Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hinder v The Salvation Army (New South Wales) Property Trust [2015] NSWCATAD 239 Hearing dates: 22 September 2015 Decision date: 18 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Leave is granted for the applicant's complaint to proceed. Catchwords: ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - whether fair and just for complaint to proceed – assessment of merits of complaint of disability discrimination against employer – issues include whether gambling addiction is a disability – whether tendency to steal money is a characteristic appertaining to people who have a gambling addiction – facts necessary to establish an inference that there has been a breach of the Anti-Discrimination Act 1977 (NSW) Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Category: Procedural and other rulings Parties: Kathleen Hinder (Applicant) The Salvation Army (NSW) Property Trust (Respondent) Representation: Solicitors: J Wright (Agent for Applicant) Salvos Legal Limited (Respondent) File Number(s): 1510440 reasons for decision Introduction 1. Ms Hinder has applied for permission for her complaint of disability discrimination against The Salvation Army (New South Wales) Property Trust (The Salvation Army) to go ahead. The complaint is that she was suspended from employment in 2011 on the ground of her disability (problem gambling) in breach of the Anti-Discrimination Act 1977 (NSW). 2. On 11 June 2015, the President of the Anti-Discrimination Board declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. Principles for granting leave – whether "fair and just" 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. The broad issue to be determined is whether it is fair and just in all the circumstances for the complaint to proceed. Background 1. Ms Hinder was employed by The Salvation Army in 2004 as the Store Supervisor of the Upper Blue Mountain Corps Family Store. By letter dated 16 February 2011 she was suspended on full pay for two weeks. The basis for the suspension was said to be three complaints from customers, failure to follow directions to vacuum and clean the shop every day and smoking in no smoking areas. Rather than accept the suspension and await the outcome of the investigation, Ms Hinder resigned. She has not returned to work since that time. 2. On 4 July 2014, more than three years after these events occurred, Ms Hinder was provided with some documents which led her to believe that the reason for the suspension was not the matters mentioned in the letter of 16 February 2011, but the fact that her supervisor, Mr Belmonte, had made false allegations that she had stolen money from the Family Store. Ms Hinder says that he did so because he knew she had a gambling problem. 3. In October 2010, four months before the suspension, allegations of theft were made against Ms Hinder. Those allegations were internally investigated and found not to be substantiated. Ms Hinder says that she was not on duty the day the alleged incident occurred and that the allegations that Mr Belmonte made were different from the 2010 allegations. 4. Jon and Leah Belmonte took over responsibility for the Family Store in mid-January 2011. On 25 January 2011 Ms Hinder says she gave them a copy of a document called "Kath's story" which outlined her past including the fact that she had a gambling problem. 5. Soon after taking over responsibility for the Family Store, Mr Belmonte requested that a risk management review be conducted by Ian Powell, the Organisational Risk Director. Mr Powell produced a report dated 14 February 2011 highlighting significant concerns in relation to occupational health and safety (OHS) issues and the performance of Ms Hinder as the store supervisor. Below we set out three of the 44 issues raised in Mr Powell's report: There were a number of very high to extreme risk exposures noticed during my visit. In discussions with the Corps Officers (Jon and Leah Belmonte) and based on his excellent documentation of issues and actions taken during their very brief appointment, one may rapidly realise the extent of the problem at hand. These issues and actions include: Smoking in the entrance and near vicinity of the family shop is to cease, as 6 meter exclusion areas is enforced and signposted Allegations of staff theft, problems with shoplifting, illegal dumping and public loitering: request installation of security cameras on the dock and donation area, furniture area, front door and cash registers 24-hour surveillance recorded on the 500 GB hard drive three months Shop floors to be cleaned, vacuumed, tidy and in order before opening to public each day, now instituted. (Words in brackets added.) 1. Mr Powell made the following recommendations in relation to Ms Hinder: 1. a further OHS inspection should be arranged with Divisional HR Consultant in a month's time to check store supervisor's progress; 2. review performance of store supervisor as soon as practicable with changing requirements and key performance indicators necessary to take the store forward; 3. consider a disciplinary warning for poor performance commensurate with the lack of safety and the very unsatisfactory state of the store. 1. The two documents which Ms Hinder first saw in 2014, and which are at the centre of this complaint, are hand written notes of Mr Powell recording two phone conversations he had with Jon Belmonte on 16 and 17 February 2011. These are the documents on which Ms Hinder relies to substantiate her complaint of disability discrimination. Mr Powell's typed record of these handwritten notes is as follows: Initial Phone Call from Jon Belmonte Corps Officer at Upper Blue Mountains Corp (UBMC) Captain Jon Belmonte notified me regarding problems at UBMC. The following persons had reported to Jon the following: 1. Olive Wright volunteer – now at Goulburn Corp (saw Kath put money in her bra – taken from till in 2010) 2. Lisa Woodbury (soldier at Katoomba) – also said she saw Kath Hinder take money from the till and place it discreetly on her person – and 3. David Lathan (volunteer) has seen her on a number of occasions take money from the till and place it in her pocket. I recommended Jon worked with HR to assist with an investigation and any subsequent disciplinary matters (if allegations are substantiated). Subsequently, CO Jon Belmont notified me that Ms Hinder was about to be stood down for two weeks on full pay pending an investigation of a number of events including the above. Jon was to be assisted by the Greater Western Division HR Department, regarding Ms Hinder's overall poor job performance, the dangerous state of the store (OHS) and the misappropriation matters but elected to resign prior to any investigation taking place. Her resignation was accepted by HR. 1. According to Ms Hinder, Lisa Woodbury denied ever having spoken to Jon Belmonte and also denied ever having accused her of stealing. Olive Wright also denied making any allegations of theft against Ms Hinder and completed a statutory declaration to that effect. Ms Hinder submitted that Mr Belmont had made up the allegations to justify the suspension. 2. The Salvation Army said that there were no new allegations of theft in 2011 and that the 2010 allegations had been investigated and found to be unsubstantiated. 3. At some stage the disciplinary matters relating to Ms Hinder were referred to the Regional Human Resources Consultant, Ms Vuyyuru but there is no evidence as to the precise time that the referral took place. According to The Salvation Army, it was Ms Vuyyuru who made the decision to suspend Ms Hinder while the matters in the Powell report were being addressed. Ms Vuyyuru apparently said that she was not aware that Ms Hinder was a recovering gambling addict when she decided that she should be suspended. She maintains that her decision was based on the work health and safety issues identified in Mr Powell's report and not on the allegations of theft in 2010 or at any other time. 4. Ms Hinder provided several references from former co-workers and supervisors which attested to the fact that she had previously had a gambling problem but that she had since turned her life around and that she was an honest and willing worker. Legislative provisions 1. In order to substantiate a complaint of disability discrimination, Ms Hinder would have to prove that The Salvation Army breached s 49D(2)(d) of the Anti-Discrimination Act by suspending her in 2011. That provision states that: (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. 1. I understand Ms Hinder's complaint to be one of direct discrimination as defined in s 49B(1): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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, (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. 1. Ms Hinder says that her disability is a gambling addiction and/or obsessive compulsive disorder. "Disability" is defined in s 4 to mean: "disability" means: (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. 1. Disability includes past, future and presumed disability: Anti-Discrimination Act, s 49A. 2. In summary, in order to substantiate her complaint, Mr Hinder would have to prove that: 1. she has a disability as defined in the Anti-Discrimination Act; 2. suspending her on full pay was a detriment to which her employer subjected her; 3. in the same circumstances or in circumstances which are not materially different, The Salvation Army would not have suspended a person who did not have that disability (differential treatment); and 4. one of the reasons for the suspension was her disability or a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability; (causation). Disability 1. Ms Hinder provided a report from a consultant psychologist dated 30 August 2015 advising that she had been referred for psychological counselling for depression and anxiety in 2012. Ms Hinder reported that she had had a significant long term problem with anxiety and a gambling problem. She reported to the psychologist that when she encountered stressors with the new management in 2011, the symptoms of anxiety were exacerbated. 2. While the matter is not free from doubt, Ms Hinder may be able to establish that her particular issue with gambling is a disability because it is "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." No relevant case law was brought to my attention on this point but it is, at least, arguable. In relation to her alternative submission that she has an obsessive compulsive disorder, I did not understand that disability to be the basis for her complaint. Differential treatment and causation 1. The first component of the test for direct disability discrimination is the "differential treatment" test. The treatment afforded to Ms Hinder must be compared with the treatment that would have been afforded to a person who did not have a gambling problem in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Ms Hinder, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation. 2. At least one of the reasons for the suspension must have been Ms Hinder's disability (whether actual, past or presumed), a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability: Anti-Discrimination Act, s 4A and s 48B(1) and (2). Although Ms Hinder did not articulate her case in this way, I understand her to be submitting that a tendency to steal money is a characteristic that is generally imputed to people who have a gambling problem. If Ms Hinder did rely on the so-called "characteristics extension" she would have to establish that connection or the Tribunal would have to take judicial notice of it for her complaint to succeed. 3. As with the vast majority of complaints of discrimination, a causal link between Ms Hinder's disability (or a characteristic that is generally imputed to people with that disability) and the suspension would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence." 1. Ms Hinder seeks to draw the connection between the decision to suspend her and her disability or the characteristic that she has a tendency to steal money by asserting that: 1. Mr Belmonte knew of her gambling addiction because she gave him a copy of "Kath's story" on 25 January 2011. It is arguable on the basis of Ms Hinder's assertion that Mr Belmonte knew that Ms Hinder was a problem gambler when he signed the suspension letter. 1. Based on The Salvation Army's own policies, the alleged conduct, which did not include allegations of theft, did not justify suspension. The Salvation Army's Guidelines suggests that suspension should only be considered in "extreme cases" pending an investigation. Examples of such circumstances include alleged physical violence, alleged negligence, criminal activity or other serious unacceptable official conduct or workplace behaviour that it likely to cause loss or damage. Mr Powell recommended that consideration be given to a "disciplinary warning". He did not recommend suspension. 1. Mr Belmonte was the person who decided to suspend Ms Hinder and the 2011 theft allegations were not genuine. My understanding of Ms Hinder's case is that it was Mr Belmonte who decided to suspend Ms Hinder and that decision was made because he did not want to have a person with a gambling problem, or who had a tendency to steal money, working in the Family Store. Ms Hinder would have to prove that that was the case because The Salvation Army maintains that it was Ms Vuyyuru who made that decision and she did not know of Ms Hinder's disability. In support of The Salvation Army's case that Ms Vuyyuru had prepared the suspension letter, is the evidence that even though Mr Belmont apparently told Mr Powell on 17 February 2011 that Ms Hinder was about to be stood down pending an investigation of several matters including the misappropriation matters, he had signed the suspension letter the day before which did not refer to the theft allegations. If the theft allegation were not genuine, that raises the issue as to whether Mr Belmonte imputed to Ms Hinder a tendency to steal money because he knew that she had a gambling problem. Ms Hinder would have to prove that the unexplained allegations of theft that Mr Belmonte made to Mr Powell contributed, at least to some extent, to the decision to suspend her. 1. Other factors which are relevant to whether such a connection can be drawn include the conduct of the Salvation Army following Ms Hinder's suspension. 2. An employee of The Salvation Army, Ms Thomas, phoned Ms Hinder on 21 February 2011 asking if she was willing to continue working until 2 March 2011 and attend a meeting on that date. Ms Hinder agreed. The meeting was to discuss the customer complaints and Mr Powell's Risk Management Review Report. The Salvation Army said that the purpose of the meeting was to request Ms Hinder to return to her position, for all parties to try to reach a consensus on how to best resolve the issues and to support Ms Hinder in her performance as Store Supervisor. Ms Hinder attended with a support person but at the conclusion of the meeting indicated that her resignation was to stand. 3. In 2014 The Salvation Army arranged for an independent investigation to be conducted into the circumstances leading to the suspension of Ms Hinder's employment. Ms Hinder participated in that process. The Salvation Army claims client legal professional privilege in relation to the report and it was not in evidence. The Salvation Army did provide a letter written by Major Warren Parkinson, the Divisional Commander for the Greater West Division, to Ms Hinder dated 13 October 2014 telling her that "there should have been a collective effort made by all parties involved at the time towards finding a solution to the problems identified in Mr Powell's report. . . . Essentially, I believe that you could have been initially better supported in your performance as store supervisor." Mr Parkinson goes on to say that it was ultimately Ms Hinder's choice to resign even though she was offered continuing employment in the meeting on 2 March 2011. Conclusion 1. The treatment about which Ms Hinder complains is the suspension of her employment on full pay for two weeks in 2011. It is her firm belief that that suspension was not justified under The Salvation Army's policies and that it was made because Mr Belmonte fabricated evidence that she had been stealing from the Family Store. No mention was made of the theft allegations in the letter of suspension or in the subsequent meeting with Ms Hinder. To substantial her claim, Ms Hinder would have to prove, not only that her particular gambling problem is a disability but that a reason for suspending her was that disability or a characteristic associated with that disability. The file notes of two telephone conversations between Mr Belmonte and Mr Powell satisfy me that it is at least arguable that there was a discriminatory reason for suspending Ms Powell. While it is by no means certain that Ms Hinder will succeed in substantiating her complaint it cannot be said that it lacks substance. In my view, it is fair and just in all the circumstances for it to proceed. Orders Leave is granted for the applicant's complaint to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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: 18 November 2015