McDonald v Central Coast Community Legal Centre [2008] NSWADT 96

CITATION: McDonald v Central Coast Community Legal Centre [2008] NSWADT 96

DIVISION: Equal Opportunity Division

APPLICANT David McDonald PARTIES: RESPONDENT Central Coast Community Legal Centre

FILE NUMBER: 071057

HEARING DATES: 20 December 2007

SUBMISSIONS CLOSED: 20 December 2007

DATE OF DECISION: 28 March 2008

BEFORE: Needham J SC - Deputy President

CATCHWORDS: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

Electricity Commission of Victoria v Rabel [1998] 1 VR 102 CASES CITED: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Purvis v New South Wales (2003) 217 CLR 92

APPLICANT In person REPRESENTATION: RESPONDENT M O'Callaghan, solicitor

ORDERS: 1. That part of the matter as it relates to discrimination on the ground of sex is dismissed 2. Balance of the matter (discrimination on the ground of disability) is to be referred to the Registry for a hearing date to be fixed.

REASONS FOR DECISION 1 The respondent, Central Coast Community Legal Centre, seeks orders that the applicant's complaint be dismissed as being frivolous, vexatious, misconceived or lacking in substance pursuant to section 102 of the Anti-Discrimination Act 1977 ("the Act"). That section provides: "The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b)." Section 92(1)(a) and (b) of that Act provide, relevantly: 1. If at any stage of the President's investigation of a complaint: "(a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations … (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint …" 2 Mr McDonald, the applicant, complains that he suffered discriminatory conduct in the workplace between April 2005 and 8 June 2006. Only those complaints, which occurred during the 12 months prior to 8 June 2006, were accepted by the President of the Anti-Discrimination Board ("ADB"). He claims that various staff members of the respondent discriminated against him on the grounds of disability (see below for more details). He also claims that he was discriminated against on the grounds of his sex; however, while the hearing on the dismissal application focused almost wholly on the question of disability, I did not understand the applicant to abandon his claim of sex discrimination. 3 While the respondent to the proceedings is the applicant for dismissal, I will refer to the parties by reference to their roles in the proceedings; therefore Mr McDonald will be referred to as "the applicant" and the Central Coast Community Legal Centre as "the respondent". The Complaint 4 Exhibit D-3 at the dismissal hearing was the President's Summary of Complaint and the ADB. In the documents which were before the ADB, the complainant says that (in very brief summary): (a) he was excluded from work and asked to work at home because of his disabilities, which include depression, anxiety, fibro myalgia and back pain; (b) various staff members criticised and ridiculed him because of his disabilities; (c) he was subjected to belittling conduct and "jokes" in the workplace because he was male; and (d) the conduct of his employer and co-workers culminated in him being required to attend a medical appointment under false pretences which medical report caused the respondent to dismiss him from employment. 5 The relevant sections of the Act which the applicant claims were breached are sub-section 25 (in relation to sex discrimination) and 49D, which provides: "49D Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of 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. …" 6 Section 25 is in relevantly similar terms in relation to discrimination on the grounds of sex. Also relevant are sub-sections 23, 24, 49A, 49B, and 49C. 7 No further evidence apart from the ADB report was filed by the applicant except for: (a) a letter/report from Dr Hyland (a GP) dated 22 August 2007; and (b) a letter dated 3 September 2007 entitled "Amended Claim for Redress/ Compensation from Wyong/Gosford Community Legal Services". 8 In the "Amended Claim for Redress" letter, the applicant seeks a total of $40,000 compensation. 9 The applicant's complaint which is found in the ADB report, and in his submissions both oral and written at the hearing, names various staff of the respondent, and notes the conduct which is alleged to be discriminatory as including (again, in brief summary) as being: (a) sabotaging his work, including the disappearance of documents and emails; (b) referring derogatorily to the applicant having a psychiatric condition; (c) failing to teach him required skills or to do so adequately, and mocked him for not having those skills; (d) requiring him to undertake security procedures which did not apply to other employees (that is, use a photocopying code); (e) belittling his pain management behaviour (that is, walking about the office to relieve his back pain); (f) requiring him to have a medical appointment, which resulted in his being "labelled" as psychiatrically unsound and eventually his employment being terminated. 10 At the dismissal hearing, the applicant dealt with all of the above issues but centred on the referral to the medical practitioner. The letter to the applicant which asked him to attend the medical report read, relevantly, as follows: "I write on behalf of the Management Committee of [the respondent] in relation to a written complaint received by me in relation to your work practices. While ordinarily, a complaint would initially be dealt with by the service co-ordinator and referred to the Management Committee only if it couldn't be resolved. The complainants, two staff members with the service, have in this instance written directly to the Management Committee asking that we intervene. From the outset David, we are at pains to point out that the Management Committee has not formed any views in relation to the complaint or the allegations, which have been made. While certainly, the allegations are serious, the Management Committee is committed to engaging in an open and fair investigation of them before making any findings. Medical certificates provided to [the respondent] by yourself have indicated that you are experiencing some difficulties in the workplace. The Management Committee, are mindful of this, and prior to engaging in grievance and dispute resolutions which may exacerbate the existing problem, I kindly request that you attend an independent Medical Examination to provide information to us regarding the likelihood of your ability to engage in this process. (and there followed details of the doctor chosen by the respondent and of the time and place of the appointment). 11 The applicant attended the appointment with Dr Sagar. On 3 August 2005 Ms Spicer, for the respondent, wrote to him referring to the medical examination and said: "… Dr Sagar has made a preliminary conclusion that you are currently unfit to perform your duties. It is Dr Saga's opinion that you are unfit for work for a period of at least 4-6 weeks. … As you are aware, Dr Sagar has recommended that you return to your GP and request a referral to a hospital mental health unit for a full assessment. …" Ms Spicer noted that the applicant had various options as to financial arrangements during his time off work. 12 The applicant did not return to work after 29 July 2005 and provided medical certificates noting that he was suffering from "anxiety/depression". In early March 2005 the applicant's WorkCover claim was denied by the respondent's insurer on the basis that the applicant was suffering from a pre-existing condition, which did not arise out of his employment with the respondent (see D-3 p143). Subsequently, the respondent wrote to the applicant requesting when he would return to work, and was told by the applicant that he would return to work when he was well but neither the applicant nor his doctor knew when that might be. On 3 May 2006 Ms Spicer wrote to the respondent noting the above and informing the applicant that given the above, "... [i]t is with regret that I write to advise that the Management Committee can no longer keep your position open and is terminating your employment with [the respondent] as from the date of this letter." 13 The applicant replied on 23 May 2006 and noted a number of statements in Ms Spicer's letter as inaccurate or not wholly accurate. In this letter he raised issues of harassment and difficulties with other staff members. 14 The parties differ on whether the applicant's health issues were made known to the employer at the time of employment; the applicant says they were and that his duties were arranged so as to accommodate his physical limitations; the respondent says that he disclosed merely "asthma" at the time and that the other issues became evident later. 15 The applicant says that he was required to work at home and to stay away from staff members. He says that this made his employment untenable. He criticises Dr Sagar for being "unethical and incompetent". However, his main criticism is of his erstwhile employers, in that he says they presented the requirement for a medical examination as a governance matter when really it was a disciplinary matter. He said that he regards the referral not as discriminatory in itself, but the fact that the doctor had allegedly been told that "the organisation and staff thought I was bipolar and dangerous and staff feared for their safety". Respondent's submissions - grounds for dismissal 16 The respondent claims that as the applicant is in breach of the Directions dated 18 July 2007 by Judicial Member Grotte that he was to provide his own statement, those of witnesses, and any supporting documents held by him, as well as a "statement and evidence of loss and damage, if any" by 30 August 2007. It is common ground that the only document, which emerged in response to the Directions, was the "Amended Claim for Redress" letter set out in paragraph 7(b) above. The respondent also notes that Practice Note 19 requires provision of evidence. 17 On the basis of no further evidence being provided, the respondent submits that there is no basis for the claim and it should be dismissed, in particular as lacking in substance. 18 The respondent deals with the issue of the medical appointment by saying (in its submissions through the solicitor) that the respondent "was concerned about whether the applicant was fit enough to deal with possible disciplinary proceedings given the serious nature of the complaints against him. To that end the respondent sought advice and then requested the medical appointment of the applicant". 19 As a further matter, the respondent says that the applicant has failed to bring evidence of a comparator; that is, a person against whom the treatment of the applicant may be compared. Section 49B(1)(a) of the Act requires the applicant's treatment to be compared with that to which to an actual or hypothetical patron who was, or would be, in the same, or not materially different circumstances, be treated. 20 The respondent says that the complaint is one, which should be dismissed, essentially due to a lack of substance. Consideration 21 The cases are clear that the power to dismiss a complaint at a preliminary stage should only be exercised in clearly warranted circumstances, particularly before the applicant has had the chance to adduce evidence at a substantive hearing; see Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36]. 22 The power given to the Tribunal may only be exercised where the Tribunal is satisfied to an appropriate degree that the proceedings are vexatious, frivolous, misconceived or lacking in substance. "Lacking in substance" means "an untenable proposition of law or fact" - see State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J. 23 In order to have this complaint dismissed for lack of substance, the respondent would have to show that the evidence failed in at least one of the following steps: (a) that the alleged conduct falls within a ground of discrimination within sub-section 25(1) or 49D(1); (b) that the respondent treated him less favourably than it would have treated another employee, real or hypothetical, who was either not male, or did not have his disabilities; and (c) that one of the reasons for that treatment was his sex or his disabilities. Is the conduct able to constitute a breach of the relevant sections? 24 The applicant in this case points to a number of areas of conduct by various staff members of the respondent. While he has not put on specific evidence of those, there are very bulky statements in the ADB report which deal set out the complained-of conduct (albeit in a rather discursive and scattered way, particularly given the fact that only conduct after 8 June 2005 can be considered by any Tribunal which may hear this matter as that was the only portion of the complaint accepted by the President of the ADB). 25 It seems to me that the kind of conduct alleged (as briefly summarised in paragraph 9 above) could, as a matter of law, constitute discriminatory conduct on the ground of disability within the meaning of the relevant section. The conduct alleged resulted in termination of the applicant's employment. While there are cogent arguments to support the respondent's contentions, when the applicant's case is taken at its highest, the applicant has made allegations which, if proven at the hearing and if not adequately dealt with by the respondent, would enable a Tribunal to find that he had been unlawfully discriminated against on the grounds of disability. 26 As to the allegation of unlawful discrimination on the ground of sex, the applicant is on much weaker ground. His evidence in the ADB report deals almost solely with disability issues and only in passing with comments on the ground of sex. He does not attribute many of the statements to specific persons or link those statements to his treatment. The statements themselves are particularised only in the briefest detail, given without any context, and are not made in situations which have any link with his eventual dismissal. As can be seen from that part of his submission to the ADB which is entitled "Events within ADB Regulated 12 Months period" (see Exhibit D-3, page 84 ff), the only sex-related issues raised by him are: (a) "harassing and derogatory comments couched in "amusing terms" made directly to me (in respect of my gender)" (page 85) (b) comments such as "men, what's the point" or "what use are they?" from two employees, one of whom was a solicitor employed by the respondent and the other an Administration Assistant) (page 87). The applicant does not further particularise the comments in any detail, and does not link the comments to his eventual dismissal. The evidence of sex discrimination is, in my view, very thin. "Treated less favourably" 27 As for the lack of a comparator, it is true that there is no evidence of an appropriate actual co-employee. It would, at any hearing, be therefore necessary to employ a hypothetical comparator. While the lack of an comparator, specifically pointed to in the evidence, makes the task of the person determining the application more difficult, it is not a reason to dismiss this complaint. There are a number of persons working in the office who are neither suffering from a disability nor are male, and at the hearing the applicant may wish to cross-examine them or otherwise use their circumstances as a comparative circumstance for the purposes of section 49B. 28 It seems to me that the current expressed lack of a comparator is a matter, which may be cured by resort to inference at the hearing, if the evidence proceeds in a certain way. While this lack of particularity of the applicant's case was a frustration for the respondent, it is something, which is common in proceedings where the applicant is self-represented. He is now, of course, on notice of the need for a comparator and should he be unable to point to the requisite level of proof at any hearing, submissions may be made to that effect by the respondent at that time. 29 In relation to the sex discrimination, the applicant does not link the conduct alleged in relation to the sex discrimination complaints to his treatment, and indeed he deals with those issues in a manner more akin to background to the disability complaints. There is no factual link - actual or inferred - to link the alleged less favourable treatment to the matters set out in paragraph 26 above. Reasons for the treatment 30 The majority in of the High Court in Purvis v New South Wales (2003) 217 CLR 92 said that in respect of causation the 'central question will always be' (at page 163): [w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. McHugh and Kirby JJ put the question to be asked in this way (at pages 142, 143): [w]hile it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind. 31 The respondent has not shown, in a way, which makes the applicant's case untenable or lacking in substance, that the treatment was "because of" his disabilities. The respondent through its solicitor raised a number of alternative explanations, and disputed a number of issues of fact raised by the applicant (as set out in the summary of the respondent's submissions above), but no "magic bullet" emerged which made the applicant's case untenable. 32 As for the sex discrimination allegations, as noted above there is no link between the conduct alleged so far as it constitutes an alleged breach of section 25(1), and the "less favourable treatment" he received. Conclusion 33 It appears to me that the applicant has made out the existence of the jurisdictional requirements for a finding of unlawful discrimination on the grounds of disability. It remains to be seen whether, at the hearing of this matter, the evidence of the applicant will be sufficient to link the relevant requirements together and to demonstrate by use of a comparator that he suffered a detriment in the manner required. 34 However, it does not appear that he has done so in relation to the complaint of sex discrimination. 35 Accordingly, I dismiss the application so far as it relates to the disability complaints, and uphold it so far as it relates to the sex discrimination complaint. ORDERS 1. That part of the complaint as it relates to discrimination on the grounds of sex is dismissed 2. As to the balance of the complaint, the parties should approach the Registry for a date for a hearing of the matter.