July 2001, Mr Colin Quigley was appointed General Manager of the respondent. - In October 2001, Mr Steve Morris was appointed Production Manager of the respondent, and Mr Charlie She was appointed Factory Supervisor. - In September/October 2001, the applicant's medical advisor certified that in addition to the applicant requiring light duties, his working hours should reduce to six hours per day and he should be allowed to work at his own pace. - In September 2001, the applicant went to China seeking treatment for his back. The treatment was not successful and did not improve the condition of his back injury. - On 15 October 2001, a Workers Compensation certificate was issued to the applicant certifying that his work hours should be restricted to six hours per day and that he not lift weights about five kilograms and that he not bend, pull or push. This certificate was presented to the respondent by the applicant. - After July 2001, the applicant stated that his back condition became worse and that as a result of his back pain, his absences from work became more frequent. - The applicant confirmed that in July 2001, Mr Meyer, the Managing Director of the applicant, told the applicant that he was concerned about the number of absences the applicant was taking. The applicant also stated that in the period from July 2001 to October 2001, he averaged absences of from three to five days each month including the period of five weeks' annual leave when he went to China. - 15 October 2001 or 16 October 2001. The applicant took to Mr Quigley the medical certificate dated 15 October 2001. The applicant stated that he did not have a conversation with Mr Quigley when he handed to him the medical certificate. The applicant also stated that he had a prior conversation with Mr Quigley after the applicant returned from China and in that conversation he told Mr Quigley that his back was incurable. The applicant stated that following receipt of the medical certificate dated 15 October 2001, without any further reference to Mr Zhang, the respondent demoted him by taking away his position as Factory Supervisor and leaving only his position as a Roller Screen Maker. He also stated that his position as a full-time employee was altered to a position of a part-time casual employee and that his salary was altered to a rate of $18.00 per hour, being the casual rate. Mr Quigley's evidence conflicts with the applicant's evidence. Mr Quigley stated that after handing him the medical certificate dated 15 October 2001, the applicant requested a meeting to discuss his situation. Mr Quigley stated that he held a meeting with the applicant on 22 October 2001. He stated that the applicant said his back was bad and that he could not do the hours and he did not want to be a supervisor any more. Mr Quigley stated that it would be best for the applicant to go onto a casual basis for a while and see how it goes, at the rate of $18.00 per hour. Mr Quigley stated that he would send a letter to Mr Zhang confirming these arrangements. Mr Quigley produced a contemporaneous note that he made of the meeting which confirms the matters stated in his evidence. The applicant denies that such a meeting took place. He stated that the first he knew of the new arrangements was a memo that was issued by Mr Quigley to all staff which in its relevant paragraphs stated 'unfortunately Pollem's pre-existing back problem is not improving and as a result he can now only work six hours per day. This is very stressful for him and means that Pollem cannot continue his role as Factory Foreman.' There is a dispute as to the day on which this memo was written. The applicant stated that the notice was issued without notice to him on 17 October 2001 and Mr Quigley stated that the memo was issued after the meeting on 22 October 2001. - 31 October 2001. Mr Meyer wrote a letter to Mr Zhang in the following terms: 'It is with regret that we accept your move from full-time to casual employment and the relinquishment of your management role as we have agreed. We have appreciated all your efforts to continue full-time work, but the reality is that your pre-existing injury has never healed fully, and, despite five weeks holiday, you are having difficulty working at the level normally expected. As we have discussed, this move will give you more time to pursue physiotherapy and will remove the pressure associated with your full-time position. We continue to value your expertise and will continue to offer you approximately six hours light duty per day at this stage, as per your doctor's certificate, with the hope that you may be able to return to full-time in the near future. The casual rate of pay will be $18.00 per hour which includes a pro-rata amount for sick pay and holiday pay'. The letter provides for signature by the applicant. The applicant stated that he did not sign the letter or return it to Mr Meyer. - On 6 March 2002, the respondent issued a staff memo which introduces an updated 'individual targets per day' system of awarding bonus payments for reaching target quotas. - 18 April 2002. The respondent issues a staff memo with a bonus system for reaching individual targets per day. - 30 July 2002. The applicant's then rehabilitation provider issued a report stating that his return to work management file has been closed as of 30 July 2002. The report states 'Mr Zhang has successfully continued to upgrade his work hours from 6 hours, 5 days per week to 6.5 hours, 5 days per week. Blinds by Peter Meyer, the employer, would provide more hours of work for Mr Zhang when available. Mr Zhang's treating specialist, Dr Sun, indicated that Mr Zhang would be able to upgrade his work hours to full-time in the near future. Mr Zhang would not be required for further services at this time'. - August 2002. The applicant's Workers Compensation claim with his former employer, was settled. - 14 October 2002. Respondent issued a memo with an increased individual targets per day bonus schedule. - December 2002. The applicant visits China for a period of 8 weeks for which he received leave from the respondent. - 13 February 2003. On his return from China, the applicant, at his workstation, discovered a number of large boxes located next to the workstation. The majority of the boxes weighed in excess of 7 kilograms. The applicant stated that he sought help to remove the boxes but his request was refused. He stated that he attempted to move the boxes and as a result he suffered extreme pain in his back. The request for assistance made by the applicant was to Mr Steve Morris. Mr Morris, at the request of Mr Quigley, made notes of his version of the occurrence. Mr Morris's notes describe the position as follows: 'There were some boxes on the left side of the work area that he refers to. These boxes were outer boxes weighing between 15-18 kg, comprising inner boxes of about 2-2.5 kg each. Pollem could have moved the inner boxes, if he need to. There was also a coil of venetian slab underneath and also to the left of his workstation. This weighed about 10 kgs and Pollem did not lift it. They were not in Pollem's way and he could have started work, but he wanted to reorganise his workspace as it was not to his liking and had been used in his absence by other staff. By Pollem's own letter, he had now involved 2 other staff members, which was disrupting production. Mr Morris asked Charlie to return to his work and said that he would organise the boxes to be moved. As Steve Morris was production manager, this was not an unreasonable request. Mr Morris and all the management staff at Blinds by Peter Meyer were extremely aware of Pollem's light work status. Mr Meyer had stressed on many occasions to both Pollem and all those involved with his work that Pollem was not to exceed his safe weight limit. Although Pollem says he was totally bedridden after the incident, Blinds by Peter Meyer have no records to support this and he was at work the next day. It must be stressed that Pollem was fully aware that Management was totally supportive of him working within his restrictions …' This statement by Mr Morris was not challenged before the Tribunal. Mr Morris stated before the Tribunal that the individual boxes within the larger boxes were well within the lifting limit imposed on the applicant, if the applicant had extracted the individual boxes rather than try to move the whole larger box. He said it was the applicant's usual custom to unload the big boxes by emptying the little boxes from the containers onto his table. - 23 February 2003. The applicant wrote a letter to Mr Quigley in which he raised 2 issues, namely, his health situation and what he called 'prejudice adjustment'. In relation to his health situation, the applicant stated that his Workers Compensation claim had been settled in the previous year and that his back injury still existed and he stated 'I would not claim for Workers Compensation if this had been kept on the present level, measuring it prior to settlement.' And he stated in his last paragraph in relation to his health situation 'the further claim is with Peter Meyer Blinds P/L, it is not with Silent Gliss Pty Ltd. Both the company and I would not want this to happen because this would make my life more difficult.' Under the heading 'prejudice adjustment' the applicant stated 'I have been treated unfairly in a prejudicial manner since becoming unfit to work 8 hours per day. I would like the company to have the following adjustments on this matter: 1. Reinstate the permanent of employment status instead of the casual status 2. Reinstate my previous position, as a factory supervisor 3. Ensure that the guideline from the treating doctor would be implemented properly 4. All on prejudice on the disability and ensure that I would not be disadvantaged/prejudiced because of the disability (the back injury) 5. Compensate for lost of wages and entitlements and changing employment status, such as sick leave, loss of wages on public holidays, annual leaves, etc. The doctor's certificate accompanying this letter is from Dr Au-Yong. It states 'Pollem Zhang continues to have back disability. He is able to work 7 hours per day 5 days a week. He is to work at his own pace, try to upgrade if possible, allow sitting at times, and is to continue light duties with no back strain. He is able to lift to 8 kg. He requires monthly.' - 25 February 2003. A meeting took place between the applicant and Mr Quigley at which Mr Morris was present. Mr Quigley stated that he made notes of that meeting which were exhibited to the Tribunal. The notes stated that Mr Quigley told the applicant that his doctor's certificate was not specific enough and that he would send the applicant to the company's own doctor and that the applicant was to come back with the doctor's report when they could have a further discussion about work activities. The note stated that Mr Quigley told the applicant that he considered what he was doing was too dangerous and that he had watched the applicant and he could hardly move. Mr Quigley told him that he was not going to put the respondent in the position where it aggravated the applicant's back injury. - 25 February 2003. Later that day the applicant returned from the respondent's doctor and advised Mr Quigley that the doctor's report would be ready on 26 February. Mr Quigley told the applicant not to come back to work until he had the report but the company would pay him for 25 and 26 February. Mr Quigley stressed his concern about the condition of the applicant's back and that the respondent was not going to add to the problem by having Mr Zhang do jobs he could not do and he told him he could not work in his present condition. - 26 March 2003. A further meeting was held between the applicant and Mr Quigley with Mr Morris present. The applicant produced a doctor's certificate. Mr Quigley told the applicant that working at his own pace and with light duties may not suit the organisation. The applicant maintained that he could do his job but that motorisation (making screens with motors) would be a problem. Mr Quigley expressed his concern that the respondent would be liable for any further deterioration in the applicant's back condition. Mr Quigley also stated that he was offended by the applicant's reference to the 'prejudice' issues as he considered that the company had satisfied the applicant's requirements. Mr Quigley told the applicant that he remembered him saying in a meeting with Mr Meyer that he did not want to be the supervisor any more. The applicant stated that he did not say that. Mr Quigley stated that he then said lets put all our cards on the table and asked him how come that it's all happening now. Mr Quigley stated the applicant said that he did not put anything in writing about not wanting to be supervisor. Mr Quigley pointed out to him the memo to the staff and the letter that he wrote to the applicant at that time and then said 'you've waited over a year to bring it up.' The meeting closed by Mr Quigley telling the applicant to go to work and that he would not hold any grudge against him, that he was not to overdo it and was not to lift anything heavy and to get help through Mr Morris if he needed help. - 29 March 2003 and 3 May 2003. The applicant gave to the respondent certificates from Dr Au-Yong which stated that the applicant requires a 5 minute break every hour for his back stiffness and that he is to continue light duties as before. - 10 June 2003. The respondent receives certificate from Dr Au-Yong which stated that the applicant is able to work 7 hours a day 5 days a week. He is to work at his own pace, allow sitting at times, and to continue light duties with no back strain. Lifting is limited to 8 kilograms. - 4 April 2003. A meeting is held between the applicant, Mr Meyer and Mr Quigley. Mr Quigley made notes of that meeting. Mr Quigley's notes showed that he explained to the applicant that the respondent would convert him to a part-time position and that the respondent was happy to do anything to keep his back problem under control, including a 5 minute break every hour. Mr Quigley stated that the respondent could not make him a supervisor when he was not able to work for a full day. Mr Quigley said that the applicant had 'a few gripes' about Mr Morris but the meeting focussed on the main issue and that was his back. Mr Quigley's notes showed that Mr Meyer then asked the applicant to go away and think about it and come back next week with an answer. - 1 May 2003. A further meeting was held with the applicant, Mr Meyer and Mr Quigley. There are some differences in the evidence of the applicant and Mr Quigley about the contents of that meeting. Both parties acknowledge that Mr Meyer restated that the respondent would place Mr Zhang on a permanent part-time basis at a rate of $15.00 per hour. This proposal was not acceptable to the applicant. - 11 August 2003. The applicant lodged a complaint with ADB alleging unlawful disability discrimination. - 15 December 2003. The applicant lifted a box containing 5 motors and aggravated his back injury. The applicant presented Mr Quigley with a Workcover medical certificate signed by Dr Sun dated 16 December 2003. The certificate stated that the applicant had suffered 'acute lumbosacral strain' and the doctor certified that the applicant be off work for 2 weeks for intensive physio daily. Mr Quigley stated that this absence of the applicant could not have come at a worse time as he needed to be away from work for 2 weeks during their busiest time just before Christmas. - 13 February 2004. ADB writes letter to respondent advising that a complaint had been received from the applicant. There is no evidence of the exact date of receipt of that letter by the respondent but Mr Quigley acknowledged that the respondent received the letter from the ADB before 19 February 2004. - 19 February 2004. When the applicant arrived at his workstation on this morning, he found some boxes containing parts for making roller blinds in front of his workstation. He stated that this was similar to the situation that faced him when he came back from China on 13 February 2003. He stated that without moving the boxes he could not do his work. He stated that he observed the boxes were tied up with strings and that the strings were longer than the boxes and were strong enough for pulling and dragging the box. He started to drag a box by pulling on the strings and he said this was not harming his back. Mr Quigley saw what the applicant was doing and immediately ordered him to stop. Mr Quigley directed another employee to remove the boxes to the kitchen. The other employee and the applicant then removed the small boxes out of the larger box and placed them into a cabinet in the kitchen. About 1.30pm that day Mr Morris requested the applicant to go to Mr Quigley's office. Mr Quigley handed a letter to the applicant. That letter read: 'This is to notify you that we are standing you down, effective immediately. This follows your actions this morning in dragging a box well over 7 kilogram limit as prescribed in your last Workcover certificate and as specifically directed by us. This has raised a very serious occupational health and safety issue. We are not prepared to offer you any further shifts as you wilfully disobeyed our reasonable directions.' Mr Quigley stated that he told the applicant 'I am most concerned about what I saw you doing earlier. I regard your actions as deliberate disobedience of an instruction you have been given in relation to lifting weights. Do you have any explanation for what you have done?' Mr Quigley stated that the applicant replied 'I did not lift the box, I dragged it.' Mr Quigley pointed out that there was a restriction from the applicant's doctor against lifting weights over 7 kilograms and that the box that was dragged by the applicant was clearly marked as containing a weight of 19 kilograms. Mr Quigley stated that he then said to the applicant 'You are stood-down for the remainder of the day, but you will be paid for the whole day. I am not going to provide you with any more work until I get an assurance that you will only work as directed.' The applicant stated that Mr Morris then followed him to his workstation and then escorted the applicant to pick up his personal belongings including his rehabilitation chair and to put those items into the applicant's car. The applicant then went to the office of his union and saw the organiser of the CFMEU, Mr Brad Parker. - 20 February 2004. The applicant wrote a letter to Mr Quigley relating to his standing-down. Mr Quigley stated that he did not reply to this letter as he was told by Mr Meyer that a meeting had been arranged with the union representative for 25 February 2004. - 23 February 2004. The applicant wrote a letter to the ADB complaining of victimisation by being stood-down on 19 February 2004. - 25 February 2004. A meeting was held between Mr Parker (organiser CFMEU), Mr Meyer, Mr Quigley and the applicant. At the meeting the respondent made an offer to the applicant for the applicant to return to work. Mr Quigley made contemporaneous notes of the meeting. Mr Quigley's notes state that 'we offered back to work full-time, non-supervisory with some paper work at $650.00 per week, $25 less than when he was a supervisor in 01.' This offer of return to work was conditional on the applicant supplying a medical certificate to confirm that he was able to work full-time, that the discrimination claim against the respondent be withdrawn and that the applicant sign a deed of release.' The applicant wished to discuss the offer with his advisor (Ms Wang). Subsequently there were discussions between Mr Parker and Mr Quigley concerning adjustments to the applicant's holiday pay and sick pay. Mr Quigley said that Mr Parker stated that he would have to contact Ms Wang. Mr Quigley stated that he did not receive any response from the applicant or Ms Wang. Mr Parker, in his evidence to the Tribunal, stated that the applicant had rejected the offer. He stated that some time later he informed the company. In his evidence Mr Quigley stated that he was not advised by Mr Parker that the applicant had rejected the offer and that Mr Parker informed him that the union had decided it would not take the matter further on behalf of the applicant. Although the respondent did not receive a response directly from the applicant, in a letter to the ADB dated 5 March 2004, the applicant stated that he had rejected the offer. The applicant has not returned to work with the respondent since 19 February 2004. - 5 March 2004. The applicant wrote a letter to the ADB setting out his version of the meeting on 25 February 2004 and stating 'I have rejected the above offers and the company refused to withdraw the unlawful standing-down.' Identification of items of complaint 5 There is no dispute by the respondent that during the complaint periods the applicant suffered from a disability within the meaning of the definition in s 49A of the Anti-Discrimination Act 1977 (the Act). 6 The parties were not required to file points of claim or points of defence. It has been necessary therefore to spend some time on the first day of the hearing identifying with the representative of the applicant the nature of the claims of unlawful disability discrimination and of victimisation which were being brought by the applicant. As a result of those discussions and the subsequent written submissions from the applicant's representative, the Tribunal has identified the following items as the items of complaint which require determination by the Tribunal. 7 The following items of complaints of unlawful disability discrimination occurred between 11 February 2003 and 11 August 2003. Each item of complaint is an allegation of direct discrimination within the provisions of s 49B(1)(a) of the Act. Seven items of discrimination have been specified as follows: 1. Less favourable treatment suffered by the applicant by reason of the failure of the respondent to provide assistance to the applicant to support his needs because of his disability. In the absence of particulars being supplied of the instances of the failure to provide assistance, the Tribunal has been able to identify the following allegation from the statement by the applicant in his letter to the ADB dated 12 October 2003 'it would be more perfect, if the company had provided a little assistance to me when I was unable to work 8 hours per day. Such as to provide an assistant in relation to my management role. This assistance would be under my training and supervision. This could also ensure that there is a person, constantly had acted on various matter on duty of factory supervisor.' In addition, there are the occasions on 13 February 2003 and 19 February 2004 when the applicant stated that he was denied assistance when attempting to move heavy boxes at his workstation. 2. The applicant alleges that he suffered less favourable treatment arising out of the alleged failure of the respondent to adequately respond to his requests for reinstatement contained in his letter to Mr Quigley of 23 February 2003 which he referred to as 'prejudice adjustments.' 3. The applicant was less favourably treated as the respondent did not respect all the medical restrictions which the doctors required to be applied to the applicant's working conditions. In particular the applicant related to the incidents on 25 February 2003 and 26 February 2003 and the respondent's conduct in its handling of the letter on 25 February 2003. In addition, the applicant related to the meetings on 4 April 2003 and 1 May 2003 as illustrations of the failure of the respondent to adequately respond to the medical requirements of the applicant. 4. This item arises out of the letter written by the applicant to the respondent on 23 February 2003 in which he raises 'prejudice adjustment' issues. The claim is that the applicant suffered less favourable treatment because the respondent failed to adopt the adjustments specified in that letter by the applicant 'stop all prejudice on the disability and ensure that I would not be disadvantaged/prejudiced because of the disability (the back injury).' No particulars are supplied of instances where the respondent failed to ensure that the applicant was not disadvantaged by his disability. 5. An allegation of less favourable treatment in the manner in which the respondent dealt with a complaint about the behaviour of Mr Steve Morris towards the applicant which he stated occurred on 13, 15 and 17 March 2003. 6. An allegation that the applicant was less favourably treated as the quota system instituted by the respondent for the payment of bonus for production, in its application to the applicant, did not adequately take account of his medical limitations in being able to perform his job. 7. An allegation that the applicant was less favourably treated because he was not entitled to have the wage increases granted to other employees after the status of the applicant was altered from being a full-time employee to a casual employee from 22 October 2001. 8 Although in her opening address the representative of the applicant specified 8 items of disability discrimination, in her written submissions the representative has dealt only with 7 items. The 7 items identified in the written submissions do not coincide with the 8 items identified in her opening address. This discrepancy is not explained by the representative. The Tribunal has considered only the 7 items identified in the written submissions of the applicant's representative. 9 Although in her written submissions the representative did not deal with the identification of the provisions of the Act under which it is alleged any discriminatory acts were rendered unlawful, in her opening remarks to the Tribunal the representative specified that the applicant would claim that the acts of disability discrimination were unlawful under s 49D(2)(a) of the Act in that the applicant was discriminated against in the terms or conditions of employment afforded by the respondent to the applicant; under sub-s 2(b) of s 49D in that the respondent discriminated against the applicant by denying the applicant access to promotion and to computer training; and under sub-s 2(d) of s 49D in that the respondent discriminated against the applicant by subjecting the applicant to other detriments. The representative did not specify the nature of the alleged other detriments. 10 The applicant's representative has not addressed the circumstances in which it is alleged that sub-sections of s 49(D) of the Act would apply to any findings of discrimination. The Tribunal will adopt the opening remarks of the applicant's representative when considering whether any findings of discrimination were unlawful within s 49(D). 11 In addition to the claims of disability discrimination, the applicant also alleges that he was victimised under s 50 of the Act, when he was stood-down on 19 February 2004 because he had made a complaint of disability discrimination to the ADB in his letter dated 11 August 2003. Consideration of claims of disability discrimination 12 A number of the items of disability discrimination relate to the circumstances when, in October 2001, the respondent altered the nature of the applicant's employment from the position of a permanent full-time employee with the title of Factory Foreman to a casual employee working 6½ hours per day as a roller screen maker. 13 The applicant continued in his reduced role without complaint from 22 October 2001 until he wrote to Mr Quigley, a letter dated 23 February 2003. In the intervening period of 16 months the applicant was allowed to work at his own pace. He was not restrained from taking a 5 minute break at the end of each hour although he did not necessarily take the 5 minute break. The applicant had various changes to the medical restrictions applicable to his working conditions during this period. He was under constant medical supervision and until his Workers Compensation claim against his previous employer was settled in August 2002, the applicant was the subject of regular supervision under rehabilitation programs. 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. 16 The applicant complained to Mr Quigley about his treatment by Mr Morris on this occasion and on 2 subsequent occasions. 17 The applicant wrote a letter to Mr Quigley dated 23 February 2003. This was followed by a meeting on 25 February 2003 with the applicant, Mr Quigley and Mr Morris. Following that meeting, Mr Quigley wrote a letter dated 27 February 2003 to the applicant. On 25 March 2003, the applicant responded to Mr Quigley's letter of 27 February 2003. Subsequently, on 4 April 2003, a meeting was held with Mr Meyer, Mr Quigley and the applicant. 18 In his letter to Mr Quigley dated 23 February 2003, the applicant first deals with his health situation by stressing that he had been certified as fit for light duties on a restricted basis. He pointed out that any further Workers Compensation claim relating to his back injury would be a claim against the respondent. Under the heading 'Prejudice Adjustment' in that letter, the applicant specifies a number of his requirements concerning his position. In particular, he required reinstatement to a permanent position as factory supervisor. 19 In subsequent correspondence and meetings it was pointed out to the applicant by the respondent's representatives that the applicant's status as a casual employee related back to the events in October 2001 when, as a result of the medical restrictions on his employment conditions, the applicant requested that he be relieved of his position as factory supervisor and following a suggestion from Mr Quigley, the applicant accepted that it was in his best interests to accept a casual position working 6½ hours per day. 20 The applicant denied that he had initiated any change to his status in October 2001. He took the position that those changes were imposed on him by the respondent. In February 2003, the applicant considered that he had been discriminated against in October 2001 and he wanted his full position reinstated. 21 In considering the evidence and the circumstances of the alteration of his status in October 2001, the Tribunal takes the view that whoever might have instigated the changes in his status, the applicant accepted at that time that he could not maintain a full-time position as factory supervisor or factory foreman and that for approximately 16 months he had not raised any objection to his changed situation. 22 In the view of the Tribunal, the respondent had acted sensibly and reasonably in finding a means to accommodate the medical requirements for the applicant's condition and allow the applicant to continue to work for the respondent. In the period of 16 months, the evidence shows that the respondent had given every reasonable consideration to the applicant in meeting the applicant's requirements for sick leave and to allow him to work at his own pace and to take the 5 minute break each hour when the applicant sought to do so. 23 In February 2003, when, following the applicant's attempt to move the heavy boxes with the consequent increase in his back pain, he required the respondent to reinstate his former position. In the view of the Tribunal, it was unrealistic for the applicant to expect the respondent to adopt such demands. The medical certificates given to the respondent showed that the applicant was still unable to work full-time and that he still had to work under the restrictions against moving heavy weights, working at his own pace and taking 5 minute intervals. These circumstances would not be consistent with a person occupying the position of factory foreman or factory supervisor or working full-time and being able to meet the quota targets required by the respondent for a roller screen employee. 24 The failure of the respondent to meet these unreasonable demands of the applicant resulted in the applicant on 11 August 2003 bringing claims of disability discrimination against the respondent. In formulating those claims, it is clear to the Tribunal that the respondent had the assistance of Ms Wang. The conclusion the Tribunal draws to the 7 items of complaint of disability discrimination is that in a number of those items the applicant, with the assistance of Ms Wang and with hindsight, have drawn out as many items of possible discrimination without regard to the substance of those claims. 25 In comparing the treatment received by the applicant from the respondent, to the treatment which, notionally, the respondent would have treated an employee who had similar restrictions on his working conditions to those of the applicant, but who did not have the applicant's disability, it is the view of the Tribunal that the respondent would have treated the applicant and the other employee in a similar manner to the way the respondent treated the applicant. 26 These remarks apply to each of the items of complaints of disability discrimination except a further comment is required in relation to items 5 and 6. 27 Item 5 is a complaint that the applicant was unfavourably treated because Mr Morris harassed the applicant on 3 occasions, namely on 13 March 2003, 15 March 2003 and 17 March 2003. 28 On 13 March 2003, it is alleged that Mr Morris directed the applicant not to talk to one of the other employees named Jeff. The applicant stated that Mr Morris insulted and harassed him by using his 'position power'. The occasion occurred during the applicant's lunch break. The applicant stated that Mr Morris's body language and voice was very angry and rude. 29 On 15 March 2003, the applicant alleged that in the morning Mr Morris asked him some questions regarding the job and that this was done without calling his name. The applicant stated that he felt insulted by this manner. Later that day, Mr Morris came to borrow a tool from the applicant and he stated that the request was made in the form of a demand without calling the applicant's name. 30 On 17 March 2003, the applicant stated that after lunch he was sitting in a chair which was in front of another employee. He said there was silence between he and the other employee. He stated that Mr Morris, when he saw where the applicant was sitting, said to him in a rude manner 'you have a lunch break now but Tina has not got her lunch break yet. She needs to work, please leave here immediately.' 31 These details of the applicant's complaints were attached to his letter to Mr Quigley dated 25 March 2003. 32 Mr Quigley requested an explanation from Mr Morris. Mr Morris responded to Mr Quigley in a written note and a copy of that note was attached to the President's report. Mr Morris stated 'On the 13th of March 2003 and 17th of March 2003, after Pollem had finished eating his lunch but was still on his lunch break, he had gone onto the factory floor and sat down next to staff who were still working, and started to have a conversation. When Mr Morris asked him to move, he responded 'I was just resting.' Mr Morris did not consider the factory floor, in the middle of working staff, an appropriate place to 'rest'. The company provided a lunchroom for this facility. Pollem's complaint of 15 March seemed frivolous.' 33 Mr Morris did not respond in that note to the applicant's allegations concerning 15 March 2003. 34 In making allegations of harassment by Mr Morris, the Tribunal has interpreted the claim of disability discrimination as a claim that on each of the 3 occasions Mr Morris treated the applicant less favourably than in similar circumstances he would have treated another employee who did not have the applicant's disability. 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. 37 The Tribunal accordingly finds that these 3 items of complaint are not substantiated. 38 The remaining complaint, namely item 6, that is a complaint that the applicant suffered less favourable treatment because he was prevented from having access to a bonus payment because he could not meet the quotas set by the respondent for the payment of a bonus, is an item that requires examination of the manner in which the respondent structured its bonus system. The bonus system of the respondent was restructured on several occasions during the period of the applicant's employment after October 2001 when his employment converted to a casual position. 39 The complaint can be considered in general terms namely that on each of the occasions when the bonus system was restructured, although allowance was made to reduce the number of blinds that the applicant was expected to produce per day to allow for his reduced hours of work, the adjustment did not make allowance for the applicant's ability to work at his own pace and to take a 5 minute break each hour. 40 Mathematically, the evidence showed that a slight further adjustment to the number of blinds required to be produced by the applicant to equate that number to the number of blinds required to be produced by a full-time employee, could have been made. To the extent of that small adjustment, the applicant was disadvantaged. The applicant claims that as a consequence of the failure to make the small adjustment, he was prevented from earning a bonus. 41 The evidence does not support such a claim. The evidence from the respondent was that the applicant, even if the small adjustment had been made, would still not have been able to earn a bonus because of the irregularity of his attendance resulting from the considerable sick leave he took in the periods after October 2001. 42 In cross-examination, Mr Morris acknowledged that during the period when the qualification for a bonus required the making of 18 roller screens per day by employees working full-time and after allowing for a half hour lunch break, those employees needed to produce roller screens at the hourly rate of 2.4. By comparison, the applicant who worked 6½ hours per day would need to produce 2.76 screens per day. If in the case of the applicant a further allowance was made for a 5 minute break each hour, the hourly rate for production of screens would require 3.01 screens to be produced. The applicant alleged that this demonstrated that the quota system required a greater production rate by the applicant when compared to other employees. 43 Mr Morris pointed out that the bonus target system operated on a sectional basis so that a bonus was only earned if all the blinds made by the persons working in a section met the total week's blind quota; only then was the quota bonus earned. Mr Morris demonstrated that the individual target must be accessed on a sectional basis. 44 It was agreed that during the relevant period the applicant did not earn a bonus payment. No evidence was put before the Tribunal as to what bonuses, if any, were earned by other employees and under what circumstances. 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. 47 In summary, each of the items of complaint of disability discrimination made by the applicant have not been substantiated and should be dismissed. Consideration of complaint of victimisation 48 The complaint of victimisation made by the applicant against the respondent alleges that under s 50 of the Act, the applicant suffered detriment by being stood-down from his position with the respondent on 19 February 2004, as a result of the applicant having lodged with the ADB on 11 August 2003, complaints against the respondent alleging discrimination on the grounds of disability and that the respondent received notice from the ADB of the lodging of the disability complaints on a date between 13 February 2004 and 19 February 2004. 49 The respondent admitted that it had received notice from the ADB that the applicant had lodged complaints of disability discrimination against the respondent prior to 19 February 2004. The respondent was unable to identify the precise date and time that it received the written advice from the ADB of the lodgement of those claims. 50 The circumstances surrounding the allegation of victimisation are as follows: - On or about 11 November 2003, the applicant produced to the respondent a medical report from Dr Au-Yong dated 11 November 2003 which, in its relevant part, stated 'he is able to work 7 hours a day 5 days a week. He is to work at his own pace, allow sitting at times, to continue light duties with no back strain, lifting limit 8 kg. He will be reviewed on the 15/12/03.' This was the latest of the regular medical certificates produced by the applicant prior to the events of 19 February 2004. - On or about 16 December 2003, the applicant produced to the respondent a medical certificate from Dr Clive Sun dated 16 December 2003. That certificate was on the form headed 'Workcover NSW Medical Certificate'. The certificate referred to an injury to the applicant which had occurred on 15 December 2003 and it was described by the doctor as 'lifted a box containing 5 motors'. The certificate diagnosed the injury as acute lumbosacral strain. The certificate described the management plan as 'off work 2 weeks for intensive physio daily, treatment review date 5/1/04'. Mr Quigley stated that he was unaware of the event on 15 December 2003 which had caused this injury. Mr Quigley stated that when he received this certificate from the applicant, he was upset because it meant that the applicant would be absent for 2 weeks during the busiest time of the year before the Christmas period. He stated that he told the applicant that he should be following doctors' instructions and not lifting the heavy box which contained 5 motors which weighed well over his allowed weight lifting limit. He stated there was nothing he could do about the applicant having to be away for 2 weeks and he then authorised that leave period for the applicant. - 13 February 2004. ADB wrote a letter to the respondent advising it of the complaints lodged by the applicant alleging disability discrimination. The respondent acknowledges that it received this letter some time prior to 19 February 2004. - 19 February 2004. At approximately 7.30am the applicant went to his workstation where he noticed some boxes containing 'comps' were in front of his work table. He stated that the situation was similar to the circumstances on 13 February 2003 when he came back from China and there were boxes in front of his work table. He stated that without moving the boxes he was not able to start his work. He observed that the boxes were tied with strings and that the strings protruded from the boxes. He began pushing at first the box with his foot and he considered he could move the boxes by dragging them by pulling the strings. He stated that this was not harming his back. Mr Quigley saw the applicant attempting to move the boxes and ordered him to stop. Mr Quigley directed another employee to remove the boxes. The applicant and the other employee then unloaded from the big boxes the smaller boxes of comps into the cabinet in the kitchen where they were normally stored. At approximately 1.30pm Mr Morris came to the applicant and requested that he go with him to the office of Mr Quigley. At his office, Mr Quigley handed the applicant a letter. The letter stated 'This is to notify you that we are standing you down, effective immediately. This follows your actions this morning in dragging a box well over the 7 kg limit as prescribed in your last Workcover certificate and as specifically directed by us. This has caused a very serious occupational health and safety issue. We are not prepared to offer you any further shifts, as you wilfully disobeyed our reasonable directions.' The applicant sought an explanation from Mr Quigley but Mr Quigley refused to explain the letter other than to say 'This letter is in black and white. It is all on the paper.' Mr Quigley then stated 'The medical restriction from your doctor is you cannot lift 7 kgs and there are signs on the box which indicated the weight is over 7 kgs. Why did you still move it? You have seriously breached the Occupational Health and Safety Regulation and this is unacceptable to the company.' The applicant stated that he protested that he had not lifted the box but had merely dragged it. Mr Quigley stated that he did not wish to discuss it any further and directed the applicant to take all his personal belongings and leave all the tools with Mr Morris and leave the premises immediately. The applicant stated that accompanied by Mr Morris he went back to his workstation where he collected his personal belongings and his rehabilitation chair and Mr Morris assisted him to put those into his car and he then left the respondent's premises. Mr Quigley stated that in his conversation with the applicant, he told the applicant 'you are stood-down for the remainder of the day but you will be paid for the whole day. I am not going to provide you with any more work until I get an assurance that you will only work as directed.' On the afternoon of 19 February 2004, the applicant went to the office of the CFMEU where he saw Mr Brad Parker, the Divisional Branch President of the Union. Mr Parker telephoned Mr Meyer and they arranged a meeting to discuss the situation of the applicant, to be held on 25 February 2004. - 20 February 2004. The applicant wrote a letter to Mr Quigley. In that letter he describes the circumstances of his moving of the boxes on 19 February 2004 and describes the company's decision to stand him down as unlawful and contrary to the provision of clause 16 of the relevant Award. He denied that he had breached any occupational health and safety regulation or that he had put his health at risk by dragging the boxes. He sought clarification of the company's actions. Mr Meyer stated that he did not respond to that letter in view of the meeting to be held on 25 February 2004. - 23 February 2004. The applicant lodged with the ADB a letter of complaint alleging victimisation on 19 February 2004. The lodging of the complaint was not advised to the respondent by the ADB until its letter to Mr Meyer dated 5 March 2004. - 25 February 2004. A meeting was held at the office of the CFMEU which was attended by the applicant, Mr Parker, Mr Meyer and Mr Quigley. No mention was made at this meeting that the applicant had lodged a complaint of victimisation with the ADB. Mr Quigley told the meeting that the purpose of the meeting was not to discuss matters concerning the ADB. He stated that the applicant's employment with the respondent had not been terminated and that the company recognised that the applicant had valuable skills and was needed by the company. Mr Quigley stated that the decision to stand-down the applicant would be withdrawn and he could return to work on the following conditions: - the company could not reinstate his position as factory supervisor - his employment status would be on a permanent full-time basis at a weekly wage of $650.00 - he would be required to sign a Deed of Release. Mr Quigley, in his evidence, described the circumstances of the offer to the applicant as a presentation of a plan for him to come back to full-time work. He stated that he had been cleared by his rehabilitator to do full-time work and that was why he put to the applicant a plan to pay him a substantial amount of money to come back to work and he would be given at least an hour a day of paperwork. He stated that the applicant would still have the 5 minute break every hour which would mean that with meal breaks he would effectively be working no more than the 7 hours a day specified by his doctor. At the meeting, Mr Parker took the position that the standing-down was in breach of the Award and, at the meeting and also in his evidence, Mr Parker stressed that he was relying on clause 16 of the Award for his opinion. Later in his evidence Mr Parker acknowledged that clause 16 did not prohibit the standing-down of a casual employee. The meeting concluded by the applicant stating that he wished to discuss the matter with his advisor and he would later advise the respondent of his decision. - 27 February 2004. Mr Quigley had not had a response from the applicant to the offer made to him on 25 February 2004 and Mr Quigley phoned Mr Parker to ascertain the position. Mr Parker advised Mr Quigley that he was not able to state the position of the applicant as the union had decided to withdraw from the matter. At no time subsequently did the applicant advise the respondent that he had rejected the offer. - 5 March 2004. The applicant writes a letter to the ADB in which he advised of the meeting of 25 February 2004. He included the following statement 'I have rejected the above offers and the company refused to withdraw the unlawful standing-down.' There is no evidence before the Tribunal that the ADB informed the respondent of this letter. The applicant has not returned to employment with the respondent. 51 For the applicant to succeed in a claim of victimisation under s 50 of the Act, it is necessary for the applicant to establish the following elements arising under that section, so far as the section is applicable to the circumstances of the applicant's complaint: 1. That the applicant has suffered detriment 2. That the detriment arises from an allegation that the discriminator has committed an act which would amount to a contravention of this act, and 3.The detriment arose in circumstances 'on the ground that the person victimised has made the allegation.' 52 The applicant alleges that the detriment he suffered was his standing-down from his position as a casual employee of the respondent and that that detriment led to the further detriment of him ceasing his employment with the respondent as he found the terms offered for his reinstatement were unacceptable. 53 The applicant alleges that the detriment suffered by him was a consequence of the allegations of disability discrimination he made against the respondent in his complaint letter to the ADB lodged on 11 August 2003 and advised to the respondent by the ADB in its letter to the respondent dated 13 February 2004 which was received by the respondent between that date and prior to 19 February 2004. The allegation of victimisation alleges that it was the receipt of the letter from the ADB dated 13 February 2004 that resulted in the instigation by the respondent of a decision to stand-down the applicant on 19 February 2004. 54 In his evidence to the Tribunal, Mr Quigley stated that the reason for his decision to stand-down the applicant was 'because he disobeyed a direct instruction from the company, myself specifically, that he must obey his doctor's certificates and Workcover certificates at all times.' This statement by Mr Quigley was not challenged in cross-examination. 55 For the applicant to succeed he must satisfy the Tribunal that his standing-down by the respondent was 'on the ground' of his allegations of disability discrimination about which the respondent first became aware just prior to 19 February 2004. The causal link that it is necessary to establish between the knowledge of the respondent of those allegations and the decision to stand-down the applicant, on the evidence before the Tribunal, relies solely on inference. The inference arises from the temporal proximity between the receipt of the knowledge of the allegations by the respondent and the standing-down of the applicant on 19 February 2004. In the absence of any other explanation for the action of the respondent, the proposition that such an inference is justified is open to the Tribunal. In the circumstances of the allegation of victimisation in this matter, a more cogent explanation for the action of the respondent has been presented to the Tribunal. 56 Mr Quigley has stated that he regarded the action of the applicant on 19 February 2004 in dragging the heavy boxes away from his workstation as a serious breach of the restrictions on the applicant imposed by his medical advisor against lifting or dragging heavy weights. An attempt was made by the applicant to demonstrate that medically the dragging of the boxes by pulling on the strings was not a breach of the restriction. This opinion was contained in a certificate issued by Dr Au-Yong on 21 April 2004 when she stated 'On 19/2/04, he was dragging a box without bending his back. This dragging action would involve his shoulder muscles and not his back muscles. He is therefore able to drag at work in spite of his back injury.' Dr Au-Yong did not give evidence before the Tribunal to support the statement in this certificate. The certificate is a self-serving document made several months after the event of 19 February 2004. In the absence of the presentation of Dr Au-Yong for examination in relation to the statement, and the self-serving nature of the document, the Tribunal places little weight on the evidentiary value of that statement to support the actions of the applicant. 57 On 19 February 2004, Mr Quigley was presented with a situation where the applicant, on an occasion soon after the applicant had taken two weeks' sick leave to overcome a back injury caused by his dragging of a heavy box, with a similar situation where the applicant, unassisted, had dragged a box which weighed excessively over the weight limit imposed on him by his medical advisor. Mr Quigley had given evidence of his concerns about the exposure of the respondent to claims for Workers Compensation if the applicant aggravated his prior injury to his back and he had instructed the applicant on previous occasions that he was under no circumstances to exceed the weight limit if he was moving heavy boxes. 58 The Tribunal accepts that Mr Quigley considered that he must demonstrate to the applicant that he would take drastic action against the applicant for his irresponsible action in attempting to move the heavy box from his workstation on 19 February 2004. At the meeting on 25 February 2004, the offer made to the applicant to return to his permanent full-time position on a generous salary level illustrated that the respondent did not intend by its standing-down action to terminate the applicant's employment. It is the view of the Tribunal that the terms of the offer made on 25 February 2004 for the applicant to return to work was reasonable if not generous. The applicant either misunderstood or misinterpreted the nature of the offer made to him on 25 February 2004. He did not respond directly to that offer. He merely advised the ADB that he found the offer unacceptable. He made no attempt to advise the respondent of his rejection of the offer nor did he make any attempt to discuss or negotiate with the respondent for terms of his re-employment which he would have found acceptable. 59 For the applicant to satisfy the Tribunal that it should draw the inference sought by the applicant that the action of the respondent was causally linked to the receipt by the respondent of knowledge of the applicant's complaints of discrimination, the Tribunal would need to be satisfied that the explanation of the respondent should not be accepted. In the view of the Tribunal there is no reason that would justify the Tribunal finding that the response by Mr Quigley to the circumstance of the applicant attempting to move the heavy boxes on 19 February 2004 was not appropriate or that the respondent deliberately set up the situation that required the applicant to attempt to move the boxes from his workstation before being able to commence work. The applicant has not presented evidence that would support either of those findings nor indeed has the applicant raised with the Tribunal that such findings are open to it. 60 It is the conclusion of the Tribunal that in giving to the applicant on 19 February 2004 notice that he was stood-down from his position with the respondent, the respondent had acted reasonably and appropriately in the circumstances. The Tribunal finds that the action of the respondent in giving the applicant notice that he was stood-down, was not causally linked to the receipt of knowledge that the applicant had made allegations of discrimination to the ADB. 61 The suggestion by the applicant that the standing-down of the applicant was contrary to the provisions of the award, is not correct. Clause 16 of the award does not prohibit the giving of a standing-down notice to a casual employee. It may be that it is not an appropriate action for an employer to give to a casual employee notice that the employee is stood-down. Mr Quigley explained his giving of the notice as an attempt by him to stress to the applicant the serious nature of the applicant's attempt to move the heavy boxes on 19 February 2004. The giving of an inappropriate notice of standing-down to the applicant is not an issue that directly comes within the scope of the inquiry by this Tribunal. The notice of standing-down and the action of the respondent in directing the applicant to take his belongings and leave the premises was tantamount to a termination of the applicant's casual employment. 62 For the purposes of the application of s 50 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal considers the detriment suffered by the applicant was the effective termination of his casual employment on 19 February 2004. On 25 February 2004, the respondent made to the applicant what in the view of the Tribunal was a reasonable offer for the reinstatement of the applicant on a permanent full-time basis. That offer did not detract from the detriment suffered by the applicant by the termination of his casual employment on 19 February 2004. For the reasons expressed earlier, in the view of the Tribunal, that detriment was not suffered by the applicant on the ground of the allegation of discrimination that the applicant had made to the ADB on 11 August 2003. 63 It is the view of the Tribunal that the claim by the applicant that he suffered victimisation under s 50 of the Act, has not been substantiated. The Tribunal accordingly directs that the complaint of victimisation by the applicant against the respondent be dismissed. Summary 64 The findings of the Tribunal are: 1. That the complaints of disability discrimination brought by the applicant against the respondent have not been substantiated. The Tribunal directs that those complaints be dismissed. 2. That the complaint of victimisation made by the applicant against the respondent has not been substantiated. The Tribunal directs that that complaint be dismissed. 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