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Tribunal: Senior Member R Orr PSM KC

Date of Orders: 31 August 2026 Date of Reasons for Decision: 31 August 2026 Date of Publication: 18 September 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 35/2025

BETWEEN: APPLICANT 35/2025 Applicant AND: APPLE PTY LTD Respondent

Tribunal: Senior Member R Orr PSM KC DATE: 31 August 2026

ORDER

The Tribunal orders:

1. As the Tribunal finds that the complaints of direct discrimination in relation to the bathrooms are not made out, these complaints are dismissed.

2. As the Tribunal finds that the complaints of direct discrimination in relation to working from home are not made out, these complaints are dismissed.

3. The Tribunal finds that the complaint of indirect discrimination in relation to the bathrooms is made out.

4. The respondent will pay compensation to the applicant for indirect discrimination in relation to the bathrooms of $18,000 within 30 days.

……………………………….. Senior Member R Orr PSM KC REASONS FOR DECISION

Introduction 1. The applicant brings proceedings against Apple Pty Ltd (respondent or Apple) claiming disability discrimination under the Discrimination Act 1991 1 (Discrimination Act).

2. The applicant was an employee of the respondent from September 2019 until March 2024. He worked principally in the Apple store in Civic, Canberra (store), though for several periods during the COVID 19 pandemic he worked from home online.

3. The applicant had a physical condition which required him to go to the toilet 2 often and suddenly.

4. The complaints of the applicant involved six alleged acts of direct 3 discrimination. These acts were as follows.

(a) The respondent refused requests made by the applicant in relation to the bathroom facilities for staff in the store in late 2019 (complaint 1: late 4 2019 bathroom request) and July 2021 (complaint 2: July 2021 5 bathroom request) (bathroom complaints). (b) The respondent refused requests made by the applicant to work from home on 10 September 2021 (complaint 3: September 2021 work from 6 home request) , 22 March 2023 (complaint 4: March 2023 work from 7 home request), 27 October 2023 (complaint 5: October 2023 work

1 The operative version of this legislation for the purposes of these proceedings is republication no. 49 which was effective from 28 August 2020 to 10 April 2024; see Applicant’s submissions at [21], Respondent’s submissions at footnote 12. Some of the events are outside this time period but there are no relevant differences in the legislation at these times 2 Statement of applicant dated 17 November 2025 at [33]; transcript of hearing on 16 February 2026 at pages 3 and 15-16 3 See [9] below and section 8 of the Discrimination Act 4 Applicant’s points of claim at [44]-[55], esp. [47] and [166] 5 Applicant’s points of claim at [87]-[95], esp. [87] and [166] 6 Applicant’s points of claim at [123]-[131] and [166] 7 Applicant’s points of claim at [134]-[138] and [166] 8 9 from home request), and late 2023 (complaint 6: late 2023 alternative role request) (work from home complaints). 10

5. The applicant also made a complaint of indirect discrimination in relation to 11 the bathrooms. The applicant did not claim indirect discrimination in relation 12 to the work from home requests.

6. I have no doubt that the applicant’s condition has been a significant detriment and burden to him. The applicant clearly thinks the respondent treated him unfairly. But in order to succeed in these proceedings the applicant needs to show that the requirements for a finding of discrimination under the Discrimination Act have been met. It is not enough that he has significant disabilities, and that he believes he was treated unfairly, and even that the actions of the respondent affected him adversely.

7. I also have no doubt that the managers of the respondent had significant concern for the applicant’s welfare, did what they could and were able to support him. However, that of itself is not sufficient to defeat a claim of discrimination.

Summary of this Tribunal decision

8. The decision of the Tribunal in relation to these complaints is in summary as follows. I find that the applicant had a disability and protected attribute for the purpose of the Discrimination Act, and that the complaints fall within the concept of possible discrimination in relation to work in section 10 of the Discrimination Act.

Bathroom complaints

9. In order to establish direct discrimination in relation to the bathroom complaints, the applicant has to show that he was treated unfavourably because 13 he had a disability.

8 Applicant’s points of claim at [146]-[153] and [166] 9 Applicant’s points of claim at [154]-[157] and [166] 10 See [11] below and section 8 of the Discrimination Act 11 Applicant’s points of claim at [31]-[95] and [167]-[168] 12 Applicant’s points of claim at [167]-[168]; transcript of hearing on 19 March 2026 at page 288, where the applicant confirmed that the Applicant’s submissions at [34(c)] was in fact a claim only of direct discrimination

10. In my view there is no basis for finding that the applicant was treated unfavourably because of his disability. When the applicant raised his concerns, some of these were addressed; others were not addressed at that time but this was for reasons unrelated to his disability; and they were addressed at a later date. In other ways staff at the store supported the applicant to manage his condition while working.

11. In order to establish indirect discrimination in relation to the bathroom complaints, the applicant has to show that the respondent imposed a condition or requirement that had the effect of disadvantaging the applicant because he 14 had a disability. A condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances, and the onus of 15 establishing this exception falls on the respondent. This is a more difficult issue to assess.

12. In my view the imposing of a condition or requirement can occur because of the physical state and rules for use of bathroom facilities, and the fact that an applicant can comply with the condition or requirement does not defeat the 16 claim. This has been found in a number of relevant cases. In my view there was a condition or requirement that the applicant use the standard bathrooms because there were issues in relation to the accessible bathroom, namely that it was used as a storeroom, including for a large floor cleaner, there was a cleaning cupboard behind it and accessed through it which was used at times by the cleaners, and it was used by a range of staff including as a change room, and a condition or requirement that he at times wait for a toilet to become available. This had the effect of disadvantaging the applicant because of his disability which required him to go to the toilet often and suddenly. The fact that notwithstanding these factors he could manage to use the accessible toilet, or another toilet, does not defeat the claim. The respondent did not show that the condition or requirement was reasonable in the circumstances.

13 Discrimination Act, section 8(2) 14 Discrimination Act, section 8(3) 15 Discrimination Act, sections 8(4) and 70 16 Travers v New South Wales [2000] FCA 1565 and [2001] FMCA 18; Access for All Alliance Inc v Hervey Bay City Council [2004] FMCA 915, both discussed below Work from home complaints

13. In relation to the requests by the applicant to work from home, there is no basis for finding that the rejection of these requests was because of his disability.

Remedies

14. The applicant sought compensation for loss of earnings. The claim for loss of earnings was not supported by appropriate evidence and was not made out.

15. The applicant also sought compensation for psychological injury. He gave evidence that the respondent’s actions caused him hurt, humiliation and distress. Only one of his complaints of discrimination has been made out. The applicant provided no medical evidence that the part of the claim made out caused him a psychological injury. Further this was not a case where the discrimination made out was intentional, calculated or cruel, rather this was a case of indirect discrimination where the respondent put in place quickly those measures it could to address the applicant’s bathroom complaints, and in time addressed all his complaints, and generally sought to assist the applicant to manage his condition. These features mean that a significant amount of compensation cannot be ordered. The Tribunal awards compensation of $18,000.

Nature of these proceedings

16. The applicant made a complaint in relation to the respondent to the ACT Human Rights Commission in a document dated 24 June 2024. The ACT Human Rights Commission has referred this complaint to the Tribunal. The Tribunal has jurisdiction to hear these discrimination complaints referred from the ACT Human Rights Commission. The respondent did not raise any issue in this regard.

Tribunal process

17. The material before the ACT Human Rights Commission was before the Tribunal. This included the original complaint made on 24 June 2025 (exhibit T1) (original complaint).

18. The applicant provided a document setting out his points of claim dated 25 August 2025 (Applicant’s points of claim). There had been an initial version of this document which relied on a positive duty to make reasonable adjustments. This version was amended because at the relevant time there was no such duty in the ACT. These amendments took a minimalist approach which gave rise to some ongoing issues in the hearing. In my view the Applicant’s points of claim clearly now allege two acts of direct discrimination in relation to the bathroom complaints, four acts of direct discrimination in relation to the work from home complaints, and indirect discrimination in relation to the bathroom complaints, as set out above and below.

19. The respondent provided points of defence dated 26 September 2025 (Respondent’s points of defence).

20. The applicant provided a statement by the applicant dated 17 November 2025 with a bundle of attachments (exhibit A1). The applicant had provided an earlier larger bundle of attachments which were treated as exhibit A2 in the proceedings. The applicant provided a second statement dated 27 January 2026 (exhibit A3). The applicant gave oral evidence at the hearing and was cross-examined on his statements and evidence.

21. The respondent provided statements by Lay Kee (Nikki) Lim dated 22 December 2025 (exhibit R1); Shane Johnson dated 22 December 2025 (exhibit R2); Vanessa Saysitthideth dated 22 December 2025 (exhibit R3); and Janine Healy dated 20 December 2025 (exhibit R4). These witnesses gave oral evidence and were cross-examined on their statements and evidence.

22. The applicant provided a bundle of documents (exhibit A4) (Applicant’s bundle).

23. The respondent also provided a bundle of documents (exhibit R5) (Respondent’s bundle).

24. The applicant provided submissions dated 17 November 2025 (Applicant’s submissions) and submissions in reply dated 27 January 2026 (Applicant’s submissions in reply).

25. The respondent provided submissions dated 22 December 2025 (Respondent’s submissions) and closing submissions before the final hearing day (Respondent’s closing submissions).

26. The Tribunal conducted a hearing on 16, 17, and 18 of February 2026, and 19 March 2026.

27. The Tribunal has taken into account all the material provided to it by the parties and the hearing.

Naming the applicant in these reasons

28. No confidentiality orders were sought or made in relation to these proceedings. At the conclusion of the hearing I raised the issue of whether the applicant should be anonymised in these reasons. I did this because I recognised that any published reasons in this matter would disclose sensitive personal information about the applicant’s condition.

29. The applicant argued that his name should be anonymised in the interests of his privacy. The applicant argued that he gave evidence of a sensitive nature in relation to his health and disability. He also gave evidence that his disability was a very personal thing to him. Granting a pseudonym in this case will have no consequence upon open justice as the reasoning of the tribunal will still be fully exposed and capable of scrutiny by the public. The applicant stated that he believed that the publication of his name in the decision would have adverse 17 consequences upon his mental health.

30. The respondent did not support this proposal. The respondent noted that the request came at a very late stage, and both parties had proceeded on the footing that the ordinary, open form of tribunal decision-making would apply. It said it would be inappropriate for the applicant to seek what would effectively be a retrospective departure from the open justice principle only after the close of evidence and submissions. The publication of decisions identifying the parties is the norm, not the exception. It is difficult to see why the applicant should be effectively insulated from any reputational consequences arising from adverse

17 See email to the tribunal of 13 April 2026 credibility findings when the respondent’s witnesses (who have given evidence in their own names) are afforded no comparable protection. Granting anonymity to the applicant alone would create an unjust asymmetry as between the parties and their witnesses, and would undermine the perceived fairness and transparency of the process. Further, the possibility that a litigant may experience reputational consequences from an adverse finding is an inherent 18 and foreseeable feature of public proceedings.

31. I have decided to anonymise the name of the applicant in these reasons. The applicant has health and disability issues which have a significant adverse impact on his life, in particular his toileting, and are usually matters of significant privacy concerns and embarrassment if made public. This toileting is a central concern of these proceedings, which needs to be discussed in these reasons and cannot be avoided. To anonymise his name will avoid this significant breach of privacy and embarrassment. This will be a very minor incursion into the principle of open justice. No confidentiality orders have been made in this matter, the hearings have been held in public, and detailed reasons are given. I have written these reasons to avoid the disclosure of similar private information about the respondent’s witnesses. In many cases of disability discrimination it is the practice of the tribunal to anonymise the applicant’s name, as is demonstrated by the names of some of the cases discussed in these reasons, since it is seen as too heavy a burden for applicants to have a disability, to have to bring proceedings to enforce their rights not to be discriminated against on the basis of that disability, and then further as a result to have private and embarrassing details of their disability and life publicly revealed in published reasons.

32. I note that in further support of this course in Access for All Alliance (Hervey 19 Bay) v Hervey Bay City Council (Access for All Alliance) which is discussed in some detail below, Baumann FM stated that the members of the applicant body generally gave their evidence in camera so as to protect their dignity whilst discussing sensitive and personal toileting habits and routines. In the

18 See email to the tribunal of 30 March 2026 19 [2004] FMCA 915 published reasons the Federal Magistrate further maintained their anonymity by 20 only using the initials of their surname.

Disability and protected attribute

33. Section 7 of the Discrimination Act provides that the Act applies to discrimination on the ground of any of the following attributes (protected attribute), which includes (e) disability. ‘Disability’ is defined in section 5AA to include (a) partial loss of a bodily function; (b) partial loss of a part of the body; (c) the presence in the body of organisms that cause disease or illness; and (e) the malfunction, malformation or disfigurement of a part of the body.

34. The applicant indicated that he suffered from significant health issues and 21 provided medical evidence of these. As a result of a number of operations and events he said that he needed to regularly use the toilet, usually around ten times a day, and the urge to go to the toilet would come on suddenly. He experienced 22 rectal leakage. I accept he had these conditions and that these amounted to a disability which was a protected attribute. The respondent generally accepted that the applicant had a disability.

35. Further, section 5AA(2) provides that disability includes behaviour that is a symptom or manifestation of the disability. In my view the health condition of the applicant which requires him to go to the toilet often and suddenly is a behaviour that is a symptom or manifestation of the disability.

36. Section 8 of the Discrimination Act sets out the requirements for direct and indirect discrimination which I set out in detail and discuss below.

37. Section 53CA (2) of the Human Rights Commission Act 2005 (Human Rights Commission Act) provides for some rebuttable presumptions that discrimination has occurred. Section 53E deals with the kinds of orders the tribunal can make. I also consider these below.

20 [2004] FMCA 915 at [24] 21 Statement of applicant dated 17 November 2025 at [7]-[34] 22 Statement of applicant dated 17 November 2025 at [24] and [34] Unlawful discrimination at work

38. Part 3 of the Discrimination Act sets out a range of actions which amount to unlawful discrimination. The applicant indicated that the relevant provision was section 10(2), which concerns discrimination at work. This provides that it is unlawful for an employer to discriminate against an employee in (a) the terms or conditions of employment that the employer affords an 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 benefit associated with the employment; or (d) by subjecting the employee to any other detriment.

39. The applicant alleged he was an employee of the respondent, and the respondent 23 admitted this. The applicant alleged that it was a term of his employment that the respondent provided him with a safe place of work and a safe system of work. And the respondent admitted that the contract contained a term implied 24 by law as to a safe workplace.

40. In my opinion the bathroom complaints fall at least within section 10(2)(d) of the Discrimination Act, subjecting the employee to any other detriment. In my view the work from home complaints fall within section 10(2)(b) in relation to denying or limiting an employee’s access to opportunities for transfer or any other benefit associated with employment, or section 10(2)(d).

Period of complaints

41. The respondent argued that the complaint of the applicant to the ACT Human Rights Commission stated that the complaint period was July 2021 to March 2024, and that no complaints outside this period could be considered by the 25 tribunal, in particular complaint 1: late 2019 bathroom request.

42. The complaint to the ACT Human Rights Commission needs to be read as a whole. It is true that the applicant answers the question as to when the events

23 Applicant’s points of claim at [3(c)]; Respondent’s points of defence at [3(c)]] 24 Applicant’s points of claim at [26]; Respondent’s points of defence at [26] 25 Respondent’s closing submissions at page 4; transcript of proceedings on 19 March 2026 at happened as July 2021-March 2024, and he restates this at paragraph [2] of his extensive statement. But he goes on to set out his employment history from September 2019 and the discussions in late 2019 and the state of the toilets for 26 the time of his employment with the respondent. In my view these statements make it clear that complaint 1, the late 2019 bathroom request, was part of his original complaint. He has maintained this complaint throughout these proceedings.

Employment

43. The applicant entered into an employment contract with the respondent on 12 August 2019. This provided that he would be employed in the position of Specialist or such other positions as subsequently agreed and will report to the 27 Store Leader or such other person nominated by Apple from time to time. Mr Johnson referred to the Specialist – Job Description. The description under Responsibilities stated: “Proactively approach and engage with our customers to understand their needs and present complete solutions for all customers, both in 28 store and online”. The contract also provided that his duties for the position are outlined in a position statement / description covering his role which is reviewed regularly. Apple reserved the right to make changes to his job titles, duties, reporting arrangements accountabilities, key result areas and specific responsibilities as required. He was engaged on a full time basis and he was to be based at the Apple Store Canberra, however he may have been required to work in other locations or undertake overseas and/ or interstate travel in order to 29 carry out his duties.

44. At the start of COVID 19 lockdowns in Canberra the Retail Customer Care (Retail Customer Care or RCC) area of Apple set up the Retail@Home program which supported customers visiting the Apple online store. Employees could express interest in working in this program. The applicant worked there

26 Original complaint, statement of the applicant dated 24 June 2024 at [6]-[10] and [18]-[23] 27 Statement of Shane Johnson dated 22 December 2025 at [6] and annexure SJ 1 28 Statement of Shane Johnson dated 22 December 2025 at [7] and annexure SJ 2 29 Statement of Shane Johnson dated 22 December 2025 at [6] and annexure SJ 1 30 for three periods. Ms Saysitthideth stated that RCC is a different part of Apple, but at all times the applicant was employed in the same role or position of Specialist at Apple Canberra. The rotations did not involve a change in terms and conditions but the employee would carry out different duties and be 31 supervised by a different manager.

45. In October 2021 the applicant commenced a period of leave. He did not return to work at Apple and resigned in March 2024.

46. I consider the bathroom complaints, and then the work from home complaints.

Bathroom complaints Complaint 1 – late 2019 bathroom request

47. It is necessary to note that at the relevant times the Apple store had a back of store area which included a kitchen, team break area, manager’s office and three toilets. Two of the toilets were self-contained ambulant toilets each with a door, toilet and wash basin. There was a larger ‘disabled’ or ‘accessible’ toilet with a door, toilet and wash basin (accessible toilet or accessible bathroom). Behind this accessible toilet there was another door to a small cleaning closet. Ms Saysitthideth usefully provided a map of the store and a map of the surrounding 32 stores. The status of or requirements for an accessible or disability toilet are unclear. The parties did not rely on any regulation in relation to such toilets, 33 except for the Discrimination Act itself.

48. The shopping centre public toilets were a one minute walk from the store and 34 had ambulant and accessible toilets.

49. The evidence was that at any one time there were about 30–40 workers working 35 in the store. 30 It appears these periods were 30 June 2020 till 21 January 2021, 8 March 2021 till 29 May 2021, and 13 September 2021 till 19 November 2021 which was cut short by his operation, see statement of Lay Kee (Nikki) Lim dated 22 December 2025 at [19]-[[27] 31 Statement of Vanessa Saysitthideth dated 22 December 2025 at [18]-[28]; statement of Lay Kee (Nikki) Lim dated 22 December 2025 at [18]-[28] 32 Statement of Vanesa Saysitthideth dated 22 December 2025 at [6]-[9] and [94] and annexures VS 26 and VS 27 33 See also Ellis v Burswood Nominees Ltd trading as Crown Resort [2019] FCCA 1819 at [46] 34 Transcript of hearing on 18 February 2026 at page 269 Evidence of the applicant

50. Much of the evidence in this proceeding was documentary or agreed, but there were some areas of dispute and I focus on these. The applicant gave evidence that in late 2019, a few weeks after he started employment, he had at least one conversation with Ms Healy about his health problems. He told her that he had to use the bathroom up to ten times a day; that the need to go to the bathroom would be urgent and sudden; that he needed access to the accessible toilet when required to manage his bowel disability symptoms; stating that “if I need to go to the toilet, I get a sharp stabbing pain, and I’ll need to go to the toilet 36 suddenly” and “it’s really stressful and painful and makes me anxious”.

51. He said that he told her that sometimes cleaning items prevented the accessible toilet door from closing; there were issues with staff using the accessible toilet as a changing area; he explained his difficulty with standing for extended periods in the store; he said that the cleaning products needed to be removed from the accessible toilet; and that the accessible toilet should be reserved for those with disabilities rather than general staff or those wishing to use it as a 37 change room.

52. He said that Ms Healy said: “not a problem, we will need a medical certificate”; that she told him to sit down when required; and she told him there was no room 38 to store the floor washing machine other than in the accessible toilet.

53. A medical certificate was provided. It was dated 21 November 2019 and stated: the applicant suffers from extremely complex and ongoing health issues, however this does not significantly affect his job performance; to best support him it is recommended that a regular work schedule be put in place; he may experience discomfort after eating and may need to sit down and take a break;

35 Statement of Vanessa Saysitthideth dated 22 December 2025 at [13] 36 Statement of applicant dated 17 November 2025 at [45]-[46] 37 Statement of applicant dated 17 November 2025 at [46]-[47] 38 Statement of applicant dated 17 November 2025 at [48] he needs to frequent the toilet more than the average person, this is not within 39 his control and is directly related to his health issues.

54. The applicant said that after the discussion he observed that the respondent had partially removed some of the equipment in the toilet however the balance of the cleaning supplies and equipment, including the large cleaning machine, still remained. He said that: “I continued to use the accessible toilet, however I was heavily restricted in my movements in the toilet due to the large cleaning 40 machine which prevented my safe and ready access to the facility”.

55. The applicant also indicated that from the beginning of his employment he observed that there were often lengthy queues waiting for the two unisex standard bathrooms often a 5-10 minutes wait (originally the statement had said 5-20 minutes); access to the accessible toilet was impeded because it was used as a storeroom for storing cleaning equipment including a large floor cleaning machine; this made the toilet space very tight and unsafe to use; the accessible toilet was the only means of access to the cleaning supply cupboard, and he often observed that the door to the cleaning cupboard would be propped open using a bucket and that the door to the accessible bathroom itself would be 41 propped open by a bucket for use by the cleaner.

Evidence of Ms Healy

56. Ms Healy also provided a statement, which generally agreed with the applicant’s version of events. She recalled the applicant referring to his health issues; that he may feel pain when standing for too long; that he needed to use the bathroom frequently; and that he wanted the janitor’s closet in the accessible bathroom not to be used to store cleaning products or equipment. She says he did not raise a complaint about the bathroom being used by team members to 42 change.

39 Report of Dr Sanjeewa Don dated 21 November 2019, annexure JH 2 to the statement of Janine Healy dated 20 December 2025 40 Statement of applicant dated 17 November 2025 at [51]-[52] 41 Statement of applicant dated 17 November 2025 at [42] 42 Statement of Janine Healy dated 20 December 2025 at [12]-[14]

57. She said he did say that as a person with a disability, he wanted the accessible toilet to be available to him. She says she responded that if the other bathrooms are in use, then staff members will use the accessible bathroom. In her view it was not tenable for the bathroom to be reserved for disabled people and to prohibit others from using it if the other two bathrooms were occupied. She recalled saying to the applicant that if the accessible bathroom was in use when 43 he needed to use a toilet, he should use one of the other bathrooms.

58. She said the applicant did not disclose that he had any mobility issues or that he was unable to use the bathrooms either in the Apple store or the Canberra Centre. He did not use any mobility aid, nor did she observe him to have any 44 difficulty with his movement.

59. Under cross-examination Ms Healy confirmed that she did advise the applicant that if he did urgently need to go to the bathroom, that he could use the 45 Canberra Centre toilets as well.

60. Ms Healey said she read the medical certificate. After this she says that she told the applicant to take breaks to sit down as he needed, and he could leave the shop floor to use a toilet without telling a leader. She communicated this to the store management team. She conveyed his comments about the storage of cleaning supplies to Ms Saysitthideth. She did not take any steps to remove any equipment and cleaning supplies because this was not raised by the applicant or 46 the medical certificate and as there was nowhere else suitable for it to go. Under cross-examination she said that when the applicant complained about the cleaning products being stored in the accessible toilet she told him that there 47 was nowhere else to store these.

61. She said she never observed any queue for any toilet at Apple Canberra and that there was rarely if ever a wait, and if there was it would be a short wait of a few

43 Statement of Janine Healy dated 20 December at [12]-[14] 44 Statement of Janine Healy dated 20 December at [13] 45 Transcript of hearing on 18 February at page 245 46 Statement of Janine Healy dated 20 December at [20]-[22] 47 Transcript of hearing on 18 February 2026 at page 244 minutes maximum. She stated that the applicant had never said to her he waited 48 for a toilet or that he had seen a queue for any bathroom.

62. She said she had told the applicant that if there was someone else waiting that he was able to ask to use the toilet next due to urgency. The applicant never reported to her that he did or did not ask to skip the queue, because he never indicated that he was not able to use a bathroom in-store when he needed, he never advised of any accident, and she was not aware of him ever needing to 49 end his shift early to go home for this reason.

63. She confirmed under cross-examination that he was able to ask to use the bathroom before others, and she stated that she recalled team members saying that they would make accommodations for the applicant, if needed, because he 50 was so open about his disability at work.

64. Ms Healy in cross-examination agreed that two or three times the applicant had expressed frustration about having to wait in line for the toilet, that he had said to her that if he was made to wait more than a minute or two he might soil 51 himself, but she said that he had not said he had actually done that.

65. Ms Healy agreed in cross-examination that the door to the janitor’s cupboard was at times propped open and that the door to the accessible toilet itself would at times be propped open, but if anyone needed to use the bathroom the cleaners 52 would vacate the room and wait outside and then resume their duties.

66. Ms Healy agreed in cross-examination that team members would use the 53 bathrooms in order to change. She confirmed that the applicant had said that he would like the toilet available to him; he did express that he did not believe

48 Statement of Janine Healy dated 20 December at [79]-[81] 49 Statement of Janine Healy dated 20 December 2025 at [81] 50 Transcript of hearing on 18 February 2026 at pages 235-236 51 Transcript of hearing on 18 February 2026 at pages 234 and 240-241 52 Transcript of hearing on 18 February 2026 at pages 243 and 245 53 Transcript of hearing on 18 February 2026 at page 242 anyone else should use that toilet. However she said to him that with the number 54 of team that we have that would have been untenable.

Evidence in reply of the applicant

67. In his statement in reply the applicant said that the use of the Canberra Centre toilets was never discussed, and he did raise mobility issues particularly after eating; he did require the accessible toilet space because there were times where he did not get to the toilet in time and would risk soiling himself and if so he needed to clean up and change his clothes and there was more room in the accessible toilet to do this. He said he did not discuss this level of detail with Ms 55 Healy because it is deeply personal.

Complaint 2 – July 2021 bathroom request

68. On 1 July 2021 the applicant suffered a hand injury using the accessible toilet when attempting to reach the towel dispenser as the cleaning machine was 56 obstructing access.

Evidence of the applicant

69. The applicant gave evidence that in July 2021 and following his hand injury he said to Ms Healy that the accessible toilet should not be used as a storeroom and that he needed full and unobstructed access to the toilet due to his health issues. In particular he raised the issue of the floor cleaning machine which blocked off 57 access to the hand towel dispenser.

70. He said that Ms Healy responded to the effect that storing cleaning equipment in the accessible toilet was necessary as there was nowhere else to store it. She suggested that instead of washing his hands in the bathroom, he use the facilities in the bathroom and then use the kitchen for hand washing. The applicant 58 viewed this suggestion as extremely unsuitable and unhygienic.

54 Transcript of hearing on 18 February 2026 at page 234 55 Statement of applicant dated 27 January 2026 at [5]-[6] 56 Statement of applicant dated 17 November 2025 at [65]-[66] 57 Statement of applicant dated 17 November 2025 at [71] 58 Statement of applicant dated 17 November 2025 at [72] and [73]

71. He also stated that he said that if he needed the bathroom it was urgent; and he really needed to get to the front of the queue otherwise he would have an 59 accident.

Evidence of Ms Healy

72. Ms Healy agreed that the applicant stated that the floor cleaner should not be stored in the bathroom because it blocks the hand towel dispenser, and she replied that there was not anywhere else to store the floor cleaner at the 60 moment. And that if the towels are blocked, he can dry his hands with the paper towels in the kitchen. She noted that just as a person would do if there were no towels left in any of the bathrooms, they would wash their hands in the bathroom sink and then leave the bathroom and dry their hands on the paper towels near the sink in the breakout area. She denied that this was unsuitable or 61 unhygienic. She said the applicant said it was unhygienic, but then she explained that your hands are already washed, “so it’s your clean hands to go and get the paper towel. So to use the sink and soap within the bathroom to 62 sanitise his hands, shake them off, and then get a paper towel if needed.”

73. Ms Healy indicated that she takes hygiene and support for people with health 63 needs seriously. This conversation arose because of the applicant’s hand injury which occurred when he was attempting to reach the towel dispenser. For these reasons I prefer Ms Healy’s version that her comments were only about drying hands, not washing them.

74. Ms Healy stated that the hand dispenser was relocated to the opposite side of the 64 sink in response to the applicant’s complaint. The applicant agreed that the 65 dispenser was moved.

75. Ms Healy confirmed that there was no other storage option for the floor cleaner. This was necessary up until 2024 when the area was renovated and a stand- 59 Statement of applicant dated 17 November 2025 at [73] 60 Statement of Janine Healy dated 20 December 2025 at [42] 61 Statement of Janine Healy dated 20 December 2025 at [43]-[44] 62 Transcript of hearing on 18 February 2026 at page 251 63 Statement of Janine Healy dated 20 December 2025 at [45] 64 Statement of Janine Healy dated 20 December 2025 at [48] 65 Statement of applicant dated 17 November 2025 at [76] alone janitor’s closet for cleaning equipment including the floor cleaning machine was created, and a separate breakout room was created at another 66 location.

Evidence of the applicant as to the discussion with Ms Saysitthideth

76. The applicant also said he complained to Ms Saysitthideth that he had injured his hand because the accessible toilet had been used as a storeroom for cleaning supplies and especially the floor washing machine which was blocking the towel dispenser; that the toilet should be used for disabled people only, and not as a storeroom. He said Ms Saysitthideth apologised for the injury and planned for the internal Occupational, Health and Safety Team to assess the accessible 67 toilet.

Evidence of Ms Saysitthideth

77. Ms Saysitthideth generally confirmed this conversation; she said the applicant did not mention there was water on the floor of the toilet. She contacted the Environment, Health and Safety Manager on the same day to discuss the injury and arrange for the towel dispenser to be relocated. She said that the work order was raised on 29 July 2021 and the works were completed on 18 October 68 2021.

78. She also stated that there was no other location for the floor cleaner because it needed access to a power-point and needed to be stored in a wet area given the potential for it to leak water. In August 2023 it was relocated out of the accessible bathroom to a temporary location, and from February 2024 it was 69 located in one of the janitor’s closets.

79. Ms Saysitthideth said in cross-examination that it was possible that there could have been employees waiting for up to five minutes to use the toilets. She said she would have “potentially mentioned to … [the applicant] if he was concerned about wait times at the toilet that he would be able to use the toilets outside”.

66 Statement of Janine Healy dated 20 December 2025 at [42] 67 Statement of applicant dated 17 November 2025 at [75] 68 Statement of Vanessa Saysitthideth dated 22 December 2025 at [33]-[36] 69 Statement of Vanessa Saysitthideth dated 22 December 2025 at [36] She agreed that the applicant did tell her that he was concerned about wait times 70 at the toilet. Ms Saysitthideth had said in her statement that she had never witnessed a queue of team members waiting for a bathroom at Apple Canberra, either in 2019 or since that time. She said there were only ever a handful of employees who were in the breakroom. She would generally only use the standard bathrooms, and she had not had to wait in a queue to use one. Breaks are scheduled to have the fewest staff off the shop floor at any one time and there are not enough employees to cause a wait time more than a minute or 71 two. She also said that there were times when the janitor’s closet door inside 72 the accessible toilet would have been propped open. Ms Saysitthideth also agreed that at the relevant times the toilets in the Apple store were used as 73 change rooms by staff.

Factual findings in relation to the bathroom complaints

80. The bathroom complaints in summary have a range of aspects, and my findings in relation to them based on the evidence set out above is as follows.

Accessible bathroom was used as a storeroom

81. One aspect of the complaint was the use of the accessible toilet to house general cleaning materials. In my view it is clear that this was done, that this would have interfered with use of the bathroom by the applicant, and that the applicant 74 complained about this. There was no evidence as to why this was done or thought appropriate, except the statements that there was nowhere else to store things.

82. The applicant agreed that some steps were taken by the respondent to remedy this after he raised it as an issue. However it remained the case that the cleaner’s store room was behind the accessible toilet, and that the accessible toilet was 75 used to store some cleaning materials, while the applicant worked at the store.

70 Transcript of hearing on 17 February 2026 at pages 175-178 and 199 71 Statement of Vanessa Saysitthideth dated 22 December 2025 at [90]-[92] 72 Transcript of hearing on 17 February 2026 at page 188 73 Transcript of hearing on 17 February 2026 at pages 216-217 74 See above at [51], [52], [54] [55], [56], [60], [69], [70], [72], [76] 75 See above at [54]

83. An email dated 11 September 2023 indicated that the accessible toilet was now 76 free of cleaning equipment. It seems that the applicant was told of this at the 77 meeting on 20 September 2023.

84. As noted, later renovations by 2024 meant that there were three bathrooms, one of which was accessible, at the back of the store, and two bathrooms elsewhere. None of these were used for storage, which was accommodated elsewhere.

The floor cleaning machine was stored in the accessible bathroom

85. This aspect included the storage of the floor cleaning machine in the accessible toilet. In my view it is clear that this was done, and that this would have 78 interfered with the applicant’s use of the accessible bathroom. Photographs of the floor cleaner in the accessible bathroom provided by the applicant 79 demonstrate this. The applicant seems to have also raised the issue of the floor cleaner being stored in the accessible bathroom and that Ms Healy told him there was no room to store the floor washing machine other than in the 80 accessible toilet. This reason was given a number of times to him. The respondent pleaded that the applicant was informed that the cleaning machine 81 was located in the accessible bathroom due to lack of other available space.

86. The hand towel dispenser, access to which was made difficult by the floor cleaner, was relocated to the opposite side of the sink in response to the 82 83 applicant’s complaint. The applicant agreed that the dispenser was moved.

87. Ms Saysitthideth stated that in August 2023 the floor cleaning machine was 84 relocated out of the accessible bathroom. An email dated 11 September 2023

76 Email from Jane Lui to Megan Channon dated 11 September 2023, at [34] and annexure SJ 18 of the statement of Shane Johnson dated 22 December 2025 77 Email from Shane Johnson dated 20 September 2023, at [33] and annexure SJ 17 of the statement of Shane Johnson; transcript of hearing dated 17 February 2026 at page 157 78 See above at [52],[54], [56], [60], [69], [72], [75], [76], [77], [78] 79 Statement of applicant dated 17 November 2025 at [43] and annexure PW-4 80 See above at [52],[54], [56], [60], [69], [72], [75], [76], [77], [78] 81 Respondent’s points of defence dated 26 September 2025 at [87] 82 Statement of Janine Healy dated 20 December 2025 at [48] 83 Statement of applicant dated 17 November 2025 at [76] 84 Statement of Vanessa Saysitthideth dated 22 December 2025 at [36] indicated that the accessible toilet was now free of the cleaning machine, and 85 that the applicant was informed of this at the meeting on 20 September 2023.

Cleaning staff were required to go through the accessible toilet to access the cleaners’ cupboard

88. Another aspect was that the cleaners’ cupboard was behind the accessible toilet and cleaners were required to go through the accessible toilet to access this room. In my view it is clear this was the case, and that this would interfere with use of the bathroom by the applicant, at least from time to time when the 86 cleaners were there.

89. There was some debate about how often the cleaners were present and as to how they used the cleaners’ cupboard. It is not necessary to resolve this since it is clear that at some times the cleaners accessed the cupboard behind the accessible toilet and kept the door to the cupboard and the door to the accessible 87 toilet open.

90. There was no reason given as to why this was done or thought appropriate, but it seems that it was caused by the past fitout for the store.

91. An email of 11 September 2023 from Jane Lui, Health and Safety Officer indicated that the cleaners’ closet was still behind the accessible toilet, though it is said that “Stores to have this retrofitted”. It was confirmed that there was an intention to move the cleaners’ closet. It is then said that: “I would suggest pls the time for access of this closet are limited to ensure the toilet can be access when required and that it is not permanently left open which I have been told 88 can sometimes occur”.

85 Email from Jane Lui to Megan Channon dated 11 September 2023, at [34] and annexure SJ 18 of the statement of Shane Johnson dated 22 December 2025; email from Shane Johnson dated 20 September 2023, at [33] and annexure SJ 17 of the statement of Shane Johnson; transcript of proceedings on 17 February 2026 at pages 157 and 184. This issue was further addressed in the renovations, see statement of Janine Healy dated 20 December 2025 at [42] 86 See above paragraphs [55], [65] and [79] above 87 See above at paragraphs [55], [65]and [79] 88 Email from Jane Lui to Megan Channon dated 11 September 2023, at [34] and annexure SJ 18 of the statement of Shane Johnson dated 22 December 2025; transcript of hearing on 17 February 2026 at pages 157 and 186

92. In a later email in this chain Jane Lui had some concerns with the cleaners being able to access the cleaners’ cupboard whenever they wish, and that they keep the door open with a stool. She states: “Is there anyway frequently accessed items, not all items, are kept in a secure location, until the end of the day so that 89 disabled workers can access the toilet when needed”.

93. After the renovation the cleaners’ room and the then five bathrooms were 90 completely separate.

The accessible bathroom was used by a range of staff including as a change room

94. Another aspect of the complaint was that the accessible toilet was used by a range of staff, including as a change room. In my view it is clear that this was the case, and that this would interfere with use of the bathroom by the 91 applicant.

95. The applicant stated that he raised from early in his employment that there were 92 issues with staff using the accessible toilet as a changing area.

96. Ms Healy in her statement stated that the applicant did not raise a complaint 93 about the bathroom being used by team members to change. However in my view he at least raised this indirectly when he said, as Ms Healey agreed, that as a person with a disability, he wanted the accessible toilet to be available to him. Ms Healy agreed in cross-examination that team members would use the 94 bathrooms in order to change. Ms Saysitthideth also agreed that at the relevant 95 times the toilets in the Apple store were used as change rooms by staff.

97. Ms Healy said she stated to the applicant that if the other bathrooms are in use, then staff members will use the accessible bathroom. In her view it was not

89 Email from Jane Lui to Megan Channon dated 11 September 2023, at [34] and annexure SJ 18 of the statement of Shane Johnson dated 22 December 2025 90 Transcript of hearing on 18 February 2026 at page 232 91 See above at [51], [66], and [79] 92 See above at [51] 93 Statement of Janine Healy dated 20 December 2025 at [12]-[14] 94 Transcript of hearing on 18 February 2026 at page 242 95 Transcript of hearing on 17 February 2026 at pages 216-217 tenable for the bathroom to be reserved for disabled people and to prohibit 96 others from using it if the other two bathrooms were occupied.

98. An email of 11 September 2023 from Jane Lui, Health and Safety Officer from the union, indicated that she understood “Apple agrees to ensure the accessible toilet is reserved just for disabled workers onsite”. The email also discussed the possibility of change rooms, but that at the Canberra store there was no space, and there were some suggestions for dealing with the issue of covering the Apple logo on employee clothing, which was a policy for employees when they 97 left the store.

99. After the 2024 renovations there were separate change rooms.

The applicant was at times required to wait for a bathroom to become available

100. As noted there were three bathrooms in the store, one larger accessible bathroom and two general bathrooms, which were wholly self-contained with a toilet, basin and towels.

101. There was a significant dispute as to whether, and if so, how long, the applicant needed to wait to use a toilet. His statement originally stated that the delay for the standard bathrooms was often 5-20 minutes. This was amended at the hearing to state that from the beginning of his employment he observed that there were often lengthy queues waiting for the two unisex standard bathrooms 98 and it was often a 5-10 minutes wait. .

102. Ms Healy stated she never observed any queue for any toilet, that there was rarely if ever a wait, and if there was it would be a short wait of a few minutes maximum. I take this to mean that at times there was a wait of a few minutes. She said that the applicant had never said to her he waited for a toilet or that he had seen a queue for any bathroom. However in cross-examination she admitted that on two or three times the applicant had expressed frustration about having 96 Statement of Janine Healey dated 20 December 2025 at [14] and [81] 97 Email from Jane Lui to Megan Channon dated 11 September 2023 at [34] and annexure SJ 18 of the statement of Shane Johnson dated 22 December 2025 98 Statement of applicant dated 17 November 2025 at [42]; transcript of hearing on 16 February 2026 at page 9 99 to wait in line for the toilet. She says she had told him that if there was someone else waiting that he was able to ask to use the toilet next due to 100 urgency, which of itself suggests that there were at times a wait for the toilets.

103. Ms Saysitthideth stated that she had never witnessed a queue of team members waiting for a bathroom at Apple Canberra, either in 2019 or since that time. She said there were only ever a handful of employees who were in the breakroom. She would generally only use the standard bathrooms, and she had not had to wait in a queue to use one. Breaks are scheduled to have the fewest staff off the shop floor at any one time and there are not enough employees to cause a wait time more than a minute or two. I take this to mean that at times there was a 101 wait of a minute or two.

104. It is clear that the applicant exaggerated his complaint about waiting times in his original statement. He appropriately amended this at the hearing to a claim of “often a 5-10 minute wait”. I think that the evidence suggests that this was still exaggerated. Ms Healey and Ms Saysitthideth were clear and careful witnesses. They had both worked and used the toilets at the store for significant periods of time. They were both sympathetic to the applicant’s condition. It is true, as the applicant’s counsel noted, that they did not follow the applicant around, but their personal use of the toilets gave them significant knowledge of the conditions in the store. If the applicant’s claim of “often a 5-10 minute wait” was correct, then they and others would have also experienced this; there was no evidence from anyone other the applicant that this was the case; if it had been I think it likely that there would have been significant other complaints.

105. However I think it unlikely there were never any waiting times for several reasons. First Ms Healey agreed there were sometimes waits of a few minutes, and Ms Saysitthideth that there could be wait times of a minute or two and possibly more, and they both agreed that the applicant did tell them that he was

99 Statement of Janine Healy dated 20 December at [79]-[81]; transcript of hearing on 18 February 2026 at pages 240-241 100 Statement of Janine Healy dated 20 December 2025 at [81] 101 Statement of Vanessa Saysitthideth dated 22 December 2025 at [90]-[92] 102 concerned about wait times at the toilet. Second, the response to the suggestion that the accessible toilet be reserved for disabled people and to prohibit others from using it if the other two bathrooms were occupied was that 103 this was not tenable. This suggests some pressure on the general toilets for use. Third, the respondent has now provided extra toilets, which suggests that there was some pressure on the toilets.

106. I therefore prefer Ms Healey’s and Ms Saysitthideth’s evidence that there was sometimes a wait of a few minutes. I note at any rate that the top of Ms Healey’s range of a few minutes, and the bottom of the applicant’s range of 5- 10 minutes, are not far apart.

107. In my view therefore the applicant at times needed to wait a few minutes to use the toilets, that this would interfere with use of the bathrooms by the applicant, and that the applicant complained about this. It seems such a wait was the result of the fitout of the store and the number of people working there.

108. After the renovations there were three bathrooms at the back of the store, one accessible, and two bathrooms elsewhere within the staffroom, both 104 accessible.

Other management of the bathroom issues

109. In addition to the actions taken to address directly some of the issues raised by the applicant, there were several other matters raised by him or with him in relation to the management of his bathroom issues.

Work schedule

110. Ms Healey stated that the applicant’s work schedule was adjusted to take into 105 account various medical reports, including that noted at [53] above.

102 Transcript of hearing dated 17 February 2026 at pages 175-178 and 199; see above at [61]-[64] and [79] 103 Statement of Janine Healy dated 20 December 2025 at [14] 104 Transcript of hearing on 18 February 2026 at page 232 105 Statement of Janine Healy dated 20 December 2025 at [21] and [25] Breaks

111. Ms Healey stated that she told the applicant that “he could take breaks to sit down as he needed to, and could leave the shop floor as he needed to use the 106 toilet, he did not need to tell a leader, he could just go”. The applicant 107 acknowledged this.

Jump the queue

112. Ms Healy indicated that he could have asked to jump any queue since it was 108 common knowledge that he had a disability.

Use the kitchen towels

113. As noted, Ms Healey said that the applicant could wash his hands in the 109 bathroom and then use the towels in the kitchen. The applicant rejected this suggestion. He said he could not use the sink in the tea room to wash his hands because in situations where he soiled himself it would have been unhygienic and deeply embarrassing to him to enter the tea room still soiled and to use the 110 tea room sink.

114. As discussed above at [73] I prefer Ms Healey’s account of this conversation, and that she was only talking about the applicant using the kitchen to dry his hands. This seems to me to have been a reasonable suggestion and demonstrates her general response of seeking to help the applicant.

Use the shopping centre toilets

115. The shopping centre public toilets were a one minute walk from the store and 111 had ambulant and accessible toilets.

116. Ms Healy stated that there were a few instances where a team member had food poisoning, and they were on the shop floor and urgently needed the toilet, and it 112 was quicker to run out of the store to go around to the shopping centre toilets.

106 Statement of Janine Healy dated 20 December 2025 at [20] 107 Statement of applicant dated 17 November 2025 at [48] 108 Transcript of hearing dated on 18 February 2026 at pages 235-6 109 Statement of Janine Healy dated 20 December 2025 at [41]-[44] 110 Statement in response of the applicant dated 27 January 2026 at [6(c)] 111 Transcript of hearing on 18 February 2026 at page 269

117. Under cross-examination Ms Healy confirmed that she did advise the applicant that if he did urgently need to go to the bathroom, that he could use the 113 114 Canberra Centre toilets as well. The applicant denied this.

118. If the applicant was told this, it seems to me a reasonable suggestion which may have helped him manage his health issues. Whether he was told or not, the applicant worked in the Canberra Centre for a significant period and it seems very unlikely that he did not know of the Canberra Centre toilets nearby and that he could use them if needed to manage his condition.

119. I return to these issues in relation to direct and indirect discrimination and remedies.

Bathroom complaints and direct discrimination

120. As noted, section 8(2) of the Discrimination Act as it applies here provides that the respondent directly discriminates against the applicant if the respondent: (a) treats, or proposes to treat, the applicant unfavourably; (b) because the applicant has a disability.

Applicant’s and respondent’s positions

121. The applicant alleged that he was a person suffering long-term significant bowel dysfunction, with frequent bowel movements requiring use of the toilet up to ten times a day, rectal leakage, incontinence and urgency to evacuate the bowels, and a hand injury and condition, and that the bowel condition was a disability 115 for the purposes of the Act.

122. The respondent referred to the independent medical report discussed below but otherwise admitted the bowel disability and hand disability and otherwise agreed or did not contest the claims, and to the extent that the applicant

112 Transcript of hearing on 18 February 2026 at page 271 113 Transcript of hearing on 18 February at page 245 114 Statement of the applicant dated 27 January 2026 at [5] 115 Applicant’s points of claim at [1], [16], [18] establishes that he has a bowel disability as defined in the claim, admits that this 116 would comprise a disability.

123. The applicant provided a significant amount of medical material concerning an extended period of time. As noted at [34]-[35] above, in my view he had a significant bowel condition which required him to go to the toilet often and suddenly, and that his bowel condition was a disability and a protected attribute under the Discrimination Act. Despite occasional references to the hand disability, there is no specific complaint of discrimination on the basis of this, the hand injury occurred after complaint 1, and while it was the catalyst for complaint 2 is not said to be a basis of the bathroom issues, and therefore I do not focus on this. As also noted above at [38]-[40] the complaints fall within section 10(2) of the Discrimination Act which concerns discrimination at work.

124. The applicant complained that the failure to address all of his bathroom concerns amounted to direct discrimination. He pleaded that the respondent engaged in direct discrimination against the applicant because it treated him unfavourably and caused him detriment because of his disabilities, namely the bowel disability and hand disability, by its failure to accede and implement the first reasonable adjustment request, which is complaint 1: late 2019 bathroom request, and the second reasonable adjustment request, which is complaint 2, 117 July 2021 bathroom request.

125. In summary the respondent generally denied the claim, though admitted that the applicant discussed his conditions with store management; says that the respondent supported the applicant with flexibility to take breaks; and admitted 118 that the applicant requested that the floor cleaning machine be removed.

116 Respondent’s points of defence at [1] and [18] 117 Applicant’s points of claim at [166]. The details of these complaints are at [47]-[108] 118 Respondent’s points of defence at [166] and [44], [45] and [87] Nature of direct discrimination

126. The Full Court of the Federal Court in Edgley v Federal Capital Press of 119 Australia Pty Ltd stated in relation to the Discrimination Act there is direct discrimination: … where a person is treated unfavourably by another because of an attribute. There is no special statutory definition of the verb "treat" and it is not a term of art. Its primary dictionary definition is "1. To act or behave towards in some specified way: (e.g.) to treat someone with respect" (Macquarie Dictionary). That definition seems apposite here. Again, as noted in Prezzi, above, the adverb "unfavourably" appears to have its ordinary meaning. The dictionary definitions of the adjective "unfavourable" include "adverse", and this seems appropriate here. In other words, s 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination.

127. In my view it is likely that the failures by the respondent to address all the complaints of the applicant in the short to medium term were unfavourable or adverse to the applicant.

128. The key issue is whether Apple failed to take all of the steps requested by the applicant because of his protected attributes. 120

129. This issue was considered by the High Court in Purvis v New South Wales (Purvis), which concerned a student at a school who suffered from a disorder resulting in particular behaviour, and who was expelled. The expulsion was challenged as an act of disability discrimination under the Commonwealth 121 Disability Discrimination Act 1992 (Commonwealth Act). Gleeson CJ 122 inquired into the ‘true basis’ of the decision and stated: The fact that the pupil suffered from a disorder resulting in disturbed behaviour was, from the point of view of the school principal, neither the reason, nor a reason, why he was suspended and expelled. … [The relevant provisions] are concerned with the lawfulness of the conduct of the school authority, and with the true basis of the decision of

119 [2001] FCA 379 at [54], first emphasis in the original, second added 120 [2003] HCA 62; (2003) 217 CLR 92 121 In Purvis it was discrimination under the Commonwealth Act, but the principles are similar under the ACT Discrimination Act 122 At [13] the principal to suspend and later expel the pupil. In the light of the school authority’s responsibilities to the other pupils, the basis of the decision cannot fairly be stated by observing that, but for the pupil’s disability, he would not have engaged in the conduct that resulted in his suspension and expulsion. The expressed and genuine basis of the principal’s decision was the danger to other pupils and staff constituted by the pupil’s violent conduct, and the principal’s responsibilities towards those people. 123

130. Gummow, Hayne and Heydon JJ stated: For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

131. The Court held that direct discrimination was not made out. The case concerned the Commonwealth Act, but the approach has been followed in a wide range of 124 other cases under the Commonwealth Act and State and Territory legislation.

132. This has included cases in this tribunal under the Discrimination Act. The respondent drew attention to comments of the tribunal in Kidman v Casino 125 Canberra Pty Ltd where the requirements for direct discrimination were discussed: The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.

123 At [236], emphasis in the original 124 Australian Human Rights Commission, Federal Discrimination Law (online, 2016) at [5.2.2(iii)] 125 [2020] ACAT 50 at [22] Finding of the Tribunal

133. The Applicant’s submissions state that the evidence will show that the respondent’s actions in refusing the applicants request were taken because of his disability. However, no evidence was pointed to in these submissions, or the 126 Applicant’s submissions in reply.

134. In oral submissions Counsel for the applicant stated that it was alleged the first request was refused because of the applicant’s disability, and that was because he notified Ms Healy about his disability, and therefore that was at least one of 127 the reasons why the requests were refused. But this is no evidence that the refusals were because the applicant had a disability. It is true that section 4A(2) of the Discrimination Act provides that a reference to doing an act because of a particular matter includes the doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason. But here there is no evidence that the applicant’s disability was even one of a number of reasons for the actions.

135. The evidence was rather that Apple did what it could do in response to his requests. It removed some of the cleaning materials from the bathroom. It moved the dryer.

136. The evidence was that it did not do some things requested in the short to medium term, but this was for reasons unrelated to the applicant’s disability. It did not immediately remove all the cleaning materials because there was nowhere else for them to go. It did not immediately remove the floor cleaner because there was nowhere else for it to go. It did not prevent others using the accessible toilets because this use was at times necessary. As noted at [109]- [119] the respondent took other steps and made other suggestions to support the applicant manage his condition.

137. In due course, the respondent addressed all of the applicant’s concerns. This did take some time, but there is no evidence that this delay related to the applicant’s

126 Applicant’s submissions at [33]; Applicant’s submissions in reply at [2] 127 Transcript of hearing on 19 March 2026 at page 342. The second claim is also discussed on this page disability. The applicant was not at work in the store to see these changes, but that was because he was absent for health reasons and then resigned.

138. Because the applicant could not point to any evidence that the respondent failed to address the complaints because of the applicant’s disability, his claim for direct discrimination is not made out.

139. The applicant did not claim that the state of the bathroom arrangements themselves was direct discrimination; rather it focussed on the response of the respondent to his complaints. Therefore it is not necessary to address this issue.

Bathroom complaints and indirect discrimination

140. Direct discrimination is treatment which on its face is less favourable; indirect discrimination is treatment that on its face is neutral, but the impact of the 128 treatment is less favourable. Indirect discrimination in its statutory form under section 8(3) of the Discrimination Act requires: (a) a condition or requirement; (b) that has the effect of disadvantaging the applicant; (c) because the applicant has one or more protected attributes; (d) unless the condition or requirement is reasonable in the circumstances.

141. I deal with each of these issues below, but first set out the claim and response. As discussed above at [34]-[35] and [123], the applicant had a significant bowel condition which required him to go to the toilet often and suddenly, and his bowel condition was a disability and a protected attribute under the Discrimination Act. As also discussed above at [38]-[40] the complaint falls within section 10(2) of the Discrimination Act which concerns discrimination at work.

Applicant’s and respondent’s positions

142. The applicant pleaded indirect discrimination as that:

128 Waters v Public Transport Commission [1991] HCA 49; 173 CLR 349, Dawson and Toohey JJ at (a) the respondent “forced the applicant to use the standard bathroom facilities” (issue (a) in [140]); (b) because had [sic] “the effect of imposing an unreasonable condition on him” (issue (d) in [140]); which (c) because of his disabilities (issue(c) in [140]; 129 (d) had the effect of disadvantaging him (issue (b) in [140])

As will be seen this pleading addresses all the issues of indirect discrimination, though in a confused way. I consider these at [151]-[152] below. 130

143. The respondent generally denied this claim.

144. Further the applicant pleaded in addition that the condition requiring the applicant to use the standard bathroom facilities (issue (a) in [140]) was 131 unreasonable in the circumstances (issue (d) in [140]). 132

145. The respondent generally denied this claim.

146. The applicant pleaded that the accessible bathroom had impeded access and the applicant was not able to use it when he required on a number of bases namely that: (a) the accessible bathroom was used as a storeroom, including for the floor cleaner; (b) cleaning staff used it to access the cleaners’ cupboard; and (c) the accessible bathroom was used by a range of staff including as a 133 change room.

147. Following on from these pleadings the applicant stated: 38. … the condition and state of the disabled bathroom presented an unsafe environment and inappropriate use of the facility.

129 Applicant’s points of claim at [167] 130 Respondent’s points of defence at [167] 131 Applicant’s points of claim at [168] 132 Respondent’s points of defence at [168] 133 Applicant’s points of claim at [31]-[37] 39. Further, the condition, state and use of the disabled bathroom restricted, or had the effect of restricting, the Applicants access to it. 40. As a result of the limited access to the disabled bathroom, the Applicant was often forced to rely on the two remaining operational toilets … which were often occupied. 41. Due to the high volume of staff who utilised these toilets, the Applicant was often waiting 5-20 minutes for a stall top become available for his use. As the Applicant had not control over his bladder movements, this placed him at increased risk of soiling himself. … 43. Given the nature of the Bowel Disability, the associated bowel disability symptoms, and the limited access to the standard toilet facilities, the Applicant needed to use the disabled bathroom often 134 to manage his Bowel Disability.

148. The respondent responded that cleaning equipment was occasionally stored in the accessible bathroom and denied that access or use of the space was impeded 135 by the equipment.

149. In my view it is clear that the applicant’s pleadings summarised in paragraph [146]-[147] were made in support of the indirect discrimination claim. The respondent also clearly took this view. Their pleading to the Applicant’s points of claim which mentions indirect discrimination expressly repeat their response to the Applicant’s points of claim setting out the bases set out in [146]-[147] 136 above.

150. The applicant provided further details of this allegation in its Applicant’s submissions, namely that the respondent imposed the following conditions upon the applicant in the course of employment: (a) that he use the standard toilet cubicles including queuing up for those cubicles like other employees who did not suffer from the disability; and

(b) that he accept that the accessible toilet would often not be accessible or safe to use due to the presence of cleaning supplies, a cleaning cupboard

134 Applicant’s points of claim at [38]-[41] 135 Respondent’s points of defence at [32] 136 Respondent’s points of defence at [167]-[168] and the floor washing machine within it and use the accessible toilet in that state.

It was argued that the conditions had the effect of discriminating against the applicant because his disability did not allow for him to queue for access to the 137 standard toilet cubicles.

Issues with the applicant’s claim

151. To put the applicant’s claim in a form which more closely mirrors section 8(3) as summarised above at [140] he claimed that: (a) there was a condition or requirement to use the standard bathrooms because the accessible bathroom was used as a storeroom; cleaning staff used it at times to access the cleaners’ cupboard; and it was used at times by a range of purposes including as a change room; and there was a condition or requirement at times to wait for a toilet to become available; (b) that had the effect of disadvantaging the applicant; (c) because he had a disability which required him to go to the toilet often and suddenly; and (d) the condition or requirement was not reasonable in the circumstances.

152. In my view there are a number of uncertainties in the applicant’s pleadings which this discussion clarifies. First when the applicant says that the respondent forced the applicant to use the standard bathroom facilities, it seems he means imposed a condition or requirement that applicant use the standard bathroom facilities and wait for a toilet. These are the words which section 8 of the Discrimination Act uses. Second, this arose from the problems with the accessible bathroom, which as discussed, I think the pleadings as a whole make clear. Third, it is clear that this was not a permanent situation, rather this operated from time to time, not every time the applicant sought to use the bathrooms. Again I think this is made clear by the pleadings as a whole. In my view this is making sense of the claim, which is what the courts in the cases noted below strive to do, not amending it. In my view the pleadings and other

137 Applicant’s submissions at [34]-[35] documents and the conduct of the hearing by the applicant made this clear to the Tribunal and the respondent.

Respondent’s arguments in relation to the claim

153. The respondent argued that the applicant’s claim was not about the nature of the accessible bathroom and that it was insufficiently accessible because it contained cleaning equipment and because it was from time to time in use by 138 non-disabled staff, and that this was not pleaded as a condition. I disagree. As noted the applicant uses the terms ‘forced to use’ and ‘condition’ and ‘requiring’ in the Applicant’s points of claim, which in the context of a claim under section 8(3) of the Discrimination Act is clearly referring to a condition or requirement. The Applicant’s points of claim refer extensively to the problems with the accessible bathroom, and it was clear that these were relevant to the 139 indirect discrimination claim. As I have noted the Respondent’s points of defence to the Applicant’s points of claim which mentions indirect discrimination expressly repeat their response to the Applicant’s points of claim 140 setting out the problems with the accessible bathroom.

154. The respondent also argued that the applicant effectively abandoned at the hearing the indirect discrimination claim that he was forced to use the standard bathroom. In particular the respondent stated that the applicant admitted under cross examination that the respondent never forced or required him to use any 141 particular toilet and that he was happy to use any of the three toilets. I do not agree with this. The Applicant’s points of claim as set out above were not amended. It is a novel proposition that the evidence of the party can do so. That evidence may go to whether the claim is made out, but that involves an assessment of the claim and the evidence, which I undertake below.

155. The respondent also seems to argue that the reasonableness of the identified 142 problems with the accessible bathroom was not in issue. But the Applicant’s

138 Respondent’s closing submissions at pages 2-3, [10]-[11] 139 Applicant’s points of claim at [31]-[43] and [167]-[168] 140 Respondent’s points of defence at [167]-[168] 141 Respondent’s closing submissions at pages 2-3, [10] 142 Respondent’s closing submissions at page 3, [12] points of claim refer expressly to section 8(4) of the Discrimination Act and refer expressly to issues of unreasonableness in relation to indirect 143 discrimination.

Concept of condition or requirement

156. The concept of condition or requirement is a broad one which should be given a 144 generous construction. Even so, there are often difficulties in assessing whether a condition or requirement exists.

157. Usefully a number of cases have considered the concept of condition or requirement in the context of bathroom facilities. In Travers v New South Wales 145 (Travers) the applicant was a 12-year-old girl who had conditions which resulted in bowel and bladder incontinence. Her usual classroom was not within 12 seconds walking distance of a toilet to which she had access; there was, however, an accessible toilet for disabled children close to the applicant's classroom, but which was kept locked. The accessible toilet was used by one student who was required to catheterise himself at regular intervals. A number of teachers had keys, and a request that the applicant be provided with a key to the accessible toilet or, alternatively, that the toilet be left unlocked, was 146 denied. It was held that the fact that the school required her to utilise a toilet which was not the most accessible toilet amounted to discrimination 147 under sections 6 and 22 of the Commonwealth Act. I do note that there are some significant differences between the Commonwealth Act and the ACT Discrimination Act.

158. The claim was heard first in the Federal Court, and then removed to the Federal 148 Magistrates Court. In the Federal Court proceedings, Justice Lehane stated: 14. The State contended that the requirement or condition alleged can only be that the applicant not be provided with a key to the disabled toilet. That requirement or condition was imposed not because of the applicant's 143 Applicant’s points of claim at [167] and [168] 144 Waters v Public Transport Commission [1991] HCA 49; 173 CLR 349, Dawson and Toohey JJ at 393-394 145 [2000] FCA 1565; [2001] FMCA 18 146 [2000] FCA 1565 at [4]-[5] 147 At [66] 148 At [14] disability but was a condition imposed on all students at the school. Nor was the applicant unable to comply with that condition. For those two reasons, the statutory test would not be met if the allegations were established. 15. I do not think, however, that the condition alleged should be construed so specifically. Certainly the immediate issue leading to the complaint of 10 February 1997 - and its particular subject matter - was ready access to the disabled toilet. But it is evident that the concern underlying the request for access to the disabled toilet was mainly that the applicant should have immediate access to a toilet to which she could walk from her classroom in twelve seconds or less ... 16. … [The complaint] might be expressed in this way: the applicant was required to attend classes in a classroom from which she could not walk to a toilet, to which she had ready access, within twelve seconds or less.

159. In the Federal Magistrates Court the particulars of indirect discrimination were “that the school failed to provide Stephanie with a toilet which she could access within 12 seconds, and this involved the imposition upon her of a requirement or condition (to use the toilets which were more than twelve seconds away) with which a substantially higher proportion of non-disabled persons (the other students) were able to comply and Stephanie was unable to comply without 149 seriously embarrassing and distressing consequences ...”.

160. The Court found that whilst there was no intention by those at the school of discriminating against the applicant, the very fact that they required her to utilise a toilet which was not the most accessible toilet amounted to indirect 150 discrimination.

161. The applicant also relied on the decision of the Federal Magistrates Court in 151 Access for All Alliance. This case concerned public toilets at the Scarness Foreshore where the wash basins were not concealed from public view. Witnesses for the applicant gave evidence that they had disabilities which 152 needed private hand basin facilities. Baumann FM found at [22] of the decision that there was a requirement or condition that members of the applicant

149 [2001] FMCA 18 at [5] 150 [2001] FMCA 18 at [66] 151 [2004] FMCA 915 152 At [30], [36]-[37], [40]-[42] seeking to enjoy the amenity of the Scarness Foreshore are required to use toilet facilities where wash basins are not concealed from the public view. 153

162. In Ellis v Burswood Nominees Ltd trading as Crown Resort the Court held that in appropriate circumstances a disabled person who is unable to access an accessible toilet could allege discrimination on the basis of their disability, particularly if no steps are taken by the operator to facilitate disabled persons using toilets designed for, and intended to be accessed and used by, disabled persons.

163. Travers and Access for All Alliance in particular support an important proposition, that a condition or requirement can arise on the basis of the physical configuration of a toilet for which the respondent is responsible, and from the social arrangements for its use for which the respondent is responsible. In both Travers and Access for All Alliance, the conditions or requirements were imposed by the physical facilities, and in Travers in conjunction with the arrangements for use.

Application of concept of requirement or condition

164. In my view, these cases provide support for the applicant’s claim in this case. In this case the physical configuration was that the accessible bathroom was used as a storeroom, including for a floor cleaner, and was in front of the cleaners’ cupboard which was accessed through it. In this case the accessible toilet was allowed to be used by a range of staff including as a change room. The number of toilets meant there was at sometimes a wait.

165. In my view the alleged condition or requirement here is similar in substance to those found in Travers and Access for All Alliance. As noted in Travers the requirement or condition was summarised as that the applicant was required to attend classes in a classroom from which she could not have ready access to a bathroom. Here the requirement or condition can be summarised as that the applicant was required to work in a store from which he did not have ready access to the accessible toilet because it was used as a storeroom, there was a

153 [2019] FCCA 1819 at [46] cleaners cupboard behind it, and the bathroom was used by other people and as a change room, and the applicant had at times to wait for a toilet.

166. In Access for All Alliance the requirement or condition was that members of the applicant seeking to enjoy the amenity of the Scarness Foreshore were required to use toilet facilities where wash basins are not concealed from the public view. Here the requirement or condition can be summarised as that the applicant working at the store was required to use toilet facilities where the accessible toilet was used as a storeroom, there was a cleaners’ cupboard behind it, and the bathroom was used by others and as a change room, and the applicant had at times to wait for a toilet. 154

167. I have set out the relevant factual findings above. In my view there was a condition or requirement that that the applicant use the standard bathrooms because there were issues in relation to the accessible toilet since it was used as a storeroom, including for a large floor cleaner, there was a cleaning cupboard behind and accessible through it which was used by the cleaners at times, and the accessible toilet was used by a range of staff including as a change room, and a condition or requirement that he at times wait for a toilet to become available.

168. The respondent relied on the following cross-examination of the applicant to argue that the applicant was not ‘forced’ or subject to a requirement or condition 155 to use the other bathrooms. MR MAHENDRA: You were never prevented from using the toilets at Apple. Were you? WITNESS: No. MR MAHENDRA: You were never forced to use any particular toilet. Were you? WITNESS: No. MR MAHENDRA: Apple never required you to use any particular toilet. Did they? WITNESS: No. That was never a basis of my complaint with 156 the toilets.

154 See especially [80]-[108] 155 Respondent’s closing submissions at page 13

169. These questions use the terms ‘prevented from using the toilets’ and ‘forced to use any particular toilet’. The answers are not contrary to the allegations by the applicant and the evidence that the accessible bathroom was used as a storeroom, the cleaning cupboard was behind and accessed through it and cleaning staff used it at times to access the cleaners’ cupboard, and the accessible bathroom was used by a range of staff for several purposes including as a change room, which created difficulties in his use of the accessible toilet. The answers are not contrary to the allegations and the evidence that the applicant was at times required to wait for a toilet to become available. Further these answers do not prevent the applicant from showing that the requirement or condition had the effect of disadvantaging him because of his disability, as discussed below.

170. The respondent placed emphasis on the fact that the applicant agreed that he could, and was happy to, use any of the three toilets, provided there was no wait 157 time. I do not think that this is contrary to his evidence that he preferred the accessible toilet because it gave him more room. Or more relevantly that the use of the accessible bathroom as a storeroom, that cleaning staff used it to access the cleaners’ cupboard; and that the accessible bathroom was used by a range of staff including as a change room, had an impact on his ability to quickly use the accessible bathroom. Also these arguments do not address the requirement to wait for a toilet at some times.

171. Therefore I think that there was a relevant condition or requirement.

Concept of disadvantaging the applicant because they have a disability

172. These criteria are appropriately dealt with together as they are linked.

156 Transcript of hearing on 16 February 2026 at page 73 157 Respondent’s closing submissions at page 13; Transcript of hearing on 16 February 2026 at

173. In Travers the relevant statutory provision was that in the Commonwealth Act, namely a requirement or condition “with which the aggrieved person does not 158 159 or is not able to comply”. Justice Lehane noted: To conclude that it could amount to discrimination of that kind requires a reasonably liberal interpretation of the phrase "is not able to comply" in par (c) of s 6. Neither the original complaint nor the claim in this proceeding suggests that it is literally impossible for the applicant to comply with a condition in the form I have suggested. She could do so, but only with consequences which (if the facts alleged are proved) are seriously embarrassing and distressing. The absence of any argument by the State specifically directed to the point makes me confident in taking the view - which in any event seems to me correct - that it is appropriate to construe "is not able to comply" as extending to the requirement as I have expressed it. It is consistent with a line of Australian decisions which have applied a construction adopted by the House of Lords in Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 at 565, 566 per Lord Fraser of Tullybelton, with whom the other members of the House agreed. It is unnecessary to list the Australian decisions. …

174. As noted the Federal Magistrates Court set out that the particulars of the claim were that there was a requirement or condition which the student was unable to comply without seriously embarrassing and distressing consequences, and that 160 this claim was made out.

175. Access for All Alliance was also determined under the more onerous Commonwealth Act requirement of unable to comply. Baumann FM took a 161 similar approach and stated:

I have formed the view that the requirement or condition which I have framed at paragraph 22 of these reasons, is unreasonable and that some persons are so affected by the requirement or condition that they are unable to comply with it. My reasons for so finding are:- (a) I am satisfied that some persons with disabilities have personal hygiene difficulties and some are required to undertake a careful toileting regime (because of aids such as catheters and colostomy bags) which reasonably requires use of wash basins out of public view and in private. (b) Because of the unpredictibility of when "accidents" may happen, persons should not be dissuaded from enjoying this amenity because 158 Section 6(6)(c) of the Commonwealth Act 159 [2000] FCA 1565 at [17] 160 See above at [159] 161 [2004] FMCA 915 at [81] of a fear of being unable to clean themselves quickly, privately and in an aseptic environment. (c) Suggested alternatives such as carrying "Wet Ones", sponges, clean clothes and paper towels are inadequate when the need to react immediately may be reasonably required. …

176. The words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination 162 Act. In Australian Capital Territory v Wang, and Applicant DT 6/2025 v 163 Director-General, Transport Canberra and City Services the tribunal adopted the following meaning of ‘disadvantage’ as discussed in Prezzi, Patricia Anne 164 and Discrimination Commissioner: While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison or means specially favourable to success, interest or any desired end. … 24.It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. …

177. These cases show that the fact that an applicant can comply with a requirement or condition does not prevent it being a requirement or condition. This is a more serious issue under the Commonwealth Act which requires that it is not possible for the applicant to comply with the condition or requirement, though in the cases this is understood broadly. Under the ACT Discrimination Act the criteria is the less onerous that the condition has the effect of disadvantaging the applicant because the applicant has one or more protected attributes. The fact 162 [2019] ACAT 65 at [185] 163 [2025] ACAT 66 at [46] 164 [1996] ACTAAT 132 at [22] and [24] and later approved by Beaumont ACJ in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54] that the applicant can negotiate the condition or requirement is not fatal to their claim.

Application of concept of disadvantaging the applicant because they have a disability

178. As discussed, the applicant’s condition meant that he had to go to the toilet 165 often and suddenly. Further the applicant said that he did require the accessible toilet space because there were times where he did not get to the toilet in time due to urgency and would risk soiling himself if he had to wait for the bathrooms. In those situations he would urgently need to use the accessible toilet in order to clean up and change his clothes. There was more room in the 166 accessible toilet to do this. The applicant said he soiled himself once or twice 167 a week.

179. The respondent argued that the applicant’s claim that he soiled himself regularly was implausible, on the basis that he did not discuss this in detail with Ms Healy 168 or the respondent more generally. The applicant stated that he did not discuss this level of detail with Ms Healy, and I would infer others with whom he had a 169 more remote relationship, because it was deeply personal. In my view this is no basis for not believing the applicant in this regard.

180. The respondent also argued that the assertion by the applicant that the accessible bathroom had more room was contradicted by his evidence that the disabled 170 bathroom was “very tight". What the applicant actually said was that notwithstanding his complaints, the balance of the cleaning supplies and equipment, including the large cleaning machine, still remained in the accessible toilet. And then that as he felt he had little choice he continued to use the accessible toilet, however he was heavily restricted in his movements in the toilet due to the large cleaning machine which prevented his safe and ready

165 Statement of applicant dated 17 November 2025 at [7]-[34]; transcript of hearing on 16 February 2026 at pages 3 and 15-16 166 Statement of applicant dated 27 January 2026 at [6] 167 Transcript of hearing on17 February 2026 at page 123 168 Respondent’s closing submissions at pages 6 and 14 169 Statement of applicant dated 27 January 2026 at [6] 170 Respondent’s closing submissions at page 14 171 access to the facility. It was the storage of supplies and the cleaning machine, the very things the applicant complained about, which restricted his movements. I do not think that the respondent can rely on its acts of using the accessible bathroom for storage to rebut the position of the applicant that the accessible bathroom had more room available for him to clean himself. Appropriately used, the accessible toilet clearly had more room, and even with the stored items it had more room.

181. The respondent also argued that the applicant was not at work in the store long 172 enough to be disadvantaged by the bathroom arrangements. As discussed at [41]-[42] above in my view the tribunal is able to consider complaint 1. It is also able to consider the indirect discrimination complaint from this time. The applicant was therefore relevantly working in the store from September 2019 till 30 June 2020 when he started his first work from home placement, January 2021 till March 2021 when he started his second, and May 2021 till about August 2021 when another shutdown was imposed and he started his third, and 173 then was on extended leave. This is a significant period. He began raising issues in relation to the bathroom situation in late 2019 a few weeks after he started work in the store. In my view this is a significant period, not a minimal period, in which to be subject to the disadvantage alleged by the applicant.

182. In my view it is clear that the applicant here could generally comply with the conditions or requirements, that is he could find and use a bathroom. But as was the case in Access for All Alliance, this was with consequences which were sometimes embarrassing and distressing. In my view the conditions or requirements disadvantaged the applicant, because of his protected attributes.

183. In relation to these criteria the respondent also placed emphasis on the fact that the applicant agreed that he could, and was happy to, use any of the three toilets, 174 provided there was no wait time.

171 Statement of the applicant dated 17 November 2025 at [51] and [52] 172 Transcript of proceedings on 19 March 2026 at pages 355-366 173 See [43]-[44] above; statement of applicant dated 17 November 2025 at [86]-[92] 174 Transcript of proceedings on 16 February 2026 at page 61

184. Again, I do not think that this is contrary to his evidence that he preferred the accessible toilet because it gave him more room, including to clean himself. Or more relevantly that the use of the accessible bathroom as a storeroom; that cleaning staff used it to access the cleaners’ cupboard; and that the accessible bathroom was used by a range of staff including as a change room, had an impact on his ability to quickly use the accessible toilet, including to clean himself.

185. Further the respondent drew attention to the statements of the applicant that he 175 was never forced to use any particular toilet. Again this is not contrary to his evidence that he preferred the accessible toilet because it gave him more room, including to clean himself.

186. The respondent also relied on the fact that the applicant felt supported by Ms Healy to suggest that he was not treated unfavourably. The fact of support by Ms Healy, with which I agree, does not negate the specific concerns about the toilets. I note also that the fact that the respondent implemented some changes 176 to support the applicant and suggested others does not affect this finding.

187. The respondent also relied on the fact that the three bathrooms contained a basin and towel dispenser and therefore were equally suitable for the purpose of 177 cleaning up. It is objectively clear that the accessible toilet was much bigger 178 than the others. This supports the applicant’s evidence that it was easier to use and clean up in, at least when it was not used for storage, by the cleaners or by others.

188. Therefore in my view these criteria were made out, namely that the condition or requirement had the effect of disadvantaging the applicant because of his disability, which required him to go to the toilet often and suddenly.

175 Transcript of proceedings on 16 February at page 73 176 See above at [54], [60], [62], [74], and [109]-[118] 177 Respondent’s closing submissions at page 14 178 Statement of Vanessa Saysitthideth dated 22 December 2025 at [94] and annexure VS 26 Condition or requirement is reasonable

189. As noted a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances. The Act sets out matters to be taken into account in relation to this provision including (a) the nature and extent of any disadvantage that results from imposing the condition or requirement; (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement. It has been held that this is an objective test which requires the nature and extent of the discriminatory effect to be weighed against the reason advanced in favour of the condition or 179 requirement.

190. Section 70 of the Discrimination Act provides that if apart from an exception, exemption, excuse, qualification or justification under the Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it. It seems 180 therefore that the respondent bears the onus of showing reasonableness.

191. In Travers it was held that the condition or requirement was not reasonable and therefore the claim was made out. This was notwithstanding that there was another toilet which the applicant could and did use. In Access for All Alliance the Federal Magistrate was satisfied on the totality of the evidence that the use of the facility was only available on terms and conditions which were 181 unreasonable and constituted indirect discrimination. The respondent had argued that the requirement or condition was reasonable to discourage those with criminal intent or to provide external facilities for young children or to ‘wash dishes’. But the Federal Magistrate held that this was offset by the community expectation that persons with a disability should be entitled to 182 complete a toileting regime in private.

179 Catholic Education Office v Clarke [2004] FCAFC 197 at [115] and [118] 180 This has a similar effect to section 6(4) of the Commonwealth Act. Some earlier cases in this area were decided before these provisions were added, see for example Catholic Education Office v Clarke [2004] FCAFC 197 at [115] 181 [2004] FMCA 915 at [82] 182 [2004] FMCA 915 t [81]

192. The applicant’s position was that the condition or requirement was not 183 184 reasonable in the circumstances, which the respondent generally denied. There was little evidence and few detailed submissions on this issue from the 185 186 applicant, or from the respondent.

193. I make the following comments. As to the use of the accessible toilet as a storeroom, in my view it is clear that this was done, and that this use would interfere with use of the accessible bathroom, in particular the storage of the floor cleaner. This was remedied in part first by removal of some of the stores when the applicant complained, then movement of the towel dispenser, then by the removal of the floor cleaner, then in full by the construction of a new cleaners’ storeroom.

194. There was no evidence as to why it was ever necessary to store things in accessible toilet. It was said that there was nowhere else to store cleaning materials, or the floor cleaner, but there was no evidence why or how this situation arose. Given the onus on the respondent, I am not convinced that the use of the accessible toilet for storage was reasonable.

195. There was no evidence as to why the cleaner’s cupboard was put behind the accessible toilet, so that the cleaners had to access it through the accessible toilet. There was no evidence as to how or why this situation arose. Given the onus on the respondent, I am not convinced that the use of the accessible toilet for storage was reasonable.

196. There was some evidence as to why others were allowed to use the accessible toilet, including as a change room. Ms Healy said that if the other bathrooms are in use, then staff members will use the accessible bathroom. In her view it was not tenable for the bathroom to be reserved for disabled people and to prohibit 187 others from using it if the other two bathrooms were occupied.

183 Points of claim at [168] 184 Points of defence at [168] 185 Applicant’s submissions at [36] 186 Respondent’s submissions at [77]-[81]; Respondent’s closing submissions at page 14 187 Statement of Janine Healy dated 20 December 2025 at [12]-[14]; transcript of proceedings on 18 February 2026 at page 234

197. As noted, there was some dispute as to whether the applicant was often required to wait for a toilet to become available. I have found there was sometimes a wait 188 of a few minutes.

198. It may be that there is an argument that this was reasonable because the discriminatory effect on the applicant was minimal, and was outweighed by the interests of the whole of the workforce in having reasonable access to bathrooms. As s Ms Healy said it was not tenable for the accessible bathroom to be used only by people with a disability. But in the absence of further evidence about this, and given the onus on the respondent, I am not convinced that this was reasonable. Even if it was, I would have reached the same overall result in these proceedings.

Finding of Tribunal

199. In my view the claim of indirect discrimination is therefore made out. There was a condition or requirement that the applicant use the standard bathrooms because there were issues in relation to the accessible toilet, namely that it was used as a storeroom, including for a large floor cleaner, there was a cleaning cupboard behind it and accessed through it which was used at times by the cleaners, and it was used by a range of staff including as a change room, and a requirement or condition that he at times wait for a toilet to become available. This had the effect of disadvantaging the applicant because of his disability which required him to go to the toilet often and suddenly, with the result that he sometimes soiled himself and had to cleanup. The fact that notwithstanding these factors he could manage to use the accessible toilet, or another toilet, does not defeat the claim. The respondent did not show that the condition or requirement was reasonable in the circumstances.

200. This is so even without relying on the rebuttable presumption in section 53CA of the Human Rights Commission Act. That presumption arises for indirect discrimination if the condition or requirement has an effect of disadvantaging the applicant (section 53CA(2)(a)(ii)) and the effect of disadvantaging the applicant comes about because of a protected attribute of the applicant. In my

188 See paragraphs [100]-[107] above view the condition or requirement specified does have an effect of disadvantaging the applicant, and this is because of the protected attribute of the applicant. In order to rebut the presumption the respondent has to show that the effect of disadvantaging the applicant is not because of a protected attribute (section 53CA(3)((b)). In my view the respondent has not shown this. Therefore if it were necessary the presumption supports the applicant’s case.

Work from home complaints Complaint 3 – September 2021 work from home request

201. As noted, for several periods during the COVID 19 pandemic the applicant 189 worked from home online. The respondent emphasised that the applicant’s position was in Apple Retail at the Apple store in Canberra. The respondent provided significant evidence, some of which is noted below, that in Apple Retail there were no work from home positions. The applicant’s periods of working from home were in the Retail Customer Care team which is another part of the organisation. Ms Kee stated that the RCC team in Australia is typically a very small team, has reduced in size in recent years, in 2022 there were about 30 employees, and at the time of her statement there were less than 190 25 employees in RCC in Australia.

202. The applicant stated that on 10 September 2021 he made a request by email to Ms Saysitthideth to work from home for the RCC on a permanent basis 191 supported by medical evidence. As noted in paragraph [201] and footnote 195 he was shortly after that time working for the RCC team at home for a period and then on leave. His email stated: I have advised Apple Management of my ongoing medical issues on numerous occasions. Whilst I can return to working at the store (following ease of COVID 19 concerns/no mask wearing enforcements) and in fact enjoy working from the store, it became significantly apparent that my health saw considerable improvements whilst I worked from home for the RCC during the period of June 2020-June 2021 (12 months).

189 It appears these periods were 30 June 2020 till 21 January 2021, 8 March 2021 till 29 May 2021, and 13 September 2021 till 19 November 2021 which was cut short by his operation, see statement of Lay Kee (Nikki) Lim dated 22 December 2025 at [19]-[27] 190 Statement of Lay Kee (Nikki) Lim dated 22 December 2025 at [30] 191 Statement of applicant dated 17 November 2025 at [89] The GP reflected this improvement during our consultation and given my chronic health conditions has encouraged me to formally request this role change. In addition, more recent health complications and a serous diagnosis have urged me to pursue the working opportunity with a greater sense of certainty that this is the best way forward. … Since the commencement of my Apple employment, I have valued Apple’s expressed commitments including supporting staff needs and principles of 192 diversity, accessibility, equality and inclusiveness.

203. Ms Saysitthideth said she spoke to someone in their Employee and Labour Relations team who stated that all roles in retail are store based and the applicant could not work from home; he could explore open roles outside of 193 retail and apply if a role is available. There are some text conversations around 13 September where the applicant says he has sent a number of emails and Ms Saysitthideth says “saw all your emails. Looks like they have passed it to our scheduling team now”. The applicant says “thank you for your support” 194 and Ms Saysitthideth says “let me know if you need anything else”. She says that at some stage the applicant and she spoke over the telephone and she conveyed to him that he could not work from home in his role as a specialist because this was an in-store role, but that he could apply for available roles within RCC. She also stated that she confirmed during a regular check in that they did not have work from home roles in Retail and that he would have to 195 apply for a home-based role.

204. It appears the applicant was asked to apply for such a role and he let her know about this in November 2021. Ms Saysitthideth supported this application by 196 email on 23 February 2022.

205. Ms Saysitthideth gave the same response to the applicant in relation to working 197 from home at a meeting on 2 May 2022.

192 Statement of applicant dated 17 November 2025 at [90] and annexure 9 193 Statement of Vanessa Saysitthideth dated 22 December 2025 at [42] 194 Statement of Vanessa Saysitthideth dated 22 December 2025 at [43] and annexure VS 3 195 Statement of Vanessa Saysitthideth dated 22 December 2025 at [45]-[47] 196 Statement of Vanessa Saysitthideth dated 22 December 2025 at [47] and annexure VS 4 and [50] annexure VS 5

206. On 24 November 2021 the applicant commenced a period of leave due to the worsening effects of his condition and on 24 November 2021 he underwent a 198 major operation. He did not return to work at Apple.

207. On 4 May 2022 Ms Healy provided advice in relation to the applicant’s application that he was eligible to apply for the RCC role, he had already helped out with RCC during the lockdowns, and she would highly recommend him for 199 200 this role. The applicant’s application to RCC was unsuccessful.

208. Following the applicant making further inquiries about his work from home request, Ms Saysitthideth sent an email dated 11 July 2022 to him which stated in part as follows: I note that I acknowledged the receipt of your email on 13 September 2021 via text message, and also verbally in our conversation. As discussed Apple Retail does not currently have any positions available for work from home permanently, however any available roles in RCC/AHA with work-from-home duties are advertised on … Please feel free to reach out if you need anything. Complaint 4 - March 2023 work from home request

209. On 22 March 2023 the applicant sent to Ms Saysitthideth and Ms Healy an 201 email which stated: As you are aware my Dr at this stage, has provided medical clearance for me to work 10 hours in a working from home capacity. He has listed conditions of 5 hour shifts on non-consecutive days. As you know I have previously performed in work from home capacity chiefly throughout the COVID crisis. The hope is that my Dr will increase my hours following ongoing reviews.

210. The relevant Drs report seems to be dated 23 March 2023 and stated that the 202 doctor saw the applicant regularly and then:

197 Statement of Vanessa Saysitthideth dated 22 December 2025 at [52] 198 Statement of the applicant dated 17 November 2025 at [92], [93], and [123] 199 Statement of Janine Healy dated 20 December 2025 at [55]-[56] and [75]-[77] and annexure JH 13 200 Statement of Vanessa Saysitthideth dated 22 December 2025 at [47]-[50] and annexure VS 5; statement of the applicant dated 17 November 2025 at [97]] 201 Statement of Vanessa Saysitthideth dated 22 December 2025 at [57] and annexure VS 7 202 Annexure JH 8 to statement of Janine Healy dated 20 December 2025 at [58] It is my medical determination that … [the applicant] trial to work from home for 10 hours a week. This 10 hours should be split into 5 hour shifts and should be on non-consecutive days. This will provide … [the applicant] with a rest period between shifts and gradually re-introduce him into this role. Also … [the applicant] will need frequent breaks as needed. This schedule will be subject to review with the goal of returning to his usual full-time hours over time.

211. On 30 March 2023 the applicant received an email from Sara Khouri, Apple People Experience Leader, stating that there were no available positions working from home. This email also stated: Unfortunately we do not have roles working from home available. All roles in the store require you to be on site, so at this stage, based on the information you provided, you are not currently fit to return to work. You have now been absent from work on an extended leave of absence due to personal medical needs for 1 year and 5 months … While we are continuing to support you, if you are deemed fit for work from home only we would recommend that you look for roles that will fit your requirements … We can also work with your rehab team to see if there are possibilities for external options if no internal options are 203 available. 2 June 2023 meeting

212. The respondent sought to set up a meeting with the applicant in May 2023. The applicant relied upon an email of 15 May 2023 from Megan Channon, Rotational Employee and Labour Relations at Apple and Sara Khouri in which she says: If you would like to meet up in person, that is ok. Our position has not changed and it may be an opportunity to softly mention that we would be looking to possibly start the excessive LOA process which if he is not fit to return to his role would lead to separation of employment. You can ask if …[the applicant] has looked through Careers at Apple to find suitable roles, Rehab have started to look at redeployment services for external 204 employment.

213. The meeting took place at Caffe Cherry Beans in the Canberra Centre on 2 June 2023 between the applicant, Ms Healy and Ms Khouri. There was a deal of evidence about this meeting.

203 Statement of the applicant dated 17 November 2025 at [100]-[101] and annexure 13 204 Applicant’s tender bundle at page 215

214. The applicant stated that during this meeting he was suddenly advised by Ms Healy and Ms Khouri that the respondent was considering terminating his employment due to his absence from the workplace. He stated that Ms Khouri 205 used words to the effect that they were starting the termination process.

215. The applicant sent an email of 7 June 2023 to Ms Healy and Ms Khouri which referred to the meeting and said he “was advised that Apple are planning to terminate my employment due to my disability”. This is a little different to the words he used in his statement of terminating employment due to his absence from the workplace. He asked some questions about this and said he would also 206 appreciate being involved in the process.

216. The applicant later requested that he be provided confirmation in writing that the termination process was being commenced. He stated he did not receive a response but did receive further communications about an Independent Medical 207 Examination (IME).

217. Ms Khouri did not give evidence in these proceedings, but she did send an email on 2 June to a range of people reporting on the meeting. In summary this reported: that the applicant said his condition is improving, was still painful and frustrating, that he is not likely to return to retail any time soon; he still needs to have a bathroom easily accessible and at short notice, and he cannot do any customer facing roles; she noted that she and Ms Healy shared that there are no non-customer facing roles in Apple Retail; they also helped him understand the challenges he would face as a part of AHA and RCC with his condition; and she said that they would be looking to possibly starting the excessive leave of absence (LOA) process, and ‘potential separation of employment’. They asked the applicant if he had looked through Careers at Apple or applied for total and permanent disability, and as he mentioned his mental health they strongly encouraged him on multiple occasions to utilise the Employee Assistance 208 Program (EAP) or ensure he is talking to a professional.

205 Statement of the applicant dated 17 November 2025 at [106]-[107] 206 Statement of Janine Healy dated 20 December 2025 at [73] and annexure JH 11 207 Statement of the applicant dated 17 November 2025 at [108]-[110] 208 Statement of Ms Saysitthideth dated 22 December 2025at [59]-[61], annexure VS 10

218. Ms Healy gave extensive evidence about this meeting. In summary she said that: the meeting was to check in with the applicant because he had been away for a very long period of time; we wanted to discuss what the future would look like for the applicant, because of the applicant’s medical condition options were discussed which included application to a suitable position within Apple such as at RCC; she noted that the applicant said he still needed access to a bathroom at short notice and could not do any customer facing roles; they told him there were no non-customer facing roles or work from home roles at Apple Retail; they explained he may face challenges with an RCC role, as these require continuous phone interactions which cannot be ended if he needed to use the bathroom urgently; she said they stated that given how long the applicant had been absent from work Apple would possibly start the excessive LOA process, and depending on his ability to return to his position, a potential separation of employment. She said they discussed the applicant’s mental health and strongly encouraged him to access Apple’s EAP or ensure he is talking to a 209 professional.

219. Under cross-examination Ms Healy stated that the conversation was a check-in after the long absence and that the long leave of absence from work could lead to a separation of employment. She was adamant that the term ‘termination of 210 employment’ was not used.

220. Ms Saysitthideth stated that the coffee catch up was not about terminating 211 employment.

221. Notwithstanding the focus on this meeting at the hearing, there is no claim of disability discrimination arising directly from it. Its relevance seems to be in support of the work from home complaints of direct discrimination. In this regard I find that the purpose of the meeting was to check in with the applicant because he had been away for a very long period of time; that Ms Khouri and Ms Healy mentioned the possibility of starting the excessive LOA process, and potential ‘separation of employment’; that they also mentioned that there were

209 Statement of Janine Healy dated 20 December 2025 at [59]-[72] 210 Transcript of hearing on 18 February 2026 at pages 261-263 211 Transcript of hearing on 17 February 2026 at page 195 no non-customer facing roles at Apple Retail, and that the applicant may face challenges even with a RCC, that is a work from home, role. Ms Khouri and Ms Healy gave supportive advice to the applicant, including on managing his mental health.

222. I do not think that Ms Khouri and Ms Healy stated that the respondent was considering or planning on terminating the applicant’s employment due to his absence from the workplace, health or disability. However I think that they did talk about potential ‘separation of employment’, which I think would include the applicant resigning or the respondent terminating the employment by lawful process. In my view the applicant could correctly take this to mean one option was for him to resign and another was for the respondent to terminate his employment. I do not think the applicant could correctly take the view that the respondent was going to terminate his employment.

223. In an email of 8 June 2023 from Ms Channon to Ms Khouri, copied to Ms Healy and Ms Saysitthideth, it was said that the applicant was seeking legal advice which is within his rights; that he has also sought to reopen his workers compensation claim; she had a draft of the excessive LOA letter; that “we may 212 need to complete an IME which will extend the outcome”.

Independent medical examination and following meetings

224. There was a further meeting on 5 July 2023 at which Ms Saysitthideth and Ms Khouri were present where it was said that as the applicant had been on extended leave of absence mainly due to illness, they would like to obtain a better understanding of the applicant’s prognosis and any impact on his fitness to be at work by obtaining further medical information from another medical practitioner. Ms. Saysitthideth said that the applicant asked: “so I’m not terminated”; and Ms Khouri responded: “this is not a termination … there’s no 213 214 change in your employment”. The applicant did not seem to dispute this.

212 Applicant’s bundle of documents at page 213 213 Statement of Vanessa Saysitthideth dated 22 December 2025 at [64]-[67] and annexure VS 13 214 There is no challenge to this aspect of the conversation in the statement of the applicant in reply dated 27 January 2026

225. An independent medical report was obtained which was summarised as that the applicant has a medical condition, but this condition does not impact his capacity to undertake his usual tasks, duties, demands and hours of his 215 position.

226. There were a number of further meetings and correspondence concerning the IME and other issues. There was a meeting on 20 September 2023, for which 216 Mr Johnson provided a summary, and a follow-up email of 20 September 2023 from Laura Wood, lawyer and support person for the applicant, to Apple raised a range of issues in relation to the IME. This stated that the applicant was shocked and insulted in relation to the suggestion that his conditions were not genuine and that the reports are misrepresentative of him and do not reflect his 217 complex medical history.

227. Apple indicated that they were open to receive further specialist medical 218 opinions to be considered alongside the IME reports. Apparently no such 219 further reports were provided.

228. Mr Johnson stated that he did not agree that the IME process was taken as a process towards termination. He said termination is highly structured and was not commenced in relation to the applicant’s employment. Apple had rather agreed to continue the IME process, it seems in part to give consideration to 220 expert advice obtained by the applicant.

Complaint 5 - October 2023 work from home request

229. On 27 October 2023 the applicant sent an email with a letter to Ms Saysitthideth which stated: In accordance with section 65(2) of the Fair Work Act (FW Act) I would like to request flexible working arrangements that are different to my current working arrangements.

215 Statement of Vanessa Saysitthideth dated 22 December 2025 at [69] and annexure VS 15] 216 Statement of Shane Johnson dated 22 December 2025 at [32]-[33] and annexure SJ 17 217 Statement of Vanessa Saysitthideth dated 22 December 2025 at [70]-[71] and annexure VS 17 218 Statement of Shane Johnson dated 22 December 2025 at [41], [42], [51], [54], [60], and [73] and annexures SJ 20 and SJ 24 219 Transcript of hearing on 19 March 2026 at page 327 220 Statement of Shane Johnson dated 22 December 2025 at [71]-[73] I would like to change my working arrangements so that I may work from home on a part-time basis in a sales role. This would be consistent with my treating physician, Dr Sanjeewa Don’s recommendation of commencing on a gradual return to work schedule of initially three five-hour shifts for three days per week with a view to increasing the number of hours based on a medical review by Dr Don in six months … The arrangements I am seeking are akin to the arrangements that were in place during the COVID lockdown. During the COVID lockdown, it was widely accepted by the organisation and common practice for Apple employees to work within a virtual customer service team, with this practice still continuing post COVID lockdown. … As per Dr Don’s medical assessment, these changes will assist me as I have chronic health issues and am deemed to be a person living with a 221 disability.

230. The applicant provided a report from Dr Don dated 20 October 2023 which stated that he believed the applicant was fit to perform the requirements of his role with flexibility arrangements in place; his health issues are now deemed chronic and serious given their life-threatening nature; he suggests the applicant commence back to work on a gradual return program of 15 hours a week over three days with five-hour shifts per day; he proposes the applicant work from 222 home.

231. There was another meeting of 10 November 2023 which Ms Saysitthideth attended and took extensive notes. Ms Saysitthideth responded with a letter dated 17 November 2023 which stated: I note you have requested a flexible working arrangement under the criterion of disability and on the basis of what your GP, Dr Sanjeewa Don, has diagnosed as chromic health issues. The arrangement you have requested is to change your working arrangements by working from home on a part-time basis in a sales role. On 10 November 2023, we met with you via Webex conference call … and it was advised that your request for the above flexible working arrangement could not be approved because the proposed arrangement cannot be accommodated by Apple. After discussing your request and genuinely taking into account the matters discussed with you including potential alternate arrangements available, there are no alternate arrangements that can be accommodated at this time. … our refusal is based on reasonable business grounds because your role at Apple is a Product Zone Specialist which, as with all roles within Apple

221 Statement of Vanessa Saysitthideth dated 22 December 2025 at [74] and annexure VS 20 222 Statement of Vanessa Saysitthideth dated 22 December 2025 at [74] and annexure VS 20 Retail, is required to be performed in store. This is not a role that can in practice be worked remotely. Nor is it a role that can be performed back-of-house, as it is essentially a customer facing role and one required to be performed on the shop floor. Whilst it is not within the scope of accommodating a flexible working arrangement request to deploy you into an alternative role per se, Apple would be willing to support an application made by you for an alternative position that may be available via application through Careers Apple and which may be able to accommodate your flexibility request. … Should you wish to dispute a decision that Apple has made, in response to a request for a Flexible Working Arrangement, you have the option to request a local decision review with Employee Relations by referencing the Apple’s Decision Review Policy. We will attempt to resolve this dispute with you at the workplace level. If this dispute remains 223 unresolved, you may apply to the Fair Work Commission … Complaint 6 – late 2023 alternative role request

232. In late 2023 the applicant applied for a position as an at-home service 224 specialist.

233. Mr Johnson had sent an email to the applicant on 13 November 2023 to notify him that RCC had advertised a job vacancy. Ms Khouri had informed Mr 225 Johnson of the job and suggested he pass it on to the applicant. Mr Johnson gave evidence that this position was at a higher level graded position to the one 226 the applicant occupied. The applicant informed Mr Johnson when he had his 227 final round of interviews for the role.

234. On 5 January 2024 the applicant was advised that he was unsuccessful in that 228 application. On 14 March 2024 Mr Johnson notified the applicant of another 229 job vacancy in RCC.

235. The applicant resigned on 18 March 2024.

223 Statement of Vanessa Saysitthideth dated 22 December 2025 at [79] and annexure VS 22 224 Statement of applicant dated 17 November 2025 at [118] 225 Statement of Shane Johnson dated 22 December 2025 at [43] 226 Statement of Shane Johnson dated 22 December 2025 at [45] 227 Statement of Shane Johnson dated 22 December 2025 at [49] 228 Statement of applicant dated 17 November 2025 at [119] 229 Statement of Shane Johnson dated 22 December 2025 at [57] Resignation

236. The applicant alleged that he was forced to resign from his employment by the respondent as the respondent had denied without reasonable basis six requests for reasonable adjustments to facilitate his return to work, and the applicant was unable to return to work and manage his bowel disability due to the respondent 230 refusing to make reasonable adjustments. As to the latter, as noted above, some of the complaints by the applicant had in fact been addressed, and by March 2024 when the applicant resigned all had been addressed.

237. He said his physical health, mental health and overall quality of life had been negatively impacted by the events. He alleged that either the respondent had breached the contract of employment or evinced an intention no longer to be bound by it, repudiated the contract, which repudiation the applicant had accepted, or the termination of his employment was the probable result of that 231 conduct such that he had no effective choice but to resign.

238. In my view no factual or legal basis for these propositions was provided. At any rate the only relevance of this issue seems to be to bring the conduct within section 10(2)(c) of the Discrimination Act. However no claim is made that the constructive dismissal was disability discrimination. Further the conduct actually complained of falls within section 10(2)(b) and (d) of the Discrimination Act.

Consideration of work from home complaints and direct discrimination

239. The applicant complained that the failure to allow him to work from home amounted to direct discrimination.

240. As noted, section 8 of the Discrimination Act provides as it applies here that the respondent directly discriminates against the applicant if the respondent: (a) treats the applicant unfavourably; (b) because the applicant has a disability.

230 Applicant’s points of claim at [161] 231 Applicant’s points of claim at [161] As discussed above at [34]-[35] and [123] the applicant had a significant bowel condition which required him to go to the toilet often and suddenly, that his bowel condition was a disability and a protected attribute under the Discrimination Act.

241. As also discussed above at [38]-[40] the complaints fall within section 10(2) of the Discrimination Act which concerns discrimination at work. In my view denying an employee access to opportunities for transfer or any other benefit associated with work is unfavourable treatment, as is suggested by section 10(2)(b) of the Discrimination Act. This requirement was met.

242. I have discussed above at [126]-[132] the requirement of ‘because the person has a protected attribute’. The Applicant’s submissions state that the evidence will show that the respondent’s actions in refusing the applicants request were taken because of his disability. However, no evidence was pointed to in these 232 submissions, or the Applicant’s submissions in reply.

243. As discussed above, there was a range of background information given by the respondent in relation to the work from home requests. The position of Apple was that the employment of the applicant was to work in the Apple store. This was in the Apple Retail area of the company. The position of Apple was that there were no work from home positions in that area. Ms Saysitthideth stated 233 that they did not have work from home roles at Apple Retail. Mr Johnson stated that the position the applicant held was a store based position, and his requests to work from home were effectively a request to take up a different 234 position in a different division of Apple. This was consistently provided as the reason why the applicant could not work from home in the position he had.

244. Mr Johnson said that he had observed that Apple had a highly supportive approach to flexibility in retail, and that at the time of his statement Apple had approved flexible working arrangements for around 10% of the Apple Retail workforce. But these arrangements related to matters such as hours of work and patterns of work, and he was not aware of any Apple retail employee working

232 Applicant’s submissions at [33]; Applicant’s submissions in reply at [2] 233 Transcript of hearing on 17 February 2026 at pages 197 and 216 234 Statement of Shane Johnson dated 22 December 2025 at [76] from home, and he could not see how that could be accommodated as the work 235 of an Apple Retail employee is performed solely in store.

245. It is true that this was the situation because of the way Apple had chosen to structure itself. But there was no allegation by the applicant that this structure 236 was discrimination on the basis of disability.

246. There were work from home positions in Retail Customer Care. The applicant had worked in such positions during the COVID 19 pandemic on three occasions. There were however a declining number of these. It appears that these were generally advertised. The applicant applied for some of these. Indeed Ms Saysitthideth encouraged the applicant to apply for roles at RCC. Ms Healy 237 supported his applications. Others in Apple drew these to his attention. But he was unsuccessful. Mr Johnson indicated that the alternative role request for 238 complaint 6 was a higher grade position than the applicant then held.

247. There was some information provided as to why he was unsuccessful, such as the extended letter of 10 November 2023 quoted at [231] above. But there was simply no evidence that the reason or one of the reasons for this was because of his disability.

248. Counsel for the applicant stated that the denial of his requests was because he did suffer from a disability, that the respondent did not treat his requests to work from home seriously, but instead continually denied them, and as such eventually discouraged him to the point where he would have to resign from his employment. Counsel for the applicant acknowledged that he was able to work from home on a number of occasions, but that this was not in order to accommodate his disability. It was argued that the later requests were refused

235 Statement of Shane Johnson dated 22 December 2025 at [37] 236 Transcript of proceedings on 19 March 2026 at pages 361-363 237 Statement of Vanessa Saysitthideth dated 22 December 2025 at [47] and annexure VS 4 and [50] and annexure VS 5; statement of Janine Healy dated 20 December 2025 at [55]-[56] and [75]-[77] and annexures JH 13 and JH 14; statement of Shane Johnson dated 22 December 2025 at [43] and [46]; transcript of hearing on 17 February 2026 at pages 189 and 213 238 Statement of Shane Johnson dated 22 December 2026 at [45] because by this point in time he had been raising these problems about the state 239 of the toilets in the organisation.

249. This timing is not factually correct. The applicant raised the bathroom issues in late 2019 and July 2021. He was still working for RCC from home later in 2021. Further as noted all his bathroom complaints had been addressed by about the time he resigned.

250. At any rate there was simply no direct evidence presented which showed that the respondent refused the request because of the applicant’s disability. The applicant relied on a submission that some of the relevant Apple employees who 240 knew about the work from home applications were not called as witnesses. The respondent did provide significant evidence from four witnesses who had a role in these processes and provided documents in relation to these processes.

251. Some attempts were made to support the applicant’s claim by indirect means. After the applicant had been absent from work for 20 months, Apple put some processes in place to consider his position. In my view this was a reasonable step to take.

252. One step was to arrange a meeting at a cafe in June 2023. The evidence in relation to this meeting is set out above. In my view the evidence is clear that the discussion was about the applicant’s position and there was discussion about potential ‘separation of employment’ which I think would include the applicant resigning or the respondent terminating the employment by lawful process. I do not think it was said, or that the applicant could correctly take the view that it was said, that the respondent was going to terminate his employment. At any rate there is no evidence that the process set in place from June 2023 affected the respondent’s response to the complaint 5 or complaint 6 requests which followed the meeting. There was no evidence that this meeting played any role in the decisions not to allow the applicant to work from home.

253. There were some emails at around this time which the applicant relied on. One was the email of 15 May 2023 quoted at [212] above which stated “our position 239 Transcript of hearing on 19 March 2026 at pages 342-346 240 Transcript of hearing on 19 March 2026 at pages 342 and 363 has not changed”. It is unclear what this is talking about. Another was the email of 8 June 2023 quoted at [223] above which stated that the IME will extend the outcome. But it is unclear what this is talking about and the outcome could clearly have been a number of possibilities.

254. Another step was that Apple sought its own medical reports. The applicant was clearly unhappy with the reports obtained. But Apple also clearly allowed the applicant to provide alternate reports, and was waiting for a response when the applicant resigned.

255. At any rate there was no termination of the applicant, for any reason. And there was no evidence that the IMR process or the reports obtained played any role in the decisions not to allow the applicant to work from home.

256. Ms Saysitthideth denied Apple did not intend to return the applicant to work and 241 was intending to exit the applicant in his employment. She denied that Apple would not consider the conditions for the applicant to return to work at the store, 242 and indicated that some had been met and others could be met.

257. There is no evidence that Apple failed to allow the applicant to work from home because of his disability. Therefore the claim of direct discrimination in relation to the work from home requests is not made out.

Remedies

258. Section 53E(2) of the Human Rights Commission Act provides for the kinds of orders that the Tribunal can make if the tribunal is satisfied that the person complained about engaged in an unlawful act, relevantly in this case that the respondent pay to the applicant a stated amount by way of compensation for any loss or damage suffered by the applicant because of the unlawful act.

259. Subsection (3) sets out a range of factors the ACAT must consider in relation to such compensation, including (a) the person’s right to equality before the law and the impact of the discrimination on the enjoyment of that right (b) the inherent dignity of all people and the impact of the discrimination on the 241 Transcript of hearing on 17 February 2026 at pages 199, 213, 215 242 Transcript of hearing on 17 February at page 202 person’s dignity; … (d) the nature of the discrimination; and (e) any mitigating factors. Some examples are given in relation to these factors: Examples—par (b)—impact of discrimination distress, humiliation, loss of self-esteem, loss of enjoyment of life … Examples—par (d) serious or repeated discrimination, intentional or malicious discrimination, discrimination on the grounds of 2 or more protected attributes under the Discrimination Act 1991 Examples—par (e) a public apology, systemic changes to protect against further discrimination

260. The applicant sought past economic loss compensation of $20,525; general 243 compensation of $50,000; and interest. I take this to be a claim of compensation for any loss or damage under section 53E(2)(c). This claim was for all the complaints, and I note that it is only the claim of indirect discrimination in relation to the bathroom complaints which has been made out.

Psychological injury

261. The applicant sets out the basis for the claim in his statement. Under the heading psychological injury, he states that the actions of the respondent in refusing to support him in his bowel disability and, further, creating an untenable working situation for him, has caused him much hurt, humiliation and distress. He notes that in particular the refusal by the respondent to facilitate a return to work and approve reasonable adjustments resulted in him experiencing anxiety and 244 depression. 245

262. The respondent denies the applicant is entitled to general compensation.

263. There is no expert medical evidence provided showing that these matters have caused any psychological injury and the nature and effect of this injury. The respondent was therefore unable to cross-examine any expert or consider bringing evidence in reply. 243 Applicant’s points of claim at [177] 244 Statement of applicant dated 17 November 2025 at [125]-[127] 245 Respondent’s points of defence dated 26 September 2025 at [176] Considerations

264. As noted above, the Human Rights Commission Act sets out some matters that the ACAT must consider in determining compensation. One of these is the impact of the discrimination on the person’s dignity. The examples given are distress, humiliation, loss of self-esteem, loss of enjoyment of life. The applicant has stated that he suffered hurt, humiliation and distress. But as noted no specific expert medical evidence was provided in this regard. In my view this limits the compensation payable.

265. Another consideration is the nature of the discrimination and the examples given are serious or repeated discrimination or intentional or malicious discrimination. In my view there is no evidence of serious or repeated discrimination by the respondent. Rather the respondent put in place quickly those measures it could to address the applicant’s bathroom complaints, and in time addressed all his complaints. Nor is there evidence of any intentional or malicious discrimination. The staff at the store made efforts to assist the applicant to deal with his condition. In particular Ms Healy and Ms Saysitthideth, showed significant concern for the applicant’s condition, supported him and did what they could to address his issues. Only the complaint of indirect discrimination has been made out. In my view these factors go to limit the compensation payable.

266. Another consideration is any mitigating factors. Some examples given are a public apology and systemic changes to protect against further discrimination. There is no evidence that the applicant asked for an apology. He has not done so in these proceedings. The respondent has put in place significant changes over time to address the complaints of the applicant in relation to the bathrooms, and by March 2024 when the applicant resigned all the issues he raised had been addressed. In my view these were systemic changes to protect against further discrimination and also go to limit the compensation payable.

Cases

267. In Travers the Federal Magistrates Court stated: … No medical evidence was called and there is no allegation that she is suffering from any psychiatric disturbance or post traumatic stress disorder. Given that I have found there was no intention to deliberately discriminate against Stephanie the award should not reflect any such culpability. It was submitted by the respondent that there was no evidence that Stephanie had suffered damage. I am not in agreement with that submission. I think that Stephanie's affidavit clearly indicates that she suffered compensable damage. … This case, in which I have found that there was no deliberate intention of the school to discriminate against Stephanie must be contrasted with Murphy and Ors v State of New South Wales (2000) EOC 93-095 in which very substantial damages of $25,000.00 were awarded to the complainants who included the parents of the disabled child. … In 246 Stephanie's case I believe that an appropriate award would be $6,250. I note that this award was made in 2001, and that 25 years have passed since then which would need to be acknowledged in any assessment.

268. In Access for All Alliance there was no claim for compensation. In Burns v 247 Director-General of the Department of Education the Court awarded $8,000 in relation to a range of discrimination including inadequate toilet facilities at a school.

269. The applicant argued, and this is generally accepted in the cases, that there was a significant change in the assessment of compensation in the area of discrimination by the decision in Richardson v Oracle Corporation Australia 248 Pty Ltd (Richardson) and a number of similar cases. Richardson was a case of sexual harassment. The original decision of the Federal Court was an award of $18,000 by way of general compensation, with nothing for economic loss, for breach of section 28B(2) of the Sex Discrimination Act 1984 (Cth). On appeal to the Full Court of the Federal Court this was set aside and replaced by an order of $130,000 with $100,000 for general compensation, and this is the decision I focus on.

270. This is a detailed judgment which canvasses a range of issues. In relation to the compensation issues raised in this case, two are particularly relevant. First, as

246 [2001] FMCA 18 at [73] 247 [2015] FCCA 1769 248 [2014] FCAFC 82 noted Richardson was a case of sexual harassment which the trial judge had 249 held was cruel and calculated.

271. Second, there was significant medical evidence which supported the claim for general compensation. In particular the trial judge had found that, as a result of the unlawful conduct, Ms Richardson suffered a chronic adjustment disorder with mixed features of anxiety and depression which was supported by medical 250 evidence and lay witnesses.

272. There is something of a tension between older cases, like Travers, where a lesser amount of essentially nominal general compensation was awarded, and some later cases, like Richardson, where much more significant amount of general compensation has been awarded. This is discussed in a number of ACAT discrimination decisions, some of which are noted below. In my view the later cases like Richardson expand significantly the range of compensation which can be given in discrimination cases, but that the higher amount requires important elements, namely intentional or calculated actions, and medical evidence of harm. 251

273. In Kovac v The Australian Croation Club Limited (No. 2) (Kovac) Senor Member Spender considered the issue of compensation for a finding of discrimination on the basis of political opinion. The tribunal held that the 252 approach in Richardson should apply.

274. The tribunal in Kovac held that the respondent did engage in conduct that was 253 calculated and cruel. Further, the tribunal concluded that the applicant had suffered as a result of the respondent’s conduct and that a significant body of credible evidence was led by the applicant and other witnesses which established that he suffered from a medical condition, chronic adjustment disorder, as well as feelings of hurt, humiliation and distress which were caused by the unlawful conduct of the respondent. Although not directly relevant in that

249 At [75], Kenny J 250 At [46], Kenny J 251 [2016] ACAT 4 252 At [44] 253 At [40] case, the tribunal noted the comments in House v Queanbeyan Community 254 255 Radio Station of Federal Magistrate Neville which were: While I accept that the failure to provide medical evidence is not fatal to any claim for general damages, and that I have remarked that something more than general claims of shame, hurt and anxiety felt by the applicants would have been helpful, it does, in my view, militate against there being a large award of damages.

275. The tribunal concluded in Kovac that the amount of compensation of $30,000 accorded with prevailing community standards and awarded this sum to the applicant by way of general compensation.

276. In Complainant 201908 v Commissioner for Fair Trading (Complainant 256 201908) there is significant discussion about compensation for discrimination. This includes consideration of the decision of Richardson. In Complainant 201908 the tribunal had before it clear evidence of an exacerbation of a pre-existing psychological injury, albeit for a limited period, as well as evidence of ongoing hurt feelings, humiliation and distress. Presidential Member Robinson noted that consistent with Richardson, any award should reflect the increasing awareness within the community of the effect of discrimination on mental health and wellbeing and the foreseeable injury that 257 may result. But there was no evidence that the applicant was individually targeted or subjected to a deliberate cruelty of the kind suffered by the applicant in Richardson, nor of the sustained discrimination or serious medical consequences in Huntley v State of NSW, Department of Justice (Corrective 258 Services NSW). Nor was there any evidence of long term psychological or psychiatric damage. Having regard to these factors the tribunal made an award 259 $15,000 general compensation.

254 [2008] FMCA 897 255 Kovac at [81] 256 [2021] ACAT 2 257 At [66] 258 [2015] FCCA 1827 and, on appeal, State of New South Wales (Department of Justice – Correction Services) v Huntley [2017] FCA 581 at [225]-[252], Perry J 259 Complainant 201908 at [67]

277. The applicant also relied on Complainant DT 232023 v Australian Capital 260 Territory (represented by Community Services Directorate) where the original tribunal awarded general compensation of $80,000. However that order has been overturned on appeal in a decision which raised a number of issues in relation to the consideration of compensation, agreed with the appellant’s 261 submissions on compensation, and dismissed the primary application. In my view it is not appropriate to now rely on the original decision.

278. In my view Kovac and Complainant 201908 are an appropriate guide to compensation here. In this case I do not think that the conduct of the respondent was calculated and cruel, or even intentional. Further, in this case, there was no medical evidence provided that the acts of discrimination found had an impact on the applicant’s mental health, and therefore no ability for the respondent to challenge such evidence. Therefore I think the amount awarded in Complainant 201908 is the appropriate guide, and I award compensation of $18,000. This includes an adjustment to update the decision in Complainant 201908.

Economic loss

279. The Applicant’s points of claim ask for past economic loss compensation of 262 $20,525. The applicant said that in the financial year 2021 while he was still employed and working full time with the respondent he earned $43,515 net. For the financial years 2022, 2023, 2024 and 2025 he says he received in total $24,819 less than this. He acknowledges that he received income protection in this period, and a workers compensation payment, which he says he has 263 accounted for in the sums.

280. The respondent denied that the applicant was entitled to any past economic loss 264 compensation.

260 [2024] ACAT 89 261 Australian Capital Territory (represented by Community Services Directorate) v Complainant DT 232023 [2025] ACAT 65 at [75]-[84]; discussed at transcript of hearing on 19 March 2026 at pages 363-364 and 371 262 Applicant’s points of claim at [177] 263 Statement of applicant dated 17 November 2025 at [128]-[132] 264 Respondent’s points of defence at [176]

281. The respondent confirmed that the applicant received long term salary 265 continuance from January 2022.

282. The respondent also confirmed that the applicant received workers’ 266 compensation for his hand injury. The respondent also stated that the applicant had made a further workers’ compensation claim in relation to the 267 June 2023 meeting. Both claims were resolved in about July 2024. There is no evidence that both these claims were factored into the calculations by the applicant. Indeed there is no evidence of the calculations at all. The applicant 268 also received a substantial medical negligence claim settlement. There is no evidence that this claim was factored into the calculations.

283. Other significant issues were raised about the reliability of the figures set out in the Applicant’s points of claim and his affidavit in the cross-examination of him 269 by the respondent.

284. These serious issues about key factual matters in relation to the claim for economic loss means that there is simply not the basis for me to find such a claim is made out. In addition there are other issues.

285. First, the applicant was quite sick for much of this period, and there is a real issue as to whether even if there was any economic loss this was caused by the discrimination I have found, rather than his underlying health issues. Under cross-examination he agreed that from October 2021 to March 2023 he was unable to work at all because of his health. He provided medical certificates for 270 this.

286. After this his doctor suggested he could work 10 hours per week because of his 271 health. But there were still periods when the applicant provided medical certificates suggesting either he could not work or could work but only for a

265 Statement of Shane Johnson dated 22 December 2025 at [17]-[18] 266 Statement of Shane Johnson dated 22 December 2025 at [19]-[120] 267 Statement of Shane Johnson dated 22 December 2025 at [25]-[26] 268 Transcript of hearing dated 16 February 2026 at pages 44-45 and 74-75 269 Transcript of hearing on 16 February 2026 at page 89-99 270 Transcript of hearing on 16 February 2026 at pages 54-60 271 Transcript of hearing on 16 February 2026 at page 59 limited period. The applicant says that the certificates were in relation to working in the store, and not from home; but the certificates themselves do not 272 say this. It seems therefore that a significant reason for the applicant’s inability to work in this period was his underlying health. The respondent did not cause his underlying health issues.

287. It was put to the applicant that the issues in relation to the bathrooms were not relevant to his inability to work, and by implication his ability to earn, but the applicant disputed this position. He said it was a lot to do with the toilets; urgency and incontinence was the main reason he could not work; the certificates did not say this because he “did not feel work had a right to know that … it was a very personal thing to me … the doctor put minimal in the 273 medical certificates for this period”. This is short of evidence that the discrimination by the respondent found by this decision caused him to not be able to work.

288. The applicant made a claim for total disability on his salary continuance insurance for the period 2022 and 2023 on the basis that he was unfit for any 274 work.

289. Second, it is true that the applicant also suggested that he had some mental health issues in this period. The applicant himself linked this to the failure of the respondent to allow him to work from home, and the medical assessment process the respondent had set up. There is some support for this in medical evidence. The applicant did not point to any direct evidence that his inability to work was caused by the bathroom issues which is the only discrimination 275 complaint which has been made out.

290. Third, the applicant resigned from his position at Apple and took up a position at BMW. He did state that he was next to an accessible toilet there, but even so

272 Transcript of hearing on 16 February 2026 at page 56 273 Transcript of hearing on 17 February 2026 at pages 131-132 274 Transcript of hearing on 17 February 2026 at pages 120-121 275 Statement of the applicant dated 17 November 2025 at [125]-[127] and annexure PW 20; transcript of hearing dated 16 February 2026 at page 79 276 had to resign from this because of his health issues. This suggests that it was his underlying health issues, not the conduct of the respondent, which prevented him from working before his resignation.

291. Therefore I do not think there is a proven basis for compensation for past economic loss, and no clear evidence of the calculations in support of such a claim.

Conclusion

292. Therefore I find that the complaints of direct discrimination in relation to the bathrooms and the work from home requests are not made out.

293. The complaint of indirect discrimination in relation to the bathrooms is made out, and the Tribunal awards $18,000 in compensation to the applicant in relation to this complaint.

……………………………….. Senior Member R Orr PSM KC

Dates of hearing: 16,17,18 February 2026, and 19 March 2026 Counsel for the Applicant: Ms T Wong Solicitors for the Applicant: Mills Oakley Counsel for the Respondent: Mr D Mahendra Solicitors for the Respondent: McCullough Robertson

276 Statement of applicant dated 17 November 2025 at [137]; transcript of hearing dated 17 February 2026 at page 23