Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Deerubbin Local Aboriginal Land Council v Hunter [2012] NSWADTAP 15 Hearing dates: 3 February 2012 Decision date: 07 May 2012 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President R Perrignon, Judicial Member J Newman, Non-Judicial Member Decision: 1. The Tribunal's first order, that: The complaint of unlawful discrimination on the ground of disability is substantiated. is affirmed. 2. The Tribunal's second order that: The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. is set aside. 3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005. 4. In substitution for the Tribunal's second order, the following order is made: The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days. Catchwords: APPEAL - disability discrimination in work - whether Tribunal breached procedural fairness in selecting a single comparator when several were put forward - identification of the circumstances in which a comparison should be made for the purposes of the differential treatment element of direct discrimination - onus of proof and the drawing of inferences in discrimination complaints - calculation of economic loss Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 Building Professionals Board v Ball [2008] NSWADTAP 70 Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Fenwick v Beveridge Building Products Pty Ltd (1985) 62 ALR 275 Purvis v State of New South Wales (2003) 217 CLR Texts Cited: Williams CR, "Burdens and Standards in Civil Litigation" (2003) Sydney Law Review 9 Category: Principal judgment Parties: Deerubbin Local Aboriginal Land Council (Appellant) Mr D Hunter (Respondent) Representation: Counsel K Eastman (Appellant) M Tibbey (Respondent) Chalk & Fitzgerald (Appellant) Legal Aid NSW (Respondent) File Number(s): 119044 Decision under appeal Citation: Hunter v Deerubbin Local Aboriginal Land Council [2011] NSWADT 202 Date of Decision: 2011-08-24 00:00:00 Before: Equal Opportunity Division File Number(s): 081053 REASONS FOR DECISION Introduction 1In late 2004 Mr Hunter's name was put on a casual register to perform monitoring and excavation work for the Deerubbin Local Aboriginal Land Council. He was offered work from time to time which involved walking behind earthmoving equipment and looking for Aboriginal cultural artefacts. Mr Hunter had an epileptic fit at one of the work sites on 4 March 2005. After that, until 19 October 2005, the Land Council offered him significantly less work than they had previously offered him. Mr Hunter had two seizures on the night of 19 October 2005, following which he was hospitalised. He was not offered any work after that date and lodged a complaint of disability discrimination under the Anti-Discrimination Act 1977 (AD Act) in December 2005. 2The complaint was referred to the Tribunal which found that a comparable employee who did not have epilepsy, Anthony Hunter, had been offered more work than Mr Hunter after 4 March 2005. The Tribunal inferred from that and other evidence, that the Land Council had discriminated against Mr Hunter on the ground of his disability and directed it to pay him $21,810.00 in damages. The Land Council has appealed against that decision 3In February 2012, shortly after the Appeal Panel had heard the appeal, Legal Aid NSW, who were acting for Mr Hunter, advised the Tribunal that he had died. In deference to cultural protocols we have referred to him in these reasons as Mr Hunter, rather than using his full name. Nature of the appeal 4The Land Council is entitled to appeal on a question of law but must seek leave before appealing against the merits of the decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The questions of law raised by the appellant can be divided into three subject areas: questions relating to the differential treatment element of the definition of discrimination, questions relating to the causation element and questions relating to the calculation of damages for economic loss. The Land Council also sought leave for the appeal to extend to the merits of the Tribunal's decision. Before addressing the grounds of appeal, we will set out the legal basis for the complaint. Legal basis for the complaint 5Mr Hunter alleged that the Land Council had discriminated against him on the ground of his disability (epilepsy) in determining who should be offered employment, by dismissing him or by subjecting him to "any other detriment". The substantive provision which makes discrimination unlawful in those circumstances is s 49D of the AD Act: (1) It is unlawful for an employer to discriminate against a person on the ground of disability: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, or (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. 6Discrimination is defined in s 49B(1) of the AD Act. Mr Hunter alleged that the Land Council had discriminated against him "directly", as opposed to "indirectly". Direct discrimination on the ground of disability is defined in s 49B(1)(a) of the AD Act: 49B What constitutes discrimination on the ground of disability (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 7Disability only needs to be one of the reasons for the treatment, whether or not it is the dominant or a substantial reason for the treatment. Section 4A of the AD Act provides that: If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 8On the basis of these provisions, the Tribunal summarised the matters that Mr Hunter needed to prove to substantiate his complaint: 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. 9The test summarised at b) above is sometimes referred to as the "differential treatment" element of direct discrimination. It involves identifying a real or hypothetical person without the applicant's disability as a "comparator". Where a real comparator is identified, the Tribunal must make a finding as to whether the applicant was treated less favourably than that person was treated in circumstances which are the same or not materially different. 10The test summarised at c) above is sometimes referred to as the "causation" element of direct discrimination. It involves determining whether at least one of the reasons for the less favourable treatment was the applicant's disability. 11Grounds 1 - 4 of the appeal relate to the differential treatment test applied by the Tribunal, ground 5 relates to the way the causation test was applied and grounds 7 - 8 relate to the assessment of damages. Differential treatment Procedural fairness issue 12The Land Council submitted that the Tribunal had breached the rules of procedural fairness by failing to put it on notice that it would select a single person, Anthony Hunter, as the 'comparator' and by failing to give it an opportunity to adduce evidence in relation to that matter. Mr Hunter's case was that the relevant comparator was a group of people rather than a single person. That was made clear in the Further Amended Points of Claim which stated at (p) that: 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. 13At [303] of the decision, the Tribunal summarised that submission: It 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." 14In support of their submission that the treatment afforded to a group of people should be compared collectively with the treatment afforded to Mr Hunter, his legal representative handed up a bundle of documents at the close of the hearing on 26 February 2010. The bundle included time sheets for other workers who were on the register. The hearing continued some months later. At the end of the final hearing day on 30 July 2010, Mr Hunter's representative provided a document entitled, "Analysis of change in [Mr] Hunter's work hours . . ." The Tribunal noted that: 291 The 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 15We note that in subsequent submissions Mr Hunter's lawyers conceded that neither Mr Khan nor Mr Randall were appropriate comparators. 16At the conclusion of the hearing, the Tribunal gave leave for the Land Council to file a response to this document. We set out part of that response below: Persons Subject to the Tables Handed up to the Tribunal Not Proper Comparators The Respondent repeats its submission at the hearing of this matter that the persons the subject of the tables handed up by the Applicant at the hearing of this matter are not proper comparators for the Applicant. This is self evidently so for Phillip Khan and Steven Randall, who were employed as Senior Cultural Officers with the Deerubbin Local Aboriginal Land Council (Deerubbin LALC) during the period of the Applicant's complaint, whereas Applicant was not. The other persons referred to in the relevant tables are also not appropriate comparators. In this regard the Respondent once again refers to the payroll activity summaries at Attachments "P" and "Q" of the Affidavit of Kevin Cavanagh that was sworn on 11 June 2009 (Exhibit R4) that show that all of the persons analysed in the Applicant's tables were earning more than the Applicant during the period he was doing work for the Deerubbin LALC (and were, therefore, receiving more work during that period). The Respondent also repeats its previous statements that only the figures during the period of the Applicant's complaint (between 29 December 2004 and 29 December 2005) are relevant for the purpose of the period in which the discrimination was alleged to have occurred. The figures in those tables after 29 December 2005 could only be relevant to the question of damages (if that question arises). 17The Land Council went on to point out errors and omissions in the tables and submitted that it was unsafe for the Tribunal to rely on that material. In particular, in relation to the Table entitled "From Nov 2004 to December 2005 Compare [Mr] Hunter to Anthony Hunter", the Land Council submitted that a significant number of days worked by both Anthony Hunter and Mr Hunter had been omitted from that table. The Land Council provided its version of the correct data. The Tribunal summarised this submission at [292] of its reasons. 18The Tribunal agreed with parts of the Land Council's submission. For example, it agreed that it was not appropriate to treat all the people on the register, whether casual or full time, as comparators. It also agreed that neither Mr Khan nor Mr Randall was an appropriate comparator. The Tribunal found at [324] that one person, Anthony Hunter, was an appropriate comparator, giving the following reasons: 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. 19The Land Council submitted that it was not put on notice that Anthony Hunter would be selected as the only comparator. On the basis of the pleadings, the evidence and oral submissions, its assumption was that it was only at risk of a finding that all 10 people collectively identified by Mr Hunter's representative as appropriate comparators were the relevant comparator. Giving the Land Council leave to respond to the document that had been tendered, was not sufficient to meet the Tribunal's obligation to afford procedural fairness. It was said that if the Tribunal had in mind selecting a single person, it should have given the Land Council an opportunity to adduce evidence and make submissions in relation to the appropriateness of that person, as well as other people, as a comparator. According to the Land Council, the Tribunal's failure to do so constitutes a breach of procedural fairness. Reasoning and findings on procedural fairness ground 20The Tribunal is bound by the rules of procedural fairness, including the fair hearing rule: ADT Act, s 73(2). The precise content of the rules of procedural fairness in relation to the Equal Opportunity Division of the Tribunal were discussed in some detail in Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51 and we adopt those observations. However, s 96 of the AD Act has been repealed and a new s 96 substituted. There is no longer any reference in the AD Act to the Tribunal conducting an "inquiry" into a complaint.. Section 73(2) of the ADT Act allows the Tribunal to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." We do not regard the repeal of s 96 to be significant in the context of this case. 21One of the fundamental components of the fair hearing rule is that a decision-maker should not make an adverse finding relevant to a person's rights or interests without disclosing to that person that there is a risk of that finding being made: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 at 73 per McHugh J. McHugh J qualified that statement by saying that a warning would not be necessary if the risk "necessarily inheres" in the issues to be decided. In Director General, Department of Education & Training v FP and FQ on behalf of FR at [26] the Appeal Panel held that that statement means that rules of procedural fairness will not be breached if "the respondent is effectively and fairly, if not explicitly, put on notice of a possible adverse finding by the nature of the proceedings." 22The qualification to the disclosure rule was put slightly differently by the Federal Court in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. Northrop, Miles and French JJ held that a decision maker is obliged to advise a party of any "issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made." 23The disclosure rule is reflected, to some extent, in s 73(4) of the ADT Act which requires the Tribunal to take such measures as are reasonably practicable "to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions." 24There is a corollary to the disclosure rule. A person "who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding." (McHugh J in Aala at [101]). This corollary was amplified in s 73(4)(c) of the ADT Act which requires the Tribunal to take such measures as are reasonably practicable "to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings." (Director General, Department of Education & Training v FP and FQ on behalf of FR (EOD) [2003] NSWADTAP 51at [24].) The "fullest opportunity practicable" is a higher standard than a "reasonable opportunity": Building Professionals Board v Ball [2008] NSWADTAP 70 at [45]. Disclosure rule 25The Land Council submitted that the Tribunal breached both the disclosure rule and its corollary. We accept that the Tribunal did not expressly warn the Land Council that it was at risk of a finding that only one person, Anthony Hunter, was the relevant comparator. Does that failure constitute a breach of the common law rules of procedural fairness and/or any one of the more specific rules in s 73 of the ADT Act? In determining that issue, we may take into account the manner in which the disclosure rule has been interpreted by the courts and, in particular, whether the qualification to that rule, as expressed by McHugh J Aala or the Federal Court in Alphaone, applies. There will have been no breach of procedural fairness if the risk that the Tribunal would choose only one of the 10 comparators put forward by Mr Hunter's representative necessarily inhered in the issues to be decided. Put another way, was it reasonably apparent to the Land Council from the terms of s 49B(1)(a), and obviously open to the Tribunal on the evidence, to select a single comparator from the list the applicant put forward? 26An issue in dispute was the identity of the appropriate comparator for the purposes of the differential treatment element of direct discrimination as defined in s 49B(1)(a) of the AD Act. An applicant is required to prove that he or she has been treated less favourably than "a person who does not have that disability" was treated in circumstances which are the same or not materially different. The cases and the commentary on this issue overwhelmingly refer to a single person as the comparator. It is not necessary for the Appeal Panel to decide whether the comparison can be made with more than one person. There is no doubt that it can be made with one person. 27In our view the Land Council was on notice, in a constructive sense, that the Tribunal may reject Mr Hunter's submission and choose a single person as the comparator. That is apparent from the reference to "a person" in s 49B(1)(a), from the evidence and from the fact that the Land Council made submissions as to the appropriateness of individuals put forward as comparators. It submitted, for example, that Phillip Khan and Steven Randall were not appropriate because they were Senior Cultural Officers. The remaining employees were said not to be appropriate because they earned more than Mr Hunter during the relevant periods. The Land Council made detailed submissions about the tables and the calculations put forward by Mr Hunter's representatives generally and in relation to each of the 10 employees, including Anthony Hunter. Opportunity to be heard 28The Tribunal also took reasonably practicable measures to ensure that the Land Council had the "fullest opportunity practicable" to be heard. We accept that it would have been preferable for Mr Hunter's representatives to have filed and served the material relating to comparators in time for the Land Council to respond to that evidence during the hearing. Given that the documents were not provided until the end of the hearing, that was not possible unless the Tribunal set down a further date for hearing. We accept that that was not practicable or necessary. 29The Tribunal allowed the Land Council's representative to make oral submissions at the hearing and then respond in detail to the evidence in writing at a later date. The matters raised by Mr Hunter in the evidence were all matters concerning the Land Council's own employees. The Land Council provided a written response saying that none of the comparators was appropriate and that the tables contained errors which made it unreliable for the Tribunal to rely on them. In those circumstances we are satisfied that the Tribunal gave the Land Council the fullest opportunity practicable to be heard and have its submissions considered. Circumstances when making the comparison 30A second ground of appeal in relation to the differential treatment element of direct discrimination concerned the Tribunal's identification of the relevant circumstances when making the comparison. Those circumstances must be "the same or not materially different". In summary, the Tribunal found at [321] that the relevant circumstances included that Anthony Hunter: (1)carried out the same work as Mr Hunter (2)accepted that work when it was offered (3)did not have performance issues (4)was paid a similar amount of money by the Land Council for the hours worked in the same period. 31The Land Council submitted that it was wrong of the Tribunal to compare the personal circumstances of Mr Hunter with the personal circumstances of a person without his disability. The comparison should be between persons in the same circumstances. The circumstances are those relevant to the way in which the employer treats the employee, not the circumstances of individual employees such as whether they accepted work or made themselves available for work. 32It was said that the Tribunal's approach was rejected by the High Court in Purvis v State of New South Wales (2003) 217 CLR 92 at [217] to [232]. In that case Gummow, Hayne and Heydon JJ decided that the circumstances in s 5 of the Disability Discrimination Act 1992 (Cth) (an equivalent provision to s 49B of the AD Act) were: . . .all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". . . .All of the circumstances of the impugned conduct can be identified and that is what s 5(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. 33Purvis does not stand for the proposition that the individual circumstances of the applicant or the comparator are irrelevant when making the comparison. The test requires that when comparing the treatment that was afforded to the applicant with the treatment that was or would have been afforded to a comparator, the circumstances must be the same or not materially different. Those circumstances are all the objective features which surround the treatment. The objective features include circumstances which relate to the applicant as an individual, such as the fact that he was on the casual register, that he made himself available for work and that his employer had never raised any performance issues with him. If the Tribunal had selected a comparator with different individual circumstances, such as a permanent employee at a higher level who had been disciplined for performance issues, the circumstances would have been materially different. 34The Land Council also suggested that the Tribunal had erred by using Mr Hunter as his own comparator. It was said that it is impermissible to compare the way the Land Council treated Mr Hunter prior to his disability coming to their attention with the way the Land Council treated him after that time. 35The Tribunal did not treat Mr Hunter as his own comparator. The Tribunal selected Anthony Hunter as the comparator and compared the way it had treated Mr Hunter both before and after relevant dates with the way it treated Anthony Hunter during the same periods. The Tribunal explained its reasons at [323]: 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. 36The Tribunal rightly rejected the Land Council's submission 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. By comparing the Land Council's treatment of Mr Hunter and Anthony Hunter during those periods, the Tribunal was simultaneously applying the differential treatment test and the causation test. How the Land Council treated Mr Hunter before and after he had an epileptic seizure was relevant to the causation test, that is whether at least one of the reasons for the less favourable treatment was Mr Hunter's disability. The Land Council has wrongly characterised the Tribunal's reasoning by saying that it used Mr Hunter as his own comparator when in fact the comparison was being made for the purpose of applying the causation test. Causation and the drawing of inferences 37Several grounds of appeal relate to the Tribunal's reasoning and findings about causation and the drawing of inferences. 38In cases under the AD Act, the legal burden of proof is on the applicant to prove his or her case on the balance of probabilities. The Tribunal made that point at [257]. Having the burden of proof means that, after hearing all the evidence, if the decision maker is not satisfied as to a particular fact in issue, the party with the burden of proof on that issue will fail. 39The Tribunal explained at [334] that: In 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. 40The Tribunal concluded at [342] that Mr Hunter had established on the balance of probabilities that one of the reasons for the differential treatment was his disability. In summary, the Tribunal's reasoning was that: (1)only one of the reasons for the treatment needs to be the person's disability (at [328]) (2)where there is no direct evidence of causation, the applicant is forced to rely on inference to establish a causal link between the differential treatment and the ground for the treatment (at [332]) (3)the principles to be applied when drawing inferences were set out in Dutt v Central Coast Area Health Service (2002) NSWADT 133 at [70] (at [335]) (4)the downturn in the availability of work to be allocated to persons on the Register may well have been one of the reasons the applicant received less work than he had previously (at [340]) (5)Another reason was Mr Hunter's epilepsy. That inference can be drawn on the basis that: (a)on 21 October 2005, two days after Mr Hunter had an epileptic seizure at home, the [Land Council] notified AMP SuperLeader that Mr Hunter had resigned even though it was common ground that Mr Hunter had not resigned; (at [341](a)) (b)Mr Randall and Mr Khan both gave evidence about their discomfort in relation to Mr Hunter working; (at [341](b)) (c)the decline in work was not as great as the reduction in the work allocated to Mr Hunter; (at [341](c)). 41The Land Council had submitted that it was the decline in the availability of work, not Mr Hunter's epilepsy, that lead to him being allocated less work. The Tribunal found that both the decline in the availability of work and Mr Hunter's epilepsy were reasons for the differential treatment. As disability was one of the reasons, even though it may not have been the dominant or a substantial reason, the complaint was substantiated. 42The Land Council characterised the Tribunal's approach as being that it was not satisfied that the reason put forward by the Land Council was the real reason that the applicant was given less work and therefore made the inference that disability must have been a reason. It said at [44] of the written submissions that "[H]aving found that [Mr Hunter's] direct evidence was deficient, it then embarked on an inquiry for evidence which might cure the manifest deficiencies in [his] case. In doing so it has impermissibly reversed the onus of proof." The Land Council also asserted at [45] of its submissions that the Tribunal took 'the unusual approach of seeking out evidence to cure the deficiencies in [Mr Hunter's] evidence." 43It was the Land Council's submission that, having found Mr Hunter's evidence to be unreliable, it then turned to the Land Council for an explanation. That was an impermissible reversal of the onus of proof. Rather than ask whether Mr Hunter had proved his case on the balance of probabilities, it has found that unless the Land Council could prove some alternative explanation for what the Tribunal saw as "suspicious" coincidences, then the Tribunal would find the complaint to be substantiated. 44The Land Council characterised the Tribunal's reasons at [341] as adopting a "what else could it be?" approach to the evidence. In relation to the AMP SuperLeader documents the Tribunal states at [341] that: 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. (Emphasis added) 45Similarly, in relation to the evidence about the decline in work that was available, the Tribunal commented in the same paragraph that: 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. 46Fenwick v Beveridge Building Products Pty Ltd (1985) 62 ALR 275, a decision of the Human Rights Commission (as it then was), was cited as representing the correct approach to the question of onus of proof and the drawing of inferences. That case concerned an allegation of sex discrimination by a woman in relation to dismissal from employment. The Commission noted at p 281 that the onus of proof is on the complainant, but in the absence of direct evidence inferences can be drawn from the primary facts. It added that it is "pertinent to consider the reasons for dismissal advanced by the respondent and its employees from time-to-time." The Commission held at p 283 that while the "reasons advanced by the respondent for the dismissal of the complainant have been contradictory and unsatisfactory" the woman has not established that she was discriminated against on the ground of her sex. Reasoning and findings on the causation grounds 47We do not agree with the way the Land Council has characterised the Tribunal's approach to the issue of causation and the drawing of inferences. In particular, it is not the case that the Tribunal reversed the onus of proof. 48It is common ground that Mr Hunter had the legal burden of proving that one of the reasons for the fact that he was allocated significantly less work after 5 March 2005 and no work after October 2005, was his disability. It is also common ground that the legal burden does not shift, except in relation to the proof of an exception: AD Act, s 104. CR Williams discussed the difference between the legal, evidential and tactical burdens of proof in an article entitled, "Burdens and Standards in Civil Litigation" (2003) Sydney Law Review 9. At 69 he said that: At any given point in time a party who has the legal burden in respect of a particular issue may appear more or less likely to be able to discharge that burden. If that party appears likely to be able to discharge the legal burden, then the tactical burden shifts to the other party; the other party must produce contradictory evidence or run the risk of losing on that issue. If that other party produces such evidence, then the tactical burden may shift back to the party bearing the legal burden. Such swings of the forensic pendulum as a case progresses involve, however, no shift in either the legal or the evidential burden. 49Mr Hunter adduced evidence of the frequency with which he was asked to work during the relevant periods. He also produced his wage records and that of 10 other casual employees. The Tribunal found, as a question of fact, that Mr Hunter had experienced a reduction in the amount of work he was being allocated after he suffered an epileptic seizure on 5 March 2005. He was offered no work after a second seizure in October 2010. The Tribunal also found that the reduction in work was greater that the reduction attributable to the downturn in the availability of work. Those findings were just one of three bases on which the Tribunal concluded that an inference could be drawn that disability was one of the reasons for the treatment. 50Contrary to the Land Council's submission, the Tribunal did not find that Mr Hunter's 'direct' evidence was deficient. The Tribunal acknowledged that Mr Hunter did not give 'direct' evidence of discrimination. Direct evidence would have been evidence from a relevant Land Council employee admitting that one of the reasons Mr Hunter was not allocated as much or any work after 5 March and 19 October 2005 respectively was the fact that he had had an epileptic seizure. 51The fact that the Tribunal preferred the evidence of the Land Council's witnesses on certain factual issues, does not mean that Mr Hunter's evidence was 'deficient'. The Tribunal accepted Mr Hunter's evidence, with some amendments, as to the way in which work was allocated to him and to Mr Anthony Hunter and as to the extent of the downturn in work after March 2005. 52The Tribunal also accepted the undisputed evidence that work was allocated randomly to those on the casual register and that the amount of work available declined after March 2005. 53The problem with the Land Council's submission about causation and the drawing of inferences is that it assumes that the Tribunal may only have regard to Mr Hunter's evidence when determining whether an unavoidable inference of disability discrimination arises. If a respondent chooses to adduce evidence on that issue, the Tribunal may have regard to all the evidence in determining whether the legal burden has been discharged. That does not mean that the legal burden of proof shifts to the respondent. It merely means that the respondent has accepted the tactical burden to produce contradictory evidence or run the risk of losing on that issue. Once that evidence has been adduced it may be taken into account when determining whether certain inferences can be drawn. The Tribunal did not err in doing so. Errors in calculation of economic loss 54The Tribunal calculated Mr Hunter's economic loss for two periods: from 5 March 2005 to 29 December 2005 (the first period) and from 30 December 2005 for a further year (the second period). The economic loss for the first period was held to be $5,810. The economic loss attributable to the second period was held to be $6,000. The total of $11,810 was added to the amount of $10,000 for general damages. An order was made for the Land Council to pay Mr Hunter $21,810.00 within 28 days. 55The Tribunal's findings and reasons in relation to economic loss are at [359] to [371] of the decision: Economic Loss 359 It 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. 360 It 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. 361 The 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. 362 The 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. 363 The 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. 364 We 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. 365 If 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. 366 We 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. 367 We 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. 368 These matters have the effect of reducing the economic damages to be awarded to Mr Hunter. 369 We 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. 370 We consider that an amount of $11,810.00 for economic loss is justified. 371 The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. 56The Land Council submitted that these calculations were in error on four bases: (6)the calculation of loss exceeded the period of the complaint which was from 29 December 2004 to 29 December 2005; (7)alternatively, there was no basis for awarding economic loss for a period of one year after the end of the complaint period; (8)the finding that Mr Hunter had incurred an economic loss of $5,810 during the first period was a manifest error; (9)having determined that Mr Hunter had failed to mitigate his loss, the Tribunal did not make any deduction to take account of that failure. Reasoning and findings on damages grounds Should damages be confined to the period of complaint? 57The respondent's submissions that damages should be confined to the period of the complaint was raised at first instance and addressed by the Tribunal at [364]: 364 We 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. 58The Tribunal did not err in reaching this conclusion. An alleged breach of the AD Act must occur within the period of the complaint, but there is no principle to the effect that any financial loss as a result of such a breach is confined to the complaint period. The financial loss may continue after the end of the complaint period. The Land Council appears to have recognised and understood that principle when it stated in its submission to the Tribunal on 19 August 2010 that the wage information after 29 December 2005 "could only be relevant to the question of damages (if that question arises)." (See [15] above.) Was there a basis for awarding damages for one year? 59According to the Land Council, the awarding of damages for economic loss for the second period (29 December 2005 to 29 December 2006) had no basis in fact or in any of the other findings of the Tribunal. The Tribunal did not explain why it chose that period of time. 60While we agree that the reason for choosing a 12 month period was not expressly stated, when read as a whole the reasons make it clear that: (1)the Land Council offered Mr Hunter work again on 6 March 2008; (at [359]) (2)Mr Hunter did not mitigate his loss by applying for other jobs; (at [369]) 61It can be inferred that the Tribunal selected the period of 12 months, rather than the period from 30 December 2005 to 6 March 2008, because Mr Hunter had failed to mitigate his loss. Given the evidence and the Tribunal's findings, that was an acceptable basis on which to draw such a conclusion. It also addresses the Land Council's submission that the Tribunal failed to discount the damages during the second period to take account of the fact that Mr Hunter had not mitigated his loss. It is apparent that the Tribunal only awarded Mr Hunter damages for a 12 month period when the Land Council did not offer him any work for well over 2 years. In other words, the Tribunal discounted Mr Hunter's loss for this period by more than 50% because he did not mitigate his loss. 'Manifest error?' 62When calculating Mr Hunter's loss for the first period, the Tribunal found at [365] that Anthony Hunter earned $9,976.60 during that period. At [369] the Tribunal concluded that: We 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 . . 63The Land Council submitted that this was a manifest error because the difference between $9,976.60 (Anthony Hunter's earnings) less $5,810 (Mr Hunter's earnings for the same period) is not $5,810. 64We agree that the Tribunal has made an error, but not exactly the same error that the Land Council identified. Contrary to the Land Council's submission, the Tribunal did not find that Mr Hunter had earned $5,810 in the first period. The Tribunal found at [365] that he had earned that amount in a previous period from 28 November 2004 to 4 March 2005. It is not correct to say, as the Land Council did, that Mr Hunter's earnings in the same period were $5,810. 65The figure of $5,810 in [369] is an obvious mistake. Given the approach the Tribunal had taken, the correct way to calculate Mr Hunter's economic loss for the first period was by subtracting the amount he earned during that period from the amount Mr Anthony Hunter earned during that period ($9,976.60), subject to any discount for not mitigating his loss. The Tribunal made no express finding as to the amount Mr Hunter earned during the first period. The Tribunal found that the Land Council's time sheets were the most reliable evidence as to Mr Hunter's earnings and said at [287] that they showed that during the first period, Mr Hunter worked for 16 days. 66In submissions to the Tribunal dated 3 September 2010 at para 80, Mr Hunter's representative calculated his earnings during the first period at $2,025.20. In their view, that amount should be deducted from Mr Anthony Hunter's earnings ($9,976.60) to give a total of $7,951.40 for economic loss during the first period. The total economic loss would then be $13,951, not $11,810. 67The Tribunal has made an error of fact by identifying the figure of $5,810 in [369] instead of $9,976.60. The Tribunal did not mention the figure of $2,025.20, being the amount Mr Hunter's lawyers said he earned during the first period. Nor did the Tribunal deduct that amount from the amount Mr Anthony Hunter earned to arrive at an amount of economic loss for the first period. 68We agree with the Land Council's submission that the Tribunal did not discount the damages for the first period to take into account any failure by Mr Hunter to mitigate his loss. The Tribunal noted Mr Hunter's evidence that he did not look for other work because he thought the Land Council would give him work. Nevertheless, the Tribunal found at [367] that he had other qualifications and experience and "[H]e could have mitigated his loss by looking for and obtaining other work." It appears that this finding was intended to apply only to the second period. That inference can be drawn from the fact that from 5 March 2005 to 19 October 2005, the Land Council allocated Mr Hunter some work, albeit at a lesser rate than it had prior to that date. The period from 19 October 2005 until the end of the year was a two month period during which Mr Hunter was not offered any work whatsoever. 69The Tribunal made no error in failing to discount the damages during the first period because of any failure of Mr Hunter to mitigate his loss. However, the Tribunal made several errors in relation to the calculation of damages for the first period. The errors were that it: (1)mistakenly calculated Mr Hunter's loss during the first period as being $5810; (2)failed to make a critical finding of fact, that is, how much Mr Hunter had earned during the first period; (3)failed to correctly calculate Mr Hunter's loss during the first period as being the amount Anthony Hunter earned during that period less the amount that Mr Hunter earned during that period. 70Given these errors, leave is granted for the appeal to extend to the merits of the Tribunal's decision on these points. It is appropriate for the Appeal Panel to determine the merits for several reasons including the length of time it has taken to resolve this complaint, the fact that the parties were given an opportunity at first instance and on appeal to make submissions about these issues and in the interests of minimising costs. 71Although the Tribunal did not make an express finding as to how much Mr Hunter earned during the first period, it did find, at [287] that he was allocated 16 days of work. That accords with the evidence that he worked 122 hours during that period. At the agreed rate of $16.50 per hour that amounts to $2025.20. That amount should be deducted from Mr Anthony Hunter's earnings ($9976.60) to give a total of $7,951.40 for economic loss during the first period. The total economic loss is $13,951 and the total damages is $23,951.00. Effect of Mr Hunter's death on the proceedings 72As we noted at [3] above, in February 2012, shortly after the Appeal Panel had heard the appeal, Legal Aid NSW, who were acting for Mr Hunter, advised the Tribunal that he had died. Section 93 of the AD Act provides that: (1) If a complainant dies before his or her complaint is finally determined, the complaint survives and the legal personal representative of the complainant: (a) may continue the carriage of the complaint, including any referral, review or appeal, and (b) the estate of the complainant is entitled to the benefit of any monetary sum ordered to be paid by the respondent in respect of the complaint. Mr Hunter's legal personal representative should contact the Land Council and the Tribunal to advise whether he or she wishes to continue the carriage of the complaint. Slip Rule 73We note that there is an obvious error at [324] of the Tribunal's decision. The date 29 December 2009 in the second last sentence of the paragraph should be 29 December 2005. We will ask the Registrar to amend that date under the slip rule: ADT Act, s 87. Orders 1. The Tribunal's first order, that: The complaint of unlawful discrimination on the ground of disability is substantiated. is affirmed. 2. The Tribunal's second order that: The Tribunal directs the respondent to pay the amount of $21,810.00 to Mr Hunter within 28 days of this decision. is set aside. 3. The appeal is extended to the merits of the Tribunal's decision but only on the question of the calculation of economic loss during the period from 5 March 2005 to 19 October 2005. 4. In substitution for the Tribunal's second order, the following order is made: The Deerubbin Local Aboriginal Land Council pay to Mr Hunter the amount of $23,951.00 within 28 days. ********** 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: 07 May 2012