Equal Opportunity Tribunal of New South Wales CITATION: Khoury -V- A.C & E Pty Limited [1998] NSWEOT COMPLAINANT: Robert Khoury RESPONDENT: A.C & E Pty Limited NUMBER: 128 of 1996 Mr P Goode ( Judicial Member ) TRIBUNAL: Ms D Toltz Mr W Bowtell GROUNDS OF COMPLAINT: Physical Impairment DATES OF HEARING: 01/20/1997; 01/21/1997 DATE OF JUDGMENT: 04/09/1998 Complainant: Ms S Winters (Counsel) LEGAL REPRESENTATIVES: Respondent: Ms K Tahka M Sweeney (Senior Counsel) JUDGMENT IN FAVOUR OF: Complainant The Complainant, Mr Khoury, has a hearing impairment which he regards as "slight" or "minor". He is a qualified Mechanical Engineer and an Australian national of Lebanese racial origin. He commenced employment with the Respondent, A C & E Pty Limited, on 7 September 1992 as an Internal Salesperson. He alleges that he was dismissed on the ground of his hearing impairment on 19 March 1993 by Mr Hua, the Respondent's Sales and Marketing Manager at the relevant time, but that after making a plea to Mr Adams, the Respondent's Managing Director, to retain his services, his dismissal was revoked and he was transferred to the Respondent's Quality Assurance/Engineering Department ("the Engineering Department") on the same salary but in a different capacity. The Respondent maintains that this position was specifically created for the Complainant on a temporary basis only to afford him an opportunity to find alternative employment. The Complainant was subsequently dismissed on 8 December 1993. He complained to the Anti-Discrimination Board ("the Board") on 28 January 1994. The Complainant's Case Importantly, the Complainant does not allege that the Respondent engaged in unlawful conduct by terminating his services on 8 December 1993. Rather, it is his case that the unlawful act of discrimination occurred on 19 March 1993 when he was dismissed from his permanent position as an Internal Salesperson ("the dismissal"). Put simply, Ms Winters, counsel for the Complainant, submits that the Complainant's temporary employment in the Engineering Department simply forestalled the effect of the detriment he was subjected to on 19 March 1993. We understand the Complainant to be alleging that the Respondent unlawfully discriminated against him on the ground of his physical impairment or, in the alternative, on the ground of a characteristic that appertains generally to persons having the same physical impairment as the Complainant, namely a characteristic to be rude and/or aloof. It is alleged that the unlawful dismissal contravenes s.49B(2) of the Anti-Discrimination Act, 1977 ("the Act"). The Respondent's Case The Respondent denies that the Complainant is a physically handicapped person as defined in the Act. It also denies the allegations and that its conduct falls within s.49B(2). More specifically, it denies that Mr Hua's decision to dismiss the Complainant caused the Complainant any economic or non-economic loss or damage. Inquiry under s.49B(2) It seems clear that the inquiry under s.49B(2) of the Act is directed to the ground of the alleged differential treatment afforded to the Complainant. In this regard, even if the Respondent had no motive or intention to discriminate, its conduct may still be characterized as discriminatory within the meaning of s.49B(2). This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority : see, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation op. cit. at EOC p. 78, 674 and the judgment of Clarke JA in Waterhouse v Bell (1991) EOC 92-376 at pp. 78, 589-78, 590. Further, provided that an operative ground of the differential treatment is one of those mentioned in s.49A(1) or s.49A(3), it does not matter that there may have been an additional ground which falls outside s.49A : see Waterhouse v Bell , supra, per Clarke JA at EOC pp. 78, 588-78, 589 and Holdaway v Qantas Airways Limited (1992) EOC 92-395 at pp. 78, 809-78, 810. Thus, in relation to the Complainant's claim that the Respondent unlawfully discriminated against him by dismissing him from his position as an Internal Salesperson, provided the Complainant can establish that his hearing impairment was an operative ground of the dismissal, he is still entitled to succeed even though there may have been additional reasons for the dismissal which do not contravene the Act. At the relevant time, the amendment to the Act in the form of s.4A, was not applicable since it did not come into effect until 8 August 1994. This section clearly spells out the meaning to be ascribed to the phrase "on the ground of" by stating that if an act is done for 2 or more reasons and one of the reasons consists of unlawful discrimination against a person, whether or not it is the dominant or a substantial reason for doing the act, then the act is taken to be done for that reason. Prior to the amendment being passed, this Tribunal (differently constituted) appears to have consistently interpreted the phrase "on the ground of" as requiring a complainant to prove that the prohibited reason was a significant reason for the less favorable treatment. For example, when considering the phrase "on the ground of", in relation to unlawful sex discrimination, Mathews DCJ (as she then was) in O'Callaghan v Loder (1984) EOC 92-022 used the phrases, "a substantially contributing factor", "a significant factor" and a "causally operative effect", almost interchangeably. See also Metwally v University of Wollongong (1984) EOC 92-030 at p75, 559 and Reddrop v Boehringer Ingelheim Pty Ltd (1984) EOC 92-031 at p75, 569. In Waterhouse v Bell (1991) 25 NSWLR 99; (1991) EOC 92-376, Clarke JA preferred the phrase "an operative ground" and said (at NSWLR p106, EOC pp. 78, 588-78, 589) : "In the event, however, that the Tribunal decides that there are two grounds for the action or decision, one which does and one which does not fall within [the prohibition] then, as it seems to me, a case of discrimination on the ground of marital status will have been made out. That is because less favourable treatment was accorded on the ground, amongst others, of, for example, marital status. The fact that there was another ground for the discriminatory action, is in this context, of no importance". See also Director General of Education v Breen (1984) EOC 92-015 and Bhattacharya v Department of Public Works (1984) EOC 92-117. Whichever phraseology is adopted, whether it be "a significant reason", "an operative ground", or "a causally operative effect", it is clear that the Complainant must prove the necessary causal connection between the Respondent's conduct and the detrimental consequences alleged. Standard of Proof In determining whether the Complainant has established his case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See the remarks by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 pp. 361-362. See also O'Callaghan v Loder op. cit. at pp. 75, 511-75, 512. Relevant Provisions of the Act At all relevant times, the terms "physical impairment" and "physically handicapped person" were defined in s.4(1) of the Act as follows: "'[P]hysical impairment', in relation to a person means any defect or disturbance in the normal structure and functioning of the person's body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment." "'[P]hysically handicapped person' means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life." At all relevant times, ss.49A(1), and 49B(2) provided: "49A(1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of - (a) his physical impairment; (b) a characteristic that appertains generally to persons having the same physical impairment as the physically handicapped person; or (c) a characteristic that is generally imputed to persons having the same physical impairment as the physically handicapped person, he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person. 49B(2) It is unlawful for an employer to discriminate against an employee who is a physically handicapped person on the ground of his physical impairment- (a) in the terms or conditions of employment which he affords him; (b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing him or subjecting him to any other detriment." Physically Handicapped Person We are satisfied that the Complainant is, and was at all relevant times, a physically handicapped person within the meaning of the Act. The Complainant said he lost both his ear drums when he was 9 months old and that although he had undergone numerous operations, only one had been successful, and then only partially. He also said that he relies, to some extent, on lip reading and that he finds it easier to speak on the phone than face to face. The evidence clearly shows that the Complainant has considerable difficulty hearing people who speak softly or who do not speak directly to him. The evidence also establishes that comments were made by a number of the Respondent's employees that the Complainant did not respond when spoken to from behind or when he wasn't looking at the speaker. Indeed, it is likely that this failure to respond caused several employees to complain to Ms Alexander, who was the Complainant's supervisor at the relevant time, that the Complainant was arrogant and rude. The Complainant also said that he had not disclosed his hearing impairment to the Respondent when he first applied for the position because he feared that if he did, he would not be given the job. This fear, he said, was based on his experience in his previous employment when he was dismissed after he disclosed the fact that he had a hearing impairment. While the Complainant has clearly done much to overcome the difficulties associated with his impairment, we are nonetheless satisfied that he is still limited in his opportunities to enjoy a full and active life and accordingly, we find that he is a physically handicapped person within the meaning of the Act. The Evidence and Our Findings In order to determine the issues raised by the claim of unlawful discrimination, it is necessary to consider the evidence presented in the respective cases for the Complainant and the Respondent in some detail. As stated previously, it is the Respondent's case that the sole reason for the Complainant's dismissal on 19 March 1993 was his unsatisfactory work performance and that his hearing impairment was not an operative ground of this decision. In support of the Respondent's case, Mr Sweeney SC relies primarily on the evidence of Mr Hua who said that his decision was based on the recommendation given to him by Ms Alexander. Unfortunately, Ms Alexander was not called, apparently on the basis that she was interstate. Mr Sweeney SC also submits that the alleged discriminatory decision made by Mr Hua on 19 March 1993 was never put into effect and further, that the gap between the alleged discrimination and the termination on 8 December 1993 is "too great in terms of time and circumstance" to allow the conclusion to be drawn that the decision itself caused any loss or damage to the Complainant. On the other hand, Ms Winters submits that there were two reasons for the Complainant's dismissal, namely his unsatisfactory work performance and his hearing impairment. She relies on a number of matters which she maintains cast sufficient doubt on the genuineness of the Respondent's official reason so as to ground the inference that the Complainant's hearing impairment was also an operative factor in the decision to dismiss him. They include: 1. The evidence given by Mr Gibbs, one of the Respondent's sales personnel at the relevant time, that the Complainant's hearing impairment was one of 2 reasons given by Mr Hua, at a sales meeting held prior to 19 March 1993, for the Complainant's imminent dismissal. 2. The Respondent's failure to call other employees, besides Mr Hua, to refute this evidence. 3. The Complainant's unchallenged evidence that he had been questioned by Ms Alexander about his hearing impairment on 2 occasions, one in late January and the other in February 1993. Further, Ms Winters refutes the contention that the Complainant suffered no loss or damage as a consequence of the alleged unlawful dismissal. She submits that the revocation of Mr Hua's decision and his subsequent transfer to the temporary position in the Engineering Department, from which he was eventually dismissed, are causally connected to the alleged unlawful act. 1. The Evidence in the Complainant's Case (1) The Complainant The Complainant gave evidence that, after being interviewed by Mr Hua and Ms Alexander, he commenced employment with the Respondent on 7 September 1992. He said he was not asked any specific questions about his hearing either on the application form or when he was interviewed. In response to a question on the application form concerning his general health, he simply responded "good". There is no dispute that his job as an Internal Salesperson required him to sell a broad range of telecommunications products, primarily by attending to telephone and facsimile inquiries and orders, but also on occasions to attend to customers who came into the office. The Complainant said that when he first commenced employment, he was placed on a 5 day Induction and Training Programme to learn the Respondent's products and procedures. However, he said that after only 2 days he was taken off the course to attend to sales because the Sales Division was so busy. This is disputed by Mr Hua. The Complainant also said that the Sales Division was understaffed when he joined and that the sales catalogue and prices were also out of date. According to the Complainant, Ms Alexander made no complaint about his work until late January 1993 when she asked him to join her for a cigarette break outside the office. He said she asked him if he had tested his hearing lately and that he should see a doctor, to which he replied that he had endured the condition all his life, that he had undergone several ear operations to no avail and that all he required was "a little attention". He conceded that she left no doubt in his mind that she was dissatisfied with his work performance. He also gave evidence that Ms Alexander had spoken to him on another occasion about his hearing at a party at her father's house in February 1993 and, in the presence of other sales personnel, she had talked to him about a possible transfer to the Engineering Department. He said that she also asked him whether he had checked his hearing and said: "It's obvious Robert, you don't answer, sometimes you don't answer you don't listen. When you're not looking at us you don't answer us. That's how we found out." There is no evidence that this particular conversation took place in the presence of anyone else. Given his concern that he had been dismissed from his previous employment when he disclosed that he had a hearing impairment, the Complainant said that after Ms Alexander had spoken to him about his hearing in January, he contacted an officer of the Board to obtain advice. Aside from Ms Chan, a fellow employee in whom he confided regularly, he said he did not tell anyone else that he had sought this advice. Indeed it is not part of his case that, prior to his dismissal, any of the Respondent's employees were aware of his approach to the Board. The Complainant also gave evidence that his hearing was raised with him by Mr Hua in late January 1993. This was confirmed by Mr Hua. Although neither of them gave any details of what was specifically said about the Complainant's hearing, the Complainant said that Mr Hua told him that Ms Alexander had said that he was not performing well. As a consequence, the Complainant said he offered to put in extra hours after work to be trained by Mr Hua so as to increase his product knowledge. He said he was given the extra training on two or three occasions. The Complainant also gave evidence that both Ms Alexander and Mr Hua had told him that customers didn't want to deal with him and although they had both declined to give him the names of the customers, Ms Alexander had alleged that he was harsh and abrupt rather then courteous and unhelpful. When giving his evidence, the Complainant denied that there was any truth in these allegations and said that other customers were "more than happy" to deal with him. He said he believed that some customers were dissatisfied because of his lack of product knowledge and others were not willing to wait on the phone while he worked out their inquiries with other sales personnel. He denied that he had ever been rude to customers. However, he conceded that Ms Alexander had told him that he had been criticised by several employees for being arrogant and rude. Mr Hua named 4 employees who had complained, while the Complainant volunteered the names of 2 others. The Complainant gave this explanation for the criticism: "I understand that by choosing not to tell my fellow workers about my situation I attracted criticism and misinterpretation of my lack of response to their friendly remarks for being arrogant and rude." The Complainant gave evidence that on 19 March 1993, before the weekly sales meeting, Mr Gibbs told him in the men's room that Ms Alexander had convinced Mr Hua to dismiss him. He said that Mr Gibbs warned him that he had heard that the reason behind his dismissal was "mainly [his] hearing situation". He said that he was distressed by this and that towards the end of the sales meeting, in the presence of Mr Gibbs, he asked Mr Hua whether it was true he was dismissing him. He said Mr Hua replied that it was true, that the decision had been made and that the world was not meant to be fair. The Complainant also gave evidence that when he spoke to Mr Hua in his office later, he told him that he had received advice from the Board. He further said that he asked Mr Hua if he could speak to Mr Adams about the decision. This he did. While it is clear that Mr Adams subsequently revoked Mr Hua's decision by transferring the Complainant to the Engineering Department, there is no common ground between the parties as to the precise terms and conditions of the transfer. The Respondent contends that the Complainant was specifically told that the transfer was a temporary one to enable him to look for alternative employment. The Complainant disputes this, although he concedes that after working in the Engineering Department for about 3 months, he was told by his supervisor, Mr Abeydeera, to find alternative employment. The Complainant said he searched in vain for alternative employment while he was working in the Engineering Department and that after being dismissed on 8 December 1993, he eventually commenced employment in another position on 4 July 1994. He also said that after losing this job through illness, he finally secured a position with Borundi Electronics Pty Ltd in November 1994 where he remained until he resigned in October 1996. (2) Mr Gibbs Mr Gibbs gave evidence that he was employed by the Respondent as a Sales Representative selling telecommunications and data communications products from 1987 until about 1994. He said the Respondent had about 800 products on its books at any given point in time and that it had taken him at least 6 months to acquire knowledge of 80% of the products. He also said that when he was in the main office area, he had found it difficult to attract the Complainant's attention on occasions when the Complainant's back was to him. He said, however, that the Complainant possessed the normal courtesy protocols and that he had never observed the Complainant being rude to either customers or anybody else in the office. He gave evidence that, at the Complainant's request, he had written a letter to the Board on 23 October 1995 outlining various events which are relevant to the present complaint. He outlined 2 occasions on which the Complainant's hearing was discussed. In relation to the first occasion, he said that prior to the sales meeting held in March 1993, at which the Complainant was not present, he had overheard a conversation between Mr Mitchell, who was the Finance Controller at the relevant time, telling Ms Alexander and another person that they would "be rid of the Arab runt soon". Consequently, he said he spoke to the Complainant in the men's room and told him that his dismissal was imminent and to prepare himself for a shock. He said he believed that this conversation had taken place on the same day as the aforementioned sales meeting. It is a little difficult to reconcile Mr Gibbs' sequence of events with that given by the Complainant. He explicitly states that Mr Gibbs spoke to him in the men's room on the morning of 19 March 1993 prior to the commencement of the scheduled sales meeting, which according to the minutes of that date, they both attended. On the assumption that the conversation took place in the men's room as alleged, clearly one of them must have made a mistake about the date. In relation to the second occasion, Mr Gibbs gave evidence that during the course of the sales meeting in March 1993, at which the Complainant had not been present, Mr Hua had said words to the effect that: "[T]he Complainant had a hearing problem and that he had not taken on board the full ramifications of the job and therefore could not perform properly in that sales job." Mr Gibbs also said that he, alone, had expressed the view that he was not in favour of the dismissal because the Company had been constantly short of internal sales people and that they would be losing the knowledge the Complainant had gained. Further, he said in his original letter to the Board that he was strongly reproached by Mr Hua and told to remain silent on the issue. Interestingly, Mr Gibbs said that he thought the 2 reasons given by Mr Hua for the Complaint's dismissal were disconnected. He also said that, at the time, he had thought they were both invalid. He expressed the opinion that the Complainant had been handling the work "as well as anybody who is just thrust into the firing line could have done". In relation to the Complainant's hearing, he said that "very occasionally" it was an inconvenience because "one time out of 10 [he] might have to attract his attention physically before [he] spoke". Evidence in the Respondent's Case (1) Mr Hua Contrary to the Complainant's evidence, Mr Hua said that the Complainant completed the 5 day Induction and Training Programme and that he undertook the written assessment on the fourth day of the course rather than the second day. He said that after an initial 3 month period, Ms Alexander and he both "recognised" that the Complainant was not suitable for the position of Internal Salesperson. This view, he said, was reached before they became aware of the Complainant's hearing impairment. He also gave evidence that about 3 or 4 months after the Complainant commenced employment, Ms Alexander said to him: "Customers are complaining about him and asking to be put through to someone else. There is also a communication problem in that he does not respond when spoken to." Mr Hua further said that customers had told him that they didn't wish to deal with the Complainant and that he had received advice from the receptionist to the same effect. In relation to these complaints, he said that none of the customers made an official complaint. Rather, they simply said that they didn't want to deal with him. He estimated that there were more than 6 complaints and said that they became more frequent towards the end of the Complainant's employment. Significantly, there is no evidence that Mr Hua ever made any inquiries to find out specifically why these customers held this view. He said, however, that Ms Alexander had told him that one of the issues was his lack of product knowledge or his ability to respond to inquiries satisfactorily. Mr Hua also said that he recalled Ms Alexander telling him that she had spoken to the Complainant about his harsh and abrupt responses and the perception held by some customers that he was rude. As a consequence of receiving both this information from Ms Alexander and complaints from staff members, he said he asked the Complainant why it was that people disliked him. He conceded that at the Complainant's request, additional training was given to the Complainant on several occasions after work. The evidence suggests that this request was made as a consequence of Mr Hua's discussion with the Complainant about his work performance in late January or early February 1993. In relation to the Complainant's hearing impairment, Mr Hua said he recalled Ms Alexander telling him that she had asked the Complainant to see a doctor to explore whether his hearing difficulty could be alleviated. He could not recall when he received this advice. Significantly, he said that to his knowledge the Complainant had not seen a doctor " as requested " to obtain a diagnosis (emphasis added). Mr Hua also said that he told Mr Adams that some customers were having difficulty understanding the Complainant and were finding that inquiries were not being responded to satisfactorily. In relation to the sales meeting held shortly prior to 19 March 1993, Mr Hua said the Complainant's performance was discussed and that all of the sales staff present at the meeting, except Mr Gibbs, indicated that they viewed his performance as unsatisfactory. Mr Gibbs did not dispute this. In cross-examination, Mr Hua initially denied that the Complainant's hearing problem was ever mentioned at the meeting. However, when it was put to him that Mr Gibbs had said that both the Complainant's unsatisfactory performance and his hearing problem were given by him [i.e. Mr Hua] as reasons for the Complainant's dismissal, he said he couldn't recall having said this. In order to support his claim that the Complainant was dismissed solely on the ground of his unsatisfactory performance, Mr Hua said that Ms Alexander had recommended to him that the Complainant be dismissed on the basis that she viewed his performance as being unsatisfactory. He also said that although the Complainant's lack of product knowledge had been tolerated for some time, the "final crunch" was the fact that some of the customers were not wanting to deal with him. In this regard, he said he was unable to "pinpoint" an "exact problem". Significantly, he also said the issue of customers not wanting to deal with the Complainant was "more important" than his lack of product knowledge. In relation to the sales meeting held on 19 March 1993, Mr Hua gave evidence that the Complainant raised a concern that his employment was going to be terminated, to which he gave the explanation that customers did not want to deal with him and that internal staff and customers found him rude. We do not understand the Complainant to be disputing that this was what he was told. In his original letter of complaint to the Board dated 28 January 1994, the Complainant said that Mr Hua told him at the meeting that nobody liked him and that everybody said he was rude, to which he replied that the allegations were not true and that the sole reason for his dismissal was his hearing problem. For some unknown reason, the Complainant did not make reference to this alleged conversation with Mr Hua in either his statements or his oral evidence. Nor did he make any reference in his evidence to the conversation, outlined in his written complaint to the Board, which allegedly occurred with Mr Hua in his office after the sales meetings. In his letter he specifically stated that Mr Hua asked him if he had done anything to treat his problem, before commenting that the world was not meant to be fair. The Complainant did, however, give oral evidence that he told Mr Hua in his office that he had received express advice from the Board. Unfortunately, he did not elaborate on this. On the assumption that we accept this evidence, it is reasonable to infer that the Complainant would have mentioned to Mr Hua that his reason for seeking advice from the Board was his hearing impairment. In cross-examination, Mr Hua agreed that there had been discussion in his office with the Complainant about the reasons for his dismissal but denied that he had discussed the Complainant's hearing difficulty with him. According to his evidence, he told the Complainant that he didn't have the required skills for the job, that customers didn't want to talk to him and that staff considered him aloof. He said the Complainant responded by saying that he had not been given enough training, to which he replied that he had been given more training than a lot of people and that the world was not meant to be rosy all the time. (2) Mr Abeydeera Mr Abeydeera said that sometime in March 1993, he was asked by Ms Adams whether he could give the Complainant a job until he found alternative employment. He said he thereupon created a temporary position in his department and further that he recalled telling the Complainant that it was a temporary position only. He denied that he had said to the Complainant that his employment was conditional upon his satisfactory performance. Although he agreed that he had received no complaints about the Complainant's performance, he said that at least once a month, he asked him how his job search was going and reminded him that his position was temporary. He said that he did not know that the Complainant had a hearing impairment until about November 1993 shortly before he was given two weeks notice of his termination. Aided by his diary entries, Mr Abeydeera said he recalled telling the Complainant on 1 June 1993 that there was no further work for him and that if he could not find alternative work, he would have to consider the possibility of employing him as an operator in the workshop. His diary entry specifically states that he gave the Complainant 4-6 weeks notice of his termination (this clearly was not put into effect). Aided by another diary entry on 29 June 1993, he said he recalled asking the Complainant how his job search was going and that he really needed to find a job because there would soon be no work. He said he also gave him sick leave on 7 June and 7 July 1993 to look for work and that when there was simply no more work to be performed in the manufacturing section, he finally gave him notice on 24 November 1993. (3) Mr Adams Mr Adams gave evidence that he recalled Mr Hua telling him "maybe around about before or after Christmas" that he was getting feedback from some customers that enquiries were not being responded to satisfactorily, or they were having difficulties in dealing with him. He did not, however, know that the Complainant was to be dismissed by Mr Hua until about 18 March 1993. He said the Complainant came to him in a distressed state on 19 March 1993 and asked him to overturn Mr Hua's decision. He denied that the Complainant had said to him that he believed his hearing impairment was a reason for his dismissal. Mr Adams further said that after the Complainant pleaded with him to remain in employment with the company, he said to him that he would see what he could do. As a consequence, he asked Mr Abeydeera to find the Complainant a temporary job in his section in order to provide him with an opportunity to work whilst looking for other employment. He also said he recalled asking Mr Abeydeera some months later whether the Complainant was looking for another job as previously arranged. Subsequently, when the Complainant questioned Mr Abeydeera's decision to dismiss him, Mr Adams said that he told the Complainant that he "knew it was a temporary position" which would come to an end. We turn now to discuss our findings. Findings It is clear that there are some marked differences between the respective accounts given by Complainant and Mr Gibbs, on the one hand, and the respective accounts given by Mr Hua, Mr Abeydeera and Mr Adams, on the other hand. It is convenient to turn first to the evidence given by Mr Gibbs. (1) Mr Gibbs Mr Sweeney SC submits that where there is a conflict between Mr Gibbs' evidence and that given by Mr Hua, we would prefer the evidence of Mr Hua. In his written submissions, he questions whether Mr Gibbs was a strictly neutral witness and he also maintains that Mr Gibbs' version of what was said by Mr Hua at the sales meeting held prior to 19 March 1993, which the Complainant did not attend, should not be accepted in preference to that given by Mr Hua. In support of his submission that Mr Gibbs was not a strictly neutral witness, Mr Sweeney SC relies first, on his alleged failure to explain that although the Respondent had on its books at any one time 800 products, no more than 200 were sold on a regular basis. We find there is no substance in this submission. Mr Gibbs was not asked how many items were sold on a regular basis. He was simply asked how many products the Company had on its books. In this regard, the answer he gave was consistent with that given by Mr Hua. Secondly, Mr Sweeney SC relies on Mr Gibbs' evidence that he had been unhappy for sometime with his employment with the Company. This answer does not in our view, demonstrate that Mr Gibbs harboured any grievance against the Respondent. Importantly, it was never put to him that he harboured any such grievance or that he felt any illwill towards any of the Respondent's witnesses. We are satisfied that Mr Gibbs was an independent witness, who had no special allegiance towards the Complainant. In fact, the evidence shows that he had worked for the Respondent for 7 years and was not a close friend of the Complainant. In relation to the sales meeting held in March 1993, which the Complainant did not attend, Mr Sweeney SC asks us to reject the version of events given by Mr Gibbs in his oral evidence on the basis that it contains a number of contradictions, and, further, that it is inconsistent with the account given in his letter to the Board dated 23 October 1995. We do not accept that there is any substance in this submission. Mr Gibbs' brief letter to the Board provided the basis for his subsequent oral evidence and is not, in our view, inconsistent with it. The letter clearly states that at a sales meeting which the Complainant did not attend:- [S]ome discussion took place as to whether he [i.e. the Complainant] was being dismissed for deafness or inability to handle the internal sales work." Mr Gibbs subsequently expanded upon this account when giving his oral evidence. Mr Sweeney SC also submits that it is a relevant consideration that Mr Gibbs was the only person out of the 10-14 people present at the meeting, to query the dismissal on the ground of staff shortages, the only one to write to the Board and the only one to give evidence in support of the Complainant. Mr Sweeney SC does not spell out exactly how this is relevant to the Respondent's case. Presumably, he would submit that it demonstrates that there was only one ground of the Complainant's dismissal. However, Ms Winters submits that in the absence of any evidence to contradict that given by Mr Gibbs, there was no need for the Complainant to call evidence from any other persons who were present at the meeting. She further submits that given that these other persons were all employees of the Respondent, if they had been able to give evidence to support the Respondent's case, it is reasonable to expect that they would have been called on behalf of the Respondent. There is considerable force in these submissions, particularly in view of Mr Hua's evidence on this point. Mr Hua initially denied in his evidence that the Complainant's hearing problem was ever mentioned at the sales meeting which the Complainant did not attend. However, when questioned about Mr Gibb's evidence that he had told the sales meeting that the Complainant had a hearing problem and had not taken on board the full ramifications of the job, he said he was unable to recall saying that. In these circumstances, it is surprising that the Respondent did not call evidence from any of the other staff members present at the meeting. We found Mr Gibbs to be a credible, frank and impartial witness, and aside from one relatively minor matter where his evidence partially conflicts with that given by the Complainant, we are satisfied that his evidence can be safely relied upon. The matter in question relates to the date of the conversation he had with the Complainant in the men's room about his impending dismissal. The Complainant said that this conversation had occurred on the morning of 19 March 1993, whereas Mr Gibbs' recollection was that it had taken place on the morning immediately prior to the meeting in March 1993 which the Complainant did not attend. On balance, we prefer the Complainant's evidence on this point. It is consistent with the account he gave to the Board in his original letter of complaint dated 28 January 1994. Moreover, had the Complainant known of his impending dismissal prior to 19 March 1993, it is reasonable to expect that he would have raised it immediately with either Ms Alexander or Mr Hua rather than keeping the information to himself. (2) Credibility of Witnesses Where Mr Gibbs' evidence conflicted with that given by Mr Hua, we preferred the evidence given by Mr Gibbs. We did not find Mr Hua's evidence to be entirely reliable or satisfactory and, on occasions, we found his recollection of events to be either poor or selective. Having said this, we did not find the Complainant's evidence to be entirely reliable or satisfactory either. On occasions, where his evidence conflicted with that given by Abeydeera and Mr Adams, we preferred the evidence given by Mr Abeydeera and Mr Adams. Where there was an important conflict between the evidence given by the Complainant and that given by Mr Hua, we found it necessary to make a specific determination in relation to each occasion. Our more significant findings in relation to the conflicting evidence of Mr Hua and the Complainant, and the merits of the complaint generally are discussed below. · The Induction Programme Although Mr Hua said the Complainant finished the 5 day Induction and Training Programme, we find the Complainant only attended the first 2 days of the course. Exhibit K suggests that the Complainant was assessed on the second day of the course in order to determine the level of his product knowledge. While it is clear that he did not attain a good score in the written assessment, we nonetheless find that work pressures dictated that he commence work in sales immediately. The significance of this finding is that it supports the claim that the Complainant was given inadequate training and therefore that his product knowledge was not as extensive as it might otherwise have been. · Terms of the Complainant's transfer In relation to the Complainant's transfer to the Engineering Department, we are satisfied that the Complainant was told by both Mr Adams and Mr Abeydeera that the transfer was a temporary one to afford him an opportunity to look for alternative employment. We do not accept the Complainant's evidence that he was not told to look for alternative employment until 3 months later. However, we do not accept that the Complainant's evidence on this point was knowingly untrue and that we should, therefore, not accept him as a witness of credit. · Complaints from customers within the first 3 months Mr Sweeney SC submits that we should reject the Complainant's assertion that his difficulties with the Respondent only began after the occasion of the cigarette break with Ms Alexander in January 1993. He also maintains that complaints about the Complainant arose in the first 3 months of his employment. He relies, in particular, on Mr Hua's evidence that after an initial 3 month period, both he and Ms Alexander recognised that the Complainant was not suitable for the position and that he had asked him to sit and watch the Customer Relations video tape at least twice in the first 3 months. Mr Sweeney SC also relies on Mr Adams' evidence that "maybe around about before or after Xmas" reference might have been made to there being some difficulties in dealing with the Complainant (emphasis added). We understand Mr Sweeney SC to be inviting us to infer that because these difficulties arose within the first three months of the Complainant's employment and before Ms Alexander had been told by the Complainant that he had a hearing problem, it is improbable that his hearing impairment was an operative ground of his dismissal. Ms Winters submits that there is nothing in either the evidence of Mr Hua or Mr Adams to suggest that any of the alleged difficulties with the Complainant were ever communicated to him prior to the occasion of the cigarette break in January 1993. In the absence of any specific details about the alleged complaints, we understand her to be inviting us to infer that the Respondent's reliance on these amounts to an "excuse" or an ex post facto justification of the Complainant's dismissal. Although Mr Hua said his written statement, dated 13 January 1997, that he asked the Complainant to sit and watch the Customer Relations video tape "2 or so times in the first 3 months", he did not say that he had told him why this was necessary. In fact, the Complainant's evidence is that he was not asked to watch the video tape until late January 1993. Significantly too, Mr Hua said in his oral evidence that complaints about the Complainant were not received until 3 or 4 months after the commencement of his employment. Moreover, the evidence suggests that the Complainant was not counselled about his work performance until Ms Alexander spoke to him in January 1993 and that Mr Hua only spoke to the Complainant about his performance after conferring with Ms Alexander. On balance, we find it likely that the Complainant was not asked to watch the video tape until late January 1993. We further find it unlikely that complaints were received from customers within the first 3 months. While Mr Adams' letter to the Board dated 12 April 1995, suggests that Ms Alexander and Mr Hua had identified problems with the Complainant's employment within the first 3 months, there is nothing to suggest that complaints had been received from customers within this period. The letter expressly states: "It was identified in the first few months of Mr Khoury's employment that there were problems in that he often did not respond when he was spoken to or did not follow up inquiries or problems." Consistent with the oral evidence given by Mr Hua that complaints were received about 3 or 4 months after the commencement of the Complainant's employment, the letter makes no reference to any complaints being received within this 3 month period. · The validity of the Respondent's reasons for the Complainant's dismissal Although Mr Hua said that Ms Alexander had recommended to him that the Complainant be dismissed on the ground of his unsatisfactory work performance, he emphasised that the most important factor in the Complainant's dismissal was the fact that some customers did not want to deal with him. This appears to be one of 3 factors given to the Complainant during his termination interview with Mr Hua. The other 2 factors were that he did not have the required skills for the job and that staff considered him to be aloof. Mr Hua's evidence as to why some customers did not wish to deal with the Complainant was not entirely satisfactory. He said that customers had simply told him that they didn't wish to deal with the Complainant and that he was unable to "pinpoint" the exact problem. Given that he considered these "customer complaints" to be the critical factor in the Complainant's dismissal, it is difficult to comprehend why he never obtained sufficient details of these complaints so as to afford the Complainant the opportunity to respond, or why the Complainant was never issued with a formal warning. Instead, relying on the information given to him by Ms Alexander he appears to have concluded that some people disliked him, presumably in part because he was perceived as being rude. To invite the Complainant to explain why it was that some people disliked him, without providing any particulars, was not an adequate substitute to issuing a formal warning. Moreover, in circumstances where Mr Hua was aware that the Complainant had a hearing problem which may, for example, have accounted for his inability to respond when spoken to from behind, it was incumbent upon the Respondent to obtain sufficient details of these complaints so as to provide the Complainant with an opportunity to respond. The question arises as to whether this was a genuine reason for the Complainant's dismissal. Ms Winters submits that it was not and invites us to conclude that the real reason for the Complainant's dismissal was his hearing impairment. We accept that some customers may well have asked not to be put through to the Complainant. This was, however, not entirely surprising given that he was new to the job, had not completed the 5 day induction course and that it took at least 6 months to acquire adequate knowledge of the Respondent's products. However, we do not find that these customer complaints were the critical factor in the Complainant's dismissal. Had they been so decisive, it is reasonable to expect first, that Ms Alexander would have recommended that the Complainant be dismissed for this reason; and secondly, that Mr Hua would have made specific reference to it at the sales meeting held in March 1993 which the Complainant did not attend. · Grounds of the Complainant's Dismissal We find there is no substance in Mr Sweeney's submission that it is most improbable that Ms Alexander's recommendation to terminate the Complainant's employment was contaminated by any unlawful discrimination. Nor do we find there is any substance in the submission that it is likewise improbable that Mr Hua's decision to dismiss the Complainant was contaminated by such discrimination. We are satisfied that there were 2 grounds for the Complainant's dismissal, namely his hearing impairment and his unsatisfactory work performance. Our reasons for concluding that the Complainant's hearing impairment was an operative ground of his dismissal include the following: (1) Mr Gibbs' evidence that 2 reasons were given by Mr Hua for the Complainant's impending dismissal. (2) The Complainant's evidence that Mr Gibbs told him on the morning of 19 March 1993 that he had heard that the reason behind his dismissal was "mainly [his] hearing situation". (3) The unchallenged evidence that Ms Alexander raised the Complainant's hearing impairment on 2 separate occasions in January and February 1993. (4) Mr Hau's evidence that the Complainant had not seen a doctor "as requested" to obtain a diagnosis in relation to his hearing impairment. According to Mr Hua's evidence, it was the complaints received from customers which was the most important factor in the Complainant's dismissal. For the reasons mentioned previously in this decision, we have already rejected this evidence. In our view, it was not the complaints received from customers but the Complainant's hearing impairment which was the decisive factor in the dismissal. In making this determination, we have taken into account a number of matters. In addition to the four factors listed above, they include the following: (1) Mr Hua's evidence that the Complainant's lack of product knowledge had been tolerated for some time and that this was not the most important factor in the dismissal. (2) The undisputed evidence that at the Complainant's request, additional training had been given to him. (3) Mr Gibbs' evidence that it took at least 6 months to acquire knowledge of 80% of the Respondent's products. Was the Respondent's conduct unlawful ? In respect of the dismissal on 19 March 1993, we find Mr Hua's conduct adversely affected the terms and conditions of the Complainant's employment in that he was denied the many benefits associated with permanent employment. Moreover, the Complainant was clearly placed under a disadvantage as to a matter of substance, as distinct from a trivial matter, which resulted in him being subjected to a detriment: see O'Callaghan v Loder & Anor (1984) EOC 92-022 at pp 75,506-75,507. We do not accept Mr Sweeney's submission that the dismissal did not cause the Complainant any adverse consequences or any loss. Accordingly, we are satisfied that the abovementioned conduct constituted both a discriminatory condition of employment within the meaning of s.49B(2)(a) and a detriment within the meaning of s.49B(2)(c) of the Act. We are further satisfied that the Complainant was treated less favourably than able-bodied persons on the ground of his hearing impairment within the meaning of s.49A(1). Since it was not suggest that the Respondent had not authorised the dismissal, we are further satisfied that, pursuant to both ss.49B(2)(a) and 49B(2)(c), the Respondent is liable for Mr Hua's discriminatory conduct. Accordingly, we find the complaint substantiated. We now turn to discuss the issue of relief. Relief Pursuant to s.113(1)(b)(i) of the Act, the Complainant seeks an order for damages. This provision permits us to order the Respondent to pay to the Complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct. We reject Mr Sweeney's submission that we should decline to award the Complainant damages because there is no evidence of any economic or non-economic loss or damage suffered by the Complainant as a result of the dismissal on 19 March 1993. On behalf of the Complainant, Ms Winters seeks an amount of $12,000 for economic loss to cover the period from 1 January 1994 until 30 June 1994 (which was shortly prior to the Complainant securing new employment). It is common ground that the Complainant went overseas shortly after he left the Respondent on 8 December 1993 and that he returned to Australia on 11 January 1994. It is also not in dispute that he was on sickness benefits until early April 1994. We do not accept Mr Sweeney's submission that damages should not be awarded for the period that the Complainant was on sickness benefits. The weight of authority is against it: see, for example, Cardozo v Centrelink Service Systems Pty Ltd , unreported decision of this Tribunal (differently constituted), 2 August 1995. Accordingly, we propose to award the Complainant $12,000 for economic loss. In relation to non-economic loss, we find that $3,000 is an appropriate sum to award the Complainant. We accept his evidence that he felt devastated by the dismissal on 19 March 1993 and that, feeling depressed, empty and "not fit to live", he sought help from his general practitioner after he left the Respondent on 8 December 1993. Costs The Complainant seeks an order for costs. At Ms Winter's request, it was agreed that this matter should be deferred until the question of liability had been decided. Orders In summary: 1. We find the complaint has been substantiated. 2. We order that the Respondent pay to the Complainant within 21 days damages in the sum of $15,000 (comprised of $12,000 for economic loss and $3,000 for non-economic loss). 3. We direct that the Complainant contact the Registry within 7 days if he wishes to make an application for costs. 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.