CITATION: Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Armida Stokes RESPONDENT Serco Sodexho Defence Services Pty Ltd FILE NUMBER: 051140 HEARING DATES: 24/04/2006, 26/04/2006 & 4/05/2006 SUBMISSIONS CLOSED: 06/05/2006 DATE OF DECISION: 10/10/2006 BEFORE: Layton R - Judicial Member; Antonios Z - Non Judicial Member; Mooney L - Non Judicial Member CATCHWORDS: Carers' Responsibility Discrimination - in work - Disability Discrimination - In work MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Workplace Injury Management and Workers Compensation Act 1998 Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 CASES CITED: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham, 168 ALR 407 Reddy v International Cargo Express [2004] NSWADT 218 Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1 State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 Waters & Ors v Public transport Corporation (1991) EOC 92-390 APPLICANT In person REPRESENTATION: RESPONDENT J Seeman, solicitor ORDERS: That the Applicant's application is dismissed REASONS FOR DECISION SUMMARY 1 Ms Stokes is a single parent, and has custody of her daughter who was ten years old at the time of the hearing. From October 1999 to termination in January 2003, Ms Stokes was employed as a security guard by Serco Sodexho Defence Services Pty Ltd ('Serco') at HMAS Waterhen, and at times, was the only woman employed by Serco there. She worked a permanent roster of 12 hour shifts, both day and night, Monday to Sunday, but she said at the hearing that this suited her parenting responsibilities. In March 2002 after Ms Stokes was injured in a car accident on her way to work, her roster hours and days were reduced to facilitate her recovery. Initially after the accident, her supervisor, Mr Colley, allowed her to choose the shifts she worked, but Serco said she frequently changed these days which caused administrative problems finding substitute guards to work at short notice. On 24 June 2002, Mr Colley notified her by email that she had a new roster of set days. Ms Stokes said she didn't receive the roster and so she didn't work on one of the days in the new roster. At a meeting with Mr Colley and the site manager, Ms Jones, to discuss why she didn't work that day, Ms Stokes became upset, and when she was told her roster would again be changed, she left the meeting. This time when Serco changed her roster, they set her all day shifts, Monday to Friday, which Ms Stokes said meant she couldn't take her daughter to school. After she complained to the Anti-Discrimination Board ('the Board') and the Board contacted Serco, her roster was changed to one which didn't interfere with her parenting responsibilities. Ms Stokes claimed Serco changed the roster because of the 'argument' at the meeting and that they knew the impact the change of roster would have on her parenting responsibilities. Serco responded that it couldn't know because Ms Stokes had not told them the nature of her parenting responsibilities, nor that the shift change impacted on her parenting responsibilities. Ms Stokes also made other claims including that Serco refused to give her requests for leave to attend Family Court custody proceedings for her daughter and that after the accident, Serco reduced her duties so that they could more easily terminate her employment. After considering all the evidence, the Tribunal found that in all the circumstances, Ms Stokes has not made out her claims of unlawful discrimination on the grounds of carer's responsibility and disability. History of the Complaint 2 On 25 June 2002, Ms Stokes lodged a complaint with the President of the Board ('the President') alleging sexual harassment in 2001, and discrimination on the grounds of carer's responsibilities relating to incidents between April 2002 and 25 June 2002 and disability relating to incidents between April 2002 and 25 June 2002. By a letter dated 8 November 2005 the President forwarded the complaints to the Administrative Decisions Tribunal ('the Tribunal'). 3 Ms Stokes claimed as follows: After her car accident, Mr Colley offered her a lump sum termination pay; she was refused sick leave for some days; she applied for, and was refused, paid annual leave (or other paid leave) for Family Court attendances on 7 January 2002 and 27 June 2002; she was restricted from doing her patrols; and on 17 June 2002, her roster was changed for about two weeks so that on one occasion she could not take her daughter to school. She also made out of time complaints that on 2 July 2002, she was refused access to the worksite; and in September 2002, she was requested to 'rotate' in her duties and she felt this would have exacerbated her injuries. 4 Only the grounds of carer's responsibility and disability are considered in this decision since at the time of hearing, the other matters had not been referred by the President to the Tribunal. The Tribunal also notes that no claim for termination of employment was before the Tribunal since Ms Stokes' claim for unfair dismissal was heard by the Australian Industrial Relations Commission (AIRC) and refused on 21 October 2003. 5 At a Case Conference held by the Tribunal on 18 January 2006, the complaints were identified as the roster change from March to June 2002, and Serco's refusal to grant her request to swap shifts to allow her to attend Family Law proceedings in the period March to June 2002. 6 In the proceedings before the Tribunal, the Applicant was not represented. The Respondent was represented by Ms Seeman, counsel, instructed by Minter Ellison, Solicitors. 7 In the hearing, the Applicant made further claims including the refusal by the Respondent to give her annual leave for attendance at the Family Court on 7 January 2002. The Respondent's counsel noted that the only matters before the Tribunal were those forwarded in the President's report. The Tribunal noted that in general, it is not desirable for it to take an overly legalistic approach to formulation of an Applicant's complaint where the Applicant is unrepresented. After considering the matter, the Tribunal has included in its consideration of Ms Stokes' claims further incidents which were made at the hearing and which were related to Ms Stokes' complaints referred by the President and within time (six months before the complaint was made to the Board on 25 June 2002). 8 The Tribunal has considered the following material in reaching its decision: The President's report; the evidence and exhibits given in the hearing by Ms Stokes, and by the witnesses for the Respondent, Ms Christine Jones and Mr Paul Colley; and the submissions made by Ms Stokes after the hearing, and by the Respondent made at and post hearing. 9 At the end of Day One of the hearing, Ms Stokes asked if an interpreter could be provided. No interpreter was available at that stage and the Tribunal proceeded without an interpreter after considering that Ms Stokes had not requested an interpreter before the hearing and that in the AIRC an interpreter was obtained, found unnecessary and dispensed with on the second day of hearing, and that Ms Stokes appeared competent in English. However, on the third day of the hearing, when an interpreter was available, an interpreter was obtained for Ms Stokes. The Relevant Law Discrimination on the ground of disability 10 The Anti-Discrimination Act 1977 Section 49B sets out what constitutes discrimination on the ground of disability as follows: (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. …' 11 The Anti-Discrimination Act 1977 Section 49D states that it is unlawful for an employer to discriminate against an employee on the ground of disability in the terms or conditions of employment or 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 by dismissing the employee, or by subjecting the employee to any other detriment. Discrimination on the ground of carer's responsibilities 12 The Anti-Discrimination Act 1977 Section 49T defines discrimination on the ground of a person's responsibilities as a carer as follows, (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of the aggrieved person's responsibilities as a carer if, on the ground of the aggrieved person having responsibilities as a carer, 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 those responsibilities, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have such responsibilities comply or are able to comply, being a requirement that is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's responsibilities as a carer if it is done on the ground of the person having responsibilities as a carer, a characteristic that appertains generally to persons who have responsibilities as a carer or a characteristic that is generally imputed to persons who have responsibilities as a carer. ' 13 Anti-Discrimination Act 1977 Section 49V states that it is unlawful for employers to discriminate against employees on the ground of the employee's responsibilities as a carer in the terms or conditions of employment that the employer affords the employee, or 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 by dismissing the employee, or by subjecting the employee to any other detriment. Unlawful Discrimination may be Direct Discrimination or Indirect Discrimination Direct Discrimination 14 In Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5, the ADT Appeal Panel discussed direct discrimination; the Panel observed: 45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation… 61 …[The] Act requires that an actual or hypothetical comparison be undertaken in every case of alleged direct discrimination... 83 As we have stated at paragraphs 54-75, in relation to every alleged act of unlawful discrimination the Tribunal failed to determine the following essential questions of fact: (a) whether the Commissioner's act fell within the relevant substantive provision of the Act, namely section 8 (b) if 'Yes' to (a) whether in so acting the Commissioner treated Mr Aldridge less favourably than it treated, or would have treated, a non-Aboriginal person in the same or similar circumstances (c) if 'yes to (a) and (b) whether the Commissioner so acted on the ground of race. 15 In Dutt v Central Coast Area Health Service [2002] NSWADT 133, the Tribunal commented that on the case where there was no actual comparator; the Tribunal said, '63 When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently. 64 In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: 'but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'. Indirect Discrimination 16 The requirements for succeeding in a claim of indirect discrimination, as set out in Reddy v International Cargo Express [2004] NSWADT 218 at para 51 are that the applicant establish that: (a) the respondent imposed a "requirement or condition"; and (b) she was unable to comply with that "requirement or condition"; and (c) a substantially higher proportion of persons without responsibilities as a carer [for example] comply or are able to comply with that "requirement or condition"; and (d) the requirement or condition is not reasonable having regard to the circumstances of the case. 17 In Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1, the Appeal Panel approved the test of 'reasonableness' developed by the Tribunal as follows: 65. The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against: The reasons for the requirement including any commercial considerations; Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and Whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory. 18 In Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294: The Tribunal considered the case of an Applicant who alleged discrimination on the grounds of sex and carer's responsibility on her return to work after maternity leave. The Tribunal said: '87 Compliance rates A claim of indirect discrimination must fail unless it can be established that a "substantially higher proportion" of persons within the base group who do not have the relevant characteristic (in this case, carer's responsibilities) comply or are able to comply with the offending requirement as compared to the proportion of persons who do have to have that characteristic… 89 Notwithstanding these problems in our view we are entitled to take judicial notice of the fact that a substantially higher proportion of persons without responsibilities for infant children can or do comply with the requirement to work full time. It is, we think, a truth universally acknowledged that people with responsibilities for the care of a infant child find it difficult to balance their responsibilities to care for their child and work, and within the Australian workforce a lesser proportion of those with such responsibilities are able to work full time than those who do not. That is a fact so well publicised in the mass media and so widely known that, in our view, it can be regarded for evidentiary purposes as a matter of common knowledge… 105 In considering whether the activity could be performed ... without imposing a requirement or condition that is discriminatory it is not necessary for the Tribunal to satisfy itself that no stone had been left unturned by a respondent in their evaluation of alternatives. Reasonable efforts however need to be shown.' The Anti-Discrimination Act 1977 should be construed broadly 19 In State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14, Kirby J, at paragraph 140 states: 'The sweeping objectives of the AD Act were explained in the lengthy parliamentary debates preceding the passage of the Anti-Discrimination Bill, as "an attempt, as far as legislation can, to end intolerance, prejudice and discrimination in our community…It was the express intention of Parliament that the Act would have "wide-ranging ramifications" for the State of New South Wales…' Decision and Reasons for Decision Findings of Fact 20 Ms Stokes claimed at the hearing the following acts amounted to unlawful discrimination: After her car accident, Mr Colley offered her a lump sum termination pay; she was refused paid annual leave for Family Court attendances on 7 January 2002 and 27 June 2002; she was refused sick leave for some days; on 7 June 2002 she was instructed not to do patrols and then in September 2002, she was told that the navy had instructed Serco that she must rotate in her duties between different parts of HMAS Waterhen pursuant to a directive of the navy to Serco; on 17 June 2002, after an argument with Ms Jones that day, her roster was changed so she could not meet her carer's duties for her daughter; and on 2 July 2002, she was refused entry to her work base. 21 Ms Stokes claimed that after her accident, Mr Colley came to see her in hospital and offered her a lump sum termination payment and this was prejudicial to her because she returned to work earlier than she should have because she was worried about losing her job: The Tribunal notes that this allegation is out of time. Nevertheless, the allegation is background and relevant to credibility. Mr Colley said he visited her in hospital to take her flowers, but he denied that he had offered her money to terminate her employment. The Tribunal finds that it is not inconceivable that she was offered a lump sum termination pay, given she was injured, and she was not going to be fully fit for work for some time and she had made allegations of sexual harassment about other staff members. However, the Tribunal also notes that Ms Stokes in fact returned to work at Serco for some eight months after the alleged offer was made and no further similar approach was alleged to have been made to her to terminate her employment. Further, the Tribunal notes that Ms Stokes did not make this allegation to the Board until her letter dated February 2003 to the Board. After considering all the evidence, the Tribunal is not satisfied that Mr Colley made this offer. 22 Ms Stokes' claimed that she was not paid for days she attended the Family Court on 7 January 2002 and 27 June 2002. The Tribunal notes that it was an agreed fact that Ms Stokes was not paid for her absences on 7 January 2002 and 27 June 2002. However, there was a conflict of evidence as to whether Ms Stokes had asked for annual leave for 7 January 2002. Ms Stokes said that in December 2001, she asked Mr Colley for paid leave for 7 January 2002 and when he had his mobile switched off continually, she asked Mr Gaudry, the then site manager, to approve the leave for 7 January 2002 for her to attend Court. Mr Colley conceded she did contact him and Mr Gaudry in December 2001, but he said that this was on 23 December 2002 to ask for permission for a shift swap with Peter Mathews so she could spend 24 and 25 December 2001 with her daughter, and he had told her he would consider it if she submitted a swap shift form which she did not do. Mr Colley said that Peter Mathews confirmed to him on 23 December 2001 that he had signed a swap shift form with Ms Stokes to work in the 'security cell' but she had kept the form and told him she was going to see a doctor. Mr Colley said that as a result, he typed up a file note noting she had asked for a shift swap, he had not approved this, he thought she may get a sick leave certificate, and if so, this should not be approved. Also, he said he sent her an email saying that the site manager was not to be contacted at weekends or late at night except in an emergency, and that 'changes in rosters do not constitute an emergency'. Ms Stokes stated that Mr Colley fabricated this allegation, and the file note, and that the email dated 24 December 2001 was in relation to her asking Mr Gaudry for permission to attend Court on 7 January 2002. 23 The Tribunal notes that on the one hand, Mr Colley's evidence that Ms Stokes asked him to swap shifts with Peter Mathews, and that Peter Mathews confirmed he had signed a swap shift form, does not make sense because the roster for that period submitted by Ms Stokes [attachment to Ms Stokes' statement Exhibit A6], indicates that Peter Mathews was already rostered on for work on the gangway on 24 and 25 December 2001, replacing George Samios who was on annual leave. The Tribunal finds it is improbable that Mr Mathews would have told Mr Colley that he had signed a swap shift form for the next two days if he was already working those two days in a different area. As well, it is plausible that Ms Stokes would ask for leave to attend the Family Court. 24 On the other hand, Ms Stokes' evidence as to whether not she claimed paid leave for attendance at Court was inconsistent: In her statement dated 20 February 2006, she said that when she needed time off to go to Court, she always took 'unpaid leave'; the Legal Aid NSW letter written on her behalf dated 18 August 2004, stated that Ms Stokes had taken unpaid leave to attend Family Court on a 'number of occasions' including 7 January 2002, 17 May 2002 and 27 June 2002, and she never requested 'paid leave for these days'. However, in the Tribunal's summary of complaint from the Case Conference held with the parties on 18 January 2006, the Applicant's complaint is recorded as 'the employer refused her request for a shift change to allow her to attend Family Court proceedings and she had to take recreational leave for that purpose'. In her evidence at the hearing, she said that she 'always took annual leave' for attending Family Court. 25 After considering the inconsistency in her evidence as to whether she asked for paid or unpaid leave for Court attendances, the Tribunal cannot be satisfied Ms Stokes asked for paid leave for the Court attendance on 7 January 2002. Also the Tribunal notes that Ms Stokes alleged that she could not contact Mr Colley in December 2003 because he had his mobile continually turned off, and that this allegation was denied by Mr Colley and further, appears improbable given his position as security supervisor for a naval facility shortly after the events of September 2001. Also, the Tribunal notes that, consistent with Mr Colley's email, Ms Stokes did not work as rostered on 24 and 25 December 2001 and she did see the doctor [NSW workers compensation medical certificate dated 24 December 2001, President's report page 9]. After considering all the evidence, the Tribunal is not satisfied that Mr Colley fabricated the file note as to the telephone request by Ms Stokes to ask on 23 December 2001 for a shift swap for 24 and 25 December 2001. Further, the Tribunal cannot be satisfied that Ms Stokes asked for paid leave for attendance at Family Court on 7 January 2001. 26 As to Ms Stokes being refused paid leave for her Family Court attendance on 27 June 2001, the Tribunal notes that Mr Colley and Ms Jones said they understood Ms Stokes had asked for carer's leave to go to Court on 27 June 2002 and this was why Ms Stokes was requested to provide proof of her attendance at Court. However, Ms Jones and Mr Colley conceded that they may have assumed Ms Stokes wanted carer's leave, and she may not in fact have asked for carer's leave to attend Court on 27 June 2002. Ms Jones impressed the Tribunal at the hearing as a credible and reliable witness. After considering the evidence, the Tribunal is satisfied that at the time, Ms Jones understood that Ms Stokes had requested carer's leave for 27 June 2002 and this is the reason she required Ms Stokes to provide proof of her having to attend Court on that day. The Tribunal is also satisfied that while Ms Jones assumed Ms Stokes to be asking for carer's leave, Ms Stokes did not ask for carer's leave for 27 June 2002. 27 Ms Stokes said in the hearing she always asked for annual leave to attend Court. Mr Colley and Ms Jones that if Ms Stokes had applied for annual leave, she would not have needed to give proof of Court attendance, but Mr Colley said annual leave was not paid for 27 June 2002 because ms Stokes had not applied for this in writing, as was necessary for annual leave applications. Ms Stokes said that a written application was not necessary for annual leave to be paid. The Tribunal notes that Mr Colley said at the hearing that completed and signed timesheets were given to the pay office to make up the pay, and Ms Stokes did not dispute this. After considering the evidence, the Tribunal prefers Mr Colley's evidence on this point and is satisfied that for annual leave to be approved and paid by Serco, it was necessary for Ms Stokes to have filled in an application form. Further, the Tribunal accepts as credible the evidence at the hearing of Mr Colley and Ms Jones that if Ms Stokes had applied for annual leave, she would not have needed to give proof of Court attendance. 28 After considering all the evidence, including the inconsistency of Ms Stokes' evidence as to whether she usually sought paid leave, or unpaid leave, or to swap shifts when she attended Court, the Tribunal also is satisfied that Ms Stokes did not specify what type of leave she was seeking for 27 June 2002. After considering all the evidence, the Tribunal is satisfied that paid leave was not granted for 7 January 2002 and 27 June 2002 because it was not applied for. In particular, the Tribunal is satisfied that Ms Stokes did not provide the proof for Ms Jones to approve carer's leave, nor did she give Serco an annual leave application for approval for annual leave, nor a swap shift form for approval for her to swap shifts for 27 June 2002 (or for 7 January 2002). 29 Ms Stokes' claimed that Serco did not pay her sick leave: The Tribunal notes that in the hearing, Ms Stokes was questioned about her time sheet for the period including 18 May 2002 and ending 19 May 2002, and signed and dated by Ms Stokes 16 May 2002 [Exhibit R14]. The time sheet indicated she did not report for work on 18 May 2002. Ms Stokes was adamant that if she did not attend work on 18 May 2002, she must have been ill on 18 May 2002, Serco must have lost the sick leave certificate as it had done with other such certificates, she always kept copies of the certificates she gave to Serco, and she would produce the medical certificate to the Tribunal. However, Ms Stokes did not produce to the Tribunal a medical certificate or a WorkCover certificate for 18 May 2002, and, in her response to the Respondent's final submissions, dated 5 June 2006, Ms Stokes stated she did not give a medical certificate for 18 May 2002 because her practitioner was closed on 18 May 2002 until noon and not open the following day, a Sunday. Also, Ms Stokes conceded in the hearing that the time sheet was signed and dated by her on 16 May 2002, and that she was not at work on 17, 18 or 19 May 2002. However, she said that she would not have handed in her time sheet on 16 May 2002 claiming ahead for sick leave on 18 May 2002 because this would not have been allowed. 30 After considering all the evidence, the Tribunal finds that Ms Stokes submitted her time sheet for the period ending 19 May 2002 on the day she signed it, namely, on 16 May 2002, she claimed workers compensation for 18 May 2002, and she did not have a workers' compensation certificate or medical certificate before she claimed pay for 18 May 2002. 31 As to her claim that sick leave should have been paid for 24 and 25 June 2002, the Tribunal notes that Ms Stokes stated in her submission dated 18 May 2006, at paragraph 46, that she 'applied for sick leave on 25 and 26 June and faxed sick leave certificates to Ms Jones office'. However, her time sheet for the relevant period does not support this since it records that she worked and was paid for 24 June 2002, she left blank 25 June 2002, and she worked on 26 June 2002. As well, it was an agreed fact at the hearing that she attended the Board on 25 June 2002. Also, the medical certificate for 25 June 2002 produced to the Tribunal was for Ms Stokes' daughter. The Tribunal notes that carer's leave is leave 'an employee can take to care for a family member who is sick ... This type of leave is paid leave … For personal carers' leave, an employer can require an employee to establish that a family member was sick and needed care. A medical certificate or statutory declaration can do this: website: industrialrelations.nsw.gov.au, NSW Office of Industrial Relations, accessed 1 September 2006. Therefore, Ms Stokes would only have been able to claim carer's leave if she had looked after her daughter on that day. Further, the relevant time sheet indicated that Ms Stokes did not claim any pay, nor put down any hours worked, for 25 June 2002. After considering all the evidence, the Tribunal finds that Ms Stokes did not submit a sick leave or carer claim form for 25 June 2002 when she did not report for her rostered day at work. After considering all the evidence, the Tribunal is satisfied that there were occasions including on 24 and 25 December 2002, 18 May 2002, and 25 June 2002, on which Ms Stokes did not report for work and did not provide Serco with a valid reason for this. The Tribunal finds that Ms Stokes has not established that Serco did not pay her sick leave when it was validly owing to her. 32 Ms Stokes' claimed that her roster was changed after an argument with Ms Jones on 17 June 2002, and as a result, she could not meet her carer duties for her daughter: At the hearing, Mr Colley and Ms Jones said it was necessary to change Ms Stokes' roster originally after her accident on 27 March 2002, because Ms Stokes was required by her doctor to work three days a week instead of the usual four days, and in shifts of six hours instead of the usual 12. Mr Colley said that immediately after her return to work, he had allowed Ms Stokes to select which three days per week she would work out of the four days per week she was rostered on duty according to the permanent roster; Ms Stokes agreed this was the case. Mr Colley said that it became necessary to change her roster again to set days from 30 May 2002 because she would select which days she was going to work from her roster, and then sometimes, though he could not recall the dates, at short notice, she changed the days, and this caused administrative difficulty getting replacement guards at short notice. Mr Colley said he sent an email to Ms Stokes on 24 May 2002, which he copied to Ms Jones, and which Ms Jones said she received on 27 May 2002 when it was forwarded to her from her former workplace. Mr Colley and Ms Jones said it was necessary to change her shifts a third time, on 17 June 2002, to Monday to Friday shifts, because on 3 June 2002, contrary to her roster as emailed on 24 May 2002 by Mr Colley, Ms Stokes did not report for work. Mr Colley and Ms Jones said the move to shifts Monday to Friday was because usually they were at the naval base in the week but not on weekends, and they considered that they should supervise Ms Stokes given her absences and given her injuries. 33 Ms Stokes denied she sought to change her shifts, denied she needed supervision for her injuries, and denied she received the email dated 24 May 2002 until it was handed to her after 3 June 2002. She said in the hearing, 'I never swapped the shifts with anyone. I always get annual leave. If I had to [take time] off I took annual leave'; she added that she had 'never failed any duties since 1999 till the accident occur'. 34 Ms Stokes said she did not turn up for work on 3 June 2002 because she did not receive the roster which Mr Colley said he emailed to her on 24 May 2002. As to the roster change which occurred on 17 June 2002, Ms Stokes said she had been on the same roster since 1999 and she felt that changing her roster without telling her was unfair and they should have given her 24 hours notice as 'is in the law'. She also said that the roster had been changed because of the argument with Ms Jones and both Mr Colley and Ms Jones knew that the new roster would impact on her carer's responsibilities: She said in the hearing that that Mr Colley knew she had a child because she had time off to attend Court and she 'never worked day shift on overtime' because of the 'arrangement for my daughter's, when I drop her to school'. As to Ms Jones, she said 'The problem is Christine Jones is new in the site; Mr Paul Colley is there to answer questions if I have a dependent. As a practicality, she should ask'. 35 The Tribunal notes that Ms Stokes' evidence as to when and what she told Serco of her carer's responsibilities was contradictory. For example, she claimed at the hearing that when she accepted the job, she said to the company that she was accepting because she needed a permanent arrangement because of her responsibilities as a single mother. However, Ms Stokes also conceded at the hearing that she had not listed her daughter on her personnel file at Serco at any time as a dependent with Serco and she considered this was 'personal' information. Also, Ms Stokes' letter dated February 2003 and the letter dated 18 August 2004 written on her behalf by Legal Aid NSW [President's report pp 28-32 and 64-66 respectively] stated that she asked Mr Colley and Ms Jones at the meeting on 17 June 2002 to take into account her carer's responsibilities when formulating a new roster. However, Ms Stokes' evidence in the hearing was clear that she did not mention her carer responsibilities in the meeting on 17 June 2002 because she walked out before any discussion of the proposed roster changes could take place. In the hearing Ms Stokes said that Mr Colley handed her the new roster after the meeting on 17 June 2002 and left without talking with her (which he denied), but she also said that she told Mr Colley when he gave her the roster on 17 June 2002 that the new roster posed difficulty for her taking her child to school. 36 Ms Jones said at the hearing that she did not know Ms Stokes had a child until the issue arose of her needing leave to attend the Family Court because Ms Stokes had not filled in details of her child as a dependent on her Serco personal file, and when asked in June 2002 to update the file with her daughter's details, she refused. Mr Colley said that on 17 June 2002, when he took Ms Stokes the new roster, he asked her to sign the roster on 17 June 2002 but instead, she threw it on the table and said she would look at it later, and so he left to let her calm down. Mr Colley said he knew she was a single parent, but he did not know the nature of her parenting responsibilities. He said he did not know, or ask, the reason for her refusing overtime, especially since she had told him she had a second job. 37 Ms Stokes denied she had a second job. Mr Colley said that when they were working nightshift together, she had said to him her second job entailed her carrying a gun, and he had told her to be 'very, very careful' because she would not be required to carry a gun if the job was safe. The Tribunal notes that on the one hand, Mr Colley did not raise the issue of Ms Stokes having a second job until the hearing, and Ms Stokes denied that she had a second job. On the other hand, Mr Colley's relating of how allegedly he came to know of her second job was detailed, and Ms Stokes did not present any evidence such as taxation returns in reply. After considering all the evidence, the Tribunal cannot be satisfied that Ms Stokes did, or did not, have a second job. However, after considering all the evidence, the Tribunal is satisfied that Ms Stokes did not tell Mr Colley her reasons for refusing overtime, and therefore, he could only speculate the reasons she may have had for this. 38 As to Ms Stokes' claim that she did not work on 3 June 2002 because she did not receive the roster which Mr Colley said he emailed to her on 24 May 2002, the Tribunal notes that the roster required Ms Stokes to work for four days straight on 30 May 2002, and 1-3 June 2002, at a period when Ms Stokes' doctor had said she was only to work three days a week. The Tribunal notes that Ms Stokes tendered a letter dated 26 April 2006 from her doctor [Exhibit A10] stating the said roster did not comply with his restrictions. Mr Colley and Ms Jones said at the hearing that they considered the roster complied with Ms Stokes' medical restrictions since it required her to work three days in one Monday to Sunday 'week' and the fourth day in the next Monday to Sunday 'week'. However, they conceded that in 'hindsight', the said roster could have been seen not to comply with the spirit of the medical restrictions, though this had not been their intention. The Tribunal notes that in Ms Stokes' complaint to the Board she appeared to indicate that she didn't follow the roster given to her by Mr Colley because she was following her doctor's roster for her which stipulated she should work '3 day, 4 day, 2 day', and in her submission dated 18 May 2006, Ms Stokes stated that Mr Colley contacted her at on '03 June 2002 6:60pm… [in respect of] not arriving to my duty. It was instructed by him too me on April to follow my roster that was normally 4 day rotating shift 2 days and 2 nights because it was 3 days only on the WorkCover certificate he told me just remove one of the day of the roster'. As well, Ms Jones gave evidence that she received the said email which had been copied to her by Mr Colley when it was forwarded to her on 27 May 2002 from her previous workplace. After considering all the evidence, including that Ms Jones received the email, the Tribunal is satisfied that Mr Colley emailed a roster to Ms Stokes on 24 May 2002, and Ms Stokes did not follow the roster because it conflicted with what she understood the doctor had told her to do, namely, that she was to work three days, have a break, and then work another three days. 39 As to the meeting held on 17 June 2002, the Tribunal notes that Ms Stokes said at the hearing and in written submissions that the record of this meeting made by Serco [President's report, Exhibit A1] was incorrect. At the hearing, Ms Stokes agreed that some of the things alleged in the record of the meeting to have been said and occurred, were said and did occur, including that Ms Stokes left the meeting on 17 June 2002 upset, without saying anything about the roster changes impacting on her carer duties. Ms Jones and Mr Colley each stated at the hearing that the record of the meeting held on 17 June 2002 was contemporaneous and correct, albeit a summary. After considering all the evidence, including that of all the witnesses at the hearing, the Tribunal is satisfied that the record of meeting on 17 June 2002 is an accurate summary of the matters discussed at that meeting. As a summary, the record is necessarily incomplete and does not cover everything said at the meeting. The Tribunal is satisfied that the following occurred at the meeting: Ms Jones and Mr Colley discussed with Ms Stokes her not complying with roster emailed to her on 24 May 2002. Ms Stokes said there was 'nothing to explain' about why she did not report for work on 3 June 2002. Ms Jones said to Mr Colley that Ms Stokes 'needs to come off the normal shift roster to comply with Workers Compensation, [and] it needs to be set days', and that she and Mr Colley would meet with Ms Stokes to explain the new roster. Ms Stokes did not say at the meeting that a change of shift to all weekday day time shifts would impact negatively on her carer's responsibilities. 40 As to the roster given to Ms Stokes on 17 June 2002, the Tribunal notes that the email dated 17 June 2002 [President's report] as to this roster states 'Your shifts whilst under your current medical restriction will be as follows from week beginning 24.6.06', which indicates that the roster was only intended to replace the permanent roster until Ms Stokes recovered to pre-injury status. 41 After considering all the evidence, the Tribunal finds as follows: The roster was changed by the Respondent on four occasions, in April 2002 on Ms Stokes' return to work, and on 24 May 2002, 17 June 2002 and 3 July 2002. On 24 May 2002 and 17 June 2002, the Respondent gave the Applicant one weeks' notice of the proposed changes and the Applicant did not inform the Respondent in these notice periods that she had any problems with the proposed rosters. In relation to the roster change on 17 June 2002, the Tribunal notes that the roster was a move from the permanent roster arrangement of a mix of day and night shifts over Monday to Sunday, to a roster of day shifts over Monday to Friday. In relation to the roster change on 3 July 2002, the Tribunal is satisfied that Serco's motive for the roster change was to accommodate Ms Stokes' concerns communicated to Serco by the Board that the roster of 17 June 2002 impacted on Ms Stokes' carer's responsibilities. 42 The Tribunal notes that in her response to the Respondent's final submissions, filed on 5 June 2006, the Applicant stated that because of the roster change, her child missed school on 26 June 2002. She said her daughter also would have missed school a second time if she had to work on 27 June 2002, but in fact she was able to attend school on that day because Ms Stokes had to go to court instead of work and so Ms Stokes was able to drop her daughter at school on 27 June 2002. Despite Ms Stokes not providing supporting evidence such as custody orders as to her carer's responsibilities and school records as to her daughter missing school, the Tribunal is satisfied that Ms Stokes had carer responsibilities for her daughter and that because of the roster change made on 17 June 2002, Ms Stokes' daughter missed one day of school. 43 As to the reasons for the first two shift changes, after considering all the evidence, the Tribunal finds as follows: After the car accident, the roster was changed to accommodate Ms Stokes' injuries, and Ms Stokes was given the opportunity to choose which three days she would work. On some occasions, Ms Stokes made changes at short notice in the three days she nominated to work out of her four permanent roster days, and this caused administrative difficulty for Serco. Also, she also did not report for work as rostered on 18 May 2002. On 24 May 2002, Mr Colley emailed to Ms Stokes a new roster commencing 30 May 2002 because it was decided to move Ms Stokes to set days. The reason for this new roster was not enmity between Mr Colley and Ms Stokes, or Ms Jones and Ms Stokes. Nor was a concern that Ms Stokes be supervised to avoid her exacerbating her medical condition a substantial part of the reason for the roster change. Rather, the roster change was to avoid the inconvenience of Ms Stokes changing shifts and not reporting for work on 18 May 2002. Ms Stokes received the email dated 24 May 2002. She was given reasonable notice of the shift change on 24 May 2002. Ms Stokes did not work on 3 June 2002 because the roster required her to work four days straight and she considered this against her doctor's directions. Mr Colley and Ms Jones did not consider at the time that the roster contravened Ms Stokes' doctor's directions. 44 On the evidence before it, the Tribunal is satisfied that the roster was changed on 17 June 2002 because of the administrative difficulty which arose after Ms Stokes' accident of her selecting days to work and then changing these days, compounded by Ms Stokes not reporting for work as rostered on 3 June 2002, and her not being willing to discuss this in the meeting held on 17 June 2002. The roster was changed to a Monday to Friday roster instead of the permanent roster because in the light of the rostering problems, and her not reporting for work on 18 May 2002 and 3 June 2002, Ms Jones and Mr Colley saw a need to supervise Ms Stokes' work attendance and Ms Jones and Mr Colley were at the base then, and were not usually at the base on the weekends. Ms Stokes was given reasonable notice of the changed roster, namely seven days' notice. The roster was emailed to Ms Stokes on 17 June 2002 and she did not indicate to Mr Colley (or to Ms Jones) that the new roster would cause her difficulties in meeting her carer responsibilities until 25 June 2002 when she went to the Board. 45 As to whether Ms Jones and Mr Colley knew the shift change proposed on 17 June 2002 would impact on Ms Stokes' carer responsibility, the Tribunal notes their evidence that they did not know this. The Tribunal also notes that Ms Stokes' evidence was contradictory as to what she told Ms Jones and Mr Colley about her carer's responsibilities, and what happened when she was given the roster on 17 June 2002. Also, it was an agreed fact at the hearing that Ms Stokes was upset and she left the meeting held on 17 June 2002 without discussing the proposed new roster. The Tribunal also considers that Ms Stokes' evidence indicated that Ms Stokes was guarded in giving to Serco what she considered to be personal details, for example she said that she didn't give her daughter's details to Serco because this was 'personal' and she didn't show any of her Court papers to Serco as proof of going to Court on 27 June 2002 because this was 'private'. As well, Ms Stokes' permanent roster required her to work some day shifts which sometimes fell Monday to Friday, and she did not claim that this had previously caused her problems. After considering the evidence, the Tribunal finds as follows: While Mr Colley was aware that Ms Stokes had a child and that she refused some overtime, she did not tell him the reason for her refusing overtime. Neither Mr Colley nor Ms Jones considered on 17 June 2002 that a change of shifts to all day shifts Monday to Friday would be problematic for Ms Stokes because of her carer responsibilities. They changed the shift from 3 July 2002 to accommodate Ms Stokes' concerns after being told on 25 June 2002 by the Board that the day time Monday to Friday shifts were causing Ms Stokes problems in meeting her carer responsibilities. 46 Ms Stokes claimed that Mr Colley instructed her on 7 June 2002 to stop her patrols: As to Mr Colley's instruction by email dated 7 June 2002 that she did not need to do rounds until she had returned to 'pre-injury duties', Ms Stokes said in the hearing that she was 'shocked' when she received the email because she 'loved' to do her rounds, her doctor had not forbidden her to walk or to do rounds as long as she did not have to bend, and there were no steps involved in doing the patrols because she could take lifts up buildings. Ms Stokes said she considered the email to be 'stopping me from doing me duty' and that Serco 'used it' against her later and said she couldn't do her job. However, she agreed on questioning that her employment in 2002 was regulated by the Australian Workplace Agreement (AWA) she signed with the Respondent [Exhibit R6] which stipulated, amongst other matters, that she must perform to the best of her ability and knowledge the duties assigned to her at such places Serco required. 47 Mr Colley said at the hearing that he stopped Ms Stokes doing patrols until she was back to pre-injury duties because he was concerned she may exacerbate her injuries by patrols after he heard her say in a meeting with a WorkCover or rehabilitation person that she was experiencing discomfort when working in a position which included her going down a couple of steps. He said that there were many steps involved in the patrol; besides buildings where the lift was not working, there was a building with no lift where the patrol involved going up 20 or 30 steps to check a door, and the North Gate which involved 30 or more steps or a walk on uneven ground for 300 or 400 metres around the outside. The Tribunal notes that Exhibit R1, which is a site plan of HMAS Waterhen, also indicates steps are involved in walking around the site. The Tribunal notes the evidence of WorkCover 'return to work plans' [Exhibit R3 and R4 and President's report pages 45 to 62] and medical certificates which stated that Ms Stokes' duties were to be restricted to the 'control room' and to the 'control room only' after the accident because of her injuries. Further, the Tribunal notes that the evidence of a page of a log book for 6 November 2002 authored by the Applicant [page 41 President's report] which indicates that on that date, when Ms Stokes was back to doing full duties, that she was also back to doing patrols; it states inter alia, '04:00 Completed round … 4:10 Commenced Internal patrol … 04.35 Round completed'. 48 After considering all the evidence, the Tribunal is satisfied that the Applicant was not able to do patrols or rounds of HMAS Waterhen without any steps being navigated. The Tribunal accepts as genuine the concern of Ms Jones, and of Mr Colley, that Ms Stokes' injuries not be exacerbated and notes that Serco had a commercial interest in her returning to her full hours and full duties as soon as possible, and at law, they had a duty of care towards Ms Stokes not to exacerbate Ms Stokes' injuries, including WorkCover legal obligations: Workplace Injury Management and Workers Compensation Act 1998 Section 46 (2) states 'The employer must comply with obligations imposed on the employer by or under an injury management plan for an injured worker'. Further, the Tribunal accepts as credible Mr Colley's evidence that he directed Ms Stokes on 7 June 2002 to stop doing rounds until she had returned to her 'full pre-injury duties' because Serco wanted to comply with WorkCover restrictions and Dr Torrevillas' certificates, and not because of reasons such as antipathy towards Ms Stokes or to terminate her services more easily. The Tribunal also is satisfied that when she regained full pre injury duties, she was allowed to do patrols again. The Tribunal notes that the AIRC [Exhibit R5] also found that the evidence before it established that Ms Stokes was not taken off her patrol duties so as to terminate her employment more easily, but rather to comply with Dr Torrevillas' restriction of duties. 49 Ms Stokes' claim that she was refused entry to her work base on 2 July 2002: The Tribunal prefers the evidence at the hearing of Ms Jones to that of Ms Stokes on this point and finds that Ms Stokes was not refused entry on 2 July 2002, but rather, she was asked to wait a few minutes at the gate before entry while Mr Colley came to view her current Worker Cover certificate because she, Ms Jones, had realised that Serco did not have a current form. Further, the Tribunal notes that this claim is outside the ambit of the claim referred to it by the President. 50 Ms Stokes claimed that the rotation she was ordered to do in September 2002 was discriminatory and the Respondent had the discretion not to order her to rotate. The Tribunal notes that it has no jurisdiction to determine this claim since it is outside the period of the complaint. Nevertheless, the allegation is background and relevant to credibility. 51 Ms Stokes claimed that she was disadvantaged when in September 2002 she was required to rotate. Ms Stokes said at the hearing that the company wanted her to rotate 'to the gangway, north gate and top compound and that's the doctor restricting me not to do it', and that other guards, Mr Hintze and Ms McKay, had been excused doing rounds even though there was 'nothing wrong' with them. 52 Mr Colley and Ms Jones gave evidence at the hearing that in September 2002, the navy noted to Serco that guards had been found asleep on night duty, and requested that Serco rotate guards between different locations at HMAS Waterhen. Ms Jones referred to a document [Exhibit R9] which she said was an extract for 16 September 2002 from her then diary (which diary was subsequently produced to the Tribunal). The entry stated, 'Meeting. Marley – Bob – Mick – Paul. Ref [?] guards asleep on duty during night shift – asked could we rotate guards. During after hours & w/ends & public holidays – between gangway, control room & front waterfront.' Mr Colley said that though he could remember the request from the navy to rotate, he couldn't specifically remember being at the meeting as described in Ms Jones' diary because a lot of things had happened to him since then. Ms Jones and Mr Colley said that after September 2002, Mr Hintze and Ms McKay did rotations after hours, on weekends, and on public holidays, though Ms McKay was excused from patrols to the north gate because she suffered from vertigo. 53 Ms Stokes stated that they were not telling the truth because she knew that the navy had not directed Serco to introduce mandatory rotation. She said that Mr Marley had told her that the rotation which occurred in September 2002 was not at the request of the navy, but rather was at the request of Serco. Mr Marley was a naval officer at HMAS Waterhen who Ms Jones said was present at the meeting held in September 2002 to discuss rotation of guards. However, the Tribunal notes that this evidence is not Ms Stokes' direct observation but rather, is what another person has told her happened at a meeting at which Ms Stokes was not present. 54 As well, Ms Stokes submitted in her final submissions dated 18 May 2006 at paragraph 18 that Mr Marley's comments to her about rotation not being at the request of the navy 'is in line with the Diary Entry of Ms Christine Jones where it states "asked could we rotate guards during nights and w/ends"'. However, the Tribunal considers that Ms Jones' notation of the alleged request is at most ambiguous in that it refers to a request for rotation and does not specify whether this request was made by the navy or Serco. 55 After considering the evidence, the Tribunal prefers the evidence of Ms Jones to that of Ms Stokes as to the rotation issue, and is satisfied that the formal requirement for rotation to occur commenced after September 2002 because the navy requested this to occur. As to the duties of Mr Hintze and Ms McKay outside the security cell room, the Tribunal prefers the evidence of Ms Jones and Mr Colley to that of Ms Stokes, and finds that after September 2002, Mr Hintze and Ms McKay were required to rotate after hours, on weekends and public holidays, albeit that Ms McKay was excused from rotating to north gate because she suffered vertigo. 56 In summary, the Tribunal has found above that Ms Stokes has not established that after her car accident, Mr Colley offered her a lump sum termination pay. Nor has she established that she was refused sick leave for some days, nor that she applied for and was refused paid annual leave (or other paid leave) for Family Court attendances on 7 January 2002 and 27 June 2002. The Tribunal finds that she has established that on 7 June 2002, she was restricted from doing her patrols and that on 17 June 2002, her roster was changed for about two weeks so that on one occasion she could not take her daughter to school. Findings as to Unlawful Discrimination 57 Ms Stokes has established that on 7 June 2002, she was restricted from doing her patrols and that on 17 June 2002, her roster was changed for about two weeks so that on one occasion she could not take her daughter to school. 58 It was accepted between the parties, and the Tribunal is satisfied, that Ms Stokes' injuries after the car accident constituted a 'disability' within the Anti-Discrimination Act 1977 Section 4 and 49A, and that Serco knew about her injuries as an ongoing medical condition. Also, the Tribunal is satisfied that Ms Stokes established that she was her daughter's carer and she had carer's responsibilities within the meaning of the Act Section 49S. Limit on Patrols 59 The Tribunal accepts that Ms Stokes felt she was disadvantaged by being taken off patrols. The Tribunal also accepts that Ms Stokes felt that the roster changes were made because of her conflict with Ms Jones and Mr Colley. However, the Tribunal must assess the alleged acts objectively. 60 To establish that the restriction from doing patrols until she was fit for pre-injury duties amounted to unlawful discrimination, Ms Stokes needs to establish that Serco treated her less favourably than in the same circumstances, or in circumstances which are not materially different, Serco treated or would have treated, a person who did not have her disability, even if it did so only in part because of Ms Stokes' disability. 61 Alternatively, Ms Stokes has to establish that Serco required her to comply with a requirement or condition with which a substantially higher proportion of persons who do not have her disability, were able to comply, being a requirement which was not reasonable having regard to the circumstances of the case and with which she did not or was not able to comply. 62 In determining if Serco unlawfully directly discriminated against her by stopping her patrolling until she regained pre injury duties, it was necessary for Ms Stokes to identify a comparator without her disability. Ms Stokes identified Mr Hintze and Ms McKay as comparators. Ms Stokes said that Serco had excused Mr Hintze and Ms McKay from doing patrols and there was nothing wrong with them. However, she also said that Mr Hintze was elderly and Ms McKay had vertigo. The evidence from the Respondent was that neither Mr Hintze nor Ms McKay were excused from rotation after September 2002 when this became part of the job, albeit Ms McKay was excused from doing patrols to the north gate because her disability, vertigo, made it difficult for her to go to the north gate. The Tribunal finds that Ms Stokes has not clearly identified a comparator. Therefore, the Tribunal must determine the ground for which she was stopped from patrolling: Dutt v Central Coast Area Health Service [2002] NSWADT 133. 63 The Tribunal notes that on 7 June 2002 when Ms Stokes was told to stop patrols until she was fit for pre injury duties, Ms Stokes had suffered injuries in a car accident, and her WorkCover and medical certificates directed that Ms Stokes' duties at Serco were to be restricted to the 'control room', and subsequent to 7 June 2002, her return to work plans restricted her to 'control room only' duties. Also, Mr Colley heard her say that she was experiencing pain in navigating steps, and the Tribunal has accepted that it was not possible to do patrols without navigating steps on the HMAS Waterhen site. After considering the evidence, the Tribunal is satisfied that the ground for which Serco stopped Ms Stokes from doing patrols until she was fit for pre injury duties was to accommodate Ms Stokes' medical needs and to facilitate her recovery after her injury. The Tribunal is not satisfied that the requirement to stop patrols until she regained her pre-injury fitness caused Ms Stokes any detriment. The Tribunal is also not satisfied that in stopping Ms Stokes from doing patrols until she was fit for pre injury duties, Serco treated her less favourably than it would have treated other security guards in the same circumstances, or in circumstances not materially different. 64 Further, the Tribunal is satisfied that the requirement did not amount to indirect unlawful discrimination since Ms Stokes could comply with this requirement not to do patrols until she regained pre-injury duties, and the requirement was not a requirement that more people who were not disabled, as opposed to disabled people, could comply with. As well, the Tribunal finds that the requirement was reasonable having regard to the circumstances of the case, including her injury, and the WorkCover certificates and the return to work plans. 65 The Tribunal is satisfied that requirement for Ms Stokes to stop her patrols until she regained pre injury duties was not unlawful discrimination on the ground of disability within the Anti-Discrimination Act 1977 Sections 49B and/or 49D. Roster Changes 66 As to the Applicant's roster changes when she returned to work after her injury to accommodate her injuries, the Tribunal notes that the Applicant did not claim the roster change of shorter hours and less days which occurred when she returned to work in April 2002 was unlawful discrimination, and the Tribunal finds this roster change were not unlawful discrimination. 67 As to the roster change on 24 May 2002, the Tribunal notes that Ms Stokes did not claim this was discrimination on the ground of carer's duties, but rather, on the ground of disability. Ms Stokes stated that the roster was unlawful discrimination because it required her to work four days in a row in a period when her doctor had directed that she only work three days a week, and her doctor stated [Exhibit A10] that the roster did not comply with his direction for her to work only 'three days a week'. Ms Jones and Mr Colley stated at the hearing that the roster technically complied with the doctor's directions since the Serco permanent roster week ran from Monday to Sunday, and though the roster given to Ms Stokes on 24 May 2002 required Ms Stokes to work Friday, Saturday, Sunday and Monday in a row, the first three days fell in the first week of the roster and the Monday fell in the second week of the roster. The Tribunal accepts as credible the evidence of Ms Jones and Mr Colley that it was not intended by Serco to breach Ms Stokes' doctor's directives. 68 Nevertheless, it is not necessary to show an intention to discriminate: see, for example, the joint judgment of Mason C J and Gaudron J in Waters & Ors v Public transport Corporation (1991) EOC 92-390. Further, the Tribunal finds that scheduling four days in a row when the medical certificate states the person is only to work three days a week, could amount to unlawful discrimination on the ground of disability. 69 However, in this case, Ms Stokes chose not to work the shift on the fourth day in a row. Therefore, the Tribunal finds that even if the roster given to her on 24 May 2002 amounted to unlawful discrimination, Ms Stokes has not established that she suffered any detriment from the roster given to her on 24 May 2002. 70 In respect of the roster change on 17 June 2002, the Tribunal finds that this could amount to unlawful discrimination on the ground of carer's responsibilities if done for the reason of Ms Stokes' carer responsibilities. 71 After considering all the evidence, the Tribunal accepts that when Serco gave her the new roster on 17 June 2002, compliance with the roster amounted to a requirement of her employment. The Tribunal also finds that Ms Stokes has established that she was not able to comply with the requirements of the new roster because of her carer responsibilities. 72 The Tribunal notes that detriment suffered by the complainant must be objectively real and not trivial: Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 at paragraph 50. The only damage Ms Stokes claimed that she suffered from the roster change on 17 June 2002 was that in few days that the roster of 17 June 2002 was in place, she was unable to take her child to school on one occasion. The Tribunal is satisfied that she could have avoided this difficulty if she has discussed the matter with Ms Jones or Mr Colley and told them the new roster caused her problems in taking her child to school. Instead she did not discuss this with them, but rather, Serco became aware of the problem only when the Board rang Ms Jones on 25 June 2002. The roster was in place only a matter of days. However, the Tribunal has determined the matter on the basis that Ms Stokes suffered a detriment from the change of roster. 73 To establish that the roster change on 17 June 2002 amounted to unlawful discrimination, Ms Stokes needs to establish that Serco treated her less favourably than in the same circumstances, or in circumstances which are not materially different, Serco treated or would have treated, a person who did not have her carer's responsibilities, even if it did so only in part because of Ms Stokes' carer's responsibilities. 74 Alternatively, Ms Stokes has to establish that by requiring her to work the new roster given to her on 17 June 2002, Serco required her to comply with a requirement or condition with which a substantially higher proportion of persons who do not have her carer's responsibilities, were able to comply, being a requirement which was not reasonable having regard to the circumstances of the case and with which she did not or was not able to comply. 75 The Tribunal notes that Ms Stokes did not establish any comparator for the claim of carer's responsibilities. Therefore, the Tribunal must determine the ground for the roster change on 17 June 2002: Dutt v Central Coast Area Health Service [2002] NSWADT 133. The Tribunal finds that Mr Colley and Ms Jones did not know the nature of Ms Stokes' carer's duties and notes that when the Board apprised them of this, the roster was changed within a few days to accommodate Ms Stokes' carer responsibilities. The Tribunal also notes that after her accident, Ms Stokes changed at short notice some shifts she had previously elected to work, she did not report for work on 18 May 2002 and 3 June 2002, and when the issue of a shift change arose, first at the meeting on 17 June 2002, and later that day when she was handed the roster by Mr Colley, she refused to discuss the new roster. Further, the Tribunal is satisfied that Serco took appropriate steps to take account of Ms Stokes' carer responsibilities once they were apprised by the Board that the roster of 17 June 2002 had led to her having difficulties taking her child to school. Having considered all the evidence, the Tribunal is satisfied that the ground for changing the roster on 17 June 2002 was not because Ms Stokes was a carer, but rather, because Serco management, Mr Colley and Ms Jones, wanted to supervise her attendance at work because Ms Stokes had been changing shifts after her injury, and she did not report to work on 18 May 2002 and 3 June 2002, and refused to discuss Serco's concerns at her conduct. The Tribunal finds that Ms Stokes has not established that Serco, in requiring her to work the roster of 17 June 2002, treated her less favourably than in the same circumstances, or in circumstances which are not materially different, Serco treated or would have treated, a person who did not have her carer's responsibilities. 76 Ms Stokes did not give any evidence as to the issue of whether a substantially higher proportion of persons without carer responsibilities for school age children could have complied with the 17 June 2002 roster. The Tribunal notes that in Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294, at paragraph 89, the Tribunal took judicial notice that 'a substantially higher proportion of persons without responsibilities for infant children can or do comply with the requirement to work full time'. The Tribunal has considered whether judicial notice could be taken that a substantially higher proportion of people working full time on a permanent roster of day and night shifts Monday to Sunday without carer responsibilities for a school age child can or do comply with changes to a roster which require them to do all day shifts on weekdays than can people with carer responsibilities for a school age child. However, the Tribunal notes the wide variety of obligations which people without carer responsibilities for school age children may have, including second jobs, study, and aged parents. The Tribunal finds that in the absence of statistical data, it is unable to draw the conclusion that a substantially higher proportion of people without carer responsibilities for a school age child would have found it easier to comply with these changes from a permanent roster of day and night shifts Monday to Sunday to a roster of all day shifts on weekdays. After considering the evidence, the Tribunal finds that Ms Stokes has not established that by changing her roster on 17 June 2002, Serco required her to comply with a requirement or condition with which a substantially higher proportion of persons who did not have her carer responsibilities would have been able to comply. 77 As to whether the requirement for Ms Stokes to comply with the shift of 17 June 2002 was reasonable, the Tribunal notes that Mr Colley and Ms Jones gave evidence at the hearing that Ms Stokes' roster was changed on 17 June 2002 because of the administrative difficulties caused by her not complying with her previous rosters. Mr Colley said that before the accident, Ms Stokes had asked for shift swaps at short notice, but the Tribunal notes first, that despite this allegation, no action was taken to change Ms Stokes' shifts until after the accident. Secondly, the Tribunal notes Mr Colley's evidence that shifts swaps were requested by all guards and were common and that it was a matter to be approved by him whether these requests were granted or not, and thus, if a shift swap was going to cause problems, Mr Colley could refuse to approve same and avoid any administrative problem. The Tribunal finds that if the only reason for the new shift roster on 17 June 2002 was Ms Stokes' requests for shifts swaps, the new 17 June 2002 roster could be seen to be an unreasonable requirement. However, Mr Colley and Ms Jones gave evidence that after her accident, Ms Stokes did not simply ask, like all the guards, to swap shifts. Rather, after the accident, she selected her three days out of four to work, and then changed them at short notice. Also, she took rostered days off without satisfactory explanation on 18 May 2002 and 3 June 2002, and on 17 June 2002, she left a meeting called to discuss her absence on 3 June 2002 and refused to discuss the proposal to change her roster. After considering the evidence, the Tribunal finds that Ms Stokes has not established that the roster of 17 June 2002 was not reasonable having regard to these circumstances. 78 The Tribunal is satisfied that requirement for Ms Stokes to work on a new roster from 17 June 2002 was not unlawful discrimination on the ground of carer responsibilities within the Anti-Discrimination Act 1977 Sections 49T and/or 49V. ORDER 79 The Tribunal makes the following Order: That the Applicant's application is dismissed 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.