Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hines v Mai-Wel Limited [2013] NSWADT 186 Hearing dates: 2 July 2013 Decision date: 16 August 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for Mr Hines' complaints of disability and sex discrimination to proceed. Catchwords: ANTI-DISCRIMINATION - complaints of sex and disability discrimination by applicant declined by Anti-Discrimination Board as lacking in substance - whether to grant leave for complaints to proceed - complaints lack merit Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: John Hines (Applicant) Mai-Wel Limited (Respondent) Representation: J Hines (Applicant in person) A Hodgson and A Rohr (Employees of Respondent) File Number(s): 131034 reasons for decision Introduction 1Mr Hines has applied for permission for his complaints of disability and sex discrimination to be heard in the Tribunal. The President of the Anti-Discrimination Board declined the complaints as misconceived and lacking in substance: Anti-Discrimination Act 1977, (AD Act) 96. The Tribunal may give Mr Hines permission for his complaints to do ahead if it is fair and just to do so in the circumstances: Jones v Ekermawi [2009] NSWCA 388. It will not be fair or just if the complaints lack merit. I have decided to refuse leave for Mr Hines' complaints to go ahead because it is highly unlikely that he will be able to prove that his employer has breached the AD Act. 2Mai Wel Limited is a provider of disability services. Mr Hines, who has a form of muscular dystrophy, was employed as a "supported employee" in one of Mai-Wel's Disability Enterprises, Mai-Wel E Cycling Services. His job involved dismantling electronic equipment, such as computers, for recycling. He complains about rates of pay, opportunities for training and promotion and harassment during a 19 month period from December 2010 until he resigned in July 2012. 3After the hearing on 2 July 2013, Mai Wel wrote to the Tribunal with further information in response to Mr Hines' complaint. Mr Hines replied refuting the authenticity of at least one of the documents Mai-Wel provided. I appreciate that Mr Hines has not had the opportunity to give oral submissions in response to this extra information but he has made known his views in writing. As I am not making any findings about disputed facts in these proceedings, I will take into account the extra material and submissions provided by both parties in coming to a view as to the merits of Mr Hines' complaints. Summary of complaints 4Mai-Wel employed Mr Hines as a "supported employee" under a federal award, the Supported Employment Services Award 2010. Mai-Wel employs people in four categories: supported employees, support workers, production assistants and team leaders/supervisors. Supported employees have an Individual Service Plan created for them. The plan includes career goals. One of Mr Hines' goals was to become a support worker for supported employees. 5In summary, Mr Hines' complained that: (1)Mai-Wel did not pay him the correct rate of pay which he says should have been in accordance with the classifications of a production assistant, not a supported employee (disability discrimination). (2)Mai-Wel failed to train him as a support worker but, in July 2011, they provided female employees with such training opportunities (sex discrimination). (3)Throughout his employment he was paid as a supported employee even after he became a so-called "assistant support worker" (disability discrimination). (4)Paul Waters, the manager of E/cycling, harassed and bullied him on the ground of his disability and favoured female employees over him (sex discrimination). (5)Mai-Wel failed to consider him for a promotion in February or March 2012 (disability discrimination). (6)Mr Waters threatened to terminate his employment after it came to light that he was in a relationship with a production assistant, Ms Wieczorek; (sex and disability discrimination) 6Mr Hines says he is also "making a stand" for other male employees. Throughout his complaint he mentions other male employees who he says were treated unfairly. The Tribunal only has power to consider Mr Hines' complaints in relation to his own circumstances. 7Mr Hines says that Mai-Wel has documents which would help him prove his case but they have not been given to him. Those documents include his Individual Service Plan, a copy of his personal file, payslips and notes of meetings he attended. He says other employees would also be able to provide evidence in support of his case if they were summonsed to give evidence at a hearing. According to Mr Hines, with this further information he would be able to substantiate his complaints. 8The purpose of these proceedings is to determine whether it is fair and just for Mr Hines' complaints to proceed. That assessment is made on the basis of the material before the Tribunal at the time of the hearing. Because the Tribunal is not bound by the rules of evidence it may also take into account other documentary material or other evidence from witnesses, which may be adduced at a hearing. If it is likely that such a document or other evidence does exist and it may have a material bearing on a factual issue in dispute, I have taken its existence into account. President's reasons for declining complaint 9The President of the Anti-Discrimination Board declined Mr Hines' complaints. In the letter of declination the President's delegate states: I am of the view that the circumstances of the employment of Mai-Wel's "Supported Employees" are substantially different to that of Mai-Wel's employees who are not in supported employment, such as Production Assistants. I am of the view that, by comparing yourself to workers who are not supported employees; you have mistaken what is required to be shown for unlawful discrimination to occur. I am also not satisfied that the information provided shows that Mai-Wel treated you unfavourably. Even if I am mistaken about this, I am of the view that there is no evidence to show that the alleged treatment, about which you complain, was because of your disability or gender. Legal principles 10In order to prove that Mai-Wel's conduct breaches the direct disability and/or sex discrimination provisions of the AD Act Mr Hines must prove four things. There is no dispute about two of those things: (1)Mr Hines is male and he has a disability as defined in s 4 and s 49A. (2)Mr Hines is complaining about treatment relating to the terms and conditions of his employment and his access to opportunities for promotion, training or any other benefit; s 49D(2)(a) and (b) and s 25(2)(a) and (b). 11There is a dispute about whether any of the alleged conduct amounts to direct sex or disability discrimination. If this matter goes to hearing, the onus would be on Mr Hines to prove that: (1)in the same circumstances, or in circumstances which are not materially different, a woman or a person without his disability, would not have been treated in the same way: s 49B(1)(a) and s 24(1)(a); and (2)at least one of the reasons for the treatment was his disability or his sex: s 49B(1)(a), s 24(1)(a) and s 4A. 12I will refer to the first part of the test for direct discrimination as "differential treatment" and the second part of the test as "causation". Assessment of merits of Mr Hines' complaints 1. Rate of pay 13At the time Mr Hines resigned on 27 June 2012, he was classified at Grade 4 (as per Schedule B of the Supported Employment Services Award 2010) and paid at Level 7, that is at a rating of 50%. His hourly pay rate was $8.69. Wage levels are reported to Centreline so that they can adjust a person's pension if required. The award under which Mr Hines was employed uses a wage assessment tool to determine an individual's rate of pay. That assessment tool looks at the whole job from the point of view of an employee without a disability and assesses the degree to which the supported employee can do that work. Wage assessments are conducted twice a year. Two of Mr Hines' wage assessments were included in the President's Report. 14Mr Hines says that he was given a rating which was 50% of the highest benchmark. Mr Hines says he should have been given a higher rating for two reasons. Firstly, the wage assessment tool is flawed because it did not assess his productivity. Secondly, because of his skills, independence and productivity, he deserved to be paid at a higher rate. 15The differential treatment part of the test for direct disability discrimination requires a comparison to be made between the way Mai-Wel assessed Mr Hines' rate of pay with the way they assessed the rate of pay for a person in the same circumstances but without his disability. There was no evidence that supported employees with other kinds of disability were assessed any differently from the way Mr Hines was assessed. If the wage assessment tool was flawed, it was flawed for all employees with a disability, not just for Mr Hines. 16In addition to differential treatment, Mr Hines would have to prove that at least one of the reasons that Mai-Wel assessed his wages at the level of 50%, rather than at a higher rate, was his disability. Of course, it was Mr Hines' disability that meant he was not assessed at 100%. But it was Mr Hines' case that the assessment did not reflect his true abilities. Mai-Wel submitted that Mr Hines' had an inflated perception of his abilities compared with that of other employees. Mai-Wel provided evidence by way of diary notes and data entries that Mr Hines required regular and direct supervision to complete his duties effectively and safely. 17There is nothing to indicate that Mai-Wel unfairly assessed Mr Hines' wage rate because of his disability. On its face the wage assessments appear to be a genuine assessment of Mr Hines' abilities. Mr Hines did not point to any particular part of the assessment with which he disagreed. 18Mr Hines also submitted that he should have been paid as a production assistant because his skills, abilities and productivity were equivalent to that of a production assistant. For the purpose of the differential treatment test, Mr Hines can only compare himself to other people without his disability in the same circumstances or circumstances which are not materially different. Mr Hines' circumstances were not the same as that of a production assistant because he was not employed as a production assistant. 2. Not considered for training 19In July 2011 Mr Hines said that he learnt that his manager, Mr Waters, had approached two female employees, Heide Wieczorek and Elizabeth Federer, to see if they were interested in enrolling in a Certificate IV in Disability so that they could become support workers. That Certificate provides a qualification for people wishing to work in disability support. According to Mr Hines he was not approached even though he had identified in his Individual Service Plan that he wanted to become a support worker. Mr Hines met with Mr Waters to discuss this issue. According to Mr Hines, Mr Waters told him that he did not think the male production assistants wanted to undertake the training. Mr Hines was not satisfied with this response and contacted head office. A few days later Mr Waters told him that he could undertake the Certificate IV in Disability and that he would be given the title of "assistant support worker". 20By approaching head office Mr Hines was able to persuade management to recommend that he undertake the Certificate 1V in Disability. He says that two other female staff were offered that opportunity, Heidi Wieczorek and Elizabeth Federer. No other males were given that opportunity. Mr Hines says he did not take up the offer to enrol in the course because he did not think that there would be a position available even if he obtained the qualification. 21Mai-Wel says that Mr Hines' assertions are factually incorrect. Firstly, the training was offered to three other male staff as well. Secondly, Ms Federer was already employed as a support worker. Thirdly, there was some discussion in 2011 between Ms Wieczorek and Mr Waters about her interest in becoming a support worker, but she was not offered the opportunity to enrol in the Certificate 1V in Disability. 22Mr Hines acknowledges that he was offered the training but did not take up that opportunity. In those circumstances there was little or no detriment to Mr Hines. Even if there was some detriment in not being offered that opportunity initially, it is unlikely that a Tribunal hearing this matter would consider that Mr Hines' sex was a reason. According to Mai-Wel, other males were offered recommended for enrolment in the course. 3. Not paid as assistant support worker 23Representatives from Mai-Wel acknowledged that Mr Hines identified an interest in becoming a support worker in his Individual Service Plan (ISP). After approaching management his position description was altered in July 2011 to enable him to undertake some duties that involved support for other workers with disabilities. According to Mai-Wel, his pay was increased. Mai-Wel provided a copy of a letter dated 14 July 2011 to Mr Hines stating that his pay was being adjusted because his position had changed. The letters goes on to say: Under the Mai-Wel Ltd Workplace Agreement 2009, you will now be paid $8.69 per hour from the week commencing 4 July 2011. 24There is provision in the letter for Mr Hines to sign to acknowledge that he has received the pay increase. The letter provided by Mai-Wel does not bear Mr Hines' signature. Mr Hines says this document is "false". 25One issue at a hearing would be whether Mr Hines was paid at $8.69 per hour after his position changed in July 2011. No evidence was provided by Mr Hines to establish that he was not paid at that rate. Pay slips for the relevant period would be relevant. But even if Mr Hines were underpaid, he would also have to prove that a reason for the underpayment was his sex or disability. There is nothing Mr Hines referred to that would suggest that that is the case. I note that, if he has been underpaid, Mr Hines may have access to some form of redress from the Fair Work Ombudsman. 4. Harassment, bullying and favouritism 26At the hearing, Mr Hines gave an example of harassment saying that his manager, Mr Waters, had accused him of damaging a work vehicle. He also alleged that Mr Waters reprimanded him for having a two minute conversation with a fellow employee. 27According to Mai-Wel, the incidents about which Mr Hines' complains were all matters where he was counselled about performance. Mai-Wel provided a copy of "Support Notes" in relation to Mr Hines for the period May 2011 to July 2012. Those notes detail various incidents or observations relating to Mr Hines and consistently raise issues about his behaviour. Mr Waters also kept diary notes of conversations with Mr Hines. Having reviewed those notes, and taking into account that Mr Hines may dispute the recorded version, it is unlikely that a Tribunal hearing this case would be persuaded that a reason for Mr Hines being counselled, reprimanded or warned was his sex or disability. The treatment, whether fair or unfair, is far more likely to have been because of Mr Hines' behaviour. 5. Not considered for promotion 28Mr Hines complains that he was not considered for promotion to a position of Acting Lead Production Assistant. The position was given to Justin Wieczorek who, he says, has less experience and knowledge than him. Mr Hines says that he was not told about the vacancy because Mai-Wel would lose funding if he was promoted. He said that Gail White, team leader, told him that he would need to resign from his position as a supported employee and reapply for a promotion. 29Mai-Wel's representative said that the position was created for 3 months to supervise a new afternoon shift in order to meet an increase in demand. The position was not advertised. Three other employees, not including Mr Hines, were considered but the managers agreed that Mr Wieczorek was the most suitable. Mr Hines was under a different award from the award covering this position and he did not meet the selection criteria. Mai-Wel did not consider him suitable for any kind of supervisory role. 30It is likely that a Tribunal hearing this complaint would conclude that Mr Hines was not promoted to the temporary position because he did not meet the selection criteria, not because of his disability. 6. Threatened with the sack 31Mr Hines says that he had a relationship with another Mai-Wel employee, Heidi Wieczorek. He alleges that the manager, Mr Waters, spoke to him saying that both he and Ms Wieczorek could be sacked if Mai Wel found out about the relationship. His employment was not terminated but Mr Hines says the relationship ended after the meeting. Mr Hines is complaining about the existence of such a rule and the fact that Mr Waters had taken Ms Wieczorek to dinner and been seen at her home. 32According to Mai-Wel, there is no policy preventing a production assistant such as Ms Wieczorek from having a sexual relationship with a supported employee but because supported employees can be vulnerable, those in positions of power are counselled against forming such relationships. 33If Mr Hines were able to prove that Mr Waters "threatened him with the sack" he would still need to establish that a reason he did this was his disability. Mr Hines was unable to point to any circumstances which would suggest that the Tribunal would be likely to draw that inference. From the information provided by Mr Hines, it appears far more likely that Mr Waters counselled him for a reason other than his disability Order Leave is refused for Mr Hines' complaints of disability and sex discrimination to proceed. ********** 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: 16 August 2013