Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202 Hearing dates: 25 and 26 February 2010, 28 and 30 July 2010 Decision date: 24 August 2011 Jurisdiction: Equal Opportunity Division Before: E Grotte, Judicial Member L Monaghan-Nagle, Non judicial member M O'Sullivan, Non judicial member Decision: 1. The complaint of unlawful discrimination on the ground of disability is substantiated. 2.The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. Catchwords: Disability Discrimination in Employment; Aboriginal Local Land Council; Epilepsy Legislation Cited: Anti- Discrimination Act 1977 Administrative Decisions Tribunal Act (NSW) 1997 Aboriginal Land Rights Act (NSW) 1983 Evidence Act 1995 Cases Cited: Qantas Airways -v- Gama (2008) FCAFC 69 St Joseph's Hospital Ltd -v- Correy (2009) NSWADTAP Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis -v- State of New South Wales (2003) 217 CLR 92 Laycock -v- Commissioner of Police (2006) NSWADT 261 Briginshaw -v- Briginshaw (1938) HCA 34; (1938) 60 CLR 336 Dutt -v- Central Coast Area Health Service (2002) NSWADT 133 Henville -v- Walker (2001) 206 CLR Commissioner of Police, NSW Police -v- Mooney (No.3) (2004) NSWADTAP 22 Category: Principal judgment Parties: Danial Hunter (Applicant) Deerubbin Local Aboriginal Land Council (Respondent) Representation: Counsel: M Tibbey (Applicant) K Eastman (Respondent) Solicitors: Legal Aid NSW (Applicant) Chalk & Fitzgerald (Respondent) File Number(s): 081053 REasons for decision Background and the Complaint to the Anti-Discrimination Board 1On 29 December 2005 the Anti-Discrimination Board (ADB) received a complaint of discrimination in employment against Deerubbin Local Aboriginal Land Council (The Council, Deerubbin or the respondent) from Danial Hunter (the applicant). The complaint was stated to be as follows: "I believe that I have been discriminated against because of my disability. I suffer from Grand Mal Epilepsy, this causes me to have epileptic seizures. I have been working casual hours for Deerubbin Aboriginal Land Council for approximately 2-3 years. I went to work on Monday 17 th October 2005 and was told there would be work up until Christmas if I wanted it, so I said yes but then on Wednesday 19 th October 2005 after work, I was at home & had 2 epileptic seizures I was admitted to Mount Druitt Hospital & stayed overnight. Due to the epilepsy I suffer short term memory loss but as my position at the Land Council was only a Land Surveyor/Looking for Aboriginal Artefacts, I could of (sic) went (sic) back to work a.s.a.p My partner run (sic) into my cousin who also works for the Land Council, she told him I was in hospital & why & he told Phillip Khan & he stopped coming to pick me up for work. On Friday 21 st October 2005 I went & seen (sic) my neurologist he gave me a medical certificate to say I was fit to go back to work, that afternoon Phillip came to my house to give me my wages, I showed him the medical certificate & told him he could take it & he said he didn't need it. He knew I could go back to work so I waited a week & hadn't heard from him so I sent him a text message letting him know that I could work if he needed me & to this day I still haven't heard from him." 2On 29 December 2005 the ADB wrote to Mr Hunter informing him that the complaint had been accepted for investigation and that an officer of the ADB would be contacting him. On 21 February 2006 the ADB wrote to Mr Hunter requesting that he contact the Board. No response had been received by 9 March 2006, and on that date the ADB wrote again to Mr Hunter informing him that, if he did not contact the Board regarding his complaint, the Board would consider that he had abandoned the complaint and terminate it pursuant to section 92C of the Anti-Discrimination Act 1977 (the AD Act). 3No response was received to this letter, and on 12 April 2006 the ADB wrote to Mr Hunter confirming that his complaint had been terminated. 4On 21 December 2006 Mr Hunter wrote to the ADB requesting that his complaint be re-opened, explaining that his mother had passed away. Mr Hunter stated that in his grief, he experienced confusion and depression. He stated that the epilepsy from which he suffered, caused memory loss, and that this contributed to his inability to pursue his complaint previously, but that he was now able to do so. 5On 17 April 2007 the ADB wrote to Mr Hunter informing him that his complaint had been re-opened. 6On 18 June 2007 the respondent's legal representatives responded to the complaint as follows: Deerubbin is a Local Aboriginal Land Council constituted under section 50 of the Aboriginal Land Rights Act 1983 (NSW). Its objects are to improve, protect and foster the best interests of all Aboriginal persons within the Council's area; In carrying out its statutory function, it employs four permanent employees; The Council conducts cultural heritage surveys and monitoring work, when, for example, buildings and roads are built, and it is necessary to determine whether anything of Aboriginal cultural significance might be buried at the building site or destroyed by the building operations; The Council provides workers, who are employed casually by the Council. These workers are then directed by consultant archaeologists, who have been engaged by the developer; The Council employs people drawn from the Aboriginal community of western Sydney. Persons who are interested in carrying out such work put their names on a register kept by the Council and there are about 30 names on the register at any one time; In order to be put on the register a person must have done a general safety induction for construction work in New South Wales and possess an occupational health and safety card (a Green Card); When work becomes available people on the list are contacted and offered work. The offer of work is neither regular nor reliable and it is not unusual for a period of six to seven months to occur between offers of work; Most of the casual work offered involves "monitoring", which consists of a worker walking alone behind a grader or other heavy machinery and surveying the surface layer of soil removed by the grader to ascertain if any cultural artefacts have been uncovered. When such monitoring is carried out the worker cannot normally be seen by other workers on the site; Danial Hunter is one of the casual employees on the register and Phillip Khan is the Senior Cultural Heritage Officer, who is involved in co-ordinating the cultural heritage survey and clearance work including arranging workers for jobs that arise; Mr Khan and his wife cared for Mr Hunter and two other children, when he was a child, during a period when his mother was unable to care for him and the two other children. At all relevant times Mr Khan acted with the best intentions towards Mr Hunter and Mr Hunter's complaint has surprised him and caused him some emotional hurt; The Council has an equal opportunity policy covering disability discrimination, which it has tried to adhere to at all times; Had Mr Hunter complained to the Council directly, it would have investigated and endeavoured to respond to his concerns appropriately; and The Council indicated its willingness to attempt resolution of the complaint. 7In a letter dated 12 March 2008 the respondent's legal representatives referred to further information uncovered by the respondent. The information was as follows: Mr Hunter experienced an epileptic fit while working for the Council on 4 March 2005; The Council continued to employ Mr Hunter after 4 March 2005 until 21 October 2005 and continued to offer him work after 4 March 2005; Only about half of the Council's casual employees, who had worked for the Council between 13 November 2004 and 21 October 2005, and included Mr Hunter, received any further work from the Council as at 10 March 2008 and the work itself, has also halved; The reason Mr Hunter was not offered work since October 2005 has been the general decline in the amount of work available to casual workers. Mr Hunter has not been treated differently or less favourably than other casual workers; The respondent provided a copy of an incident report prepared by Mr Randall, that recorded a telephone call on 4 March 2005 in which a person, who was present at the Medallist Golf Course job, notifying the Council that Danial Hunter had a seizure at that site on that day. 8The complaint could not be resolved by way of conciliation and on 9 April 2008 was referred to the Administrative Decisions Tribunal (the Tribunal) at the request of the applicant pursuant to section 93C(b) of the AD Act. The Tribunal Proceedings Applicant's Amended Points of Claim 9In the preparation of the Applicant's case, the Applicant's representatives lodged Points of Claim. At the hearing on 25 February 2010 further amended Points of Claim were admitted into the proceedings. They set out the Applicant's claims as follows (with deletions already made): "a.The applicant is a natural person who was a member of the Deerubbin Local Aboriginal Land Council. b.The respondent is a body corporate and Local Aboriginal Land Council established under the Aboriginal Land Rights Act (NSW) 1983. c.During 2003, the applicant was offered, and accepted work on a casual basis with the respondent, monitoring and excavating sites that may contain Aboriginal artefacts and searching for any such artefacts. d.During 2004 and 2005 the applicant worked 2-6 days per week monitoring and excavating sites. e.At each site he worked, the applicant told other workers that he had epilepsy. f.His supervisor and person to whom he was responsible, Mr Phillip Khan, asked him not to tell other workers that he had epilepsy, but he continued to tell other workers, for occupational health and safety reasons. g.On one occasion Mr Phillip Khan told him that he intended to allocate to the applicant more supervisory work, involving oversight of other workers, being second-in-charge on site and the applicant agreed that he would like such work. h.On or around 4 March 2005, the applicant suffered an epileptic seizure whilst working. The applicant's partner and emergency contact, Sharon, was contacted. Sharon then arranged for the applicant to be picked up from the work site. i.The following day and thereafter, the applicant was not collected for work by Mr Khan, as had previously been the case. j.After 4 March 2005 the applicant was not offered any further work until one day of work on 19 October 2005, or in the alternative, was offered less work than had previously been the case prior to the on-site seizure on 4 March 2005. k.The applicant worked on 19 October 2005. l.On the night of the 19 October 2005, at home, the applicant suffered epileptic seizures and was admitted into hospital. m.On or around the afternoon of 21 October 2005 the applicant offered Phillip Khan a medical certificate from his treating neurologist certifying him fit for work. Mr Khan refused this, so the applicant placed a copy of it in the car of Mr Khan and asked that it be placed on his file. n.The applicant has not been offered any further work since the day of work on 19 October 2005. o.The respondent unlawfully discriminated against the applicant contrary to sections 49B and 49D of the ADA, in that it: (i)after the time of his epileptic seizure on site on or around 4 March 2005 it ceased to offer him work (with the exception of one day of work that was offered and undertaken on 19 October 2005); or, in the alternative to (i) (ii)after the time of his epileptic seizure on site on or around 4 March 2005, it offered him less work (with the exception of one day of work that was offered and undertaken on 19 October 2005); (iii)It ceased to offer him work at all after 19 October 2005, although his treating neurologist had certified him fit for work. p.The respondent treated Mr Hunter less favourably than persons on the casual register of the respondent who had not suffered an epileptic seizure(s) at work. q.The applicant suffered loss and damage arising from the unlawful discrimination. r.The loss and damage was particularised as loss of income, loss of work experience, loss of self-esteem, depression, humiliation, social isolation and worsening epilepsy." The Respondent's Points of Defence to the Applicant's Amended Points of Claim 10The respondent admitted paragraphs 9(a) and 9(b) above. 11The respondent admitted that the applicant was first offered and accepted work on 22 July 2003 and that the applicant's name was put on its Register on 18 November 2004. The respondent admitted that Mr Hunter was engaged on a casual basis. 12The respondent denied that the applicant worked as a land surveyor. The applicant's duties involved working on development sites which were subject to a cultural heritage survey, and monitoring work, which involved walking behind earthmoving equipment and looking at the ground to try to detect the presence of any Aboriginal cultural artefacts or excavation work, which involved digging at the relevant cultural heritage site. 13Between 18 November 2004 and 19 October 2005, the applicant was selected for work on 16 occasions and the total number of hours he worked in this period was 486. 14The respondent denied the allegation that Mr Hunter told his co-workers about his epilepsy, or, that shortly after the applicant had an epileptic fit on 4 March 2005, Mr Khan asked the applicant whether he would be "ok" at work, and whether he needed to be given any other type of work. 15The respondent did not provide any guarantee of work on a continuing basis to any person on the Register. The nature of the work was casual and work was offered when it was available. Persons on the Register were contacted randomly. 16The applicant's last day of work was 19 October 2005. There is no record of the applicant working on 21 October 2005. The respondent has no record of the applicant suffering an epileptic fit at work on 21 October 2005. Mr Hunter's partner was not contacted on 21 October 2005. The only record of an epileptic fit at work was on 4 March 2005. 17On 4 March 2005 the applicant's partner was contacted and she collected him from the Schofields site with a friend. 18Mr Kahn did not collect the applicant for work on a regular basis. Mr Khan sometimes gave the applicant a lift to work, but on other occasions the applicant drove himself, or was given a lift by his fellow workers to where the relevant job was. 19The applicant was not offered work beyond October 2005, because there was less work available to all workers on the Register. He was still on the Register. He was not treated differently from other persons on the Register. 20The respondent did not receive a medical certificate from the applicant's neurologist on 21 October 2005, or at any time thereafter. 21The applicant's epilepsy was not a factor in his not being offered work from October 2005. The Applicant's Evidence Danial Hunter 22Mr Hunter relied on three affidavits sworn on 18 September 2008, 24 July 2009 and 8 October 2009. Affidavit sworn 18 September 2008 22Mr Hunter stated in the first affidavit that he was born on 18 May 1974 and that he has a condition known as Grand Mal epilepsy. He is under the care of Dr Jonathan Wood, neurologist. 23In 2004 Mr Hunter obtained the following qualifications from Lidcombe TAFE: a)a senior first aid certificate; b)a traffic control ticket; and c)an explosive power tool ticket. 24The Council knew he was qualified and offered him a land surveyor's job in 2003. Mr Hunter stated that Phillip Khan told him, "I've got work for you at the Land Council. It will be casual work, but there is a fair bit of work to be done." 25Mr Hunter was supervised at the Council by Phillip Khan and Steve Randall. He stated that the work he carried out for the Council was surveying and monitoring work. This work involved him looking for aboriginal artefacts in sites that were potential development sites. His duties included walking behind excavators, and digging and sieving through dirt for artefacts. 26Mr Hunter stated that each time he commenced work on a site he told other workers that he had epilepsy, despite being instructed, on several occasions, by Phillip Khan not to tell other workers about his epilepsy. Mr Hunter told Mr Khan that the other workers needed to know, in case he had a fit on a site. 27On one occasion Mr Hunter recalled informing Mr Khan that he had told his co-workers about his epilepsy, to which Mr Khan told him that he should not have done that and that he was not to do it again. Mr Hunter stated that at the time of this conversation he was working at a Rouse Hill site, and that, after this conversation, Mr Khan moved him from the Rouse Hill worksite, and clearly told him not to talk about his epilepsy at work. 28Mr Hunter stated that he had consistent work with the Land Council during 2004 and 2005, working between five and six days a week, including Saturday. He claims that he was paid an hourly rate of $16.60 and that his weekly wage was $664.00 gross. 29Mr Hunter claims that on or about 17 October 2005 Mr Khan told him that there would be work for him up until Christmas, if he wanted it. He said that he did. 30Mr Hunter also claims that shortly prior to 21 October 2005 Mr Khan told him that he would be appointed second-in-charge at the site. Mr Hunter claims that he was always on time for work and that he worked hard. 31On Friday 21 October 2005 he went to work on a site off Richmond Road, known as the "Schofield site". He said that he felt "a fit coming on" and he told a colleague, who told him to sit down and relax. Mr Hunter said that he said that could keep working by sieving the dirt. He then had a seizure. He recalled that when he woke up, Mr Khan's son was standing over him, but that he asked, "Who are you?", to which the person replied, "It's me Henry, your brother". Mr Hunter's partner was called and his friend came to take him home. Mr Hunter stated that this seizure was the only one that took place on-site while working for the Land Council. 32Mr Hunter consulted his neurologist, Dr Wood, on the afternoon of 21 October 2005. Dr Wood issued a medical certificate certifying him fit for work. 33That afternoon he showed Mr Khan the medical certificate. Mr Khan had come to his house to give him his wages, but would not take the certificate, saying that he did not need it. Mr Hunter placed the medical certificate in Mr Khan's car. 34Mr Hunter expected Mr Khan to collect him the following day for work but he did not arrive. Mr Hunter sent him a telephone text informing him that he was available to work but there was no response. He later telephoned Mr Khan on his mobile asking him why he had not come to collect him, to which Mr Khan replied, "All the work on the Schofield site has stopped". 35Mr Hunter claims that about six months after he had the seizure at work, Mr Randall called him to ask if he could do some work for the Council, because he had completed a Senior First Aid certificate and no one else with such a certificate was available to work. The following day Mr Randall collected him and drove him to work. He believed that it was the Schofield site. He claims that he was told at the site by other workers that the work at the Schofield site had never stopped. 36Mr Hunter stated that he did not have a seizure on 4 March 2005, or on any other day apart from 21 October 2005. 37Mr Hunter stated that after he stopped working, the fits became more frequent and the more stress he experienced, the more seizures he had. He experienced fewer seizures while he was working. 38Mr Hunter was diagnosed with depression in January 2006 and he developed a stomach ulcer from all of the worry. 39He believes that he has been betrayed by his own people in the community. The job he had with the respondent meant a lot to him, because he felt acknowledged by the Koori community and it is important to his self-esteem to have regular work. He feels discriminated against and, as a result, feels heartache, humiliation and depression. 40The discrimination has also made him feel uncomfortable in his community and he feels that no one will trust him, because he made a discrimination complaint. 41Mr Hunter sated that he is unable to locate any witnesses who could give evidence on his behalf, because people will not come forward. They are scared of "payback" by the Council. 42Attached to Mr Hunter's affidavit dated 18 September 2008 was a document bearing the title "Site Induction Report" for the Rouse Hill project. It is dated 19 April 2005 and relates to Mr Hunter noting that his green card had been sighted. It also notes that his next-of-kin is Sharon Slater and that he has epilepsy as a "relevant medical condition". 43Also attached to his affidavit dated 18 September 2008 is a copy of a medical certificate with respect to Danial Hunter from Dr Jonathan R. Wood dated 21 October 2005. Dr Wood has stated, "I believe he is fit for his usual duties at work. He may not drive or operate machinery". Affidavit sworn on 24 July 2009 44Mr Hunter's affidavit dated 24 July 2009 specifically addressed the evidence of Kevin Cavanagh set out in his affidavit sworn on 11 June 2009 and the evidence set out in Phillip Khan's affidavit sworn on 11 June 2009. 45Mr Hunter stated that documents attached to Mr Cavanagh's affidavit appeared to confirm that his seizure occurred on 4 March 2005, but the documents were not consistent with his own recollection. 46Mr Hunter explained that his condition of Grand Mal epilepsy affects his memory and his ability to recall events. However he stated that he was "one hundred per cent sure" that he had an epileptic fit at the Schofields site. He described the environs, recalling a roundabout on the main road coming from Richmond. He said that the digging took place on the left-hand side. On the right-hand side there were tin sheds and it consisted of vacant land. He recalled telling a colleague of the imminent seizure and that following the seizure, he saw Henry Khan. Mr Hunter stated that he also recalled waiting to be collected one morning after he had had a fit in his sleep. 47Mr Hunter stated that his complaint to the ADB was written approximately two months after his last day of work with Deerubbin. He stated in that complaint that he had the fit on 19 October 2005, but he now believed that the correct date was 20 October 2005. 48Mr Hunter stated that he worked more hours than were reflected in his payslips. He recalled working five to six days a week. 49Mr Hunter also addressed Mr Khan's affidavit sworn on 11 June 2009. He stated that he was never asked about his suitability for work. The Council just gave him work. 50He denied ever having to find his own way to work. He was always collected in a Land Council vehicle to go to work. He did not have a licence in 2005, and he did not drive himself to work at that time. 51He maintained that he received regular and consistent casual work until the time of his on-site seizure at the Schofields Site. He was given no more work following the on-site seizure, despite work being available at the Schofields site for several months thereafter. 52Mr Hunter maintained that Phillip Khan knew about his epilepsy and he maintained that Mr Khan told him off for telling a co-worker about his epilepsy. Mr Hunter claimed that the day following his disclosure regarding his epilepsy to the co-worker, he was removed from the site at which he was working to another site. 53Mr Hunter denied that Mr Khan or Mr Randall ever offered him work to fit his disability. He stated that his disability was not accommodated, that no special arrangements were made for him, and that he was not provided with extra breaks. 54Mr Hunter also addressed the evidence of Steven Kenneth Randall sworn on 5 June 2009. He stated that Steven Randall told him when he would be collected for work and on several occasions said to him, "Be ready for work". 55Mr Hunter stated that following the seizure at the Schofields site, he did not recall speaking to Mr Randall, or going home. He recalled regaining consciousness and seeing Henry Khan. 56Mr Hunter stated that he was not paid on site. He claims that he was paid in cash. He was paid at his home by either Phillip Khan or Steven Randall and the money was given to him in a yellow envelope. 57Mr Hunter maintained that Steven Randall also knew that he had epilepsy, as did all the workers at the respondent. 58Mr Hunter believed that he was offered one further day of work after the on-site seizure, but he could not recall when this occurred. 59Mr Hunter stated that he obtained a medical certificate because he wanted proof that he was fit to return to work despite the seizure. Affidavit sworn on 8 October 2009 60Mr Hunter's affidavit sworn on 8 October 2009 stated that the events that are the subject of the proceedings have had a "terrible impact" on him. 61He stated that previously he had a number of "tickets" and skills. As a result of the events, he became very stressed, depressed and upset. He is now prescribed anti-depressant medication. He also experiences panic or anxiety attacks and sometimes he vomits, when he has to take his anti-depressant medication because he becomes extremely anxious. 62Mr Hunter's seizures have become more frequent and more intense. His doctor has advised him he cannot work on machinery or drive a car. As a result, his work opportunities are severely limited. 63Mr Hunter stated that he hoped the respondent would offer him work, as it had done previously, so he did not look for other work. He thought that the respondent would continue to employ him. 64He went to Queensland in September 2009 and thought about the subject proceedings. He became very stressed and as a result, experienced a seizure that was quite severe. 65Mr Hunter feels intensely distressed by the way he has been treated, especially by Mr Khan, whom he calls, "Uncle Phil". Mr Khan was his foster father and was like a father to him. He claims that Kevin Cavanagh, Steven Randall and Phillip Khan do not acknowledge him, even if they pass each other at the Aboriginal Medical Centre, or on the street, or in some other public place. Mr Hunter finds this very distressing and mentally disturbing. 66He claims that other people in the Aboriginal community are less open with him and less trusting and he feels excluded and ostracised. 67Mr Hunter attached copies of his "tickets", which confirm his qualifications to carry out construction work in NSW, his competency in Occupational, Health and Safety, his certification as an explosive power tools operator, and his licence to drive forklift trucks. Oral Evidence of Danial Hunter 68Mr Hunter conceded that he had a memory problem and that he sometimes becomes confused, but he maintained that he was not confused about dates. He could not recall the date on which he began working for the respondent. He explained that he had been in a coma and had experienced a few fits since the coma. 69Mr Hunter confirmed that prior to working for Deerubbin, he carried out construction work and seasonal fruit-picking work, as well as working for a butcher and doing maintenance work. 70He agreed that he was not a fulltime employee of the respondent, that he was placed on Deerubbin's Register as a casual, and that there was no guarantee of either work or work on particular days. He agreed that he was able to do other work and that work for the respondent was irregular. He was paid for the days he worked and he was paid a different amount each week, representing the hours he had worked that week. 71Mr Hunter initially stated that he was given work for Deerubbin as a "land surveyor". He described the work he did as "walking behind machinery. Looking for artefacts". He said that he was a qualified surveyor. 72Mr Hunter told the Tribunal that he first developed epilepsy about 10 years ago, and that he was under the care of Dr Wood. While he was working for Deerubbin, he was taking medication, which was controlling the epilepsy. 73Mr Hunter maintained that he told Mr Khan, Mr Randall and Mr Cavanagh about his epilepsy when he began working for the respondent. He said that he told them he had Grand Mal epilepsy but that he had been cleared for work. He claimed that he gave the respondent a medical certificate to this effect, but agreed that nothing had been produced to support this claim. 74Mr Hunter was questioned about the inconsistencies between his evidence regarding the time of his seizure at the Schofields site and the evidence of the respondent's witnesses. He denied that he had only one seizure and he maintained that he had a seizure on 21 October 2005. He stated that he recalled this one because he had a letter from his neurologist confirming that history. It was put to him that Mr Cavanagh's evidence was that he did not work on 21 October 2005. He stated that he could not be sure. He could not recall working on 19 January 2005 or 16 February 2005, and he stated that he could not agree that he had the seizure on 4 March 2005, because he could not remember dates. 75Mr Hunter told the Tribunal that he recalled working for one day about six months after the seizure, but he could not say when that was. He had no recollection regarding the worksites and hours worked recorded in the Labour Control Timesheets for days after 4 March 2005. He stated that he did not receive work after he had the seizure. 76Mr Hunter stated that he could not recall going to hospital in October 2005 after experiencing a seizure in his sleep. 77He recalled seeing Dr Wood and asking him for a certificate. He recalled photocopying the certificate. He could not recall whether he gave Mr Khan the original or a copy of the certificate, but he recalled giving him the certificate. 78Mr Hunter stated that he received a letter from his superannuation company informing him that he would not be paid superannuation again by the respondent. This led him to conclude that he was "laid off". He did not remember whether he called anyone at Deerubbin to confirm this information. He stated that he was not aware that he was still on the Register, and that he was not aware of any decline in business since 2005. 79Mr Hunter stated that Dr Wood supported his application for a disability support pension, which he is now receiving. He agreed that he has family stress, but he stated that that stress has no impact on him. He agreed that the hot weather adversely affected his epilepsy. 80He stated that Mr Randall has avoided and ignored him. Sharon Anne Hunter 81Sharon Hunter is the wife of Danial Hunter. She relied on the evidence contained in five affidavits sworn on 18 September 2008 (two versions), 24 July 2009, 8 October 2009 and 23 October 2009. Affidavit sworn on 18 September 2008 82Ms Sharon Hunter has known Danial Hunter for nine years. She first met him in September 1999 and they married on 7 July 2007. 83Ms Hunter recalled that Phillip Khan offered Danial work, looking for aboriginal artefacts, and that ever since that day of the first offer, Danial worked for the respondent. Mr Khan collected him in his car, customarily arriving to collect him at 6-6:30am. Sometimes Danial returned home at 4pm, and sometimes at 6pm. On Saturdays, he arrived home from work for the respondent at 1 or 2pm. 84Ms Hunter stated that until May 2004, she and Danial were living at her mother's home. At that time, Danial was working approximately five days a week, but after moving to Shalvey in May 2004, he worked six days a week. Ms Hunter recalled this, because she was lonely and she did not have much time with him. Danial was never home and she had to mow the lawn. Ms Hunter also stated that she clearly recalled how many days Danial was working at that time, because one of Danial's nieces was staying with them and she had to get her ready for school. Danial always left before her niece got up in the morning. 85Ms Hunter stated that on 21 October 2005 after Danial had gone to work, Steve Randall called her to tell her that Danial had "a fit at work and he has fallen in the mud". Mr Randall asked her to fetch him. She stated that she grabbed some towels and waited for Troy Wade to pick her up. 86She and Troy drove to the site on Richmond Street. Steve Randall had driven Danial up to meet them halfway and she heard Steve tell Danial that he would drop his wages off that afternoon. It was a Friday and Danial was paid on Fridays. 87Ms Hunter stated that Danial had an appointment with his neurologist, Dr Wood, that afternoon. He attended his appointment and obtained a medical certificate. Later that afternoon, Danial asked her for the medical certificate because he wanted to give it to Phillip Khan, who had arrived at their place. She gave him the medical certificate. She saw Mr Khan in a Land Council car parked outside the front of their home. She stated that Danial said to her words to the effect of: "Uncle Phil said he didn't need the medical certificate so I threw it on the back seat of his car." 88Ms Hunter stated that she is Danial's emergency contact and that if he had any seizures at work, she would have been notified. Apart from the seizure on 21 October 2005, she is sure that Danial did not have any other seizures at work, whether on 4 March 2005, or at any other time. Danial worked on site in dirt and mud. If he had had a seizure, she would have been contacted to bring a change of clothing or to take him home. Ms Hunter stated that she was not notified on 4 March 2005 or at any other time other than on 21 October 2005. 89Ms Hunter stated that as far as she knew, Danial had not been offered any work by the respondent since 21 October 2005, despite Danial's recollection that he was offered an extra day of work some months later. 90Ms Hunter stated that Danial loved working and that he radiated confidence when he was working for the Land Council. He took pride in his work and he felt that he was taking care of his wife and family. 91In contrast, he now feels worthless, because he is not working and not supporting her. He has often said, "I feel bad that I can't provide for you the way I want to. I hate being on the pension. I hate not being at work." 92Ms Hunter stated that Danial's behaviour has changed since 21 October 2005. His is more moody and expresses depression. He is withdrawn and not very talkative. Before he lost his job, he worked in the garden, but the garden is now neglected and he spends most of his time in the house. He used to be a calm and very patient person, but he now has a short fuse and raises his voice over the littlest things. He has also lost his appetite and sometimes only eats one meal a day. 93Ms Hunter also stated that Danial attended Land Council meetings either with Phillip Khan or Steven Randall prior to the seizure at work on 21 October 2005. This did not happen after 21 October 2005. Ms Hunter stated that Danial told her that Phillip Khan ignored him when they saw each other at the Aboriginal Medical Centre. She claims that he is worried that the people at the Land Council are talking about him and that he will not be given a reference or get another job. 94Ms Hunter stated that no one will speak against the Land Council and support Danial for fear of losing the opportunity of getting work. Affidavit sworn on 24 July 2009 95This affidavit deals with Ms Hunter's response to the respondent's evidence. 96Ms Hunter stated that she disagreed with Mr Khan's evidence, although she could not be certain of whether the date of Danial's on-site epileptic fit was 4 March 2005. She confirmed that she picked up Danial in Troy Wade's white commodore, but she believed that this occurred on 21 October 2005. 97Ms Hunter confirmed the date of Danial's attendance at Dr Wood's office, being 21 October 2005. 98She confirmed her earlier evidence regarding Mr Khan's visit to the house on the afternoon of that date. She recalled that she was doing the washing up and that when she looked out the window, from which there is a view of the street, she saw that a Land Council vehicle had pulled up at the front of the house. 99Ms Hunter disagreed with the version of events as related by Mr Randall and maintained her version of what she said occurred, although she was not certain of the exact date of the seizure. 100She stated that she clearly recalled that Mr Randall told her that Danial had a fit at work and that he was covered in mud, because she would not have taken towels otherwise. 101Ms Hunter confirmed that the account that was given to the ADB in the letter of complaint was true and correct to the best of her knowledge. She recalled that it took about two months to write to the ADB because Danial was not certain as to what he should do. His auntie, Darleen Nipps, suggested that he lodge a formal complaint with the ADB. Affidavit sworn on 8 October 2009 102In this affidavit Ms Hunter expanded on her evidence regarding Danial's reaction to the events the subject of these proceedings. 103Ms Hunter stated that Danial became distressed at the change in his relationship with Phillip Khan, his foster-father. He could not believe that Mr Khan was not helping him. He was concerned that he cannot provide for her and his family. 104Ms Hunter stated that she has been receiving a full-time carer's pension since February 2006, because he was no longer getting any work from the Council and that his seizures increased. Ms Hunter administers his medication, which includes Avanza for depression. He did not suffer from depression previously. She claims that his behaviour has changed, that he no longer socialises, and that he has become withdrawn. Affidavit sworn on 23 October 2009 105Ms Hunter attached copies of handwritten notes made by her in the period 2 January 2006 to 2 October 2009 documenting the number of epileptic seizures which Danial had in this period. She recorded this information at the request of Dr Wood. There were some gaps in the notes for the periods 19 August 2007 to 13 December 2007 and from March 2009 to 31 August 2009. She claims that Danial did have seizures during those periods, but she could not recall how many or when they occurred. 106Ms Hunter stated that in about late July 2009, Danial asked her to keep a computer record of the times of the seizures. On 19 October 2009 she created a file to keep such a record. She claims that initially when she began keeping the records, she did so with some precision, because she hoped it would help his condition, but after a while, she lost interest because there was no improvement. 107Danial has continued to have "fits" since 2 October 2009, including one Grand Mal on 20 October 2009. Oral Evidence of Sharon Hunter 108Ms Hunter told the Tribunal that she wrote out Danial's complaint to the ADB for him, using his words. She said that he cannot spell and he was embarrassed to write it out himself. 109She explained to the Tribunal that there were two versions of her affidavit sworn on 18 September 2008 because after she signed the first one, she spoke with Ms Novotna, who had noticed that the second version had three extra lines in paragraph 12. Ms Novotna required the affidavit to be redrafted and resworn. Ms Hunter explained that the process of producing the affidavits was that her answers to questions posed by her solicitor were typed up as she gave them. 110Ms Hunter told the Tribunal that she made all of her husband's appointments and attended them with him. She said that he was previously a very happy person, but she has observed that he is now withdrawn and does not want to socialise. He has said to her that he does not like being on the pension and not working. 111Ms Hunter told the Tribunal that Danial had a seizure during the night of 19 October 2005 and that he was taken to the hospital by ambulance. She said that she ran into Anthony Hunter, Danial's cousin, and told him that Danial was in hospital but should be out the next morning. She said that Anthony told her that he would telephone Phillip Khan and she assumed that he did so. She said that "Uncle Phil", referring to Phillip Khan, stopped coming to pick up Danial for work. 112She maintained her evidence that she saw Danial leave a piece of paper, which she believed to be the medical certificate, in Mr Khan's car. 113Ms Hunter was asked about her evidence that Danial had an epileptic seizure on 21 October 2005. She said that at the time she swore the affidavit she believed this evidence to be true. She said that "as of late" however, she is unable to remember and cannot confirm it to be true. She recalled that he had a seizure at work, but now is not too clear as to the date. She agreed that he did not have a second seizure at work. Ms Hunter was asked to explain the specific mention of the date "4 March 2005" in her affidavit. She explained that she referred to this date because she was specifically asked about it. 114It was put to Ms Hunter that there was no mention of Danial's having an epileptic fit at work on 21 October 2005 in the original complaint to the ADB. She agreed that the expectation would be that it would have been referred to, because it was an important fact. 115Ms Hunter said that there was a pay slip which would confirm that Danial carried out work for one day. The respondent's counsel called for that pay slip but it was not be produced. Ms Hunter explained that she was unable to locate it. 116Ms Hunter said that Danial had looked for work through a job agency. She agreed there had been a family dispute and that this had caused him stress. Further Evidence of the Applicant Affidavit of Paula Novotna, Legal Officer at Legal Aid, sworn on 2 September 2009 117Paula Novotna is the Legal Aid legal officer who has carriage of this matter. She stated that she had read and analysed the respondent's evidence. She stated that she noted that the documents attached to Kevin Cavanagh's affidavit dated 11 June 2009 showed no record of time worked by Mr Hunter in the period 3 March 2005 to 19 October 2005. 118Ms Novotna stated that in documents received from the AMP SuperLeader superannuation fund, the Chief Executive Officer for the respondent had stated that Mr Hunter had resigned from his employment with the respondent on 21 October 2005. 119Ms Novotna also compared Mr Cavanagh's evidence in his affidavit dated 1 June 2009 with the timesheets produced under summons. The timesheets do not support Mr Cavanagh's contention regarding days on which work was not available to casual workers on the Register. 120Ms Novotna stated that according to the timesheets Danial Hunter commenced undertaking regular work for the respondent in November 2004. Of the 32 employees who received work in November 2004, 15 remained on the payroll as at March 2008. Of the casual workers who were given work between November 2004 and October 2005, being dates during which the applicant received casual work, 17 casual workers have dropped off the payroll. 121Ms Novotna also stated that 19 causal employees have been engaged by the respondent and have undertaken work as casual employees since 30 June 2005. They are: Raymond Adams Cubby Blake Reginald James Cuthbert Robert Patrick Donovan Allan John Doolan Ralph Hampton Brian Hunter Paul Hunter Wade Hunter Steven Knight Mathew Moore Luke Moore Damian Morrison Donald Nixon Phillip Thomas Smith Gary Stokes Norman Swan Albert Wilson Douglas Wright 122Attached to Ms Novotna's affidavit is a document bearing the title "Table detailing hours worked by Danial Hunter as compared to Respondent's Timesheets". The comparison shows discrepancies between Mr Hunter's pay advice sheets and whether he has been recorded as having worked in the timesheet. According to Ms Novotna's comparison, Mr Hunter was not recorded in the timesheets for the following periods and/or days, despite being paid for work done in those periods or on those days: 30/11/04 11/1/2005 3/2/05 - 7/2/05 22/4/05 - 27/4/05 13/2/05 - 28/4/05 23/3/05 - 3/06/05 14/10/05 Medical Reports of Dr Wood dated 27 November 2008 and 4 September 2009 123Dr Wood provided a medical report on behalf of Mr Hunter dated 27 November 2008. The letter of instruction dated 2 September 2009 from Mr Hunter's legal representatives to Dr Wood was also tendered in evidence. 124Dr Wood is a specialist neurologist and physician. He has been treating Mr Hunter for several years since 3 June 2005. He reported that since 2005 he has seen Mr Hunter on a number of occasions. At the first visit Mr Hunter described events consistent with seizures that had been occurring for six years. 125When Dr Wood first saw Mr Hunter, Mr Hunter was taking 25 mgs of Lamictal, three times a day, as prescribed. Dr Wood reported that he recommended an increase in the dosage, which improved the seizure frequency initially, but the improvement was not maintained. A different medication, levetiracetam, was recommended, with significant benefit and reduced seizure activity. Despite improvement on increased dosage, Mr Hunter continued to experience seizure activity of fluctuating frequency. When a combination of the two medications was tried, there was a significant reduction in seizures, but since 2008 Mr Hunter's seizure activity once again increased, with a consequent increase in dosage. 126Dr Wood stated that since February 2008 Mr Hunter has been suffering an average of two seizures per month, despite receiving a variety of anti-convulsant drugs. Prior to February 2008, Mr Hunter was experiencing four to six seizures per month. 127Dr Wood stated that in general terms, people with epilepsy are able to perform work that does not involve driving, operating machinery or being in situations where they would be at risk if they lost consciousness. In general terms, the work of a land surveyor would not appear to include these risks, although some risk may relate to earthmoving machinery. Second Report of Dr Wood dated 4 September 2009 128On 4 September 2009 Dr Wood reported that Mr Hunter's diagnosis of "tonic-clonic seizures" remained. He stated that Mr Hunter continued to suffer recurrent seizures despite anti-convulsants and that the seizure frequency varied significantly with time. 129Dr Wood reported that "it appears from discussion with him and his partner that increased stress in his life does tend to increase seizure frequency". 130Dr Wood's opinion "his levels of emotional stress do appear to influence the seizure frequency and as it would be logical to assume that not being given work would result in emotional stress then it is reasonably likely that this would results (sic) in an increase in seizure frequency". 131Dr Wood reported that "he (Mr Hunter) and his partner have stated to me on several occasions that the legal process involving alleged discrimination have had a substantial influence on his stress levels and thus may well have increased his seizure frequency". 132Dr Wood stated that he believed that Mr Hunter's seizure frequency may be influenced by adjustment in his medication and finalisation of the current legal proceedings. Oral Evidence of Dr Wood 133Dr Wood told the Tribunal that he has been treating Mr Hunter since June 2005 and that, by the time of the hearing, he had seen him on 16 occasions over a period of four-and-a-half years. He had no record of whether Mr Hunter was working at the time of the first consultation. He had no clinical notes because he used his reports as his record. 134He told the Tribunal that anti-convulsant medication has side effects, such as mood change and anxiety. Dr Wood stated that he had a clear recollection that Mr Hunter told him that he was agitated but he could not recall when that was. He said that since his correspondence began with Mr Hunter's legal representatives, he became more aware of work issues. 135Dr Wood told the Tribunal that Mr Hunter was having fewer big seizures, but still having partial seizures. By November 2007 he had the best control that he had in months due to new drugs, but in April 2009 Mr Hunter was admitted to Blacktown Hospital presenting with seizures and he was intubated. This is sometimes referred to as an "induced coma". He spent five days in hospital. 136Dr Wood told the Tribunal that there was no evidence that warm weather caused an increase in epilepsy activity, but he agreed that withdrawal from narcotics could cause seizures, and sleep deprivation could also cause an increase in seizure activity, in so far as stress can cause sleep deprivation. 137Dr Wood confirmed that each time he sees Mr Hunter, Mr Hunter's wife brings along a list of the dates of his seizures. 138Dr Wood confirmed that legal processes can cause stress and can aggravate seizure activity, particularly if the condition is poorly controlled. He confirmed that both Mr and Mrs Hunter told him that Mr Hunter was stressed and agitated by the legal proceedings in respect of his discrimination complaint. 139As far as Mr Hunter's history was concerned, Dr Wood was reliant on what he had been told by both Mr and Mrs Hunter. 140In his opinion, Mr Hunter's condition had deteriorated, because he is now on three times more treatment than he was when he first saw him in 2005. 141Dr Wood agreed that higher levels of medication will affect his memory adversely, and Mr Hunter had complained that his memory was poor after a seizure. Medical Report of Dr Anthony Dinnen dated 4 December 2008 142Mr Hunter also relies on a medico-legal report of Dr Anthony Dinnen, psychiatrist. A copy of the letter of instruction from Mr Hunter's legal representatives was attached to the report. 143Dr Dinnen set out his expert qualifications, which are, briefly, that he is a consultant psychiatrist, who has been in private practice since 1971, is also accredited as a WorkCover assessor, and is accredited by the NSW Victims Compensation Tribunal as an authorised report writer. 144Dr Dinnen reported that he examined Mr Hunter on 28 November 2009 alone. He reported that Mr Hunter gave him a discursive and wide-ranging account and that he found it difficult to see the connection between one comment and the next. 145Dr Dinnen reported that Mr Hunter told him that he not had any psychiatric illness previously, and that his depression began when the respondent stopped hiring him. 146Dr Dinnen stated that: "The patient does not give a good history. There was a lack of coherence and ordered information which would therefore suggest a degree of psychiatric pathology. His memory for recent and past events is impaired. His mood is that of depression. He expresses a sense of grievance and distress at the way he was treated by Deerubbin Aboriginal Land Council, and the way he has been shunned by members of his Aboriginal community since he lodged a claim for discrimination. It seems that has compounded the problem caused by the fit at work which led to his ongoing unemployment. The past history is indicative of premorbid psychological disturbance, with a dysfunctional upbringing, limited education, and a history of substance abuse in his late teens. The breakdown of the relationship with the mother of his two children is a further source of ongoing emotional distress I believe. His lack of contact with his three children, one of whom was conceived out of wedlock in Condobolin, is also certain to have ongoing psychological impact. Nonetheless, there is no indication of any serious depressive illness occurring prior to these events three years ago. That is not to say that there may not have been frank psychiatric disorder diagnosed and treated in the past, but I have no knowledge of any history that that was the case. One must presume that this episode of depressive illness which is now evident is the first such episode, and it is obviously related to the events which he described to me at interview and which are recorded in the Affidavits. The diagnosis is that of adjustment disorder with depressed mood. I believe there was certainly a predisposition to such a reaction, because of past life circumstances as described, but I think it is unlikely that he would have developed such a depressive illness if his employment had been maintained, in spite of the occurrence of occasional epileptic fits. Many patients with epilepsy maintain employment and have constructive lives, and the epilepsy only becomes of importance when it is uncontrolled and frequent. Again, there is no good evidence that that has been the case previously, and the patient's history is indeed to the contrary, that is he told me that his epilepsy had only been a real problem for the past three years." 147In summary, Dr Dinnen stated that although there was some pre-existing vulnerability, "it would appear that the treatment of his employer, as a consequence of the patient's epilepsy contributed to the depressive illness", and that "there is no psychiatric reason why he should not continue in employment as before, as a Land Surveyor or in any other capacity." Dr Dinnen was of the opinion that "if he continues to be unemployed, continues to be subject to rejection by some members of his community, and develops financial pressures as a result of these difficulties then it is likely his condition may well worsen with a resumption of the use of addictive substances, a development of a more severe depressive illness or further loss of control of epilepsy." Oral Evidence of Dr Dinnen 148Dr Dinnen told the Tribunal that he considered Mr Hunter to be truthful. 149Dr Dinnen stated that he did not enquire about what qualified him for the disability support pension, but assumed that the number of medications he was taking qualified him for the pension. 150He stated that he was not convinced there was evidence of an organic cognitive impairment. 151He agreed that the drugs taken by Mr Hunter, apart from Avanza and Methadone, can affect memory. 152Dr Dinnen stated that he took a detailed history from Mr Hunter. He understood that the marriage was stable, and there was no indication of ongoing personal conflicts and family conflicts after 2005. Dr Dinnen stated that it was very clear to him that the applicant was experiencing difficulties which were due to stress and depression because of what he had experienced in the workplace. 153Dr Dinnen confirmed his diagnosis of adjustment disorder with depressed mood. He noted that the condition can be chronic and can continue for six months after the stress is removed. Dr Dinnen stated that a stressor can be short or long term, and that a person can have prolonged stress, which will give rise to an adjustment disorder. In his opinion the most important stressor was the legal proceedings and not Mr Hunter's family conflicts. 154Dr Dinnen told the Tribunal that Mr Hunter may benefit from counselling, but added that it should be with someone who is sensitive to Mr Hunter's particular personal and cultural background and who is able to establish good rapport. The Respondent's Evidence Phillip Pollowan Khan Affidavit sworn on 11 June 2009 155Phillip Khan relies on an affidavit sworn on 11 June 2009. He stated that he is a Senior Cultural Officer and permanent employee of Deerubbin Local Aboriginal Land Council. He has held this position since June 2001. He previously held this position between June 1993 and November 1997. 156Mr Khan stated that he has been involved in the provision of casual work to labourers on Deerubbin's Register of Casual Workers (the Register). The Register is a list of persons interested in doing casual work for Deerubbin that is maintained by the respondent's administrative staff on a computer. These administrative staff members regularly update the Register. 157The number of people on the Register varies. In October 2005 there were 69 workers on the Register. Persons who are suitably qualified are told of the Register by word of mouth. To be suitably qualified a person must have done a general safety induction for construction work in New South Wales and possess an occupation health and safety card (Green Card) as evidence of this. The person must also be Aboriginal and supply a tax file number. The respondent does not advertise positions on the Register. 158Mr Khan stated that although a person is on the Register, that person is not an employee of Deerubbin and is not guaranteed work. People on the Register do not receive any wages from Deerubbin simply by virtue of being on the Register, and in 2005 there were no written contracts entered into in relation to their work with Deerubbin. The terms and conditions of work agreed upon were entirely oral. Persons on this Register are free to do other work. It is common for Mr Randall and Mr Kahn to call persons on the Register, but to discover that they are not available because they are doing other work or because it will interfere with their social security benefits or pensions. The process is random and the first available person is offered the work. On occasion, teams of workers are assembled to carry out particular jobs, which may mean that the same workers are given work at a particular site until the work is completed. Sometimes a worker is assessed for their suitability for particular work. The hours and conditions of work are set by the respondent in consultation with the contractors supplying archaeological expertise. Workers are paid usually by the Senior Cultural Officer supervising the particular site. 159Mr Khan stated that persons on the Register are offered either monitoring or excavating work. Monitoring work involves walking behind earthmoving equipment and looking at the ground to try to detect the presence of any Aboriginal cultural artefacts. Excavation work involves digging at the relevant cultural heritage site. Mr Hunter was offered both types of work. He was not given any surveying work. 160Mr Khan stated that if work was available, he would usually pick up a person and drive that person to the site. This ensured a more reliable workforce, but provision of transport was not a condition of work for the respondent. Mr Khan stated that he sometimes would pick up the applicant, but sometimes the applicant would drive himself or accept a lift from a co-worker. 161The type of work offered and the hours of work varied depending on the location and type of job. The work is not regular, permanent or consistent, and work may not be available for long periods, because the work given to the respondent is not regular or consistent. In December 2005, for example, there were no days of work available. 162Mr Kahn stated that in the period 1 October 2005 to 1 January 2006 there were 225 jobs offered to persons on the Register at 12 sites. 163Mr Khan stated that Mr Hunter was a foster child of his. He had Mr Hunter in his care and control for about two-and-a-half years. He cared for Mr Hunter because Mr Hunter's mother was fearful that the welfare authorities would take him away from her. All three of her children were cared for by Mr Khan and his wife. Mr Hunter did not have epilepsy as a child. 164Mr Hunter began undertaking casual work for the respondent in 2003. He was placed on the Register on 18 November 2004. Mr Khan stated that he did not hire Mr Hunter from the CDEP program as Mr Hunter has claimed, but that he knew Mr Hunter had the requisite certificates from Lidcombe TAFE. He did not offer him any permanent employment as a "land surveyor". Mr Hunter's work was restricted to monitoring and excavating, and his record of work was satisfactory. 165Mr Khan stated that around 11 March 2005 he was told by another worker at the respondent that Mr Hunter had an epileptic fit on 4 March 2005. This was the first time he had heard of Mr Hunter having a fit while working for Deerubbin. Mr Khan stated that he did not know that Mr Hunter had epilepsy prior to being told about it in March 2005. Mr Khan stated that shortly after he learned of Mr Hunter's epileptic fit on 4 March 2005, he became concerned about him at work. He stated that he said to Mr Hunter, "Will you be OK at work" Do you need me to give you any other type of work or anything?" He stated that Mr Hunter replied, "I will be OK. I don't want you to give me any other work than the other workers." He stated that he did not tell Mr Hunter not to mention that he had epilepsy to other workers. 166The respondent has other workers with disabilities on the Register and if any issue arises that is related to the disability, Mr Khan generally asks the person if they require special work or extra breaks. 167Mr Khan stated that he did not recall telling Mr Hunter in October 2005 that he could have work until Christmas 2005 if he wanted it. He doubted that such a conversation took place because the work done by workers on the Register could not be guaranteed. He denied telling Mr Hunter shortly prior to 21 October 2005 that Mr Hunter would be made second-in-charge on the site because he had been working longest on the site. 168Mr Kahn agreed that although he delivered wages in person, he could not recall doing so on 21 October 2005. He denied being given a medical certificate by Mr Hunter on 21 October 2005. He could not recall saying that he would pick up Mr Hunter on 22 October 2005. He denied receiving any telephone call from Mr Hunter asking him why he had not collected him for work. 169Mr Kahn stated that the amount of casual work available at the respondent has declined. This is partly due to there being less development and building in the area and partly due to the fact that other Aboriginal organisations have successfully tendered for the work and are carrying out it out. Oral Evidence of Phillip Khan 170Mr Kahn said that he encouraged Mr Hunter to make himself available to work for the respondent and have his name placed on the Register. He said that Danial did not tell him that he had epilepsy and he did not know about it. He strongly denied that he told Danial not to tell anyone about his epilepsy. 171Mr Kahn stated that he believed that Danial had a fit on 4 March 2005. 172He could not recall whether he went to Danial's home on 21 October 2005. He denied receiving a medical certificate from Danial. 173He agreed that Mr Hunter was not offered work after 4 March 2005 but he said that this was because there was not much work around. He denied that it was because of Danial's epilepsy. 174Mr Khan agreed that Danial was the only person on the Register who had epilepsy. 175He said that he knew that Danial was willing to work after 19 October 2005. 176He agreed that work was available and that he could have offered it to Danial. 177He said that he did not believe that Danial would be less reliable or a danger on the site. He did not ask him for a certificate from a doctor to say that he fit for work. 178He was really shocked when he received the complaint, because he believed that he had done a lot of really good things for the Aboriginal youth in the Mt. Druitt area. 179He said that he was there for Danial, but that the relationship was not what it had been previously, because Danial had been into drugs for a long time. 180Mr Khan said that Danial was still on the Register along with 50 other people who have not been offered work. Steven Randall Affidavit sworn on 5 June 2009 181Steven Randall is a Senior Cultural Officer employed by the respondent. He has held this position since June 1993. 182Mr Randall selects casual workers to work for the respondent. Work is not always available and it is only offered when it becomes available. Persons are selected from a Register. Persons on the Register are selected to carry out monitoring and excavating work. "Surveying" is not carried out by persons on the Register. 183The process of selection is random and the first available person is offered the work. 184Mr Randall stated that he is one of the persons responsible for the safety and conduct of the casual workers when they are at work. 185Mr Randall stated that he was not at work when Mr Hunter had an epileptic fit at work on 4 March 2004. He received a telephone call at about 11:55 am and was asked to come to the site because Mr Hunter had had an epileptic fit. 186Mr Randall stated that when he arrived at the site, he found Mr Hunter in the shade at the side of the shed on the site. He made sure he was okay and he asked whether he wanted to be taken to a medical centre. Mr Hunter told him that his wife was coming to collect him. Mr Randall produced a note of the incident, which he had written. The note bore the title "Incident Report" and was dated "7 March 2005" and signed by him. It stated: "I received a phone call at the office on Friday 4/3/05 from someone on site at the Medallist golf course job, that one of our workers had a seizure at the sieves. I left the office to go out to the site and found that Daniel Hunter was the person that fitted. He was gone when I arrived and I filled in for the rest of the afternoon." 187Mr Randall explained that the last sentence was intended to mean that Mr Hunter left after he saw him. Mr Randall stated that Mr Hunter left the site at 12:45 pm and he drove him to the front of the property, where he met Mr Hunter's wife. Mrs Hunter had arrived as a passenger in a white commodore. He stated that he paid Mr Hunter on the spot. 188Mr Randall did not know prior to the incident that Mr Hunter suffered from epilepsy. He denied telling Mr Hunter not to mention his epilepsy while he was at work for the respondent. Mr Randall stated that after Mr Hunter's epileptic fit, he continued to offer work to Mr Hunter and Mr Hunter did not ask for any special arrangements, nor were any made for him. 189Mr Randall denied telephoning Sharon Hunter and speaking to her on 21 October 200. He denied doing any of the things which Mrs Hunter alleged he had done on 21 October 2005. He stated that Mrs Hunter is confusing the events of 4 March 2005 and attributing them to 21 October 2005. 190After October 2005 the amount of work available to casual workers declined because of less development and building in the area. Less work was therefore offered to Mr Hunter. Mr Randall denied being directed by Mr Khan or anyone else to not offer work to Mr Hunter. He stated that Mr Hunter's disability was not a factor in any decision not to offer him work. 191Mr Randall denied contacting Mr Hunter some six months after October 2005 and offering him work. He stated that he did not pick him up for work the following day. Mr Randall denied telling Mr Hunter that he should not mention his epilepsy while he was at work for the respondent. Oral Evidence of Steven Randall 192Mr Randall confirmed his evidence that he did not know that Danial had epilepsy until he had his first seizure. 193He said that after 4 March 2005, Danial next worked on 19 April 2005. 194Mr Randall said that although he was not going to not give him work because of his disability, he was worried because the job of monitoring and excavating involved heavy machinery. He said that he just told him to be careful. 195He conceded that he was more "wary taking him on", but his strategy was "to be careful". 196Mr Randall agreed that Danial was offered less work, but said this was because there was not much work coming in, not because of the epileptic fit. 197Mr Randall stated that Danial's last day of work was 19 October 2005. He denied knowing about the fit at home. He said that he only learnt about that at the time of the complaint. 198Mr Randall agreed that after 19 October 2005 Danial was not offered work again. Kevin Cavanagh Affidavit sworn on 11 June 2009 199Kevin Cavanagh is the Chief Executive Officer of the respondent and is authorised by the Board of Deerubbin to make statements on its behalf. 200Mr Cavanagh stated that Deerubbin is a Local Aboriginal Land Council constituted under section 50 of the Aboriginal Land Rights Act 1983 (ALRA). Its benevolent objects are to improve, protect and foster the best interests of all Aboriginal people within its area. Deerubbin's area covers most of western Sydney and the adjacent portions of the Blue Mountains to the west. Deerubbin was constituted in 1984 as the Mount Druitt Local Aboriginal Land Council and has been operating for 25 years. On 24 April 1997 its name was changed from Daruk Local Aboriginal Land Council to its current one. 201Mr Cavanagh described Deerubbin as a small community organisation, which only has four permanent employees. They are Tracey Riley, the Administrator/Bookkeeper, Phillip Khan and Steven Randall, two Senior Cultural Officers, and himself. One of its statutory functions is to "protect the culture and heritage of Aboriginal persons in the Council's area". One of the ways it fulfils this obligation is carrying out monitoring and excavating work. 202Monitoring and excavating occurs when buildings, roads and other developments are being built, and it becomes necessary to determine if anything of Aboriginal cultural significance might be buried or destroyed at the building site. Monitoring and excavating is carried out by casual workers, who are directed in their work by consultants (usually archaeologists) engaged by the developers. Monitoring work involves a worker walking alone behind a grader or other heavy machinery and looking at the ground with the surface layer removed to determine if any relevant cultural artefacts were present. Excavating work involves workers digging earth in areas designated by consultants (usually archaeologists) and sieving it to determine if any artefacts are present. There is no work offered by the respondent to persons on the Register, or those otherwise, known as "Land surveyors". 203The casual workers on the Register are drawn from the Aboriginal community of western Sydney. There are usually 40 to 70 persons on the Register at any one time. Places on the Register are not advertised. Persons apply, and if they are successful, they are placed on the Register. Persons on the Register can become inactive, in that they may not ever accept work. Being on the Register simply means that the person is eligible to take work if it is offered. There is no guarantee of work and persons on the Register are free to do other work. 204In order to qualify for the Register, a person must have completed a general safety induction for construction work in New South Wales and possess an occupation, health and safety card (Green Card) as evidence of this. The person must also be Aboriginal and provide a Tax File Number. Persons on the Register are not generally asked about health matters. 205When monitoring or excavating work becomes available, persons on the Register are contacted by telephone, in no particular order, and offered work. The work varies according to the details and requirements of the particular job. If a person is not available, the next person is contacted. 206The Senior Cultural Officers will often pick up persons on the Register, who have accepted work, but transport to the job is not a condition of the work, nor is it guaranteed. The practice has evolved informally to ensure that workers get to the work sites, in circumstances where they do not have their own transport. 207Sometimes a group, or several groups, of workers are repeatedly given work for the duration of a particular project and are kept together as a "team", until the work at a particular site is completed. This is done because of the advantages of having the same workers at some sites. If a particular site requires experienced workers, then only experienced workers will be contacted. 208The Senior Cultural Officers are responsible for making decisions regarding the provision of casual work, and for the supervision and payment of casual workers. Hours and conditions of work are set by the respondent in consultation with the consultancy firm on the particular job. The provision of work is neither regular nor consistent and a gap of months or years between offers of work is not unusual. 209In recent times, the amount of work available to the respondent has markedly decreased for two reasons. The first reason is that there has been an overall decline in development work in the respondent's area, and the second reason is that two other organisations have formed to provide labourers to the archaeological consultancy firms undertaking Aboriginal cultural heritage work. These organisations have successfully taken work away from the respondent. Accordingly, less work is available to offer to workers listed on the Register. 210Mr Hunter's first day of work was 22 July 2003. He was placed on the Register on 18 November 2004. The respondent does not undertake site inductions. Any site induction would have been carried out by the consultancy firm using the labour of casual workers. 211Mr Hunter had a satisfactory work record. He was punctual and completed his work in a satisfactory manner. The respondent's records for Mr Hunter show that he worked considerably less than five or six days a week between 2004 and 2005, and that he earned considerably less than $664 gross per week. He was paid at the rate of $16.60 per hour. Mr Cavanagh relied on copies of Payroll Advice and Hours and Wages records of Mr Hunter in support of his evidence, which set out the pay Mr Hunter received from Deerubbin for his work over specified time periods. 212Mr Cavanagh stated that the respondent's records, being a Labour Control Timesheet, showed that Mr Hunter was working for it at the Schofields site on 4 March 2005. Its records also show that Mr Hunter had an epileptic fit on 4 March 2005. An incident report was completed by Mr Randall in respect of this incident shortly after it occurred. Mr Cavanagh also relied on another incident report of the same epileptic fit completed by the consulting company at that work site. 213Mr Cavanagh disputed Mrs Hunter's evidence that she was telephoned to collect Mr Hunter, stating that it is not the respondent's practice to telephone relatives of persons who have suffered a medical incident at work to come and pick them up. It is the practice of Deerubbin to call an ambulance to transport the person to hospital. 214Mr Cavanagh stated that work at the Schofields site finished early in 2005, because the consultancy firm employed by the developer at that site was no longer undertaking excavations there. Mr Cavanaugh relied on documents from the consultancy firm that used Deerubbin workers to show the date that the excavation work concluded on that site. 215Mr Cavanagh stated that Mr Hunter's last day of work, which was monitoring work, was 19 October 2005. There is no record of him working at the Schofields site on 21 October 2005. The Labour Control Timesheet for 21 October 2005 shows all the work that Deerubbin undertook on that day. 216In the period 1 October 2005 to 1 January 2006 jobs were available to be offered to workers on the Register and the number of workers required for this work was 85. 217Since 1 October 2005 the number of hours of work that the respondent was able to offer to workers on the Register has declined. In the period 1 October 2005 to 1 January 2006 the decline was masked by a random increase in jobs that required workers. Mr Cavanagh stated that only 40 per cent of those workers who worked with Mr Hunter between 22 July 2003 and 19 October 2005 received work again in the period 20 October 2005 to 29 December 2005, even though the number of hours offered by the respondent increased. The increase in hours of work occurred because several projects to which Deerubbin supplied casual workers to in that period were worked on by "teams" of workers. In reaching these conclusions, Mr Cavanagh relied on calculations, which were based on the respondent's documents that were attached to his affidavit. The documents show that the number of hours of work offered by the respondent to casual workers on its Register declined by about one-third between 22 October 2005 and 10 March 2008. The decline has been marked in 2006, 2007 and 2008. Mr Cavanagh relied on a page from the respondent's annual report for 2001/2002 detailing how the decline in work occurred. 218Mr Cavanagh stated that the respondent was not aware that Mr Hunter had any complaint about discrimination on the ground of his disability prior to receiving a copy of his complaint to the ADB on 24 April 2007. 219Mr Cavanagh stated that Mr Hunter has not been dismissed by the respondent constructively or otherwise and has made no decision not to hire him in the future. His name is still on the Register. Affidavit sworn on 20 November 2009 220In this affidavit Mr Cavanagh sought to correct some clerical errors identified in a letter and table concerning Mr Hunter's employment with the respondent, which were attached to his affidavit dated 12 June 2009. The correct records show that Mr Hunter worked a total of 488 hours for the respondent and that he was selected 58 times over the period he worked. The records show that Mr Hunter worked 61 days of the total days during the period. The total number of days worked in the period he worked was 98 days. 221Mr Cavanagh stated that between 4 March 205 and 19 October 2005 Mr Hunter worked at five sites and for 126 hours. Mr Cavanagh relied on copies of records entitled "Labour Control Timesheets". The records show that the respondent continued to employ Mr Hunter after he had his epileptic fit on 4 March 2005. 222The affidavit also attached further documentation from the respondent in compliance with a summons directed to the respondent by the applicant. 223The Labour Control Timesheet, attached to Mr Cavanagh's affidavit, for the period commencing 23 February 2005 shows that Mr Hunter worked, at the Schofields site, eight hours on Wednesday 23 February 2005, eight hours on 24 February 2005, eight hours on 25 February 2005, eight hours on Monday 28 February 2005, eight hours on 1 March 2005, eight hours on 2 March 2005, eight hours on 3 March 2005 and four hours on 4 March 2005. He worked at the Rouse Hill site, eight hours on Tuesday 19 April 2005, eight hours on 20 April 2005, eight hours on 21 April 2005, eight hours on 22 April 2005, six hours on Saturday 23 April 2005 and four hours on Tuesday 26 April 2005. Mr Hunter worked eight hours on Wednesday 27 April 2005 and eight hours on Thursday 28 April 2005 at the Florence Street, Oakhurst site. 224The Labour Control Timesheet shows that Mr Hunter worked again at the Schofields site for eight hours on Monday 23 May 2005, 24 May 2005, 25 May 2005, 26 May 2005 and 27 May 2005. 225The Labour Control Timesheet shows that Mr Hunter worked eight hours at the Acacia Gardens site on Monday 10 October 2005 and Tuesday 11 October 2005. He also worked eight hours at the Fyfe Road, Kellyville Ridge site on Wednesday 19 October 2005. 226The Payroll Activity Summary for the period 22 July 2003 to 21 October 2005 (two years and three months) shows that wages for Deerubbin casual employees totalled $306,387.85 gross, and for the period 22 October 2005 to 10 March 2008 (two years and almost five months) wages for casual employees totalled $220,782.30 gross. In the period 22 July 2003 to 21 October 2005, 51 people were given work, and in the period 22 October 2005 to 10 March 2008 37 people were given work. 227The total number of jobs available in the period 1 October 2005 to 1 January 2006 was 225, requiring a total of 85 workers. A total number of days worked was 71 days. Affidavit sworn on 5 May 2010 228Mr Cavanagh stated in this affidavit that the Labour Control Timesheets are completed by the Senior Cultural Officer. That officer will fill in a timesheet for the relevant job, and if a job continues for less than a week the Senior Cultural Officer will complete the Labour Control Timesheet immediately the job is completed. If a job continues for several weeks the timesheet is completed at the end of each week. The information contained in the timesheet is based on information held by the Senior Cultural Officer while the relevant job is underway. Copies of relevant diary entries for the period 1 November 2004 to 30 June 2008 kept by Mr Steven Randall were attached the affidavit. 229Mr Cavanagh stated that Mr Khan could not locate his diary entries. 230Mr Cavanagh stated that once the timesheets have been completed they are handed over to him to create pay advices based on the information contained in the timesheets. The pay advices form part of the process whereby the casual workers on the Register are paid by the respondent for the monitoring and excavating work carried out by them. 231Mr Cavanagh stated that occasionally multiple copies of the recordings of the same time worked by casual workers on the Register appear in the respondent's copies of the Labour Control Timesheets, but this does not mean that the relevant worker was paid more than once for the same work, or that the worker worked more than the number of hours stated in any one time recording. The multiple entries do not constitute errors in the timesheets. Mr Cavanagh stated that he is able to discern any such multiple entries in the Labour Control Timesheets by reference to cheque numbers and other pay records. 232The Labour Control Timesheets are important documents as they record time worked by the casual workers on the Register. These documents are provided by the respondent to its auditor. 233Mr Cavanagh stated that Mr Hunter was not the only casual worker on the Register who did not receive work because of the decline in available work. Mr Cavanagh compiled a table listing the workers who had not received work since 19 October 2005. The list included 51 workers, some of whom had been on the Register since 24 July 1996, and some who had registered as recently as 19 November 2008. Oral Evidence of Kevin Cavanagh 234Mr Cavanagh told the Tribunal that he did not know that Danial had epilepsy before he began working for the respondent. He said that he did not vett or question decisions made by Mr Kahn or Mr Randall regarding who was selected for work and who was not. He did not review any of their work. 235He said that Danial had not resigned, and consequently, he was still on the Register. 236Mr Cavanagh was shown a bundle of documents generated by AMP and bearing the title "AMP SuperLeader, Contribution Return for August 2005" and "AMP SuperLeader, Contribution Return for April 2006". He agreed that these documents had been prepared and signed by him in his capacity as Chief Executive Officer of the respondent. The documents show that Danial Hunter's employment was identified as having been terminated on 21 October 2005. The code selected was "RS" which meant resigned. He agreed that he was responsible for the completion of this document. He was asked why he had chosen this code when he could have chosen another code such as "retired" or "total & permanent disablement". Mr Cavanagh said that he selected code "RS" because he felt that this best described Mr Hunter's situation. He denied that he had identified Mr Hunter in this way because the respondent did not intend to give him any more work. Mr Cavanagh said that he could not recall whether AMP was notified of Mr Hunter's "resignation" in October 2005 on the basis of any medical certificate, because the return was not lodged until April 2006. 237Mr Cavanagh was shown the medical certificate dated 21 October 2005. He denied seeing it before. 238Mr Cavanagh was questioned about a document created by him, which showed the number of jobs available from 1 October 2005 to 1 January 2006, and the number of workers that were required for each job. Mr Cavanagh explained that on some jobs the number of workers required fluctuated and that on one day 20 workers were required but the following day only ten workers were required. He said that if a worker worked two days, this was counted as two jobs for the purposes of the document. 239It was put to Mr Cavanagh that it was agreed that Mr Hunter worked after 19 October 2005, but there is no relevant payroll advice other than the records that indicate that the last pay period ended on 21 October 2005. Mr Cavanagh said that the documents attached to his affidavit were the only ones in the possession of the respondent. 240Mr Cavanagh was asked about a document created on behalf of the respondent from the Labour Control Timesheets bearing the title "Information about lengthy periods in which work was not available to casual workers and documents to show this", which showed that in December 2005 there were 31 days not worked. He agreed that the Labour Control Timesheets were more reliable than this summary. 241Mr Cavanagh was questioned about the respondent's disability plan. He conceded that there was no written disability plan. He stated that no disability issues had arisen, otherwise they would have been dealt with in accordance with the legislation. 242Mr Cavanagh agreed that the amount of work offered to Mr Hunter decreased dramatically, but he said this was because the work declined. He said that by 2005 three Aboriginal Land Councils were sharing the work in the area. It was put to him that nothing had changed after 2001 and the respondent had even put new people on the Register. He agreed. FINDINGS AND REASONS Legislation and legal principles in respect of discrimination 243Mr Hunter's complaint is cast as direct discrimination on the ground of his disability. 244Relevantly, section 49D of the AD Act states, inter alia, that it is unlawful for an employer to discriminate against a person on the ground of disability in determining who should be offered employment, by dismissing the employee or by subjecting the employee to any other detriment. 245Section 49B of the AD Act provides: (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a)treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b)... (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 246Section 4 of the ADA defines "employment" to include a contract for services. "Disability" is also defined as: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 247Section 4A of the AD Act stipulates that if an act is done for two or more reasons, and one of those reasons constitutes an act of unlawful discrimination, then the act is taken to have been done for that unlawful reason. 248To succeed in his complaint, Mr Hunter has to establish, on the balance of probabilities: a) that the conduct complained of falls within one or more of the substantive provisions of the AD Act, that is, that he was offered less work, was not offered any work, and was thereby subjected to a detriment; b) that in the same or similar circumstances, the respondent would have treated a person without Mr Hunter's disability more favourably; and c) that one of the reasons for the less favourable treatment was his disability. 249Therefore, in order to determine whether the respondent's conduct constitutes direct discrimination on the ground of disability, we must ask ourselves whether the conduct complained of amounts to differential treatment, and, if so, whether that treatment was on the ground of disability. Where there is an actual comparator, the two elements of discrimination, differential treatment and causation, can be treated sequentially ( Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] ( Purvis ). The questions to be posed by the Tribunal are, 'Was there different treatment?' and 'If so, what was the reason for the different treatment?' 250When there is no actual comparator and the comparator is a hypothetical person, the differential treatment question and the causation question amount to a single question; that is, 'Why was the person treated as he was?' ( Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8]) and in Dutt v Central Area Health Service [2002] NSWADT 133 ( Dutt ) where the Tribunal stated: "When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently. In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'. This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise." 251The majority of the High Court in Purvis said that: "... the central question will always be - why 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'." 252In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 the Appeal Panel stated that t he question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant (see also Purvis ). The correct standard of proof to be applied by the Tribunal 253Her Honour Justice Branson (with whom French and Jacobsen JJ agreed) of the Full Federal Court in Qantas Airways -v- Gama (2008) FCAFC 69 ( Gama ) set out the correct approach to the standard of proof to be applied in civil proceedings in a federal court. Her Honour stated at page 139: "The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises ...that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved." 254Section 140 of the Evidence Act 1995 states: 1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. 2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: a)the nature of the cause of action or defence, and b)the nature of the subject-matter of the proceedings, and c) the gravity of the matters alleged. 255Although the Tribunal is not bound by the rules of evidence, the approach in Gama has been endorsed and followed by the Appeal Panel in St Joseph's Hospital Ltd -v- Correy (2009) NSWADTAP ( Correy ). 256We have applied the standard as stated in Gama , and the principles set out in section 140 of the Evidence Act, to the questions of fact that have been determined by us in this matter. 257The applicant bears the onus of proof. Issues not in dispute 258The following matters are not in dispute: * Mr Hunter was employed by the respondent as a casual; * he was first offered work by the respondent on 22 July 2003; * he was placed on the Register for casual work on 18 November 2004; * the period of the complaint is 29 December 2004 to 29 December 2005; * Mr Hunter performed monitoring and excavation work for the respondent. This entailed walking behind earthmoving equipment and looking at the ground to detect Aboriginal cultural artefacts; * Mr Hunter suffered an epileptic fit at one of the work sites on 4 March 2005; * Mr Hunter worked on 19 October 2005; and * Mr Hunter was not offered any work after 19 October 2005. 259It is not disputed that Mr Hunter had a disability within the meaning of sections 4 and 49A of the ADA. The issues in dispute 260The following matters are disputed by the respondent and findings of fact are required in respect of the following: * whether Mr Hunter suffered an epileptic fit at work on 21 October 2005; * whether Mr Hunter told Mr Khan and Mr Randall that he had epilepsy; * whether the applicant was offered no work after 4 March 2005 (other than on 19 October 2005); * whether Mr Hunter was offered less work after 4 March 2005; * whether Mr Hunter had a conversation with Mr Khan advising him of his condition and providing him with a medical certificate; * whether there was a decline in work available to casual workers; and * whether a reason for the applicant not being offered further work was his epilepsy. Findings The date of the seizure at work 261There are inconsistencies in the evidence of Mr Hunter, and there does appear to be confusion as to dates in both the evidence of Mr Hunter and his wife, Sharon Hunter. The inconsistencies can be explained to a large extent by the fact that Mr Hunter suffers memory loss as a result of the epilepsy and medication. Mr Hunter has stated in his affidavits and his oral evidence, that the seizures have adversely affected his memory, and that he has difficulty with recalling events. He denied having difficulties with dates, but there is no doubt that his recollection of dates is not supported by other more reliable documentary evidence before the Tribunal. Mrs Hunter's evidence is also inconsistent with other evidence before us, and she appears to also be fixed on certain dates, although she conceded that her recollection of dates was flawed. The Tribunal is of the view that, given these problems, it should treat the evidence of both Mr Hunter and Mrs Hunter with caution. 262The original complaint to the ADB did not refer to any epileptic seizure occurring at work in October 2005 or at any other time. It stated that Mr Hunter had two seizures at home after work on 19 October 2005. He consulted his neurologist and was provided with a medical certificate, which stated that he could go back to work. The complaint stated that Mr Hunter was not provided with any work after that date. The complaint was made to the ADB on 29 December 2005, a couple of months after these events. 263The evidence, which we accept, from Mrs Hunter is that she assisted her husband in writing the complaint, because he could not spell, and he was embarrassed to write it out himself. 264The allegations and the complaint evolved over time to claim that Mr Hunter experienced a seizure on 21 October 2005 at work. This was stated by both Mr Hunter and Mrs Hunter, with both giving quite elaborate evidence as to what occurred on that day. Mr Hunter's evidence was that he was certain that he experienced a seizure on 21 October 2005 while at work. However the rest of the evidence before the Tribunal does not support this contention. Additionally, this claim is inconsistent with his original complaint. 265The time sheets show that Mr Hunter did not work for the respondent on 21 October. The time sheets record that Mr Hunter worked on 19 October, as was stated in the original complaint to the ADB. There is also no record of any seizure at work on either 19 October or 21 October 2005. There is however a record of a seizure at work at the Schofields site on 4 March 2005. This is recorded by both the respondent and the independent consultant company, which was carrying out the development work on the site at that time. The evidence of Mr Randall as to events on that day generally accords with the evidence of Mrs Hunter regarding what happened when she heard about the seizure and had to go to collect Mr Hunter from the site. 266We are satisfied that, if there had been a seizure at work on 21 October 2005, or on any other date, the independent consultant would also have a record of it, in the same way that it had for the seizure that occurred on 4 March 2005. 267We are satisfied on the balance of probabilities that Mr Hunter experienced only one seizure at the Schofields site, while carrying out his work of monitoring and excavating for the respondent, on 4 March 2005. 268We are satisfied on the balance of probabilities that Mr Hunter did not work on 21 October 2005, and did not experience a seizure while at work on that date or any other date, other than 4 March 2005. Did Mr Hunter tell Mr Khan and/or Mr Randall about his epilepsy and if so, when? 269The evidence shows that Mr Hunter experienced a seizure at work at the Schofields site on 4 March 2005. At that time Mr Randall completed an incident report that recorded the incident. Mr Randall therefore knew about Mr Hunter's epilepsy at that time. 270Mr Khan's evidence was that he had heard about this incident around 11 March 2005 from another worker. He said that this was the first time he had heard about Mr Hunter's epilepsy. Although he had cared for Mr Hunter as a foster-parent, Mr Hunter did not have epilepsy as a child. This evidence is consistent with the evidence of Dr Wood, who reported that Mr Hunter had experienced seizures for about six years prior to consulting him for the first time in June 2005. 271We accept the evidence of both Mr Randall and Mr Khan in this regard, because it is supported by the reported incident and the information contained in Dr Wood's report. 272We note that Mr Khan also stated that shortly after he learned about Mr Hunter's epilepsy, he became concerned about him at work and questioned Mr Hunter. His evidence is that Mr Hunter assured him he could continue to work without any changes to his work. We accept this evidence, because it is consistent with the fact that the respondent continued to allocate work to Mr Hunter after 4 March 2005, albeit at a reduced level. We shall return to this later in the decision. 273We also accept the evidence of both Mr Khan and Mr Randall that neither of them instructed Mr Hunter not to mention his epilepsy to other workers, because this it would not have been logical for them to give such an instruction. Other workers at the Schofields site learned of the seizure, because Mr Hunter had it at work, and Mr Khan learned of it from another worker. It is illogical and implausible that they would have instructed Mr Hunter not to mention it to other workers, when other workers, at least those at the Schofields site, would already have known about it. 274We therefore accept that Mr Khan and Mr Randall learned of Mr Hunter's epilepsy around March 2005, after Mr Hunter experienced a seizure at work on 4 March 2005. 275Mr Hunter stated that he provided a copy of a medical certificate to Mr Khan on 21 October 2005, which certified him fit for work, as long as he did not operate any machinery. Mr Hunter's evidence is that this occurred on 21 October 2005 after he had a seizure at work on that day and when Mr Khan came to give him his wages. The evidence, which has been accepted, is that Mr Hunter did not work on 21 October 2005. The evidence shows that he worked on 19 October 2005, and we accept that Mr Hunter experienced a seizure at home after work on that day, and as a result, had to attend hospital. A copy of a medical certificate dated 21 October 2005 was produced and we accept that it was obtained by Mr Hunter from Dr Wood. The evidence from Mr Khan and Mr Randall is that wages were delivered to the casual workers in person. Mr Khan's evidence is that he could not recall doing so on 21 October 2005 and he denied being given a medical certificate on that day by Mr Hunter. Mr Randall's evidence was that he did not learn of the seizure on 19 October until he received a copy of the complaint from the ADB. 276Mrs Hunter supported her husband's evidence regarding the medical certificate. In the face of Mr Khan's strong denial regarding the medical certificate, we are not confident that Mrs Hunter's evidence is reliable, particularly given the confusion regarding the date of the seizure at work. 277Given the difficulties with Mr Hunter's recollection, and Mrs Hunter's confusion, we are not satisfied, on the balance of probabilities, that Mr Hunter gave Mr Khan a copy of a medical certificate on 21 October 2005, as he has alleged, although we are satisfied that one was obtained from Dr Wood. Nor are we satisfied that Mr Hunter provided Mr Khan with a medical certificate around that time. Allocation of work to casual workers on the Register and to Mr Hunter and has there been differential treatment? 278Mr Hunter described his work as that of a land surveyor. He persisted in his claim that he was a qualified land surveyor. The evidence before the Tribunal supports a finding, however, that he was carrying out monitoring and excavating work for the respondent, and not the work of a land surveyor. Indeed his own evidence was that he was engaged by the respondent to carry out the work of monitoring and excavating. This is also supported by the evidence of the respondent's witnesses and by the Labour Control Timesheets (the timesheets), which identify him as carrying out monitoring work or the work of a field assistant. We find Mr Hunter worked casually carrying out monitoring and excavating work for the respondent. 279We accept the undisputed evidence of the respondent in respect of how the work of monitoring and excavating is allocated, and that it is random. Casual workers on the Register are telephoned and allocated work at random. The first available person is allocated the work. On occasion teams are formed to carry out certain work and on occasion, if an experienced person is required for a particular job, then that person is allocated the work, if available. 280We accept that work is not always available, and that it is only ever allocated when it becomes available. The availability of work is dependent on whether there is a development in the relevant area that requires the services of the Land Council. 281We accept the undisputed evidence that persons on the Register can become inactive and therefore unavailable for a variety of reasons, and that even though their names remain on the Register, they do not ever accept work. We accept the undisputed evidence that there is no guarantee of work and that persons on the Register are free to do other work. We accept that names are not removed from the Register unless it is requested that they be removed. 282To qualify for the Register, a person must be Aboriginal, must have completed a general safety induction for construction work in New South Wales, and possess a Green Card. There is no dispute that Mr Hunter was qualified to be on the Register. 283Mr Hunter was first allocated work on 22 July 2003, but did not work again until his name was formally placed on the Register on 18 November 2004. 284Mr Hunter alleged that he had consistent and regular work during 2004 and 2005 of about 5 to 6 days a week. He claims he was earning about $664.00 gross per week, being paid at the rate of $16.60 per hour. No evidence in the form of payslips or wage records was produced by Mr Hunter to support his claim. It is conceded by the respondent that Mr Hunter was paid $16.60 per hour, but it is disputed that he was paid a regular wage of $664.00 per week. 285Under cross-examination Mr Hunter agreed that he was paid for work done, and that he was not paid the same amount each week, but that the amount he was paid reflected the number of hours he worked each week. 286In determining how many hours Mr Hunter worked, the Tribunal prefers to rely on the evidence of the respondent, in particular the timesheets that record the sites at which Mr Hunter worked and the days and hours he worked. That evidence is not disputed, and it is the best evidence available to us. As stated earlier in this decision, Mr Hunter's evidence is unreliable, because his recollection is poor. 287The timesheets show that in the period 18 November 2004 to 4 March 2005, Mr Hunter was allocated 45 days of work. In the period 5 March 2005 to 19 October 2005, he was allocated 16 days of work. He was allocated no more work after 19 October 2005. In the week commencing 19 April 2005, Mr Hunter was allocated work every day for six days. In the week of 23 May 2005, he was allocated work every day for five days. 288The respondent's Payroll Activity summary for the period 22 July 2003 to 21 October 2005, which is a period of two years and three months, shows that 51 people on the Register were allocated work and paid in total $306,387.85. The summary for the period 22 October 2005 to 10 March 2008, which is a period of two years and five months, shows that 37 people were allocated work and paid in total $220,782.30. This supports the respondent's claim of a general decline in work, which we accept. 289At the conclusion of the hearing a document was tendered on behalf of the applicant bearing the title "Analysis of change in Daniel (sic) Hunter's work hours on basis of P005 of affidavit of Kevin Cavanaugh dated 20 November 2009". 290It was conceded by the applicant's representatives that the document contained some errors. The document was amended at the request of the applicant's legal representative to state the following: "18.11.04 -1.3.05 Daniel (sic) Hunter worked 370 (amended from 1374) hours over 3.5 months. 18.11.04 - 4.3.05 Daniel (sic) Hunter worked 390 hours over 3.5 months (added on the hearing day) 2.3.05 - 18.6.05 Daniel Hunter worked 98 hours (32 hours were 1,2,3,4 March, so only 66 hours constitute balance of hours for the period). 19.6.05 - 30.0.05 Nil 10.10.05 (amended from 30.9.05) - 5.1.06 24 hours (3 days 10, 11, 19 October, then nil). This means a drop of work since his first seizure, down to less than one tenth of what it was over a three month period following the first seizure, nil over the following three months, then 3 days of work in October only, balance of period nil, and continuing." 291The document also identified who the applicant considered to be the appropriate comparators, and then analysed the timesheets for the periods 21 October 2005 to November 2005, January to February 2006, February 2006 to November 2007, and February 2006 to January 2008, of those people, who were listed to be persons from the Register who had shared a shift with the applicant. The following people were nominated as comparators: C Dixon A Hunter H Khan P Khan L Roberts S Randall J Boneham J Hickey K Moreton P Knight 292Leave was given to the respondent by the Tribunal to file a response to this document regarding the alleged comparators. It was submitted on behalf of the respondent that the alleged comparators are not the proper comparators for the applicant, for the following reasons: * P Khan (Phillip Khan) and S Randall (Steven Randall) are employed by the respondent as Senior Cultural Officers, whereas the applicant was not; * All of the persons analysed in this document were earning more than the applicant was earning during the period he was doing work for the respondent; * Only the figures during the period of the applicant's complaint, being 29 December 2004 to 29 December 2005, are relevant for the purpose of the period in which the discrimination was alleged to have occurred; * The figures beyond 29 December 2005 are only relevant to the question of damages; * There are several errors in the calculations, including omissions of dates on which work was done, inclusion of dates on which work was not done, and one instance of work being attributed to the wrong person. These were itemised; and * The errors identified make the calculations unsafe for the Tribunal to rely upon them. 293It was also submitted that the document has limited usefulness because the table covers different time periods, and contains repeat entries for work carried out in single time periods. 294It was submitted on behalf of the respondent that Mr Hunter worked 350 hours in the period 18 November 2004 to 4 March 2004, not 390 hours as alleged in the document. This calculation is based on the evidence contained on Mr Canavagh's affidavit dated 20 November 2005. It was submitted that Mr Hunter worked 28 hours and not 32 hours between 1 and 4 March 2005. 295The respondent agreed that Mr Hunter did not work for the respondent between 19 June 2005 and 30 September 2005, and that he worked for three days only between 30 September 2005 and 5 January 2006, on 10, 11 and 19 October 2005. 296The respondent submitted that the drop in work in the first three months after Mr Hunter's first seizure was to approximately one-third of what it had been in the period 18 November 2004 to 3 March 2005, and not one-tenth as alleged. This conclusion accords with the timesheets. 297In response to the respondent's comments, it was submitted on behalf of the applicant that the inconsistencies in the document occurred because it did not include relevant information from the respondent contained n the last batch of documents produced under summons. It was conceded on behalf of the applicant that, although there may be errors in the calculations tendered on behalf of the applicant, they are not significant, and they occurred because the respondent was dilatory in providing all relevant information, because the respondent had poor records, and because on occasion the respondent raised two timesheets for the same job. 298It was submitted that the document is basically accurate and reliable, but it was agreed that the applicant worked 350 hours in the period 18 November 2004 to 4 March 2005, and that Mr Khan and Mr Randall are not appropriate comparators. 299Regardless of whether the applicant's figures or the respondent's figures are relied upon, the evidence shows a substantial drop in the amount of work offered to Mr Hunter in the period between 4 March 2005 and 19 October 2005, when compared to what he had been offered in the period 18 November 2004 to 4 March 2005. The evidence also shows that he was offered no work at all after 19 October 2005 and up to 29 December 2005, when he first lodged his complaint to the ADB. 300We accept that there has been a general decline in the work available to be allocated to persons on the Register. The Payroll Activity Summary clearly shows a significant decline after 4 March 2005 in the amount of wages paid and the number of workers used and paid by the respondent, when compared to what had been paid by the respondent to all of its casual workers in the period prior to 4 March 2005. 301We also accept that the document bearing the title "Analysis of change in Daniel (sic) Hunter's work hours on basis of P005 of affidavit of Kevin Cavanaugh dated 20 November 2009" is flawed for the reasons identified by the respondent. Certainly, it cannot be said that Phillip Khan and Steven Randall are comparators because, first of all, they are permanent employees of the respondent, and secondly, they are Senior Cultural Officers and not excavators or monitors. 302To determine whether there has been differential treatment, it is necessary to identify the appropriate comparator, and then compare the treatment received. Submissions, the legal principles in respect of comparators, and the proper comparison/identification of comparator/s and circumstances 303It was submitted on behalf of the applicant that the appropriate comparators to Mr Hunter are "those who were being offered work at the same time as Mr Hunter and who continued to be available for work". It was submitted that the "same or similar circumstances" include that those people: * had undertaken work in the past, evidently successfully; * worked with the applicant, doing the same sort of work as him; * continued to be asked to undertake work, as Mr Hunter had undertaken, until his epileptic fits; and * continued to be available. 304It was submitted on behalf of the applicant that it is not appropriate to use as comparators all of the people on the Register for the following reasons: * once a person was placed on the Register, the person was not removed from it except at his own request; * the person could remain on the Register even though the person had left the area, been incarcerated, was ill or was otherwise unavailable for work, so that the Register contained the names not only of persons who were available for work, but also those who were unavailable for work; * the Register also contained the names of persons who were never allocated work in the same time period that Mr Hunter was allocated work. Therefore those people were not in "circumstances that are the same or are not materially different" from the circumstances of Danial Hunter. It was submitted that this was because Mr Hunter was being selected for work and was said to have performed his duties satisfactorily until the epileptic fits. 305It was submitted that the most reliable way of ascertaining those with whom Mr Hunter should be compared is to consider who was actually being offered work at the same time as Mr Hunter and to tabulate what happened to the work flows of such persons over time. 306It was submitted on behalf of Mr Hunter that the document tendered at the conclusion of the hearing, and which was amended in submissions, provides an analysis of the timesheets. It indicates that the appropriate comparators continued to receive work after 7 March 2005 at a similar rate to the rate they received in respect of work immediately prior to that date, and that after 19 October, they continued to receive work. 307It was submitted on behalf of the applicant that when the comparables are examined for the period 18 November 2004 to 4 March 2005, the following picture emerges: Kayne Moreton - 260 hours Colin Dixon - 248 hours Jason Boneham - 292 hours Anthony Hunter - 327 hours Henri Khan - 220 hours Danial Hunter - 350 hours 308It was submitted on behalf of the applicant that following Mr Hunter's seizure at work on 4 March 2005, the drop in work was to 66 hours for the period 5 March 2005 to 19 October 2005, and thereafter, to zero. It is a significant drop in work, when the comparable casual employees continued to receive work. 309It was submitted on behalf of the applicant that, even if there had been a downturn in work, work did continue and continued to be allocated. It was submitted the only factor that changed was that Mr Hunter experienced epileptic fits. 310It was submitted on behalf of the applicant that this is a case in which it is appropriate for the Tribunal to draw an inference that there has been discrimination on the ground of disability, despite the lack of direct evidence, because there is no credible explanation as to why he was not offered the same amount of work initially, and, was ultimately, offered no work at all. 311It was submitted on behalf of the applicant: * that there is no evidence of poor performance or other problems in respect of Mr Hunter; * there is evidence that Mr Khan was uneasy about Mr Hunter having epilepsy; * a medical certificate was obtained, and the only reason Mr Hunter did so was in relation to work; * Mr Cavanagh reported to AMP SuperLeader in April 2006 that Mr Hunter had resigned. This fact indicates that the respondent considered that Mr Hunter's status had changed and that it intended to no longer provide him with any work; * the inference to be drawn is that Mr Hunter was not offered any more work because of his epilepsy; and * the respondent was not aware of its responsibilities under the AD Act at that time. The Annual Report for 2006-2007 only refers to gender discrimination and not to any other form of discrimination. Furthermore, there was no equal opportunity policy in place at the time. 312It was submitted on behalf of the respondent: * that the purpose of a comparison is to examine the respondent's treatment of Mr Hunter compared to a person without epilepsy in the same or similar circumstances; * the comparison is not directed to comparisons with a range of other persons; and * the applicant's submissions focus on the characteristics of a number of persons to whom the applicant wishes to be compared, rather than the particular circumstances in which the alleged treatment occurred. 313It was submitted on behalf of the respondent that the approach taken by the applicant is precisely the approach rejected by the High Court in Purvis where Gummow, Hayne and Heydon JJ undertook a detailed consideration of the meaning of 'purpose of s 5(1) of the circumstances that are the same or are not materially different' for the Disability Discrimination Act 1992 (Cth). They said: [223] In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances of the person concerned who was not disabled. The appellant's argument depended upon an inversion of that order of examination. Instead of directing attention first to the actual circumstances in which a disabled person was, or would be, treated disadvantageously, it sought to direct attention to a wholly hypothetical set of circumstances defined by excluding all features of the disability. [224] The circumstances referred to in s5(1) are all the objective features which surround the actual or intended treatment of disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different." 314It was submitted on behalf of the respondent that the approach adopted by the applicant in these proceedings does not identify all of the circumstances of the treatment afforded to the applicant by the respondent, nor does he identify the circumstances objectively. It was submitted that if the approach in Purvis were applied properly, the Tribunal should be concerned with all of the objective features which surround the respondent's actual or intended treatment of the applicant by reference to the nature of the respondent's enterprise, the whole of the Register and the legal relationship between the respondent as "employer" of casual workers which are randomly selected from a Register, and those workers. 315It was further submitted on behalf of the respondent that the proper approach is confirmed by the observations made by the Tribunal in Laycock -v- Commissioner of Police (2006) NSWADT 261 in its consideration of how and when section 49D(2) might be engaged. At [44] it stated: "44Section 49D(2) of the Act cannot be read in isolation from the body of law which governs relations between employers and employees generally, and from those laws which govern the specific employment relationship that is the subject of a particular case. Just as the High Court made it clear in Purvis -v- NSW (2003) 217 CLR 92 that the precise nature of a school principal's obligations to a pupil under disability discrimination legislation must be determined in the light of the entire body of law which governs the relationship between a school and its pupils, so too must the precise nature of an employer's obligations to an employee under disability discrimination legislation be determined by considering the entire body of law which governs that relationship. The provisions of the Anti-Discrimination Act add to the obligations cast upon employers by the common law, by statutes and by industrial agreements made pursuant to statute, such as awards and collective agreements. The obligations imposed upon employers and the rights conferred upon employees by the Anti-Discrimination Act must be construed in the light of those other laws. The language that is used throughout the Act when the relationship of employer and employee is regulated, such as "terms and conditions of employment", "promotion" and "benefits associated with employment", can only be properly understood when interpreted in the light of the entire body of law which governs the employment relationship. 45Of particular importance in this case are those rules of law which govern the work to be performed by an employee. At common law an employer is entitled to determine what actual work an employee will perform so long as the parties have contracted for work of that nature and the employer's directions are lawful and reasonable..." 316It was submitted on behalf of the respondent that the applicant's approach overlooks the operation of the Register and the circumstances in which the work was allocated. It was submitted on behalf of the respondent that the relevant "same or similar circumstances" are the circumstances in which the respondent was allocating work to people on the Register, rather than the particular characteristics of some but not all of the workers. 317The respondent submits that the only comparator is a person without the applicant's disability in the same or similar circumstances. It was submitted that comparing time periods, that is, comparing treatment of a range of people before and after 19 October would lead the Tribunal into error as this is not the test. 318We agree with the respondent's submission that the High Court in Purvis said that the first step when applying the differential treatment requirement is to identify the objective features or circumstances attending the treatment given to the person. We also agree that the relevant legal obligations of an alleged discriminator should be taken into account when interpreting and applying anti-discrimination legislation. His Honour, Gleeson CJ in Purvis stated that it is important to maintain coherence in the law by ensuring that the obligations arising from anti-discrimination legislation are construed having regard to the functions, powers and responsibilities of the alleged discriminator. 319Mr Hunter is an Aboriginal person who held qualifications that made him suitable for placement on the respondent's Register of casual workers. The respondent's officers randomly contacted persons on the Register when monitoring and excavating work became available. On occasion the officers contacted a person who was experienced, if the job demanded someone with more experience, instead of randomly selecting a person on the Register in the usual way. On occasion, teams of people were put together, again if the nature of the job demanded it. Persons on the Register could become inactive or not accept work for various reasons. They were also free to do other work. There was no guarantee of work, and work was not regular. 320The evidence shows that once Mr Hunter's name was placed on the Register, he received a significant number of hours of work - the respondent agreed that the time sheets showed that he worked 350 hours in the period from 18 November 2004 to 4 March 2005. He was available for work, and he accepted work when it was offered to him. The evidence shows that there were no performance issues and that he attended work as expected and required. 321We consider that the appropriate comparator is a person without Mr Hunter's disability, but with a similar work profile for the respondent, that is, someone who carried out the same work, who was available to take work when it was offered and did so, who did not have performance issues, and who worked a similar number of hours and who was paid a similar amount of money by the respondent for hours worked in the same period. 322We do not accept the respondent's submission that the appropriate comparator is anyone on the Register, for the reasons enunciated in the applicant's submissions. There are too many variables in respect of all of the persons on the Register. The evidence of the respondent's witnesses was that some people declined work because they did not want to jeopardise their welfare benefits, others were incarcerated, while still others were busy undertaking other work. Colin Dixon for example, was incarcerated and became unavailable for work. Henri Khan moved away from the area. The respondent was therefore not able to allocate work to those people because they were not available to accept it. The objective features of what constitutes the "same or similar circumstances" must be more specific than merely saying anyone on the Register , given these variables. It is also noteworthy that despite the random selection of persons on the Register, the same names keep appearing on the Labour Control timesheets over the late 2004/ 2005 period. 323We also do not agree that there cannot be a temporal comparison between the situation prior to 4 March 2005 and after 4 March 2005, and then again after 19 October 2005. The work situation for Mr Hunter changed on 4 March 2005, in that he experienced a seizure at work, which was caused by his epilepsy. On 19 October 2005 he experienced two seizures at home requiring hospitalisation overnight. It is these events that the applicant says caused a change in the attitude of the respondent towards giving him work. In order to determine whether there has been differential treatment, there has to be a comparison between how Mr Hunter was treated once his disability had manifested and was known to the respondent with the treatment of a person without his disability. In order to do this it is necessary to examine the circumstances of allocation of work prior to 4 March 2005, and after 4 March 2005. 324Although we agree with the respondent that the document recording he analysis relied upon by the applicant has omissions and some errors, it is basically a reflection of what is contained in the Labour Control timesheets of the respondent. In this regard we have examined the figures provided in the timesheets and it is our view that an appropriate comparator is Anthony Hunter. Anthony Hunter did not have epilepsy. The evidence shows that no one else on the Register had epilepsy. Anthony Hunter worked as a casual in the same capacity as the applicant. He worked a similar number of hours in the period prior to 4 March 2004 as the applicant, being 327 hours and was paid a similar amount of money for work done by the respondent. He was subject to the same random allocation process by the respondent. He made himself available for work and accepted work. The documents show that in the period prior to 4 March 2005 he worked 327 hours. Consistent with the respondent's evidence that work was irregular, Anthony Hunter was subject to a gap in work of three months between 25 February 2005 and 20 May 2005. In the period 4 March 2005 to 19 October 2005 the records show that he worked about 54 days. Most of those days Mr Anthony Hunter worked eight hours, but on occasion he worked six hours, five hours or four hours. According to the records it appears that Anthony Hunter worked 449 hours, give or take some. In the same period the applicant was allocated 66 hours in total. In the period 19 October 2005 to 29 December 2009 Mr Anthony Hunter was allocated some 18 days of work being about 106 hours of work. The applicant in the same period was allocated no work. 325The respondent's evidence is that it was not unusual for work not to be allocated to a person on the Register for several months at a time, before work was allocated again. The suggestion is that the fact that no work was offered to the applicant in the period between 19 October 2005 and 29 December 2005, did not mean that he would not be offered any further work. It was just a result of the random selection of persons on the Register. Even taking account of the randomness of the offer of work and the general decline in the availability of work, there is, in our view, no doubt that the applicant was treated differently, and offered initially less work and then none at all, when compared with Anthony Hunter, who had been subject to the same or similar circumstances affecting the process of allocation of work, and later the general decline in available work. 326We find on the balance of probabilities, that the applicant was treated less favourably than a person without his disability, being Anthony Hunter, in the same or similar circumstances. Causation and the drawing of inferences 327The second analysis the Tribunal must engage in is determining the reason for the differential treatment. 328As we have stated earlier in this decision, the causation requirement is met as long as one of the reasons for the treatment is the person's disability. The correct approach, as stated by the majority of the High Court in Purvis in respect of the causation question, is to ask why Mr Hunter was treated in the way he was treated. 329It was submitted on behalf of Mr Hunter that the reason was his disability, and not the downturn in work as stated by the respondent's witnesses. It was submitted on behalf of the applicant that the treatment was ongoing and not limited to a period ending in December 2005. It was submitted that nothing was said to Mr Hunter to the effect that the reason he was not being selected for work was his disability, but there evidence from which an inference can be drawn. 330It was submitted on behalf of the applicant that there is no logical or plausible explanation that could explain the failure to allocate work to Mr Hunter after the second seizure, other than his disability. 331It was submitted that the inference to be drawn is that Mr Hunter's epilepsy led to his not being offered work. 332It was submitted on behalf of the respondent that it is well established that inferences cannot be drawn where more probable and innocent explanations are available on the evidence. Likewise inferences must be logical, and not based on supposition or mere possibility. It was submitted that the applicant's case is based on no more than mere possibilities and speculation. It was submitted that the applicant asks the Tribunal to draw inferences contrary to explanations, which are available on the evidence. It was submitted that the applicant must first establish on the balance of probabilities (with regard being had to the seriousness of the allegations in accordance with the principles enunciated in Briginshaw -v- Briginshaw (1938) HCA 34; (1938) 60 CLR 336 ( Briginshaw )) that the unavoidable inference to be drawn is that the reason for the respondent's conduct is the applicant's disability. Only once this had been established, is the respondent obliged to provide an alternative explanation for its conduct. 333It was submitted on behalf of the respondent as follows: * Mr Khan denied telling Mr Hunter not to tell people about his epilepsy, and his credit was not challenged; * the applicant did not adduce any evidence to corroborate his contention that he did tell other people on site about his epilepsy. Indeed, the evidence suggests that he did not do so, as neither Mr Cavanagh nor Mr Randall was aware that the applicant had epilepsy until his first seizure on 4 March 2005; * Mr Kahn did not allocate work after the first seizure, but that Mr Randall was allocating work at that time; * no medical certificate was received; and * Mr Cavanagh explained that the notation in respect of the AMP SuperLeader was given not only to the applicant but to other people, and there was no other category to describe the applicant, who remained on the Register. 334In matters involving complaints of alleged discrimination, there is often no direct evidence of a contravention of the legislation, that is, no admission of a breach. Where there is no such direct evidence, the applicant is forced to rely on inference to establish a causal link between the differential treatment and the ground for the treatment. 335The Tribunal in Dutt -v- Central Coast Area Health Service (2002) NSWADT 133 at [70] identified the following considerations to be taken into account when drawing inferences. They are: "i.a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts ii. an inference must be reasonably drawn on the basis of the primary facts iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference iv. it is not enough that the inference is a mere possibility: it must be one of "probable connection" v. the inference must be a logical one, and not supposition vi. an inference cannot be made when more probable and innocent explanations are available on the evidence." 336It was submitted on behalf of the respondent that the correct standard of proof in respect of drawing inferences, is that enunciated in Briginshaw . 337In our view, the same standard of proof applies as that set out in paragraphs 254 to 257 above. If proved, the allegation of discrimination has serious consequences for Mr Hunter, but, of itself, the alleged act of discrimination in this case is not, in our view, of such a level of seriousness and gravity sufficient to attract the standard of proof set out in Briginshaw . In Briginshaw Dixon J said: "The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 338The correct approach to be applied in such circumstances was stated by the Appeal Panel in Correy to be as follows: "The correct approach in these circumstances was elucidated by Heerey J in Granada Tavern v Smith [2008] FCA 646; (2008) 173 IR 328; at [95]. His Honour was hearing an appeal against a decision of the Federal Magistrate's Court that an employer had applied duress to an employee in connection with an Australian Workplace Agreement (AWA) contrary to s 400(5) of the Workplace Relations Act 1996 (Cth): In the light of the Full Court's decision in Gama one does not say: "Contravention of s 400(5) is a serious matter; therefore the Briginshaw standard applies". Rather, the fact finder must look at the particular factual allegations. They can vary infinitely. Before reaching a finding which accepts those allegations as true (the onus of course being on the applicant), the fact finder must, amongst other things, take into account the gravity of the particular allegations: s 140(2)(c)." 339In other words, we are required to examine all of the evidence, giving greater weight to some evidence because of its higher probative value than other evidence. We are able to draw inferences from the facts where it is reasonable and logical to do so, and where more probable and innocent explanations are not available on the evidence. 340We are satisfied, on the balance of probabilities, that there was a downturn in the available work to be allocated to persons on the Register, and we are satisfied that this may well have been one of the reasons the applicant received less work than he had previously. However, on a proper analysis of all of the evidence before us, we are irresistibly drawn to the conclusion that Mr Hunter's epilepsy was a reason for the fact that he was initially given significantly less work following the seizure on 4 March 2005 at work, and no work at all following the two seizures on the night of 19 October 2005, following which he was hospitalised. 341We are of the view that the inference in respect of the causal link is a reasonable and logical one to be drawn for the following reasons: a) The fact that the respondent notified AMP SuperLeader that Mr Hunter had resigned on 21 October 2005. The Tribunal does not accept as plausible Mr Cavanagh's explanation in respect of the AMP superannuation documents regarding Mr Hunter. Mr Hunter's status was reported to AMP SuperLeader as "resigned". The termination of employment date was selected to be 21 October 2005, two days after the two seizures at home, following which no further work was allocated to Mr Hunter by the respondent. The coincidence is too strong to be dismissed as meaningless or as insignificant. The fact that Mr Hunter was identified as having resigned strongly suggests that the respondent viewed Mr Hunter as being unavailable for work beyond the date of 21 October 2005. It was not submitted on behalf of the respondent nor did any respondent witness suggest that Mr Hunter either identified himself as unavailable or "resigned". Mr Hunter was identified in this way unilaterally by Mr Cavanagh. This identification raises the question - on what basis was Mr Hunter viewed as having resigned? The only explanation can be that it was because he had been hospitalised due to the two seizures he had at home on 19 October 2005 and he was no longer viewed as eligible to be offered work. Mr Cavanagh said in oral testimony that "resigned" best described Mr Hunter's circumstances. There is no other plausible or reasonable explanation for this action by Mr Cavanagh in respect of Mr Hunter. The superannuation document is an important document that records Mr Hunter's status, and is relied upon by the respondent to explain that it no longer is obligated to pay superannuation in respect of him. Mr Cavanagh is the Chief Executive Officer of the respondent and it is, in our view, disingenuous of him to minimise the importance of this document or to suggest that he selected "resigned" because it was the "best fit". Mr Hunter was clearly identified as "resigned" because he was no longer active on the Register, despite remaining on the Register, and the logical and reasonable inference is that it was because of his disability. We are of the view that this inference is consistent with our finding that neither Mr Khan nor Mr Cavanagh received the medical certificate from Mr Hunter, because if they had, Mr Hunter may have continued to receive work. The medical certificate may have gone some way to alleviate the disquiet both Mr Khan and Mr Randall said they both felt. (b)Mr Randall gave evidence that following Mr Hunter's seizure at work on 4 March 2005, he was worried about him, because of the heavy machinery involved in monitoring and excavating work. In oral evidence Mr Randall said that he was "more wary taking him on", and, although he did continue to give Mr Hunter work, it was at a reduced level. Mr Khan shared Mr Randall's discomfort. Mr Khan's evidence was that he expressed concern about Mr Hunter being at work. It is noted that the respondent's witnesses own evidence is that when monitoring is being undertaken, the worker cannot be seen by other workers on the site, because the worker walks behind the grader or other heavy machinery. This fact explains why Mr Randall was "more wary taking him on". (c)The rate at which work that was available declined was stated to be to forty per cent of what it had been prior to other organisations bidding for it. Mr Hunter's allocation rate was initially reduced to about one-third of what he had been previously allocated and then, following the second episode, it was reduced by one hundred per cent. The decline to forty per cent does not correlate with the reduction in allocation of work to Mr Hunter and, in our view, this fact strongly suggests that there was some other reason for the failure to allocate work to Mr Hunter. 342In our view, the differential treatment is causally related to the applicant's disability and a logical and reasonable inference can accordingly be drawn from the facts. We are satisfied the applicant has established on the balance of probabilities that one of the reasons for the differential treatment was his disability, and that his disability was a real, genuine or true reason for the different treatment. 343Mr Hunter has discharged the onus on him and the complaint of unlawful discrimination on the ground of his disability is substantiated. Relief and Quantum 344After finding that a complaint has been substantiated, the Tribunal may order the respondent to pay the complainant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct. The complaint was lodged in December 2005 and the maximum compensation that may be awarded is $40,000. 345The Appeal Panel in Commissioner of Police, NSW Police -v- Mooney (No.3) (2004) NSWADTAP 22 explained the proper approach to the calculation of the loss when the Tribunal is exercising its power to award compensation in a discrimination case. It said: 346"48 When determining what may constitute the "loss" for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall (1990) 172 CLR 60 at 63: 347The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed... 34849 Those justices also observed in the same case (at 63) that "a plaintiff cannot recover more than he or she has lost". General Damages 349It was submitted on behalf of Mr Hunter that in, determining quantum, the Tribunal should give consideration to the distress caused to Mr Hunter, the policy of the Act to deter discrimination, and the need for effective remedies. 350It was submitted on behalf of Mr Hunter that he became extremely depressed, lost social contact and a sense of meaning and purpose and experienced a sense of rejection in the community. It was submitted that it is appropriate to award $30,000 for general damages in respect of depression, humiliation and distress. The amount also includes an amount to cover proper counselling to enable the applicant to overcome the psychiatric symptoms he continues to experience. 351It was submitted on behalf of the respondent that the applicant's claim that the respondent's conduct has caused an exacerbation of the applicant's condition appears to be a personal-injury-type claim and that the medical evidence does not support such a conclusion. It was further submitted that the Tribunal has no jurisdiction to determine such a claim. Furthermore, it was submitted that there is no evidence to support a finding that the applicant has suffered the type of injury that would justify a general damages award. It was submitted on behalf of the respondent that the evidence suggests that the applicant's stress arises from the fact that he is involved in legal proceedings, rather than anything done by the respondent. 352As we have stated earlier in this decision we have treated Mr Hunter's evidence with caution, because of the inconsistencies with other more probative evidence. We note that Mr Hunter's condition adversely affects his memory and that he has a poor recollection of events. Mrs Hunter's evidence is also confused and in our view unreliable. Having said that however, Mr Hunter's uncontroverted evidence, which we accept, is that he was left feeling betrayed by his own community and his former foster parent, because he was no longer allocated work by the respondent. We accept that his job meant a lot to him, because it was an acknowledgement of his status in the community. We accept that the loss of his work adversely affected his self-esteem and his psychological state. 353The effects on the applicant resulting from the loss of work are documented by Dr Dinnen, consultant psychiatrist. There was no evidence of any prior psychological condition, although, there are clearly other factors that have contributed to his depression, distress and adjustment disorder, such as family matters, the anti-convulsant medication (which is stated to affect mood and create anxiety), and withdrawal from narcotics. The Tribunal only has to be satisfied, however, that the breach/contravention materially contributed to the damage, for a causal connection to be established, despite the existence of other contributing factors ( Henville -v- Walker (2001) 206 CLR per McHugh J). 354We are satisfied that, as a matter of common sense, the respondent's contravention of the legislation materially contributed to the applicant's distress, humiliation and depression/adjustment disorder. We rely principally on the report of Dr Dinnen who supports the causal relationship between the breach and the consequent feelings of distress, humiliation and the psychiatric disorder. 355The claim for damages for an increase in seizure activity is not, in our view, a matter that can be properly covered by general damages, because it does not appear to fall within any of the heads of damages. 356The Tribunal is satisfied that it is appropriate that there should be an award for general damages for the act of discrimination, which covers matters such as hurt, humiliation and injury to feelings. 357As acknowledged by Wilcox J in Hall -v- Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult: ....damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage. 358On the basis that the maximum available for compensation is $40,000, we consider that an appropriate amount is $10,000 for general damages, given that the hurt, humiliation and distress have been continuing for some time since 2005. We are of the view that a nominal amount for general damages would not properly reflect the loss in self-esteem the applicant has felt as well as the social isolation and depression he has described as resulting from the breach. He is a vulnerable individual and he was, in our view, treated without proper regard for his dignity. We note that the applicant claims that the distress he suffered as a result of the loss of income caused an increase in the frequency of the seizures. There is support for this contention in the opinion of Dr Wood, in that he stated that emotional stress levels appear to influence seizure frequency. There is also evidence however of many other factors that have contributed to the increase. Nonetheless, we have taken this matter into account in determining general damages. Economic Loss 359It was submitted on behalf of the applicant that he has suffered ongoing economic loss as a result of the breach and that he was not offered work again until 6 March 2008 after the anti-discrimination proceedings were commenced. 360It was submitted that although further work was not guaranteed, and that there was a general decline in available work, others were still receiving work. Mr Hunter's name remained on the Register and there was a continuing casual employment relationship. It is therefore appropriate to award economic loss on the basis that the amount of work Mr Hunter received prior to the epileptic fit would have continued if not for the seizure. 361The evidence shows however that Mr Hunter was earning $16.60 per hour, and that over a period of about three-and-a-half months from 18 November 2004 to 4 March 2005 he worked 350 hours. It was submitted that this indicates an average of 11.42 hours per week, and that over a twelve-month period it amounts to $22,196.57. This figure does not include any loading for working weekends. It was submitted that this was his annual loss and that, given that the maximum mount that can be awarded is $40,000, the full amount of $40,000 should be awarded. 362The Tribunal agrees with the submission made on behalf of the respondent that the evidence shows that the work available to persons on the Register could be irregular and uncertain, and cannot be calculated with any certainty. It was also submitted that there is no evidence that Mr Hunter sought to mitigate his loss. 363The evidence shows that Mr Hunter was regularly offered work, which he accepted, and that there were no performance issues. The evidence shows that unlike persons on the Register like Colin Dixon, who was unavailable to accept work because he was incarcerated, and Henry Khan who left the area, there was nothing to prevent Mr Hunter from accepting work whenever it was offered. 364We also do not agree with the respondent's submission that loss of opportunity should be limited to work that he might have been allocated during the period 21 October 2005 and 29 December 2005. It is correct that the period of complaint is limited to the twelve-month period prior to the complaint being made, but Mr Hunter was discriminated against on the ground of his disability, and the detriment he suffered as a result of that discrimination that occurred prior to 29 December 2005 was a loss of work and income, that continued well after 29 December 2005. 365If the applicant had continued to be allocated in the same way as Anthony Hunter, he would have earned about $9,976.60 from 4 March 2005 to 29 December 2005. In the period 28 November 2004 to 4 March 2005 the applicant worked 350 hours at the rate of $16.60, which amounts to $5,810.00. This results in an annual income of about $15,000.00. 366We accept that in any calculation, there should be a reduction, not only to take account of the general decline in the availability of work to about forty per cent, but also to account for variation in the availability and allocation of work. 367We also note that Mr Hunter stated that he did not look for other work, because he thought the respondent would give him work. Mr Hunter has various qualifications and has had experience in other types of work. He could have mitigated his loss by looking for and obtaining other work. 368These matters have the effect of reducing the economic damages to be awarded to Mr Hunter. 369We consider that Mr Hunter is entitled to the same amount of income earned by Anthony Hunter for the period 5 March 2005 to 29 December 2005, being $5,810.00 as well as an amount into the future for a period of one year, being $6,000, which represents a figure of 40 per cent of his annual income, consistent with the decline in work. We consider that Mr Hunter had an obligation to mitigate his loss and could have done so, given his qualifications and experience. In addition, the applicant had other factors unrelated to the discrimination which have taken him out of the workforce. 370We consider that an amount of $11,810.00 for economic loss is justified. 371The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar 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. Decision last updated: 24 August 2011