Equal Opportunity Tribunal of New South Wales CITATION: Kess -V- Department Of Land & Water Conservation [1997] NSWEOT COMPLAINANT: Jack Kess RESPONDENT: Department of Land & Water Conservation NUMBER: 252 of 1996 Mr Peter King ( Judicial Member ) TRIBUNAL: Mr Neville Rogan Ms Stevie Clayton GROUNDS OF COMPLAINT: Disability discrimination in employment and victimisation DATES OF HEARING: 10/13/1997; 10/14/1997; 10/15/1997 DATE OF JUDGMENT: 10/15/1997 Complainant: Ms J Keys (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr S Young (Solicitor) Department of Land & Water Conservation Mr T Molomby (Counsel) JUDGMENT IN FAVOUR OF: CHAIRPERSON: In this matter, two complaints were referred to the Tribunal by the President of the Anti-Discrimination Board on 2 December 1996, those being a complaint received 18 September 1996 of unlawful victimisation, and a complaint received at the Board on 25 September 1996 being a complaint of discrimination on the ground of disability. The Board did not refer to the Tribunal a further complaint of racial discrimination purporting to act under s 91 subs (1)(a) of the Anti-Discrimination Act 1977 ("the Act") and for those reasons that portion of the points of claim raising that issue was, with the agreement of both counsel, struck from the record. The points of claim which set out the basis on which these complaints have been referred to us for inquiry pursuant to s 96 of the Act raise two issues conformably with the reference to the Tribunal. The first is a complaint of discrimination on the grounds, and we quote, "Of the Respondent's belief that the Complainant had a mental disability". Particulars are then given. The second complaint is a complaint of victimisation and the earlier particulars relating to the ground of mental disability are repeated and two additional matters in a summary way are raised. In particular, the conduct of the Respondent in appointing what were described as independent arbitrators, but which in the course of this hearing became more properly characterised as mediators, and placing the Complainant on light duties as a form of conduct victimising him and secondly, a statement by Ms Cleary to the Complainant on the 27th or 28th August 1996 that, "Once you apply to the ADB, you can no longer work here". The Complainant alleges that, as a result of these matters, he has suffered loss and damage including stress and emotional trauma, the termination of his employment, the loss of security including superannuation benefits consequential thereon. The points of defence filed 13 June 1997 deny that there was any discrimination on either of the grounds and allege that at all times the Respondent acted in relation to the Complainant within proper and necessary bounds of conduct and without discrimination or victimisation. Turning firstly to deal with the complaint in paragraph 4 of the points of claim, Ms Keys, counsel for the Complainant, relies on the terms of s 4(1) of the Act and in particular the definition of disability in sub cl (e) which provides as follows: Disability means, "A disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." The argument then proceeded to rely on s 49(A) of the Act which provides: "That a reference in this part to a person's disability is a reference to a disability that a person has or that a person is thought to have, whether or not the person in fact has that disability." And, paraphrasing the balance of the section: "That a person had in the past or is thought to have had in the past or will or is thought that a person will have in the future." Reliance is then placed on the terms of s 49(B) which defines discrimination in the context of disability so defined in the provisions to which we have referred. Reliance was also placed on s 49(D)(2) which provides as follows in relation to discrimination in work against applicants and employees: "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 to 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." CHAIRPERSON: Just pausing there, Ms Keys, I think that was the provision that you relied on? KEYS: Yes. CHAIRPERSON: The basis for the disability claim relates to the belief of the Respondent, and that, as was properly submitted by Ms Keys, is a basis for a claim of discrimination in a proper case. In the present matter several aspects of Mr Kess's particular profile, medically speaking, in 1994 through to 1996 were emphasised as giving rise to the Respondent's belief. Firstly, mention was made of a liver condition that the Complainant had incurred by unknowingly drinking industrial alcohol after a drink had been spiked at a party, which was a matter he raised with Dr Keith Roberts and referred to in his report forming part of exhibit 2 dated 13 June 1996. However, the only member of the Respondent's staff who knew of this problem was Ms Cleary who was informed in a confidential conversation following a meeting in November 1995. It is quite clear from her evidence that at no time did she believe that the Complainant had a disability of the type alleged in the points of claim or in the matter before us in that respect. Greater emphasis, however, was placed by the Complainant on the following matters which appear in paragraph 32 and 33 of Mr Starkey's statement. Mr Kess expressed to Mr Starkey a belief that he had various "powers" including healing, clairvoyance and that he could see a person's aura. He had a characteristic of staring, which became a particular problem especially for women staff in the branch and also other branches who on several occasions complained to Mr Starkey that he was unsettling them. Mr Starkey then spoke to Mr Kess advising him about the problem. He also noticed that Mr Kess stared at him. There was some evidence that at least two female employees had felt at least uncomfortable as a result of staring by Mr Kess. In paragraph 33 of that statement reference is made to rapid blinking combined with the rolling of eyes upwards, a matter which had been also referred to in Mr Kess's statement. Elsewhere this conduct was described as eccentric behaviour and it may be convenient to refer to that in a summary way in these reasons of the Tribunal. In our view, the evidence did not and does not lead us to conclude that there was a disability in the sense alleged by the Complainant that the respondent believed there was a disability in the present case based on those matters. The Tribunal put to Mr Starkey several questions designed to elicit whether he in fact believed that those aspects of eccentric behaviour of Mr Kess affected his thought processes, perception of reality, motions or judgments or resulted in disturbed behaviour, and his evidence was that he did not have that perception and the tribunal forms the view that that was the effect also of the evidence of Mr Lee and Ms Cleary. Another aspect of the case on disability related to the evidence of stress referred to in the report of Dr Roberts dated 13 June 1996. However, in this regard as we understood the case put to us, that evidence related more to the consequential loss and damage as a result of the conduct of the Respondent rather than a ground of disability itself. There is no doubt, for example, that Mr Starkey believed that Mr Kess was suffering stress from time to time. But as he frankly said, he himself suffered stress from time to time because of the workload that he had. Mr Kess of course was in a particularly difficult position on at least two occasions throughout the events referred to us, but we do not think that these amounted to a belief or gave rise to a belief on the part of the Respondent that he was suffering a disability in the sense contended for. The first of those occasions arose in 1994 and continued into 1995 when the Complainant was asked to attend to the land revenue file system (LFS) update in terms of analysis and programming requirements. There is no doubt that the Respondent did not give him the necessary support that he should have had, as put in his evidence to us, but that, we consider, does not give rise to matters which may legitimately be brought before a Tribunal of this type. The second issue concerned the occasion in 1996 when, upon his own application following the provision of Dr Robert's report to which reference has been made, supported as it was by Mr Lee, he was placed in a different location at the work environment on the 5th floor where he complains he had little to do. But again, there does not appear to us to be a proper basis for the conclusion, and we do not conclude, that those events of themselves gave rise to a belief in the Respondent that the Complainant was suffering a disability. A further difficulty that we have with the Complainant's case on the ground of disability or perceived disability is that whilst there is, we consider, some evidence of less favourable treatment in the sense that there was a delay in the payment of the increment of the Complainant's salary in 1994 for the months from October through to April 1995 and again for the similar period in 1995 and there was, as appears to have been acknowledged by the Respondent, some stress involved in the Complainant seeking to improve his performance to the mark required for his job specification, we do not accept the case that there was any less favourable treatment on the ground of disability, even assuming in favour of the Complainant there was a disability in the sense contended for in paragraph 4 of the points of claim and in the submissions put to us by Ms Keys, counsel for Mr Kess, who said everything that could be said on this point on behalf of the Complainant. In this regard, we would point to the following material which we consider to be important in the resolution of this complaint. The initial reports in 1994 and in particular the report of 10 November 1994 of Mr Starkey confirm in evidence both by him and Mr Lee referred to difficulties that the Respondent had with the analysis abilities of the Complainant so far as his position was concerned. However, the evidence also leads us to conclude that the Complainant was a capable programmer and indeed that was the view of the respondent's officers at the time, including Mr Starkey and Mr Lee. The concern which they had was that not withstanding the Complainant's abilities as a programmer, his performance was substantially below the job specification and requirements of adequate performance for analysis, which was a matter of importance. A related issue concerned the insistence of the Complainant in developing a prototype rather than in consulting with end users and adapting the LFS as then in place to their requirements. The evidence in this regard was that the usual systems development of computer programs involves developing user specifications based on asking the users what they want and then building a solution. Prototyping means building a system first, then asking the users what they think about it and amending it to meet their needs. To build a prototype system, we conclude on the evidence, you would have to have a good idea of what the users wanted or it would be useless. The justifiable concerns of both Mr Starkey and Mr Lee was that the Complainant was developing a prototype system in an inappropriate circumstance, which system itself was incompatible with the practical requirements of the end users. This evidence was important from the Tribunal's point of view because it illustrated in our view that the Respondent did not believe that the Complainant was disabled but rather had the view, rightly or wrongly, that he was below the necessary standard for the purposes of performing his work as a grade 7/8 analyst/programmer in the particular branch of the department. The complaint referred to the Tribunal made specific mention of a report dated 20 May 1996 of Mr Starkey to Ms Cleary as being the basis of a claim of disability discrimination. We have examined that document, including the report of Mr Starkey dated 24 April 1996, the response of the Complainant dated 6 May 1996, which led to the 20 May report, and we are unable to conclude that any complaint of disability discrimination is founded upon that material in the light of all of the evidence before us. In particular two matters were referred to. The first concerns matters at paragraph 3 on the second page of the letter of Mr Starkey which states as follows: "On his return from recreation leave after his receipt of my report, he reported sick due to stress, anxiety and depression. I have seen him in a distressed state. Again, I do not understand why he is experiencing such difficulties and I'm not qualified to probe further into something more deep-seated, in my opinion." The second entry concerned a conclusion in the last page of the document which was to the following effect: "I fail to see that making him work to some recognisable standards constitutes unsafe working conditions and I suspect he has other health problems which are beyond my qualifications and understanding." There was an element, in our view, of unnecessary anger in the response of Mr Starkey, but that is somewhat understandable in the light of the earlier correspondence leading to this report. More importantly however in our view is the fact that Mr Starkey said that he meant in relation to this correspondence that he thought there was a health problem with Mr Kess, perhaps related to stress, but that he himself was not qualified to draw any conclusions about that and he simply made a recommendation that something be done about it, a recommendation with which Mr Lee agreed. Indeed, we note that in June of 1996 or shortly thereafter, a mediation was convened by an independent mediator, Ms Harding, which dealt with several issues, one of which was the less favourable treatment referred to in respect of this complaint, namely the backdating of the increment or the failure to backdate the increment to its due date of 18 October 1995 instead of 3 April 1996 as recommended by Mr Starkey in his report of 24 April. In a memorandum dated 1 August 1996, Mr Starkey consequent upon that mediation made a recommendation to Ms Cleary, the Acting Executive Director of Asset Management in the department that his prior recommendation that the increment not be backdated be withdrawn and that the increment be backdated and that in fact was done. Accordingly, even if there was a proper complaint substantiated in relation to the 20 May 1996 report, we are unable to find and do not find that it led to any adverse treatment or less favourable treatment to the Complainant. He received his increments. It is correct there was some delay but in that regard we do not consider there is a proper cause for complaint. Indeed, Mr Starkey would have been justified in all the circumstances in maintaining the position with respect to the increment put in his May report. For these reasons, the Tribunal would dismiss the complaint of disability discrimination. Turning to the complaint of victimisation, this Tribunal examined the law of victimisation in great detail in the context of the public service in the case of Shaik v New South Wales Commissioner for Fire Brigades and the tribunal does not propose to repeat the conclusions which it there drew on the details of the law of victimisation in the context of discrimination complaints, except to adopt and follow what was there decided by the tribunal then constituted. The victimisation complaint based as it is of course on s 50 of the Anti-Discrimination Act 1997 concerns two aspects of the material before us. The first related to the failure of Ms Clearly, who was the effective head of the area of the department in which the Complainant was employed in 1994 through to 1996, to adopt appropriate grievance procedures and to respond properly to the complaints that the Complainant then had and that he had brought to her attention in November of 1995; and secondly, an allegation to which we have already drawn attention, specified in the points of claim at paragraph 5(c). Turning to the first of those matters, it is clear from the evidence of Ms Clearly, who impressed the Tribunal in her presentation, that there were grievance procedures in place for dealing with complaints of discrimination in 1995 and 1996 which were available. In some cases an organisation, particularly a public organisation, could be criticised for not adopting those procedures to resolve discrimination complaints. However, Ms Clearly gave evidence, which we accept, that the reason that she did not do so was because of the technical nature of the work of the Complainant and of the matters required for a complete understanding of his concerns leading to what she hoped was going to be a resolution of his concerns and his return to full employment with an engagement with the department as a fully productive employee. Her evidence was that she referred the issue to a mediator, Mr Davis, with technical expertise. That mediation began in January. It was unsuccessful. A further mediation was then appointed in June through an independent external mediator, Ms Harding, in circumstances where the Complainant had indicated he was not proposing to proceed with any discrimination complaint against one of the officers that he formerly had complained about and it was hoped by the further mediation, the other issues would be resolved. This however did not succeed, but that does not mean in our view that the Tribunal could properly conclude there was any victimisation in relation to this aspect of the case, and we do not do so. The second ground of victimisation concerned evidence contained in Mr Kess's statement at paragraph 39 in which he alleged that on 26 August 1996 Ms Clearly wrote a threatening letter and that on 27 August or about that time the Complainant spoke to her about the letter seeking to provide an explanation. He said in his oral evidence that he put his case in that regard and gave her side of the story. This concerned a separate issue in which the Complainant had been seen attempting to access files and papers in room 228, then occupied by Mr Lee, and of course on a different floor to that on which the Complainant was positioned. In that conversation, which Ms Keys correctly pointed out Ms Cleary said occurred on an occasion which she said she was unable to recall, it is alleged that Ms Clearly said, "Once you apply to the ADB, you can no longer work here". Ms Clearly vehemently denied that she would make this statement and did not make this statement. It was put on behalf of the Complainant that the complaint of 18 September 1996 which shortly thereafter had been sent to the Anti-Discrimination Board, did not refer to this incident because it is well recognised that Complainants who are unrepresented do not always put the whole of their case to the board. We do not accept that explanation. We consider that the incident was significantly important enough in the whole context of the case against the Respondent to be a matter that would have been at the forefront of the Complainant's concerns and attention in making a complaint less than a month after the incident to the relevant discriminational authorities particularly in circumstances where the Complainant had previously raised informally a complaint about the Respondent's conduct. It was put by Mr Molomby that there were two further considerations leading to a conclusion that it is unlikely Ms Cleary would have said those words. Firstly, he pointed to her substantial record of involvement in anti-discrimination matters in the public service going back to 1980 and submitted that if it had been Ms Cleary's intention to act in the way as suggested and in those words, it is highly unlikely she would have used that type of expression. It was also put that it would be unlikely for any manager wishing to see the departure of an employee to have said anything of that type in circumstances where the employee had already given notice that he wished to seek a claim of redundancy and steps had been taken by the employer or that manager to achieve that result. That of course was the case in this matter as shortly after June when the report of Dr Roberts was given to Ms Cleary, she took steps to ensure that a successful redundancy package was given to the Complainant, which in due course did occur. We accept the submissions of Mr Molomby in that regard and reject the evidence of the Complainant on this aspect of the case. In all the circumstances, the Tribunal concludes that neither of the complaints have been substantiated before us and the complaint is dismissed. The Tribunal directs that the exhibits may be returned. The Tribunal adjourns. 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