Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Najmitdinov v Woolworths Group Limited [2020] NSWCATAD 88 Hearing dates: 4 March 2020 Date of orders: 23 March 2020 Decision date: 23 March 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member Decision: (1) Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW). Catchwords: HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Bonella v Wollongong City Council [2001] NSWADT 194 Burns v Sunol (No 2) [2017] NSWCATAD 236 Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Langley v Niland & Anor (1981) 2 NSWLR 104 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Najmitdinov v Woolworths Group Limited [2019] NSWCATAD 51 Najmitdinov v Woolworths Group Limited [2020] NSWCATAP 15 Sivananthan v Commissioner of Police [2001] NSWADT 44 Texts Cited: None cited Category: Principal judgment Parties: Azzkhon Najmitdinov (Applicant) Woolworths Group Limited (Respondent) Representation: Counsel: D Lloyd (Respondent) Solicitors: Ashurst solicitors (Respondent) Applicant (Self Represented) File Number(s): 2019/00294587 Publication restriction: Nil REASONS FOR DECISION 1. In January 2019, former customer service officer Mr Azizkhon Najmitdinov lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (the President) alleging that in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act) his then employer, Woolworths Group Limited, discriminated against him on the ground of disability and victimised him. After investigating these allegations, the President exercised the discretion to decline Mr Najmitdinov's Complaint, on the ground that it was "lacking in substance": s 92(1)(a)(i) of the Act. At Mr Najmitdinov's request, the President referred the Complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act. 2. In broad terms, the conduct the subject of the Complaint relates to: 1. The changes made to Mr Najmitdinov's shift roster following a request made by Mr Najmitdinov on 6 June 2018, requesting that his rosters be varied to accommodate his health problems. Mr Najmitdinov contends that this conduct constitutes discrimination on the ground of disability in the area of employment (s 49D of the Act). 2. Disciplinary action taken by Woolworths, including the issue of a "final written warning" and a "show cause" letter on 14 September 2018 and 11 February 2019, respectively. Mr Najmitdinov contends that this constitutes victimisation (s 50 of the Act). 1. Because the President has exercised the discretion to decline the Complaint, without leave of the Tribunal it cannot proceed: s 96(1) of the Act. Mr Najmitdinov urges the Tribunal to grant leave, submitting that there was no proper basis for the conclusion reached by the President that the Complaint lacks substance. Woolworths disagrees and urges the Tribunal to refuse leave. 2. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed. Statutory framework and principles governing the grant of leave 1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act. 2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation the President is satisfied that the complaint is lacking in substance, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. 3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act. 4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act. 5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60]. Allegation 1: discrimination in the area of employment on the ground of disability Statutory framework 1. Section 49D(2) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of disability: … (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 … (d) by subjecting the employee to any other detriment. 1. Section 49B of the Act explains 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 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, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (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. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act. 2. Disability is defined by s 4 of the Act to include the presence in a person's body of organisms causing or capable of causing disease or illness, or the malfunction, malformation or disfigurement of a part of a person's body. Background facts 1. Throughout the period the subject of Mr Najmitdinov's allegation of disability discrimination (6 June 2018 to 14 January 2019), Mr Najmitdinov was employed full time (38 hours per week) at Woolworth's Mascot call centre under the Salmat Enterprise Agreement (the Agreement). Under the terms of the Agreement, Mr Najmitdinov was required to work shifts Mondays to Sundays, between 5.00am and 4.00pm in accordance with a roster determined by Woolworths. 2. On 6 June 2018, Mr Najmitdinov submitted a request for a roster change, specifically that he be rostered to work morning shifts and not rostered to work Wednesdays and Thursdays, for health reasons. 3. Two days later Mr Najmitdinov met with his team leader, Ms Monica George, to discuss that request. At that meeting Ms George requested Mr Najmitdinov to supply further supporting information, including medical evidence. 4. On 15 June 2018, Mr Najmitdinov gave Woolworths a letter prepared by GP Dr Holmes and requested that there "be no response until [his] full submission with the additional information". In that letter dated 12 June 2018 Dr Holmes wrote: Thank you for assisting Azziz with a regular shift for his health. He needs strict diet/exercise regime and a regular shift schedule (ideally morning shift and fixed days off) to help continuing lowering his blood pressure and this will be helpful for his breathing and sleep issues. 1. On 28 June 2018, Ms George advised Mr Najmitdinov that to progress his request, she required further information from his GP. At a meeting on 2 July 2018, Ms George advised Mr Najmitdinov that the roster change would not be approved until that information was provided. She told the Tribunal that at that meeting she asked Mr Najmitdinov to give Woolworths permission to contact his GP, so the requested roster change request could be expedited. Ms George claims when she attempted to give Mr Najmitdinov a letter explaining that request, Mr Najmitdinov refused to take that letter. Mr Najmitdinov claims that Ms George attempted to "bait him" and to make him sign off "official paperwork". 2. On 9 July 2018, Ms George emailed Mr Najmitdinov repeating her request for permission to contact his GP "to obtain a better understanding of your medical condition and how it impacts on your current ability to perform your duties in the role of Customer Service Manager, and your rostering ability". Ms George attached to that email a pro forma consent form which she claims she had attempted to hand to Mr Najmitdinov on 2 July 2018. 3. In a letter to Woolworths dated 9 July 2018, a National Union of Workers organiser wrote that Mr Najmitdinov instructed that the reason he had requested a change to his roster was because of his "medical condition … lung condition and a condition with his blood pressure". The organiser wrote: "Mr Najmitdinov is available 5am - 2pm Friday to Tuesday, with two days off, Wednesday and Thursday". He explained that the reason Mr Najmitdinov required two days off during the week was so that he could see his doctor. 4. Two days later, Ms George wrote to Mr Najmitdinov noting that he had not given consent to Woolworths to contact his GP and directing Mr Najmitdinov to attend an independent medical examination. Mr Najmitdinov refused to attend that examination. 5. On 23 July 2018, Woolworths wrote to Mr Najmitdinov noting that it had not received any further information. Woolworths advised Mr Najmitdinov that on the basis of Dr Holmes' "certificate", it had agreed to accommodate his request and for a period of six months he would be rostered to work morning shifts, Monday to Friday (the First Fixed Roster). 6. Shortly after being notified of the First Fixed Roster Mr Najmitdinov gave Woolworths a letter dated 25 July 2018 prepared by Dr Saja Chami, who worked at the same medical practice as Dr Holmes. That letter was in the same terms as the letter prepared by Dr Holmes, except in respect to the request for fixed rostered days off. Dr Chami requested that those days be "Monday to Friday in order to attend medical appointments". 7. On 31 July 2018, Woolworths advised Mr Najmitdinov that it had further accommodated his roster request and for a period of three months he would be rostered morning shifts, with Tuesdays and Wednesdays as fixed days off (the Second Fixed Roster). Under that roster Mr Najmitdinov was required to work nine hours on Mondays, Thursdays and Fridays, seven hours on Saturdays and four hours on Sundays. 8. In an email sent on 1 August 2018 to a Woolworths manager, Mr Najmitdinov wrote that the roster "addresses the raised issue very reasonably" and "there are no issues in following it". In addition, he wrote that as the "result of actions taken after our meeting by people who have been fully aware of the development … are in breach of your resolution". He did not elaborate further. 9. In December 2018, Woolworths reviewed Mr Najmitdinov's roster arrangements and decided to continue the Second Fixed Roster. For the purpose of that review Mr Najmitdinov submitted a letter prepared by Dr A Kichin, a medical practitioner working at the same practice as Drs Chami and Holmes, dated 20 December 2018. That letter was in identical terms to the letter written by Dr Chami in July 2018. 10. In the initiating complaint lodged with the Board on 14 January 2019, Mr Najmitdinov wrote: "I am facing an unbelievable case of discrimination (based on disability) with the consequent severe victimisation. That has been ongoing since late June 2018." The focus of that letter was the victimisation allegation, which is discussed below. Mr Najmitdinov did not identify the conduct which he contended amounted to discrimination on the ground of disability. 11. Two weeks later, Mr Najmitdinov submitted an "executive summary" elaborating on his allegation of disability discrimination. He wrote that the Second Fixed Roster was a "uniquely custom-designed, perfectly optimised highly punishing fixed schedule", as demonstrated by Woolworths' actions in rostering him to work: * nine hours on weekdays on a consistent basis, which he asserts no other agent had ever been rostered to do; * seven hours on Saturdays. Mr Najmitdinov claims that this was the "shortest possible shift where management can get away with providing only two breaks"; * four hours on Sundays, "the shortest possible shift"; and * a pattern of shifts which resulted in him being given three less breaks per week than other full time agents. 1. In the report forwarded by the President to NCAT as required by s 94A(2) of the Act (the President's report), the first reference made by Mr Najmitdinov to the pattern of shifts he was allocated under the Second Fixed Roster, is a reference in an email sent on 16 August 2018 to Woolworths' manager, Mr David Woodford. In that email Mr Najmitdinov asserted he was entitled to but did not receive a fourth break on Mondays, Thursdays and Fridays. In an email in reply Mr Woodford, referring to the relevant provision of the Award, wrote that under the Award the requirement to grant a fourth break was not triggered until the employee had worked 10 hours. Was Mr Najmitdinov subjected to a detriment or denied or given limited access to a benefit associated with employment? 1. As a starting point Mr Najmitdinov must establish that the conduct about which he complains falls within s 49D(2) of the Act, relevantly that Woolworths denied or limited his access to a benefit associated with employment (s 49D(2)(b)), and/or subjected him to a detriment (s 49D(2)(b)). 2. The Act does not define the term "detriment". NCAT and one of its predecessor tribunals, the NSW Administrative Decisions Tribunal (ADT), has consistently interpreted the term broadly and to mean something that objectively assessed amounts to loss, damage or injury that is real and not trivial. (See, for example; Sivananthan v Commissioner of Police [2001] NSWADT 44; at [40], [41]; Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]; Bonella v Wollongong City Council [2001] NSWADT 194 at [50].) I adopt that interpretation. 3. I understand Mr Najmitdinov to identify the alleged detriment, denial or limitation of access to a benefit associated with employment benefit to be: 1. The direction to attend an independent medical examination and the request that Woolworths be permitted to contact Mr Najmitdinov's treating doctor. 2. The denial of a fourth break when rostered to work a nine hour shift. 3. The pattern of rostering under the Second Fixed Roster. (1) The direction to attend an independent medical examination and the request that Woolworths be permitted to contact Mr Najmitdinov's treating doctor 1. As outlined above, after receiving Mr Najmitdinov's request for a change to his roster Ms George advised Mr Najmitdinov that she required further information from his GP. When Mr Najmitdinov did not provide that information, Ms George sought his consent to permit Woolworths to contact his GP. When Mr Najmitdinov failed to give that consent, Ms George directed Mr Najmitdinov to attend an independent medical examination. Mr Najmitdinov failed to attend the examination. 2. Despite Mr Najmitdinov's failure to provide consent and attend the independent medical examination, Woolworths introduced the First and Second Fixed Rosters, apparently on the basis of the information provided by Mr Najmitdinov, his union and Drs Holmes and Chami. Woolworths took no further action when Mr Najmitdinov failed to consent to its request for permission to contact his GP or to attend the foreshadowed independent medical examination. 3. There may be circumstances where a request made by an employer to an employee for permission to contact the employee's GP, or a direction to attend an independent medical examination, could amount to a detriment. However, in circumstances where as here, an employee requests a change to their conditions of employment to accommodate an alleged medical condition and provides limited medical evidence in support of that request, the employer grants that request and takes no disciplinary or other adverse action notwithstanding the employee's failure to accede to the employer's request for consent to contact their GP, or to attend as directed an independent medical examination, in my view it is not reasonably arguable that objectively assessed the request or direction could be characterised as a detriment. (2) The denial of a fourth break when rostered to work a nine hour shift 1. Mr Najmitdinov asserts that under the Agreement he was entitled to receive a fourth break on the days he was rostered to work nine hours. 2. The Agreement requires that an employee be given an unpaid meal break of not less than 30 minutes within or at the completion of 5 hours of commencing work and within or at the completion of each subsequent 5 hour work period: cl 22.2. Further, the Agreement requires an employee to be given one paid tea break of 15 minutes within the first 5 hours after commencing work, and a further paid tea break of 15 minutes after their meal break if they are required to work a shift of at least 7.5 hours: cl 22.3. In addition, an employee working overtime must be given a paid rest break of 20 minutes after each 4 hours of overtime: cl 22.4. Overtime for the purposes of the Agreement is defined to mean work in excess of 10 hours per day or 38 hours per week or 152 hours over a 4 week roster cycle: cl 23.1(a). 3. Having regard to these provisions and the Agreement as a whole, it is not reasonably arguable that on the days Mr Najmitdinov was rostered to work nine hours, he had an entitlement under the Agreement to a fourth break. Nor is there any material to suggest that, in practice, employees rostered to work nine hours were given a fourth paid break. 4. It is not reasonably arguable that Mr Najmitdinov had an entitlement, whether under the Agreement or by virtue of custom and practice, to a fourth break on days he was rostered to work nine hours. It follows that the proposition that Mr Najmitdinov was denied a benefit associated with employment, or was subjected to a detriment, is not reasonably arguable. (3) The pattern of rostering under the Second Fixed Roster 1. I understand Mr Najmitdinov's primary complaint about the rosters he was allocated under the Second Fixed Roster, to be that most of his rostered hours fell on weekdays and, as a consequence, he was disadvantaged in terms of penalty rates payable under the Agreement for weekend work. Each week Mr Najmitdinov was rostered to work 27 hours on weekdays (3 x 9 hours) and 11 hours on the weekend (Saturday 7 hours; Sunday, 4 hours). Mr Najmitdinov contends that as a result his weekly wage was significantly less than the weekly wages of comparable employees. He appears to claim that it was commonplace for other full time employees to be rostered to work in excess of 11 hours on the weekend. 2. Woolworths submits that it is not reasonably arguable that by implementing the First and Second Fixed Rosters, it limited Mr Najmitdinov's access to a benefit associated with employment, namely penalty rates or subjected Mr Najmitdinov to a detriment, given that it made those changes at his request to accommodate his medical condition. In addition, it disputes the claim that Mr Najmitdinov was financially disadvantaged, claiming that neither he nor any other full time employee had an entitlement to work weekends, less still nine hour on Saturday and Sunday. Woolworths claims that because of the penalty rates structure under the Agreement, many employees preferred to work weekends and, as a consequence, that work was in high demand. It claims that it attempted to distribute the available weekend work fairly among its employees. In addition, Woolworths claims that because it had agreed to Mr Najmitdinov's request to have two rostered days off during the week, in the interest of parity it was unable to give him longer shifts on Saturdays and Sundays. To have done so, Woolworths asserts, would have resulted in Mr Najmitdinov being given on a regular basis, more weekend work than other employees. 3. The reason for introducing the roster change is separate to, and distinct from, the question whether the amount of weekend work and the length of shifts allocated under the Second Fixed Roster amounts to a detriment. In acceding to Mr Najmitdinov's request to work mornings and to be given two regular weekdays off, a number of options were available to Woolworths. For example, and as Mr Najmitdinov suggests, Woolworths could have rostered him to work shorter shifts throughout the week and longer shifts on Saturday and Sunday. Alternatively, it could have rostered him to work the same number of hours each day (38 ÷ 5= 7.6). 4. Mr Najmitdinov has not provided or pointed to any material to support the assertion that under the Second Fixed Roster he was regularly earning less than he had been earning or that most employees were regularly earning more than he was being paid. The assertions that he suffered a detriment or was given limited access to a benefit associated with employment, namely penalty rates, rest on the assumption, for which there is no supporting material, that he had an entitlement to regular weekend work of more than the amount he was allocated under the Second Fixed Roster, 12 hours per week. He may hold the genuine belief that that is the case but that does not support a finding that, objectively assessed, he suffered a detriment or was given limited access to a benefit associated with employment. 5. It is not reasonably arguable that by introducing the Second Fixed Roster Woolworths limited Mr Najmitdinov's access to a benefit of employment and/or subjected him to a detriment. Summary 1. It is not reasonably arguable that the conduct about which Mr Najmitdinov complains falls within s 49(2)(b) or s 49(2)(d). It follows that the complaint of disability discrimination is not reasonably arguable. Allegation 2: victimisation 1. Section 50 of the Act makes it unlawful for a person to subject another person to any detriment in any circumstances on the ground that the person victimised has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of the Act. Mr Najmitdinov's alleges that by threatening to terminate his employment, by among other things, issuing a final written warning and a show cause letter on 14 September 2018 and 11 February 2019, Woolworths subjected to him to a detriment within the meaning of s 50 of the Act. 2. The background to this allegation is detailed in Najmitdinov v Woolworths Group Limited [2019] NSWCATAD 51 at [11]-[21]. (An appeal brought by Mr Najmitdinov against that decision was dismissed: Najmitdinov v Woolworths Group Limited [2020] NSWCATAP 15.) In the decision at first instance, Hennessy ADCJ declined to grant Mr Najmitdinov's application for interim orders to prevent Woolworths from terminating his employment. Her Honour concluded at [22] that while the threat of termination could amount to a detriment, on the available material there "is almost no basis for inferring any connection between the threatened termination and Mr Najmitdinov's allegations". Mr Najmitdinov asserts that this finding was "wrong". 3. Having reviewed the President's report, which was not before Hennessy ADCJ, in particular, the material provided to the President by Mr Najmitdinov, I see no basis for departing from the conclusion reached by Hennessy ADCJ. The allegation of victimisation lacks substance. Conclusion 1. I agree with the conclusion reached by the President that the Complaint lacks substance. For that reason I have decided it is not fair and just to permit the Complaint to proceed. Order 1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW). ********** 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: 23 March 2020