CITATION: Boreland -v- Brambles Security Services Limited [2000] NSWADT 147 DIVISION: Equal Opportunity Division APPLICANT John Boreland PARTIES: RESPONDENT Brambles Security Services Limited FILE NUMBER: 122 of 1997 HEARING DATES: 12/04/2000, 13/04/2000, 14/04/2000 SUBMISSIONS CLOSED: 06/02/2000 DATE OF DECISION: 10/20/2000 BEFORE: Britton A - Judicial Member; McDonald O - Member; Strickland J - Member APPLICATION: Disability Discrimination - In work MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Briginshaw v Briginshaw (1938) 60 CLR Commonwealth v Humphries [1998] FCA 1031 HR&EO Commission v Mt Isa Mines Ltd (1993) 118 ALR CASES CITED: Waters & Ors v Public Transport Corporation (1992) 173 CLR Waterhouse v Bell (1991) EOC 92-376, 589-78, 590 IW v City of Perth (1996-97) 191 CLR 1 Hall v Sheiban (1985) ALR 543 APPLICANT REPRESENTATION: In person RESPONDENT C Ronalds, barrister ORDERS: The respondent is ordered to pay the applicant the summ of eight thousand ($8,000.00) within 14 days of the date of this decision. Introduction 1 The complainant, Mr John Boreland commenced employment with the respondent, Brambles Security Services Pty Ltd (Brambles) as an Armoured Vehicle Operator (AVO) in 1977. In 1992 he was injured at work. In 1995 Brambles dismissed him on the grounds that, because of his injury, he was unable to perform the full range of duties of an AVO. 2 Mr Boreland filed an application seeking relief for unfair dismissal under the Industrial Relations Act (NSW) 1991 (IR Act). He was successful in that application and on 17 August 1995 was awarded the maximum compensation payable under s250(3) of the IR Act. 3 On 31 August 1995 Mr Boreland lodged a complaint with the Anti-Discrimination Board (the Board) against his former employer alleging unlawful discrimination on the grounds of disability. 4 In a letter dated 1 April 1997 the President of the Board advised Mr Boreland that his complaint had been declined pursuant to s90(1) of the Anti-Discrimination Act 1977 (the Act), as it had been adequately dealt with by the Industrial Relations Commission of NSW. Following this advice Mr Boreland exercised his right to have the matter referred to this Tribunal under s 91(1) of the Act. Summary of Complaint 5 The complainant's case is based on the direct discrimination provisions of the Act. It is submitted that the respondent, afforded the complainant less favourable terms and conditions of employment, pursuant to s 49D(2)(a), denied him access to a benefit associated with employment pursuant to s 49D (2)(b); and/or subjected him to a detriment, pursuant to s 49D(2)(d), in the following ways : Restriction of overtime - Mr Boreland claims that Brambles restricted his access to overtime from 14 May 1993 until his dismissal on 3 March 1995 (the claim period) Unauthorised display of the complainant's medical certificate; Granting access to complainant's personal medical file to union delegate, Brian Stewart, without his consent. 6 Brambles' decision to dismiss Mr Boreland, though forming part of the original complaint to the Board, does not form part of Mr Boreland's claim in these proceedings. Undisputed facts 7 Mr Boreland commenced employment with the respondent on 27 October 1977 in a position known as Armoured Vehicle Operator (AVO). As an AVO his duties included armoured vehicle operations and vault duties. The former included driver escort, delivery and collection of valuables and coins; the later involved general security, preparing loads for delivery, preparing running sheets and despatching and receiving valuables. 8 In March 1992 Mr Boreland suffered a back injury while unloading heavy coins from an armoured car. He was off work between 5 March and 25 March 1992. He returned to work to light duties which consisted primarily of radio and turret duties and courier work. 9 As a result of Mr Boreland's accident he suffers permanent impairment of his back. It is not in dispute that his back injury is a disability within the meaning of s 4(1) of the Act. 10 Following his injury, Mr Boreland was seen regularly by various medical practitioners but primarily his own doctor, Dr Voutos, who issued medical certificates, certifying the maximum weight he was permitted to lift. On Mr Boreland's return to work his lifting capacity was restricted to six kilograms; this was increased to 12 kilograms on 20 April 1992; to 20 kilograms on 7 July 1992; to 25 kilograms on 18 July 1993; and finally to 27 kilograms on 26 October 1993. This 27 kilogram restriction remained in place until the complainant's dismissal in 1995. 11 Brambles' AVOs routinely worked overtime. Overtime could be broadly described as rostered or unrostered. An informal policy existed whereby rostered overtime was shared amongst employees. The union played a role in overseeing the allocation of rostered overtime. 12 In the period prior to his accident Mr Boreland worked significant overtime. Wage records provided by Brambles and not disputed by Mr Boreland indicate that the average number of overtime hours worked by the complainant between 1986 and 1994 is set out below. Year Average weekly overtime 86/87 12.71 87/88 14.25 88/89 7.11 89/90 17.83 90/91 15.63 91/92 13.11 92/93 15.63 93/94 7.8 94/95 8.2 13 These figures show that for the five years preceding the injury Mr Boreland worked, on average, 13.5 hours per week. If the year when the least overtime was worked, 1988/89 is excluded this average is increased to 15.11hours. 14 Throughout the claim period the respondent did not allow Mr Boreland to work rostered overtime. He continued to work limited unscheduled overtime. His total income from overtime during the claim period was $12,590. 15 Throughout the period, March 1992 to May 1995 (the relevant period) Brambles AVO employees were engaged under the Transport Industry -Armoured Cars etc Award. The following provisions of that Award are relevant to these proceedings: the maximum weight that could be lifted by employees was 40.82 kilograms; ordinary hours of work were 40 hours per week; overtime was payable at time-and-a-half for the ninth and tenth hour worked, Monday to Friday, and double time thereafter; all weekend work was paid at double time; the maximum number of hours that could be worked by AVOs was 20 per week, although this limit could be exceeded in the case of emergencies and with union agreement. 16 Fred Taliana and Tony Parasiliti were colleagues of Mr Boreland, employed as AVOs throughout the claim period. Their work during this period primarily consisted of Automatic Teller Machine (ATM) breakdown work. In 1996 both employees were transferred to work for Total Service Solutions (TSS) a newly created division of Brambles responsible for the technical maintenance of ATMs. 17 On 20 October 1997 a consent order was made by the NSW Workers Compensation Commission ordering the respondent to pay weekly compensation of $150 for the period 14 May to 3 March 1995, and $250 from 26 July 1997 thereafter. In addition the consent order provided for lump sum payments under s 66 and s 67 of the Workers Compensation Act, 1997 (WC Act). Relevant legislation 18 The substantive provision on which Mr Boreland relies is s 49D of the Anti-Discrimination Act 1977 (the Act). In particular Mr Boreland relies on ss 49D(2)(a) (b) and (d). That section provides: (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 19 Direct discrimination on the ground of disability is defined in s 49B of the Act: 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3)…………. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 20 Section 4A of the Act which provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason. At the relevant time, s4A was not applicable, as it did not come into effect until 8 August 1994. Check Issues 21 In respect of each of the three claims put forward by the complainant, the issues for determination in this inquiry are: Did the respondent treat the complainant less favourably than it treated or would have treated an employee who did not have Mr Boreland's disability or a disability substantially the same as his, in the same circumstances or circumstances which were not materially different? Second, if so, was this less favourable treatment 'on the ground of' the complainant's disability? Third, if the answer to the second question is 'yes', did the respondent do so in one or all of the circumstances set out s49 (D)(2)(a), (b) and (d) of the Act? Fourth, can the respondent rely on the defence as set out in s54(1)(a) of the Act. Onus Of Proof 22 In determining whether the complainant has substantiated his complaint, the Tribunal has applied the civil standard of proof. However we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the respondent: see the remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR at 361-362. Evidence Claim one: overtime restrictions 23 Mr Boreland categorised the types of overtime worked by Brambles' AVOs as follows: Rostered overtime - compulsory overtime rostered by the respondent and notified to employees in advance; Voluntary Overtime - unrostered overtime for which employees could volunteer; General Overtime - unscheduled overtime, where for example, an employee was required to 'work back' because of unforeseen circumstances. 24 Mr Boreland gave evidence that after his return to work on 25 March 1992 until 7 July 1992, he worked what he described as 'light duties,' which included turret and light courier work. During this period he did not carry out vault duties or armoured vehicle operations. From 7 July 1992 (when his weight restriction was increased to 20 kilograms) until May 1995, he carried out the following duties: servicing and replenishing ATMs and attending ATM breakdowns; making up and despatching loads; general security in vault area; normal duties as crew member on armoured vehicles. During this period he mainly did Thomas Cook runs and assisted with Ticket Vending Machines (TVM) and TVM breakdowns. 25 In cross- examination he said that in practice the only activities he was unable to carry out from July 1992 as a result of his back injury were the heavy Reserve Bank Central Coast and airport runs. He agreed that lifting and carrying weights was an integral part of his job. 26 Mr Deitrich commenced employment with Brambles in 1989 and has been employed by Brambles in the position of Personnel Development and Training Manager since 1997. He disputed Mr Boreland's claim that he carried out normal duties during the claim period: Mr Boreland was restricted from lifting heavy weights such as coins, which were normal duties of an AVO. He gave evidence that it was his understanding, that following the injury Mr Boreland was allocated a significant amount of TVM breakdown work. As a result, the opportunity for his colleagues to work in this area was limited. It was his understanding that this caused some resentment as other employees saw that they had been deprived of what they considered to be 'R and R' duties. 27 In cross-examination Mr Wallace, an employee of Brambles until 1999, disagreed with the proposition that there may have been some resentment towards the complainant because other AVOs were required to take on his share of the more heavy work. 28 Mr Murphy has been employed by Brambles in the position of State Manager since March 1995. He gave evidence that he had been advised that Mr Boreland's duties during the relevant period were restricted to light duties; Brambles had no records of what duties he undertook on any given day. 29 Mr Boreland gave evidence that on 17 May 1993 he met with Tony Lyons, Beaconsfield Branch Manager, Sophie Ostro, Brambles Rehabilitation officer, and Max Wallace, TWU delegate and was advised that from 18 May he would be working under a rehabilitation program which, amongst other things, restricted him from working rostered overtime. The written document setting out details of the rehabilitation program, signed by Mr Boreland, makes no mention of any overtime restrictions. 30 Mr Boreland gave evidence that the amount of overtime available to AVOs based at Brambles' Beaconsfield depot during the period 1986 to 1991 declined following the opening of additional Brambles depots. In 1993, overtime increased, as Brambles secured new contracts which resulted in the Beaconsfield Depot changing from a five, to a seven day week operation. The advent of ATMs in the early 1990s generated significant new work opportunities as did the respondent's new and large clients, the ANZ and State banks. 31 Mr Deitrich disagreed with the general proposition put forward by Mr Boreland that the years, 1986 to 1991, represented a period of abnormally low overtime. He produced documents, which he claimed establish that the number of jobs performed by Brambles' Beaconsfield depot was steady between 1 July 1991 and December of that year. Mr Deitrich challenged Mr Boreland's claim that there was an increase in overtime during 1993. He claimed that while the number of contracts won exceeded the number of contracts lost, overtime opportunities nonetheless contracted, as much of the work lost involved large jobs such as payrolls, which had become less popular with the advent of Electronic Funds Transfer. 32 Mr Boreland gave evidence that in his opinion Messrs Taliana and Parasiliti were comparable employees (to him) and thus represented a valid point of comparison in seeking to determine the overtime income he would have earned [in the claim period] but for the accident. He did not agree with the proposition put to him in cross-examination that the technical skills of Messrs Taliana and Parasiliti were superior to his. 33 He gave evidence that prior to his injury he had not undertaken ATM breakdown work, [the primary work carried out by Messrs Taliana and Parasiliti], but pointed out he was qualified to do so, having completed relevant training organised by Brambles, in 1991. Mr Taliana corroborated this. In his opinion, Mr Boreland was competent in this area of work. 34 Mr Taliana gave evidence that from 1991 until his transfer to TSS in 1996, he was rostered each alternate week, to work overtime, from 5pm to 10pm each weekday; and from 8am to 10pm(or 11pm) on the weekend. He worked this overtime roster in partnership with Tony Perlidis, whose roster was identical for every alternate week. During their rostered overtime periods they were on standby to rectify any ATM breakdowns. 35 Mr Deitrich gave evidence that Messrs Taliana and Parasiliti primarily performed commercial work, which consisted of ATM breakdown work; this type of work produced a high volume of overtime. 36 Mr Boreland agreed that during the relevant period the overtime arrangements of Messrs Taliana and Parasiliti were different to that of other employees. 37 Mr Deitrich gave evidence that the total number of staff hours lost through injury at Brambles has decreased since the early 1990s. This improvement was accompanied by a change in company policy; Brambles now has available a broader range of activities to employees who return to work following an injury. For example AVOs on light duties are used in the cash room or to perform administrative tasks. Today, a detailed return to work program is developed in consultation with the injured worker, their treating doctor, a representative from Brambles and others. The treating doctor is consulted on the need ,if any to restrict their patient's hours of work. Findings and Conclusions 38 It is not in dispute that from May 1993 until his dismissal in March 1995 Mr Boreland was denied access to rostered overtime. Unlike his AVO colleagues who did not suffer from his particular, or similar disability, he was barred from rostered and voluntary overtime throughout the claim period. There can be no argument that this represents different treatment, the issue for the Tribunal to determine is whether this different treatment also constitutes less favourable treatment. 39 Ms Ronalds submits that the evidence before the Tribunal does not support a finding that the overtime restrictions constitute an act of direct discrimination. She contends that there are three approaches available to the Tribunal to determine whether the respondent's actions constitute an act of direct discrimination and on each and all of these approaches there is no act of discrimination. 40 First, it is submitted that the necessary element of detriment, central to the concept of 'less favourable treatment' has not been made out. Overtime was restricted, argues Ms Ronalds, to protect the complainant's health and promote his recovery; this constitutes favourable as opposed to less favourable treatment. 41 The Tribunal rejects this submission. The medical evidence before the Tribunal does not support the respondent's contention that, throughout the claim period, Mr Boreland was medically unfit to work rostered overtime. There is no medical evidence before the Tribunal that his injury would have been aggravated had he worked [in the claim period] rostered overtime. None of the medical certificates issued for Mr Boreland during this period stipulate that his hours be restricted; the only restrictions noted on the respective certificates are weight restrictions. That the certificate issued on 20 January 1994 (Exhibit R 7) includes the notation 'fit for voluntary overtime' does not lead us to conclude that the remaining certificates, which make no mention of overtime, imply that in the opinion of the treating doctor the complainant was not fit for overtime, however defined. The fact that Mr Boreland worked some overtime following the introduction of the rehabilitation program supports the finding that Mr Boreland's treating doctors had not restricted his hours of work to 40 per week. 42 But in any event, while it may or may not have the case that relevant managers were of the view that a restriction on overtime was necessary for medical reasons, the evidence makes clear that as a result of this restriction Mr Boreland's income potential was reduced. The uncontroverted evidence is that access to overtime was seen as an important 'benefit' available to employees. 43 Ms Ronalds further submits that the overtime restriction cannot be seen as a detriment; as it was not identifiable and real; specifically Mr Boreland suffered no financial loss. It is well established that for less favourable treatment to be established the applicant must establish that any detriment suffered was real and of substance, it cannot be trivial. 44 While as set out in this decision at, the Tribunal agrees that once the workers compensation award is taken into account it is evident that Mr Boreland suffered no financial loss, we do not agree that it therefore follows that he suffered no detriment. Detriment is not to be measured in financial terms alone. Mr Boreland was denied the opportunity to work overtime. The denial of this opportunity was of concern to him. It no doubt contributed to his feelings of insecurity in a work environment where overtime was a feature of the landscape. While he may have been reimbursed for lost income at some later date, and this will be relevant to the calculation of damages, we are not persuaded that it follows that no detriment was suffered 45 Ms Ronalds submits that the Tribunal must examine the reason for management's decision to impose the overtime restriction. Ms Ronalds argues that, while the perpetrator's motive, in terms of the alleged discriminatory act, may not be an element in the analysis of some discrimination cases, in others it will be necessary to look behind the decision to make sense of that decision. 46 Ms Ronalds submits that the decision to restrict Mr Boreland's overtime was motivated by a concern that to do otherwise, may have exposed their employee to further injury and potentially placed the respondent in breach of occupational health and safety laws. In addition the respondent was mindful of the industrial relations implications of assigning Mr Boreland (and other injured employees) to lighter duties. It was simply not possible to accommodate Mr Boreland's restricted duties on the overtime roster. 47 We acknowledge that there is a range of views on the relevance of motive in assessing whether a particular act constitutes less favourable treatment (see for example Commonwealth v Humphries [1998] FCA 1031 per Keifel, J at 12.9; HR&EO Commission v Mt Isa Mines Ltd (1993) 118 ALR per Lockhart J (at 102-3)). However we are not satisfied that the facts of this particular case justify a departure from the more established approach adopted in a significant line of authority which makes clear that even if a respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory. See, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation (1992) 173 CLR (at 359) and the judgment of Clarke JA in Waterhouse v Bell (1991) EOC 92-376 at pp. 78, 589-78, 590. 48 In the alternative, the third approach available to the Tribunal, argues Ms Ronalds, is to inquire whether the disability brought about any less favourable treatment or caused it to occur and whether it was 'on the ground of' the disability. Ms Ronalds submits that the facts establish that the removal of the opportunity for rostered overtime was not on the ground of the complainant's disability but because of an intervening step, namely the introduction of the rehabilitation program which the respondent was obliged to put in place because of weight restrictions imposed by the complainant's medical advisers. 49 While the parties disagreed on the extent to which the duties performed by Mr Boreland during the claim period were different to those performed prior to the injury, Mr Boreland's own evidence makes clear that he could not undertake certain tasks because of the weight restrictions, namely the 'heavy' runs. It is clear that as his weight limitation was progressively lifted, the work performed by Mr Boreland, in overall terms, more closely resembled that of his pre- injury days. However even at the maximum weight, there were some 'normal' AVO duties, that he could not undertake. These findings are broadly consistent with those of the Industrial Commission ( Matter No IRC 550 of 1995). 50 While we not persuaded that the evidence establishes conclusively that Mr Boreland's colleagues resented his allocation to a larger share of what Mr Deitrich describes as 'R and R' duties, we accept that management were concerned that this may have been the case, or was likely to be so at some time in the future. 51 It is our view that the primary reason for the decision to exclude Mr Boreland from rostered overtime was management's belief that it was not possible to accommodate Mr Boreland on the overtime roster because of the weight restriction. 52 We do not accept Ms Ronald's submission that the overtime restriction cannot be seen to have been brought about because of Mr Boreland's disability but rather because of the complainant's inability to fulfil the full range of duties as required by the position. This is a circular argument. Whether the deciding factor in the decision to restrict overtime was Mr Boreland's disability or his inability to perform the full range of duties of an AVO the result is the same: 'but for' the disability he would not have been denied access to overtime. 53 As stated by Kirby J in adopting the now consistently applied 'but for' test in IW v City of Perth (1996-97) 191 CLR 1 (at 61): It is enough that it be shown that the doing of the act was "by reason" or "on the ground" of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real "reason" or "ground". It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator that is sufficient to attract a remedy under the Act. 54 It remains for us to consider whether the respondent can rely on the operation of s 54(1)(a) of the Act, which provides that an action is not rendered unlawful by this Act if it was necessary in order to comply with any other Act. 55 The respondent relies on the provisions of the Occupational Health and Safety Act 1993, particularly s15, and argues that the safety of the worker is a primary statutory duty with which the employer must comply. The decision to place Mr Boreland on a rehabilitation program was intended to return him to full fitness. This was undertaken on medical grounds and done in order to comply with the Occupational Health and Safety Act. 56 As previously stated there is no medical evidence before the Tribunal that Mr Boreland could only work limited hours during the claim period for health reasons. It is clear that the reason for the restriction was his inability to perform some of the duties of an AVO. Section 49D(4) of the Act, which provides that where it can be established that a person cannot meet the inherent requirements of their position, acts which may otherwise constitute discrimination will not be rendered unlawful, is not applicable in this case. 57 We are not satisfied that on the evidence presented that Brambles had no option but to restrict the complainant's overtime in order to comply with s15 of the Occupational Health and Safety Act. 58 We are satisfied that the restriction of overtime during the claim period constituted unlawful discrimination on the ground of disability in relation to a term and condition of employment and a detriment pursuant to s49D(2)(a) s49D(2)(d) respectively. Evidence Claim Two: Unauthorised Publication of Workcover Certificate 59 Mr Boreland gave affidavit evidence that on March 11 1994 he was advised by work colleague, Bill Youseff, that his Workcover certificate was displayed on the whiteboard in the dispatch area (the vault room) 'for anyone to see'. The noticeboard was visible from outside through a large window looking into the room. Later, colleagues, A Perlidis and S Cahill, told him that the certificate had been taped to the window in dispatch the day before. Mr Boreland said he complained to Mr Saltern but did not receive a satisfactory response. 60 In answer to a question from the Tribunal, Mr Boreland outlined the sequence of events surrounding the publication of the certificate: it initially appeared in full view taped to the window of the vault room ( he was advised of this by Messrs Cahill and Perlidis); it was later posted on the noticeboard in the vault room where it remained for about a day. this was brought to his attention by the supervisor, Mr Youseff who took him into the room and showed him the certificate on display; and, finally, it was removed from the Board, placed in an envelope addressed to him and taped to the window. He removed it and threw it away. 61 In cross-examination Mr Boreland said that on learning of the appearance of the Workcover certificate on the noticeboard, he did not remove it because he 'wasn't allowed into the area where it was'. Nor did he ask someone to remove it because he wanted the display to be 'witnessed'. The notice board was in a small room which housed the gun cabinet, to which supervisors and vault hands had access. He did not agree that he was free to enter the room; it was a restricted area. To enter he needed a supervisor's authority, which he did not seek. 62 Mr Wallace gave evidence that he saw Mr Boreland's medical certificate displayed on the dispatch window; it was later removed and placed on the noticeboard. 63 Mr Perlidis worked as an AVO with Brambles from 1981 until his employment was terminated in 1996. He gave evidence that one afternoon on his return to base he saw Mr Boreland's medical certificate taped to a window. He had difficulty in recalling precisely when he brought this to the complainant's attention, but was sure it was on the same day. He was aware there was general discussion in the yard about the display of the notice. 64 Messrs Wallace and Taliana gave evidence that on occasion management placed correspondence for collection by employees in addressed envelopes which were taped to the dispatch window. 65 In cross-examination Mr Boreland said he told a few of his work colleagues about his injury but disagreed it was 'common knowledge.' Mr Perlidis gave evidence that it was common knowledge amongst Beaconsfield AVOs that Mr Boreland had suffered a work related injury. Mr Wallace said employees were aware that Mr Boreland was subject to a weight restriction. 66 Mr Boreland gave evidence that, following the noticeboard incident, copies of his Workcover certificates began appearing on a regular basis at the start of the morning shift in the meal room, causing him distress. No other employee was witness to this as he was generally the first to go to the meal room. One morning about two months after the first appearance of these certificates, he noticed an open Workcover certificate on the desk of supervisor, Gary Manning. He was upset and told Mr Manning that if he saw another certificate he would call the fraud squad. The certificates no longer appeared. 67 Mr Murphy gave evidence that he could neither confirm or deny Mr Boreland's claim in relation to the display of the certificate. Mr Deitrich gave evidence that he had heard that Mr Boreland's certificate had been displayed, ' its almost folklore;' it was not something that happens regularly at Brambles; he did condone such action. Findings and Conclusions 68 Ms Ronalds points to what she argues are significant contradictions between the evidence of Mr Boreland and his witnesses in relation to the sequence of events surrounding the publication of the certificate. Mr Perlidis' account was that he told Mr Boreland about the notice taped to the window on the same day he discovered it; in contrast, Mr Boreland says Mr Perlidis only advised him after he was shown the notice on the board by Mr Yousseff. Further Mr Perlidis gave evidence that when he told Mr Boreland 'he stomped off and got it off there' Later, when pressed, Mr Perlidis conceded that he did not see Mr Boreland remove the notice, he only assumed he had done so. 69 Ms Ronalds points to what she submits are inconsistencies in Mr Boreland's own evidence. In his initial account he said he was first advised by supervisor Mr Youseff of the certificate's appearance on the board; he was then told by Messrs Perlidis and Cahill that it had in fact been taped to the dispatch window. Later this sequence is twisted around so that the certificate is taped to the window, is removed to the notice board, and then returns to the window in an envelope. 70 Ms Ronalds submits that Mr Wallace's version of events 'bears little relationship or commonality to the one recounted by Mr Boreland in oral evidence' and is obviously a less embellished account than that given by Mr Boreland. 71 She also submits that both of the complainant's witnesses – Messrs Perlidis and Wallace – may be considered biased towards him and against the respondent. In the case of Mr Perlidis because he has a similar claim against the respondent; in the case of Mr Wallace, because of the circumstances surrounding his resignation. 72 There is some force in Ms Ronald's submissions. Certainly there are variations between the versions given by the complainant and his witnesses, and the evidence of both Messrs Perlidis and Wallace ought be treated with some caution. Nonetheless, there is, in our view, a thread of consistency running through the evidence given for the complainant. Due to the fact that it is now some years since the events in question are said to have taken place, it would not be surprising if some of the evidence of the complainant and his witnesses has been reconstructed, at least in relation to minor details. 73 Nonetheless, in our view, the very inconsistencies suggest that the complainant and Mr Perlidis have not put their heads together and concocted a fiction, but, as a result of the passage of time, have different recollections of the minor details surroundings these incidents. Mr Wallace's evidence is broadly consistent with the allegation put by the complainant. Even if it is no longer possible to determine what happened with utter precision, Mr Boreland's uncontradicted account appears to us to be truthful. 74 While no adverse inference is drawn from the failure of the respondent to refute the evidence given by Mr Boreland, in the absence of any credible evidence contradicting the complainant, we accept that there was a course of conduct or series of incidents of the type described by Mr Boreland. In our view, there is strong evidence that the contents of Mr Boreland's Workcover certificate was publicised within the depot. 75 Ms Ronalds submits that, as it was common knowledge that Mr Borleland had suffered a work-related injury, there was nothing in the Workcover certificate which was unknown to his fellow employees, and therefore nothing to cause him further stress or distress. Moreover, she submits that, even if there was some unauthorised disclosure of the contents of Mr Boreland's Workcover certificate, he has not established a causal connection with his disability. She argues that the fact that the Workcover certificate came into existence because of his disability is irrelevant in determining whether he was discriminated against on the basis of his disability. She maintains that there is no evidence upon which such a conclusion could be drawn. 76 She makes the submission also that there is an explanation of how the certificate came to be publicised, namely that it was customary for employee's mail or documentation to be taped up for collection by them. 77 While it appears to have been the case that mail or other items were presented for collection by their recipients by being taped up, this does not explain how Mr Boreland's certificate came to be stuck up for all and sundry to examine and read. If it was merely there for Mr Boreland to collect, why was it not contained within an envelope, as was common practice? And why did it make an appearance on a noticeboard in public view? 78 The overwhelming inference is that the unidentified person who taped it up wanted to expose and broadcast its contents. Whether or not it was common knowledge that Mr Boreland suffered from a disability, this was a significant breach of privacy and trust between the keepers of such records (his employer) and Mr Boreland. Why would anyone have done such a thing? If we reject the explanation proffered by the respondent, there is only one rational inference to be drawn in our view. What this exposure told Mr Boreland and his fellow employees was that someone with access to the Workcover certificate was prepared to attempt to humiliate Mr Boreland by publicising his confidential records. Exposure of the contents of the certificate was the means chosen to humiliate him. It follows that there is a direct connection between the contents of the certificate, and therefore his disability, and this cowardly and anonymous attempt to humble Mr Boreland. 79 The evidence makes clear that it was unknown within Brambles for an employee's medical certificate or similar to be put on display, irrespective of whether the contents of the certificate was generally known to other employees. It is a well established condition of employment that an employee's medical records will be kept secure by their employer and all necessary steps taken to ensure that they remain confidential. We find that the broadcast of Mr Boreland's certificate amounts to less favourable treatment than that afforded to other AVOs without Mr Boreland's particular disability. 80 Accordingly, we are satisfied that the broadcast of the contents of the certificate constituted a breach of a term and condition of employment pursuant to s.49D(2)(a) and a detriment within the meaning of s49D(2)(d). Evidence Claim Three: Unauthorised access to medical files 81 The complainant gave evidence that on 23 March 1994 union delegate, Brian Stewart, told him, in front of other employees, that management had granted him access to Mr Boreland's medical file. Later that day Mr Boreland approached Stewart and questioned his right to look at his file; to which Stewart said to Dispatch Supervisor, Mr Fletcher [who was also in the room]'Brambles can sack John Boreland as far as I'm concerned.' Later that day he went with Mr Fletcher to sign a rehabilitation form when Stewart came in yelling abuse and said: 'Sack him. You always wanted to sack him, so sack him.' 82 Mr Wallace, an employee of Brambles until 1999, gave evidence that he overheard a conversation between Brian Stewart and the complainant. He could not recall the date. He was in the dispatch area; Boreland, Stewart and Fletcher were in the adjacent office; the door was open. He overheard Boreland complaining to Mr Stewart that he had access to his medical file and Mr Stewart saying (to Fletcher) "I don't care what happens to him, he should sack him and get rid of him.' In cross-examination he agreed that it was management policy that the door be left closed, however in practice this policy was more often than not ignored. 83 In cross-examination Mr Wallace disagreed that his decision to resign in 1999 was designed to avert his imminent dismissal and that he harboured resentment against his former employer. He agreed he had a difficult personal relationship with Mr Stewart who replaced him as union delegate and that there was a split in the Beaconsfield depot between those AVOs who supported Mr Stewart and those loyal to him. Mr Boreland was seen as a supporter of Mr Wallace. 84 During his time as union delegate he had never been granted access to another employee's medical file. 85 In cross-examination Mr Boreland agreed that there was a cooperative relationship with the union and his former employer; union delegates worked with management to assist individual employees. Mr Boreland agreed with the proposition that conversations between the delegate and the rehabilitation officer was within the usual range of duties of the TWU delegate. 86 Mr Deitrich had heard the story that Mr Boreland's medical files had been shown to Mr Stewart. He would not condone this. He gave evidence that employee's medical files were locked. No one has access to them without the approval of the branch manager. Findings and Conclusions 87 There is no evidence to contradict the evidence given by Messrs Boreland and Wallace that the respondent showed a personnel file relating to Mr Boreland to a union delegate. Mr Dietrich gave evidence for the respondent that he (and the company) did not condone this. The effect of his evidence was that he (correctly) recognised that such conduct was improper. 88 Ms Ronalds submits that there is a significant lack of clarity concerning the facts in relation to this point of claim. First, she says there is no firm evidence as to whether, if a personnel file was shown to a union delegate, it related to Mr Boreland's disability: it could either have been his general employment file or his rehabilitation file – he merely describes it as a 'confidential file' in his complaint. 89 Second, there is evidence of hostile relations between Messrs Stewart and Wallace as a result of an internal struggle for an elected position as TWU delegate at the Beaconsfield depot. Mr Wallace was the losing party in that competition and, it is submitted, has a motive to be biased against the respondent and Mr Stewart. His evidence, therefore, is said to be unreliable. 90 Ms Ronalds further submits that there is evidence of a good working relationship between the union delegate at the depot and the respondent. It would not have been unusual or unreasonable for the delegate to discuss issues such as the rehabilitation of injured workers with management. This could have been the case if Mr Stewart had a discussion with management concerning Mr Boreland and was shown the rehabilitation file. And, in any event, argues Ms Ronalds, even if the rehabilitation file was as alleged shown to Mr Stewart [as alleged] the only documents contained were Workcover certificates which set out information that was common knowledge at the Depot. 91 More plausibly, Ms Ronalds suggests that even if some sort of discussion between Mr Stewart and Mr Boreland took place it came about as a result of the friction between Messrs Stewart, Wallace and Boreland over union affairs. However badly or inappropriately Mr Stewart's conduct may have been, it related to that personal antipathy between the warring factions rather than to Mr Boreland's disability. 92 In any event, Ms Ronalds maintains that there is no causal connection between the disability suffered by Mr Boreland and any inappropriate disclosure of confidential information relating to him. 93 In our view, there was strong evidence given that Mr Stewart was strongly antipathetic to Mr Boreland. While Mr Wallace may have some bias against the respondent or a motive to be so biased, the evidence given by him and Mr Boreland was not contradicted and seemed inherently plausible. 94 If Mr Boreland's evidence is accepted, it would seem that Mr Stewart was shown a 'medical file' in about March 1994. This is most likely to have been his rehabilitation file. The evidence establishes that it is implausible that Mr Fletcher, the dispatch supervisor, would not have been aware of the strained relationship between the two men. If Mr Boreland's evidence is accepted, it implies that both Mr Fletcher, and Mr Stewart were antipathetic towards him. Mr Dietrich's evidence tells us that the exposure of personnel records to union delegates without authorisation was not a practice condoned by the company, notwithstanding the close relationship between the company and the TWU. It follows, therefore, that the incident amounts to treatment which was less favourable to Mr Boreland than AVOs without his particular disability would expect to receive. 95 The real issue in relation to this ground of the complaint is whether the unfavourable treatment was meted out to Mr Boreland on the grounds of his disability. Ms Ronalds suggests that, on the evidence, the most likely reason Mr Fletcher may have improperly revealed Mr Boreland's personnel records to Mr Fletcher (which is not conceded) is that there was a history of antipathy between the parties, unrelated to Mr Boreland's disability but to some other cause of disharmony, in particular the struggle between Mr Wallace and Mr Stewart for leadership of the union at the Beaconsfield depot. 96 One available interpretation of the evidence is that Mr Fletcher saw Mr Boreland as aligned with a candidate for the delegate's position (Mr Wallace) to whom he and Mr Stewart were opposed and that he was therefore prepared to allow Mr Stewart unauthorised access to the file for reasons which are, ultimately, obscure but probably related to a sense of personal dislike for Mr Boreland rather than his disability. 97 Given the sense of hostility between Messrs Stewart and Wallace, and the apparent alignment of Mr Boreland with Mr Wallace, it seems highly improbable that Mr Stewart was poring over the medical file shown to him by Mr Fletcher with only Mr Boreland's long-term prospects for rehabilitation in mind. Why exactly Mr Stewart would have boasted about the access given to the file is unclear, except that it clearly showed that Mr Boreland was not in favour and was isolated by at least some in management and the union delegate. 98 Even if personal dislike of Mr Boreland or union in-fighting was the dominant cause of the 'less favourable treatment' received by him from Mr Fletcher, it is more probable than not that his disability was a factor too. It is enough that his disability had a real causative effect in the sense that 'but for' its presence the act complained of would not have occurred. Accepting that his rehabilitation file was shown to Mr Stewart by Mr Fletcher, it is difficult to see how it can be argued that there is no causal connection between his disability and the less favourable treatment he received. But for his disability there would have been no rehabilitation file for Mr Fletcher to reveal, and Mr Stewart to boast about. 99 Accordingly we are satisfied that this claim has been made out and that the unauthorised disclosure of the contents of the file constitutes unlawful discrimination in relation to a term and condition of employment pursuant to s49D(2)(a) and a detriment within the meaning of s49D(2)(d) of the Act. Relief 100 Section 113(1)(b)(i) of the Act permits the Tribunal to order a respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 101 Mr Boreland seeks damages for loss of overtime during the claim period. As is self evident, a determination of the quantum of income lost as a result of the decision to restrict Mr Boreland's overtime involves a degree of conjecture requiring the Tribunal to estimate what overtime income the complainant would have received had it not been for the injury and the consequent overtime restrictions. 102 Mr Boreland submits that it is not valid for the Tribunal to base its assessment on his pre-injury overtime history. The period 1986-91 (the only pre-injury period for which records are available), submits Mr Boreland, was characterised by uncharacteristically low overtime availability for AVOs. That being the case, he submits, the preferable approach is to compare the overtime hours actually worked by him during the claim period, with those of comparable AVOs, namely Messrs Taliana and Parasiliti. 103 The evidence makes clear that the ATM breakdown work undertaken by Messrs Taliana and Parasiliti was specialised requiring a high level of technical skills. While accepting Mr Boreland's evidence that he received ATM training in 1991 and was competent in that area, the evidence does not support a finding that it was more probable than not, but for the injury, he could have expected to earn comparable income from overtime work as Messrs Taliana and Parasiliti. The evidence makes clear that the overtime arrangements for Messrs Taliana and Parasiliti were unique: throughout the claim period they were the only two employees placed on a special overtime roster responsible for out of hours ATM breakdowns; their roster was fundamentally different to that of their AVO colleagues; unlike other AVOs, they were effectively guaranteed a set amount of regular overtime. 104 It is clear that Brambles made an operational decision to allocate only two people to be on standby to rectify ATM breakdowns outside ordinary hours. Presumably this decision was made to ensure that this work was carried out by competent employees whose skills could be enhanced by constant exposure to this specialised area of work. There is no evidence to suggest that, had it not been for the injury, these unique arrangements would have been varied and the roster expanded to include additional employee/s, and that Mr Boreland would be amongst that group. Nor does the evidence support a finding that had it not been for the injury, it is probable that Mr Boreland would have been placed on the ATM roster in substitution for one of his colleagues. 105 We are not satisfied that, had Mr Boreland been free to work rostered overtime during the claim period, he would have earned income equivalent to that earned by Messrs Parasiliti and Taliana for the same period. We turn now to deal with Mr Boreland's submissions in relation to the period 1986-91. 106 It is regrettable that overtime records for the period prior to 1986 cannot be located, as this would provide some assistance in assessing the veracity of Mr Boreland's claim in relation to the years 1986-1991. Mr Boreland has put some evidence to the Tribunal in support of his submission that this period represents an abnormal period of low overtime availability, based on his own general observations whilst an employee of the respondent during these respective periods. Understandably he has not been able to put to the Tribunal any documentary evidence to support these claims. The respondent has put to the Tribunal limited evidence, which lends some support to their claim that the period 1986-1991 is not abnormal. 107 The Tribunal finds that the evidence is insufficient to support Mr Boreland's assertions in relation to overtime. 108 In the absence of any evidence on the overtime income of other AVOs during the claim period ( which may have provided a more useful point of comparison) the Tribunal is of the view that the only approach that can be adopted is that advocated by the respondent, namely to estimate Mr Boreland's claim period overtime on the basis of the his historical overtime average. 109 The Tribunal accepts the methodology proposed by the respondent (see Exhibit R 9, Annexure P) as a reasonable basis for calculating what the complainant would have earned had his pre-injury overtime average been maintained throughout the claim period. The respondent's formula identifies the average number of overtime hours worked for the five year period prior to the injury; excludes 1988/ 89, the year with the lowest weekly overtime average (best pre-injury average); and applies the best pre-injury average to the Award AVO overtime rate/s applicable during the claim period. 110 Using this formula, there is a $13,000 shortfall between the income Mr Boreland actually received during the claim period and that which he would have received had he worked his best pre-injury overtime average. However Mr Boreland's workers' compensation award for $ 14,040 for lost overtime throughout the claim period must also be taken into account. Including this award with the overtime income actually received, it is apparent that Mr Boreland has suffered no actual loss of income. This calculation is set out below. Actual overtime worked $ 12,590.98 Plus Workers Compensation payout $ 14,040.00 TOTAL $26,630.98 LESS total estimated income $25,292.23 Difference $1,338.75 NB All figures refer to claim period 'Total estimated income' means estimated income as per formula set out in par check of this decision 111 Accordingly we make no award for damages for Claim One. 112 The applicant also seeks an order for general damages for the stress, humiliation and distress he experienced as a result of the broadcast of the Workcover certificate and the unauthorised release of his rehabilitation file. 113 We accept Mr Boreland's evidence that these two acts caused him deep distress. He felt hurt and vulnerable. 114 As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 543 (at 543), the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult. ... damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage. 115 Ms Ronalds argues that in calculating damages under this heading the Tribunal should take into account the fact that on Mr Boreland's own evidence he was already stressed. Further, in relation to the broadcast of the certificate, it was a short and minimal event. Consequently the damages awarded should be in the low range. 116 These two acts clearly added to the stress already being suffered by the complainant as a result of his injury. Both acts added to his sense of vulnerability in maintaining his position as an AVO with Brambles. Taking into account all the evidence we conclude that $5,000 in relation to the broadcast of the Workcover certificate, and $3000 for the unauthorised release of the rehabilitation file to be an appropriate award. 117 The complainant seeks an order for costs. We are not satisfied that the circumstances of this case justify an order for costs. Orders 118 The respondent is ordered to pay the applicant the sum of eight thousand dollars ($8000.00) within 14 days of the date of this decision. 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.