Turner -v- Terrace Tower Pty Limited and Samuels [1999] NSWADT 48

CITATION: Turner -v- Terrace Tower Pty Limited and Samuels [1999] NSWADT 48

DIVISION: Equal Opportunity

APPLICANT: Anne Turner

RESPONDENT: Terrace Tower Pty Ltd and Sam Samuels

FILE NUMBER: 65 of 1997

HEARING DATES: 04/27/1999; 04/28/1999; 04/29/1999; 04/30/1999

SUBMISSIONS CLOSED: 04/30/1999

DATE OF DECISION: 8 July 1999

R Bartley - Judicial Member BEFORE: A Silva - Member R Cox - Member

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

APPLICATION: Disability Discrimination - Employment; Sex Discrimination - Employment; Victimisation -

MATTER FOR DECISION: Principal matter

Applicant: In person REPRESENTATION: Respondent: J Fernon of counsel, instructed by Landerer & Co

ORDERS: 1. Complaints are dismissed on 30 April 1999. 2. No order for costs.

1 On 12 June 1996 the Anti-Discrimination Board received a complaint from Anne Turner who stated that she was the Corporate Manager of Terrace Towers Pty Limited at the Group Head Office, 80 William Street, Sydney. 2 The complaint was against her employer Terrace Towers Pty Limited for harassment, and discrimination against her on the basis of disability. 3 It said the harassment was by verbal comment, reduction of benefits and isolation carried out by Mr. Sam Samuels, the Group Finance Controller. It said the Company appeared to condone the harassment. The injury leading to the disability occurred in October 1995. 4 Further information was given to the Anti-Discrimination Board on 20th June 1996 and 1st July 1996. On 1st July 1996 the Anti - Discrimination Board received a further letter of complaint from Ms Turner alleging discrimination on the grounds of sex. 5 At a later date the Second Respondent was added as a Respondent by a direction of the Tribunal. 6 In the event there were three complaints, one based on discrimination due to disability, the second one concerned harassment and the third one on discrimination based on sex. 7 The Complainant agreed that all of the complaints were based on the conduct of the Respondents for the period 24 December 1995 to 19 November 1996. 8 The Complainant first made a claim in respect of her injury on 30 October 1995. The Insurance firm GIO Australia (Terrace Towers Workcover compensation insurer) accepted liability in respect of that claim on 26 January 1996. 9 Over the following months various medical certificates were submitted by the Complainant certifying as to her inability to attend work. 10 On 15 November 1996 GIO Australia discontinued Workers Compensation payments on the grounds the Complainant was fit for work. 11 On 26 November 1996 the First Respondent (Terrace Towers Pty Limited) wrote to the Complainant that as she had not returned to work her employment was terminated. 12 Over the period of absences from work the Complainant was supervised by two rehabilitation managers , the latter Melissa Denning gave oral evidence on behalf of the Complainant. 13 The treating Doctor, Dr Couch also gave oral evidence on behalf of the Complainant. 14 Over the period each was engaged in treating the Complainant and held numerous conferences with the Complainant, her employer and the Insurer. 15 The Complainant affirmed her written statements, and as she was appearing for herself was allowed great latitude in making statements at all stages of the proceedings. 16 She was also assisted in asking questions of her own witnesses and the Respondents. 17 The Respondent had witnesses on call, and arrangements were made for staggering their times of attendance at 15 minute intervals , to ensure witnesses were always available to save waiting at court , and to ensure the court sat continuously. 18 Late on the fourth day (Friday afternoon) when it was indicated the matter could not finish the Complainant told the court she did not want to come back and wanted a decision there and then. An extempore judgment was given. The Complainant came from Queensland. 19 Following discussion with the Tribunal, which is on transcript, the Tribunal met the wishes of the Complainant and gave an extempore judgment. 20 One of the main complaints of the Complainant was the fact there was a change in her working environment after February 1996 to her detriment which amounted to discrimination due to her injury. 21 The Complainant at all times wanted to remain in the employ of the Respondent. 22 The Respondent also wanted the Complainant to remain in their employment 23 In addition both the Complainant's Care Officer and Dr. Couch (the treating Doctor) agreed that the Complainant could not be cured from her disability (which is RSI) if she remained in the employment of the Respondent. 24 After reviewing all the evidence and statements the Tribunal is of the view that there was no change to the detriment in the working environment of the Complainant following her injury especially when she made no effort to follow the advice of her carer and doctor. 25 As a result the Tribunal finds this complaint lacking in substance. 26 In respect of harassment the Tribunal accepts the evidence of Mr. Samuels where it conflicts with that of the Complainant and finds there was no harassment of the Complainant. 27 The complaint of discrimination on the basis of sex was based on the fact that the Complainant stated that the size of the bonuses paid to male employees was greater than that paid to female employees. 28 There is no substance in this complaint. There was not any clauses in her employment contract stating the amount to be paid in bonuses to the Complainant and in the absence of such clauses the amount of any bonus paid by an employer to an employee is at the employer's discretion. The employer seemed to the Tribunal to be very fair to the Complainant having regard to the increases in her salary whilst she was with the firm. 29 As indicated in the extempore judgment each complaint is dismissed, with no order as to costs.